NEPA, climate change, and public lands decision making.

• Author: Squillace, Mark
• Position: National Environmental Policy Act of 1969

1. INTRODUCTION II. UNDERSTANDING NEPA A. NEPA Generally B. Programmatic Assessments and Tiering C. NEPA and Uncertainty D. NEPA and Mitigation III. NEPA AND CLIMATE CHANGE A. The Difficulties in Incorporating Climate Change into NEPA Analyses 1. Cumulative Impacts and the Scale of Climate Change 2. Using Adaptive Management to Reconcile NEPA and Climate Change 3. Understanding the Meaning of "Mitigation" and "Adaptation" the Context of NEPA and Climate Change B. The Draft CEQ Climate Change Guidance 1. Analyzing the Effects of a Proposed Agency Action on Climate Change 2. Analyzing the Effects of Climate Change on a Proposed Agency Action IV. NEPA, LAND-USE PLANNING, AND CLIMATE CHANGE A. The Current Approach to Land-Use Planning on the Public Lands B. Using NEPA to Address Climate Change in the Context of Land-Use Planning V. CASE STUDIES A. The Mountain Pine Beetle in Colorado and Southern Wyoming 1. Climate Change and the Mountain Pine Beetle 2. The Forest Service Response to the Mountain Pine Beetle B. The Regional Water Supply Pipeline 1. The Million Pipeline in the Context of the Colorado River Basin's Existing Allocations 2. Climate Change Will Lead to Less Water Supply and More Water Demand in the Colorado River Basin 3. Past NEPA Analyses of Water Projects Impacting Colorado River Flows Suggest a Reluctance to Incorporate Climate Change Predictions into Decisions C. Fossil Fuel Leasing and Development on Public Lands 1. Oil and Gas Generally 2. Special Considerations for Leasing Unconventional Gas 3. Special Considerations for Coal Mining 4. Oil Shale 5. Addressing Climate Change in Fossil Fuel Development VI. RECOMMENDATIONS A. Land Management Agencies Must Quantify Both the Amount and Value of GHG Emissions to Fairly Consider the Climate-Related Impacts of Their Decisions B. The CEQ Should Require that Agencies Honor Adaptive Management Commitments C. General Recommendations for Land Managers Addressing Climate Change Under NEPA 1. Programmatic Assessments and Tiering 2. Meaningful Cumulative Impacts Analyses of Climate Change 3. The NEPA Uncertainty Regulation and Adaptive Management VII. CONCLUSION I. INTRODUCTION

   The chief federal agencies that manage our public lands, and many other federal agencies that make decisions affecting our natural resources, must generally comply with the National Environmental Policy Act (NEPA). (1) NEPA requires federal agencies to prepare an environmental impact statement (EIS) where a proposed federal action "significantly affect[s] the quality of the human environment." (2) Even where federal actions do not significantly affect the environment, agencies must usually prepare an environmental assessment (EA). (3) Both EISs and EAs must consider alternatives to the proposed action and must analyze the environmental impacts of these alternatives, (4) including the direct, indirect, and cumulative impacts. (5) Among the most difficult contemporary problems facing agencies charged with NEPA compliance is determining how best to address climate change. The difficulty stems predominantly from the global scale and the perceived uncertainty of climate change.

   Though scientists generally agree that anthropogenic climate change is real, substantial uncertainty exists about the primary driver of climate change--future greenhouse gas (GHG) emissions--and the environmental consequences for any particular global emissions level. (6) Notwithstanding this uncertainty, NEPA forces federal agencies that increasingly face resource constraints to undertake the onerous and daunting task of analyzing their proposals in the context of global climate change.

   While it is relatively simple to describe the kinds of climate-related issues that federal agencies should address in any NEPA document, it is much harder for agencies to conduct an analysis that will be helpful to decision makers and the public. This is largely because of the high degree of uncertainty and unpredictability about 1) the extent to which the climate will actually change at the particular location where the agency proposes to act, 2) the ways in which that change will affect the local environment, and 3) the direct, indirect, and cumulative impacts of the proposed action on the climate. Moreover, climate change seems likely to disrupt--if it has not done so already--our most reliable tool for predicting future conditions in the natural world: the historic record of past conditions. As one article famously suggested in the context of climate change and water resources management--"stationarity is dead." (7)

   The problem of dealing with climate-related uncertainty is especially challenging for federal land managers and federal agencies that make decisions that affect the natural environment because these types of activities often play out over large geographic areas or ecosystems. How, for example, can a land manager possibly manage an ecosystem to protect keystone or endangered species, if the ecosystem itself is likely to face unprecedented disruptions due to climate change?

   In an effort to provide assistance to agencies facing the difficult challenge of addressing climate change in their environmental analyses, the Council on Environmental Quality (CEQ)--the executive agency tasked with implementing NEPA--published draft climate change guidance. (8) This guidance attempts to reconcile NEPA's mandate with the unique problem that climate change presents to agency planners by offering recommendations on both how agencies should analyze their actions' impacts on climate change and the impacts of climate change on their actions. (9)

   By its own admission, however, the draft guidance fails to address the climate-related issues facing land-use planners. The CEQ is explicit about both its exclusion of land-use actions and its reasons for the exclusion:

   Land management techniques, including changes in land use or land management strategies, lack any established Federal protocol for assessing their effect on atmospheric carbon release and sequestration at a landscape scale. Therefore, at this time, CEQ seeks public comment on this issue but has not identified any protocol that is useful and appropriate for NEPA analysis of [] proposed land and resource management actions. (10) By excluding land-use management decisions from its recommendations, the CEQ leaves land-use planners with no meaningful guidance on how to assess climate change in their NEPA analyses. Not surprisingly, the lack of appropriate guidance and the inherent difficulty of this task have led to NEPA documents that address climate change superficially and inconsistently, if at all. (11) Such efforts are not likely to further NEPA's purpose of "foster[ing] excellent action." (12)

   This Article offers the guidance that federal land management agencies and other agencies making decisions impacting natural resource systems currently lack. It begins by describing NEPA and focusing especially on those legal requirements most relevant for federal land managers and other agencies making decisions with significant impacts on natural resources. Specifically, Part II discusses the CEQ regulations pertaining to programmatic assessments and tiering, uncertainty, and mitigation. (13)

   Part III then explains the unique difficulties of applying NEPA to climate change. (14) In particular, this Part notes that NEPA's cumulative impacts requirement applied literally to climate change is a seemingly impossible burden for land-use decision makers. Part III also addresses the inherent uncertainty related to climate change, how to understand that uncertainty in the context of predictive climate models, the use of adaptive management to respond to that uncertainty, and the different meanings of the terms "adaptation" and "mitigation" in the NEPA and climate change contexts. Part IIII concludes with useful insights that land managers might glean from the otherwise inapplicable draft CEQ climate change guidance.

   Part IV of the Article discusses the role of NEPA in land-use planning and the challenges of land-use planning in a future of climate change. (15) There is a brief primer on the current approach to land-use planning on public lands, how NEPA is incorporated into the planning process, and how the uncertainty of climate change is affecting the planning process.

   Three case studies follow that help illustrate the problems facing federal land-use managers as they try to reconcile their NEPA mandate with climate change. The first case study considers the struggles of the United States Forest Service to cope with the Mountain Pine Beetle epidemic in Colorado and Southern Wyoming. (16) The second addresses the Regional Water Supply Pipeline (RWSP or "Million Pipeline")--a Colorado water project that proposes drawing 250,000 additional acre-feet of water out of the Colorado River Basin for use on the Front Range of Colorado and Southern Wyoming. (17) The third examines some of the difficulties of incorporating climate change into NEPA analyses in the context of fossil fuel leasing on public lands. (18)

   The Article concludes with a series of recommendations that could, if implemented, help ensure that climate change is meaningfully incorporated into land-use NEPA analyses and, thus, land-use decisions. (19) First, it recommends that agencies attach a price to GHG emissions that reflects the true cost of climate change so that agencies are able to meaningfully weigh those costs against the benefits of their actions. (20) Second, it proposes that the CEQ adopt rules requiring agencies to commit to mitigate the effects of climate change with discrete actions and adaptive management. (21) This will ensure that agencies can be held to these commitments, in court if necessary. Finally, the Article offers several general proposals for rethinking some of the current requirements in the CEQ rules in ways that will help ensure that climate change impacts are addressed in a meaningful way...