haroff at conference 48

Global Climate Change and the National Environmental Policy Act: 

Global Climate Change and the National Environmental Policy Act Kevin Haroff Sonnenschein Nath & Rosenthal LLP CLE International California Climate Change Law - Legal, Policy & Business Issues August 23-24, 2007 - Grand Hyatt - San Francisco

The Reality: 

The Reality Climate Change (Global Warming) Is a Fact

The Challenge: 

The Challenge Anthropogenic activities (historical and continuing) are significant contributors to climate change. Relative contribution of greenhouse gas (GHG) emissions from different regions of the world is shifting rapidly. The U.S. has failed to respond at the federal policy level. Reluctance to support mandatory international control strategies. Failure to pursue domestic regulatory strategies.

Litigation Strategies: 

Litigation Strategies Recourse to traditional litigation strategies under existing federal statutes and common law theories. Advantage – established sets of legal principals and precedent to frame issues and remedies. Disadvantages - Existing laws generally developed at an earlier time to address specific pollution problems within defined geographic areas. Not designed to address non-specific issues that transect international jurisdictions.

National Environmental Policy Act: 

National Environmental Policy Act Cornerstone of U.S. environmental law and policy. Requires federal agencies to evaluate the “significant impacts on the quality of the human environment” resulting from legislative proposals and other “major Federal actions.” Federal agencies must prepare initial “environmental assessments” to evaluate potential impacts and either Make a “finding of no significant impact” (FONSI) Prepare an environmental impact statement

Case Studies : 

Case Studies Border Power Plant Working Group v. DOE, 260 F. Supp. 997 (S.D. Cal. 2003). Mayo Foundation v. Surface Transportation Board, No. 06-031 (8th Cir. 2006) [Mid-States Coalition for Progress v. Surface Transportation Board, 345 F.3d 520 (8th Cir. 2003)]. Friends of the Earth v. Mosbacher Mosbacher I (Friends of the Earth v. Watson, No. 02-4106C, 2005 WL 2035596 (N.D. Cal. Aug. 23, 2005)) Mosbacher II (Friends of Earth, Inc. v. Mosbacher, No. 02-04106C, 2007 WL 962955 (N.D. Cal. Apr. 30, 2007))

Border Power - Overview: 

Border Power - Overview Proposed federal action – establishment of rights of way and construction of electrical transmission lines in California connecting to production plants in Mexico.

Border Power - Standing: 

Border Power - Standing Requirement of “injury in fact” under Lujan decision - invasion of legally protected right that is “Concrete and particularized.” “Actual or imminent.” Additional requirements of traceability and redressability. Relaxed requirements where procedural rights involved. The Court’s ruling – proximity and “shared concerns.”

Border Power - Causation: 

Border Power - Causation Problem – federal action does not encompass projects “not subject to Federal control and responsibility.” Solution – indirect or cumulative emissions from projects outside U.S. jurisdiction must be considered if sufficient causal link with project within U.S. jurisdiction. Result – federal agency’s can be required to consider CO2 emissions originating outside U.S. under some circumstances.

Border Power - Significance: 

Border Power - Significance First case to make clear that climate change impacts from GHG emissions are legitimate subjects for NEPA review. CO2 is emitted from natural gas power plants CO2 is a greenhouse gas CO2 emissions from power plants have potential environmental impacts Failure of federal agency to disclose and analyze impacts is “counter to NEPA.” No real guidance on how to conduct a review of climate change impacts under NEPA.

Mayo Foundation: 

Mayo Foundation Surface Transportation Board (STB) approval of 280-mile rail from Powder River Basin coal mines to South Dakota

Mayo Foundation – Scope of Review: 

Mayo Foundation – Scope of Review STB approved project in 2002 after preparing EIS. Remanded to address indirect impacts from CO2 emissions caused by lower rail transportation rates and increased use of coal by consuming public. SEIS included quantitative sensitivity analysis on effect of lower rates on coal usage. Concluded: Impacts on coal use and resultant CO emissions were modest. Rejected comments calling for broader analysis. Court accepted STB conclusions.

Mayo Foundation - Significance: 

Mayo Foundation - Significance Validates notion that even generalized climate change impacts can and should be required. While mitigation not required in Mayo Foundation, door left open in future cases.

Friends of the Earth v. Mosbacher: 

Friends of the Earth v. Mosbacher Challenges failure of two quasi-governmental agencies to assess environmental impacts of projects supported by agency financial mechanisms.

Mosbacher - Parties: 

Mosbacher - Parties Plaintiffs Environmental groups - FOE, Greenpeace Municipalities - Boulder, Arcata, Oakland Defendants Export Import Bank (Ex-Im): assists in financing export of US products through working capital guarantees (pre-export financing); export credit insurance; loan guarantees and direct loans (buyer financing). Overseas Private Investment Corporation (OPIC): supports projects in developing countries through political risk insurance; loan guarantees to ventures involving US funding or management; direct loans for transactions involving small US businesses.

Mosbacher - Government’s Case: 

Mosbacher - Government’s Case Plaintiffs lack standing under Lujan OPIC not subject to NEPA, only to terms of federal Foreign Assistance Act. Ex-Im is subject to NEPA, but …. Insurance and loan guarantees: are not “major federal actions” requiring environmental review under NEPA. do not have cumulative impacts requiring programmatic environmental review.

Mosbacher - Standing: 

Mosbacher - Standing Lujan framework - procedural violation of NEPA causing “injury in fact” Citizens for Better Forestry v. USDA (9th Cir. 2003) - reasonable probability that challenged actions threaten concrete interests of plaintiffs Court: ExIm/Opic supported projects generate GHG GHG contributes to global warming Global warming has environmental consequences Environment consequences affect areas plaintiffs use/own

Mosbacher - Extraterritorial Jurisdiction: 

Mosbacher - Extraterritorial Jurisdiction Issue: Should NEPA be the operative mechanism to address climate change implications of foreign projects? Government’s answer – NO. NEPA intended to apply to domestic projects with domestic impacts – not intended to be a foreign policy tool. Generalized impacts to global climate not sufficient in absence of particularized project impacts within US.

Reasonable Foreseeability: 

Reasonable Foreseeability Issue: Are general, incremental impacts in the US “reasonably foreseeable” impacts proximately caused by agency action? Government’s answer – NO. Impossible to link impacts to financing decisions of US agencies. Example: Chad-Cameroon oil pipeline project Reliance on Border Power Plant and Mid States Coalition cases.

Bottom Line: 

Bottom Line NEPA has inherent limitations as a tool for addressing climate change – both domestically and internationally. (Jury is still out . . . .)

Footnote: Center for Biological Diversity v. Brennan: 

Footnote: Center for Biological Diversity v. Brennan No. C 06-7062 (N.D.Cal. August 21, 2007) Focus: compliance with deadlines to prepare updated research plans and scientific assessments under Global Change Research Act “Global Change” includes but not limited to climate change (land use, oceans, ecological systems) Issues of standing similar to NEPA cases Procedural injury (plan updates and assessments) “Informational injury” (plan updates, not assessments)

Alternative Approach - CEQA: 

Alternative Approach - CEQA California Environmental Quality Act Also requires environmental review of projects and programs at state level Beyond NEPA – CEQA requires implementation of reasonable and feasible mitigation measures in project permitting Increasingly, GHG emissions included in comments on draft CEQA documents

Case Study:Brown v. County of San Bernadino: 

Case Study: Brown v. County of San Bernadino Filed in April 12, 2007 (No. CIVSS 700329) Challenged adequacy of EIR supporting adoption of County General Plan Update, related approvals County position: available methodologies cannot show GHG impacts to climate are significant State position: inadequate analysis of impacts and failure to mitigations to GHG impacts in EIR Settlement - effective August 21 Adoption of GHG Emissions Reduction Plan Consistency with AB 32 goals for emission reductions Further review under CEQA

BOTTOM LINE: 

BOTTOM LINE CEQA litigation in California state courts CAN be a potential tool for enforcing concrete action to address climate change (But jury is still out . . . .)

Slide26: 

Kevin T. Haroff Sonnenschein Nath & Rosenthal LLP 525 Market Street, 26th Floor San Francisco CA 94105-2708 (415) 882-5000 kharoff@sonnenschein.com