A Climate-Constrained NEPA

Abstract

The fight to force climate change into environmental impact assessment pursuant to the National Environmental Policy Act (NEPA) to date has been long, bitter and mostly pointless. Even where agencies have relented in litigation or have proactively worked to integrate climate change considerations into their NEPA documents, the factoring done has consigned these considerations to the margins. Impact assessment naturally does so. Every such action/assessment will involve what amounts to a drop in a bucket of contributory causes to a globally-scaled, temporally remote catastrophe. Aggregative analyses minimize such contributions behind other, more immediate choice factors. A 2014 proposed guidance on climate change and NEPA from the Council on Environmental Quality ignored this fact. Likewise, the Office of Management & Budget’s “social cost of carbon” estimates allow almost everything they inform to go forward essentially unchanged. This article argues that a new approach is urgently needed and available. The approach sketched here consists in the development of programmatic alternatives pursuant to NEPA § 102(2)(E). That provision of the Act requires all agencies to study and develop alternative uses of “available resources” regardless of the magnitude or timing of their actions’ marginal environmental impact. The article makes the case that our principal “resource” where climate change is concerned now is what remains of our “burnable” carbon. Especially if we are to pursue the mitigation goals the U.S. Government committed to in Paris in December 2015, this approach is urgently needed. The steps outlined in Part IV of the article will help speed the U.S.’s development of mitigation options without many of the frictions other approaches will entail.