A NEPA-Climate Paradox: Taking Greenhouse Gases Into Account in Threshold Significance Determinations

51 Pages Posted: 15 Apr 2009 Last revised: 9 May 2013

See all articles by Madeline June Kass

Madeline June Kass

Thomas Jefferson School of Law; Seattle University School of Law

Date Written: April 15, 2009


The looming prospect of unprecedented, unrestrained global climate change has taken hold of the national consciousness as a crisis of epic proportion. Given the very serious threats global climate change poses to the human environment and a rising tide of public concern, climate seems both an appropriate and obvious subject for consideration under the National Environmental Policy Act of 1969 (NEPA). In fact, it would seem to be a no-brainer. Over a decade ago, the Council on Environmental Quality (CEQ) drafted guidance finding climate change reasonably foreseeable and an appropriate subject for NEPA assessment. Likewise, few if any federal courts hearing NEPA climate related challenges have expressed doubt that global warming presents a proper subject for analysis under NEPA (although some have ruled against NEPA impact statement preparation on other grounds). Yet, just because NEPA's relevance to the problem of climate change has legal grounding and common sense appeal, does not make its application simple.

This article, starting with the assumption that NEPA should and does extend to climate concerns, examines some of the muddled, messy, and complicating aspects of actually integrating climate considerations into NEPA's procedural framework and offers some suggestions as to how to accomplish integration.

Keywords: climate, climate change, greenhouse gases, NEPA, National Environmental Policy Act, environmental impact statements, CEQ, Council on Environmental Quality, threshold significance determinations

JEL Classification: K10, K32

Suggested Citation

Kass, Madeline June and Kass, Madeline June, A NEPA-Climate Paradox: Taking Greenhouse Gases Into Account in Threshold Significance Determinations (April 15, 2009). Indiana Law Review, Vol. 42, No. 1, p. 47, 2009, Thomas Jefferson School of Law Research Paper No. 1380583, Available at SSRN: https://ssrn.com/abstract=1380583

Madeline June Kass (Contact Author)

Seattle University School of Law ( email )

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Thomas Jefferson School of Law ( email )

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United States
619-961-4258 (Phone)

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