Yesterday, I suggested that Massachusetts EOEEA may not have authority to issue its “MEPA Climate Change Adaptation and Resiliency Policy.” However, since I also conceded that Massachusetts courts are unlikely to agree with me, it’s probably worth taking a look at what the Adaptation Policy would require. As with any MEPA (or NEPA) analysis, it has two parts: identification of impacts and discussion of mitigation measures.
Regarding impacts, the Adaptation Policy would require that proponents “identify potential project vulnerabilities under certain future climate conditions consistent with the anticipated lifespan of the project.” More reasonably, the Policy would require proponents to “identify any impacts the project, or associated changes to the site, could have on adjacent land uses, including exacerbating flooding, erosion, or urban heat island effect.”
This latter requirement goes to issue of jurisdiction I raised yesterday. If climate change will have impacts on a proposed project which will, in turn, cause the project to have impacts on the environment different than they would otherwise have been, that seems to me a legitimate issue for MEPA to explore – as long as this iterative process does not become an infinite loop, requiring assessment of ever more attenuated 2nd and 3rd – and nth – order impacts.
To give just one example, the Policy states that:
energy generating facilities may be required to demonstrate what impact temperature changes would have on emissions of air pollutants or the effectiveness of air pollution control systems. Hospitals or housing for the elderly may consider design elements necessary to protect people during heat waves and/or power outages.
So proponents of energy generation projects will have to assess how generation and emissions will be different in 40 years due to climate change?
The next hypothetical is of even greater concern. How is an assessment by hospitals regarding how to protect their patients from climate change related to a statute the requires project proponents to examine the impact of their project on the environment?
The requirement to address potential mitigation measures presents the same issues. If the proponent must assess ways to ensure that flooding on her property induced by climate change does not exacerbate flooding on nearby properties, that seems well within the ambit of MEPA. If, on the other hand, the point of the policy is to “reduce risk, property damage or provide other benefits to a property owner,” then I think that property owners may politely respond: “Thanks for the help, but I can make my own judgments about how best to protect my property.”
We’re the government and we’re here to help.
Clumsy wording notwithstanding, none of this seems out of bounds compared to the analyses that should required of a proposed project. Shouldn’t a good MEPA document look as far out as the proposed project lifetime and project emissions and impacts within whatever ranges of greater near-term certainty and longer-term uncertainty are applicable? Operations during heat waves (and cold snaps) should be within the range to be covered, climate change notwithstanding. Shouldn’t the portions of the project description dealing with reasonably foreseeable abnormal operations/emergency response cover operations during power outages, climate change notwithstanding? Perhaps too much emphasis is being placed here by MEPA on the specific linkage to climate change when the real issue is, as always, how well the applicant covers the full range of reasonably foreseeable operating conditions over the project lifetime.