Faced with mounting infrastructure construction costs and more frequent and severe weather events due to climate change, cities across the country are managing the water pollution challenges of stormwater runoff and combined sewer overflows through new and innovative “green infrastructure” mechanisms that mimic, maintain, or restore natural hydrological features in the urban landscape. When utilized properly, such mechanisms can obviate the need for more expensive pipes, storage facilities, and other traditional “grey infrastructure” features, so named to acknowledge the vast amounts of concrete and other materials with high embedded energy necessary in their construction. Green infrastructure can also provide substantial co-benefits to city dwellers, such as cleaner air, reduced urban temperatures, and quality of life improvements associated with recreation areas and wildlife habitats. This Article examines the opportunities and challenges presented by municipal green infrastructure programs in the context of Clean Water Act (“CWA”) enforcement by the U.S. Environmental Protection Agency (“EPA”). First, it explores new thinking in urban sustainability and identifies opportunities for greater federal-municipal cooperation in the management of environmental problems, including stormwater runoff. Second, it unpacks the challenges presented by the relative inflexibility of federal environmental enforcement in the context of urban stormwater management under the CWA, and compares the differences between traditional federal approaches and newer local initiatives in terms of adaptability, responsiveness to community needs, preferences and trade-offs, cost effectiveness, and innovation. Third, it describes a recent consent agreement between New York State and New York City, identifying key features and best practices that can be readily replicated in other jurisdictions. In recent years, EPA has taken big steps forward to encourage and support municipal green infrastructure initiatives, including the release of its Integrated Municipal Stormwater and Wastewater Planning Approach Framework. The Article concludes with a specific proposal for further regulatory and policy reform that would build upon this framework to develop truly comprehensive, municipally-led plans to prioritize infrastructure investments that improve public health and the environment.

Recently, legal controversies have arisen regarding the scope of greenhouse gas emissions that should be considered in environmental reviews of fossil fuel extraction and transportation proposals under the National Environmental Policy Act (NEPA). The key question is whether and how agencies should account for emissions from activities that occur “downstream” from the proposed action, such the combustion of fossil fuels, and emissions from activities that occur “upstream” of the proposed action, such the extraction of fossil fuels. This question is important, because consideration of such emissions can alter the balance of costs and benefits for a proposed project, and the agency’s ability to justify approving the project in light of that balance.This Article argues that such emissions do typically fall within the scope of indirect and cumulative impacts that must be evaluated under NEPA, and provides recommendations on how agencies should evaluate such emissions in environmental review documents. To support the argument and recommendations, the Article makes several unique contributions to the growing literature on NEPA and climate change. First, we describe how federal approvals of fossil fuel extraction and infrastructure contribute to global climate change, and we explain why federal agencies have ample discretion to account for these impacts when deciding whether to issue such approvals. Second, we conduct an in-depth examination of NEPA’s requirements as they pertain to the analysis of upstream and downstream emissions, focusing in particular on the requirements to evaluate indirect effects, cumulative effects, and effects from related actions. Third, we describe how federal agencies currently account for upstream and downstream greenhouse gas emissions in their NEPA reviews, and we find that there are major inconsistencies in the analytical approaches both within and across agencies, but many agencies are nonetheless beginning to recognize that upstream and downstream emissions fall within the scope of impacts that should be reviewed under NEPA. Fourth, we synthesize all of the existing case law on this subject, and we find that courts have generally treated such emissions as the type of indirect effects that must be evaluated in a NEPA reviews. Finally, we outline an approach for evaluating upstream and downstream emissions that would improve the quality of federal decision-making, shield agencies from litigation, and provide much-needed information about the indirect and cumulative effects of fossil fuel development on global climate change.