Climate Change in NEPA: When and Why?

CEQ Misses a Chance to Improve

Earlier this month CEQ rejected a petition from three nonprofits that had sought CEQ action on climate change.  In a letter dated Aug. 7, CEQ’s acting chair, Michael Boots, rejected the 2008 petition of the “International Center for Technology Assessment,” Natural Resources Defense Council, and Sierra Club—basically because their lawsuit had forced CEQ to issue some kind of response. This post unpacks the petition, CEQ’s response, and what really divides the two when it comes to climate change and NEPA.

In 2008, at the height of the presidential election, three nonprofits requested that CEQ amend its regulations to “clarify” that climate change should factor into “environmental review documents.”  The petition went to great lengths (weighing in at 60+ pages) to argue that the “effects” of climate change are “reasonably foreseeable” within the meaning of CEQ’s existing rules and the governing NEPA precedents.  Of course, if that were true then action agencies were already obliged to include those effects within their NEPA documents to whatever extent their actions cause these effects.  In reality, the “effects” of climate change—or, better, global climate disruption—are not “reasonably foreseeable.”  In fact, they are deeply contingent, unpredictable, and perhaps better left out of most NEPA documents.  I will explain below.

CEQ’s response was underwhelming.  Essentially, its letter argued that CEQ has no legal duty to amend its regulations and that the Administration’s “Climate Action Plan” is already handling climate change.  In closing, the letter touts the President’s actions to date and the rosy future of emissions abatement under his “plan”:

As documented in the January 2014 Climate Action Report, in 2012 greenhouse gas emissions in the United States fell to the lowest level in nearly two decades even as the economy continued to grow.  Moreover, as outlined in the accompanying First Biennial Report . . . we are on track to meet the Administration’s goal of reducing emissions in the range of 17 percent below 2005 levels by 2020.

At almost ten pages, though, CEQ’s letter was a let-down in at least two big ways.  In both its substance and its lawyering CEQ missed an opportunity. See CEQ-NEPA-ltr-NGOs-8-7-14

Federal agencies have struggled to find the right way to weigh climate change in their NEPA documents. This study by a Columbia Law student a few years back ably illustrated (albeit in unscientific form) that agencies’ treatments of climate change vary.  Some are careful, analytical, searching and informative.  Some are cursory and useless.

There are two distinct types of appearance climate change can make in a NEPA analysis.  First is the incremental contribution to climate forcing that may or will result from the subject action.  This could be the emissions a project will entail if undertaken.  Call these the “direct” emissions of the action.  If one is building a massive pipeline, for example, it will ordinarily entail the combustion of some pile of fossil fuels to do so.  But there are other, less direct emissions that might factor in as well.  Emissions the action will permit or perhaps encourage might reasonably factor into a NEPA analysis here.  A pipeline to a fossil fuel deposit that might otherwise remain too costly to market profitably, for example, could conceivably enable the combustion of those fuels and their emissions such that attributing the emissions to the action permitting the pipeline makes sense.  Averted emissions—traced to a rejection of the proposed action—might reasonably count as a reason for rejecting the action, after all.  And lots of precedents and CEQ’s existing regulations support including such “indirect” emissions.  See, e.g., City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975).

Climate Change’s “Effects” ≠ Climate Change

Whether direct or indirect, though, GHG emissions’ effects in the “human environment” are unfortunately still much more opaque than the pollutants that have featured in earlier NEPA developments.  This is not to say that “climate change” cannot be predicted.  Climate change certainly is predictable, to a rough approximation, precisely because it is globally-scaled and measured in the long-term.  Demographers can tell you down to the second how often a baby is born on Earth.  That doesn’t mean they can tell you where. Climate change’s “effects” are, at this point, more like demography than meteorology.

So of what causal significance is any increment of GHG emissions, after all? Information of this kind is particularly difficult to come by—some would say impossible with current science—because of how miniscule most identifiable contributions are relative to the overall problem.  Does spitting into a hurricane make it wetter?  One is reminded of the three types of lies in the world.  Most GHG contributions are like this: they add “something” to an already causally complete hazard.  Can our best science tell us anything about this “something” such that it becomes a reason against any particular decision here in the present?

Although there have been some governmental actions recently that exceed a de minimis threshold, even they pale in comparison to the problem.  That is, even a non de minimis (or “significant”) contribution of GHGs is still causally equivocal because of how over-determined dangerous climate disruption seems to be at this point and because of how little we know about the marginal efficacy of any certain further contribution.  Science simply cannot predict with any reliability what increment of GHG saturation will or may lead to which (potentially devastating) outcomes.

Lastly, because of a phenomenon known as the “band saturation effect,” further additions of the same GHG beyond a certain concentration have a weaker impact on the radiative forcing than earlier emissions.  See David Archer & Stefan Rahmstorf, The Climate Crisis: An Introductory Guide to Climate Change 22 (2010).  A&RDo we really want an agency such as the Federal Highway Administration entangling itself in questions like the “band saturation effect”?  Do we really believe it would be worth the cost in terms of decision-making at that agency?  At base this is a question of decision-making and reasons.  As Chrisoula Andreou has argued, environmental damage often has this paradoxical structure: individually negligible effects that add up into destructive conduct can nevertheless fail to constitute reasons against the individuated actions.

The second sort of appearance climate change can make in a NEPA document is a project’s probable or possible future in a changed environment.  Many NEPA analyses are about building bridges, beaches, roads, runways, and the like.  Climate change could mean that an airport runway expansion being contemplated by the Federal Aviation Administration, for example, will be at greater risk of flooding.  Here, too, the sort of marginal analysis that would make the discussion useful is virtually impossible on the current state of the science. The petitioners’ own list of predicted “regional” impacts nicely demonstrates the point: now just six years old, many of the “expected” impacts they linked to different U.S. regions have either since changed (the Southwest is no longer predicted to get wetter) or are part of a new normal that is already entrenched (more intense rainfall events throughout Appalachia).

But CEQ’s letter was also disappointing as a matter of lawyering, too.  Blackletter law is that agency “delay” actionable under 5 U.S.C. § 706(1) (allowing reviewing courts to “compel agency action unlawfully withheld or unreasonably delayed”) must be “unreasonable” in light of an agency’s need to set priorities among its lawful objectives.  Ordinarily, without some statutory deadline, this means judicial deference barring some special prejudice being done to interested parties.  See Telecomm. Research v. FCC, 750 F.2d 70, 80-81 (D.C. Cir. 1984).  There is no statutory deadline involved and CEQ rightly observed it has no duty to make a rule change.  But arguing that the President’s “Climate Action Plan” is already handling climate change is window-dressing at best and Washington double-speak at worst. The “plan” the Administration announced says nothing as comprehensive as NEPA could be on this problem given the right direction from CEQ.  NEPA governs every “agency of the Federal Government,” in every discretionary “action” it takes—if it may or will have a “significant impact” on the human environment.  That makes NEPA a unique tool, at least if it is used intelligently.  A follow-up post suggests what CEQ should be doing to improve NEPA’s impact on the climate crisis and the US Government’s role therein.

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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