A Climate-Constrained NEPA
The fight to force climate change into environmental impact assessment pursuant to the National Environmental Policy Act (NEPA) to date has been long, bitter and mostly pointless. Even where agencies have relented in litigation or have proactively worked to integrate climate change considerations into their NEPA documents, the factoring done has consigned these considerations to the margins. Impact assessment naturally does so. Every such action/assessment will involve what amounts to a drop in a bucket of contributory causes to a globally-scaled, temporally remote catastrophe. Aggregative analyses minimize such contributions behind other, more immediate choice factors. A 2014 proposed guidance on climate change and NEPA from the Council on Environmental Quality ignored this fact. Likewise, the Office of Management & Budget’s “social cost of carbon” estimates allow almost everything they inform to go forward essentially unchanged.
This article argues that a new approach is urgently needed and available. The approach sketched here consists in the development of programmatic alternatives pursuant to NEPA § 102(2)(E). That provision of the Act requires all agencies to study and develop alternative uses of “available resources” regardless of the magnitude or timing of their actions’ marginal environmental impact. The article makes the case that our principal “resource” where climate change is concerned now is what remains of our “burnable” carbon. Especially if we are to pursue the mitigation goals the U.S. Government committed to in Paris in December 2015, this approach is urgently needed. The steps outlined in Part IV of the article will help speed the U.S.’s development of mitigation options without many of the frictions other approaches will entail.
The Risk in Discretion: Substantive NEPA’s Significance
NEPA’s renowned innovation, the impact statement, opened a great deal of agency decision-making to participatory process and judicial review. But the impact statement’s rise has been matched only in how little it’s done to advance US agencies towards NEPA’s substantive goal—a more sustainable American society. Pleas to the courts that they retake NEPA’s substantive agenda into their reviews of NEPA routines have run their course. This article charts a path to creating a more substantive NEPA grounded in the executive branch.
For much of NEPA’s life, the US has been evolving toward an ever-more express, ever-more intentional focus on the governance of risk. As the tools of risk governance have improved, however, NEPA has not kept pace. NEPA’s subtle structure, aiming to inject environmental risk into every major discretionary decision made by US agencies, has been made into a serious flaw by this failure to adapt. As agencies have marginalized NEPA’s procedural routines, they have been abetted in court from having to improve and harden the analytical methods that would guide them to sounder decisions.
This article outlines a rulemaking for the Council on Environmental Quality (CEQ), grounded in the president’s authority under Article II. It stems from NEPA’s administration to date, a history of arbitrariness reviews and a now entrenched mass of case law and agency interpretations of what constitutes a “significant” impact on the human environment. For NEPA to become a more useful tool, the president and CEQ must take affirmative steps to implement NEPA’s more “substantive” provisions. And their full partner in this mission will be the judiciary. Understanding how judicial review has worked with NEPA is, thus, critical to successfully transitioning NEPA to a more substantive future.
Administering the National Environmental Policy Act
The Council on Environmental Quality (CEQ) was created by the National Environmental Policy Act (NEPA) which, by its terms, casts CEQ as an advisor to the President. President Nixon first ordered CEQ to create “guidelines” for federal agencies discharging their duties under NEPA in 1970. Those guidelines also influenced the courts that first interpreted NEPA in some obvious and some subtle ways. But in 1977, President Carter ordered that CEQ issue rules to bind all agencies, replacing informal guidelines with purportedly binding regulations implementing NEPA. Did that make CEQ NEPA’s “administering” agency? Can Presidential action of the sort entitle CEQ’s interpretations of NEPA to Chevron deference? If so, what of the “agencies of the Federal Government” who are charged by the statute in terms with generating its “detailed statements” and pursuing its “national policy”?
In practice CEQ’s rules have been regarded by courts and most action agencies as law, at least in a sense. Yet the CEQ rules cover only a tiny fraction of NEPA’s domain. They say virtually nothing about the priorities that decision-makers should set, the types of environmental damage we must strive to avoid, or the ways that environmental risks and benefits should be balanced. The Supreme Court has admonished the lower federal courts repeatedly that it is not the courts’ place to opine on any of that, having done so emphatically and often enough that virtually no one contends otherwise. This leaves NEPA’s “substance” virtually ignored by both CEQ’s interpretation(s) and those of reviewing courts.
CEQ and its rules are more than some errant departure from prevailing doctrine, though. They demonstrate something fundamental about our President’s authority in the administrative state and perhaps even how our Presidents exert their most enduring influences therein. If an administration was to utilize NEPA to its fullest potential in setting the nation’s environmental agenda, it would do well to understand how NEPA has been administered to date.
Necessarily Unpredictable? Oil Spill Risks Beyond the Horizon
The Deepwater Horizon tragedy surfaced many of the flaws of the operating culture and norms at the Department of Interior’s Minerals Management Service. Among the problems were the agency’s NEPA procedures, especially its use of summary statistics and stale data in place of careful analysis. This essay, published in conjunction with a symposium on the spill, explains how NEPA failed MMS and the people of the Gulf and suggests some improvements in predictive methods looking ahead.
Addition by Subtraction: NEPA Routines as Means to More Systemic Ends
The National Environmental Policy Act contemplates only one routine for compliance: the environmental impact statement (EIS). But action agencies and the Council on Environmental Quality have long employed a model of multiple NEPA routines as possible means of compliance. From the “categorical exclusion” to the “environmental assessment” (EA) to the “finding of no significant impact” (FONSI) to the “programmatic environmental impact statement” (PEIS), this toolbox is filled with options that range from the supposedly summary and slight to the supposedly comprehensive and encyclopedic. But how should these tools work together? This piece, a chapter in a volume on the implementation of ecosystem management principles, suggests how NEPA’s more summary routines could deliver what it wider, more comprehensive routines have not: continuously improving collective awareness of our environmental problems and the means we need to solve them.