August 13, 2014

NEPA and climate change

By M. Reed Hopper Senior Attorney

In 2008, environmental groups petitioned the Council on Environmental Quality to revise its National Environmental Policy Act (NEPA) guidelines to expressly require a consideration of climate change effects in all NEPA compliance documents. Such documents are required for federal projects (including private projects that need federal approval) that may have a significant effect on the environment. This often takes the form of an Environmental Impact Statement or EIS. However, the Council never responded to the petition . . .until now.

In April of this year, these groups sued the Council for failing to respond to the petition. On August 7, in response to the suit, the Council issued a letter denying the petition. The primary basis for the denial is the Council’s claim that the current NEPA guidelines already require a consideration of all “foreseeable impacts” and that includes climate change. And, the Council notes, it has issued applicable draft guidance for public comment and it is trying to decide how to respond to those comments.

It is interesting, but not surprising, that the Council does not address the speculative nature of ascertaining climate change effects from proposed federal projects. The inability to predict global changes from local impacts should have been among the Council’s primary concerns. As I said in an article at E&E News, any emission thresholds the Council may set would necessarily be political and arbitrary.

This push to include climate change analysis in NEPA documents is reminiscent of the push by environmentalists to include a “worst case analysis” in NEPA documents back in the 70s and 80s. Early on, the Council on Environmental Quality issued a regulation known as the “worst case analysis” that required federal agencies to quantify impacts even when the impacts were uncertain or unknowable. This resulted in rampant speculation about every conceivable, but improbable, impact regulators could imagine. After some prodding from groups like PLF, the Council modified the “worst case analysis” regulation to require only a discussion of the uncertainties when federal agencies are faced with uncertain or unknowable impacts. The Council explained that by requiring that an EIS focus on reasonably foreseeable impacts, the new regulation “will generate information and discussion on those consequences of greatest concern to the public and of greatest relevance to the agency’s decision,” 50 Fed.Reg. 32237 (1985), rather than distorting the decisionmaking process by overemphasizing highly speculative harms.

Nevertheless, environmental extremists continued to challenge projects they opposed arguing that NEPA itself required a “worst case analysis.” The issue came to the Supreme Court in 1989 in a case called Robertson v Methow Valley Citizens Council in which PLF attorneys filed an amicus brief. In that case, the Supreme Court Justices agreed with PLF and unanimously decided that NEPA did not require a “worst case analysis” because, as the Council had determined, it lead to sheer conjecture. Instead, such impacts should be evaluated based on the existing state of scientific knowledge.

In light of Robertson, it will be interesting to see how NEPA and climate change shakes out in the courts.

 

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