SUMMARY COURTESY OF MARTEN LAW GROUP: In a landmark decision, the Ninth Circuit Court of Appeals recently held that federal agencies must assess the climate change impacts in environmental documents prepared under the National Environmental Policy Act (NEPA). The issue arose in the Court’s review of new fuel economy standards for light trucks and SUVs issued by the National Highway Traffic Safety Administration (NHTSA). In its decision in Center for Biological Diversity v. National Highway Traffic Safety Administration, 2007 U.S. App. LEXIS 26555 (9th Cir. Nov. 15, 2007), the Court ordered the NHTSA to prepare an environmental impact statement (EIS) to assess the impact of newly-proposed fuel economy standards on global warming.

 

The decision’s broadest impact may flow from the Court’s holding that “the impact of greenhouse gas emissions on climate change is precisely the kind of cumulative impacts analysis that NEPA requires agencies to conduct.” The decision means that project proponents, including both public and private developers and businesses, must evaluate greenhouse gas emissions for projects requiring federal approval or permits, such as new energy facilities and transmission lines, casinos, landfills, major land developments, telecommunication facilities, mines, road expansion and other transportation projects. While the Court’s holding is limited to federal decisions subject to NEPA, it has the potential to affect private development projects and other state-level projects under state environmental review statutes like Washington’s SEPA and California’s CEQA.

 

In addition to requiring the preparation of an EIS, the Court required NHSTA to “monetize” the impacts of both the proposed standards and alternative standards, and to quantify the potential benefits of those standards for reducing greenhouse gases. Combined with the Supreme Court’s landmark ruling in Massachusetts v. EPA that greenhouse gases are regulated pollutants under the Clean Air Act, the Court’s ruling mandates that environmental review under NEPA will include an assessment of the climate change impacts of federal agencies’ planning and permitting decisions.

 

A more thorough analysis of the decision by Dustin Till of the Marten Law Group will appear soon in the Expert Forum. What are your thoughts on the implications of this case?