CLIMATE CHANGE AND THE NATIONAL ENVIRONMENTAL POLICY ACT
| Jurisdiction | United States |
McKenna Long & Aldridge LLP
Washington, D.C.
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For several years, the domestic climate policy debate has focused principally on whether the US would agree to implement the Kyoto Protocol and secondarily on congressional proposals for multi-pollutant legislation that would include regulation of carbon dioxide emissions. Having lost momentum on both of these, proponents have now turned to state legislation, litigation in federal courts, and corporate governance strategies which seek to compel companies to reduce (or at least disclose) carbon emissions or to convince officers and boards they must undertake global warming emissions reductions as a matter of corporate policy.
This article is about litigation that combines elements of these strategies, but with a significant new twist - using the National Environmental Policy Act (NEPA) to bring climate considerations into federal project approval and funding decisions. This litigation strategy is long-term and indirect. It cannot force specific warming emissions reductions to be made. But proponents reason that because NEPA requires a detailed federal environmental impact statement (EIS) on the potential climate impacts of federal actions, they can raise public concern about climate through publicity and debate, cause agencies to hire climate experts, create a record of federal documentation of potential climate impacts, deter agencies and companies from projects with potentially large climate impacts, change the criteria federal agencies use to approve energy and agriculture-related projects, and possibly cause agencies to deny approval or funding because of NEPA disclosures.
I. Climate Cases and NEPA
The use of NEPA to address climate change has barely begun. Still, court decisions and cases pending decision, and the cases which climate advocates have said they plan to file, already show the contours of the new "campaign."
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A. Two Decisions: Harbingers of Things to Come?
If two cases are followed, courts may soon require that climate change analysis for proposed projects be included in NEPA environmental impact statements (EISes) and environmental assessments (EAs). Previous cases that focused on standing to sue under NEPA addressed what could have been a potentially fatal blow to climate advocates' efforts to have climate included in NEPA analyses.1 Although the critical threshold issue of standing is far from resolved for climate cases, in the first round of the battle plaintiffs appear to have prevailed. Courts appear to agree that the potential climate impacts of federal activities may be both causally related and potentially injurious to members of climate advocacy organizations sufficient to confer standing to sue.
Mid States Coalition for Progress v. Surface Transportation Board.2 In the first of the cases, the federal Eighth Circuit vacated the Surface Transportation Board's approval of a proposed railroad that would transport coal from Wyoming to Minnesota because the EIS failed to include any analysis of the potential effects of increased carbon dioxide (C02) emissions that would come from increased coal consumption. The Sierra Club argued that the railroad would both increase the supply and lower the cost of coal burned in Minnesota power plants, which in turn would lead to increased C02 emissions. Rejecting arguments that global warming emissions impacts were too speculative, the court held that climate impacts should have been discussed in the EIS in accordance with Council on Environmental Quality (CEQ) regulations that require an EIS to analyze indirect effects that are reasonably foreseeable.3
Border Power Plant Working Group v. Department of Energy.4 Similarly, in the second case, a federal district court held that the Department of Energy and the Bureau of Land Management violated NEPA by failing to include in an expedited EA any analysis of the potential impacts of greenhouse gas emissions that would result from
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new transmission lines that would be built to connect two new power plants in Mexico to an electricity grid in California.5 Noting that C02 is not regulated by the Clean Air Act as a criteria pollutant, the court nevertheless found that natural-gas-powered turbines would emit C02, which could have potential global warming impacts.
Hence, both a federal appeals court and a federal district court have held that NEPA documentation cannot simply neglect to discuss potential global warming impacts of federally approved energy projects, although as project proponents in these cases argued, the potential global atmospheric impacts of the projects were so remote and speculative that they could not be meaningfully discussed. Based on these cases, it appears that non-profit environmental organizations and local governments have decided that their failure to contest agencies' climate analyses, represent missed opportunities. The Mid States Coalition and Border Power Plant cases are illustrative. Other pending or yet-to-be-filed cases re-enforce the apparent trend.
B. A Bellwether Pending Case
Mid States Coalition and Border Power Plant dealt with two large, specific projects. A pending NEPA climate case is far more ambitious, globally and programmatically. Several groups and cities are suing the Overseas Private Investment Corporation (OPIC) and the Export Import Bank (ExIm) for failure to conduct environmental impact analyses before providing more than $32 billion in financing and insurance over the past 10 years for an entire portfolio of energy-related projects -- oil fields, pipelines, and coal-fired plants.6 The projects include many of the largest new oil field developments in South America, Mexico, Russia, the Caspian CMregion, southeast Asia, and west Africa.7 The plaintiffs contend that over the lifetime
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of these federally funded or guaranteed projects, 32.1 billion tons of C02 will be released, principally by the burning of fuel exported from the projects' host countries. Plaintiffs argue that these emissions are greater than the entire amount of C02 that was released from the worldwide consumption of petroleum, natural gas, and coal in 2000 (32.1 billion tons versus 23.5 billion tons).
On the merits, plaintiffs believe they have raised a relatively straightforward question of administrative law that will set an important precedent which will have far-reaching impacts on how the US government acknowledges and analyzes potential climate change. The plaintiffs seek an order requiring OPIC and ExIm to prepare a programmatic environmental impact statement on their lending programs for energy projects, followed by EAs on specific projects before actual financing decisions are made. The plaintiffs believe that a programmatic EIS8 would require consideration of the environmental impacts of a number of lending alternatives (including climate impacts) and would identify opportunities to mitigate environmental harm caused by lending decisions. Through the preparation of a programmatic EIS, plaintiffs hope that OPIC and ExIm would decide to change course and redirect a significant percentage of their funding to renewable energy projects in developing countries while phasing out their support for fossil fuel projects.
To establish standing (a potential Achilles' Heel under all such NEPA climate suits), and to highlight the diverse effects of climate change the plaintiff organizations detail a variety of particular climate-related injuries to their members. A marine biologist claims his research opportunities on the Florida coral reefs are diminished because the reefs are disappearing due to bleaching from rising ocean temperatures. A maple syrup producer in Vermont believes his business will be ruined as maple trees disappear from the area. A North Carolina couple fear their retirement property will be lost to
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storm surges, erosion, and rising sea level. A woman who enjoys the Alaskan Arctic claims her recreational activities are diminished by increased threats of fires. The City of Boulder claims that global warming threatens Boulder's natural resources, impacts its snow-fed water supply, and increases risks of flooding. Whether these allegations of harm are sufficient to survive an expected challenge to standing under the Supreme Court's more recent standing decisions is yet to be seen (see discussion below).
C. Anticipated Suits
The existing NEPA climate cases are the tip of an iceberg, according to...
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