U.S. Supreme Court curbs NEPA consideration of climate impacts

• Court upends NEPA, foundational environmental law
• NEPA helped link current projects with knock-on effects
• Law ensured public information and comment

WASHINGTON - A U.S. Supreme Court decision upending a foundational environmental law is already affecting pending cases and will make it harder to require that federal agencies take into account climate impacts in regulated projects, attorneys say.

At issue is the National Environmental Policy Act (NEPA), which became law in 1970 and has since shaped how regulatory decisions get made for major or sensitive projects.

Late last month, the Supreme Court significantly narrowed NEPA's scope, ruling 8-0 that agencies do not necessarily need to take into consideration knock-on effects – such as how a new bridge could affect population growth, or how a rail line to an oil field could affect climate change.

NEPA has been a "big aspect of challenging fossil fuel infrastructure projects", said Wendy Park, a senior attorney with the nonprofit Center for Biological Diversity, which represented environmental groups in the case.

"Agencies still have discretion in what they would like to do, but this could result in eliminating the climate analysis from their environmental reviews." 

How does NEPA work?

The law sets the parameters for how federal regulators approach approvals for major infrastructure, such as highways, deciding on permits for sensitive projects involving fossil fuel development, or making long-term land management plans.

It also creates opportunities for local communities to review projects ahead of time and offer comments. That process has led to numerous changes to projects or even outright cancellation, such as a 2016 application for oil and gas development under a lake that provides much of the Dallas area's water.

NEPA "embodies a fairly straightforward principle: the government should look before it leaps, in environmental terms, when making big decisions," said Sam Sankar, senior vice president of programs for Earthjustice, a nonprofit environmental law firm that also represented groups in the case and has multiple NEPA cases underway.

The law does not mandate any particular outcome, he said, but simply requires the government to analyse what would happen and to consider alternatives for a project.

A spate of NEPA's earliest uses came around the building of the national highway system. Instead of focusing solely on the immediate project and area, regulators also had to consider the likely effects of the development – such as new development and population centres.

In more recent years, the law has offered a key way to challenge fossil fuel development.

What was the case before the Supreme Court?

The case, Seven County Infrastructure Coalition v. Eagle County, focused on a proposed 88-mile railroad line intended to ferry oil from Utah to main lines en route to refineries in other states.

The line was projected to increase production by about 350,000 barrels a day.

The federal agency that permits those railroads decided it did not need to consider either the extraction of that oil or the impact of refining or burning it, Sankar said, prompting environmental groups to sue.

A lower court agreed that the analysis should have been broadened, but the Supreme Court has now decided otherwise.

What did the top U.S. court say?

The Supreme Court's decision was twofold. First, it said agencies deserve substantial deference in drawing the line between direct and indirect effects of a project, in terms of both time and space.

Second, it said that agencies are not required under NEPA to analyse the effects of separate projects that may occur because of the project at hand, such as the drilling, refining or burning of fossil fuels as a result of a transportation initiative.

What happens now?

The ruling has had an immediate effect on legal strategies, while making some current cases harder to win, according to Earthjustice.

The ruling does not prohibit agencies from including broader indirect effects such as climate change in their decision-making.

But by leaving the door open it could mean such processes vary dramatically from one presidential administration to another.

It also could affect how the public is informed about projects and how local communities are able to provide input.

"Limiting environmental review is going to have the obvious impact of depriving us of some information, especially about these remote and indirect impacts," Sankar said.

"I'm concerned the public won't be aware of what's happening around them, and won't have even the most basic ability to inform or shape a project."

(Reporting by Carey L. Biron; Editing by Jon Hemming.)