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Free-Market Groups Urge Reform of National Environmental Policy Act

The Competitive Enterprise Institute (CEI) and five other free market groups submitted comments on the White House Council on Environmental Quality’s (CEQ) Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions (Draft NEPA Guidance). Joined by Americans for Limited Government, the Rio Grande Foundation, the Independence Institute, the Center of the American Experiment, and Citizens Against Government Waste, CEI’s comments find that although the Draft NEPA Guidance is an “incremental improvement” over the 2016 Obama CEQ Guidance, it fails to articulate why NEPA is fundamentally ill-suited to climate-related policy goals.

The Draft NEPA guidance stems from a March 28, 2017 Executive Order requiring CEQ and other executive agencies to “review existing regulations that potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources.” Unfortunately, the Draft NEPA Guidance, while stating more bluntly, or spotlighting, certain caveats or limitations acknowledged in the Obama CEQ Guidance, still allows for extensive consideration of climate impacts and is unlikely to appreciably reduce the delays and litigation surrounding fossil energy-related projects. 

The comments also point out that NEPA proceedings apply to individual projects, which do not generate enough emissions to have any detectable effect on climate change. This is a critical point. The Obama CEQ struggled for years to explain how analysis of a project’s greenhouse gas emissions could be “meaningful” even though no project’s emissions are large enough to be climatically “significant.” It eventually gave up trying.

Perhaps the most disappointing thing about the Draft NEPA Guidance is that it does not develop its most valuable points in any detail. At least five such points bear on the larger issue of whether NEPA is an appropriate framework for addressing climate change. Here I will quote from the Draft Guidance and then comment on their unstated implications.

(1) NEPA analyses should not consider environmental consequences that are “remote or speculative.” Comment: Projections of climate change impacts in 2050 and beyond are remote and speculative. Moreover, such projections often derive from overheated models run with inflated emission scenarios under unreasonably pessimistic assumptions about human adaptive capability.

(2) Impacts should be discussed “in proportion to their significance.” Comment: Agencies should devote little or no time analyzing project-related greenhouse gas emissions, given the insignificance and, indeed, unknowability of the associated climate impacts.

(3) There must be a “close causal connection” between a proposed agency action and an environmental effect to merit analysis under NEPA. Comment: There is no discernible causal connection between approving an individual project and climate change effects.

(4) Agencies should not quantify a proposed action’s greenhouse gas emissions when those are not “substantial enough to warrant quantification.” Comment: No project’s emissions are “substantial enough” to produce identifiable climate change effects. Accordingly, such emissions are too small to warrant quantification.

(5) Because “the potential effects of GHG emissions are inherently a global cumulative effect,” no individual project measurably increases cumulative impact; hence a “separate cumulative effects analysis is not required.” Comment: What makes emissions climatically significant is their “cumulative impact.” Because no individual project measurably increases cumulative impact, a separate analysis of the project’s individual emissions should not be required.

CEQ should have elucidated those implications and invited comment on them.

Our comment letter concludes:

Mitigating climate change one project at a time is a fool’s errand akin to draining a swimming pool one thimbleful at a time. Worse, the economic losses from blocking particular projects based on greenhouse gas considerations are bound to vastly exceed the speculative climate benefits. … Congress did not direct CEQ to make climate policy, and NEPA review is unsuited for addressing climate change concerns. Accordingly, project-related GHG emissions should not be a factor determining whether agencies approve or reject project proposals.