Climate Change and Federal Environmental Impact Reviews: Emerging Legal Questions

In this presentation, Jessica Wentz, Associate Director for Climate Change Law at Columbia Law School, explores emerging legal questions related to how practicing attorneys and federal agencies should account for climate change in environmental review documents prepared under the National Environmental Policy Act (NEPA). Specifically, her course focuses on two areas of legal uncertainty and controversy that are currently being litigated in federal courts. For each of these two topics, she discusses the relevant statutory and regulatory provisions, as well as relevant case law.

First, Ms. Wentz discusses the proper scope of indirect emissions that should be evaluated in NEPA reviews. She then focuses on a particular subset of projects—fossil fuel production and extraction—and the extent to which agencies must account for emissions from upstream and downstream activities in the fossil fuel supply chain, such as the combustion of fossil fuels that are produced or transported as a result of the proposed action. 

Second, the course examines whether NEPA require attorneys and agencies to evaluate the effects of climate change on the proposed action and its affected environment when conducting NEPA reviews. We consider how climate-related phenomena such as sea level rise and drought can affect infrastructure and resource management project in a manner which can both undermine the viability of the project and exacerbate its environmental consequences. 

Learning Objectives:

I.     Understand the scope of indirect greenhouse gas emissions that should be included in NEPA reviews for fossil fuel-related projects, and the extent to which there is uncertainty about some categories of indirect emissions:

• Participants will learn about how agencies currently account for indirect emissions in their NEPA review documents
• Participants will become familiar with the case law on indirect emissions analysis, and how courts have responded to each of the arguments raised by agencies to defend their decision not to evaluate indirect emissions
• Participants will develop a sense of how indirect emissions can be analyzed in a manner that will satisfy the demands of NEPA and promote better informed decision-making

II.     Identify how the impacts of climate change can affect projects undergoing NEPA review, and how these effects can be meaningfully analyzed in a NEPA document:

• Participants will understand why NEPA requires an evaluation of future climate change impacts, referring both to the statutory and regulatory text and recent case law
• Participants will understand that agencies should account for climate-related effects when describing the affected environment and no action alternative for a proposed project
• Participants will understand that agencies should evaluate the extent to which climate change may affect the nature, timing, and environmental impacts of a project
• Participants will understand the utility of using the NEPA process to identify appropriate mitigation and adaptive management provisions