On the Horizon for Federal Permitting and Project Development: NEPA Lawsuits to Require GHG Evaluation

The National Environmental Policy Act requires environmental assessment of “major Federal actions significantly affecting the quality of the human environment.”  Federal agencies, or contractors undertaking federal projects, must, therefore, prepare an Environmental Assessment (EA) and potentially an Environmental Impact Statement (EIS) for federal actions ranging from permits to deposit fill in wetlands to construction of highways.  Litigation challenging the failure to prepare an EIS or the adequacy of an EA or EIS is the most common form of federal environmental litigation.

The science and politics surrounding global climate change point to a coming proliferation of lawsuits challenging such permits and projects for the failure to address, or inadequacy of evaluation of, climate change impacts of federal permits or projects.  Recognizing that such impacts could “significantly affect the quality of the human environment”, the federal Council on Environmental Quality (CEQ), which has responsibility for issuing regulations generally governing the preparation of EAs and EISs, in 2010 proposed formal guidance saying that the emission of greenhouse gases (GHGs) as a result of a federal permit or project should be considered as part of the environmental impact of such decisions if more than 25,000 metric tons per year of CO2 equivalent would be emitted as a result of the federal permit or project, and setting forth guidelines for considering those impacts.  However, CEQ never finalized the draft guidance.  On August 7, CEQ formally denied the petition seeking GHG EIS guidance filed by the International Center for Technology Assessment (ICTA) in 2008.  That denial, plus recent decisions in federal courts, foretells a plethora of lawsuits challenging EAs and EISs that fail to address, or inadequately address, climate change impacts.

CEQ denied ICTA’s petition because, in the view of CEQ, its regulations “already encompass consideration of climate effects … .”  That assessment was upheld by the U.S. District Court for the District of Colorado on June 27 in the case of High Country Conservation Advocates v. U.S. Forest Service, 13-cv-1723 (D. Colo., June 27, 2014).  That case challenged the NEPA analysis of the approval by the Bureau of Land Management (BLM) of a 1,700-acre increase in Arch Coal’s West Elk coal mine.  Judge R. Brooke Jackson held that the permit was improperly issued because BLM failed to consider the economic impact of GHG emissions resulting from the expansion of the mine.  The Court observed that a 2010 methodology of the U.S. Department of Energy to determine the “social cost of carbon” provided a mechanism for evaluating such impacts.  Thus, NEPA’s requirement that agencies take a “hard look” at the environmental impacts of their permits required BLM to evaluate whether it could assess economic costs caused by GHG emissions resulting from the mine under the social cost of carbon methodology.

At the same time, recent cases allow environmental groups to challenge missing or inadequate consideration of climate impacts in EAs and EISs even if they cannot show that there will be local climate change impacts. Wildearth Guardians v. Jewell, 44 ELR 20001 (D.C. Circuit 12/24/2013).  That precedent makes it easier for groups challenging inadequate evaluation of climate impacts to get into federal court to do so.

These statements and rulings likely will be relied upon in increasing numbers of cases challenging federal permits and projects that fail to evaluate, or evaluate inadequately the climate change impacts of the actions they authorize or undertake.

For more information on NEPA litigation, and the evaluation of climate change impacts in EAs and EISs, contact  Steve O’Day.

Leave a Reply

Share via
Copy link
Powered by Social Snap