Issues to Watch, Uncategorized

Are U.S. Appeals Court Judges the New Stewards of the Environment?


Are U.S. Appeals Court Judges the New Stewards of the Environment?

                                                                                                         Caitlin Rayhart*

Between President Trump vowing to pull the United States out of the Paris Climate Accord and appointing Scott Pruitt, a known climate change skeptic, as head of the Environmental Protection Agency, it did not seem like the federal government would be taking any steps to reduce carbon emissions in the near future.  See Camila Domonoske & Colin Dwyer, Trump Announces U.S. Withdrawal from Paris Climate Accord, NPR (June 1, 2017, 10:54 AM), http://www.npr.org/sections/thetwo-way/2017/06/01/530748899/watch-live-trump-announces-decision-on-paris-climate-agreement); see also Doina Chiacu & Valerie Volcovici, EPA Chief Pruitt Refuses to Link CO2 and Global Warming, Sci. Am., https://www.scientificamerican.com/article/epa-chief-pruitt-refuses-to-link-co2-and-global-warming/ (last visited Nov. 29, 2017).

However, environmentalists recently acknowledged one small victory that may “change the way the federal government decides what issues to examine in environmental impact studies required under the National Environmental Policy Act.”  Emily Flitter, Court Ruling Could Broaden U.S. Government Environmental Impact Studies, Reuters (Aug. 22, 2017, 2:19 PM), https://www.reuters.com/article/usa-climatechange-pipeline-ruling/court-ruling-could-broaden-u-s-government-environmental-impact-studies-idUSL2N1L8119.  On August 22, 2017, the United States Court of Appeals for the D.C. Circuit held that the Federal Energy Regulatory Commission (FERC) is required to estimate the projected greenhouse gas emissions that will occur once a natural gas pipeline is built and in use.  Sierra Club v. Fed. Energy Regulatory Comm’n, 867 F.3d 1357, 1363 (D.C. Cir. 2017).  This case is not a landmark victory for the environment, but it does represent a small nudge in the right direction.

  1. STANDARD OPERATING PROCEDURE

Ordinarily, when an entity wants to build a natural gas pipeline, FERC conducts an Environmental Impact Study (EIS) before the project can proceed.  See Environment, Fed. Energy Reg. Commission, https://www.ferc.gov/industries/gas/enviro.asp (last visited Nov. 29, 2017).  This entails studying what the impact of building the pipeline will be on the area in which the project will take place.  See 40 C.F.R. § 1502.16 (2017).  “An EIS is deficient, and the agency action it undergirds is arbitrary and capricious, if the EIS does not contain ‘sufficient discussion of the relevant issues and opposing viewpoints,’ or if it does not demonstrate ‘reasoned decisionmaking.’”  Sierra Club, 867 F.3d at 1368 (internal citations omitted).  Required considerations include both direct and indirect effects of the proposed pipeline, as well as “[e]nergy requirements and conservation potential of various alternatives and mitigation measures,” “[n]atural or depletable resource requirements and conservation potential of various alternatives and mitigation measures,” and “[m]eans to mitigate adverse environmental impacts . . . .”  40 C.F.R. § 1502.16(e)–(f), (h).

FERC is also required to consider the impacts of any proposed project on environmental justice communities, defined as minority and low-income populations that experience disproportionately high adverse environmental effects as a result of certain federal programs.  See Sierra Club, 867 F.3d at 1368; see also Exec. Order No. 12,898, 59 Fed. Reg. 7629, 7629 (Feb. 11, 1994) (noting “disproportionately high and adverse human health or environmental effects of . . . [federal] programs, policies, and activities on minority populations and low-income populations in the United States” and requiring that federal agencies incorporate remediation of these issues into their mission statements).  Unfortunately for the environment, as well as the minority and low-income populations of the United States, when FERC is “required to consider” something, it means nothing more than that.  See Sierra Club, 867 F.3d at 1367 (“Importantly, though, . . . [the National Environmental Protection Act] ‘directs agencies only to look hard at the environmental effects of their decisions, and not to take one type of action or another.’  That is, the statute is primarily information-forcing.” (internal citations omitted)).

  1. SIERRA CLUB V. FERC

In Sierra Club v. Federal Energy Regulatory Commission, environmental groups and landowners challenged FERC’s decision to approve construction and operation of three interstate natural-gas pipelines.  Id. at 1363.  They argued that the agency’s environmental impact assessment of the pipelines was inadequate.  Id.  While the D.C. Circuit judges sided with FERC on most counts, they also held that “FERC’s environmental impact statement did not contain enough information on the greenhouse-gas emissions that will [ultimately] result from burning the gas that the pipelines will carry” throughout the southeastern United States.  Id.

Given the current rules governing EIS’s and the remainder of the court’s holding, many may view this emission prediction mandate to be merely a minute detail in a case that otherwise was not a victory for the environment or environmental justice communities.  See id. at 1368–69 (noting that although FERC ultimately approved the pipeline’s construction in at-risk communities, they sufficiently considered the adverse impacts that the project will have on environmental justice communities).  On the other hand, some experts are saying that this court ruling could broaden United States government environmental impact studies.  See Flitter, supra.

In addition to requiring an estimate that approximates the increase in carbon emissions that the pipelines will ultimately produce, the Court of Appeals also held that, on remand, FERC would be required to revisit the use of the “Social Cost of Carbon” to predict the damaging effects this increase in emissions might have on the environment.  Sierra Club, 867 F.3d at 1375 (“This tool, developed by an interagency working group, attempts to value in dollars the long-term harm done by each ton of carbon emitted.”); see also The Social Cost of Carbon, U.S. Envtl. Protection Agency, https://19january2017snapshot.epa.gov/climatechange/social-cost-carbon_.html (last visited Nov. 29, 2017) (showing the EPA website as it existed on January 19, 2017, and describing the Social Cost of Carbon measurement methodology).  FERC had previously alleged that this tool was “not useful for NEPA purposes, because several of its components are contested and because not every harm it accounts for is necessarily ‘significant’ within the meaning of NEPA.”  Sierra Club, 867 F.3d at 1375 (citing EarthReports, Inc. v. Fed. Energy Regulatory Comm’n, 828 F.3d 949, 956 (D.C. Cir. 2016)).  While in EarthReports, the court found this to be a compelling argument, the fact that the court is requiring FERC to revisit the issue on remand may signal that a change is on the horizon.  See 828 F.3d at 956.  The bad news is that since President Trump was elected, the page detailing the EPA’s use of “The Social Cost of Carbon” was removed from the EPA website and is now only available in “snapshot” form.  See The Social Cost of Carbon, supra.

  • CONCLUSION

While it is probably too soon for environmentalists to celebrate the potential impacts of this victory, the ruling in Sierra Club v. Federal Energy Regulatory Commission could still show that the United States is moving forward with climate change concerns one way or another.  One attorney commented on the court’s decision saying, “If not changed on rehearing or ultimately by the Supreme Court, this case has broad implications for multiple industries and agencies in various contexts.”  Flitter, supra.   For example, the ruling could have an effect on the scope of duties that regulators are tasked with when approving proposed pipeline projects.  Id.  Hopefully, being forced to take a “hard look” at the potential effects of increasing greenhouse gas emissions will ultimately lead FERC to more thoughtful decision-making in the future, and will not just create more paperwork for regulators.  It must be somewhat heartening for environmental groups to realize that the judges on the D.C. Circuit acknowledge the real risks of increased carbon emissions, even if other government entities are less concerned.  See, e.g., Clean Air Council v. Pruitt, 862 F.3d 1, 4 (D.C. Cir. 2017) (vacating the EPA’s stay of “implementation of portions of a final rule concerning methane and other greenhouse gas emissions”).

*Caitlin Rayhart is is a second-year law student at the University of Baltimore School of Law, where she serves as a staff editor for Law Review.  Caitlin is also a member of the National Environmental Moot Court Team.  This upcoming summer, Caitlin will intern at the Department of Justice’s Environmental and Natural Resources Division.

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