The Baseline Bar

Abstract

“It is horrifying that we have to fight our own Government to save our environment.” (Ansel Adams)

The road to sustainability for the planet’s people and natural ecosystems does not include rampant extractivism. A recent study suggests that more than 80 percent of the world’s known hydrocarbon reserves must remain in the ground to avoid runaway climate change. This article challenges the dominant paradigm as to why the “no action” alternative provision of the National Environmental Policy Act (NEPA) is used more as a tool of assessment to move a project forward than instead as a tool of prohibition to halt a project and its deleterious environmental impacts. To strengthen the “no action” alternative, this article recommends a more detailed analysis to conserve delicate environmental spaces and alleviate the phenomenon of environmental racism. Increased detail and specificity would establish what I refer to as “the baseline bar,” the point at which environmental, social, and economic metrics for a proposed federal agency action lead to a recommendation of “no action.” The baseline bar can be achieved through NEPA’s “no action” alternative as well as through other environmental laws, including the Clean Water Act, the Clean Air Act, the Endangered Species Act, inter alia. The baseline bar would operate to halt project development once specific metrics are not satisfied or delay them so they become economically unfeasible. Manifestations of the baseline bar have led up to the earlier rejection of extractive industry projects, such as Alaska’s Pebble Mine and TransCanada’s Keystone XL Pipeline. Yet these projects and many other hydrocarbon and mining enterprises now face rebirth. Adherence to NEPA’s procedural requirements could delay or inhibit such projects. The lack of a baseline bar is evident in the water crisis in Flint, Michigan, and the armed standoff over grazing rights in Oregon. Further, this analysis of the baseline bar will work toward understanding the next wave of environmental lawsuits and dispute resolution.

Keywords: Environmental Law, Property Law, Water Rights, Grazing Rights, Energy Projects, NEPA, Keystone XL, Pebble Mine