New Resource: Database and Analysis of Water Impacts in Federal EISs

by Cathy Li

The Center for Climate Change Law has compiled a database examining the treatment of water-related issues in all Final Environmental Impact Statements (EIS) reported to EPA from January 1 to September 30, 2012. The database, available here, comprised of 149 FEISs, details the extent to which federal agencies address topics related to water use. An accompanying white paper, available here, analyzes the trends and patterns represented in that database.

A previous report published by CCCL in July 2012, “Consideration of Climate Change in Federal EISs, 2009-2011,” available here, examined the varying degrees to which federal agencies addressed climate change and greenhouse gas emissions in their EISs. The new report concerning water-related issues is based on the same methodology.

The analysis finds that, due to the lack of binding centralized guidelines from EPA or CEQ, there exists a wide divergence in the methods different agencies undertake to address these issues. Consideration of water usage varies largely based on project type and leading agencies. The U.S. Army Corps of Engineers and Bureau of Land Management were the most comprehensive in their discussion on water usage. EISs for large-scale construction projects most often included quantitative discussion of amounts of water uses, as well as the full life cycles of operational impacts. Other types of actions, such as land management plans and restoration projects, often neglected to address water consumption needs or offered only a brief qualitative mention.

On the whole, EISs suffer from a lack of consideration of the bidirectional effects of climate change. Impacts from the project on the surrounding environment are addressed, but impacts from the environment on the project remain lacking, even though this will become of increased importance in areas with too little water (such as the American Southwest), as well as those facing increasing coastal hazards related to sea-level rise. While some EISs do mention these phenomena, few prepare an actual plan of action to mitigate these effects.

Anne Siders

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Published April 9, 2021

April 2021 Updates to the Climate Case Charts

FEATURED CASE

Second Circuit Rejected New York City’s State Law Climate Claims Against Oil Companies

The Second Circuit Court of Appeals affirmed the dismissal of New York City’s lawsuit seeking climate change damages from oil companies. The Second Circuit’s decision largely followed the reasoning of the district court’s 2018 decision. First, the Second Circuit held that federal common law displaced the City’s state-law public nuisance, private nuisance, and trespass claims because the lawsuit would regulate cross-border greenhouse gas emissions, albeit “in an indirect and roundabout manner,” and because state law claims “would further risk upsetting the careful balance that has been struck between the prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.” The Second Circuit then held that the Clean Air Act, in turn, displaced federal common law claims related to domestic emissions. The Second Circuit cited American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011), as establishing “beyond cavil” that the Clean Air Act displaced federal common law nuisance suits to abate domestic transboundary greenhouse gas emissions, and found that Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012), provided “sound reasoning” for determining that the Clean Air Act also displaced federal common law damages claims. The Second Circuit also rejected New York City’s contention that the Clean Air Act’s displacement of federal common law claims resuscitated its state law common law claims. Finally, the Second Circuit held that although the Clean Air Act did not displace New York’s federal common law claims addressing emissions outside the United States, foreign policy concerns foreclosed such claims. The Second Circuit said holding the oil companies liable for “purely foreign activity” would “sow confusion and needlessly complicate the nation’s foreign policy, while clearly infringing on the prerogatives of the political branches.” City of New York v. BP p.l.c., No. 18-2188 (2d Cir. Apr. 1, 2021).