What I told Congress about the unlawful plan to ‘align’ NEPA with Biden Climate Targets

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I testified today at the House Natural Resources Oversight Subcommittee hearing on “Examining Systemic Government Overreach at CEQ.” My testimony developed three main points about the Council on Environmental Quality’s (CEQ) plan to “align” the National Environmental Policy Act with Biden administration climate targets.

My first point was that the CEQ’s attempt to “align” NEPA project reviews with the administration’s climate policy agenda is unlawful under the Supreme Court’s major-questions doctrine. The proposed alignment entails a major shift in national policy. Yet it lacks anything like a clear congressional authorization. The terms “climate,” “global,” “warming,” “greenhouse,” or “carbon” occur nowhere in the Act.

CEQ’s January 2023 proposed guidance on greenhouse gas emissions concedes that NEPA does not require agencies to prioritize climate change mitigation. But then, in the same breath, CEQ gives agencies their marching orders: “in line with the urgency of the climate crisis,” agencies should use NEPA “to help inform decisions that align with climate change commitments and goals.”

Footnotes to this and similar passages reveal that agencies are to align NEPA proceedings with President Biden’s Paris Agreement pledge to reduce U.S. emissions 50-52 percent below 2005 levels by 2030 and with the NetZero 2050 target.

Someone might say “It’s just guidance, it’s not legally binding.” However, executive agencies typically follow presidential orders. Thus, when finalized, the guidance will in practice bind agency actions until it is overturned in court or repealed by a future administration.

Moreover, CEQ has big plans for its GHG guidance. In the Council’s July 2023 proposed NEPA implementing regulations, CEQ proposes “to codify the guidance in whole or part.”

Thus, both effectively and formally, CEQ aims to require agencies to vet project proposals in light of the administration’s aggressive GHG reduction targets. A NetZero-aligned permitting process would be averse to any project anticipated to increase emissions either directly or by inducing economic growth.

CEQ flouts West Virginia v. EPA (2022). Just as the EPA’s Clean Power Plan attempted without clear authorization to suppress investment in GHG-emitting powerplants, so CEQ’s proposed guidance attempts without clear authorization to suppress investment in GHG-emitting infrastructure.

No statute passed by Congress makes the president’s Paris pledge the law of the land. No statute authorizes agencies to use NetZero as a factor in permitting decisions.

My testimony’s second main point was that a NetZero-aligned NEPA process is unlawful on statutory grounds. NEPA is concerned with agency actions “significantly affecting the quality of the human environment.” It is well-known—and CEQ has acknowledged since 2010—that the GHG emissions of even the largest infrastructure project do not significantly affect the quality of the human environment.

Finally, my testimony disputed CEQ’s claim that America “faces a profound climate crisis [allowing] little time left to avoid a dangerous—potentially catastrophic—climate trajectory.” That claim conflicts with 50 years of dramatic improvements in global life expectancy, per capita income, food security, and various health-related metrics.

Of particular relevance, the global annual average number of climate-related deaths per decade has declined by 96 percent since the 1920s. Factoring in population growth, the average person’s risk of dying from extreme weather has declined by more than 99 percent.

Similarly, global weather-related losses per exposed GDP have declined nearly five-fold since the 1980s.  

In short, there is no bona fide emergency such as might seem to justify the Council’s overreach as a “desperate measure for desperate times.”