Jessica A. Wentz

Designing a Climate Change Displacement Coordination Facility: Key Issues for COP 21

There have been several proposals to include a “climate change displacement coordination facility” in the upcoming UNFCCC agreement, but there has been very little public discussion about what this facility would entail and how it would operate. This briefing note highlights some of the functions that the displacement coordination facility could fulfill, as well as some key questions for negotiators in the lead-up to COP 21 and subsequent talks. The note is not intended to be a proposal for how the facility should operate, nor do the functions highlighted below necessarily reflect what is politically or economically feasible. Rather, the note is intended to outline a broad array of considerations for decision-makers as they contemplate whether and how to proceed with the displacement coordination facility.

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 the combustion of fossil fuels, and emissions from activities that occur “upstream” of the proposed action, such 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. To support the argument and recommendations, the Article makes several unique contributions to the growing literature on NEPA and climate change. First, we describe how federal approvals of fossil fuel extraction and infrastructure contribute to global climate change, and we explain why federal agencies have ample discretion to account for these impacts when deciding whether to issue such approvals. Second, we conduct an in-depth examination of NEPA’s requirements as they pertain to the analysis of upstream and downstream emissions, focusing in particular on the requirements to evaluate indirect effects, cumulative effects, and effects from related actions. Third, we describe how federal agencies currently account for upstream and downstream greenhouse gas emissions in their NEPA reviews, and we find that there are major inconsistencies in the analytical approaches both within and across agencies, but many agencies are nonetheless beginning to recognize that upstream and downstream emissions fall within the scope of impacts that should be reviewed under NEPA. Fourth, we synthesize all of the existing case law on this subject, and we find that courts have generally treated such emissions as the type of indirect effects that must be evaluated in a NEPA reviews. Finally, we outline an approach for evaluating upstream and downstream emissions that would improve the quality of federal decision-making, shield agencies from litigation, and provide much-needed information about the indirect and cumulative effects of fossil fuel development on global climate change.

Debunking Revisionist Understandings of Environmental Cooperative Federalism: Collective Action Responses to Air Pollution

The federal Clean Air Act initiated Congresss venture into cooperative environmental federalism in 1970. Forty-five years later, misconceptions about the nature of that venture (and similar examples of cooperative federalism under other federal environmental statutes) persist. In particular, some recent judicial decisions characterize environmental cooperative federalism as an equal partnership between the federal Environmental Protection Agency and the states. They also take umbrage at efforts by EPA to override state policies and initiatives that fail to conform to the minimum responsibilities that the statutes impose on the states, characterizing them as unlawful affronts to state sovereignty.This chapter argues that the CAA was never designed to be an equal partnership. The Acts text, structure, and legislative history demonstrate clearly that Congress chose to put EPA at the helm, and that it did so out of concern that collective action problems such as transboundary externalities, diseconomies of scale, and the race to the bottom could only be overcome if the federal government held the upper hand in the regulatory partnership created to promote air quality improvement. It argues that an accurate application of the cooperative federalism model actually established under the CAA is imperative for the successful implementation and enforcement of the statute’s programs and goals for both criteria air pollutants and greenhouse gases.

Holding fossil fuel companies accountable for their contribution to climate change: Where does the law stand?

ABSTRACT The judge who called for a climate tutorial in a federal court in San Francisco accepted the science that says that human-caused emissions of carbon dioxide play the central role in rising average global temperatures, increased sea levels, and coastal flooding – but threw out a lawsuit calling for financial reparations from the oil companies for causing these problems. Why? And what might the decision mean for other cases in other states, along similar lines, that are still in the works? Two environmental lawyers, one of whom was in the courtroom for the tutorial, explain.

Survey of Climate Change Considerations in Federal Environmental Impact Statements, 2012-2014

This report describes the results from a survey of 238 federal Environmental Impact Statements (EISs) published from July 2012 through December 2014. The report includes a general overview of trends across all EISs, as well as an analysis of how climate change is addressed in the context of specific types of projects, such as fossil fuel development and natural resource management. We find that Federal agencies generally do account for climate change when conducting environmental reviews of projects that will generate greenhouse gas (GHG) emissions or be affected by climate-related phenomena such as sea level rise. However, the percentage of EISs that address specific considerations related to climate change varies considerably depending on the type of project that is being reviewed and the lead agency. The scope and depth of the analysis also vary considerably, both within and across different project categories.

Considering the Effects of Climate Change on Natural Resources in Environmental Review and Planning Documents: Guidance for Agencies and Practitioners

This report describes how climate change will affect natural resources in the United States, and explains why consideration of how climate change will affect those resources is necessary in order to fulfill legal requirements under NEPA and other statutes governing the management of these resources. It also presents examples of how climate change has been meaningfully accounted for in environmental review and planning documents. The accompanying protocol contains guidelines for considering the impacts of climate change in environmental reviews as well as other planning documents (e.g., resource management plans and resource assessments).

Assessing the Impacts of Climate Change on the Built Environment: A Framework for Environmental Reviews

Federal agencies are beginning to incorporate descriptions of climate change impacts into environmental reviews for buildings and infrastructure, but there is no consistent methodology for evaluating these impacts and mitigating any foreseeable risks to the project or affected environment. This Article asserts that an assessment of climate-related risks and adaptation options falls within the scope of considerations that should be addressed under the National Environmental Policy Act and similar laws. It concludes with a set of recommended protocols for identifying the impacts of climate change on projects and their affected environment, evaluating physical and environmental risks, and selecting appropriate mitigation measures.