Must BLM Count Livestock Emissions in its NEPA Documents?

One nonprofit is itching for a fight. They'd better make sure they pick the right one.

A recent “complaint” served on the Council on Environmental Quality (CEQ) by the nonprofit Public Employees for Environmental Responsibility (PEER) argues that the Bureau of Land Management’s (BLM) been shirking its NEPA duties on climate change issues.  Is there any merit to the complaint?

Unlike the parallel “petition” PEER served on BLM asking that BLM reform its own internal policies and guidance so that line personnel start accounting for the emission of greenhouse gases in connection with public lands grazing, a “complaint” to CEQ presumes that CEQ has some oversight or checking function to play vis-à-vis BLM on the issue(s) in question.  And that is a tricky matter.  This post sets aside the petition to BLM (which may be on stronger grounds legally but which is almost certainly on weaker grounds politically) and focuses on the complaint to CEQ.

Grazing and Livestock: A Massive Climate Change Issue

Before you dismiss the PEER move as pure posturing, consider their allegations:

  • “Grazing dramatically reduces soil sequestration of carbon, releasing an estimated 11 million additional tons of carbon annually;
  • The livestock sector generates more than one third of all human-induced methane – a gas with global warming potential 25 times that of carbon dioxide; and
  • Public lands grazing is the most significant contributor to change in landscape conditions across a vast area of the American West, worsening adverse climate impacts of spreading desertification, degrading vital riparian areas and facilitating introduction of invasive species.

These adverse effects are magnified if grazing is not well managed, and a large portion of allotments fails to meet BLM’s own range health standards. In the last decade as more land has been assessed, estimates of damaged lands have doubled where BLM conducts major livestock grazing.”

methane emissions

U.S. Methane Emissions, 1990-2014 (U.S. EPA)

The complaint backs these up with peer reviewed and/or the government’s own figures (mostly).  But even if these estimates are off by an order of magnitude each, we are still talking about a considerable fraction of the climate change problem superintended by the U.S. Government—and that’s before grazing’s other (many) environmental costs enter the calculus.  {EPA’s estimates of U.S. methane emissions from 1990-2014 back up the allegations in the suit.}  What role should CEQ play in getting BLM finally to pay attention to GHGs in its grazing programs?

Guidance is Just Guidance—At Least, It Ought to Be

While CEQ lacks any statutory authority to administer NEPA, it has long occupied a doubly ambiguous perch in our law.  The PEER complaint is no doubt trading on this ambiguity.  First, CEQ is a part of the President’s “Executive Office,” a fact that executive branch agencies cannot ignore.  Assuming CEQ speaks for POTUS, Article II of the Constitution can bridge a lot of statutory gaps or discretionary spaces in the law.  {See this article giving an in-depth explanation of CEQ’s experiences on this score.}

But another dimension is the respect most courts—including, to date, the Supreme Court—have shown CEQ in its interpretations of NEPA.  It has been real deference in many cases.  This deference is often—and the PEER complaint seems to be no exception—transmuted into a kind of authority, though, and that is where it gets tricky.

CEQ’s draft 2014 guidance on fitting climate change into the average NEPA document remains, of course, just a draft.  Indeed, CEQ has never been able to finalize guidance on climate change—ever.  As the clock counts down on this Administration, that seems like it’ll remain the status quo.

Moreover, as a part of the Executive Office of the President, one should expect CEQ to do nothing less than follow the letter of the Office of Management and Budget’s “Final Bulletin for Agency Good Guidance Practices,” Bulletin No. 07-02.  Besides setting a number of procedural steps—like notice, taking of comment and publishing a final version in the Federal Register—OMB’s bulletin echoed the D.C. Circuit’s denunciation of abusive use of “guidance” to quietly change regulated parties’ duties under the law.  See Bulletin for Agency Good Guidance Practices at 2-3 (quoting Appalachian Power Co. v. EPA, 208 F.3d 1015, 1019 (D.C. Cir. 2000)).   

Although the D.C. Circuit has had about an average level of success in fixing the boundary between matters properly addressed in guidance versus those necessitating an outright change in the law (that is, very little), that court’s made it absolutely clear that patrolling the boundary is one of its priority missions.  Tempting it with an “enforcement” of the guidance—guidance which has yet even to be “finalized”—seems like a risky move at best.  Indeed, when you consider the Vacancies Act issues that have been hanging over CEQ for months now {see our post here}, that move becomes almost impossible to imagine at CEQ.  So what gives with this “complaint”?

To be sure, PEER is careful to cite the full panoply of executive orders, BLM statements cognate to their issue, and the good sense of including GHG emissions in livestock grazing NEPA documents.  The GHG implications of livestock operations globally are truly staggering and BLM administers significant acreage throughout the 12 western states where grazing is prevalent.  But PEER’s “complaint” seems to be that CEQ has said reporting GHGs from actions like BLM’s is necessary and that BLM is failing to meet expectations.  How can that complaint be interpreted sympathetically but still  in keeping with the law?

PEER’s “Complaint” Is More Like a Petition

PEER’s so-called complaint is hard to understand as such.  But it makes a lot more sense if the group is actually seeking to spur CEQ into consulting with BLM about why the latter has been in effect ignoring the GHG implications of its grazing program.  Admittedly, livestock grazing has long been in decline. {Larry Walker, in a project for the Idaho Watersheds Project, shows this decline in the attached graph: even as American meat consumption has increased, the livestock raising being done here at home has been declining.} BLM grazing statistics  But to not take into account the “social costs” of GHG emissions from public lands—already supplied to ranchers at below-market prices—is just another form of subsidy, isn’t it?  “Corporate welfare,” if you will?

While the usual free-market hawks are busy wagging fingers at BLM, the Forest Service and other federal agencies for their actual enforcement of federal law against ranchers (which probably seems like tyranny to them), PEER is pressing the truly public-regarding claim on GHG emissions from rangeland management.  That may seem wrong to a rancher facing renewed obligations to minimize environmental degradation—a rancher whose profitability may have been declining for generations now.  But with groups like PEER, the Center for Biological Diversity and others doing all the homework on the real costs of public lands grazing, it’s getting harder to deny the obvious.

PEER’s real complaint is with the sham of NEPA compliance BLM has thrown up around the entirety of its grazing program with dubious tiering, categorical exclusions, and findings of no significant impact—practices PEER’s complaint/petition describe in detail.  Nothing in their submission to CEQ suggests they’re wedded to a “social cost of carbon” approach to fitting GHGs into the average NEPA document (and that’s a good thing).  A renewed focus on the total environmental assessment of grazing public lands would naturally include the climate change implications thereof.

Yet, in the end, PEER does petition CEQ to “direct BLM to [1] [a]nalyze the climate change impacts of the issuance and renewal of grazing permits in all future NEPA documents; and [to] [2] review all of its prior grazing-related categorical exclusions to determine whether those exclusions from NEPA review are still appropriate in light of the risks presented by climate change.” And giving such “directions” is just outside of CEQ’s remit.

CEQ should nonetheless interpret their “complaint” sympathetically.  PEER’s work to reconcile disparate datasets and provide spatially resolved insights into BLM’s own “land health standards” evaluations, for example, is a great public service.  {See this interactive mapping platform of theirs.} That alone should get them past the bureaucratic equivalent of the motion to dismiss. After that, it’s anyone guess where CEQ might take this matter up with BLM.

{Image: cattle grazing the Boise National Forest, USFS}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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