In recent comments to the White House Council on Environmental Quality (CEQ), 24 state attorneys general led by Iowa AG Breanna Bird warn that CEQ’s July 31 Proposed Rule to revise National Environmental Policy Act (NEPA) implementing regulations would unlawfully “turn an informational, procedural, outcome-neutral statute into a transformative tool to shape our economy and society to the Administration’s chosen policy goals.”
Comments I submitted to CEQ make that same overarching point. The Proposed Rule is designed to advance the Biden administration’s “whole-of-government approach to the climate crisis.” Like the AGs, I politely advised CEQ to cease and desist.
NEPA, enacted on January 1, 1970, requires federal agencies to take a “hard look” at the potential environmental consequences of proposed actions, such as granting permits to build highways, bridges, pipelines, airports, dams, and other critical infrastructure. However, NEPA does not require permitting agencies to subordinate economic to environmental considerations. Nor does it require agencies to prioritize climate change mitigation. Indeed, the words “climate,” “change,” “global,” “warming,” “greenhouse,” and “carbon” occur nowhere in the Act.
And there’s the rub. In the Proposed Rule, CEQ proposes to “codify” and “incorporate” into the final rule “all or part” of its January 2023 Proposed Guidance on greenhouse gases and climate change. That document “encourages” (i.e. directs) agencies to “align” NEPA project reviews with “climate change commitments and goals.” Which commitments and goals? President Biden’s pledge under the Paris Climate Treaty to cut US greenhouse gas (GHG) emissions in half by 2030, and his goal of achieving net-zero emissions by 2050.
Although the Proposed Rule does not use the word “align,” it conveys the same marching orders to agencies as the Proposed Guidance. There is the gratuitous reminder of the President’s “whole-of-government” climate agenda, the unprecedented and heavy emphasis in an ostensibly procedural rulemaking on a single category of environmental impacts (i.e. “climate-related”), and the hints that permitting agencies should strive to select the “environmentally preferable alternative,” especially with regard to climate change and “environmental justice.”
CEQ flouts Supreme Court’s major-questions doctrine
A NEPA aligned with the net-zero agenda would have the potential to block or redirect tens to hundreds of billions of dollars in annual infrastructure investment and override states’ economic development priorities. It would entail a major change in national policy. All based on an unheralded power in a long-extant statute, and with no clear congressional authorization. Consequently, CEQ’s proposals are unlawful under the Supreme Court’s major-questions doctrine ruling in West Virginia v. EPA (2022).
For those who may be unfamiliar with the topic, the major-questions doctrine is a constitutional jurisprudence of political accountability. It seeks to ensure that elected officials, who alone are accountable to the people at the ballot box, decide major questions of public policy. Further, the doctrine responds to “a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”
In West Virginia, the Court vacated the Environmental Protection Agency’s so-called Clean Power Plan because the EPA presumed, with no clear statutory authorization, to make a Congress-level “policy judgment” for the nation, namely, that “it would be ‘best’ if coal made up a much smaller share of national electricity generation.” The same unauthorized policy judgment underpins CEQ’s proposals—that it would be best if carbon-intensive assets made up a much smaller share of national infrastructure.
Read the full article on Real Clear Energy.