Posted by: Steven M. Taber | January 4, 2010

Greenhouse Gases Should Be Considered in All EISs and EAs

On 40th Anniversary of the National Environmental Policy Act (NEPA), Jim Tankersley of the Los Angeles Times wrote that

The White House is poised to order all federal agencies to evaluate any major actions they take, such as building highways or logging national forests, to determine how they would contribute to and be affected by climate change, a step long sought by environmentalists.

The Presidential Order would most likely issue from the Council on Environmental Quality, an organization set up by NEPA to oversee the NEPA process. Mr. Tankersley’s article goes on to report that that

The head of the White House Council on Environmental Quality, Nancy Sutley, said in an interview this week that federal agencies “should think about both the effect of greenhouse gas emissions, and the effects of climate change, on decisions they make.”

She added that the administration’s decision was not yet final.

The White House was originally petitioned in 2008 to formally recognize climate considerations under NEPA, but the White House has not taken any action since then.

However, federal agencies may already be required to include an analysis of climate in their Environmental Impact Statements (EISs) and Environmental Assessments (EAs). NEPA does not mention specific areas that federal agencies must analyze to complete EISs and EAs. Instead, it states that the federal agency shall analyze the effect the federal project will have on the environment, without specifically mentioning any particular areas that need to be examined. Thus, it could be argued that federal agencies should already be examining the effect of the federal project on climate change since that is an “environmental effect” within the purview of NEPA.

As Mr. Tankersley’s article points out, some federal agencies have already taken upon themselves to consider effects on climate. Moreover, there is a growing body of caselaw indicating that the courts are beginning to rule that federal agencies should consider the effect their projects will have on the environment. The U.S. Circuit Court of Appeals for the Ninth Circuit recently held in Center for Biological Diversity v. National Highway Transportation Safety Administration that the NHTSA was required to examine in its EIS the effect of greenhouse gas emissions from the federal project. In coming to that conclusion, the 9th Circuit summarized the following findings from International Panel on Climate Change reports and other sources:

Carbon dioxide concentrations increasing over the 21st century are virtually certain to be mainly due to fossil-fuel emissions;

The average earth surface temperature has increased by about 0.6 degrees;

There have been severe impacts in the Arctic due to warming, including sea ice decline;

Global warming will affect plants, animals, and ecosystems around the world. Some scientists predict that it will cause 15 to 37 percent of species in certain regions to be extinct;

Global warming will cause serious consequences for human health, including the spread of infections and respiratory diseases;

Climate change is associated with increasing variability and heightened intensity of storm such as hurricanes;

Climate change may be non-linear, meaning there are positive feedback mechanisms that may push global warming past a dangerous threshold (the“tipping point”).

Center for Biological Diversity v. NHTSA, 508 F.3d at 522-23. To the Court, these findings indicate that emission of greenhouse gases substantially contribute to climate change, and climate change is expected to result in widespread adverse environmental effects. Therefore, it should be mentioned in the EIS. See also, Friends of the Earth, Inc. v. Mosbacher, 488 F.Supp.2d 889 (N.D. Cal. 2007); Border Power Plant Working Group v. Department of Energy, 260 F.Supp.2d 997 (S.D. Cal. 2003); and Mid-States Coalition for Progress v. Surface Transportation Board, 345 F.3d 520 (8th Cir. 2003).

In addition, NEPA contains a provision that could be taken to require federal agencies to consider the impact of the greenhouse gas emissions created by the federal project. Section 102(F) of NEPA, 42 U.S.C. 4332(F) states that “all agencies of the Federal government shall:”

Recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind’s world environment.

To be sure, an order from the White House would be beneficial in establishing a nationwide policy and prompt recalcitrant agencies to require consideration of climate change in their EISs and EAs. At least in the Ninth and Eighth Circuits, however, one could argue that the courts have taken the view that NEPA already requires exactly what the order would seek to implement.

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