NEPA Review of Climate Change

摘要

Climate change, more than any environmental challenge in human history, evokes the imperative of NEPA: that government agencies undertake informed decisionmak-ing with regard to matters significantly impacting the environment. Fulfilling that imperative is the responsibility of, first, the federal agencies that must decide such environmental matters and, second, the courts that are responsible for ensuring that a crabbed reluctance to inter- fere with industrial progress does not render NEPA a hollow shibboleth. Any assessment of how well NEPA is advancing informed decisionmaking with regard to climate change would be premature at this time. The CEQ Guidance is a clarion call forward, emphasizing that climate change is a consequence of human activity that produces unique stresses for environmental resources. Cautioning against linking specific climate changes to their environmental effects, CEQ advises that emissions sufficient to trigger CAA obligations should trigger NEPA review. As to such significant projects, review can be limited reasonably to ensure that NEPA consideration pertains to issues that are salient to the decision in question. Left somewhat unclear is when an agency might be required to conduct an in-depth analysis of the project's technology cycle. Also left somewhat unclear is CEQ's recommendation that consideration of climate change impacts may usefully be done as part of a programmatic analysis of agency activities. According to CEQ, by presenting the nature of subsequent tiered decisions, agencies can focus the scope and development of alternatives and mitigation measures. However, once undertaken, such programmatic review is rarely re-undertaken absent a fundamental change in how the program operates. The maturing awareness of climate change by itself apparently does not mean that agencies must perform a programmatic review. And as I described, courts have rejected environmentalists' demands to order agencies to undertake such a programmatic review. Finally, courts have abstained from requiring agencies to consider how their leasing or licensing decisions reinforce, in some instances strongly, America's reliance on a fossil fuel infrastructure. It may confidently be asserted that the cases discussed here will soon be joined by more cases that discuss the adequacy of NEPA review in connection with climate change. Clearer doctrine no doubt will take shape as more cases are decided. This is a moment of initial framing of doctrinal approaches to some of the most complex environmental questions ever to confront the courts. But scientists tell us that climate change may not offer the luxury of time to let law evolve on its own. In my view, NEPA can be a more powerful shaper of policies to mitigate and adapt to climate change if the courts make it so.