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Consideration of Climate Change in NEPA and ESA Processes

Murray D. Feldman, Sandra A. Snodgrass, Resources Development and Climate Change (2008)

In recent years, scientists, policy makers, and stakeholders have focused increased attention on shifting global climate patterns.2 These changes are correlated with increasing concentrations of carbon dioxide and other greenhouses gases (“GHG”) in the atmosphere. Scientists generally agree, and the United States Supreme Court has accepted,3 that the two phenomena are linked, and most agree that burning fossil fuels has contributed to rising GHG levels. While some contest the ultimate cause of climate change and the inevitability of large-scale effects, the debate has shifted from whether climate change is occurring to how to address potential effects of the change, as well as what the appropriate regulatory and permitting response should be.

Despite the growing view that human activity is affecting the global climate, Congress has not yet enacted legislation that would cap GHG emissions. Unhappy with the lack of progress in the legislative branch, non-governmental organizations and environmental litigants have turned to two stalwarts of federal environmental law, the National Environmental Policy Act (“NEPA”) and the Endangered Species Act (“ESA”)--laws enacted long before climate [12-2] change was as widely-recognized as today--as avenues to expose climate change issues and challenge federal agencies and lawmakers to address these issues.

This paper discus