Infrastructure and Development in an Era of Extreme Weather Events: We Need the National Environmental Policy Act!

Author:Elena Franco
Position:J.D. Candidate, American University Washington College of Law 2018
34 Sustainable Development Law & Policy
Infrastructure and development In an era
of extreme Weather events: We need the
natIonal envIronmental polIcy act!
Elena Franco*
Extreme weather events and climate-induced natural
disasters are becoming more frequent and costly; the
U.S. National Oceanic and Atmospheric Administration
(NOAA) estimated that, in 2017 alone, damages and economic
loss from extreme weather events reached $306 billion1 and
left behind destroyed infrastructure and toxic ood waters.2 As
of 2017, the United States’ infrastructure is rated a D+ by the
American Society of Civil Engineers.3
Infrastructure represents a legacy for the future and keeps
our economy moving. However, review of new infrastructure
projects should take into account the relationship between
the built environment, climate change, and natural disasters
because this interconnectedness poses additional vulnerability
to our infrastructure and our populations.4 Fortunately, codied
environmental law provides a vehicle for this kind of analysis
and decision-making. The National Environmental Policy Act
(NEPA),5 which was enacted in 1970, builds from the ecologi-
cal model,6 and emphasizes the interdependence of humans and
the environment. The Supreme Court has afrmed that NEPA’s
dual purposes are to ensure: 1) informed decision-making by
federal agencies, and 2) public participation in that process.7
Section 102(2)(C) of the NEPA statute and the Council on
Environmental Quality’s (CEQ) regulations require agencies to
prepare an Environmental Impact Statement (EIS)8 for “major
federal actions”9 that have a “signicant impact”10 on the “qual-
ity of the human environment.”11 Federal agencies must study
the environmental, economic, social, cultural, public health, and
safety impacts, and reasonable alternatives to these actions.12
CEQ regulations also ensure a voice for the public by requir-
ing agencies to provide public notice and environmental docu-
ments to those who may be interested in or affected by a federal
As part of its scal year 2019 budget, the Trump administra-
tion released its Infrastructure Plan which seeks to remove delays
and reduce costs it attributes to NEPA.14 Yet NEPA has shown
its value as a way to mitigate future problems and save money in
the long run.15 NEPA is fundamentally forward-thinking,16 and
the “rule of reason” guides courts’ review of NEPA environmen-
tal analysis.17 Courts have consistently held that NEPA requires
agencies to take a “hard look” at the environmental impact of
their plans.18
NEPA procedures hold agencies responsible for assessing
risks that are “likely” and “foreseeable.”19 CEQ regulations state
that “reasonably foreseeable” impacts can include those with a
low probability of occurrence but catastrophic consequences, so
long as there is credible scientic evidence and analysis which is
“within the rule of reason.”20 Courts have held that terrorism and
nuclear accidents are considered within the rule of reason when
the causal chain to the federal action is strong and falls within
the limits of the agency’s authority.21
Increased vulnerability to climate-induced natural
disasters is now falling squarely in the realm of “reasonably
foreseeable.”22 Although the Trump administration rescinded
the Obama administration’s 2016 CEQ guidance on climate
change considerations,23 judicial precedent for consideration
of the implications of climate change continues to build.24 In
2017, the U.S. Court of Appeals for the Tenth Circuit found
that the Bureau for Land Management (BLM) acted arbitrarily
and capriciously when it concluded that issuance of four coal
leases in Wyoming’s Powder River Basin would not result in
higher national greenhouse gas emissions than if the Bureau had
declined the leases.25 When FERC approved natural gas pipeline
expansion projects, the D.C. Circuit Court held that the Federal
Energy Regulatory Commission (FERC) violated NEPA proce-
dures because FERC failed to adequately consider the down-
stream, indirect project effects on greenhouse gas emissions.26
Hurricanes and other natural disasters can have signicant
impacts on the built and natural environments, and mounting
scientic evidence links the increasing frequency of hurricanes
and natural disasters to climate change.27 Two cases following
Hurricane Katrina in 2005 demonstrate the courts’ willingness
to nd agency actions “arbitrary and capricious” when agen-
cies have not included known hurricane-related risks in their
EIS.28 In Holy Cross v. U.S. Army Corps of Engineers, the court
found shortcomings in the Army Corps’ treatment of risks in the
EIS related to ooding and hurricanes in general, stating that
Hurricane Katrina had exposed these inadequacies.29 In Blanco
v. Burton, the court recognized that government agencies need
to consider updated information available on hurricane-related
devastation to Louisiana’s coastline and destruction to reneries
and other infrastructure.30 With legal precedent for considering
terrorism risk as reasonably foreseeable,31 evolving judicial
doctrine indicates that agencies should adequately account for
the potential consequences of natural disasters, especially as the
causal chain is less attenuated than for terrorism.32
The Trump administration’s Infrastructure Plan calls
for ways to reduce delays and costs they ascribe to NEPA by
*J.D. Candidate, American University Washington College of Law 2018
224813_AU_SDLP_Spg-Sum18.indd 34 10/18/18 1:53 PM
Spring/Summer 2018
dramatically reforming the judicial review standard, streamlin-
ing CEQ regulations, expanding categorical exclusions, and
narrowing alternatives to be considered.33 However, there is
no strong evidence that NEPA is the cause of these delays and
costs: FAST41 legislation in 2015 already streamlined NEPA
procedures,34 the Government Accountability Ofce (GAO)
reports very inadequate data to assess NEPA costs,35 and the
Congressional Research Service (CRS) highlights NEPA’s
potential to save money and the lack of evidence that NEPA
is the source of delay.36 According to the Supreme Court, the
“rule of reason” inherent in NEPA “ensures that agencies deter-
mine whether and to what extent to prepare an EIS based on
the usefulness of any new potential information to the decision-
making process.”37
Although the future of the Trump administration’s
Infrastructure Plan is unknown at the moment, it would be
shortsighted to focus only on economic growth objectives. The
2017 extreme weather events have been a dramatic reminder of
the interconnectedness between the built environment and the
vulnerabilities it creates.38 NEPA provides the critical vehicle
needed to ensure the government uses the best information
available to make infrastructure decisions, while simultaneously
giving a voice to those most impacted by these projects and nat-
ural disasters.39 Citizens should participate by providing com-
ments during the EIS process and by bringing law suits when
the government does not adequately consider the risks and vul-
nerabilities in their communities. The judiciary should continue
to build on the extensive existing case law. Both citizens and
the judiciary have vital roles to play to ensure the strengthening
our nation’s infrastructure in an effort to shield against extreme
weather events.
1 United States Nat’l Oceanic & Atmospheric Admin., Billion-Dol-
lar Weather and Climate Disasters: Table of Events, https://www.ncdc.noaa.
gov/billions/events/US/1980-2017 (last visited Mar. 11, 2018).
2 UnitEd statEs Govt accoUntability officE, Gao-17-720, climatE
chanGE: information on PotEntial Economic EffEcts coUld hElP GUidE
fEdEral Efforts to rEdUcE fiscal ExPosUrE, 1, 24 (Sept. 2017) [hereinafter
climatE chanGE: information]; U.s. Global chanGE rEsEarch ProGram,
climatE sciEncE sPEcial rEPort: foUrth national climatE assEssmEnt, 1,
240-42 (2017) [hereinafter climatE sciEncE sPEcial rEPort].
3 2017 Infrastructure Report Card, am. socy of civil EnGr (2017), https:// (last visited Mar. 30, 2018).
David Schaper, 3 Reasons Houston Was A ‘Sitting Duck’ for
Harvey Flooding, nPr (Aug. 31, 2018, 6:35 AM), https://www.npr.
harvey-ooding (“Urban planners and civil engineers say a combination of
natural and man-made factors has created a chronic drainage problem that left
the city especially vulnerable to Harvey’s torrential rains.”).
42 U.S.C. § 4332 (2012).
Sam Kalen, Ecology Comes of Age: NEPA’s Lost Mandate, 21 dUkE
Envtl. law& Poly 113, 114 (2010).
Dep’t of Transp., v. Public Citizen, 541 U.S. 752, 768 (2004); Robertson v.
Method Valley Citizen Council, 490 U.S. 322, 349 (1989).
See 42 U.S.C. § 4332(2)(C) (2012); see also 40 C.F.R. §§1502.1-1502.16
40 C.F.R. §1508.18 (“Major Federal action includes actions with effects
that may be major and which are potentially subject to Federal control and
40 C.F.R. § 1508.27 (“signicant” impact can be direct, indirect, or cumu-
lative); id. at §1508.8 (dening effects as “direct” when caused by the action
and occurring at the same time and location, and “indirect” when impact occur
later, but are reasonably foreseeable).
11 Id. at §1508.14 (“Human environment shall be interpreted comprehen-
sively to include the natural and physical environment and the relationship
of people with that environment. (See the denition of “effects” (§ 1508.8))
. . . [If] economic or social and natural or physical environmental effects
are interrelated, then the [EIS] will discuss all of these effects on the human
See 42 U.S.C. § 4332(C) (2012).
See 40 C.F.R. § 1506.6(b); id. at §§ 1500.2(d), 1500.1.
14 officE of mGmt. & bUdGEt, ExEc. officE of thE PrEsidEnt, lEGislativE
oUtlinE for rEbUildinG infrastrUctUrE in amErica, 1, 35 (2018), https://www.
[hereinafter trUmPs infrastrUctUrE Plan].
15 U.s. Govt accoUntability officE, Gao-14-369, national EnvironmEn-
tal Policy act: littlE information Exists on nEPa analysEs, 1, 15 (2014)
[hereinafter littlE information] (“One benet of the environmental review
process, . . . is that it ultimately saves time and reduces overall project costs
by identifying and avoiding problems that may occur in later stages of project
Scientists’ Inst. for Pub. Info., Inc. v. Atomic Energy Comm’n, 481 F.2d
1079, 1092 (D.C. Cir. 1973) (section 102(2)(C) requires agency to describe
anticipated environmental effect of proposed action, subject to a rule of reason).
Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 754 (2004).
Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1971); see Sierra Club v.
Army Corp of Eng’r, 295 F.3d 1209, 1216 (11th Cir. 2002) (stating that the
“hard look” doctrine applies to review of agency NEPA decisions).
Sierra Club v. Marsh, 976 F. 2d 763, 767 (1st Cir. 1992); see 40 C.F.R.
§1508.18; 40 C.F.R. § 1508.27; 40 C.F.R. §1508.8; 40 C.F.R. §1508.14.
See 40 C.F.R. §1502.22(b)(4); see also Robertson v. Method Valley Citizen
Council, 490 U.S. 322, 354 (1989).
21 See San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm’n,
449 F.3d 1016, 1028-30 (9th Cir. 2006) (holding the appropriate inquiry is
whether terrorist attacks or other changes to the physical environment are so
“remote and highly speculative” that NEPA’s mandate does not include consid-
eration of their potential environmental effects). But see N.J. Dep’t of Envtl.
Prot., v. U.S. Nuclear Regulatory Comm’n, 561 F.3d 132, 143-44 (3d Cir. 2009)
(holding that impact statement was not required because there is not a reason-
ably close causal relationship between relicensing of nuclear power plant and
the environmental effects of a potential terrorist aircraft attack without interven-
ing events, and NRC had no authority over airspace above its facilities).
22 climatE chanGE: information, supra note 2, at 34-35; climatE sciEncE
sPEcial rEPort, supra note 2, at 240-41.
23 CEQ Withdraws Guidance on NEPA and Climate
Change, colUm. l. sch. sabin ctr. on climatE chanGE (Apr. 5,
Western Org. of Res. Council v. Bureau of Land Mgmt., No. CV 16-21-GF-
BMM, 2018 WL 1475470, slip op. at 18-19 (D. Mont. Mar. 26, 2018).
WildEarth Guardians v. Bureau of Land Mgmt., 870 F. 3d. 1222, 1228-29
(10th Cir. 2017).
Sierra Club v. Fed. Energy Regulatory Comm’n, 867 F.3d 1357, 1371-73
(D.C. Cir. 2017).
Geert Jan van Oldenborgh et al., Attribution of Extreme Rainfall from Hur-
ricane Harvey, Envtl. rEsEarch lEttErs, 12 (2017),
Holy Cross v. Army Corps of Eng’r, 455 F. Supp. 2d 532, 536-37 (E.D. La.
2006); Blanco v. Burton, No. 06-3813, 2006 WL 2366046, at *9-10 (E.D. La
Aug.14, 2006).
continued on page 48
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