NEWS

Can NEPA force federal responses to climate change?

05/06/2008

Little more than a year since the Supreme Court’s decision in Massachusetts v. EPA cleared the way for the federal government to regulate greenhouse gases under the Clean Air Act, environmental groups are eyeing another longstanding federal statute as a vehicle to address climate change.

The National Environmental Policy Act directs agencies to consider the environmental effects of proposed projects and alternative actions.

Environmental groups pushing the climate angle say it fits squarely within NEPA’s charge, although most federal agencies are not considering climate change effects as they put together environmental impact statements. That has prompted a round of legal challenges, and now, with just about nine months left in the Bush administration, proposals for the next president to use NEPA to address global warming.

"It’s a hot topic these days," said Bob Dreher, vice president for conservation law and general counsel for Defenders of Wildlife.

One example is a report released yesterday by the Center for American Progress (CAP), which argues the next president should issue an executive order instructing federal agencies to consider climate change in their NEPA-mandated project reviews.

Kit Batten, managing director for energy and environmental policy at CAP, said the idea behind the proposed executive order is to "clarify [the] intent" of existing law. "We think NEPA already has the authority to regulate greenhouse gas emissions," she said yesterday at a press conference. "But the law is not currently used as such."

Some state actions under way

It’s an approach that has won some traction at the state level. California, Massachusetts and Washington are among the states that use their "mini-NEPAs"—state versions of the federal law—to incorporate climate concerns into planned government projects, said Chris Pyke, co-author of the CAP report and director of climate change services for CTG Energetics Inc.

But at the federal level, environmental groups are often forced to sue agencies to force discussion about the potential climate effects of projects moving through the NEPA pipeline, said former Arizona governor and Interior Secretary Bruce Babbitt (D). "We can’t always assume courts are going to one-on-one, case-by-case, correct agencies that have decided they are not going to deal with climate change," he said.

But those critical of NEPA say folding climate concerns into the planning process the law sets out will do little to reduce litigation and could further delay many decisions.

"The NEPA process for a highway project can be upwards of 20 years and tens of thousands, if not hundreds of thousands, of pages long," said Brian Kennedy, a spokesman for the Institute for Energy Research and a former Republican staff member of the House Resources Committee. "What you have today is a vague and ambiguous law, and this proposal seeks to add even more delays and ambiguities into an already failed program."

For those seeking federal action on climate change, a potential drawback to the NEPA approach is that the law doesn’t guarantee outcomes, unlike the Clean Air Act and other major environmental laws, Dreher said. "The problem with NEPA is that it’s intended to require environmental analysis, but it’s not a particularly good lever to force responsible action," he said.

That hasn’t stopped environmental groups from challenging a wide range of federal projects that haven’t addressed climate change in their NEPA-mandated environmental assessments.

Last July, for example, environmental groups in Montana filed a NEPA challenge to a government plan to finance coal-fired power plants through the Agriculture Department’s Rural Electrification Service.

One federal court says NEPA aready covers climate-related emissions

One major win for environmentalists came in November, when the 9th U.S. Circuit Court of Appeals ordered the National Highway Traffic Safety Administration to prepare an environmental impact statement to determine potential greenhouse gas emissions produced by new fuel economy standards for light trucks and sport utility vehicles. The court also ordered NHTSA to evaluate the overall environmental effects of climate change.

The "impact of greenhouse gas emissions on climate change is precisely the kind of cumulative impact analysis that NEPA requires agencies to conduct," the court said in its decision.

But perhaps the broadest attempt to force the administration’s hand came in February, when a coalition of environmental groups filed a petition with the White House Council on Environmental Quality, asking the office to issue guidance documents outlining how federal agencies handle climate concerns under NEPA.

"The law, without question, covers climate now," said Joe Mendelson, legal director for the International Center for Technology Assessment, which filed the petition along with the Sierra Club and the Natural Resources Defense Council. "But we want CEQ to say emphatically that when agencies do [NEPA] analyses, they have to look at climate and look at alternative scenarios that reduce or mitigate climate impacts."

A CEQ spokeswoman said the White House office is still reviewing the petition and did not indicate when or if it would respond.

But President Bush has made his feelings on NEPA clear in recent weeks. In his Rose Garden climate speech last month, Bush mentioned NEPA, along with the Clean Air and Endangered Species acts, as an example of a longstanding federal statute "never meant to regulate global climate."