The duo of Penn & Teller is one of my favorite acts. I appreciate not only their irreverent sense of humor, but their unabashed respect for their audiences. Their tricks are designed to amaze, but they just as quickly reveal exactly how they performed the illusion. Somehow, knowing how their magic works in no way diminishes their appeal.
On March 28, the Trump administration did Penn & Teller one better. At an elaborate ceremony at the U.S. Environmental Protection Agency, the President made a comprehensive group of Obama-era climate guidance and policies disappear. This post won’t attempt to review the entire collection of actions targeted by the administration. Most experts agree that the primary focus of the executive actions, the Clean Power Plan, won’t be undone by executive order. Administrative procedures and pending (and future) litigation will make any change in policy a protracted effort that may not conclude by the end of the President’s first term.
The focus here is the CEQ’s Greenhouse Gas (GHG) NEPA Guidance, issued last August. The White House rescinded this guidance, effective immediately. As it was not a regulation (although it did go through extensive public notice and comment), this administrative action will have immediate effect. The more pertinent question is, will the President’s action simply be an elaborate illusion?
It should be remembered that the Guidance’s stated goal was to make the federal government’s consideration of climate change impacts in NEPA documents for the entire spectrum of federal actions as consistent as possible. Agencies and courts reviewing agency actions struggle with precisely how to address climate impacts. Some agencies include quantitative calculations (the number of tons of carbon associated with an action); some provide only qualitative analysis as a general rule; others still decline to include any analysis on a project-level basis, on the assumption that no one action can produce measureable impacts on a global phenomenon. The issue becomes even more complicated when projects incorporate climate resilience features in the alternatives analysis (“should we re-build this bridge with 10-foot or 20-foot clearance over the river?”).
Critics of the Guidance argued that the policy would make NEPA analyses even more complex and take even more time to address this over-arching issue. They also asserted that mandating any quantitative analysis on a project-specific basis made no sense, as the potential climate impact of any additional carbon produced by the project was the quintessential “cumulative effect,” and shouldn’t be charged to any single action. Moreover, they worried that agencies would have to chase potential carbon emissions “upstream” from more general land-use planning actions in a manner that would be amorphous at best, and inaccurate at worst (for example, opening federal lands to energy exploration, and having to calculate the carbon emissions from potential future use of the resources that could be extracted).
Now all these challenges have magically disappeared, right? Well, not so fast.
Earlier this week I attended the Annual Meeting of the National Association of Environmental Professionals, the organization of consultants and engineers largely responsible for most of the major NEPA work in the U.S. I had the opportunity there to discuss the Guidance with a number of veteran environmental officials from past administrations, as the EPA announcement literally took place during sessions on “how to assess climate change impacts in NEPA documents.” Their conclusion, with which I agree, was that regardless of the intent behind rescission of the Guidance, NEPA practice will remain largely unchanged.
Plaintiffs challenging agency NEPA analysis will still pursue claims that analysis of climate impacts was not done in sufficient detail, or not at all. Federal courts will be confronted with this issue in any number of contexts, from broad-based land-use planning decisions to project-specific action. Agencies won’t be able to avoid the issue. They will be compelled to respond to public comments on the topic of climate and resilience. In many instances, the nature of the project itself will demand attention to how or if rising sea levels (as one example) will impact construction of a project. Will the project proponent be required to commit to additional mitigation measures to protect the infrastructure or development at issue? Will engineering alternatives need to be considered to address resiliency? In short, analysis of climate impacts will still be part and parcel of many (if not most) federal environmental reviews.
Therein lies the uneasiness about the absence of CEQ guidance on the issue that I heard expressed at the conference. Professional consultants fear a case-by-case, court-by-court standard on how to address climate, which is certainly not conducive to efficient reviews. They similarly worry about different federal agencies taking very different approaches, which is likely to occur. Projects being analyzed in the same geographic region could see widely divergent approaches to climate impacts and resilience. Once courts have more opportunities to chime in, we may also witness different standards in different parts of the country.
That was what the Guidance attempted to avoid, all under the framework of current regulatory requirements that give agencies great flexibility depending on the well-understood NEPA concepts of “context and intensity.” Now that the Guidance is gone, the goal of greater consistency may also be illusory.
The CEQ GHG NEPA Guidance has disappeared. But the challenge of how to address climate issues under NEPA has not.