Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA Review

Harvard Environmental Law Review, Vol. 41, No. 1, 2016

Sabin Center for Climate Change Law, Columbia Law School, March 2016

80 Pages Posted: 17 Mar 2016 Last revised: 17 May 2017

Michael Burger

Columbia University - Sabin Center for Climate Change Law

Jessica Wentz

Columbia University - Sabin Center for Climate Change Law

Date Written: May 2017

Abstract

Recently, legal controversies have arisen regarding the scope of greenhouse gas emissions that should be considered in environmental reviews of fossil fuel extraction and transportation proposals under the National Environmental Policy Act (NEPA). The key question is whether and how agencies should account for emissions from activities that occur “downstream” from the proposed action, such the combustion of fossil fuels, and emissions from activities that occur “upstream” of the proposed action, such the extraction of fossil fuels. This question is important, because consideration of such emissions can alter the balance of costs and benefits for a proposed project, and the agency’s ability to justify approving the project in light of that balance.

This Article argues that such emissions do typically fall within the scope of indirect and cumulative impacts that must be evaluated under NEPA, and provides recommendations on how agencies should evaluate such emissions in environmental review documents. To support the argument and recommendations, the Article makes several unique contributions to the growing literature on NEPA and climate change. First, we describe how federal approvals of fossil fuel extraction and infrastructure contribute to global climate change, and we explain why federal agencies have ample discretion to account for these impacts when deciding whether to issue such approvals. Second, we conduct an in-depth examination of NEPA’s requirements as they pertain to the analysis of upstream and downstream emissions, focusing in particular on the requirements to evaluate indirect effects, cumulative effects, and effects from related actions. Third, we describe how federal agencies currently account for upstream and downstream greenhouse gas emissions in their NEPA reviews, and we find that there are major inconsistencies in the analytical approaches both within and across agencies, but many agencies are nonetheless beginning to recognize that upstream and downstream emissions fall within the scope of impacts that should be reviewed under NEPA. Fourth, we synthesize all of the existing case law on this subject, and we find that courts have generally treated such emissions as the type of indirect effects that must be evaluated in a NEPA reviews. Finally, we outline an approach for evaluating upstream and downstream emissions that would improve the quality of federal decision-making, shield agencies from litigation, and provide much-needed information about the indirect and cumulative effects of fossil fuel development on global climate change.

Keywords: NEPA, fossil fuels, greenhouse gas emissions, coal, oil, gas, climate change, pipelines, environmental impact statement

Suggested Citation

Burger, Michael and Wentz, Jessica, Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA Review (May 2017). Sabin Center for Climate Change Law, Columbia Law School, March 2016. Available at SSRN: https://ssrn.com/abstract=2748702 or http://dx.doi.org/10.2139/ssrn.2748702

Michael Burger

Columbia University - Sabin Center for Climate Change Law ( email )

Jerome Greene Hall
435 West 116th Street
New York, NY 10027
United States

Jessica Wentz (Contact Author)

Columbia University - Sabin Center for Climate Change Law ( email )

Jerome Greene Hall
435 West 116th Street
New York, NY 10027
United States

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