Traditionally, environmental impact analysis, under NEPA and state analogs, has focused on the impacts that a proposed project may have on the environment. In Massachusetts, the Executive Office of Energy and Environmental Affairs has proposed a draft MEPA Climate Change Adaptation and Resiliency Policy. The policy seems sufficiently important to warrant more than one post. Today, I’ll look at EOEEA’s authority to promulgate an Adaptation Policy. Tomorrow, I’ll look at some of the specifics.
Under the Adaptation Policy, proponents of projects required to prepare an Environmental Impact Report would have to assess the impact of climate change on the project, as well as the impact of the project on the environment. It is not obvious to me that EOEEA has authority to require such analysis. The Draft Policy points to two sources. First, the MEPA office must:
consider the reasonably foreseeable climate change impacts and GHG emissions of projects subject to MEPA review … and ensure that projects subject to MEPA take all feasible measures to avoid, minimize, or mitigate “Damage to the Environment”.
This language is clearly focused on the impacts of the project on the environment, not the impacts of the environment on the project. Second, permitting agencies must:
also consider reasonably foreseeable climate change impacts, including additional greenhouse gas emissions, and effects, such as predicted sea level rise.
This too seems focused on the traditional impact analysis.
Of course, because the Policy is just that – a policy – it may not be considered final agency action and thus may not be subject to judicial review. Even if it is, I’d expect it to be upheld, given the extremely deferential standards used by Massachusetts courts to review agency action.
That does not mean that it should be. Why should a statute focused on preventing damage to the environment be used to require project proponents to minimize environmental damage to their project?
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There is a straightforward nexus between the impacts of climate change on a project and the impacts of that project on the environment. The Draft Policy cites one example, i.e., that air emissions and their dispersion patterns can change as the ambient air temperature changes. Other examples include: sea level rise forcing a project to obtain fresh water from development of a new, alternate source, and sea level rise causing more frequent flooding and related export of contaminants by run-off from impervious surfaces on a project site.