Guest Op-Ed: NEPA is Not the Right Vehicle to Address Climate Change

Congress is poised to pass the largest infrastructure spending bill in decades, presenting the opportunity to transform America’s aging transportation system, addressing our daunting mobility problems while meeting climate change challenges. To make timely use of this opportunity, we need a new approach to evaluate and mitigate climate change impacts of transportation projects. Without a new approach, the transportation and environmental communities will spend the next decade in unproductive administrative and judicial disputes over the adequacy of NEPA compliance for transportation projects. Our collective energy should be devoted to developing a programmatic approach to evaluate the climate change impacts of transportation projects modeled on the Clean Air Act transportation conformity system, replacing the current inefficient and ineffective project-by-project analysis of climate change impacts in NEPA documents.

The Council on Environmental Quality (CEQ) has issued contradictory guidance on how, or even if, to address climate change in a NEPA document. On August 1, 2016, CEQ issued its final guidance on addressing the impacts of a project on greenhouse gas (GHG) emissions and the consequent effect on climate change, using NEPA to address climate change as a direct impact, as well as both indirect and cumulative impacts. The 2016 guidance was withdrawn in 2017 and replaced with draft guidance (never finalized) in 2019. This draft guidance treats GHG emissions as any other project impacts, requiring them to be addressed if the impacts are “significant.” Under the 2016 guidance, qualitative descriptions could be used only if the agency demonstrated that quantitative information was neither available nor obtainable.

CEQ’s current regulations, issued on July 16, 2020, narrow the obligation to evaluate climate change impacts of many projects.  On February 19, 2021, CEQ rescinded the 2019 draft guidance, and on October 7, 2021 issued a Notice of Proposed Rulemaking (NPRM) beginning the process of revising the regulations implementing the National Environmental Policy Act (NEPA).  CEQ intends to proceed in phases. Phase 1 made changes to both Purpose and Need and the analysis of alternatives provisions of the current regulations. These limited changes are designed to facilitate compliance in the face of what is likely to come in future NPRMs. From the preamble of the October 7 NPRM, CEQ signals what is ahead. First, CEQ intends to look to the 1978 regulations as a starting point for any subsequent revisions. Second, CEQ intends to place greater emphasis on addressing GHGs and climate change as part of the NEPA process (CEQ also signaled that environmental justice concerns would be addressed). In fact, more recently, Brenda Mallory, the Chair of the CEQ, expressly endorsed the idea that NEPA provides the way to address the climate change.

NEPA, by design, focuses on the impacts of specific projects.  Relying on NEPA to address climate change will keep lawyers and consultants busy, but will do little to address the unique and daunting challenges posed by climate change. Climate change is a large scale problem, much bigger than the impacts of any single project. The 2016 guidance sought to address this by emphasizing that climate change should be addressed as a direct, indirect, and cumulative impact. However, unless the scope of indirect and cumulative impact analyses are dramatically expanded, this still is not sufficiently large scale to truly understand what is going on.

For example, even large highway projects only make a small difference in the percentage of total GHG emissions, allowing decisionmakers to dismiss this difference as insignificant. The planned dramatic expansion of electric vehicles will further minimize GHG emissions from highway projects.  Moreover, calculating the quantitative amount of GHGs is both complex and time consuming. Thus, addressing climate change in project-level NEPA analyses will exacerbate an already long and complex process, while not providing an effective tool for dealing with the problem.  We think there is a better approach.

Existing “conformity” provisions of the Clean Air Act already contain mechanisms to address GHGs and climate change on a sufficiently large scale. The transportation conformity process requires the evaluation of air emissions at a regional scale and requires a demonstration that cumulative air emissions from transportation projects in each transportation plan and program conform to the mobile source emissions budget to achieve timely compliance with the National Ambient Air Quality Standards (NAAQS). The significant improvement of air quality in cities across the country is a testament to the success of this approach.

Adding CO2 emissions to the transportation conformity process would allow cumulative GHG emissions from transportation plans and programs to be evaluated on a regional basis and provide for the reduction of both existing and future emissions attributable to transportation. Admittedly, doing so would require some fairly complex rulemaking and a good deal of analysis in urban areas across the United States. However, the end result would be a mechanism to address these emissions on a regional basis and would incorporate their consideration in both air quality and regional transportation planning. We think this would more accurately reflect the scope of the problem and create a much more effective approach for addressing its resolution.

Thirteen years ago California adopted legislation to establish a type of GHG conformity process for land use and regional transportation plans. The California Air Resources Board sets regional GHG reduction targets for the land use and transportation sector. The state’s metropolitan planning organizations adopt Sustainable Communities Strategies to achieve the regional GHG reduction targets.  To date, the regional transportation plans met the GHG targets.  The program has not, however, eliminated GHG related litigation against individual projects.

We urge the Administration to consider adopting a regional approach to the evaluation of climate change in lieu of project-by-project analyses. Project-level evaluations will make the NEPA process for projects more costly and time consuming while doing little to achieve the sharp reductions in GHGs that are necessary to meet the 2050 climate change goals. The transportation conformity process of the Clean Air Act provides a better gauge of the GHGs attributable to transportation and would result in transportation plans that actually achieve real reductions in GHG emissions.

The views expressed above are those of the authors and do not necessarily reflect the views of the Eno Center for Transportation.

Robert Thornton and Edward Kussy are partners in the law firm of Nossaman LLP. The views expressed in this editorial are their own and not those of Nossaman LLP nor any of its clients.

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