Climate Change and the National Environmental Policy Act
EPW POLICY BRIEF:
Link to Inhofe EPW Press Blog
Link to S. 3230, the NEPA Certainty Act
Summary: In this issue of EPW Policy Brief, we focus on the White House Council on Environmental Quality's (CEQ) draft guidance to clarify how federal agencies should incorporate climate change considerations into decision making under the National Environmental Policy Act (NEPA).
We provide some background on NEPA, as well as an overview of CEQ's draft guidance. We also highlight a recent legal settlement involving NEPA, greenhouse gas emissions (GHGs), and oil and gas leasing, which caused, among other things, substantial legal uncertainty for federal oil and gas leaseholders. Unfortunately, NEPA's guidance fails to resolve any of the central questions at issue in this and other similar cases. This is why Congress must pass S. 3230, the NEPA Certainty Act, which would prohibit consideration of GHGs and climate change under NEPA. Issue: A number of court decisions and legal settlements on climate change have pushed NEPA beyond its traditional scope. On February 18, 2010, Nancy Sutley, Chair of CEQ, issued a draft guidance memorandum to help federal agencies consider the effects of GHG emissions and climate change in their NEPA evaluations. Unfortunately, the guidance is vague and offers no bright lines to clearly direct the way in which federal agencies incorporate climate change into NEPA analyses. Background of NEPA: Signed into law on January 1, 1970, NEPA established "a national environmental policy and goals for the projection, maintenance, and enhancement of the environment." Moreover, NEPA created "a process for implementing these goals within federal agencies." NEPA's purpose is to ensure that federal agencies carefully consider information concerning significant environmental impacts of federal actions, and to make this information available to the public. NEPA also created CEQ, which was designed to oversee NEPA implementation. The NEPA process requires federal agencies to use a "systematic interdisciplinary approach" to incorporate environmental considerations in their planning and decision-making processes. NEPA has three levels of analysis, each of which depends on whether the federal action could significantly affect the environment: 1) Categorical exclusion: As CEQ explains, such exclusion describes "a category of actions that do not typically result in individual or cumulative significant environmental effects or impacts." Such exclusions serve a "beneficial purpose," which is that they can help federal agencies expedite environmental reviews. 2) Environmental Assessment: The second level of NEPA analysis involves the preparation of a written environmental assessment (EA), which explores whether a federal action would significantly affect the environment. If the EA determines that the federal action would result in "no significant impact" on the environment, then the agency issues a finding of no significant impact (FONSI). If, however, the EA determined that there may be a significant impact, the third level of analysis, an environmental impact statement (EIS), is triggered. 3)Environmental Impact Statement: An environmental impact statement, or EIS, is a more detailed evaluation of the proposed federal action that includes an analysis of more environmentally stringent alternatives to the action and allows the public, other federal agencies, and outside parties to provide input into its preparation, including providing comments on a draft EIS. Federal agencies have the option, if they anticipate their action may significantly impact the environment, to prepare an EIS without first having to prepare an EA. CEQ Guidance: According to CEQ, the draft GHG guidance covers the "ways in which Federal agencies can improve their consideration of the effects of greenhouse gas (GHG) emissions and climate change in their evaluation of proposals for Federal actions under the [NEPA]." It is intended to help federal agencies analyze climate change issues in consideration of: 1) The GHG emissions effects of a proposed action and alternative actions; and (2) The relationship of climate change effects to a proposed action or alternatives, including the relationship to proposal design, environmental impacts, mitigation, and adaptation measures. At first blush, CEQ's guidance appears measured and reasonable. For example, CEQ recognizes the difficulty inherent in assessing GHG impacts from a single source. " From a quantitative perspective," CEQ wrote, "there are no dominating sources and fewer sources that would even be close to dominating total GHG emissions." CEQ acknowledges further that the "global climate change problem is much more the result of numerous and varied sources, each of which might seem to make a relatively small addition to global atmospheric GHG concentrations." Therefore, CEQ proposes to "recommend that environmental documents reflect this global context and be realistic in focusing on ensuring that useful information is provided to decision makers for those actions that the agency finds are a significant source of GHGs." Yet, rather than clearly direct how federal agencies should follow these common-sense principles, CEQ offers only vague guideposts, which means federal agencies retain an enormous amount of discretion in how they assess GHG impacts in the context of NEPA. CEQ attempts to provide a bright line in suggesting that a useful starting point for GHG analysis is whether an action results in 25,000 tons or more of GHGs annually. In CEQ's view, "if a proposed action would be reasonably anticipated to cause direct emissions of 25,000 metric tons or more of CO2-equivalent GHG emissions on an annual basis, agencies should consider this an indicator that a quantitative and qualitative assessment may be meaningful to decision makers and the public." [Emphasis added] However, CEQ then notes that it does not "propose" the 25,000-ton level "as an indicator of a level of GHG emissions that may significantly affect the quality of the human environment, as that term is used by NEPA," but "notes that it serves as a minimum standard for reporting emissions under the Clean Air Act." CEQ further blurs the 25,000-ton line for "long-term actions" that emit less than 25,000 tons annually. Federal agencies can, according to CEQ, "consider" whether the action's "long-term emissions should receive similar analysis."