Law Commons^™

Incorporating Climate Change In Nepa Reviews: Recommendations For Reform, Michael Burger, Romany M. Webb, Jessica A. Wentz

Sabin Center for Climate Change Law

The National Environmental Policy Act (“NEPA”) requires federal agencies to conduct an environmental review prior to moving ahead with any major federal project, plan, or program that could significantly affect the environment. As part of the environmental review, agencies must share information with, and solicit feedback from, the public. The goal is to improve federal decision-making by ensuring that agencies take a hard look at the environmental effects of their actions and fully inform the public about those effects.

In guidance issued in 2016, the Council on Environmental Quality (“CEQ”)—the federal body charged with implementing NEPA—identified climate change as a …

Playing The Long Game: Expediting Permitting Without Compromising Protections, Jamie Pleune

Utah Law Faculty Scholarship

The Biden Administration’s efforts to expedite a transition to clean energy have prompted calls for permit reform. Clean energy relies heavily upon critical minerals and transitioning to a clean energy economy demands a global increase in mineral production. Some commentators suggest that environmental standards must be loosened in order to achieve efficiency. This premise offers short term gain in exchange for long-term pain. It also poses a false dilemma by failing to distinguish between productive and unproductive causes of delay in the permitting process. The permit process creates opportunities to eliminate, reduce, or mitigate risks. These opportunities may cause short-term …

Suffering Matters: Nepa, Animals, And The Duty To Disclose, David N. Cassuto, Tala Dibenedetto

Elisabeth Haub School of Law Faculty Publications

The National Environmental Policy Act (NEPA) requires the federal government to disclose potential environmental harms arising from agency actions. Animal suffering is an environmental harm, yet no court has ruled that its infliction triggers a reporting obligation under NEPA. This Article argues that animal suffering should be a cognizable environmental harm under NEPA, that considerations of animal suffering should factor into whether an agency must prepare an EIS--and should be discussed in the content of the EIS.

Part II of this Article introduces and explains the procedural requirements of NEPA. Part III discusses animal suffering--how it is defined, how laws …

Does Nepa Help Or Harm Esa Critical Habitat Designations? An Assessment Of Over 600 Critical Habitat Rules, John C. Ruple, Michael J. Tanana, Merrill M. Williams

Wallace Stegner Center for Land, Resources, and the Environment publications

This paper tests whether impact analysis pursuant to the National Environmental Policy Act delays federal decision making, and whether the NEPA process results in significant changes to the substance of federal decisions. We reviewed 636 rules designating critical habitat for species that are protected by the Endangered Species Act. Because of a circuit court split, some of these rules were subject to NEPA analysis while others were not. In comparing these two groups we found that rules that underwent NEPA analysis were completed more than three months faster than rules that were exempted from NEPA review. We also found that …

Emergency Exemptions From Environmental Laws, Michael B. Gerrard

Faculty Scholarship

The national response to the coronavirus crisis may face several impediments but federal and state environmental laws should not be among them. Most of these laws have emergency exemptions that allow the usual (and sometimes lengthy) procedures to be bypassed, and some substantive requirements to be waived, in instances of true urgency. However, there is concern that some agencies and corporations will use this as an excuse to bypass environmental laws that aren’t actually getting in the way of responses to the crisis.

Survey Of Greenhouse Gas Considerations In Federal Environmental Impact Statements And Environmental Assessments For Fossil Fuel-Related Projects, 2017-2018, Madeleine Siegel, Alexander Loznak

Sabin Center for Climate Change Law

Climate change is already generating enormous costs to the environment and public health both in the United States and around the world. These costs will only escalate over the time with increasing greenhouse gas (GHG) emissions. Under the National Environmental Policy Act (NEPA), U.S. federal agencies must assess the environmental effects of proposals for major federal projects, plans and programs before deciding if they should proceed. To conduct a meaningful environmental review of proposed projects, federal agencies must carefully consider how these projects contribute to climate change and greenhouse gas emissions – particularly for projects concerning fossil fuel extraction, transport, …

Patterns Of Climate Change Litigation During Trump Era, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Litigation about climate change took off in the early 2000s. Its focus has varied with the occupant of the White House. Under George W. Bush, most suits were brought by environmental groups and blue states, frustrated by the lack of federal action, seeking to push regulations or impede fossil fuel projects. Under Barack Obama, climate litigation was mostly industry and red states seeking to block regulations. And now under Donald Trump, it is largely about environmental groups and blue states trying to preserve the rules adopted under President Obama, and to seek novel remedies to get around federal hostility to …

Judicial Review For The Public Lands: Comment To Eric Biber, Shi-Ling Hsu

Scholarly Publications

No abstract provided.

Nepa, Flpma, And Impact Reduction: An Empirical Assessment Of Blm Resource Management Planning In The Mountain West, John C. Ruple, Mark Capone

Wallace Stegner Center for Land, Resources, and the Environment publications

This Article reviews Environmental Impact Statements (EIS) completed in conjunction with Resource Management Plan (RMP) revisions conducted by the Bureau of Land Management (BLM) in Colorado, Montana, Utah, and Wyoming between 2004 and 2014. Based on our review of sixteen EISs, we found that RMP revisions increased application of more protective surface use stipulations by statistically significant amounts without causing a statistically significant change in either the number of jobs created or the pace of oil and gas development. In fact, both the number of jobs created and wells drilled increased slightly despite strengthened environmental protections. We also found that …

Trust Or Bust: Complications With Tribal Trust Obligations And Environmental Sovereignty, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Downstream And Upstream Greenhouse Gas Emissions: The Proper Scope Of Nepa Review, Michael Burger, Jessica A. Wentz

Sabin Center for Climate Change Law

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 as the combustion of fossil fuels, and emissions from activities that occur “upstream” of the proposed action, such as 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 …

How Did Federal Environmental Impact Statements Address Climate Change In 2016?, Saloni Jain, Omri Klagsbald, Giovanna Leigh Crozier-Fitzgerald, Taylor Quinn, Elana Sulakshana

Sabin Center for Climate Change Law

In partnership with the Sabin Center for Climate Change Law, this project surveyed 31 federal environmental impact statements (EISs) published from September through November 2016. The objective was to evaluate how federal agencies were implementing the guidance released in August 2016 by the Council on Environmental Quality (CEQ) on how to account for climate change and greenhouse gas (GHG) emissions in the environmental review process.

Legal Pathways For A Massive Increase In Utility-Scale Renewable Generation Capacity, Michael Gerrard

Faculty Scholarship

Decarbonizing the U.S. energy system will require a program of building onshore wind, offshore wind, utility-scale solar, and associated transmission that will exceed what has been done before in the United States by many times, every year out to 2050. These facilities, together with rooftop photovoltaics and other distributed generation, are required to replace most fossil fuel generation and to help furnish the added electricity that will be needed as many uses currently employing fossil fuels (especially passenger transportation and space and water heating) are electrified. This Article, excerpted from Michael B. Gerrard & John Dernbach, eds., Legal Pathways to …

A Mitigation Based Rationale For Incorporating A Climate Change Impacts Fee Into The Federal Coal Leasing Program, Michael Burger

Sabin Center for Climate Change Law

This paper describes the legal and policy rationale for imposing a fee on federal coal that reflects the costs of the climate change impacts generated by that coal. It notes that the federal government has a duty to mitigate climate impacts from the federal coal leasing program, and that the Department of Interior (“Interior”) and the Bureau of Land Management (“BLM”) have ample authority to impose a climate change impacts fee on coal leases as a form of compensatory mitigation for those coal leases. The paper also discusses technical issues that should be considered when assessing the effectiveness of this …

Considering The Effects Of Climate Change On Natural Resources In Environmental Review And Planning Documents: Guidelines For Agencies And Practitioners, Jessica A. Wentz

Sabin Center for Climate Change Law

This paper describes how climate change will affect natural resources in the United States, and explains why consideration of how climate change will affect those resources is necessary in order to fulfill legal requirements under NEPA and other statutes governing the management of these resources. It also presents examples of how climate change has been meaningfully accounted for in environmental review and planning documents. The accompanying protocol contains guidelines for considering the impacts of climate change in environmental reviews as well as other planning documents (e.g., resource management plans and resource assessments).

Using Online Databasing To Unlock The Full Value Of Environmental Impact Assessments, Jessica A. Wentz

Sabin Center for Climate Change Law

This paper considers how a multi-disciplinary research community can build upon these efforts to further enhance online access to EIA documents and make it easier for the public to use the information contained in those documents. Part I lays the groundwork for this inquiry: it describes the types of information contained in EIA documents and the extent to which existing online databases provide an effective means of locating and searching through these documents. Part II discusses the potential applications of the information contained in these documents, and how this might inform priorities related to online database development. Part III contemplates …

Erosion-Induced Community Displacement In Newtok, Alaska And The Need To Modify Fema And Nepa To Establish A Relocation Framework For A Warming World, Ashley Rawlings

Student Works

No abstract provided.

How National Park Law Really Works, John Copeland Nagle

Journal Articles

This article provides the first explanation of the relationship between the three overlapping sources of national park law. It first explains how the Organic Act affords the National Park Service substantial discretion to manage the national parks, including deciding the proper balance between enjoyment and conservation in particular instances. It next shows how federal environmental statutes push national park management toward preservation rather than enjoyment. Third, Congress often intervenes to mandate particular management outcomes at individual parks, typically but not always toward enjoyment rather than preservation. The result is that the NPS has substantial discretion to manage national parks in …

Legal Tools For Climate Adaptation Advocacy: Nepa, Jennier Klein, Ethan Strell

Sabin Center for Climate Change Law

The National Environmental Policy Act (NEPA) was signed into law by President Richard Nixon in 1970. NEPA requires federal agencies to evaluate the environmental effects of a wide range of actions, including direct federal undertakings and projects that receive federal funding or permits. Many states have since enacted similar laws of varying scope, requiring evaluation of the environmental impacts of certain state and local actions. For instance, New York State enacted the State Environmental Quality Review Act (SEQRA) in 1975. Some municipalities, including New York City, have their own environmental review procedures.

The purpose of NEPA and similar state laws …

Draft Nepa Guidance Requires Agencies To Consider Both Ghg Emissions And The Impacts Of Climate Change On Proposed Actions, Jessica A. Wentz

Sabin Center for Climate Change Law

On December 24, 2014, the Council on Environmental Quality (CEQ) released revised draft guidance on how federal agencies should evaluate greenhouse gas (GHG) emissions and the impacts of climate change when conducting reviews under the National Environmental Policy Act (NEPA). The CEQ’s new guidance does not impose any new legal requirements on federal decision-makers, but it does clarify how federal agencies should consider the effects of GHG emissions and climate change in a manner consistent with their preexisting obligations under NEPA. It is significantly more detailed than the draft guidance released by CEQ in February 2010, and unlike its predecessor, …

Natural Resources Law, Jan G. Laitos, Sandra B. Zellmer

Sturm College of Law: Faculty Scholarship

This treatise is a thorough assessment of the important and growing field of natural resources law. It provides comprehensive coverage of the laws, policies, and decision-making processes pertinent to the "core "commodity natural resources - rangeland, timber, mineral resources, energy resources, and water. It also covers the management and protection of non-commodity resources, such as wildlife, wilderness, and other types of preservation and recreation lands. As an essential addition to any environmental, natural resources, or public lands library, the book puts natural resources law in context with a review of the National Environmental Policy Act, a history of natural resources …

Assessing The Impacts Of Climate Change On The Built Environment Under Nepa And State Eia Laws: A Survey Of Current Practices And Recommendations For Model Protocols, Jessica A. Wentz

Sabin Center for Climate Change Law

Federal agencies are beginning to incorporate descriptions of climate change impacts into environmental reviews for buildings and infrastructure, but there is no consistent methodology for evaluating these impacts and mitigating any foreseeable risks to the project or affected environment. This Article asserts that an assessment of climate-related risks and adaptation options falls within the scope of considerations that should be addressed under the National Environmental Policy Act and similar laws. It concludes with a set of recommended protocols for identifying the impacts of climate change on projects and their affected environment, evaluating physical and environmental risks, and selecting appropriate mitigation …

The National Historic Preservation Act: Preserving History, Impacting Foreign Relations?, Mark P. Nevitt

Faculty Articles

Japanese Prime Minister Shinzo Abe, the highest political leader in Japan, shook his head in disbelief. His tenure as Prime Minister had been tense, partly due to the ongoing question of a replacement airfield for the U.S. Marines in Futenma. A predecessor, Yukio Hatoyama, also suffered political fallout stemming from his reversal of a public promise to find a replacement location for the U.S. Marine Corps Air Station. Prior to the Hatoyama administration, the Japanese government had selected a new location for the Marine Air Station, a remote area far removed from the busy city of Okinawa in Henoko. Moving …

A Salmon Eye Lens On Climate Adaption, Paul S. Kibel

Publications

This Article discusses the current gap in climate adaptation law and policy, emphasizing the potential role that the National Environmental Policy Act (NEPA), Endangered Species Act (ESA) and California Environmental Quality Act (CEQA) could play in filling this gap. It focuses on the provisions in these laws that establish that agency planning and decision-making should be based on the best available science, and notes that the best available science now confirms that GHG emission-induced climate change is happening now and will continue to happen during this century. This Article posits that the most appropriate and effective way to factor expected …

Digest Of Hydraulic Fracturing Cases, Smita Walavalkar

Sabin Center for Climate Change Law

As U.S. coal exports increase and new infrastructure is proposed to improve access to markets in Asia, controversy has arisen regarding the scope of environmental review that should be carried out by government. In particular, there is significant disagreement as to whether the end-use of exported coal and the emissions generated by its combustion fall within the scope of environmental review under the National Environmental Policy Act of 1969 (NEPA). This paper considers this issue, examining the requirements of NEPA and its implementing regulations, as well as current practice by Federal agencies.

Nepa And Downstream Greenhouse Gas Emissions Of U.S. Coal Exports, Elizabeth Sheargold, Smita Walavalkar

Sabin Center for Climate Change Law

As U.S. coal exports increase and new infrastructure is proposed to improve access to markets in Asia, controversy has arisen regarding the scope of environmental review that should be carried out by government. In particular, there is significant disagreement as to whether the end-use of exported coal and the emissions generated by its combustion fall within the scope of environmental review under the National Environmental Policy Act of 1969 (NEPA). This paper considers this issue, examining the requirements of NEPA and its implementing regulations, as well as current practice by Federal agencies.

Discussion Of Climate Change-Related Water Impacts In Federal Environmental Impact Statements (Eiss), January-September 2012, Cathy Li

Sabin Center for Climate Change Law

Climate change and its predicted effect on precipitation, temperature, storm frequency and intensity, global sea levels, and numerous other factors will pose significant challenges for the maintenance and operations of built infrastructure. Climate change is predicted to exacerbate water-related issues, such as water supply shortages brought on by increasingly severe droughts and more frequent or intense flooding caused by extreme precipitation events. Executive Order 13514 and subsequent instructions from the Council on Environmental Quality (CEQ) have directed federal agencies to prepare for and adapt to the changing environment in which they will have to operate. The National Environmental Policy Act …

Federal Executive Actions To Combat Climate Change, Michael B. Gerrard

Faculty Scholarship

“I urge this Congress to pursue a bipartisan, market-based solution to climate change, like the one John McCain and Joe Lieberman worked on together a few years ago. But if Congress won’t act soon to protect future generations, I will. I will direct my cabinet to come up with executive actions we can take, now and in the future, to reduce pollution, prepare our communities for the consequences of climate change, and speed the transition to more sustainable sources of energy.”
—President Barack Obama State-of-the-Union Message Feb. 12, 2013

In the current partisan atmosphere in Washington, there appears to be …

A Tale Of Two Projects; Nepa’S Eis V. Mitigated Fonsis, K.K. Duvivier, Ian London

Sturm College of Law: Faculty Scholarship

No abstract provided.

Consideration Of Climate Change In Federal Eiss, 2009-2011, Patrick Woolsey

Sabin Center for Climate Change Law

In recent years, climate change has become an increasingly prominent subject of discussion in EISs. A comparison of agency approaches to EIS scope and methodology shows widely varying treatment of climate change impacts. Agencies differ in the methods used to calculate emissions and assess their significance. In addition, the types of indirect impacts addressed and the extent to which the impacts of climate change on the project are included vary.