NEPA and Assessment of Greenhouse Gas Emissions

Date01 March 2011
3-2011 NEWS & ANALYSIS 41 ELR 10197
NEPA and Assessment of
Greenhouse Gas Emissions
by Neal McAliley
Neal McAliley is a partner at White & Case LLP.
tional analysis through litigation. ese and other issues
will pose great challenges for federal agencies in the com-
ing years.
How these issues are addressed is not entirely up to fed-
eral agencies and the executive branch. More so than other
federal environmental laws, NEPA is driven by a common
law of federal court decisions that result from lawsuits chal-
lenging agencies’ NEPA compliance. Despite the deferen-
tial “arbitrary and capricious” standard of review, NEPA
plaintis win a surprisingly high percentage of cases.2 is
means that the general trend of NEPA law is to require
progressively more in the way of analysis.3e accretion
of judge-made standards takes place over a period of years,
as judicial opinions are issued that identify specic issues
requiring more analysis. As more NEPA challenges are
brought that focus on climate change issues, the likelihood
is that agencies will be required to conduct more analysis
in this area—rather than less—than agencies initially are
inclined to conduct. Moreover, the issue of GHG emis-
2. e Council on Environmental Quality (CEQ) publishes on its website
annual surveys that track cases led and decided that involve NEPA claims.
In 2008 (the most recent year for which the CEQ has published statistics),
there were judgments for the defendant agencies in 77 NEPA cases and
“adverse dispositions” (including injunctions, remands, and settlements) in
73 cases. See CEQ, 2008 L S, available at http://ceq.hss. Other commentators who
surveyed the outcome of NEPA cases in the early 2000s found that plain-
tis won approximately 35-40% of the cases decided on the merits. See, e.g.,
Lucinda Low Swartz, Recent NEPA Cases (2004) (noting that agencies won
60% of cases in 2004 where there was a substantive decision on NEPA),
available at
3. For example, in 1981, the CEQ issued guidance entitled “40 Most-Asked
Questions Concerning CEQ’s NEPA Regulations,” in which it indicated
that an EA typically would be “not more than approximately 10-15 pages.”
46 Fed. Reg. 18026 (Mar. 23, 1981) [hereinafter Forty Questions], available
at In 2003, a federal
task force reported that the typical “small” EA is 10-30 pages long, and the
typical “large” EA is 50-200+ pages long. NEPA Task Force Report to CEQ,
Modernizing NEPA Implementation, ch. 6 (Sept. 2003) [hereinafter NEPA
Task Force Report], available at
pdf. Similarly, the estimated time line to complete an environmental im-
pact statement (EIS) increased from about one year in 1981 to up to six
years by 2003. Compare Forty Questions, with NEPA Task Force Report. e
increas e in length a nd time of a nalysis can be attribut ed almost e ntirely
to feder al agencies attempting to proactiv ely respond t o issues rai sed by
judicia l decision s.
The growing national focus on greenhouse gas
(GHG) emissions is creating new challenges for
the application of one of the most venerable federal
environmental laws, the National Environmental Policy
Act (NEPA).1 NEPA requires federal agencies to analyze
the environmental eects of their proposed actions in for-
mal environmental studies. e purpose of the law is to
generate better information on environmental impacts for
agency decisionmakers and the public, so that agencies can
make better decisions.
Over the rst four decades of NEPA’s existence, there
has been relatively little analysis of GHG emissions and cli-
mate change in NEPA documents. Today, with the grow-
ing understanding of the threat posed by global climate
change, agencies increasingly are being asked to analyze
GHG emissions in NEPA documents. For many federal
proposals, such as those intended to address directly the
issue of GHG emissions, an analysis of these issues would
be very helpful to agencies and the public. NEPA is well
positioned to play an important role in fostering better
decisionmaking on those types of projects.
However, for the great majority of federal agency pro-
posals, NEPA analysis of GHG emissions and climate
change pose a much more dicult challenge. Virtually
any human activity can cause the emission of GHGs such
as carbon dioxide (CO2), which means that most federal
agency actions will have some eect on GHG emissions.
is suggests that federal agencies must analyze in most
of their NEPA documents the eect of their proposals on
GHG emissions, and also potentially the broader eect
of those emissions on the global climate. is has the
potential to generate relatively useless information, to the
extent that NEPA documents analyze the eects of climate
change that is not meaningfully aected by the proposed
action. It also has the potential to distort the NEPA process
itself, to the extent that the GHG issue prevents agencies
from preparing shorter environmental assessments (EAs)
(due to the cumulative eect of a project’s small increase in
emissions combined with overall emissions of GHGs) and
provides a tool for project opponents to force lengthy addi-
1. 42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209.
Copyright © 2011 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®,, 1-800-433-5120.

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