The National Environmental Policy Act (“NEPA”) requires environmental impact statements (“EIS”) for “major federal actions” “significantly affecting the quality of the human environment.” Federal actions include coal leasing decisions by federal agencies and federal permits and approvals, such as FERC approvals for gas pipeline projects and Corps of Engineers’ permits for stream crossings and fills associated with mining and construction. Federal agencies may avoid an EIS by performing a smaller scale, but still robust, “environmental assessment” or “EA” which concludes that the effects of the federal action will not be “significant.” For many years, the vague language of NEPA and the even vaguer guidance documents and rules of agencies trying to define them have allowed anti-development groups to slow down development with simple challenges to any agency which dares to conclude that the effects of a federal action are not “significant.”
NEPA, GHG and Coal Leasing
In June 2014, a federal court in Colorado ruled that federal coal leasing agencies were obligated by NEPA to disclose the direct effects (i.e., “costs”) of greenhouse gas (“GHG”) emissions (in the form of mining-induced methane emissions) as part of a leasing decision. See High Country Conservation Advocates v. USFS and Ark Land Co., No. 13-01723 (D. Colo. June 27, 2014). Likewise, the court ruled that the agencies were obligated to discuss GHG emissions from combustion of the coal subject to the leases. The court ruled that the agencies had improperly calculated the benefits of the proposed lease and planned expansion of Arch Coal’s existing West Elk Mine without calculating the costs of GHG emissions.
The agencies had quantified the likely methane emissions from the mining process, but argued that there were no tools available to calculate the climate change costs of the emissions with any accuracy. The court disagreed and noted that several federal agencies had prepared a tool for quantifying a project’s contribution to costs associated with climate change—the Interagency Working Group on Social Cost of Carbon, Technical Support Document (Feb. 2010). The agencies’ failure either to use the tool or adequately describe why it could not be used doomed the project approvals in the court’s view.
The court also rejected arguments that the effects of coal combustion could be ignored because coal from other sources, not subject to NEPA review, would replace the West Elk coal if it was not mined. The leasing agencies–the U.S. Forest Service and the Bureau of Land Management–reportedly disagreed with the ruling, but were pressured by the White House not to appeal it.
Now, the President’s Council on Environmental Quality (“CEQ”) has issued draft Guidance on how to consider the effects of GHG emissions and climate change in evaluating proposed federal actions under NEPA (issued December 18, 2014). The CEQ reportedly will accept comments for 60 days. The Guidance claims to be only that—guidance—but it will surely be “required reading” for all federal agencies and provides a road map for challenging the NEPA reviews of federal agencies that ignore it.
Agencies and project proponents seeking clarity or a checklist of how GHG emissions should be considered will be disappointed—the Guidance will likely only bewilder them. Among the statements in the Guidance are these:
Climate change is a fundamental environmental issue, and the relation of Federal actions to it falls squarely within NEPA’s focus (p. 2).
The science of climate change is evolving [but] it is now well established that rising global atmospheric GHG emissions concentrations are significantly affecting the Earth’s climate. (p. 6).
[T]he statement that emissions from a government action or approval represent only a small fraction of global emissions is more a statement about the nature of the climate change challenge, and is not an appropriate basis for deciding whether to consider climate impacts under NEPA. (p. 9).
Agencies are required to consider direct, indirect, and cumulative effects when analyzing any proposed Federal actions….” (p. 10). When assessing direct and indirect climate change effects, agencies should take account of the proposed action—including ‘connected’ actions—subject to reasonable limits based on feasibility and practicality. (p. 11).
[Nonetheless], CEQ does not expect that an EIS would be required based on cumulative impacts of GHG emissions alone. In the context of GHG emissions, there may be a concern that an EIS would be required for any emissions because of the global significance of aggregated GHG emissions. ‘Cumulative impact’ is defined in the CEQ Regulations as the ‘impact on the environment that results from the incremental impact of the action when added to other past, present, and reasonably foreseeable action regardless of what agency (Federal or non-federal) or person undertakes such actions. (p. 11).
Perhaps concerned that these statements admit of no limiting principle in describing the accumulated impacts that must be evaluated under NEPA, EPA then adds language that appears intended to provide limiting principles, but which falls short:
Consequently, agencies need to consider whether the reasonably foreseeable incremental addition of emissions from the proposed action, when added to the emissions of other relevant actions, is significant when determining whether GHG emissions are a basis for requiring preparation of an EIS. (pp. 11-12).
Later, the CEQ dangles hope for agencies seeking to avoid the use of supercomputers and climate models for evaluating the effects of GHG emissions when it discusses what are the reasonably foreseeable effects of the proposed federal action: “[a]gencies can rely on basic NEPA principles to determine and explain reasonable temporal and spatial parameters of their analysis to disclose the reasonably foreseeable effects that may result from their proposed actions,” but then does little to explain what these “basic NEPA principles” are. Indeed, in the example that follows, the CEQ provides little reasonable restraint on the scope of a hypothetical evaluation of a proposed “open pit mine,” stating that the review might include the GHG effect of land clearing all the way to coal combustion:
For example, a particular NEPA analysis for a proposed open pit mine could include the reasonably foreseeable effects of various components of the mining process, such as clearing land for the extraction, building access roads, transporting the extracted resource, refining or processing the resource, and using the resource. Depending on the relationship between any of the discrete elements in the process, as well as the authority under which such elements may be carried out, the analytical scope that best informs decision-making may be to treat these elements as the direct and indirect effects of phases of a single proposed action. (p. 12).
Agencies should be guided by a ‘rule of reason’ in ensuring that the level of effort expended in analyzing GHG emissions or climate change effects is reasonably proportionate to the importance of climate change related considerations to the agency action being evaluated.”(p. 14)
Huh? Then, though, the agency suggests a threshold below which GHG qualification might be unreasonable:
Providing a detailed quantitative analysis of emissions regardless of the quantity of emissions is not in keeping with the rule of reason or the concept of proportionality. In considering when to disclose projected GHG emissions, CEQ is providing a reference point of 25,000 metric tons of CO2 equivalents on an annual basis below which a GHG emissions quantitative analysis is not warranted unless quantification below that reference point is easily accomplished. (p. 18).
While the new policy and rulings like that of the Colorado court decision create more potential roadblocks for fossil fuel projects subject to NEPA, it is not clear what impact they will have on eastern coal mining. The entirety of a gas pipeline or a western coal mine may be subject to NEPA review because of the nature and extent of the “federal action” involved. For pipelines, FERC authority extends to the entire pipeline. In many western coal mining scenarios, the coal itself is owned by the federal government, and decisions to allow mining extend to the entirety of the mine process. In the east, however, the only NEPA “trigger” for coal mines usually is the Clean Water Act § 404 permit issued by the U.S. Army Corps of Engineers. Courts have already ruled that the scope of the Corps’ NEPA review over coal mines may properly be restricted to the impacts of the “fill” itself and need not include the impacts of the entire mine. See Kentuckians for the Commonwealth v. USACOE, No. 13-6153 (6th Cir. March 7, 2014); OVEC v. Aracoma Coal Co., 556 F.3d 117 (4th Cir. 2009).
An index to the draft policy appears below:
I. Introduction (pp. 1-4)
II. Background (p. 5)
A. NEPA Fundamentals (pp. 5-6)
B. Climate Change (pp. 6-8)
III. Considering the Effects of GHG Emissions and Climate Change (p. 8)
A. Considering the Impacts of the Proposed Action (pp. 8-14)
B. Emissions Analyses (pp. 14-16)
C. Special Considerations for Biogenic Sources of GHG Emissions from Land Management Actions (pp. 16-18)
D. GHG Emissions that Warrant Qualitative Disclosure (pp. 18-19)
E. Alternatives (pp. 19-20)
F. Mitigation (pp. 20-21)
IV. Considering the Effects of Climate Change on the Environmental Consequences of a Proposed Action
V. Traditional NEPA Tools (p. 25)
A. Scoping and Framing the NEPA Review (pp. 25-26)
B. Incorporation by Reference (pp. 26-28)
C. Using Available Information (pp. 28-29)
D. Programmatic – Broad Based – NEPA Reviews (pp. 29-30)
VI. Conclusion and Effective Date (pp. 30-31)
This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on Mr. McLusky, click here.