Evaluating the Effects of Fossil Fuel Supply Projects on Greenhouse Gas Emissions and Climate Change under NEPA

Abstract

Despite the high certainty of our looming climate catastrophe fossil fuel production and consumption, and the greenhouse gas emissions that result, are increasing. In the United States, fossil fuel production reached record levels in 2018, and oil and gas pipelines are being constructed at an unprecedented pace. The National Environmental Policy Act (NEPA) provides the legal framework for the federal government to evaluate the climate impacts of these supply projects, such as leasing public lands and approving pipelines and export terminals. Yet, while federal agencies have begun to analyze how such projects impact climate change there are major inconsistencies in agency practice as well as questions about the accuracy and integrity of these assessments. Some agencies are seeking to avoid any meaningful analysis of GHG emissions, others are downplaying the significance of GHG impacts, others are claiming that the impacts are too uncertain to inform the agency’s decision. There is no programmatic analysis that evaluates the cumulative effects of U.S. fossil fuel policies. The result is a patchwork of project-level analyses that provides fragments of useful information.

Evaluating the Effects of Fossil Fuel Supply Projects on Greenhouse Gas Emissions and Climate Change under NEPA argues that agencies are too often short-changing the public by seeking to limit the scope of their environmental assessments and to elide the central question of the significance of fossil fuel supply projects, and that more comprehensive analyses are necessary in order to draw meaningful conclusions about the effect of government decision-making on fossil fuel use and climate change. After a brief introduction, Part provides a statutory and factual context. Parts III and IV examine recent trends in environmental review and NEPA litigation; analyze nuanced questions of the scope and significance of fossil fuel supply projects’ climate change impacts, the assumptions and analytical techniques that have factored and should factor into NEPA analysis, as well as the core question of whether and to what extent NEPA requires agencies to look at the cumulative effects of multiple fossil fuel leasing and transportation approvals; and propose best practices for agencies seeking to inform themselves and the public about the climate impacts of our nation’s fossil fuel decisions. Part V concludes.

Keywords: Sabin Center for Climate Change Law, climate change, greenhouse gas emissions, fossil fuels, NEPA, GHG emissions, environmental law, climate law, natural resources law, energy law