On August 18, 2020, a U.S. district court judge for the District of New Mexico upheld the Bureau of Land Management’s (BLM) analysis of climate impacts under the National Environmental Policy Act (NEPA). The case concerned BLM’s decision to authorize the lease of 68,000 acres of land in New Mexico for oil and gas development. (more…)
President Donald Trump followed through on one of his signature campaign promises and announced Thursday that the United States will withdraw from the Paris Agreement on climate change.
The Paris Agreement is an international accord intended to reduce worldwide greenhouse gas (GHG) emissions and mitigate the effects of climate change. Nearly 200 countries signed the Agreement, which took effect in November 2016. The Agreement is not a binding treaty. Instead, the signatories agreed to set voluntary, individualized carbon emission targets. The U.S. target was to reduce GHG emissions by 26–28% below 2005 levels by 2025.
On June 28, 2016, the U.S. Court of Appeals for the District of Columbia Circuit issued a pair of decisions upholding the Federal Energy Regulatory Commission’s (FERC) treatment of indirect and cumulative effects of greenhouse gas (GHG) emissions under the National Environmental Policy Act (NEPA) when the agency approved the construction and operation of enhanced liquid natural gas terminals at sites in Louisiana and Texas. These cases provide direct insight into the treatment of GHG emissions in NEPA analyses and are arguably more limited than Revised Draft Guidance issued in 2014 by the Council on Environmental Quality (CEQ). As explained in a previous Sidley Update, CEQ’s revised draft guidance would conceivably expand the scope of NEPA analyses of GHG emissions beyond what is permitted by NEPA or by CEQ’s implementing regulations in several key respects. In particular, CEQ’s arguably broad inclusion of upstream and downstream emissions associated with the extraction and ultimate combustion of fossil fuels is inconsistent with CEQ’s regulations and with well-established judicial precedent that a closer causal connection between an agency action and alleged environmental impacts. In contrast, the D.C. Circuit’s decisions are consistent with prior case law and provide further reason for CEQ to issue final guidance that clarifies the limits on an agency’s ability to evaluate upstream and downstream emissions when conducting a NEPA analysis.
In each case, the court rejected claims by the Sierra Club that NEPA obligated FERC to study the alleged impacts of extracting and processing additional gas that might be produced to satisfy additional international demand arising from greater export capacity. Also, the court rejected Sierra Club’s assertion that FERC should have included, as part of its cumulative effects analysis, a nationwide study of existing or proposed liquid natural gas export terminals. These rulings are important because they provide a further delineation for when so-called upstream and downstream effects can be excluded from analysis as indirect or cumulative impacts in a NEPA study, especially in the energy field.