NEPA Analyses Shouldn’t Ignore the Obvious

Greenhouse gas emissions are a collective action problem. That shouldn't mean they're left out of the average NEPA routine.

The recent proposed guidance from the Council on Environmental Quality (CEQ) about factoring climate change and greenhouse gas (GHG) emissions into the typical NEPA routine elicited spirited comments from industry (and some others) opposing the proposal.

One claim industry commenters made forcefully is that the judicial decisions construing NEPA § 102(2)(C)’s “significance” threshold have mostly (not uniformly, but mostly) held that a possible effect of an agency choice need not factor into that agency’s NEPA routine unless that effect is “reasonably foreseeable.”  downwardThis rules out untested and/or speculative hypotheses, which is generally a good thing.  Often, cycles will continue into the future.  Sometimes they won’t—sometimes a cycle is replaced by some “black swan” event without precedent.  How do we plan for and/or mitigate such risks?  These are the hard questions of environmental impact assessment.

We here at the NEPA Lab have previously argued that the “effects” of GHG emissions are not, in the relevant sense, “reasonably foreseeable.”  This is because, while continued climate disruption and the potentially catastrophic effects thereof are, indeed, foreseeable—unreasonably so, we might say, given what little we’re doing to avert our impending crises—the way the question arises within the average NEPA routine renders climate change’s outcomes causally severed therefrom.  It is impossible to hold that building the Keystone XL pipeline today, for example, will cause any hypothesized effects, costs, outcomes, or ramifications of global climate change.  This is true if for no other reason than because global climate change is being driven by literally billions of contributions.  See our post here.

In this post, because CEQ is supposedly weighing this argument while it considers its next steps against climate change, we dwell for a moment on the “reasonably foreseeable” test so many have been arguing about lately.

The notion itself is steeped in tort law, probabilism, and similarly technical sources that hardly commend it to a statute meant to educate generalist decision-makers, the lay public, and/or Congress.  Be that as it may, NEPA has become at least as much the province of the heavily legalized court/agency relationship as it was ever that of the public or Congress.  So perhaps notions like “reasonable foreseeability” are simply in NEPA’s fate.

The reasonable foreseeability notion has typically functioned to rule out “remote” and “speculative” risks like the catastrophic failure of dams under construction, the core-melt event at a nuclear reactor being licensed, or terrorist sabotage of any number of things.  See, e.g., New Jersey Dept. of Envtl. Prot. v. Nuclear Regulatory Comm’n, 561 F.3d 132 (3d Cir. 2008).

The Supreme Court has arguably approved of the ‘reasonably foreseeable’ notion, using it to reject a challenge to an EIS’s adequacy that alleged the agency hadn’t considered how its actions would impact its neighbors emotionally.  See Metro. Edison v. People Against Nuclear Energy, 460 U.S. 766, 774-75 (1983).

The decision in Metro Edison was to restart the idled (and previously quite troubled) Three Mile Island nuclear reactor # 1 (TMI-1), something the plaintiffs alleged would cause them intense emotional distress.  The Court, rejecting that effect as not tied to the agency’s action by a “reasonably close causal relationship between a change in the physical environment and the effect at issue,” id. at 774, diverted into the differences between a “risk” and the here-and-now of today.

[A] risk of an accident is not an effect on the physical environment.  A risk is, by definition, unrealized in the physical world.  In a causal chain from renewed operation of TMI-1 to psychological health damage [to the plaintiffs] the element of risk and its perception . . . are necessary middle links. We believe that the element of risk lengthens the causal chain beyond the reach of NEPA.

Id. at 775.

While one can obviously see some daylight between causation and causal chains on the one hand and “reasonable foreseeability” on the other, they overlap substantially.  The Court’s analysis in Metro Edison has failed NEPA in important respects, though, and it turns out to be an important failure.  Consider the following hypothetical.

Jack knows Jill is terrified of bunny rabbits and aims to prank her.  He places a stuffed, life-like rabbit in her path as she’s about to catch the metro.  Seeing the rabbit on the platform in front of her Jill recoils and slips, loses her footing, and falls into the path of an oncoming train.  Was Jill’s death “reasonably foreseeable”?  The average American isn’t afraid of rabbits.  Jack had subjective, highly specific knowledge of Jill’s idiosyncratic fear, though.  So was the metro platform a “reasonable” place for Jack’s prank?  Standards of care map onto the facts of any bilateral dispute, i.e., the way every NEPA case comes to court, in exactly this fashion: however the advocates can force them to.  There’s very little logic, in other words, to what constitutes “reasonableness” and what is “foreseeable” within this notion beyond the circumstances of the parties.

And NEPA’s “reasonably foreseeable” standard takes this form when it is being applied by a reviewing court.  Courts typically ask whether it was “reasonable” of this agency to ignore or to minimize the plaintiff’s hypothesized risk(s).  By the Supreme Court’s picture of risk in Metro Edison, courts are invited to conclude that some “risks,” because they are somehow causally attenuated from the agency’s choices by the actions, choices, and/or mistaken beliefs of others, need not be accounted for in the subject NEPA routine.

But NEPA § 101(b) sets forth the responsibilities of “the Federal Government” as an aggregate, not just those duties of the “agencies” thereof.  Consider them:

(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

(2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings;

(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

(4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice;

(5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and

(6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

If agencies preparing NEPA analyses are free to put climate change and the GHG implications of their actions out of bounds entirely—because of this legalistic doctrine born as much from the standards of judicial review as from any common sense interpretation of the statute—none of what Section 101(b) describes as the “continuing responsibility” of “the Federal Government” can be realized.  And that seems, well, tragic.

The stone age didn’t end because they ran out of stones.  So goes an old saying.  If the coal age ends because we dig it all up and burn it, NEPA will have been a sickening waste of time. {See this post at “The Upshot” @ N.Y.Times.com}   CEQ must find a way to inject the GHG implications of every major federal action into the responsible officials’ weighing of reasons.  CEQ’s proposal of December 2014 won’t do that—and it invites a lot of legal risk (as industry comments on the proposal suggested).  We must do better.  Our suggestions for how can be found in these comments on CEQ’s proposal.

 

{Image: Michaela Rehle, Reuters}

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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