Federal Agencies Must Consider Climate Risk in Environmental Reviews under NEPA

This post was co-authored by the Sabin Center’s Romany Webb and Stephanie Jones and Michael Panfil of Environmental Defense Fund.

From pipelines destabilized by melting permafrost to power line-sparked wildfires exacerbated by drought, the impacts of climate change are affecting infrastructure across the U.S. and heightening the risks it poses to the environment and communities. A new study, undertaken jointly by Environmental Defense Fund and Columbia Law School’s Sabin Center for Climate Change Law, finds that federal agencies are not adequately considering climate change impacts in energy project reviews conducted under the National Environmental Policy Act (“NEPA”). The finding stands at odds with NEPA’s requirement that federal agencies take a “hard look” at the environmental effects of proposed actions, including considering ways to mitigate adverse effects and alternative courses of action, before proceeding.

Federal courts have repeatedly held that federal agencies must consider climate change in their NEPA reviews. Climate change is relevant to NEPA reviews in two ways: First, any greenhouse gas emissions an action causes contribute to climate change, so consideration of these emissions is a crucial part of evaluating the action’s environmental effects. Second, since the changing weather and environmental conditions brought by climate change might impact an action and alter its environmental effects, they too must be considered. Both categories of analysis are essential to meet the clear and express requirements of NEPA; our study focuses on the second, which we term “climate impact analysis.” Climate impact analysis furthers NEPA’s goal of ensuring informed decision-making by equipping federal agencies and the public with crucial information about the climate-related risks facing an action and its resilience to those risks. This, in turn, enables an assessment of the potential for climate change to worsen or otherwise alter the action’s environmental outcomes.

Our new report, Evaluating Climate Risk in NEPA Reviews: Current Practices and Recommendations for Reform, offers recommendations for ensuring robust consideration of climate risk in environmental reviews, consistent with NEPA’s requirements. The report explains that, because climate change impacts manifest in different ways depending on location, time, local environmental characteristics, and type of infrastructure, simply noting climate change in a cursory manner does not meet an agency’s NEPA obligations. To sufficiently inform agency decision-making, the analysis of climate change impacts must be:

  1. Holistic, meaning that it considers all reasonably foreseeable climate impacts and the risks they pose to all elements of the proposed action and alternatives.
  2. Specific, which requires the use of climate data that is tailored to the proposed action’s area, timescale, and other relevant characteristics.
  3. Actionable, providing the agency with the information it needs to take action to address climate-related risks.

To assess whether federal agencies are currently conducting this type of climate impact analysis, we reviewed 65 recent Environmental Impact Statements (“EISs”)—i.e., the detailed reports that NEPA requires federal agencies to prepare for any major proposed action determined to significantly affect the environment. Given the high vulnerability of energy infrastructure to climate impacts, we expected that EISs for energy-related actions should contain particularly high-quality climate impact analysis. We thus focused our survey on EISs issued in relation to onshore energy activities from 2016 through 2020. We looked at whether the EIS: (1) described climate impacts on the affected environment; (2) analyzed climate impacts on the proposed action and its environmental outcomes; (3) compared climate-related risks across alternatives; (4) evaluated adaptation measures to mitigate climate-related risks; and (5) considered any nexus between climate impacts and the action’s effects on environmental justice communities.

None of the EISs we reviewed contained holistic, specific, and actionable analysis. While most EISs acknowledged that climate change would affect the local environment of an action, less than half evaluated whether and how climate change might alter the environmental outcomes of the proposed action, and less than ten percent compared climate-related risks across alternatives. Even where federal agencies did analyze climate impacts, they often relied on outdated or incomplete data, limiting the usefulness of the analysis. Some federal agencies appear to be unaware of existing, publicly available data and tools that could enable a more robust analysis.

Our findings show a gap between the requirements imposed by NEPA and agencies’ current practices. To ensure compliance with NEPA, we recommend that the Council on Environmental Quality (“CEQ”) and other federal agencies take immediate steps to ensure sufficiently holistic, specific, and actionable climate impact analysis is conducted in environmental reviews. In particular, we recommend that CEQ promulgate regulations expressly requiring federal agencies to analyze climate impacts in environmental reviews, and provide suggested regulatory text to achieve that. We further recommend that CEQ issue updated guidance, identifying best practices for conducting climate impact analysis, and that each federal agency review and (as necessary) update its own NEPA regulations to ensure robust analysis. CEQ should also coordinate across federal agencies and relevant experts, and create or support the creation of a public, centralized database of relevant climate impact information. Many sources of such information are identified in our report.

Fortunately, CEQ has already begun the process of updating its NEPA regulations, and reviewing its existing NEPA climate guidance. As part of that work, CEQ should ensure that agencies consider both the contribution of their actions to climate change and the impacts of climate change on their actions.

Read the full report here.

Read the executive summary here.

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