The Harvard Environmental Law Review has published an article by Michael Burger and Jessica Wentz, “Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA Review.”
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 as the combustion of fossil fuels, and emissions from activities that occur “upstream” of the proposed action, such as 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.
Importantly, the requirement to evaluate upstream and downstream emissions is grounded in the NEPA statute, regulations, and implementing case law. It cannot be undone through an executive order. This is important in light of the numerous actions undertaken by the Trump administration to promote fossil fuel development and to reduce any perceived obstacles to that development, such as environmental review requirements. These actions include:
- Rescinding the Council on Environmental Quality (CEQ)’s guidance on Climate Change and NEPA, which directed agencies to consider indirect emissions, including downstream emissions from fossil fuel production in their NEPA reviews;
- Terminating the federal government’s programmatic environmental review of the coal leasing program;
- Reviewing whether to open new onshore and offshore areas to oil and gas drilling; and
- Reviewing national monument designations with an eye towards opening up protected lands to fossil fuel development.
Additional information about climate change and NEPA reviews is available here.
The paper is available for download here.