The National Environmental Policy Act (NEPA) has recently been in the news as it relates to climate change, as reports surfaced that the administration is finalizing long-awaited NEPA climate change guidance (you can find the draft guidance here), outraging Senate Republicans who fear the guidance is an attempt to regulate greenhouse gases.
NEPA is exactly the right context for federal agencies to be analyzing how their proposed actions affect and are affected by climate change. Federal actions, both directly and indirectly, can and do lead to the release of greenhouse gases. In addition – and importantly, since this seems to be missing from most of the debate surrounding NEPA and climate change – federal actions and projects permitted by federal agencies can be greatly affected by climate change, and affect the surrounding environment in combination with climate change. These effects need to be understood to make sound decisions and investments of federal tax dollars.
Contrary to the fears of NEPA as a regulatory force, NEPA’s purpose is not to force and prevent a particular action or outcome. Rather, its purpose is to “insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken” and “to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.” As a result of agencies taking a “hard look at the environmental consequences” of their proposed actions, they can develop appropriate alternatives and mitigation measures to reduce impacts on the environment. NEPA is a critical planning tool to improve agency decision making.
The Obama administration issued draft guidance to federal agencies in 2010 on “Consideration of the Effects of Climate Change and Greenhouse Gas Emissions” under NEPA. The draft guidance lacked clarity on accounting for emissions and for understanding climate change impacts on projects and the affected environment, and it excluded federal land management decisions from the guidance altogether – a glaring omission given how sensitive land management and related natural resources are to climate change impacts. It is the finalization of this guidance that is garnering recent attention.
To assist the administration in addressing these climate impacts in the implementation of NEPA, Defenders of Wildlife recently sent a letter to the White House Council on Environmental Quality (CEQ), which is the lead office in charge of NEPA. In our letter we recommend the final guidance address the following issues:
- Purpose and Need: the purpose and need (See NEPA implementing regulations at 40 CFR §1502.13), which should be examined to determine if they are robust in a changing climate. For instance, a project designed to protect a coastal community from storm surge will not be responding to the right “need” if it only accounts for historic sea and surge levels.
- Environmental assessments and Findings of No Significant Impacts: Determining “significance” is a critical component of NEPA analysis, and requires agencies to look at cumulative impacts. Guidance needs to be provided for understanding how to integrate climate change impacts into cumulative impacts analysis.
- Analysis timeframe and geographic scope: The timeframe of analysis is relevant to how far into the future to analyze “reasonably foreseeable future actions” under Cumulative Impacts (§1508.7) and definition of “Significance,” which explicitly includes both long and short term effects (§1508.27). The analysis timeframe should be long enough to cover the period over which the project will potentially be affected by and interact with climate change effects. Similarly, the geographic scope of the analysis, as referred to under Affected Environment (§1502.45) and Context (§1508.27), should be large enough to account for potential range shifts in affected species and habitats, potential changes throughout an entire watershed, and similar landscape level effects that would affect the project and project impacts.
- Alternatives: As part of the process of development of alternatives to the proposed action (§1502.14), the agency should consider whether climate change may impact the ability of each alternative to meet the purpose and need. This should include an assessment of the vulnerability of the various project alternatives to relevant climate change impacts. Where possible, agencies should incorporate into alternatives design elements that reduce the likelihood or severity of climate change impacts. Alternatives that fail to meet the purpose and need due to projected future climate change effects should be eliminated, and this should be noted in the discussion.
- Affected Environment: As part of the EIS process, the agency discusses the Affected Environment (§1502.15), laying out which aspects of the natural environment (water, air, biodiversity, soils, aesthetics), built environment, human health, and sustainability of resources might be affected by the alternatives. As this section is the basis for comparisons of environmental consequences, it is critical that this section cover the full range of elements that could face effects, including cumulative effects from climate change. The agency should ensure that the environmental resources being considered includes the full suite of elements that could face effects from the project, and integrate climate change threats into the discussion of each element. Climate change is expected to worsen over time, and these changing effects on ecosystems should be incorporated into the Affected Environment and no action alternative sections of an EIS.
- Environmental Consequences: At the heart of the analyses in an environmental impact statement is the Environmental Consequences section (§1502.16), which compares “The environmental effects of alternatives, including the proposed action” (§1502.16d) on various elements of the affected environment that were defined previously. Full incorporation of climate change into this analysis is warranted by the fact that the effects of climate change constitute a cumulative impact of “past, present, and reasonably foreseeable future actions” (§1508.7) that release greenhouse gases. We recommend that guidance should be provided that requires each EIS, in its analysis of the alternatives’ impacts on each aspect of the affected environment, include a discussion of the effects to that resource from climate change, and the extent to which the impacts of the alternative will be exacerbated by climate change impacts, and its interaction with other threats, stressors, and cumulative impacts.
- Mitigation: Mitigation as defined by NEPA, includes actions to avoid impacts; minimize impacts; rectify impacts; reduce or eliminate impacts; and compensate for impacts (§1508.20). The draft guidance broadly states that both emissions reductions and adaptive responses are included here, but provides very little detail as to how to proceed: “The agency should identity alternative actions that are both adapted to anticipated climate change impacts and mitigate the GHG emissions that cause climate change.” More guidance should be provided to agencies, particularly outlining steps agencies can take to reduce the combined effects of the proposed action and climate impacts on the affected environment.
- Monitoring: An important aspect of successful mitigation is a monitoring strategy to ensure the effectiveness of mitigation measures (§1505.2c). We recommend that the guidance should be strengthened to stipulate that the monitoring plan should be implemented (not just considered), and should focus on indicators relevant to both the implementation of adaptation strategies and the effects of climate change and other threats. Monitoring is particularly critical where uncertainties regarding climate change impacts or interacting effects have been identified. This plan should articulate steps to ensure the effectiveness of mitigation strategies, and a means of identifying and addressing problems that are identified through monitoring.
Climate change is already impacting federal actions across the country and across agencies, not to mention wildlife and ecosystems. Integrating climate change analysis into federal agency NEPA analysis and decision making is one of the most important steps the federal government can take to account for its contribution to global warming, and importantly, to account for and mitigate the effects of climate change on agency actions and the environment. The administration needs to take the bold step of finalizing its guidance to agencies for accomplishing this. The sooner guidance is issued, the sooner the federal government can help the nation become better prepared to address climate impacts.