NEPA, Climate Change, and Public Lands Decision Making
Mark Squillace & Alexander Hood, NEPA, Climate Change, and Public Lands Decision Making, 42 Envtl. L. 469 (2012), available at http://law.lclark.edu/law_reviews/environmental_law/past_issues/volume_42/42-2.php.
One of the most difficult challenges facing public land managers today is how to address climate change in a meaningful way when making decisions affecting public lands. This problem is largely the product of the high levels of uncertainty surrounding climate change and the potential consequences of climate change for the large and complex landscapes and ecosystems that public land agencies manage.
In February 2010, the Council on Environmental Quality (CEQ) issued draft guidance to federal agencies describing how these agencies should address climate change in their decision documents. Recognizing the difficulty of the task, however, the CEQ's draft guidance expressly disclaimed any intention of affording assistance to public land management agencies maldng complex land-use decisions This Article seeks to fill that gap. It begins by describing the National Environmental Policy Act (NEPA) and the unique difficulties in applying NEPA to climate change and public land management. It then considers three case studies that illustrate the complex challenges that face public land managers, including 1) the United States Forest Service's treatment of the Mountain Pine Beetle in Colorado and Southern Wyoming, 2) the Regional Water Supply Pipeline proposal to bring 250, 000 acre-feet of water from the Colorado River Basin to the Front Range of Colorado and Southern Wyoming, and 3) fossil fuel leasing on public lands in general, with specific discussions of shale gas fracking, coal mine methane, and oil shale extraction.
These case studies form the basis for a series of recommendations for the CEQ and land-use planning agencies. Most importantly, the Article recommends that land-use planning agencies quantify the greenhouse gas (GHG) emissions that result from their proposed actions and attach a price to those emissions that reflects the marginal social cost of climate change that might result from those emissions. Although the social cost of GHG emissions may be uncertain, assigning a price to those emissions that reflects their social cost will promote more accurate cost assessments, and ensures that such costs become a meaningful part of the decision-making process. The Article also recommends that the CEQ propose rules to ensure that agencies are held accountable when they commit to adaptive management in their decision documents. Finally, the Article offers several general recommendations for coping effectively with the uncertainty and scale of climate change.
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