"Press reports indicate the White House soon will instruct federal agencies to consider the effects on climate of activities they review under the National Environmental Policy Act (NEPA)," the Oil & Gas Journal says on April 1 in a warning to its industry readers. The National Review speculated that, in taking such a step, the Obama administration would open the way "for further litigation and substantial delays on Keystone, whether the federal government officially blocks construction or not." But looking at the draft Environmental Impact Statement for the proposed Keystone tar sands pipeline raises the question: under NEPA, what would it take for the climate change implications of particular projects, no matter how large, to be judged sufficient to block their implementation? Giving agencies guidance language for non-binding NEPA assessments is no substitute for having the political will to block specific industry-supported projects.
[Our April 1 article in the Washington Spectator: Where are the Keystone XL pipeline whistleblowers?]
The National Environmental Policy Act, in effect since 1970, establishes procedural requirements for all federal agencies to prepare environmental assessments and environmental impact statements analyzing the environmental implications of proposed major federal actions.
Bloomberg news reported on March 15:
Obama Will Use Nixon-Era Law to Fight Climate Change
President Barack Obama is preparing to tell all federal agencies for the first time that they should consider the impact on global warming before approving major projects, from pipelines to highways.
The result could be significant delays for natural gas-export facilities, ports for coal sales to Asia, and even new forest roads, industry lobbyists warn. ...
In taking the step, Obama would ... expand the scope of a Nixon-era law that was first intended to force agencies to assess the effect of projects on air, water and soil pollution. ...
NEPA ... reviews don’t mandate a specific course of action. They do provide a chance for citizens and environmentalists to weigh in before regulators decide on an action -- and to challenge those reviews in court if it’s cleared. ...
The next target is TransCanada (TRP)’s application to build the 1,661-mile (2,673-kilometer) Keystone pipeline. The Sierra Club and 350.org drew 35,000 people to Washington last month to urge Obama to reject the pipeline. Meanwhile, the NEPA review by the State Department included an initial analysis of carbon released when the tar sands are refined into gasoline and used in vehicles.
It stopped short, however, of saying the project would result in an increase in greenhouse gas emissions. With or without the pipeline, the oil sands will be mined and used as fuel, the report said. That finding is likely to be disputed in court if the Obama administration clears the project.
“Keystone is ground zero,” said Snape, of the Center for Biological Diversity. “Clearly this will come into play, and it will be litigated.”
So even before any action by the administration to add new guidance for NEPA assessments, the lines are being drawn. The Oil & Gas Journal, April 1 ("NEPA and the Climate"):
In practice, however, NEPA too often functions merely as a weapon of environmental obstructionism. Adding the postulated effects on climate change to all NEPA deliberations will help pressure groups block projects they dislike—a category that includes nearly anything related to oil.
An indication of what's in store comes from troubles faced by developers of three coal-export terminals in the US Northwest. Environmental groups, with support from Oregon Gov. John Kitzhaber, pushed to broaden NEPA review to account not only for local effects but also for the climatological consequences of burning coal in Asia.
That expansionist argument is painfully familiar to the North American oil industry. The case against construction of the Keystone XL pipeline has come down to the global warming supposedly due from producing bitumen in Alberta and burning the associated oil products. It's thin camouflage for an antipetroleum agenda...
The National Review went another step and asked, Did Obama Just Block Keystone?:
The Bloomberg report makes it clear that Obama’s order opens the way for further litigation and substantial delays on Keystone, whether the federal government officially blocks construction or not. That’s because NEPA allows citizens and environmental groups to file claims against projects even after they win government approval.
So the Obama administration could green-light the pipeline, file a report that stops short of calling Keystone a major global-warming hazard, and still find the project delayed for years by environmental groups bringing court challenges under the new NEPA guidelines.
This is all probably a bit premature. The Obama administration has pretty much slow-walked everything else about its climate policy, such as it is, and re-working NEPA guidelines to include climate change impacts is probably no exception. E&E News PM reported on March 15 (by subscription):
A draft guidance was first released in February 2010, but the White House Council on Environmental Quality today denied a Bloomberg report that it would be finalized in the immediate future. The office said the document is still under development. ...
An analysis by the [Climate Law Center at Columbia University] shows that while most federal agencies now address climate change to some extent in the environmental impact statements they prepare, the specific impacts considered and the methodology used in these analyses vary widely.
"While some agencies exhaustively calculate emissions using specific figures, others provide only very general estimates or conclude that emissions are not significant enough to warrant calculation," the analysis said. ...
Anthony Swift, an attorney for the Natural Resources Defense Council, said the White House's interest in moving the NEPA guidance forward "is a signal that climate is going to be taken more seriously when agencies like the State Department evaluate it in the national interest determination process."
He said he expected that seriousness to spill over into administrative decisions on projects like the Keystone XL pipeline, which he said would turn on the climate impacts of facilitating the use of greenhouse-gas-intensive crude from Alberta's oil sands.
Perhaps. Hopefully. But we have worked with elected officials enough over the years to know the Keystone XL decision is going to be made on the basis of a political calculation, not on the basis of an environmental impact analysis. If the impact statement is politically useful it will be cited.
As for systematically including climate change impacts in NEPA Environmental Impact Statements, one can reasonably be skeptical about how this will play out. NEPA assessments are not policy statements, they are about specific projects. The specific project must either be approved, or not. Any one project, even a multi-billion-dollar pipeline or a major coal-export terminal, in the energy used in its construction and operation, will contribute only a very small fraction of global greenhouse gas emissions. What would it take to trigger a "No" decision on a proposed project's contribution to climate change?
Only if we have a policy to expedite the phase-out of fossil fuels and the development of energy alternatives, only if we have a policy that looks at the aggregate contribution to climate change of full development of the Canadian tar sands, or of coal exports to abet unconstrained coal-fired power in Asia, will decisions be made to block a tar sands pipeline or a coal-export terminal. It is difficult -- almost impossible, really -- to believe the Obama administration will give guidance to agencies to consider such factors seriously in NEPA assessments and support the agencies in following through with project-denying decisions.
So is the White House planning to approve the Keystone XL while offering up guidance language for future assessments -- i.e., giving the rhetorical victory to the environmental side while awarding the real, big-ticket victory to the oil industry? As the prospect of new NEPA guidance on climate impacts is floated, the White House needs to understand that this is not a politically acceptable trade-off. Corporate power, the oil industry, and their supporting cast of Congress members, commentators, and activists will complain about NEPA, but that will be a comparatively trivial problem for them if they still manage to get their pipelines and export terminals approved.
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For good critical discussion of the State Department's Supplemental Environmental Impact Statement (SEIS) on the proposed KXL pipeline, now out for public review and comment, see:
New York Times editorial: When to Say No
Skeptical Science: State Department Downplays the Climate Impact of Keystone XL
Natural Resources Defense Council: On the wrong track: Rail is not an alternative to the Keystone XL tar sands pipeline
Brad Johnson, Forecast the Facts: 'State Department' Keystone XL Report Actually Written By TransCanada Contractor
Inside Climate News: Critical Part of Keystone Report Done by Firms with Deep Oil Industry Ties
Michael Northrup: Let's Count the Ways Keystone Approval Helps Us: Memo From Houston