Climate Change's Significant Impact on the National Environmental Policy Act

• Author: Dave Newman
• Position: Editor-in-Chief
• Pages: 03

Dave Newman is a J.D. Candidate ('04) at American University's Washington College of Law and Editor-in-Chief of SDLP.

Page 10

The United States government has spent billions of dollars financing the construction of fossil fuel power plants, oil fields and transmission pipelines across the globe through the Overseas Private Investment Corporation ("OPIC") and the Export Import Bank ("Ex-Im"). These projects have an enormous impact on the global environment, as well as the local communities in which they are built. Some of these effects, such as climate change, are already having a significant impact on the environment in the United States. Despite the significant domestic impact of federal actions abroad, the OPIC and Ex-Im do not perform environmental assessments mandated by the National Environmental Policy Act ("NEPA") prior to funding a project. In a case filed recently in the Federal District Court for the Northern District of California, Friends of the Earth, Greenpeace and the cities of Boulder, Colorado and Oakland, California are seeking to require them to conduct the mandated environmental assessments.¹

In 1969, Congress passed the NEPA in recognition of "the profound impact of man's activity on the interrelations of all components of the natural environment."² NEPA declares that environmental health must be an "essential consideration" of federal policy.³ It requires that federal agencies study the environmental impact of proposed actions, consider possible alternatives and publicize their findings before the project is allowed to commence. This precautionary step, embodied in the process of drafting environmental impact statements ("EIS"), enables decision makers, environmentalists and the general public to thoughtfully consider the impact of major actions undertaken by the federal government before they become reality.

Over the past three decades, twenty-six states and eighty-six countries have adopted laws similar to NEPA requiring some form of environmental impact assessment.⁴In addition, the United Nations Environment Programme has adopted the principle of conducting environmental impact assessments for major governmental actions and the European Union has made it a requirement of state membership.⁵ The practice of drafting an EIS is also endorsed in international environmental agreements and declarations.⁶ However, U.S. government actions abroad generally have not been subject to NEPA's environmental assessment requirement, despite the negative environmental consequences of such actions throughout the world.

NEPA recognizes "the worldwide and long-range character of environmental problems" and encourages the U.S. to "lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind's world environment" to the extent that it does not conflict with U.S. foreign policy.⁷ Courts have interpreted NEPA's extraterritorial application narrowly by limiting it to situations where the action caused or was likely to cause direct impact on the United States or on the global commons.⁸

In Environmental Defense Fund v. Massey⁹,NEPA was held to apply to the National Science Foundation's plans to incinerate garbage in Antarctica. By contrast, in NEPA Coalition of Japan v. Aspin¹⁰, the court refused to extend the extraterritorial rule developed in Massey to include actions at U.S. military bases in Japan.

Friends of the Earth, Greenpeace and the City of Boulder, Colorado are now testing the limits of these decisions regarding NEPA's extraterritorial application. They are seeking declaratory and injunctive relief that would require OPIC and Ex-Im to draft EIS for projects that they are considering funding.

OPIC and Ex-Im have approved over $32 billion of fossil-fuel projects throughout the world over the past ten years.¹¹ These projects will emit significantly more carbon dioxide emissions through their lives than that released by the worldwide consumption of petroleum, natural gas and coal in the year 2000.¹²

Examples of these projects include:

-- Chad-Cameroon Pipeline: 650-mile petroleum pipeline through Chad and Cameroon that is expected to deliver approximately one billion barrels of oil and will directly lead to estimated emissions of 424.7 million metric tons of CO2.¹³-- Hamaca Oil Project: $627 million loan guarantee by the Ex-Im Bank for the development of Venezuelan oil fields that will result in the extraction of 2.1 billion barrels of oil releasing an estimated 891.2 million metric tons of CO2.¹⁴ Page 11

-- Dezhou Coal-Fired Power Plant: loan guarantees by the Ex-Im Bank to expand this Chinese power plant will lead to an additional 177.5 million metric tons of CO2 over its twenty-year life.¹⁵ None of these projects complied with NEPA despite imposing a significant impact on the global climate and, in turn, the United States. The complaint alleges that the Ex-Im Bank and OPIC are in continual violation of NEPA for not conducting environmental assessments to determine if any of these individual projects, or their energy programs as a whole, have a significant impact on the human environment of the United States.¹⁶ The complaint also alleges violations of the Administrative Procedures Act¹⁷ for failing to comply with NEPA.¹⁸

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[1] Plaintiff 's Complaint, Friends of the Earth v. Overseas Private Investment Corporation (NDC August 26, 2002), available at http://www.climatelawsuit.org/2002-08-26_Complaint.pdf.

[2] National Environmental Policy Act of 1969, 42 U.S.C. § 4331(a) (2002).

[3] 42 U.S.C. § 4331(b).

[4] DINAH BEAR, The National Environmental Policy Act: its Origins and Evolutions, Nat. Resources & Env't, 71 (1995).

[5] Id.

[6] See Rio Declaration on Environmental and Development, June 14, 1992, Principle17, 31 I.L.M. 874, 879.

[7] 42 § 4332(2)(F).

[8] See Bosire Maragia, Defining the Jurisdictional Reach of NEPA: An Analysis of the Extraterritorial Application of NEPA in Environmental Defense Fund, Inc. v. Massey, (Journal Volume) Widener J. Pub. L, (page article begins), (Page cited) (1994).

[9] Environmental Defense Fund v. Massey, 986 F.2d 528, 529 (2d Cir. 1993) (limiting NEPA's extraterritorial application to the continent of Antarctica because it is "without a sovereign, and an area over which the United States has a great measure of legislative control.")

[10] NEPA Coalition of Japan v. Aspin, 837 F. Supp. 466, 468 (D.C. Cir. 1993) (denying a call to extend NEPA's extraterritorial application beyond the unique "international" region of Antarctica, the court reaffirmed the notion that NEPA does not apply in cases with "clear foreign policy and treaty concerns involving a security relationship between the United States and a sovereign power.")

[11] Complaint ¶ 92 at 28, Friends (funding for fossil fuel projects was 25 times more than that for renewable energy projects; see Complaint ¶ 94 at 29.

[12] Complaint ¶ 95 at 29, id.

[13] Complaint ¶ 107-13 at 32-4, id.

[14] Complaint ¶ 121-25 at 36-7, id.

[15] Complaint ¶ 143-47 at 39-40, id.

[16] Complaint ¶ 157-58 at 42, id.

[17] See generally 5 U.S.C.A. § 500

[18] Complaint ¶ 159, id.