(28)NEPA AND THE CASE OF CLIMATE CHANGE: AN ANALYSIS OF THE CLIMATE CHANGE CONSIDERATIONS REQUIRED TO SATISFY NEPA IN ENERGY AND INFRASTRUCTURE PROJECTS

摘要

Climate change currently sits at the forefront of environmental law, policy, and federal decision making. As discussed below, the National Environmental Policy Act of 1969 (NEPA)1 requires federal agencies to meaningfully consider the environmental impacts of their decisions. And over the past decade, federal courts and agencies have made it clear that climate change impacts fall "squarely within NEPA's focus."2 But the question still vexing both federal agencies and the courts is how to incorporate climate change considerations into the NEPA process in a meaningful way. The Trump administrations decision to rescind the Council on Environmental Quality's (CEQ) 2016 guidance on the consideration of climate change has put this issue squarely back in the hands of the courts. And in response to recent challenges to energy and infrastructure projects, courts have continued to expand the analysis required under NEPA to include not only a projects direct greenhouse gas (GHG) emissions, but also the downstream uses of energy produced from or transported by the proposed project. This chapter begins with an examination of the developing law regarding the level of climate change considerations required to satisfy NEPAs purpose of informed decision making in the context of oil and gas exploration and production, coal mining, natural gas pipeline, and export terminal projects.