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Trump Aims to Reel in Climate Reviews While Courts Say Otherwise

Jan. 9, 2020, 6:04 PM

The Trump administration’s plan to speed up project reviews for pipelines, mines, highways, and other infrastructure would scale back how agencies consider climate change in the process—running counter to a stack of legal precedent that’s been growing for years.

The Council on Environmental Quality’s Jan. 9 proposal to accelerate National Environmental Policy Act reviews says the Environmental Protection Agency, Interior Department, and other agencies should limit their analysis to impacts that have a “close causal relationship” with the proposed government action at issue. The draft also directs agencies to halt their practice of studying cumulative impacts: a project’s broader effects when considered alongside other existing and anticipated development.

If finalized, the new regulations could reduce but not eliminate climate considerations in NEPA reviews. That cuts against a fast-growing set of court decisions that say agencies must do more to study the planet-warming impacts of their decisions.

“You can’t unwrite those cases,” said Christy Goldfuss, who led CEQ during the Obama administration.

But environmental lawyers and academics say the legal precedent’s lasting impact is unclear if the Trump administration successfully changes the NEPA regulations.

Decisions From Rules or Statute?

Legal precedent on how agencies should consider climate change in NEPA reviews is relatively young. It started with a smattering of cases in the early 2000s and picked up speed more recently, with at least 14 federal court decisions since 2014 requiring the government to do added analysis.

The rulings heavily reference the existing CEQ regulations, which were crafted in 1978. They require agencies to consider the direct, indirect, and cumulative impacts of projects they approve.

The latter two categories have tripped up government officials the most. They have prompted rulings in oil and gas leasing cases, for example, that agencies should have considered the indirect emissions from expected fossil fuel combustion, or the cumulative impacts of a project when considered in light of existing and anticipated development.

The Trump administration’s proposal would direct agencies not to consider cumulative impacts, and it would set a narrower definition for other impacts.

Shelf Life

If CEQ finalizes the proposal and replaces the 1978 rules, the shelf life for the recent climate-focused court rulings depends on whether judges rooted the decisions in NEPA regulations or in the statute itself.

The binding effect is “certainly diminished” for any climate-focused court decisions that center on them, said Western Environmental Law Center attorney Kyle Tisdel, who has litigated several recent NEPA cases.

But court opinions focused on the broad language of the underlying law, rather than regulations, would still carry weight because NEPA itself isn’t changing.

“If the courts were saying, ‘I don’t care what CEQ says, you have to consider indirect effects,’ then that decision attaches to the statute, not the regs,” said James Coleman, a law professor at Southern Methodist University. “So changing the regs won’t change much.”

The collection of recent cases that moved the NEPA needle on climate change appear to blend statutory and regulatory standards—featuring both detailed analysis of regulatory compliance and broader conclusions about violations of the statute—making it unclear how much sway they’ll have over future proceedings.

“Those are the instances where lawyers can pluck their favorite quotes out of a case like that and take it either direction,” University of Notre Dame law professor Bruce Huber said, adding, “I don’t think there’s a right answer on that until and if such time as the Supreme Court decides to weigh in on it.”

Courtroom Strategy

Tisdel said environmentalists would adapt their legal arguments to push for more detailed consideration of greenhouse gas emissions by pointing to broad language in the underlying NEPA statute that require agencies to really grapple with the effects of their actions.

“And the fundamental purpose of NEPA is to look at what the impacts might be,” National Wildlife Federation lawyer Melissa Samet said. “There’s never 100% certainty of what might happen, but you can make clear, strong, scientifically based judgments about what the impacts are likely to be.”

Widener University law professor John Dernbach warned that if agencies “treat a big thing as a small thing, I think there’s always the risk that a federal court is going to say that that’s not appropriate.”

Lawyers and judges could also reason that previous climate-focused court rulings should be respected despite the regulatory change because, although the decisions mentioned the regulations, they were really grappling with the requirements of the underlying law, Coleman said.

Plus, he said, “I do think sometimes there’s a tendency to interpret in a way that provides continuity, regardless of the actual changes of, in theory, what you’re interpreting.”

Peter Whitfield, a former Justice Department environmental lawyer who now represents industry clients at Sidley Austin LLP, said attempts to maintain and advance legal precedent that favors expanded climate analysis would likely get traction, at least in some courtrooms.

“It probably comes down to the judge behind the bench more so than what the regs say,” Whitfield said, “because even under the current regs, you get wildly different decisions from different judges.”

To contact the reporters on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com; Stephen Lee in Washington at stephenlee@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Cheryl Saenz at csaenz@bloombergtax.com

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