“Major Federal Action” update
p. 805 (5th edition): In Sancho v. Department of Energy, 578 F.Supp.2d 1258 (D. Haw. 2008), plaintiffs who believed that operation of the Large Hadron Collider (LHC), a subatomic particle accelerator straddling the French-Swiss border, could create a black hole leading to the destruction of the Earth, sought to require DOE to prepare an EIS for the project. However, the court held that because DOE had contributed less than 10 percent of the cost of the project (only $531 million of the $5.84 billion construction cost) and had only minimal control over it, DOE's action did not constitute "major federal action" triggering NEPA review. Problems of Timing and Scope: Winter v. NRDC
p. 810 (5th edition): In Winter v. Natural Resources Defense Council, 129 S. Ct. 365 (2008), the U.S. Navy was sued by an environmental group who argued that an EIS needed to be prepared before the Navy used mid-frequency active (MFA) sonar in training exercises that might harm marine mammals. After the district court granted a preliminary injunction restricting the use of MFS, the Navy asked CEQ to approve "alternative arrangements" for NEPA compliance in light of "emergency circumstances." The Navy claimed that testing of the sonar in waters off the coast of Southern California was vital to national security and military preparedness. The CEQ approved as "alternative arrangements" the Navy's use of voluntary mitigation measures it previously had adopted. After the district court refused to lift its injunction, the Navy appealed to the Ninth Circuit, which affirmed. The Ninth Circuit held that there was a serious question whether the CEQ's interpretation of the “emergency circumstances” regulation was lawful, that plaintiffs had carried their burden of establishing a “possibility” of irreparable injury, and that the preliminary injunction was appropriate because the balance of hardships and consideration of the public interest favored the plaintiffs. The U.S. Supreme Court then granted expedited review. Without reaching the merits of the underlying NEPA issue, the Court reversed. The Court held that the district court had erred in granting the preliminary injunction because it had only required a showing that irreparable harm to marine mammals was "possible" when it should have required a showing that it was "likely." The Court also concluded that district court had not properly balanced the equities because the alleged irreparable injury to marine mammals was outweighed by the public interest and the Navy's interest in effective, realistic training of its sailors. In a few cases, Congress has acted to exempt certain projects from NEPA. In §102 of the REAL ID Act of 2005 Congress gave the Secretary of Homeland Security “the authority to waive all legal requirements” that he determines “necessary to ensure expeditious construction” of a fence on the U.S./Mexican border. On October 26, 2007, DHS Secretary Michael Chertoff exercised this waiver authority to waive application of NEPA and other environmental statutes. Chertoff's action came after a federal district court had enjoined construction of the fence in the biologically rich San Pedro Riparian National Conservation Area because of the government's failure to prepare an EIS. A challenge alleging that the waiver authority unconstitutionally delegated legislative power to an executive official was rejected in Defenders of Wildlife v. Chertoff, 527 F.Supp. 2d 119 (D.D.C. 2007). The court concluded that the REAL ID legislation simply granted waiver authority, rather than the authority to amend or repeal statutes, and that it included an intelligible principle to confine the exercise of this discretion. The Supreme Court, the only Court allowed by Congress to review challenges to the REAL ID waiver authority, denied review of the district court's decision. 128 S.Ct. 2962 (2008). An effort to exempt from NEPA review projects funded by the American Recovery and Reinvestment Act of 2009, President Obama's economic stimulus package, failed. Congress instead confirmed in §1609 of this legislation that NEPA fully applies to such projects and it directed the President to report to it every 90 days about the status of NEPA reviews for projects funded by the stimulus. Procedure for Determining Whether or Not to Prepare an EIS
p. 828 (5th edition): There are three levels of NEPA review: (1) Categorical Exclusions, (2) Environmental Assessments, and (3) Environmental Impact Statements. Here is how CEQ described each of these levels of review in a 2009 report: • Categorical Exclusion (CE): A CE is a category of actions established in the department or agency procedures for implementing NEPA, or established in legislation, that are expected to not have individually or cumulatively significant environmental impacts. Typically, a CE is concluded with the determination that a proposed action is included in the category of actions and there are no extraordinary circumstances that indicate environmental concerns merit further environmental review. • Environmental Assessment (EA): When a CE is not appropriate and the agency has not determined whether the proposed action will cause significant environmental effects, then an environmental assessment is prepared. If, as a result of the EA, a finding of no significant impact (FONSI) is appropriate, then the NEPA review process is completed with the FONSI, otherwise an EIS is prepared. • Environmental Impact Statements (EIS): The most intensive level of analysis is the environmental impact statement which is typically reserved for the analysis of proposed actions that are expected to result in significant environmental impacts. When an EIS is prepared, the NEPA review process is concluded when a record of decision (ROD) is issued. CEQ, Report on the National Environmental Policy Act Status and Progress for American Recovery and Reinvestment Act of 2009 Activities and Projects (May 18, 2009). In its report, CEQ noted that as of April 24, 2009, more than 40,000 NEPA reviews were conducted for stimulus projects using categorical exclusions (CEs), 500 environmental assessments (EAs) were prepared that led to findings of no significant impact (FONSIs), and 150 projects or activities had been analyzed in EISs completed with a record of decision. CEQ also reported that work was underway on 23 EISs, 396 EAs, and that 4,566 additional projects or activities were subject to CEs. Even when a project or activity is subject to a categorical exclusion, a party can petition the agency to prepare an EA or EIS. CEQ's regulations provide that agencies implementing categorical exclusions “shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.” Id. §§1508.4, 1507.3(b)(1). In American Bird Conservancy, Inc. v. F.C.C., 516 F.3d 1027 (D.C. Cir. 2008), the D.C. Circuit ruled that the Federal Communications Commission had improperly dismissed a petition seeking protection of migratory birds from collisions with communications towers. The FCC's NEPA regulations categorically exclude communications towers from NEPA review because they “are deemed individually and cumulatively to have no significant effect on the quality of the human environment.” 47 C.F.R. § 1.1306(a). However, the regulations also provide that a party still may allege that a “particular action, otherwise categorically excluded, will have a significant environmental effect” and can file a petition “setting forth in detail the reasons justifying or circumstances necessitating environmental considerations in the decision-making process.” Id. § 1.1307(c). If the FCC determines that the proposed action “may have a significant environmental impact,” then it is supposed to require the applicant for a tower license to prepare an EA. Id. The court held that the FCC had failed to apply the proper NEPA standard when it dismissed a petition filed by the American Bird Conservancy and the Forest Conservation Council. The two groups had petitioned the FCC to prepare a programmatic environmental impact statement (“EIS”) under NEPA analyzing the effects of all past, present, and reasonably foreseeable tower registrations on migratory birds in the Gulf Coast region. The court rejected the FCC's two reasons for dismissing the request for a programmatic EIS: (1) “the lack of specific evidence ... concerning the impact of towers on the human environment,” and (2) “the lack of consensus among scientists regarding the impact of communications towers on migratory birds.” Order, 21 F.C.C.R. at 4466 ¶ 11. It concluded that "[n]either reason is sufficient to sustain the Commission's refusal to take action pursuant to NEPA, and together they demonstrate an apparent misunderstanding of the nature of the obligation imposed by the statute."
The court stated that: "The reasons stated in the Order cannot, in light of the petition under review, sustain the Commission's refusal to prepare an EIS without at least first requiring the preparation of an EA. The Commission acknowledges that §1.1307(c) applies to the petition and that the regulation requires an EA when an action “may” have a significant environmental effect. The Order's demand for definitive evidence of significant effects -- noting Petitioners' failure to make a “scientific showing that the population of any specific bird species has decreased as a result of collisions” -- plainly contravenes the “may” standard. Order, 21 F.C.C.R. at 4466 ¶ 9. Similarly, the Order's suggestion that scientific consensus is a precondition to NEPA action is inconsistent with both the Commission's regulation and with the statute. As the court has admonished, “[i]t must be remembered that the basic thrust of the agency's responsibilities under NEPA is to predict the environmental effects of a proposed action before the action is taken and those effects fully known.” Scientists' Inst. for Pub. Info., Inc. v. Atomic Energy Comm'n, 481 F.2d 1079, 1091-92 (D.C.Cir.1973). A precondition of certainty before initiating NEPA procedures would jeopardize NEPA's purpose to ensure that agencies consider environmental impacts before they act rather than wait until it is too late. Based on the record before the court, there is no real dispute that towers “may” have significant environmental impact, and thus that the §1.1307(c) threshold has been met. Indeed, the Order's emphasis on “conflicting studies” and “sharply divergent views” regarding the number of birds killed confirms, rather than refutes, that towers may have the requisite effect. Under such circumstances, the Commission's regulations mandate at least the completion of an EA before the Commission may refuse to prepare a programmatic EIS. Although Petitioners seek a programmatic EIS, and not an EA, the Commission's regulations allow it to pursue an EA as an interim step, and such an EA will determine what subsequent action NEPA requires. [516 F.3d at 1033-34.] The court also criticized the FCC for only providing public notice of individual tower applications after approving them. It noted that this evaded the agency's duty to comply with NEPA regulations (40 C.F.R. §1506.6(a)) by providing the public with "a hollow opportunity to participate in NEPA procedures." Thus it ordered the Commission to adopt new procedures to provide public notice. 516 F.3d at 1035. What “Effects” Must be Considered: Center for Biological Diversity v. NHTSA
p. 831 (5th edition): In the case below, petitioners argued that the National Highway Traffic Safety Administration (NHTSA) should have prepared an environmental impact statement (EIS) that considered effects on climate change before establishing new fuel economy standards. NHTSA had prepared an environmental assessment (EA), but made a finding of no significant impact (FONSI) after concluding that the changes in greenhouse gas (GHG) emissions caused by the standards would have little effect on the overall problem of climate change. Center for Biological Diversity v.National Highway Traffic Safety Administration
538 F.3d 1172 (9th Cir. 2008) FLETCHER, Circuit Judge: Eleven states, the District of Columbia, the City of New York, and four public interest organizations petition for review of a rule issued by the National Highway Traffic Safety Administration (NHTSA) entitled "Average Fuel Economy Standards for Light Trucks, Model Years 2008-2011." . . . I. FACTUAL AND PROCEDURAL BACKGROUND A. CAFE Regulation Under the Energy Policy and Conservation Act In the aftermath of the energy crisis created by the 1973 Mideast oil embargo, Congress enacted the Energy Policy and Conservation Act of 1975. Congress observed that “[t]he fundamental reality is that this nation has entered a new era in which energy resources previously abundant, will remain in short supply, retarding our economic growth and necessitating an alteration in our life's habits and expectations.” The goals of the EPCA are to “decrease dependence on foreign imports, enhance national security, achieve the efficient utilization of scarce resources, and guarantee the availability of domestic energy supplies at prices consumers can afford.” S.Rep. No. 94-516 (1975) (Conf. Rep.). These goals are more pressing today than they were thirty years ago: since 1975, American consumption of oil has risen from 16.3 million barrels per day to over 20 million barrels per day, and the percentage of U.S. oil that is imported has risen from 35.8 to 56 percent. In furtherance of the goal of energy conservation, Title V of the EPCA establishes automobile fuel economy standards. An “average fuel economy standard” (often referred to as a CAFE standard) is “a performance standard specifying a minimum level of average fuel economy applicable to a manufacturer in a model year.” 49 U.S.C. §32901(a)(6) (2007). . . . The Final Rule sets CAFE standards for “light trucks,” defined by NHTSA to include many SUVs, vans, and pickup trucks, for MYs 2008-2011. . . . C. NHTSA's Proposed Rulemaking and Draft Environmental Assessment . . . NHTSA issued a Draft Environmental Assessment in August 2005. . . . The Draft EA noted that “CO2 ... has started to be viewed as an issue of concern for its global climate change potential.”. . .The Draft EA concluded that the proposed standards would “result in reduced emissions of CO2, the predominant greenhouse gas emitted by motor vehicles,” “reductions in contamination of water resources,” and “minor reductions in impacts to biological resources.” In addition, “the cumulative effects estimated to result from both the 2005-2007 and 2008-2011 light truck rulemakings over the lifetimes of the vehicles they would affect are projected to be very small.” III. DISCUSSION A. Energy Policy and Conservation Act Issues
2. Failure to monetize benefits of greenhouse gas emissions reduction Even if NHTSA may use a cost-benefit analysis to determine the “maximum feasible” fuel economy standard, it cannot put a thumb on the scale by undervaluing the benefits and overvaluing the costs of more stringent standards. NHTSA fails to include in its analysis the benefit of carbon emissions reduction in either quantitative or qualitative form. It did, however, include an analysis of the employment and sales impacts of more stringent standards on manufacturers. . . . . . .NHTSA assigned no value to the most significant benefit of more stringent CAFE standards: reduction in carbon emissions. Petitioners strongly urged NHTSA to include this value in its analysis, and they cited peer-reviewed scientific literature in support. . . . The agency continues to view the value of reducing emissions of CO2 and other greenhouse gases as too uncertain to support their explicit valuation and inclusion among the savings in environmental externalities from reducing gasoline production and use. . . . NHTSA's reasoning is arbitrary and capricious for several reasons. First, while the record shows that there is a range of values, the value of carbon emissions reduction is certainly not zero. . . . Second, NHTSA gave no reasons why it believed the range of values presented to it was “extremely wide”; in fact, several commenters and the NAS committee recommended the same value: $50 per ton carbon. . . . In sum, there is no evidence to support NHTSA's conclusion that the appropriate course was not to monetize or quantify the value of carbon emissions reduction at all. [The court holds that the final rule is arbitrary and capricious and contrary to the EPCA in several respects, including its failure to monetize the value of carbon emissions, failure to close the "SUV loophole," and failure to set fuel economy standards for all vehicles in the 8,500 to 10,000 gross vehicle weight rating class.] B. National Environmental Policy Act
1. The EPCA does not Limit NHTSA's NEPA obligations NHTSA argues both that it has broad discretion to balance the factors of 49 U.S.C. § 32902(f) in setting fuel economy standards and that the EPCA constrains it from considering more stringent alternatives in the EA. NHTSA can't have it both ways. Its hands are not tied . . . . NHTSA relies on Department of Transportation v. Public Citizen, 541 U.S. 752 (2004), for its contention that it did not have to consider the effect of its rule on climate change. Public Citizen is inapposite. In Public Citizen, the Supreme Court held that the Federal Motor Carrier Safety Administration (FMCSA) did not need to consider the environmental effects of cross-border operations of motor carriers in its EA, since it had no ability to prevent those operations. . . . Here, in contrast, NHTSA clearly has statutory authority to impose or enforce fuel economy standards, 49 U.S.C. § 32902(a), (c), and it could have, in exercising its discretion, set higher standards if an EIS contained evidence that so warranted. Although NEPA does not demand substantive environmental outcomes, NHTSA possesses the power to act on whatever information might be contained in an EIS. . . . Moreover, the CAFE standard will affect the level of the nation's greenhouse gas emissions and impact global warming. NHTSA does not dispute that light trucks account for a significant percentage of the U.S. transportation sector, that the U.S. transportation sector accounts for about six percent of the world's greenhouse gases, and that “fuel economy improvements could have a significant impact on the rate of CO2 accumulation in the atmosphere,” which would affect climate change. In sum, the EPCA does not limit NHTSA's duty under NEPA to assess the environmental impacts, including the impact on climate change, of its rule. EPCA's goal of energy conservation and NEPA's goals of “help[ing] public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment,” 40 C.F.R. § 1500.1(c), and “insur[ing] that environmental information is available to public officials and citizens before decisions are made and before actions are taken,” id. §1500.1(b), are complementary. . . . 2. Sufficiency of the Environmental Assessment We examine the EA with two purposes in mind: to determine whether it has adequately considered and elaborated the possible consequences of the proposed agency action when concluding that it will have no significant impact on the environment, and whether its determination that no EIS is required is a reasonable conclusion. a. Cumulative impacts of Greenhouse Gas Emissions on Climate Change and the Environment . . .We conclude that the EA's cumulative impacts analysis is inadequate. While the EA quantifies the expected amount of CO2 emitted from light trucks MYs 2005-2011, it does not evaluate the “incremental impact” that these emissions will have on climate change or on the environment more generally in light of other past, present, and reasonably foreseeable actions such as other light truck and passenger automobile CAFE standards. The EA does not discuss the actual environmental effects resulting from those emissions or place those emissions in context of other CAFE rulemakings. . . . NHTSA does not dispute that the CAFE standard will have an effect on global warming due to an increase in greenhouse gas emissions. The new rule will not actually result in a decrease in carbon emissions, but potentially only a decrease in the rate of growth of carbon emissions. NHTSA concedes that “the new CAFE standards will not entirely offset the projected effect of increases in the number of light trucks.” However, NHTSA contends that Congress is “the cause of that shortfall,” not the agency, since it “is Congress's decision in EPCA to require that CAFE standards be technologically feasible and economically practicable.” NHTSA concludes from this that it has no obligation to assess the cumulative impact of its rule on climate change. This argument is without merit for the reasons already discussed. NHTSA has the power to change the CAFE standards based on information contained in an EIS. We agree with Petitioners that “[b]y allowing particular fuel economy levels, which NHTSA argues translate directly into particular tailpipe emissions, NHTSA's regulations are the proximate cause of those emissions just as EPA Clean Air Act rules permitting particular smokestack emissions are the proximate cause of those air pollutants and are unquestionably subject to NEPA's cumulative impacts requirements.” Thus, the fact that “climate change is largely a global phenomenon that includes actions that are outside of [the agency's] control ... does not release the agency from the duty of assessing the effects of its actions on global warming within the context of other actions that also affect global warming.” States' Gray Br. at 15 (emphasis added). The cumulative impacts regulation specifically provides that the agency must assess the “impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” 40 C.F.R. §1508.7. The impact of greenhouse gas emissions on climate change is precisely the kind of cumulative impacts analysis that NEPA requires agencies to conduct. Any given rule setting a CAFE standard might have an “individually minor” effect on the environment, but these rules are “collectively significant actions taking place over a period of time.” 40 C.F.R. §1508.7. Thus, NHTSA must provide the necessary contextual information about the cumulative and incremental environmental impacts of the Final Rule in light of other CAFE rulemakings and other past, present, and reasonably foreseeable future actions, regardless of what agency or person undertakes such other actions. b. Reasonable Alternatives [The court then held that NHTSA's EA also was insufficient because it failed to consider a sufficiently wide range of alternatives, including significant increases in the CAFE standards]. 3. NHTSA must Prepare either a Revised Environmental Assessment or, as Necessary, an Environmental Impact Statement . . . NHTSA's EA is markedly deficient in its attempt to justify the refusal to prepare a complete EIS. . . . [T]he agency's FONSI is based primarily on its conclusory assertion -- contradicted by evidence in the record -- that the Final Rule will have no significant environmental impact because it authorizes CAFE standards that will result in a very small decrease in carbon dioxide emissions. . . . NHTSA argues that its “conclusion that a 0.2 percent decrease in carbon dioxide emissions will not have a significant impact upon the environment is self-evidently reasonable and consistent” with City of Los Angeles v. NHTSA, 912 F.2d 478 (D.C.Cir.1990), and Public Citizen v. NHTSA, 848 F.2d 256 (D.C.Cir.1988). NHTSA also argues that the impact of the rule on global warming is too speculative to warrant NEPA analysis. Petitioners have raised a “substantial question” as to whether the CAFE standards for light trucks MYs 2008-2011 “may cause significant degradation of some human environmental factor,” particularly in light of the compelling scientific evidence concerning “positive feedback mechanisms” in the atmosphere. In light of the evidence in the record, it is hardly “self-evident” that a 0.2 percent decrease in carbon emissions (as opposed to a greater decrease) is not significant. NHTSA's conclusion that a small reduction (0.2% compared to baseline) in the growth of carbon emissions would not have a significant impact on the environment was unaccompanied by any analysis or supporting data, either in the Final Rule or the EA. Nowhere does the EA provide a “statement of reasons” for a finding of no significant impact, much less a “convincing statement of reasons.” . . . Nor is there any analysis or statement of reasons in the section of the EA that discusses environmental impacts. . . . NHTSA's EA “shunted aside[significant questions] with merely conclusory statements,” failed to “directly address[ ]” “substantial questions,” and most importantly, “provide[d] no foundation” for the important inference NHTSA draws between a decrease in the rate of carbon emissions growth and its finding of no significant impact. Foundation for North American Wild Sheep, 681 F.2d at 1179. NHTSA makes “vague and conclusory statements” unaccompanied by “supporting data,” and the EA “do[es] not constitute a ‘hard look’ at the environmental consequences of the action as required by NEPA.” Thus, the FONSI is arbitrary and capricious. The only reason NHTSA provided for why the environmental impact of the Final Rule would be insignificant is that it results in a decreased rate of growth of GHG emissions compared to the light truck CAFE standard for MY 2007. But simply because the Final Rule may be an improvement over the MY 2007 CAFE standard does not necessarily mean that it will not have a “significant effect” on the environment. NHTSA has not explained why its rule will not have a significant effect. . . . . . [T]he record is insufficiently complete for us to order the immediate preparation of an EIS. We therefore remand to NHTSA to prepare a revised EA or, as necessary, a complete EIS. NOTES AND QUESTIONS1. In both 1988 and 1990, the D.C. Circuit had upheld previous fuel economy standards, rejecting claims that NHTSA first had to prepare an EIS. In 1988 a three-judge panel of the court unanimously accepted, with little discussion, NHTSA's finding of no significant impact. Public Citizen v. NHTSA, 848 F.3d 256 (D.C. Cir. 1988). In 1990, another panel of the court split 2-1 in rejecting a claim that NHTSA was required to prepare an EIS considering effects on climate change when the agency slightly rolled back CAFE standards for model years 1987-1989. City of Los Angeles v. NHTSA, 912 F.2d 478 (D.C. Cir. 1990). In a footnote the Ninth Circuit panel distinguished this case. It noted that then-Judge Ruth Bader Ginsburg had joined the majority opinion only because the environmental petitioners had failed to allege that the rollback "would produce any marginal effect on the probability, the severity, or the imminence" of climate change. 912 F.2d at 504. The court noted that, unlike that case, the petitioners in Center for Biological Diversity "provided substantial evidence that even a small increase in greenhouse gases could cause abrupt and severe climate changes." 538 F.3d at 1224 n.76. The court also noted that Chief Judge Patricia Wald had argued in dissent that NHTSA acted arbitrarily in concluding that the agency's action would not have a significant impact on global warming and it described her dissent as "not only prescient but persuasive." In her dissent Judge Wald wrote: While NHTSA did the calculations necessary to determine how much extra carbon dioxide would be emitted, it failed completely to discuss in any detail the global warming phenomenon itself, or to explain the benchmark for its determination of insignificance in relation to that environmental danger. Had the emissions been slightly over one percent, would that have been significant? Without some articulated criteria for significance in terms of contribution to global warming that is grounded in the record and available scientific evidence, NHTSA's bald conclusion that the mere magnitude of the percentage increase is enough to alleviate its burden of conducting a more thorough investigation cannot carry the day. [912 F.2d at 500.] 2. The Ninth Circuit panel initially decided the case in 2007, Center for Biological Diversity v. NHTSA, 508 F.3d 508 (9th Cir. 2007), but it withdrew that opinion in response to a petition for rehearing en banc. In its initial decision the court ordered NHTSA to prepare an EIS, but in its 2008 decision it instead ordered the agency to prepare a revised EA to be used as the basis for deciding whether or not to prepare an EIS. The court stated that the question "whether to require an EIS now is a very close question" and it described as "questionable" how NHTSA could take "proper account of this evidence and still conclude that the 2006 Final Rule has no significant environmental impact . . ." But it decided to "give the benefit of the doubt to NHTSA" by declining to order the immediate preparation of an EIS. 3. Today many EISs discuss effects on climate change, but they generally state only that the GHG emissions from the particular project under review are only a tiny portion of total global emissions and thus unlikely to have a significant effect on the overall problem. In 1997 the Council on Environmental Quality (CEQ) issued a draft guidance document concluding that because climate change is "reasonably foreseeable" it should be considered in EAs and EISs. While the evidence of climate change has become even more compelling since then, the CEQ draft guidance has never been made final. Michael B. Gerrard, Climate Change and the Environmental Impact Review Process, 22 Nat. Res. & Env't 20 (Winter 2008). 4. Some states have gone further than the federal government in requiring analysis of climate change in environmental impact assessments. In 2008, Massachusetts amended its Environmental Policy Act to require agencies to consider reasonably foreseeable climate change effects. In April 2007, California Attorney General Jerry Brown sued the County of San Bernardino to require it to consider the effects of its country growth plan on GHG emissions under the California Environmental Quality Act (CEQA). The lawsuit was settled by the county agreeing to prepare a plan for GHG emissions reductions as part of its implementation of the plan. In 2008 the California Governor's Office of Planning and Research (OPR) issued interim guidance on climate change assessment under CEQA, OPR, CEQA & Climate Change: Addressing Climate Change Through CEQA Review (June 2008), and the California legislature adopted legislation encouraging denser development to reduce vehicle GHG emissions. New York's Department of Environmental Conservation also issued draft guidance requiring EISs under the State Environmental Quality Review Act (SEQRA). N.Y. State Department of Environmental Conservation, Guide for Assessing Energy Use and Greenhouse Gas Emissions in Environmental Impact Statements (2008). PROBLEM EXERCISE: TO WHAT EXTENT SHOULD A PROJECT'S IMPACT
ON GREENHOUSE GAS EMISSIONS AND CLIMATE CHANGE
BE CONSIDERED IN AN EIS? As noted above, there is now a clear trend toward requiring assessment of project impacts on greenhouse gas (GHG) emissions when environmental impact assessment is conducted. As Michael Gerrard has noted, the various protocols that are being developed for conducting such assessments "generally call for consideration of five different kinds of impacts." Michael B. Gerrard, Climate Change and the Environmental Impact Review Process, 22 Nat. Res. & Env't 20, 23 (Winter 2008). These include: (1) A project's direct operational impacts on GHG emissions ("smokestack emissions from the facility, fugitive emissions such as methane escaping from oil and gas wells; emissions of methane and nitrous oxide from agricultural operations; methane from landfills and wastewater treatment plants; and impacts on carbon 'sinks,' such as forests, agricultural soils, and wetlands." (2) GHG emissions generated to produce the electricity purchased by the project. (3) GHG emissions associated with the transportation of goods, materials, employees, customers and vendors to and from the facility. (4) GMG emissions from the extraction and fabrication of construction materials and from construction equipment at the site. (5) The impact of climate change and measures to adapt to it on the project itself. Id. at 23-24. Professor Gerrard suggests that NEPA could be used to create incentives to minimize the greenhouse gas footprints of new projects by establishing a minimum threshold under which their emissions would not trigger full NEPA review. Jessica Leber, Can NEPA Pass Tests Posed by Climate-Related Projects? N.Y. Times, Mar. 26, 2009. Consider the following important questions that Professor Gerrard notes may have to be addressed as federal and state agencies develop policies fro incorporating climate change considerations in environmental impact assessments. The good news is that nearly all of them can be addressed without having to change NEPA or state "little NEPAs." Question One. Should the environmental impact assessment be purely a disclosure document, or will agencies require that mitigation measures identified in it be adopted? If the latter, how will compliance be monitored and enforced? Question Two. Will analysis of the impact on GHG emissions be required for all projects subject to federal or state review or only for those of a certain type or larger than a certain size? Can impacts on climate change alone trigger the need for an EIS or must some other criterion of significance be met? Question Three. How far upstream must the analysis of impacts on GHG emissions go? Should it consider the extraction of raw materials and the fabrication of building materials? How can transportation impacts account for the reality that people driving to the project might be driving somewhere else instead? Question Four. Will acceptable mitigation measures include the purchase or trading of emissions offsets? If so, must such offsets be purchased nearby the project? Question Five. Should impacts on GHG emissions outside the United States be considered? If a U.S. agency funds a project outside the U.S. or if a domestic project involves the purchase of materials made or grown in another country, how should these impacts be assessed? For the former, see Environmental Defense Fund v. Massey, 986 F.2d 528 (D.C. Cir. 1993) (application of NEPA to construction of an incinerator by the National Science Foundation in Antarctica); Friends of the Earth v. Mosbacher, 488 F.Supp. 2d 889 (N.D. Calif. 2007) (application of NEPA to projects funded by the Overseas Private Investment Corporation and the Export-Import Bank). Quality of the Analysis in an EIS
p. 845 (5th edition): In The Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008), the Ninth Circuit, sitting en banc, overruled two of its prior decisions concerning the application of NEPA to Forest Service projects. Emphasizing that a court must act as a panel of judges and not scientists, the court stated that an EIS need not address all uncertainties concerning the environmental impact of a forest management project. The court stated that "none of NEPA's statutory provisions or regulations requires the Forest Service to affirmatively present every uncertainty in its EIS. Thus, we hold that to the extent our case law suggests that a NEPA violation occurs every time the Forest Service does not affirmatively address an uncertainty in the EIS, we have erred." 537 F.3d at 1001. Overruling Ecology Center, Inc. v. Austin, 430 F.3d 1057 (9th Cir. 2005), the court held that the National Forest Management Act (NFMA) does not require the Forest Service always to verify its methodology through on-the-ground analysis. The court also overruled Idaho Sporting Congress v. Thomas, 137 F.3d 1146 (9th Cir. 1998) and held that the fact a proposed project involves some disturbance to the forest does not prohibit the Forest Service from assuming that maintaining a sufficient amount of suitable habitat will maintain a species' viability. Problem Exercise: Should EISs for Nuclear Facilities Consider the Risks of Terrorist Attacks
p. 855 (5th edition): Each of the four reasons cited by the NRC for refusing to consider the risks of a terrorist attack in performing NEPA analyses was rejected by the Ninth Circuit in San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, 449 F.3d 1016 (9th Cir. 2006). The court stated that "the NRC's position that terrorist attacks are 'remote and highly speculative,' as a matter of law, is inconsistent with the government's efforts and expenditures to combat this type of terrorist attack against nuclear facilities" and the agency's own "stated efforts to undertake a 'top to bottom' security review against this same threat." 449 F.3d at 1030. 1031. The court also concluded that even if the risks of terrorism are not quantifiable, they are significant and must be considered under NEPA. The court rejected as a "non sequitor" the notion that consideration of the risk of terrorist attacks is the same as conducting a "worst case" analysis. It also found unreasonable the claim that security concerns can be an excuse for dispensing with NEPA's requirements. The court thus held that an environmental assessment prepared for an electric utility's application for an interim storage facility for spent nuclear fuel was inadequate because it failed to consider the risks of terrorist attacks. In New Jersey Dept. of Environmental Protection v. U.S. Nuclear Regulatory Comm'n, 561 F.3d 132 (3d Cir. 2009), the Third Circuit expressed disapproval with the Ninth Circuit's analysis and held that the NRC was not required to prepare an EIS considering the risk of airborne terrorist attacks when it relicensed an existing nuclear power plant. Can these two decisions be reconciled, as the Third Circuit suggested, on the ground that the Ninth Circuit case involved NRC licensing of a new facility while the Third Circuit case involved extension of an existing license? Epilogue: How Well Does NEPA Work?
p. 861 (5th edition): While under Republican control, the House Committee on Resources prepared a critique of NEPA. Task Force on Improving the National Environmental Policy Act and Task Force on Updating the National Environmental Policy Act, Recommendations to Improve and Update the National Environmental Policy Act (July 31, 2006), available online at
http://republicans.resourcescommittee.house.gov/archives/ii00/nepataskforce/report/nepa_final_taskforce_report.pdf.
Among the recommendations in the report are: establishing mandatory deadlines for completing NEPA documents and imposing page limits on them, allowing state environmental reviews to satisfy NEPA requirements, and adding a citizen suit provision to NEPA with time limits on when lawsuits may be filed.In March 2009, the Council on Environmental Quality co-sponsored a conference on "NEPA at 40" with the Environmental Law Institute and George Washington University Law School. Papers and presentations from the conference are available online at
http://www.eli.org/Seminars/event.cfm?eventid=445. At her confirmation hearings on January 14, 2009, Nancy H. Sutley, chair of the Obama administration's Council on Environmental Quality outlined her priorities as follows: "My focus, if confirmed as Chair of the Council on Environmental Quality, will be to ensure that there is a strong science and policy basis for our environmental policy, to move the nation to greater reliance on clean energy and increase energy security, to combat global warming while growing the green economy, to protect public health and the environment, especially in vulnerable communities, and to protect and restore our great ecosystems." | 
Baltimore, MD 21201-1786