CLIMATE:

Experts weigh 'endangerment' proposal's impact on NEPA

U.S. EPA's proposed finding that greenhouse gases threaten public health and welfare may strengthen the consideration of such emissions in analyses carried out under the National Environmental Policy Act, experts say.

But Edward Boling, general counsel for the White House Council on Environmental Quality, said the proposed "endangerment finding" won't necessarily have a direct effect on NEPA.

"It really serves as further information for the NEPA practitioners out there who are evaluating the implications of climate change for their project, either from the standpoint of the effect of their proposal on climate change ... or more often the evaluation of the implications of climate change for federal agency projects, their alternatives, and their environmental effects," Boling said.

As an example, he cited the National Highway Traffic Safety Administration's preparation of an environmental impact statement to analyze the potential effects of the agency's corporate average fuel economy, or CAFE, standards for cars and light trucks for model years 2012-2016.

The proposed endangerment finding "serves as further information about EPA's analysis of the consequences of greenhouse gas emissions," he said.

Climate change and greenhouse gas emissions have been issues of interest to NEPA lawyers for some time, and in an increasing number of cases. And federal courts have required agencies to consider greenhouse gases under NEPA, Boling said. The endangerment proposal serves as a reaffirmation of much of what is referenced in the climate change science already available for use by federal decision-makers, he said.

And if the proposed finding leads to EPA regulations under the Clean Air Act, then "you'll have a more mature regulatory regime for the NEPA process to reference," he added.

A petition is currently pending before CEQ calling for it to amend its regulations to address climate change, requiring it be one of the elements considered in an environmental impact statement. The petition was filed by the Sierra Club, Natural Resources Defense Council and the International Center for Technology Assessment.

Boling said the proposed endangerment finding will not have a direct effect on the petition but likewise will serve as part of the best available information for decision-makers.

Last month CEQ Chairwoman Nancy Sutley said her office will spend time this year looking at how it guides agencies and how climate change fits into overall policy and legislation.

"I won't tell you what the answer is because we don't know yet," Sutley said.

Lawsuits, specific impacts

Nicholas Yost, who led the drafting of NEPA regulations during the Carter administration, said the finding will bolster the argument of those who seek to have greenhouse gas emissions incorporated into environmental assessments or impact statements -- and failing that, into litigation.

"People seeking environmental impact analyses under NEPA are going to use that as one of the tools and arguments that they make," he said. "That is something which plaintiffs will use: that EPA has found carbon dioxide to endanger public health and welfare, and that makes more obvious the fact that greenhouse gasses should be examined, and it says something about the depth to which an examination must take place."

If emissions are regulated under the Clean Air Act, that would not eliminate the need for NEPA to consider them, he noted. "Those arguments have never gotten anywhere," he said. "Most things considered under NEPA are also covered by a specific statute ... but that doesn't free the lead agency under NEPA to be looking at everything together."

Michael Gerrard at Columbia University's School of Law said the overall question of whether greenhouse gases pose a threat has "long been settled as a matter of NEPA precedent."

"If it needs any bolstering, [the endangerment finding] bolsters the argument," Gerrard said. "However the case law has emerged rather clearly that greenhouse gas emissions are an appropriate subject for analysis under NEPA. It has been some time since someone seriously argued that the issue was irrelevant in principle."

But the question remains whether a particular project's effects are significant enough to require the analysis, he added.

"I think that it could influence the way in which the analysis is done by setting forth parameters of the kind of impacts greenhouse gases have," Gerrard said. "I could readily see an environmental impact statement citing the language in the endangerment finding as part of their description of the impacts of emissions from a particular project."

Gerrard, who is one of NRDC's counsels for the CEQ petition, said the endangerment finding may be a signal of what the agency will decide on the petition.

"I think that the endangerment finding is a very strong signal of the momentum within the Obama administration to regulate greenhouse gases," he said. "Favorable action by CEQ on the petition would be in furtherance of the same momentum."