Streamlining NEPA to combat global climate change: heresy or necessity?

• Author: Russell, Irma S.
• Position: Greening the Grid Building a Legal Framework for Carbon Neutrality

1. INTRODUCTION II. THE CARBON ECONOMY III. THE SIGNIFICANCE OF NEPA TO GLOBAL CLIMATE CHANGE IV. EXAMPLES OF CURRENT STREAMLINING OF NEPA IN ENERGY LAW V. THE GREEN ECONOMY: THE MOVE TOWARD SUSTAINABLE ENERGY AND INEXHAUSTIBLE RESOURCES VI. FEASIBILITY OF INEXHAUSTIBLE ENERGY SOURCES VII. CONCLUSION I. INTRODUCTION

   Global climate change is the most pressing environmental issue of our time. Indeed, if the predictions of scientists are accurate, global climate change may be the most pressing issue of our time--environmental or otherwise. (1) Energy is at the heart of the debate on global climate change, and transitioning to clean energy is a necessary step for solving the climate change crisis. (2) The need for reliable energy promises to escalate as the world population and production of goods rise. (3) As never seen before, all levels of government must cooperate in a comprehensive evaluation and revamping of regulation of energy production and marketing--regardless of whether the governmental controls on greenhouse gases (GHGs) are presented as a cap-and-trade program, auctioned rights for discharging GHGs, direct taxation of carbon emissions, or technological controls.

   The National Environmental Policy Act (NEPA) (4) requires federal agencies to consider the environmental impacts of major projects they undertake. It added to each agency's mission the additional requirement of considering the effects on the environment of federal projects. (5) To achieve its goal, NEPA mandates that "all agencies of the Federal Government ... utilize a systematic, interdisciplinary approach which will ensure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment." (6) NEPA's policy seeks to foster conditions "under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." (7) NEPA has made significant changes in the way federal agencies go about achieving their missions. (8) Fulfilling the procedural requirements of NEPA takes time and money. (9)

   NEPA results in delays in virtually all major energy projects. It applies to projects requiring federal permits because permitting requirements make energy projects federal agency actions under NEPA. (10) Thus, NEPA applies to traditional energy projects such as coal-fired utilities and, additionally, to energy projects aimed at supplying energy without the GHGs associated with combustion, such as concentrated solar installations, wind farms, and wave technology. The global climate crisis raises the question of whether the NEPA process is too slow. Should Congress streamline NEPA to bring clean power online faster? The argument for streamlining NEPA is that the intensity of global climate change makes rapid transition to clean energy a necessity. This argument suggests that a categorical approach to siting and licensing of clean energy resources may be a necessary step in the move toward greening the grid. Any reduction or shortening of the NEPA process is likely to be regarded as heresy by some. The benefits of shortening the timeframe or process for input in any major federal project must be scrutinized.

   This Article considers the case for streamlining the NEPA process as it relates to energy installations that provide environmental protections or comparative advantage over traditional energy sources. Part II describes the crisis of global climate change that has resulted from the carbon-based world economy. Part HI discusses the requirements of NEPA and the significance of NEPA to the issue of global climate change and the need to "green" the grid. Part IV provides examples of current streamlining of NEPA in the energy context, including NEPA shortcuts for nuclear power and preferences for some fossil fuels under the Energy Policy Act of 2005. Part V examines remedial efforts of the United States in its attempts to address global climate change, including incentives in the federal stimulus package of 2009. This part also considers the feasibility of developing inexhaustible energy resources. Part VII concludes with observations about market distortions and mixed incentives resulting from the current regulatory framework and the need for methodical comparison of energy sources and innovations to create a green grid and combat global climate change.

2. THE CARBON ECONOMY

   The modern world as we know it has been fueled by the carbon economy. "Reliability" has always been the watchword of energy regulation. Looking at reliability as a long-term concept, however, reveals a new perspective and a new imperative. Long-term reliability can only be achieved by a sustainable system of energy. The need for reliable energy promises to escalate as the world population and production of goods rise. (11) Reliable energy delivered by a sustainable energy grid is essential to sustaining the world economy and maintaining global markets. Moreover, it is also required to provide a sustainable climate and a livable environment.

   The carbon economy has also resulted in the global climate change crisis. (12) Al Gore is no longer alone in his efforts to awaken people to the threat of global climate change. (13) The Intergovernmental Panel on Climate Change (IPCC), comprised of hundreds of scientists from around the world, has issued reports indicating that global climate change is a problem that must be addressed immediately. (14) The IPCC's conclusion that "the net effect of human activities since 1750 has been one of warming" (15) was leveled with "very high confidence." (16) The role of the United States in climate change is undeniable. (17) On a per capita basis, the GHG emissions of China "remain a mere fraction of that of the United States." (18) In the past decade, many western companies outsourced industrial activities to developing countries in the East to escape environmental regulation. (19)This trend increased GHG emissions in the East and exacerbated global climate change. (20) Scholars and indigenous peoples argue that international laws have been violated by the failure of the United States to monitor GHG emissions and prevent unreasonable harm to others. (21) Traditionally the energy policy of the United States focused on making available cheap and reliable energy. (22) Recently, the need to protect public health and safety has become the focus of energy policy. (23) In 2009, the Environmental Protection Agency (EPA) issued its proposed finding of endangerment of the public health due to GHG emissions, (24) recognizing that in addition to providing reliable energy, the government must regulate energy production to "avoid adverse public health, public safety, economic, and environmental effects." (25) The United States has acknowledged that global climate change is a serious problem, though in the past it has counted economic concerns as trumping climate issues. (26) Former President George W. Bush noted the significant security issues that arise from the nation's dependency on foreign oil. (27) The need to lower GHG emissions is clear, requiring significant changes in energy policy. (28) The IPCC reports connect the effects of global climate change to an increase in atmospheric concentrations of GHGs, primarily from the use of fossil fuels. (29) Adverse effects of GHGs predominate, including rising sea levels and a decrease in Arctic sea ice, (30) wide ranging adverse effects on human health, species extinction, agriculture, water shortages, and extreme weather as a result of global climate trends. (31)

   Governments--from the international sphere to the local units of government in each country--play a vital role in regulating energy production and marketing. Indeed, the indispensible role of energy in the world economy makes this involvement of governmental regulation of energy inevitable. Failure to secure a stable energy supply would threaten political stability and political freedoms protected in democracies, as well as the world economy. (32) The role of governments is justified by the threat to public health, as well as to the climate of the planet, that carbon-intensive energy sources pose. In April 2009, EPA issued its decision that carbon dioxide and five other chemical emissions threaten the health of humans and the environment, finding that the emissions endanger "the health and welfare of current and future generations." (33) In addition to carbon dioxide, EPA included methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride as posing dangers to the public health and the environment. (34) Under these principles, indigenous peoples filed a petition with the Inter-American Commission on Human Rights against the United States for the role it has played in relation to global climate change, claiming both deleterious health effects and economic damages. (35)

   Examples of the difficulties inherent in changing to a green economy abound. The international policy on climate change is set forth in the United Nations Framework Convention on Climate Change (UNFCCC), which the United States ratified on October 13, 1992. (36) The Convention took effect in 1994 and in 2001 President George W. Bush reaffirmed the nation's commitment to the Convention. (37) The Convention expressed multiple concerns and concluded that "human activities have been substantially increasing the atmospheric concentrations of greenhouse gases, that these increases enhance the natural greenhouse effect, and that this will result on average in an additional warming of the Earth's surface and atmosphere and may adversely affect natural ecosystems and humankind." (38) Despite these concerns, the United States declined to join the Kyoto Protocol based on economic considerations. (39) The House of Representatives provides a microcosm of the problem of transitioning to...