SEED: sustainable environmental and economic development - a call to incorporate verifiable sustainability ratings into NEPA reviews.

• Author: Carlson, Kyle

1. INTRODUCTION II. THE NEPA FRAMEWORK A. NEPA and CEQ B. The Environmental Review Process 1. Federal Action Threshold 2. Lead Agency and Cooperating Agencies 3. Categorical Exclusions 4. Environmental Assessments 5. Environmental Impact Statements C. Judicial Review III. THE SUSTAINABLE ENVIRONMENTAL AND ECONOMIC DEVELOPMENT (SEED) PROPOSAL A. The Proposed SEED Framework 1. The EA Qualitative Checklist 2. Centralized Information Database 3. Voluntary Sustainability Rating System 4. Independent Third-Party Verification 5. Incentivizing Participation with Brand Recognition 6. Incentivizing Participation in Setting NEPA Review Time Limits 7. Monitoring the Implementation and Effectiveness of Sustainability B. Proof of Concept-LEED IV. SEED IMPLEMENTATION V. CONCLUSION I. INTRODUCTION

   The Organisation for Economic Co-operation and Development projects that the global population will reach 7.65 billion people by 2020. (1) By 2050, that number will reach 9.3 billion. (2) World gross domestic product (GDP) is expected to roughly quadruple from 2010 to 2050. (3) As the density and intensity of humanity's use of the Earth's natural resources continues to grow, each year we must do more with less. Current models of economic development cannot continue. (4) The way government and industry plan major development projects must adapt to looming resource constraints. Otherwise, a new generation will inherit a world where the supply of consumable resources has been depleted.

   Since nearly its inception, the environmental movement has advocated for "sustainable development" as a solution to global resource management problems. For example, in 1983, the United Nations convened the Brundtland Commission to address concerns over the increasing rates of resource depletion and environmental degradation. (5) The commission advocated for "sustainable development," which it defined as "development that meets the needs of the present without compromising the ability of future generations to meet their own needs." (6) Environmentalists often combine the goal of sustainable development with the precautionary principle. (7) The United Nations Conference on Environment and Development (the 1992 Rio Conference) adopted one of the most widely accepted formulations of the precautionary principle as Principle 15 of the Rio Declaration:

   In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation, (8) Notably, this definition seeks to consider the costs of precautionary actions that will protect against uncertain harms. The United Nations most recently met in June 2012 to define and discuss global sustainable development policies at the Rio+20 United Nations Conference on Sustainable Development (Rio+20 Earth Summit). (9)

   Industry and businesses are legitimately concerned that precautionary costs imposed despite an uncertain beneficial future value could hobble economic development. This fear extends beyond corporate profitability. It is no exaggeration to say that social stability in many countries depends on high rates of economic growth. (10) Hundreds of millions of people have been lifted out of extreme poverty in recent decades, but literally billions more also need immediate economic opportunities. (11) Sustainable development, when properly understood, is a risk minimization and risk management approach to economic development within environmental constraints and in the face of scientific uncertainty. Fortunately, many sustainable development practices can create near- and long-term cost savings and increase a business's consumer goodwill and brand value. (12) As exemplified by this Article's proposal, government also has a role in redistributing the private cost burden of some sustainability measures that provide widespread public benefits.

   The United States federal government has already begun to encourage and require its own agencies to develop sustainable development practices. President George W. Bush's Executive Order No. 13,42313 consolidated and strengthened several earlier executive orders and set goals for federal agencies in the areas of recycling, energy efficiency, greenhouse gas emissions, renewable power, water conservation, vehicle fleets, petroleum conservation, alternative fuel, toxics reduction, procurement, sustainable buildings, and electronics stewardship. (14) President Obama signed Executive Order No. 13,514 in 2009. (15) That order directs the General Services Administration (GSA) to leverage the federal procurement process to lower federal greenhouse gas emissions and calls on federal agencies to set and meet a 2020 greenhouse gas emissions reduction target, increase energy efficiency, reduce fleet petroleum consumption, conserve water, reduce waste, support sustainable communities, and leverage federal purchasing power to promote environmentally responsible products and technologies. (16) All of these initiatives require federal agencies to lead by example. However, the federal government has failed to fully employ a bedrock environmental law, the National Environmental Policy Act (NEPA), (17) to more efficiently and effectively disseminate sustainable development concepts and to create an infrastructure of government agencies, private businesses, and professionals that can implement sustainable development on a broad scale.

   This Article will begin in Part II by explaining the structure of the National Environmental Policy Act, the environmental review process, and the role of the courts. In Part HI, this Article proposes the use of a verifiable sustainability rating system that will allow NEPA to provide decision makers and the public with more holistic, verifiable information regarding the predicted environmental impacts of a proposed federal action. Finally, Part IV will propose that the most efficient and pragmatic way to incorporate sustainability ratings into NEPA is under an existing or a supplemental administrative guidance document.

2. THE NEPA FRAMEWORK A. NEPA and CEQ

   Congress passed NEPA in 1969 with bipartisan support, and President Nixon signed it into law on January 1, 1970. (18) Subchapter I of NEPA sets out the law's policy and goals, and contains the Congressional Declaration of National Environmental Policy. (19) NEPA is widely recognized as the world's first comprehensive statement of a national environmental policy. (20) It occupies such a historically influential role in national and international environmental law that it is often referred to as the "Environmental Magna Carta." (21) The purpose of NEPA is three-fold: 1) to declare a national policy that will encourage productive harmony between man and his environment; 2) to promote efforts that will prevent or eliminate damage to the environment; and 3) to enrich the understanding of the ecological systems and natural resources important to the nation. (22)

   NEPA requires that federal agencies adopt a systematic, interdisciplinary approach to incorporate environmental considerations in their planning and decision malting. (23) Congress designed NEPA to require the consideration and public disclosure of the expected environmental impacts of federal actions significantly affecting the environment before such actions are undertaken and to provide a meaningful opportunity for public input. (24) NEPA's requirements are procedural in nature. (25) NEPA does not require that a federal agency modify a proposed federal action to minimize environmental impacts, it only requires that a federal agency publicly disclose the expected significant environmental impacts of a proposed federal action. (26) For this reason NEPA has been called a "hard look" or "stop and think" statute. (27) The core mandate of NEPA requires all federal agencies to:

   [I]nclude in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on--(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. (28) This "detailed statement," known as the "heart" of NEPA, is called the Environmental Impact Statement (EIS) and is discussed at length below. (29) It is the most burdensome NEPA requirement, and it can be avoided at several preliminary junctures within the NEPA process. (30)

   Subchapter II of NEPA establishes the Council on Environmental Quality (CEQ) to oversee NEPA's implementation. (31) The CEQ is a small administrative agency housed within the White House. A three-person council with one chairperson heads the CEQ. (32) The CEQ has a duty to promulgate binding regulations on all federal agencies to implement NEPA's statutory mandates. (33) The CEQ's other duties include analyzing the status and trends in national environmental quality; conducting studies, surveys, research, and analyses relating to ecological systems and environmental quality; evaluating the adequacy of national resources for human and economic requirements; and reviewing and developing programs to improve the quality of the natural environment. (34) From time to time, the CEQ issues interpretive guidance documents to aid other federal agencies in their implementation of NEPA's requirements and to provide the public with more explicit agency positions for planning purposes. (35)

   2. The...