INSIGHT: US poised to open new front in climate policy

12 November 2009 15:58  [Source: ICIS news]

By Joe Kamalick

US industry may get a new climate shocker on FridayWASHINGTON (ICIS news)--The climate change policy war soon may see the opening of a major third front by US regulators using what might be called a stealth global warming rule.

The White House Council on Environmental Quality (CEQ) is said to be close to issuing a new rule requiring all federal and even state agencies to consider possible climate change effects and greenhouse gas (GHG) emissions when approving funding or permitting for any project, development or facility improvement.

This would amount to a third policy move toward emissions limitations by the federal government, following cap-and-trade climate legislation working its way through Congress and an impending ruling by the Environmental Protection Agency (EPA) to regulate and limit emissions of carbon dioxide under the Clean Air Act.

The council serves as the principal environmental policy advisor to the president, and it also is responsible for ensuring that the National Environmental Policy Act (NEPA) - the statute that underlies US environmental law, regulation and requirements - is followed and enforced by all federal agencies.

It is NEPA that requires almost any undertaking in the US - road, rail, building or factory construction, oil and gas drilling, manufacturing facility improvements or feedstock, production or product changes - to submit an environmental impact statement (EIS) before proceeding.

If the EIS doesn't get approval by the governing federal or state agency, then the rail line, highway, factory or office building project does not go forward.

Technically, under NEPA a project is required to meet the law’s environmental guidelines and complete an environmental impact statement if a federal agency provides any portion of the funding for the undertaking and thereby has authority to regulate or even prohibit it.

However, in practice NEPA comes into force even if there are no government funds involved but a federal agency has a role in reviewing a project. That agency can, under NEPA authority, require an environmental analysis.

At present, an environmental impact statement provided by a project manager must show what consequences the undertaking might have for nearby historic places or cultural resources, wetlands, wilderness areas, the quality of human environment, endangered or threatened species or their habitats.

The council’s regulations require that federal agencies address all “reasonably foreseeable” environmental impacts of actions under their jurisdiction.

In response to a petition filed by environmental groups in early 2008, the council apparently is poised to expand its writ to include in environmental impact statement criteria “the degree to which the action directly or indirectly affects greenhouse gas emissions, climate change or atmospheric resources”.

In the petition filed with CEQ in February 2008, the Natural Resources Defense Council (NRDC), the Sierra Club and the International Center for Technology Assessment (CTA) argue that in establishing NEPA Congress sought to incorporate all environmental considerations into all federal decision-making.

The statute requires, the petitioners contend, that the council amend its regulations to address the issue of climate change. 

They want the council to stipulate to federal agencies that “an analysis of reasonably foreseeable climate change effects is necessary to comply with NEPA and CEQ’s implementing regulations”, such as the requirement for environmental impact statements.

The petition cites NEPA in arguing that a “reasonably foreseeable” result would include “impacts which have catastrophic consequences, even if their probability of occurrence is low”.

“The effects from climate change easily fit into what NEPA and CEQ contemplate should be addressed in agency NEPA processes as ‘reasonably foreseeable’,” the petition contends.

An indication of what the council plans to do regarding the petition and possible requirements for broad federal requirements for climate change considerations may come later this week.

The council is due to respond to a request from Republican Senators James Inhofe of Oklahoma and John Barrasso of Wyoming on whether and how the CEQ plans to bring greenhouse gas emissions and climate change impact into analyses required under NEPA.

Inhofe is the ranking Republican on the Senate Environment and Public Works Committee - and the chamber’s leading skeptic on anthropogenic global warming - and Barrasso is the ranking Republican on that committee’s subsidiary panel on Oversight.

In a letter to CEQ chairwoman Nancy Sutley, Inhofe and Barrasso argue that NEPA “is not an appropriate tool to set global climate change policy”.

“Requiring analysis of climate change impacts during the NEPA process, especially at the project-specific level, will slow our economic recovery while providing no meaningful environmental benefits,” they said.

The senators cited a study by a national transportation commission showing that “the median time to complete environmental impact statements for highway projects in recent years has been as high as 80 months” or six-and-a-half years.

Those lengthy delays, they noted, cause significant increases in project construction costs.

The two senators asked Sutley to specify what steps CEQ plans to take in response to the 2008 petition and how soon, indicating that CEQ’s response to the petition is just months away.

They also asked for a broad range of memos, e-mails and draft documents or regulations related to the petition.

The council’s response is due on Friday the 13th.

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Paul Hodges studies key influencers shaping the chemical industry in Chemicals and the Economy

By: Joe Kamalick
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