May 01, 2012

Greenhouse gas litigation and NEPA: A split in the courts

Jeff Thaler

The National Environmental Policy Act (NEPA) and its fifteen state counterparts are increasingly involved in climate change litigation. This article will summarize how federal and state courts have wrestled, often inconsistently, with review of a particular project’s impacts upon climate change. In the absence of a national consensus on how to regulate greenhouse gas (GHG) emissions, there likely will be more divergent rulings and litigation challenges to come.

Federal decisions

Climate change litigation under NEPA began more than twenty years ago when the D.C. Circuit held that an agency’s decision to conduct only an Environmental Assessment (EA), but not a full Environmental Impact Statement (EIS), to address global warming impacts was not arbitrary and capricious. City of Los Angeles v. Nat’l Highway Traffic Safety Admin., 912 F.2d 478 (D.C. Cir. 1990). Since then, circuit courts have split regarding how to assess GHGs in NEPA analyses.

For example, in Center for Biological Diversity v. National Highway Traffic Safety Administration, 538 F.3d 1172 (9th Cir. 2008)(NHTSA), the Ninth Circuit held that federal agencies must evaluate climate change impacts under NEPA, stating that “the impact of greenhouse gas emissions on climate change is precisely the kind of cumulative impact analysis that NEPA requires agencies to conduct.” Thus, the court ordered the National Highway Traffic Safety Administration to evaluate the incremental impact of GHG emissions from light trucks on climate change. In doing so, the court rejected the argument that climate change is largely a global phenomenon, and remanded to the agency to ultimately determine whether the project’s GHGs would be sufficiently significant to require a full EIS.

Other courts have similarly found that NEPA documents must analyze the impacts of GHG emissions. The Eighth Circuit, in Mid States Coalition for Progress v. Surface Transportation Board, 345 F.3d 520 (8th Cir. 2003), held that increased coal consumption from construction of new and upgraded railroad lines to transport coal from Wyoming to Midwestern power plants required consideration of GHG emissions. Following supplementation of the EIS, the court found it sufficient. Mayo Found. v. Surface Transp. Bd., 472 F.3d 545 (8th Cir. 2006). The court in Border Power Working Group v. Department of Energy, 260 F. Supp. 2d 997 (S.D. Cal. 2003) vacated an EA that failed to assess GHG emissions associated with a proposal to connect the Southern California power grid to two Mexican coal-fired power plants. Subsequently, the court approved an EIS that determined the project would have a less than significant impact on climate change because it would only increase global GHGs by 0.088 percent and U.S. emissions by 0.023 percent. 467 F. Supp. 2d 1040 (S.D. Cal. 2006).

But three years after its NHTSA decision, the Ninth Circuit, in Barnes v. U.S. Department of Transportation, 655 F.3d 1124, 1139 (9th Cir. 2011), upheld the determination that an EIS was not necessary for the proposed construction of an airport runway. The court found that GHGs are a global problem and therefore the agency’s discussion of GHG emissions from the runway’s construction by using percentages and comparing this percentage to all U.S. emissions was adequate. The EA found that GHG emissions associated with the airport’s existing and future aviation activity were expected to be less than 0.03 percent of U.S.-based GHGs, and therefore “this percentage does not translate into locally-quantifiable environmental impacts given the global nature of climate change.”

Similarly, in Senville v. Peters, 327 F. Supp. 2d 335 (D. Vt. 2004), the court upheld the adequacy of an EIS for a 15.8-mile highway project, concluding that it would not change overall GHG emissions because congested vehicle miles traveled would not change. And in Hillsdale Environmental Loss Prevention, Inc. v. U.S. Army Corps of Engineers, No. 10-2008-CM-DJW, 2011 WL2579799 (D. Kan. 2011), the court upheld the agency’s decision not to quantify GHG emissions from a proposed intermodal rail facility, holding that that such quantification was unnecessary because the EPA had not yet determined whether such GHGs should be regulated and that there is no certain method to quantify estimates of such emissions.

State decisions

California has the most litigation concerning assessment of climate change impacts under its Environmental Quality Act (CEQA), particularly given the California Global Warming Solutions Act of 2006 (AB32). After initial litigation and uncertainty, subsequent legislation and issuance of amendments to the CEQA Guidelines for analyzing GHG emissions have made clear that climate change impacts are subject to CEQA analysis. 14 Cal. Code Regs. 21083.05 (SB97) and 15000–15387 (CEQA Guidelines). But considerable uncertainty remains over how to conduct the required analysis.

For example, the First District Court of Appeal decision, Communities for a Better Environment v. City of Richmond, 184 Cal. App. 4th 70 (1st Dist. 2010), criticized the complete omission of an environmental impact analysis and evaluation of possible mitigation measures for the “estimated new emissions of 898,000 metric tons per year of GHGs” associated with proposed changes at the Chevron oil refinery. The City of Richmond (City), after initially saying a significance determination would be too speculative, belatedly made a significance determination but then, said the court, failed to devise a proper mitigation plan. Even though the City said that GHG scientific information was constantly expanding during the review process and therefore a mitigation plan could not be devised until after project approval, the First District Court of Appeal rejected this approach, holding that despite the “ever-changing nature of this complex scientific field,” the “difficulties caused by evolving technologies and scientific protocols do not justify a lead agency’s failure to meet its responsibilities under CEQA by not even attempting to formulate a legally adequate mitigation plan.” Remanding to the City, the court ordered that the revised “EIR [Environmental Impact Report] should take advantage of any pertinent new information in analyzing the project’s potential greenhouse gas emissions and their cumulative impact on climate change, as well as defining legally adequate mitigation measures to avoid those impacts.”

In 2011 the Fourth District Court of Appeal twice upheld municipal discretion concerning when and how to analyze GHG issues. In Citizens for Responsible Equitable Environmental Development (CREED) v. City of San Diego, 196 Cal. App. 4th 515 (2011), the court rejected plaintiff’s demand for a supplemental EIR by holding that when the initial EIR was approved in 1994, information on the effect of GHG emissions on climate was well-known. Four weeks later, in Citizens for Responsible Equitable Environmental Development v. City of Chula Vista, 197 Cal. App. 4th 327 (2011), involving a shopping center’s demolition and construction of a Target store, the court tackled as first impression significance thresholds for GHG emissions. Relying upon the 2010 Guideline Amendments, the court said GHG impacts must consider: (1) How much the project may increase or reduce GHG emissions compared to the existing environmental setting; (2) whether project emissions exceed a threshold of significance that the lead agency determines applies; and (3) how much the project complies with regulations or requirements implementing a statewide, regional, or local plan for GHG reduction or mitigation. § 15064.4(b)(1-3). The City of Chula Vista had thus properly used AB 32 for its significance threshold, ruled the court. On October 19, 2011, the California Supreme Court denied the petition for review.

More recently, the Second District Court of Appeal, in Natural Resources Defense Council, Inc. v. California Department of Transportation, Region Seven, 2011 Cal. App. Unpub. LEXIS 8987 (Nov. 22, 2011) (unpublished), upheld the approval of a new diesel truck expressway against arguments that the agency inadequately assessed GHG emission and climate change impacts associated with truck emissions. Appellants argued that the agency must use quantitative, not qualitative, analyses; the court disagreed, noting the absence of regulatory guidance to support a particular quantitative analytical approach to GHG emission levels at the project level, and stating: “No federal, state or regional regulatory agency has provided methodology or criteria for GHG emissions and climate change impact analysis. Therefore, Caltrans is unable to provide a scientific or regulatory-based conclusion regarding whether the project’s contribution to climate change is cumulatively considerable.” Indeed, the final EIR concluded that because high CO2 levels from mobile sources occur at stop-and-go speeds (0 to 25 mi/h), by relieving congestion and improving travel times and high congestion travel corridors, the agency qualitatively projected a net decrease in GHG emissions from reduced congestion.

Switching states, the trial court in Minnesota Center for Environmental Advocacy v. Holsten, No. 31-CV-07-3338 (Minn. 9th Jud. Dist., filed Oct. 15, 2008) considered a challenge to a proposed steel manufacturing plant and related mine. The court, refusing to apply the Minnesota Environmental Policy Act to impacts on climate change, ruled there was no evidence in the record that the project would have a significant cumulative impact on global climate change, stating: “. . . because the cause and effects of global climate change are both global in scope any measurement of the impact of a project, or group of projects, must be measured globally as well. On a global scale, the cumulative impact upon global climate change of this project and other projects within the state appears to be relatively insignificant.” The court also rejected an attack on the environmental modeling for climate change impacts, writing that “the predicted effects of global climate change are indefinite and encompass a broad range of outcomes.” Thus, the court based its decision upon the “glaring gaps between the current status of the law and the scientifically established connection between greenhouse gas emissions… and global climate change.” The Minnesota Court of Appeals affirmed in an unpublished opinion (September 22, 2009).

An uncertain litigation future

Agencies and developers involved in projects that could create new GHG emissions will continue to face disparate treatment on when and how to evaluate such impacts in their environmental review documents. Outside of California, courts seem reluctant to join the legal and public policy debates over the linkage between a project’s GHG emissions and global climate change. There is no single answer to the fundamental question of when does a particular project’s GHG emissions rise to a level of a significant impact upon the environment sufficient to trigger full EIS as well as mitigation measures. Absent either comprehensive federal regulation of GHGs or a clear decision from the U.S. Supreme Court on how NEPA is to be applied to climate change and GHGs, there will likely be more litigation challenges to projects at the state and federal levels. It is equally likely that there will be more divergent court rulings on how to assess an individual project’s role in impacting climate change on a regional, national, or global level.

Jeff Thaler

Jeff Thaler is the University of Maine Visiting Professor of Energy Policy, Law & Ethics, and its Assistant University Counsel.