Thank you for the opportunity to comment on Phase 2 of the Council on Environmental Quality’s (CEQ’s) proposed revision of its National Environmental Policy Act (NEPA) implementing regulations. My comments address the Proposed Rule’s implications for climate change policy.
The comments may be summarized as follows. NEPA was not designed to be a climate policy framework, and Congress has not amended NEPA to make it so. CEQ should delete or revise all statements in the Proposed Rule that could be construed as requiring agencies to align their NEPA proceedings with the administration’s climate policy commitments and goals, prioritize “climate effects” in project reviews, or reject proposed projects based on their greenhouse gas (GHG) emissions.
I. Key Points
- CEQ’s Proposed GHG Guidance and Proposed Rule together form a strategy to shift investment away from fossil-fuel infrastructure by ‘aligning’ project reviews with the Biden administration’s climate agenda. Congress has not authorized CEQ or any other agency to implement such a plan, which would entail a major shift in national policy. CEQ’s plan is unlawful under the Supreme Court’s major-questions doctrine.
- NEPA’s misuse as a weapon in the war on fossil fuels is not a theoretical risk but a longstanding, ongoing threat to U.S. economic development and energy security. Finalizing CEQ’s Proposed Guidance and Proposed Rule would increase and entrench that abuse of power.
- NEPA is concerned with major federal actions “significantly affecting the quality of the human environment.” The GHG emissions of even the largest infrastructure projects have no detectable climate change impacts. Thus, such impacts are not “significant” effects for NEPA purposes, and should not be used as a factor in granting or denying permits for proposed infrastructure projects.
- CEQ tries to sidestep that conclusion in two ways. First, CEQ argues that “incremental” GHG emissions are “significant” because their “cumulative effects” are “collectively significant.” That is incorrect. In climate impact assessments, it is the “aggregate” or “cumulative” emissions over long periods of time that are significant, not the incremental emissions of any individual project, which do not change the assessed impacts of the “aggregate.” Imputing “collective effects” to individual projects is useful only for political purposes such as mobilizing opposition to projects with significant economic benefits and undetectably-small climate costs.
- Second, CEQ proposes to define “significance” as a combination of “context” (which is either global, regional, or local) and “intensity” (which includes “duration”). Since project-related GHG emissions have long residence times in the global atmosphere, they are by definition “significant.” Alas, this a priori semantic determination conceals rather than reveals the nature of things. GHGs’ long residence time in the global atmosphere is the very attribute that renders the climate effects of project-specific GHG emissions undetectable, unknowable, and insignificant.
- Climate change is not a crisis. Global warming is not accelerating. The average annual number of global climate-related deaths per decade has declined by 96 percent over the past century, with individual climate-related mortality risk declining by more than 99 percent. Climate damages per exposed GDP have declined by almost fivefold since the 1980s. CEQ’s crisis narrative implicitly relies on overly sensitive climate models run with implausibly inflated emission scenarios. No bona fide emergency exists such as might justify CEQ’s overreach as a desperate measure for desperate times.
- In certain instances, CEQ’s proposals are arbitrary and capricious. CEQ ignores an important aspect of the problem when it fails to discuss the reasoning behind positions it previously took but now proposes to rescind. Indeed, on the issues of whether it is appropriate to single out a particular category of environmental effects in procedural regulations and whether project-specific GHG emissions can have “significant” effects, CEQ does not even clearly acknowledge that it is changing policy. In addition, the Proposed Rule proposes to “codify” “all or part” of the Proposed Guidance, but CEQ provides no specifics enabling the public to make informed comments on this consequential action.
II. CEQ Attempts to Align NEPA with Unenacted “Climate Change Commitments and Goals”
II.A. GHG Guidance: Agencies’ Marching Orders
The Proposed Rule is CEQ’s second major climate policy action this year. CEQ’s January 9 Proposed Guidance on greenhouse gas emissions and climate change correctly states that “Neither NEPA, the CEQ Regulations, or this guidance require the decision maker to select the alternative with the lowest net GHG emissions or climate costs or the greatest net climate benefits.” But that appears to be a plea for plausible deniability, because CEQ immediately pivots, and in the next sentence instructs agencies to prioritize climate change mitigation. CEQ states: “However, in line with the urgency of the climate crisis, agencies should use the information provided through the NEPA process to help inform decisions that align with climate change commitments and goals.”
With which “climate change commitments and goals” should agency decisions “align”? The answer is contained in similar statements on an earlier page: “CEQ encourages agencies to mitigate GHG emissions associated with their proposed actions to the greatest extent possible, consistent with national, science-based GHG reduction policies established to avoid the worst impacts of climate change.” The phrase “science-based … policies … to avoid … worst impacts” is the familiar self-description of proposals to limit global warming to 1.5°C by reducing economy-wide GHG emissions to net-zero by 2050.
Unsurprisingly, the footnote at the end of the statement just quoted takes us to the White House Fact Sheet of April 22, 2021, announcing President Biden’s Paris Agreement pledge to reduce U.S. emissions 50-52 percent below 2005 levels by 2030 “consistent with the President’s goal of achieving net-zero greenhouse gas emissions by no later than 2050.”
On the same page, the Proposed Guidance lists as one of its benefits helping agencies “meet applicable Federal, State, Tribal, regional, and local climate action goals.” The footnote at the end of that sentence states: “For example, the United States has set an economy-wide target of reducing its net GHG emissions by 50 to 52 percent below 2005 levels in 2030. See United Nations Framework Convention on Climate Change (UNFCC), U.S. Nationally Determined Contribution (Apr. 20, 2021), https://unfccc.int/NDCREG.”
Aligning NEPA with the President’s Paris pledge and NetZero target would entail a major shift in national policy. A NEPA thus aligned would preclude approval of all or nearly all projects with net-positive GHG emissions.
The Proposed Guidance implies as much in another passage. CEQ rejects the argument that individual project GHG emissions do not “significantly affect the quality of the human environment” even though the GHG emissions of the largest project “represent only a small fraction of global or domestic emissions.” According to CEQ, “such comparisons and fractions” merely restate “the nature of the climate challenge itself—the fact that diverse individual sources of emissions each make a relatively small addition to global atmospheric GHG concentrations that collectively have a large effect.” The policy implication is obvious. To mitigate “large effect,” permission to build should be denied to as many sources as possible—ideally, to all.
Neither the Proposed Guidance nor the Proposed Rule acknowledges the elephant in the room: NEPA was not designed to be a climate policy framework, and Congress has not subsequently amended NEPA to make it so. Nor has Congress amended NEPA to make the NetZero 2050 target a factor in NEPA proceedings. Far from authorizing agencies to “align” NEPA proceedings with “climate change commitments and goals,” the words “climate,” “change,” “global,” “warming,” “greenhouse,” and “carbon” do not occur in the statute.
Moreover, those words are absent not only from the original text of NEPA, but also from the text as recently amended via the Financial Responsibility Act. In short, Congress just had an opportunity to revise NEPA in light “climate change commitments and goals,” and did not do so.
No other law authorizes CEQ to invent a climate policy framework. The Paris Agreement is a treaty never submitted to the Senate for its constitutional advice and consent. No act of Congress, including the Inflation Reduction Act, makes the President’s Paris pledge the law of the land.
II.B. Proposed Rule: Agencies’ Marching Orders
Although the Proposed Rule does not use the word “align,” it gives agencies the same marching orders through emphasis, implication, and, potentially, codification.
Emphasis: Agencies are reminded that the administration has adopted a “government-wide approach to the climate crisis.” That means all agencies must do their part, and the President’s goals are continually reiterated: Cut U.S. emissions in half by 2030 and put America on the path to NetZero by 2050. Operationalizing a “government-wide” approach in the context of NEPA can mean only one thing—reject as many projects as possible that increase GHG emissions, either directly or by inducing economic growth.
Emphasis: The term “climate change” is mentioned 47 times (and “climate” in other usages an additional 17 times). “Greenhouse gas” and “GHG” are mentioned 21 times. Agencies are to use the NEPA process “to identify and assess the reasonable alternatives to proposed actions that will avoid or minimize adverse effects of these actions upon the quality of the human environment, such as alternatives that will reduce climate change-related effects or address adverse health and environmental effects that disproportionately affect communities with environmental justice concerns.” The message to agencies here is not subtle—prioritize climate change mitigation per administration policy.
Emphasis: The Proposed Rule’s emphasis on climate is itself a departure from past practice that agencies will not fail to notice. Previous CEQ procedural regulations did not elevate some environmental impacts above others. The Proposed Rule unmistakably flags climate change mitigation and environmental justice (mentioned 73 times) as top priorities in NEPA proceedings. Such unprecedented emphasis is itself a signal to prioritize climate change mitigation per administration policy.
CEQ’s January 10, 2020 proposed rule on NEPA procedural regulations provides a clear contrast to the July 31, 2023 proposed rule. While noting that CEQ would review its June 26, 2019 draft GHG guidance for consistency with the proposed rule, the January 2020 proposed rule declined to discuss how its procedural regulations would apply to climate change. The 2020 proposed rule explained: “CEQ does not consider it appropriate to address a single category of impacts in [procedural] regulations.” That is fitting and proper because NEPA itself does not prioritize particular categories of environmental impacts, much less prioritize climate impacts.
CEQ here rejects a position it took as recently as January 2020, yet makes no effort to rebut its prior reasoning. Moreover, CEQ does not even acknowledge that it is changing its understanding of the statute. CEQ’s failure to address an important aspect of the problem, namely, its prior interpretation of NEPA, is arbitrary and capricious.
Implication: Environmental impact statements (EIS) are to “include any reasonably foreseeable climate change-related effects.” Moreover, CEQ contends, individual projects have “reasonably foreseeable” and “significant” climate effects due to their “incremental” contribution to the “cumulative effects” of all GHG sources “in the aggregate.” Again, CEQ signals that decision makers should avoid approving projects that add “incremental” emissions to the “aggregate.”