Comments to the Council on Environmental Quality, Proposed Guidance on Consideration of Greenhouse Gases and Climate Change

Thank you for the opportunity to comment on the Council on Environmental Quality’s (CEQ) National Environmental Policy Act (NEPA) guidance on consideration greenhouse gas (GHG) emissions and climate change.[1] CEQ should withdraw the guidance, which would require agencies to use NEPA as a climate policy framework—a purpose for which it was not designed and which Congress has not subsequently authorized.

CEQ clearly seeks to use NEPA proceedings to advance President Biden’s climate policy agenda. The whole point of requiring agencies to review project-level GHG emissions is to encourage agencies to grant or deny permit applications based on the project’s carbon-intensity, impact on U.S. emissions, or alignment with administration policy. For example, the proposal states:

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.[2] 

The footnote at the end of that sentence references the April 22, 2021 White House Fact Sheet setting forth President Biden’s Paris Agreement pledge to reduce U.S. emissions 50-52 percent below 2005 levels by 2030. The same document reaffirms the President’s goal of achieving economy-wide net-zero emissions by 2050.[3]

Note also that “science-based GHG reduction policies established to avoid the worst impacts of climate change” is code for the Net Zero agenda—the degree of global emissions reduction the world must achieve by 2050 to keep global warming under 1.5°C by 2100, according to the Intergovernmental Panel on Climate Change (IPCC).[4]

A bit later on the same page, CEQ suggests that by promoting “Accurate and clear climate change analysis,” the guidance “Enables agencies to make informed decisions to help meet applicable Federal, State, Tribal, regional, and local climate action goals.”[5] 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.”

CEQ misses an important point. The President’s pledges under the Paris Agreement, a treaty never submitted to the Senate for its constitutional advice and consent, do not enlarge or modify any federal agency’s regulatory authority. No statute passed by Congress, including the Inflation Reduction Act, makes the President’s Paris pledges the law of the land. None authorizes agencies to modify permitting decisions under their respective statutes to advance the NetZero agenda.

In West Virginia v. EPA, the Supreme Court struck down the Environmental Protection Agency’s (EPA’s) Clean Power Plan because it flouted the “major questions doctrine.” According to that doctrine, courts should be skeptical, not deferential, when an agency purports to find in a long-extant statute an unheralded power to regulate a significant portion of the economy without a clear statement of congressional intent to delegate such authority.[6]

NEPA, the nation’s foundational environmental statute, is about as long-extant as it gets. Claims that NEPA proceedings should suppress investment in fossil fuel infrastructure are of recent vintage, and cannot be squared with public convenience and necessity determinations under the Natural Gas Act (NGA). The NGA directs the Federal Energy Regulatory Commission (FERC) to follow NEPA when reviewing proposed natural gas infrastructure projects. Using NEPA to impose GHG-reduction requirements that deter investment in natural gas infrastructure would conflict with the NGA’s “principal purpose,” which is to “encourage the orderly development of plentiful supplies of electricity and natural gas at reasonable prices.”[7]

Far from NEPA containing a clear statement authorizing its use to make climate policy, the words “climate,” “carbon,” “greenhouse,” “global,” and “warming” do not occur in the statute.

More fundamentally, NEPA is centrally concerned with “major” federal actions “significantly affecting the quality of the human environment.”[8] The GHG emissions of even the largest infrastructure project have no discernible, traceable, or verifiable impacts on the quality of the human environment. Project-related GHG emissions are not “significant” environmental effects for NEPA purposes. Consequently, NEPA does not authorize CEQ or any other agency to use a project’s GHG emissions as a factor determining its approval or rejection.  

The rest of my comments address CEQ’s climate policy rationales and assumptions. There will be some overlap with the legal commentary presented above. Herewith a brief summary.

• CEQ’s central rationale for directing agencies to consider GHG emissions in NEPA proceedings is the opinion that America faces a “profound climate crisis” demanding urgent corrective action. That opinion conflicts with ongoing long-term improvements in global life expectancy, per capita income, and health; dramatic declines in climate-related mortality; and substantial declines in the relative economic impact of damaging weather. It also ignores the immense agricultural and ecological benefits of rising carbon dioxide concentration.
• The “science” underpinning the crisis narrative is a doubly-biased methodology in which overheated models are run with inflated emission scenarios. Absent those biases, climate change assessments would project less warming, smaller climate impacts, and lower tipping point risks.
• Project-related emissions are climatically inconsequential and therefore an inappropriate focus for NEPA review, which by statute addresses federal actions “significantly affecting the quality of the human environment.”
• Not even a change in permitting policy, such as blocking all gas pipelines due to their GHG emissions, would have detectable impacts on global temperatures or other climate-related metrics.
• CEQ draws the wrong lesson from the “nature of the climate challenge.” According to CEQ, the “relatively small additions” from numerous GHG emitters “collectively have a large effect.” Therefore, CEQ reasons, it must require all project applicants to monitor and mitigate such emissions. The real lesson is different. Trying to solve the “climate challenge” one project at a time is a fool’s errand—like trying to drain a swimming pool one thimbleful at a time.[*]

• CEQ’s formulation has a mischievous implication. If “large impact” comes from myriad sources, permission to build GHG-emitting infrastructure should be denied to as many projects as possible—ideally to all.  
• The chief problem with that policy—aside from the enormous economic losses it would entail—is that Congress has not authorized it. CEQ should take great care not to encourage agencies to do piecemeal what they clearly lack authority to do at the pace and scale dictated by the NetZero agenda.
• Contrary to CEQ, environmental equity is not a valid reason to apply NEPA to project-level GHG emissions. Anti-growth climate policies pose greater threats to the well-being of poor and minority communities than climate change does.
• Contrary to CEQ, the social cost of greenhouse gases is not an appropriate “context” for calculating the net benefits of NEPA-based GHG reductions. The climate change mitigation achieved by such reductions is too small to be detected or experienced. Such effects are “benefits” in name only. As such, they should not be weighed in the same scales with multi-billion-dollar compliance costs that verifiably impose measurable burdens on identifiable people and businesses.    

CEQ’s Climate Policy Rationales and Assumptions

Unscientific “Climate Crisis” Rationale

The Improving State of the Planet

CEQ’s core rationale for requiring agencies to consider GHG emissions in NEPA proceedings is the opinion that America faces a “profound climate crisis” demanding urgent corrective action. As a matter of law, the climate crisis, even if it exists, cannot authorize NEPA’s use for purposes not authorized by Congress. That said, let’s now examine CEQ’s policy rationales. The proposal’s substantive argument begins:

The United States faces a profound climate crisis and there is little time left to avoid a dangerous—potentially catastrophic—climate trajectory.[9]

That assessment is incorrect. If climate change were a global ecological and economic crisis, we would expect to find evidence of declining health, welfare, and environmental quality over the past 50 years. Instead, we find dramatic improvements in global life expectancy,[10] per capita income,[11] food security,[12] crop yields,[13] and various health-related metrics.[14] Disease mortality rates increased after January 2020 but that was due to the COVID-19 pandemic,[15] not climate change.

Increasing Climate Safety

Of particular relevance, the annual number of climate-related deaths per decade has declined by 96 percent since the 1920s.[16] This spectacular decrease in aggregate climate-related mortality occurred despite a fourfold increase in global population. That means the individual risk of dying from extreme weather events declined by 99.4 percent over the past 100 years.[17] Far from being an impediment to such progress, fossil fuels were its chief energy source.[18]

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