46 ELR 10378 ENVIRONMENTAL LAW REPORTER 5-2016
NEPA Review of Climate Change
by Barry Kellman
Barry Kellman is a professor at DePaul University College of Law and director of the International Weapons Control Center.
The National Environmental Policy Act (NEPA)1
must be central to how the United States addresses
the cardinal imperative of climate change. NEPA
is the foundation of the nation’s environmental pla nning
process, serving to prohibit actions that bypass consider-
ation of environmental consequences. Climate change is
a global phenomenon t hat pushes NEPA to its very lim-
its, raising dicult questions about which actions produce
specic impacts that deserve NEPA consideration. O - O -O-
cials, jurists, and all lawyers should appreciate the legal
issues that inevitably arise when NEPA and climate change
are put together.
e 2014 Draft Guidance2 issued by the White House
Council on Environmental Quality (CEQ) has substan-
tially increased understanding about how NEPA can
contribute to informed consideration of the accelerating
impacts of climate cha nge.3 But the magnitude of NEPA’s
contribution depends on how thoughtfully courts address
questions that are among the most perplexing in environ-
is Comment addresses these questions in light of
recent case law that illuminates when and how to consider
climate change. Cases from federal appellate and district
courts are exposing several conceptual ssures in the appli-
cation of NEPA obligations to climate change. I conclude
that while substantial progress has been made to optimize
NEPA’s contribution to the U.S. climate change response,
the rst wave of lower court decisions concerning NEPA’s
requirements in this context perpetuates ambiguities as to
what federal agencies must do—ambiguities that might be
dangerous to leave unresolved.
It would be unfair to deride the law in this area as rud-
derless, or to say that courts face questions of NEPA and
climate change without substantial doctrinal principles to
guide their opinions. Some questions rega rding the law of
NEPA and climate change are no longer particularly con-
1. 42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209.
2. Revised Draft Guidance for Federal Departments and Agencies on Consid-
eration of Greenhouse Gas Emissions and the Eects of Climate Change
in NEPA Reviews, 79 Fed. Reg. 77801 (Dec. 24. 2014) [hereinafter CEQ
Guidance], available at https://federalregister.gov/a/2014-30035.
3. See generally Nicholas C. Yost,
, 45 ELR 10646 (July 2015).
troversial because of a solidif ying legal consensus about
A. Points of Consensus on NEPA and Climate
NEPA requires all federal agencies, in connection with
major federal actions signicantly aecting the environ-
ment, to prepare a detailed environmental impact state-
ment (EIS) that incorporates environmental considerations
into their planning and decisionmaking through a sys-
tematic interdisciplinary approach. An EIS must inform
ocials and the public of the relationship between local
short-term uses of the environment and the maintenance
and enhancement of long-term productivity. NEPA further
mandates that agencies recognize “the global character of
environmental problems” so as to anticipate and prevent “a
decline in the quality of mankind’s world environment.”4
When initially considered in connection with NEPA’s
obligations, climate change was viewed as too complex,
uncertain, and controversial to be a cognizable issue in NEPA
review. e globalism of climate change, where so much of
the cause is due to activities beyond the scope of U.S. regula-
tory law and where any single proposed action would have
negligible impact,5 seemingly deed useful consideration in
the context of decisions whether to approve leases for coal
or oil extraction or to license a power plant or other infra-
structure project. Moreover, there was vast uncertainty as to
how particular actions might generate emissions of green-
house gases (GHGs), how those GHGs might accelerate
climate change, and how climate change might impact the
4. 42 U.S.C. §4332(2)(F).
5. Prof. Madeline June Kass has explained that
worldwide combined manufacturing and construction industries
contributed just 10% of total GHG emission in 2000, meaning
any single individual manufacturing facility project would repre-
sent a minute fraction of a minor percentage of total emissions.
From another perspective, the United States—now the second
largest contributor of worldwide GHG emissions—contributes ap-
proximately 20% of worldwide GHG emissions per year. If all U.S.
sources combined (land use, forestry, transportation, energy, manu-
facturing, construction, agriculture, shipping, aviation, industrial
processes, etc.) make up just a fth of worldwide emissions, any
one U.S. emitter, in any one sector, will undoubtedly be truly mi-
nuscule by comparison.
Madeline June Kass,
s, 42 I. L. R. 47, 61-62
Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.