NEPA Is Not a Climate Policy Framework. CEI Submits Comments on Biden Proposal

CEI submitted comments yesterday opposing the Council on Environmental Quality’s (CEQ) proposal to repeal regulations adopted by the Trump CEQ in July 2020 to expedite project reviews and permitting under the National Environmental Policy Act (NEPA). The Trump era regulations potentially limited NEPA’s misuse as a pretext for mobilizing federal agency and stakeholder opposition to fossil-fuel infrastructure.

The core of our argument is simple. NEPA, the nation’s foundational environmental statute enacted in 1970, requires agencies to evaluate the environmental consequences of major federal actions that may “significantly affect [] the human environment.” Even the greenhouse gas (GHG) emissions of the largest projects have no discernible, traceable, or verifiable impacts on the human environment.

Consider the Keystone XL Pipeline, perhaps the largest infrastructure project to receive NEPA scrutiny for greenhouse gases. Even under the unrealistic assumptions that the KXL runs near full capacity (800,000 barrels per day) year-round and each barrel is additional oil produced solely to meet demand induced by the pipeline, the project would add less than 0.01°C of warming to global temperatures between now and 2100. That is well below the 0.08°C margin of error for estimating average annual global temperature.

The pipeline’s vanishingly small and unverifiable contribution to global warming in 2100 would have no discernible impact on weather patterns, crop yields, polar bear populations, or any other environmental condition people care about.

In contrast, President Biden’s Inauguration Day cancellation of the KXL conspicuously killed thousands of well-paying construction jobs. The economic losses from blocking individual projects based on greenhouse gas considerations are bound to vastly exceed the speculative climate benefits.

The rejoinder, conveniently furnished by the Obama CEQ’s 2016 Guidance on NEPA Consideration of Greenhouse Gases and Climate Change Effects, is that although “individual sources of emissions each make relatively small additions to global atmospheric GHG concentrations,” the myriad diverse sources “collectively have large impact.” The political implication is obvious: To mitigate “large impact,” permission should be denied to as many sources as possible—ideally to all.

Any such policy should be rejected for three reasons. First, it would entail enormous economic losses and suffering. Second, it would be counterproductive. Over the past 100 years, the annual global death toll from climate-related disasters declined by nearly 99 percent. That stunning achievement would not have been possible without plentiful supplies of affordable fossil-fuel energy. Third, NEPA was never designed to be a climate policy framework, and Congress did not subsequently revise the statute to make it so.

Our commens advise CEQ not to encourage agencies to do piecemeal what they clearly lack the authority to do at the pace and scale demanded by climate campaigners. Those who want to make climate policy should propose legislation specifically addressing the subject rather than attempt to reinterpret a 50-year old statue never intended and completely inappropriate for the purpose.