NEPA Review of Climate Change

• Date: 01 May 2016

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 dicult questions about which actions produce

specic 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-

mental jurisprudence.

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.

I. Introduction

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 Revised Draft Guidance for Federal Departments and Agencies on Consid-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 Eects 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

their answers.

A. Points of Consensus on NEPA and Climate

Change

NEPA requires all federal agencies, in connection with

major federal actions signicantly aecting 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

ocials 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 deed 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

(2009).

Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.