III. Climate Change Related NEPA Litigation III. Climate Change Related NEPA Litigation

• Jurisdiction: United States

III. Climate Change Related NEPA Litigation

The handful of published decisions addressing climate change issues in the NEPA context fall into two categories: (1) cases where the agency had failed to consider climate change at all; and (2) cases in which the court must determine the adequacy of the agency's

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climate change analysis.²² Both types demonstrate the seriousness with which courts are now approaching climate change issues.

A. Failure to Consider Climate Change

One of the first cases to directly address whether a NEPA document should consider climate change impacts was Border Power Plant Working Group v. Dept. of Energy.²³ Plaintiffs in Border Power challenged the sufficiency of an EA and FONSI for the Department of Energy's decision to issue a Presidential Permit and the Bureau of Land Management's decision to grant rights-of-way for the construction and operation of power lines to conduct electricity from two new gas-fired electrical generating plants in Mexico. Specifically, plaintiffs argued that the EA had failed to consider emissions of GHGs from the power plants and how those GHGs might contribute to global warming.²⁴ The federal defendants argued that they were not required to evaluate "questionable effects" or "imaginary horribles." Judge Gonzalez of the Southern District of California held that there was no question that the power plants would emit GHGs, and the federal agencies therefore were required to consider the significance of the effects of those emissions.²⁵ The court remanded the EA to the agency for, among other things, the failure to consider the effects of GHG emissions.²⁶

Not long after Border Power, the Eighth Circuit heard similar arguments in Mid States Coalition for Progress v. Surface Transportation Board.²⁷ As in Border Power, plaintiffs challenged the agency's failure to discuss potential air quality effects of increasing the supply of low-sulfur coal to power plants in the Midwest.²⁸ Plaintiffs argued that the Surface Transportation Board's approval of 280 miles of new rail line and 600 miles of upgrades to existing lines intended to transport coal from mines in Wyoming's Powder River Basin to the Midwest would lead to increased demand and use of Powder River Basin coal, which, in turn, would significantly increase emissions of GHGs and other airborne pollutants.²⁹

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Denying the argument that such impacts were too speculative, the Eighth Circuit held that degradation of air quality must be addressed in an EIS if "reasonably foreseeable."³⁰ Though the "extent" of the impacts was not certain, the court held the "nature" of the impacts was reasonably foreseeable. The court suggested that the mechanism for addressing unknown or uncertain impacts was not to ignore them, but to disclose the lack of information and determine whether the costs of obtaining such information would be exorbitant, as required by the Council on Environmental Quality's NEPA implementing regulations.³¹ The court also suggested that modeling of air quality impacts and effects on global warming would be appropriate.³² The Surface Transportation Board's approval of the proposed rail lines was reversed and remanded for further NEPA compliance.

On remand, the Surface Transportation Board followed the Eighth Circuit's advice in Mid States Coalition almost word-for-word. The Board modeled potential changes to coal supply and demand of the proposed action and quantified the potential increase in GHG emissions as result of the project.³³ The Board issued a supplemental EIS which concluded that, on both national and regional levels, the projected increase in air emissions would be small--less than one percent.³⁴ The Board did not discuss whether or how a one percent increase in GHG emissions might translate to effects on climate change.

The Board acknowledged that the model could not be used to project local level impacts. Instead, the Board followed the procedure required by the CEQ regulations for unavailable information.³⁵ The Board explained the factors and information required to reasonably foresee the likely impacts of the project on a local level. Since that information was unavailable, the Board concluded that local air quality impacts could not be determined in advance with any degree of confidence, and any potential local air quality impacts were speculative and ultimately unforeseeable.³⁶ Given the Board's "extensive" discussion of potential impacts to air quality, the Eighth Circuit held the Board had "more than adequately considered the reasonably foreseeable

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significant adverse effects of increased coal consumption on the human environment on remand."³⁷

The decisions in Border Power and Mid States Coalition indicate that where direct or indirect effects to air...