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Climate Change and the National Environmental Policy Act

Frederick R. Anderson, Geraldine E. Edens, NEPA and Federal Land Development (2006)

For several years, the domestic climate policy debate has focused principally on whether the US would agree to implement the Kyoto Protocol and secondarily on congressional proposals for multi-pollutant legislation that would include regulation of carbon dioxide emissions. Having lost momentum on both of these, proponents have now turned to state legislation, litigation in federal courts, and corporate governance strategies which seek to compel companies to reduce (or at least disclose) carbon emissions or to convince officers and boards they must undertake global warming emissions reductions as a matter of corporate policy.

This article is about litigation that combines elements of these strategies, but with a significant new twist -- using the National Environmental Policy Act (NEPA) to bring climate considerations into federal project approval and funding decisions. This litigation strategy is long-term and indirect. It cannot force specific warming emissions reductions to be made. But proponents reason that because NEPA requires a detailed federal environmental impact statement (EIS) on the potential climate impacts of federal actions, they can raise public concern about climate through publicity and debate, cause agencies to hire climate experts, create a record of federal documentation of potential climate impacts, deter agencies and companies from projects with