The "magna carta" of U.S. environmental law is having growing pains as federal agencies grapple with how it will incorporate climate change and whether it will invite lawsuits that could send streams of climate-related issues into the courts.
The National Environmental Policy Act (NEPA) is the ambitious statute requiring that federal agencies publicly evaluate the environmental impacts of their decisions -- from building a highway to permitting wetland development. It also requires them to consider alternative approaches.
But including climate change on that list will not be an easy fit, according to some experts on the law. "I think it has to handle it," said Nicholas Yost, who led the drafting of NEPA in the late 1960s. "It's going to be difficult."
At the same time, environmentalists see potential for the statute to make sure climate change is incorporated into land-use and building decisions, areas that likely won't be covered under federal climate legislation.
"NEPA was intended to be, and can be, a vehicle for fundamentally questioning the purpose of a project," said Seth Kaplan of the Conservation Law Foundation.
Nancy Sutley, chairwoman of the White House Council on Environmental Quality (CEQ), charged with overseeing the statute, said she will be considering the issue this year in response to both informal requests from federal agencies and a petition filed last year by the Sierra Club, the Natural Resources Defense Council and the International Center for Technology Assessment.
The groups asked for amendments to NEPA regulations to clarify that climate change must be addressed in environmental reviews and called for CEQ to issue a guidance document that will detail how to do so.
"I think we've gotten into the practice of viewing NEPA as just another brick in the road -- you put it in place and you can keep going," said Sutley at a conference hosted by the Environmental Law Institute and George Washington University Law School.
The challenge for NEPA, and climate policy more generally, said Sutley, will be to take the global phenomenon of climate change to a project-by-project or program level.
Under NEPA, a project might have to consider both the contribution of its emissions to global warming and the impacts of future climate change -- such as sea level rise -- on the proposed plans. Already, the law requires that environmental impact statements evaluate energy consumption, but lawyers say more explicit climate provisions are needed.
Agencies' approach to considering climate change in their reviews has been patchy and piecemeal so far, said Michael Gerrard at Columbia University's School of Law, who is NRDC's counsel for the CEQ petition.
A hatchery for lawsuits and questions of scope
That's where the courts have come in. More than a dozen lawsuits have challenged the government for ignoring climate change under NEPA over the last six years. In one of the earliest successful suits in 2003, environmentalists forced the Surface Transportation Board to consider the climate effects of building a train line that would transport more coal to Midwestern power plants, according to Noah Hall, who represented the plaintiffs.
In a landmark case in 2007, the Department of Transportation had to redo its analysis of proposed fuel economy standards for light-duty trucks for the same reason.
At the same time, less obvious projects, such as the decision of the National Indian Gaming Commission to permit a new casino and welcome thousands of cars a year, are also now considering climate change in their NEPA process, said Yost.
Gerrard said that what is needed from CEQ is instruction about the scope of the emissions analysis -- whether to include emissions from electricity and fuel consumed by the project, or even emissions from construction materials used.
NEPA doesn't force agencies to adopt alternatives with lower environmental impacts. It just says they must disclose and consider them. "These are the first two steps in the right direction," said Christopher Pyke, climate change policy director with CTG Energetics Inc., noting the power of simple information to affect change.
Which projects will have to undergo review because of climate impacts is another problem. Now, only projects with "significant" environmental impacts need to prepare full environmental impact statements, a process that can take years.
Jurisdiction could expand with the meaning of 'significant'
In the global context of greenhouse gases, evaluating what is significant is tricky, said Edward Boling, CEQ's general counsel. "There are no federal projects out there -- with the possible exception of vehicle fuel efficiency rulemaking -- that meet that threshold," he said.
For that reason, some believe NEPA is ill-suited to dealing with global climate issues. "The world's dominant, overwhelming issue has finally trickled into NEPA. For my part, I question whether that's the proper repository," said David Paget, an environmental lawyer in New York.
One way out of that box, suggested Gerrard, would be to give applicants an incentive to minimize their greenhouse gas footprint by having a minimum threshold under which their emissions wouldn't trigger a full NEPA review. That, combined with a set of best practices to mitigate emissions, could be a good regulatory tool for sectors not covered by climate legislation or regulations, he said.
One frequent criticism of NEPA is that federal agencies or project applicants aren't evaluating project alternatives in good faith and instead already know what they want to do. Another is that NEPA is the perfect avenue for opponents to delay a project by suing.
Sutley hopes to see NEPA split the difference. "Decisionmakers and policymakers don't need a box to be checked off or the alternative, a massive exercise to achieve a document that is bulletproof to litigation. The need is for something to help them make decisions," she said.
Some are advocating a paradigm shift to handle climate change under NEPA. Instead of evaluating the impacts of a four- versus a six-lane highway, agencies could rethink the entire endeavor of highway building, for example.
"NEPA goes right in the face of the tendency to do things the way you've always done it." said Mary O'Brien, a scientist and activist.
That, however, might not happen for individual projects. Hall and others called for more high-level programmatic NEPA reviews of broad environmental policy decisions -- like the entire highway-building endeavor -- that make emissions inevitable.
Minnesota, for example, is set for an explosion of oil refining infrastructure projects to handle an influx of emissions-spewing oil sands from Canada, said Kevin Reuther, legal director of the Minnesota Center for Environmental Advocacy. "We are ripe for some sort of programmatic look at whether we really want to turn to that source for our transportation fuels."
An expansion of these tiered reviews -- from program to project level -- would have to be handled carefully to make sure they stay up-to-date and relevant, however, said CEQ's Boling.
Others said the beauty of NEPA could be in its case-by-case approach to climate change. "You don't have to solve the whole overwhelming problem," said George Mannina, a senior partner at the law firm Nossaman LLP.
State and E.U. laws provide alternatives
As CEQ drafts its new guidance, it can look both to many states that have their own NEPA versions and to the European Union, which has focused on doing more strategic environmental reviews to address its policies.
California, which has an even stronger version of NEPA, requires that projects at the local level evaluate their emissions and comply with the state's climate goals -- which extend to cars and power plants, but also to transit and land use. "That these plans cannot undermine the state's goals is an incredibly powerful piece of logic," said Pyke.
In Massachusetts, a proposal to build a large, isolated office park was redesigned when climate change was considered in the environmental review, said Kaplan. "They might as well have put up a giant, flashing sign that said 'sprawl, sprawl, sprawl.'"
Sutley said she will have all models under consideration as she re-examines NEPA, but that she won't necessarily follow any particular one.
The ultimate test of NEPA could come as a result of climate change, said William Rodgers, a professor with the University of Washington School of Law. He described a future time when the government might be forced to consider a potentially disastrous proposal to blast particles into the atmosphere to cool the earth. "This will be a major federal action," he said. "The only thing standing between us and this is NEPA."