Shipley Group: [00:00:00] Welcome to the NEPA Project, a monthly podcast discussing NEPA and other environmental topics. In this episode, we will discuss climate change in regards to NEPA including the withdrawal of the draft guidance from CEQ and the implications of recent court cases.

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[00:00:44] The guests on this episode will be Michael Smith and Rhey Solomon. Michael Smith is a nationally recognized leader in NEPA and associated environmental law compliance. With over 20 years of experience in project and program management, Technical Analysis, Policy Development and Training Education for a wide range of public and private sector clients. Rhey Solomon retired from the Forest Service in 2003. After 32 years of government service and is now an independent environmental consultant. Rhey served as the deputy director of ecosystem management in the Washington office before retirement. Let's get to the conversation.

Rhey Solomon: [00:01:21] Michael as you and I agreed we would we would discuss for this podcast. The whole issue of climate change or as you point out what the administration would like to call climate anomalies. I suppose the changing ofthe terminology is kind of indicative of where this administration is with this topic relative to NEPA but the areas of discussion that I think are useful for us to look at would be one the draft guidance from CEQ and its withdraw. And what was in it and what the implications might be of that withdraw if any. And then secondly some of the implications of court cases that we've seen over particularly the last year two years since this administration went in and kind of where the courts are looking at some of the what the expectations are particularly for downstream or indirect and indirect effects and may be cumulative the topic of maybe social costing and where that's going. And then finally the the ANPR that CEQ recently put out with that Michael if you want to kind of give your ideas or thoughts on the climate change guidance from CEQ and its withdrawal.

Michael Smith: [00:02:40] Thanks Rhey Yeah. And maybe will I'll start with a very brief kind of tour of the history of that guidance document. Some folks listening are probably familiar with that but others may not be. And I think it actually goes back to the late 1990s in the Clinton administration. There was actually an internal sort of administrator who drafted a climate change guidance related to NEPA that CEQ had developed and sent around for review within federal agencies. However I think at the tail end of the administration that administration never kind of got out to even a public comment period and then kind of the issue I don't know if the issue went away. But certainly the guidance from CEQ went away for quite a long time.

[00:03:27] But I think as a number of things happened in the mid late 2000s especially even though it wasn't a NEPA related court decision the Massachusetts v. EPA Supreme Court decision in 2005 I think it was basically telling EPA that greenhouse gas emissions were a pollutant that should be covered under the Clean Air Act and that they should basically then go and determine whether they should regulate it which they later did they made that finding and then started down that road for a number of years. And I think the attention and the publicity and all that that came out of that sort of spilled over into NEPA and I think a lot of commenters on NEPA documents started to public meetings and written comments on certain NEPA projects particularly larger projects and especially those involving burning a large amounts of fossil fuels. So particularly energy and fossil energy related projects. Asking federal agencies or requesting them or demanding that they do those analysis and they started to see certainly an uptick in court challenges against agencies that were either not addressing the issue at all in NEPA analysis or were doing it in a very sort of perfunctory manner. And out of that I think came a lot of agency requests to CEQ to develop guidance. There was a lot of confusion on the issue of course this is the beginning question of is this an issue or a topic that should be addressed in the NEPA document at all is kind of the first question. I think many agencies back at that time took the view that it wasn't and I think partly because they felt that there was such a large and unique issue for NEPA that the NEPA analysis may not have been the best vehicle for sort of addressing that of not only a national public policy level but really a global level given the nature of the issue.

[00:05:31] So despite all that there again started to be court decisions. Some of them telling agencies that they they did in fact need to do that analysis. And while the variety of different kinds of projects from energy projects, transportation, including motor vehicle emissions Motor Vehicle Standards and the standard training rail projects that were transporting coal. And then again other kinds of fossil energy projects in particular but some other even Forest Service or Land Management type projects from the BLM as well. And out of that in 2010 I believe is the CEQ released a draft. And it was during the fortieth anniversary celebration in NEPA. When they released a draft guidance document and Rhey I know you were intimately following that at the time and it was a very interesting reaction it's a pretty detailed guidance document and I think among other things two things stood out to me at that time was the strong language that CEQ felt it was an issue that fell under the rubric of NEPA and that for at least many NEPA projects maybe not so small and most minor but most other projects. It was an issue that should be addressed in that there are a variety of different ways to do it and certainly one of the most controversial portions of that first draft guidance issued in 2010 was on the issue of how to address quantitative greenhouse gas emissions and also thresholds of significance. At the time CEQ used a metric that EPA had developed as part of their rulemaking for power plant emissions of an annual sort of limit of 25000 metric tons of carbon dioxide equivalent and so kind of a total greenhouse gas emissions measure.

[00:07:29] And basically in the draft guidance they basically suggested that if you were above that line of annual emissions in your NEPA analysis for your project you should probably do a quantitative analysis and if you're below it it seemed to suggest that you could probably just sort of qualitatively address the issue and they received a lot of feedback and comments on it. And again Rhey I know you've been following this issue for a while. I'll just stop there for a second because as we both know that that metric went away and the next draft that was issued, I know you might have some thoughts on that portion.

Rhey Solomon: [00:08:06] Well yeah. And in fact I actually felt that CEQ hadn't gone far enough. My personal opinion on that. And was actually disappointed with subsequent versions. The next two versions the final version and then the intermediate draft they did. That I felt that there were aspects of climate change and the analysis that one could do that they backed off of that I was kind of disappointed. But I know that CEQ traditionally tries to get agreement among the federal agencies and reach consensus. And of course any time you try to reach consensus you tend to well kind of soften the language that you use in order to accommodate everybody and I think as you're going to talk about that's kind of at least that's my perception of what happened with the subsequent draft and then the final.

Michael Smith: [00:09:07] Yeah. That's exactly what happens. I think it was 2014 when four years later another draft was issued by CEQ and the 25000 metric was removed there was really no mention. And I think that you know the language was left very open ended up to leaving it up to agency discretion on determining several things one of which is would they discuss greenhouse gas emissions from the action at all and the guidance I think actually could be easily read to say that unless again you know with a very very minor project like installing a sign or something that there is probably value that is addressing the issue. But then the question of whether to do that qualitatively or quantitatively was you know largely left up to the discretion of the agency. And you know using really logical factors like you know is there a easy or relevant way to calculate the emissions from the action. And you know in these days there are you go online EPA or some NGO calculators for all different kinds of actions and equipment that you might use. And in seconds you can actually get estimates for that. So I think yeah that issue and then you know the interestingly I think this gets lost in the discussion on the issue of climate change and NEPA as you know there are two fundamental aspects really of the issue and one is what we're talking about now which is the actions impact on the environment in this case through greenhouse gas emissions and potentially affecting climate change. But there is kind of what some people call the reverse of that or even reverse impact assessment which is getting around to say climate or climate change impact potential impacts on the action and that can kind of happen through to two fundamental ways.

[00:11:06] One would be that the climate change itself and changing precipitation patterns or hydrologic changes obviously severe storms events, sea level rise, that any of those things might affect our actual action in some way in particular if it's an infrastructure project. The idea the implication that we probably ought to be considering that particularly for projects that might have a long lifetime in terms of their operation view. So that's one piece of it. The idea is also how the climate change may affect the other resources or impact topic areas that we're covering whether that might be vegetation or wildlife habitatetc.

Rhey Solomon: [00:11:49] You mentioned the second half of this what I call the flip side of the equation here. And that is the implications to agencies from changes in climate whatever that might be and I was disappointed in CEQ that they attempted to provide guidance on the greenhouse gas emissions with the 25000 metric tons and then there is other standards that EPA was wrestling with because of their regulations for potentially controlling greenhouse gases 75000 metric and so forth. But but on the side of the responsive strategies I was disappointed the CEQ didn't provide the same type of a timeframe if you will bench mark our goal posts that one could decide that if you were less than a certain number of years for the life cycle of your project that climate change would be uncertain enough as to not be an issue for dressing in your document. Whereas if you went beyond that then it does become a question that I think agencies should look at as they look at the projects. And I was disappointed that CEQ didn't give some type of a guidance as to what that limit might be as well.

Michael Smith: [00:13:11] Yeah that's a good point and you know when that second draft came out in 2014 certainly that was an area that CEQ received a lot of comments on. But they did they did separate that area out as a separate area. You know despite I think some of the lack of clarification that you're pointing out is not going far enough. Nonetheless the guidance that draft guidance did have you know pretty strong language suggesting that you know yeah most agencies for most of their actions should probably be thinking in scoping about addressing either of those aspects of this kind of the reverse impact analysis. Well just to quickly finish the story most many folks are aware of that second draft came out in 2014 and then in August 2016, CEQ actually released the final guidance document. And they think for a lot of NEPA practitioners in agency's there was a little bit of a sense of relief even though they might have still have issues and problems with some aspects. The fact that their was now a final guidance document was viewed as useful and helpful particularly given some of the conflicting court decisions that we'll talk about later here that we're kind of adding an element of confusion on the issue and many federal agencies. Certainly well all federal agencies, many of them were holding back on changing their own agency regulations or issuing their own guidance because they were fearful to run counter to what CEQ was doing. So there was actually quite a bit of activity. Not long after that August 2016 release of the final CEQ guidance. And I think overall people viewed that as sort of a positive development.

[00:15:04] And you know some agency's really started to solidify what their approach was in tackling this issue in the NEPA documents, but again many people probably know. To further throw a wrench in that aim for more clarification in the new administration last April, April 5th 2017. And this was out of an executive order that the president had signed ordering CEQ to do this, CEQ published in the Federal Register a notice of withdrawal of the final guidance for the greenhouse gas emissions and climate effects guidance document and Rhey. To my knowledge I don't think CEQ has ever withdrawn any of their final guidance. I don't know if you can recall an instance of a really unusual event.

Rhey Solomon: [00:15:48] No I cannot recall an instance where CEQ, now they've they have superseded a final guidance with other final guidance. But I've never known them to ever withdraw a final guidance. So this brings us then to the topic. Micheal of. OK. Now that it is withdrawn. What does that really mean? And what what can we surmise from all that. Which brings us to the court cases which you and I have both been intimately working at looking at. So. So what are the courts telling us. Because clearly the regs didn't change the law didn't change the only thing that changed was the guidance which if. CEQ had never issued the guidance in the first place we would still have to comply with case law. So you may want to pick up from there what what your thoughts are on that.

Michael Smith: [00:16:43] Yeah well I'll start actually with an observation. I think the first part of that question is an excellent one and lots of people are first NEPA practitioners are asking this is you know. So what are we supposed to do and what does it mean that the guidance was withdrawn. I think you know the first point about for everybody to recognize is you know when it was in place it was a guidance document and a guidance document only. And so it wasn't a change or a revision to the CEQ implementing regulations or the statute. And so it didn't remove all the confusion because there's a long line of history of court cases involving NEPA where questions over what is the true meaning and force or effect of CEQ guidance document as being guidance versus as being a regulation or a statute. So that aside, I'll say from my observations and hearing from many federal agencies and attorneys who work for federal agency and also with the Department of Justice that there is there is some response out there that says, well the guidance was withdrawn but there's a lot of really useful and good information in there and good direction. So we here at agency X are continuing largely to follow it. We won't be saying or we won't be citing it in our NEPA documents but we think there's a lot of good stuff in there. And in fact I've actually seen some recent NEPA documents that have said that you know while we were working on this NEPA document while it was in process. You know the guidance was in effect so we followed it and yes it was withdrawn. Here's a note about that. So I think that's an interesting response that again this whole process is left some agency's kind of in a confusing lurch. Yeah the kind of moving then to the the court's response. And again it's not like the withdrawal triggered some sudden response from the courts. This issue again has been addressed by courts and there have been NEPA climate change challenges going back to the first case that I'm aware of was way back in 1990. And then there was kind of a you know a quiet period for quite a long time. But since that time there's an especially if we go back about a decade or so when this issue really kind of took off. There have literally been well over 100 federal district court and appellate court decisions and we've had on this issue. We've not had the US Supreme Court directly address this issue with NEPA at least to date although I suspect and maybe partly because of the withdrawal of this guidance maybe that might lead that issue at some point down the road to hit the Supreme Court's docket or they may be interested in taking an appeal to them on this particular issue.

[00:19:39] But you know Rhey your question which is probably what most people want to know is okay well what's the answer? What's the court's view? And like lots of NEPA issues you know unfortunately there isn't some single conclusion that we can offer about what the courts say you have to do it. You don't have to do it. The decisions are a little bit kind of all over the map and I think you can say, one observation I would make in following these court decisions, certainly for larger actions particularly those involving fossil energy use, there's a pretty predominant opinion at the federal district court and appellate court levels in their decisions that you need to be addressing the greenhouse gas emissions. Certainly directly from your project.

[00:20:26] And there are some interesting questions and we can talk about this next. I'll turn it over here for a second for your initial thoughts. But there are some very interesting questions that are kind of being debated in the courts of the decisions right now about how far we go with indirect effects analysis. In other words often with energy projects even on the upstream side so if it's something that's a transporting fossil fuels like a natural gas pipeline. Does the agency need to address where the natural gas is coming from and the potential impacts from the development of a natural gas well in fracking and all that. And then on the other side of the and on the downstream side does the agency regulating and proposing an action just for transportation in the field. Do they need to look at the the actual burning of the fuel emissions whether that happens in the States or in some cases off somewhere else in the world. And then there's the cumulative impact issue that transcends kind of law through that as well. And again we'll talk in a minute here about a couple specific recent court opinions on that. But I'll turn it back to your Rhey for some of your kind of initial thoughts on the overall court litigation. Yeah.

Rhey Solomon: [00:21:43] Your summary Michael, is is right on with exactly kind of the development of how the courts have looked at this and in fact as I go back and look at the court cases, you really the definitive court cases that that required agencies to be at least quantitativee in the look of the greenhouse gas emissions side you find that the Southern California case and the District case in 2003, it was really the first one that really suggested that agencies had to take that quantitative look and when you take a look at 2003 that's only what 15 years ago. And then in terms of the course of NEPA since 1970 that's fairly recent case law. So as you indicated this this evolution of the interpretation of the courts and what they expect is it is not only new but it is inconsistent not inconsistent but but different circuits in different districts give you a little different spin on things. And so it hasn't gotten to the level where it's really is defined as other cases and as you point out certainly the Supreme Court has not weighed in on the NEPA side of it. The aspect of either the greenhouse gas emissions side or the responsive strategies with the exception of under the Clean Air Act litigation which at least the Supreme Court went as far as to say yes it is a pollutant. Well okay. Now that that kind of raises this issue a little to a higher level than it might have been had the court not suggested that that greenhouse gases were potentially a gas that that EPA could regulate. Now how they're going to do that is a whole other issue. But yeah I think as it's developed at least my impression is the courts have at least indicated you need to quantify the quantification is really dependent on the breadth and the amount of fossil fuels you might be producing. The downstream question of course is related in part to the quantity. The area though that you may want to speak to as well is the courts I haven't seen been quite as instructive in the flip side and that is when do you have to consider the implications of climate change. I've seen some of that come out of ESA legislation particularly up in Alaska but as it really ties to NEPA. I haven't seen that come through the courts in a way that is suggesting the level of analysis that we do for the greenhouse gas emissions side. So with that you may want to kind of summarize your perspective on where you think the important cases are on all the that.

Michael Smith: [00:25:00] That's a really interesting aspect of this. And I think you know the short answer is that the courts really have rarely addressed to gauge that issue of this kind of a reverse impact assessment. I've seen it a couple district court opinions. One I can recall from several years ago in Montana the challenge to a Forest Service with a logging and thinning project. Where the plaintiffs charge the agency had not addressed those types of impacts kind of at the ecosystem level and taken the changes of climate into account on how that was going to effect what the action was designed to do in restoring to a particular forest condition and that particular opinion. The court said oh well we don't really think that that falls in the purview of a NEPA. They don't really need to do that.

[00:25:51] So we haven't seen a strong opinion the other way saying, emphatically you know you do need to look at this and as you mentioned in the endangered species act where I can also think of some opinions that going back to like I think the year 2007 here where I'm at in California. Where with the water delivery sort of projects and changes here in central California doing the biological opinions of the Fish and Wildlife Service and National fisheries service were doing for species a species of salmon and also another fish species in Sacramento and the San Francisco Bay Delt called the Delta Smelt where the agency you know is a 50 year I think sort of period for the biological opinion and the court said that the agency's had not taken into account the changes that were expected and that the science and modeling including science and conclusions that the agencies themselves had prepared about how the snowpack in the Sierra Nevada Mountains was going to be quite a bit lower which would melt earlier and so the sort of hydrologic regime was going to be changing and yet the analysis in that case again in the biological and this assumed kind of a static baseline in other conditions 50 years from now at the time that they did the analysis would be the same and the courts said yeah we have a thousand pages here that say that's not true. So now go back to the drawing board and redo that. We haven't really seen that direct kind of NEPA issue be addressed head on. At least I haven't in a court case. I suspect we probably will. Kind of going forward, but it really hasn't come up. So again the majority of the case law has been on the the effect of the action on climate change through greenhouse gas emissions.

[00:27:42] And I think maybe the last thing we want to talk about before we conclude is again just a few of these recent cases and court opinions we've seen that point to maybe what we'll see going forward that kind of both relate to the continued building of this case on how the courts are viewing the issue and then maybe also a response to the withdrawal of the guidance and also other initiatives that are currently going on in this administration. And I think as I mentioned briefly earlier this the issue of indirect impacts analysis and the scope of that in NEPA reviews for actions I think is really interesting. And I wanted to mention one opinion from last year, this is from August 22nd 2017. A lot of people consider this kind of follow this issue and I know a number of attorneys that I've talked to consider this to be kind of a game changing opinion in many ways. So the case is called Sierra Club v. FERC the opinion is a pinion from the D.C. Circuit Court of Appeals. So that's part of why this is kind of viewed as a really important decision just because of the prominence of the D.C. Circuit Court and they have not issued an opinion worded in this way in such strong language previously and several other challenges against federal agencies with NEPA Analysis and the action here involved FER, the Federal Energy Regulatory Commission, and their approval of a certificate for a pipeline to run from essentially Central Alabama down through parts of Georgia and then into Florida. And so it was tying into an existing pipeline network that is bringing gas from the Marcellus Shale region largely in Pennsylvania to the north down and then essentially constructing a link of pipeline actually three interconnected segments that take it down to central Florida and there were several projects that utilities there were going to be converting or building new natural gas power plants and/or converting from a coal fired power plant. So FERC did an EIS on the project and the challenges led by the Sierra Club sued and among other things. The key issue here is that the analysis was flawed. It didn't comply with NEPA because because the agency did not look at the indirect effects of burning the gas. So in other words, the CIS did have a quantitative analysis of the natural gas the GHG emissions from constructing and operating the pipeline itself and its associated compressor stations but it did not look either upstream where the gas was coming from, although the challengers didn't challenge on that. But again the challenge issue was that they didnt then do a calculation and analysis of the emissions from actually burning the natural gas. And part of the agency's argument was that's outside of our scope as what we review under our law that were doing action under the Natural Gas Act. And we don't control the power plants and burning so that's outside of our purview. The Sierra's Clubs response was, Well that may be true from a certain jurisdictional standpoint but from the NEPA standpoint of an indirect effect being caused. You know taking place under CEQs definition and implementing regulations and the indirect effect being the fact that happens farther in distance or later in time from our action and they said that we think that's exactly what's going on here. Long story short, the court in a very strongly worded opinion basically said that they did feel that it fell under the purview of NEPA and the definition of indirect effects and that despite the agency's jurisdictional argument they have the data and information.

[00:31:22] A lot of people have pointed out that is a distinguishing factor in this particular case is that the agency had available to very specific information from the utilities and other entities in Florida about exactly what kind of plants and how they were going to burn fueletc. Partly for that reason the courts said, therefore the agency should have provided that analysis. Now based on the decision the agency then went back and actually supplemented their EIS to add that analysis and they do that very quickly. So the decision was in August, by the end of September 2017 they'd issued a draft supplementary EIS that was 8 pages long and it included that quantitative analysis. But it said, that's all we can do. We can't go farther and tell you what we think the implications of these greenhouse gas emissions are for climate change because we don't really have the technology and ability to model that. And then they also said because the petitioners had asked them to use the social costs of carbon tool to potentially as a way to essentially calculate what the damages the effects on overall climate change might be and the agency argued that the tool was not suitable for a number of different reasons. Therefore they weren't going to use it. They then issued a final supplemental EIS in February of this year. And then ultimately though it was a little bit longer they did a little bit more detailed analysis but continue to make the same arguments about the inability to say what their model what the ultimate effects on climate change were and also that they weren't going to use the social cost of carbon tool. And then ultimately this spring that they did approve the project with the revised supplemental NEPA analysis. So we'll see what happens whether that case may be or whether that supplemental NEPA document may be challenged as well. And there are several other challenges involving that agency with other pipelines and some of those involve some that are pending in the courts right now involve the question of upstream impacts and again and whether they should addressed as an indirect effect as well.

Rhey Solomon: [00:33:30] Kind of building on that did set certain expectations I think in terms of where agencies thought they might go in terms of what they do. And that varies by agency. I mean just the recent case the case up in the District of Montana where a judge Morris just in March of this of this year ruled against the BLM in much a similar way. That BLM approached much the same analysis that FERC had done with this argument that we really can't we were not going to look at the indirect effects of the greenhouse gas and where that's going to go and some of those downstream questions. They looked at the greenhouse gas emissions of the project in terms of the development the construction of the wells and all that but they didn't take a look at the production level of it and the downstream applications and the court then sent it back to be BLM to work with the plaintiffs in that case to work that out. So here again recently in 2018 we see that that same kind of a philosophy on the part of the courts.

[00:34:51] However it isn't universal among agencies. I find as an example here you have the BLM taking that course of action and yet when you take a look at the five year oil and gas leasing by the Bureau of Ocean Energy Management for The gulf, which was put out and I think the final for that was in July of 2017. Yeah. And in that analysis as you point out not only did they do the downstream analysis of that, but they also did what I consider one of the more sophisticated analysis of the social cost of carbon. And so different agencies even within the same department seem to be taking different strategies. And and I'm not sure where that's all going to end up in the courts but you would have thought that the administration would have established a more uniform approach to this which evidently they have not decided to do or if they do I would be a little cautious of them being overly conservative and restricting the level of analysis because I think the courts clearly if anything or expecting a higher level of examination particularly of indirect effects and the cumulative effects than what this administration might expect them to do.

Michael Smith: [00:36:22] Yeah I think that's a good point. And you know it's interesting another argument that has come up in some of the court challenges has been agencies as you said is this kind of diversity even though some agencies have been taking the position with some of their actions that they're not really in in a way I guess you could phrase this as responsible for the emissions that might come from their action because of kind of substitution argument. And so what you saw in an opinion a very strong opinion last year. Also in 2017. In the 10th Circuit Court of Appeals based in Denver it's called The Wild Earth Guardians v. BLM.

[00:37:02] So another BLM challenge this one for coal mining in the Powder River basin. And here the agency in their EIS basically said that you know that there really wouldn't be any net increase in emissions because if this coal was not mined wherever the coal was going to go whether it was going to be burned in the United States or in Asia or wherever that you know those people in those power plants would just get the coal from somewhere else. And therefore the change the difference between our no action alternative to not mine this coal and our actions alternative. There really isn't any difference and the court did not buy that argument at all. And one of the interesting things that they said about that was they pointed out that the agency had calculated the benefits of mining the coal and you know the jobs and employment as well as the burning of it and then basically said we can't tell you about the adverse impacts of that. And the court just said that doesn't really make logical sense. And they called that as an arbitrary and capricious argument for that. And we've seen that in a few other opinions as well and that issue I remember came up as well with all of the debate about the climate change impact analysis and the Keystone XL pipeline. The State Department was working through that. Several versions of that EIS going back about a decade now and of course that that issue is still pending in the courts where we now have challenges to the recent administration's decision to overturn the decision to deny the pipeline. Now we have challenges that the NEPA analysis may be out of date that are pending in the courts for that project.

[00:38:37] So that's another one to stay tuned because there are some climate change issues with that particular opinion and then the last thing I just wanted to mention interesting is on another piece of this I've seen some recent court opinions that especially challenges that we're seeing from some of the NGO groups is asking for again particularly agencies as you mentioned like the Bureau of Ocean Energy Management, FERC with pipeline regulation, and then also the Land Management Agencies like BLM that deal with large energy, oil gas etc type projects is. Groups that are now saying that these agencies are missing the cumulative impacts, cumulative action sort of aspect of some of these. Typically when they're looking at groups of individual projects in a particular geographic area. So for instance there are a few challenges and petitions with FERC, the Federal Energy Regulatory Commission there they've been considering a number of different pipeline proposals from different companies in the geography of the Northeast and the NGO groups are basically saying, hey you know you are one offering these and there's really a cumulative impact issue here. You probably should be doing some type of programmatic NEPA document that considers a group of these actions if they're happening in simiar geography in the similar timing. Maybe you need to put them all together. And some may remember at the tail end of the last administration. BLM had actually begun a programmatic EIS for coal mining in the United States and looking at that from a big picture sort of view with a big focus on the overall cumulative greenhouse gas emission climate change piece. So again the administration that particular EIS was canceled in progress and then the new administration came in. But I don't think that the issue is going to go away and I suspect that's another piece of this that we will see continue the outcrop in the court cases and the challenges the challenges are going to bring against federal agencies.

Rhey Solomon: [00:40:39] And the other the other issue that has risen but not really been litigated to an extent that the courts have ruled one way or another on it specifically, is this business of the social cost of carbon. That although certainly EPA had come up with some ways of doing that BOEM had done that as part of their EIS. That is not a consistent analysis that has been done that I've seen as part of the economic evaluation of greenhouse gas emissions and then adding to the complexity of that is the administration's efforts right now and looking at how EPA has approached that of discount the discount rate that EPA had originally used of 7 percent. This administration is saying well wait a minute. Now that that doesn't make sense in light of the current discount rates that we're using of around 3 percent and therefore clearly the social cost of your greenhouse gas emissions is greatly inflated and therefore we need to look at a closer look at what that implication is. Which in my mind you may want to speak to this Michael in my mind is kind of an interesting dilemma in that the administration and trying to deflate the whole social cost analysis has actually given it some validity by focusing on the analytical internal rate of return rather than trying to debunk the whole process. Do you have any thoughts on that?

Michael Smith: [00:42:21] Well ya it does seem to be a little bit of an irony that by arguing that you know that the assumptions used were incorrect and therefore we need to fix or revise them.

[00:42:35] Yeah it does seem to run counter to other arguments that we've seen agencies and the Department of Justice make in defending some of these challenges. And you know NGO have brought to agencies for not using the social cost of carbon tool in their analysis. And that was one aspect of it but there were other aspects as well that were used to say that it was too speculate that you know had other problems. So yeah. And you know with the courts we've seen at least one federal district court opinion I think back in 2014 involving the Forest Service with coal mining in Colorado. Where the court actually said that the agency needed to use the tool and that if they wanted to go forward with the project they needed to revise the NEPA analysis to do that. And then we saw an opinion last year. I think in that case you mentioned with the Office of Surface Mining and the Department of Interior coal mining in Montana that the court there they didn't actually directly say you have to use it, but they did say they did tell the agency in the opinion ruling against the agency for other reason with flaws with the analysis that they should have used the tool. It was kind of a pretty strong suggestion. So yeah I suspect we'll see more of that. And I think you're right that the decision to perhaps revise the tool, kind of relegitimizes it. So that probably will increase the interest in the challengers trying to press that particular argument.

Rhey Solomon: [00:44:10] To me kind of the last area that we may want to talk about that that will be interesting to see where we go is the recent AMPR by CEQ of looking at redoing the CEQ regulations. And right now climate change is certainly not a prominent mention within the CEQ Regs, given that you know they were written back in 78 where climate change at that time was not one of the front running issues to be dealt with. And so I'm wondering where this might go in terms of if CEQ does change the regs whether they will address climate change or not. In any more refined way than what is currently in the rags.

Michael Smith: [00:45:02] Yeah I think that's certainly both an interesting and outstanding question. And in terms of how it will be resolved. In that notice that was published I think it was last week or the week before in the federal register you know CEQ posed a series of questions that they wanted folks to comment on as they began this project that potentially revises regulations. You know as you noted Rhey, of course climate change greenhouse gas emissions. None of that is mentioned at all. The questions are actually very very broad. Now certainly I suspect they'll get feedback they'll get comments to some of the broad questions about to provide clarification on any topics that we don't now do in the CEQ regulations. I'm sure people will mention that. You know one thought about that though that's kind of interesting going back to the early days of people addressing this issue. Is that sometimes you hear folks say well you know we don't really need to address climate change or greenhouse gas emissions because they're not mentioned in, as you pointed out, in the 1970s CEQ regulations, that I always point out you know, you go in there and really look, there is very few specific impact or resource topics that are called out. I mean CEQ doesn't provide some list. Here's what you should cover. Here's what you should not. They just say do scoping and figure out what's relevant. I always found it kind of funny the argument that well it's not mentioned in there so we don't need to analyze it. Like well what about the other 10 issues you are routinely look at in your NEPA documents that aren't mentioned in the regulations.

Rhey Solomon: [00:46:39] I laugh sometimes I point out Section 1022F which a lot of people totally blow off. They don't even know it exists until I point it out. And and it does talk about indirectly, global type issues, but the little escape clause in there is as consistent with foreign policy. And so, you know that kind of throws a little bit of a wrinkle into it that that some people will argue well gosh, clearly this administration doesn't believe that climate change is something that's that's a policy area particularly us wanting to extract ourselves from the Paris accord. And so why should we deal with Section 1022F. But you know it's there. And and I think it does remind us that that as we move forward with environmental analysis particularly for larger projects that one should be a little cautious about ignoring some of those larger kinds of issues.

Michael Smith: [00:47:38] Totally agree and as we moved towards concluding here Rhey. I just wanted to give folks a shout out to an excellent resource. You know these, even if this is a new issue for people listening to our conversation is a pretty complex issue. There's a lot going on. There is an increasing number of both, you know pending cases and opinions on this and a lot of different varieties of different ways that agencies are addressing this currently in their NEPA documents. And so a source that I use frequently which is a fantastic source is the Columbia University in New York. They have a Climate Change Law Center. You can do a web search for that, Columbia Climate Law Center, and should get you to their link. And they've got a lot of fantastic resources. One thing they do is they follow all of the NEPA case law related to climate change and they seem to update it up literally if not daily, weekly. And it's a running tally of all of these other pending cases where the court opinions that have been issued with links to the actual opinions or if its a case still in progress, the briefs from the defendants and the plaintiffs. So a really wonderful resource and they actually do that for all areas of federal law including the Endangered Species Act the Marine Mammal Protection Act and Clean Air Act. All the other laws that we've seen. And they actually do it internationally too for those that might be interested in that. But the other thing they do from a practitioners standpoint, you'll find on their Web site resources involving NEPA and climate change including some studies they've done where they've had, I think law student interns basically comb through every EIS for a period of time and they've done this for several snapshots that have been filed with EPA with EPA to see, did they address climate change in any fashion? Whether the greenhouse gas emissions or the reverse impacts side.

[00:49:29] And if they did what did they do? And did they do a quantitative analysis? Did they do a qualitative? And then they do some interesting parsing of the data, they show that you know for water resources projects a certain percentage look at climate change but it's higher for energy projects it's lower for transportation projects. So some really interesting reports that you can find and then also they've done some interesting practitioners sort of white papers on how to address some of these issues including how to address again this idea of climate change impacts on the action itself. And how might you do that and some examples of how some agencies you know have addressed those issues to date. So I would certainly recommend that for folks that want to kind of going forward follow this issue that's a really great source.

Rhey Solomon: [00:50:12] Yeah I guess with that Michael we will kind of end this podcast, to say that you know as you point out it is a developing area of analysis a developing area of case law. And we're just going to have to see where this all takes us. But it is in an area of development and infancy. And so folks need to pay attention to recent case law particularly the Columbia Law School database. Which I use and identify in the courses that we teach, that that's an excellent resource for people to rely upon.

Shipley Group: [00:50:45] Thank you for listening to this episode of the NEPA project. To view the transcript of this discussion. Go to shipleygroup.com/podcast. If you have any questions or comments in regards to this episode. Or you have any topics or ideas for future episodes. Please reach out to shipley@shipleygroup.com. We would love to hear from you.

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