News
A federal judge canceled a major oil and gas lease sale over climate change.
Last spring, but it shows the power of NEPA
Assignment
Finish West Virginia v. EPA.
Other than mobile sources, the Court has killed the EPA’s authority to directly regulate GHGs. We are now going to turn to statutes that can be used to challenge specific projects which exacerbate climate change or which will pose risks to the community because they have not properly accounted for the effects of climate change. The most important of these is the National Environmental Protect Act, (NEPA).
NEPA is the first of the modern environmental laws. It is not a direct regulatory law. Instead, NEPA requires covered projects to prepare a detailed analysis of the environmental impacts of a proposed project. The objective of NEPA is to assure that the public and government officials make decisions based on complete and accurate information in the form of an Environmental Impact Statement (EIS). NEPA has a strong citizen lawsuit provision that allows interested parties who meet the standing requirements to challenge the EIS if they can show that the EIS is inaccurate or incomplete. The court can order that the EIS be amended, including doing new studies of environmental impacts if necessary. Once the EIS meets the requirements set in the NEPA regulations and case precedent, there is no right to challenge the decision to build the project. NEPA is the major tool that environmental groups use to try to stop environmentally dangerous projects. While the statute focuses on public information, the delay inherent in court challenges and EIS revisions can delay projects for years. This gives the groups opposing the project time to build political opposition to the project.
We are going to start our NEPA section with a bit of history. In 1962, Rachael Carson, a writer and naturalist, published Silent Spring. The book is credited with starting the modern environmental movement. (By this I mean the movement that focuses on the health effects of pollutants on people, as opposed to the much older movement that focused on preserving natural spaces and the creation of national parks.) This leads to the passage of NEPA in 1970. Watch the short video linked below on Rachael Carson and the impact of Silent Spring.
Then review:
The National Environmental Policy Act of 1969, as amended
NEPA – Parsing the Statute – Video – Narrated PowerPoints (they are the same, just different formats)
This is a brief introduction to the NEPA statute that I recorded so we do not have to spend class time reviewing the basic statute. If you have taken environmental law, you will already be familiar with NEPA.
The courts have begun to require an analysis of the impact of projects on climate change to be included in the EIS. This gives environmental groups a way to attack environmentally unsound projects and assure that the full range of risks to the climate is included in the EIS. At the same time, this will delay the project, giving time to find other ways to stop the project. Interestingly, some of the same issues came up in the earliest NEPA case, which involved the licensing of a nuclear power plant. The plaintiffs wanted an analysis of substituting energy conservation as an alternative to the construction of the plant included in the EIS. We are going to look at this old case and a modern case directly incorporating climate considerations into the NEPA analysis:
NEPA Reader (2022)
Slides – NEPA Cases – updated
Resources