Climate change lawsuits under NEPA
As I mentioned in a post last week, frustration with the political process has led many global warming advocates to turn to the courts. While I’m skeptical that the judiciary can solve the problem, it may be an important part of the solution.
While the Massachusetts case has dominated public attention to global warming litigation, it is only one of more than a dozen active cases seeking courts intervention. As outlined in a recent report by the Georgetown Environmental Law & Policy Institute (PDF), these cases roughly break down into four categories:
- Clean Air Act litigation (like the Massachusetts case),
- National Environmental Policy Act cases,
- common law nuisance suits, and
- industry challenges to state greenhouse gas regulations.
(For anyone interested, the report is both concise and accessible — though that’s just shameless advertising, since I wrote it.)
Today I’d like to discuss the second category: cases under the National Environmental Policy Act. As you may know, everything in environmental law has an acronym, sometimes making environmental lawyers unintelligible to the uninitiated. This Act goes by the relatively simple handle NEPA.
NEPA is one of our nation’s oldest environmental laws, requiring the federal government to analyze and disclose the environmental impacts of its actions. The law is animated by the philosophy that more information will lead to better decisions.
Environmentalists have challenged decision-making processes in which the government fails to analyze the potential contributions its actions may have to global warming. These cases have led to several victories.
In one case, a federal court ordered the Department of Energy to examine the amount of greenhouse gases a new power plant in Mexico, designed primarily to export power to the U.S., would produce. The DOE had given the plant a right-of-way for a transmission line to connect to the U.S. electrical grid.
In a second case, a federal court intervened when the Surface Transportation Board authorized a rail extension to allow trains to carry coal from mines in the Powder River Basin to power plants in the Midwest. The court ordered the STB to analyze the amount of greenhouse gases likely to be released by the combustion of coal carried over the new line.
Unfortunately, these may be largely symbolic victories. The federal agencies involved completed bare-bones environmental reviews that essentially found no significant global warming impact because their projects would account for only a miniscule percentage of total global emissions. Such an analysis pays only lip service to NEPA and fails to provide the public with real information about the way the federal government is making global warming worse.
A recent lawsuit brought by NRDC suggests another (and perhaps more promising) way NEPA may shape the global warming debate. The lawsuit, filed under a California counterpart to NEPA, targets the approval of a development in the San Joaquin delta that includes the construction of levees for flood control. NRDC argues that a rise in sea level expected from global warming will significantly increase the environmental impacts of the project. The government conducted its analysis based on current conditions.
A victory for NRDC could have profound impact, forcing the government to study the changes global warming may make to our local communities. This will highlight the tradeoffs inherent in our current climate non-policy.
The theory behind the NRDC case could be applied broadly. For instance, development in the west could cause more harm to rivers and streams as snowpack decreases and water become scarcer. A second example: Fragmentation of ecosystems near the current home of an endangered species could prevent that species from migrating as global warming transforms habitat.
NEPA is a natural ally for environmentalists hoping to change the way we approach global warming. It’s founded on the notion that real information can make a difference. Today, global warming can seem abstract. Environmental review under NEPA may provide a means of making it concrete.
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