Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

Late last week, the CEQ issued its long-awaited draft Guidance on how to factor climate change into NEPA reviews. CEQ explicitly stated the draft is not effective at this time. CEQ will take comment for 90 days and “intends to expeditiously issue this Guidance in final form” after close of the comment period. Assuming CEQ does so, it will join several states, including California, New York, and Massachusetts, which already require that climate change be addressed in their state NEPA analogues.

The draft is very limited in scope at this point; CEQ may have decided that what is most important is simply the statement that climate change is real, it matters, and it therefore must be taken into account under NEPA. For example, CEQ proposes a threshold a 25,000 tpy of direct emissions CO₂e for NEPA applicability. The Guidance does not propose to apply this threshold to indirect emissions, “the analysis of which must be bounded by limits of feasibility.” Shocking recognition of what’s actually possible.

There are some tidbits that will nonetheless give pause to those who expect to be subject to this Guidance. First, the Guidance does discuss the need to consider the cumulative effects of GHG emissions. This is not surprising, given that NEPA already requires consideration of cumulative impacts outside the GHG context, but since all GHG impacts are cumulative, it is of particular importance here. Second, the Guidance also notes that project planners must consider the impact of climate change on projects, as well as the impact of projects on climate change. The example given in the Guidance is a plan for transportation infrastructure on a barrier island. The Guidance also suggests a longer-term time horizon than may have been used in the past. The example here is that of an industrial process drawing water from a source that relies on snow pack that is expected to decrease as a result of climate change.

As noted above, CEQ spends a lot of effort making the case that the Guidance is not a radical document. The phrase “rule of reason” is used no less than four times in the draft Guidance – and it feels like more. Nonetheless, I doubt opponents will be satisfied. I suspect that they – like the CEQ itself – believe that the fact of the document is more important than its immediate requirements.

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On Tuesday, District Judge Roger Titus issued an injunction against the construction of the Beech Ridge Energy wind project – 122 wind turbines along 23 miles of Appalachian ridgelines – unless the project can obtain an incidental take permit, or ITP, under the Endangered Species Act. Judge Titus concluded, after a four-day trial, that operation of the turbines would cause a “take” of the endangered Indiana Bat. 

I’m not going to get into the details of the decision, though it certainly does not seem crazy on its face. I am going to go on a rant that there has to be a better way.

Those of us who are old enough to have gotten interested in policy in the 1970s will recall TANSTAAFL – there ain’t no such thing as a free lunch. Appalachian ridgeline turbines kill Indiana Bats. Offshore wind turbines kill sea birds or spoil pristine views. Remember when everyone thought that hydroelectric power was the “clean” energy? Dams kill fish and alter ecosystems. Nuclear power creates long-lasting wastes. I probably don’t need to explain the costs of coal. TANSTAAFL.

Today, people look to solar, and geothermal, and tidal power. I don’t know about you, but while I’m open to persuasion, my default assumption is that geothermal and tidal power could bring changes to complex systems that we really don’t begin to understand. Maybe solar has no environmental costs, but I wouldn’t bet on it. TANSTAAFL.

In a world where everything has costs, we need to find a way to balance those costs to achieve societal objectives. Maybe the harm to the Indiana Bat would be so great that the Beech Ridge Energy project is not worth it. Maybe not. Either way, does anyone think that the ESA provides a mechanism to make that judgment? Of course not; it’s not designed to do so. It’s designed to protect the bats.

We really need an overarching statute that allows the government to assess the unavoidable trade-offs, because there ain’t no such thing as a free lunch, and decide which projects should move forward. Lest my environmentalist friends think that I want to be able to give developers a blank check, I can only say, no, no, no. I’m agnostic on the outcomes, but I’m quite certain that the approach I advocate would only make thorough (which is not to say slow) review under NEPA and related statutes more important. Decision-makers can’t balance the costs and benefits of different projects unless they have a thorough understanding of what those costs and benefits are.

TANSTAAFL.

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Waxman-Markey. Boxer-Kerry. Public nuisance litigation. EPA regulation under existing authority. What’s next in the arsenal of weapons against climate change? How about including climate change impacts in reviews under NEPA?

In February 2008, the International Center for Technology Assessment, the Natural Resources Defense Council, and the Sierra Club petitioned the CEQ to “clarify” its regulations to require the assessment of potential climate change impacts in environmental reviews performed under NEPA. CEQ has not yet formally responded to the petition, but that hasn’t stopped noted environmentalist Senator James Inhofe (R. Okla.) from weighing in preemptively. Calling NEPA a “bedrock environmental statute,” Senator Inhofe has informed Nancy Sutley, CEQ Chairwoman, that NEPA “is not an appropriate tool to set global climate change policy.” It’s not obvious to me why a bedrock environmental statute shouldn’t be used to address the impacts of climate change.

In any case, whether Senator Inhofe is correct or not, it seems likely that CEQ will eventually take some action, whether by guidance or regulation, to require inclusion of climate change assessments into NEPA reviews. Moreover, this is yet another area of climate change policy in which the federal government will be following the laboratories of democracy, the states, rather than leading. As we have previously reported, a number of states, including California, Massachusetts, and New York, already require GHG assessments in reviews under their state NEPA analogues.

Going forward, those planning large projects, whether the projects are public or private and whether they are state or federal, should expect to have to assess the climate change impacts, including whether alternatives to the project are available that would have reduced climate change impacts.

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As we noted previously, in the face of efforts to include language in the stimulus bill exempting stimulus projects from the requirements of NEPA, Senator Boxer proposed what you can describe either as a compromise or a fig leaf. Section 1609 of the bill provides that NEPA reviews will be expedited and resources will be devoted to facilitate such expedited reviews. According to the Environmental Reporter today, CEQ is going to be providing guidance to federal agencies on how to conduct such expedited reviews.

Despite my normal skepticism about agency guidance documents, such guidance would almost certainly be welcome in these circumstances. Agencies are obviously going to be under a lot of pressure to get the stimulus money out the door and CEQ is not going to want to be in the position taking the blame for being an obstacle. I am therefore hopeful that the guidance will indeed help facilitate these projects. If citizen suits are brought challenging the NEPA review for any particular project, CEQ’s interpretation of what’s acceptable should receive Chevron deference, thus likely insulating agency decisions resulting from following procedures promulgated by CEQ pursuant to § 1609. 

In related news, new CEQ Chair Nancy Sutley has said that she wants “higher-level policymakers” to be more involved in NEPA reviews at their agencies than they have been in the past. If such early involvement is used to identify and resolve issues before they become problems, then who would not be pleased at this initiative? On the other hand, if such involvement is a mechanism for CEQ to have greater influence on agency decision-making, then I would be less sure of the benefits and more worried that politically sensitive agency decisions will just get bogged down, without any corresponding improvement in the quality of agency decision-making.

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We posted recently about the revival of EPA’s NSR enforcement program. Now, yet another shoe has dropped. The Center for Biological Diversity has announced the creation of the Climate Law Institute, the purpose of which is to use citizen law suits under existing laws to advance regulations intended to address climate change. The press release states that the Institute has $17 million in funding with which to pursue its mission.  

While that mission will focus on climate change, as its name implies, it will not be limited to litigation under the Clean Air Act. It was the CBD which led the litigation resulting in the listing of the Polar Bear under the Endangered Species Act.  The Institute indicates that, in addition to the Clean Air Act, the ESA, NEPA, and the Clean Water Act may all be utilized as part of its overall litigation strategy.  

Among other specific targets identified in the press release, the Institute states that it aims to prevent the construction of any new coal-fired power plants and to phase out existing coal plants as quickly as possible.

Unless EPA moves very quickly across a number of fronts – which may well happen – it looks as though we’re going to see a lot of climate-related litigation in the near future.

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It looks as though Massachusetts is going to at least try to avoid having lengthy environmental reviews create obstacles to spending its share of the federal stimulus package. A draft report prepared by the Commonwealth’s Permitting Task Force makes several recommendations which, if implemented, would indeed help to ensure that the money can get out the door and the shovels in the ground. Highlights include:

·                     Allowing projects to proceed, at their own risk, during permit appeals.

·                     Providing that appeals related to any stimulus projects would be heard in the permit session of the Land Court.

·                     Exempting stimulus projects from federal review. This echoes a suggestion previously made by Governor Schwarzenegger and by at least one Republican Senator. The Senate has already rejected it. As described in the Task Force report, the exemption would be limited to projects where the only basis for federal review is federal funding. There would be no general exemption from federal permitting requirements. Unlike Governor Schwarzenegger, the Task Force is not recommending that MEPA, the state environmental review statute, be waived for stimulus projects.

·                     Efforts to bring the Massachusetts Historic Commission to the table – MHC declined to participate in the Permitting Task Force

·                     Creation of permits by rule for certain types of projects in order to avoid delays resulting from individual permit applications/reviews

Time will tell whether the Commonwealth adopts any or all of these recommendations. This is only a draft report at this point. Time will also tell regarding the stimulus effort itself and efforts in Congress to smooth out the environmental review process. 

In any case, these common-sense recommendations could only help

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I have posted a few times recently about the tension between environmental regulation and economic development, particularly in the context of current efforts at devising a stimulus package in Congress. Yesterday, Congress rejected an amendment to the stimulus bill, offered by Senator John Barrasso (R-Wyo.), which would have required NEPA reviews to be completed within 270 days for projects funded through the stimulus. Projects not reviewed during this time period would have been constructively approved, i.e., the absence of NEPA review during the 270-day period would have resulted in a determination that the project had no significant impact.

Instead, Congress approved a competing amendment offered by Senator Boxer, which simply requires that NEPA reviews be completed as expeditiously as possible. Senator Barrasso went on record thanking Senator Boxer for at least introducing her amendment recognizing the importance of expedited review.  Nonetheless, the proof will be in the pudding when highway projects – or other projects in the stimulus bill that might have significant environmental opposition – attempt to run the NEPA gauntlet.

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It’s now de rigueur to say that there is no conflict between a healthy economy and a healthy environment. President-elect Obama said so himself as recently as December 15, when he introduced members of his environmental and energy team. Certainly, in a perfect world, where information is free and everyone agrees on the economic value to be placed on protecting environmental interests, that would be true as a matter of definition.

Unfortunately, we live in the real world and in the real world, there are often trade-offs to be made between economic growth and environmental protection. This critical tension was brought home last week, when news broke that Governor Schwarzenegger was seeking to expedite, and have the authority to waive, certain environmental reviews for infrastructure projects deemed critical to economic stimulus efforts. Among other authorities, Governor Schwarzenegger – who has been a leading figure in state efforts to fight climate change – wants to exempt a dozen highway projects from environmental reviews and to create a three person “super-Cabinet” that would have authority to waive environmental reviews on other projects. He has also suggested that federal NEPA review be waived for any project funded as part of a federal stimulus package.

Environmentalists, of course, are having none of it. Tina Andolina, of the California Planning and Conservation League, called the Governor’s plan’s “ridiculous.” But are they? Anyone involved in any kind of development project, whether highway or mass transit or power generating – or even schools or low income housing – knows that environmental reviews can slow such projects by months or even years. In fairness to the environmental review process, that’s part of the purpose – to make certain that projects aren’t developed without careful consideration of their impacts.

However, everyone seems to agree that we are in the midst of an extraordinary time. President-elect Obama has himself said that prompt economic stimulus is critical, in order to avoid an even worse economic crisis. A substantial part of the stimulus plan is for infrastructure projects that every thinking person must acknowledge could conceivably have adverse environmental impacts. What if it simply isn’t possible both to thoroughly assess those impacts and get the projects started sufficiently quickly to have the stimulus that everyone agrees is needed?

Given the dire state of the economy, I’d certainly err on the side of facilitating projects, but I’m sure that some of my readers would disagree. 

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