In the wake of Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007) (rejecting the federal government's argument that greenhouse gases, especially carbon dioxide, are not pollutants under the Clean Air Act unless it can show that they do not contribute to climate change), the EPA has shown signs of a new assertiveness toward greenhouse gas emissions in its Clean Air Act duty to comment on all federal agency EISs. On June 1, 2007, the EPA sent this comment letter urging the Interior Department to deal with the methane emissions associated with a proposed mine expansion in Colorado. The EPA notes that methane is over twenty times more effective in trapping heat in the atmosphere than carbon dioxide and designates the DEIS analysis as one to which the EPA has significant objections. In particular, the letter recommends that:
the final EIS identify the magnitude of the emissions and discuss alternatives to allowing the methane resource to be vented directly to the atmosphere. Specifically, we recommend that the final EIS describe the range of alternative technologies available for capturing the methane and the potential economic and environmental benefits associated with capturing and utilizing a portion of the methane emissions.
In October 2008, the WildEarth Guardians challenged the approval of the West Elk mine coal mine under NEPA for failure to consider alternatives to venting methane. Here is the complaint.
By 2008, EPA had begun asking the BLM to quantify the amount of greenhouse-gases emitted by energy projects, and to compare the impacts of alternatives on greenhouse gas emissions. Here is an example from the Toquop Energy Project and another one from the Pinedale Anticline Oil and Gas Exploration and Development Project. Mitigating carbon and methane emissions, and possibly evaluating cumulative impacts, may not be far behind. This 2010 EPA letter commenting on the Keystone XL pipeline, which would nearly double the amount of Alberta tar sands crude oil used by the United States, is a good illustration of how the agency's stance toward accounting for greenhouse gas emissions has grown more aggressive. It also reflects the view that EISs should consider other future demand scenarios for fossil fuels than just "business as usual."
In 2008 the Ninth Circuit weighed in on the debate over how NEPA documents should consider the effects of greenhouse gas emissions. Center for Biological Diversity v. National Highway Traffic Safety Administration, 538 F.3d 1172 (9th Cir 2008), remanded the agency's rule updating corporate average fuel economy (CAFE) standards. Among other problems with the rule, the court found the EA deficient. The EA had quantified the expected amount of carbon dioxide emitted from vehicles but failed to "evaluate the 'incremental impact' that these emissions will have on climate change or on the environment more generally in light of other past, present, and reasonably foreseeable actions." The court explained its reasoning:
Thus, the fact that "climate change is largely a global phenomenon that includes actions that are outside of [the agency's] control ... does not release the agency from the duty of assessing the effects of its actions on global warming within the context of other actions that also affect global warming." The cumulative impacts regulation specifically provides that the agency must assess the "impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions." 40 C.F.R. § 1508.7.
The impact of greenhouse gas emissions on climate change is precisely the kind of cumulative impacts analysis that NEPA requires agencies to conduct. Any given rule setting a CAFE standard might have an "individually minor" effect on the environment, but these rules are "collectively significant actions taking place over a period of time." 40 C.F.R. § 1508.7; see also Native Ecosystems Council, 304 F.3d at 897 (holding that the Forest Service's road density standard amendments must be subject to cumulative impacts analysis because otherwise, "the Forest Service will be free to amend road density standards throughout the forest piecemeal, without ever having to evaluate the amendments' cumulative environmental impacts."). Thus, NHTSA must provide the necessary contextual information about the cumulative and incremental environmental impacts of the Final Rule in light of other CAFE rulemakings and other past, present, and reasonably foreseeable future actions, regardless of what agency or person undertakes such other actions.
In 2009 John Leshy and Mark Squillace proposed this amendment to the Mineral Leasing Act to enable the BLM to better regulate methane emissions from coal mines. Methane released to the atmosphere contributes more than 20 times the heat-trapping intensity as does the same amount of carbon dioxide over a 100-year period. The West Elk mine, describe above as the subject of the EPA comment letter and the WildEarth Guardians law suit, emits enough methane to equal the heat-trapping effects of a 150 megawatt coal-fired power plant. Currently, the MLA does not appear to authorize the BLM to allow a coal lessee to capture methane without undergoing a separate lease auction for the gas.
In February 2010, the Council on Environmental Quality put forward for comment this draft guidance for considering greenhouse gas emissions in NEPA analysis.
This website describes how BLM currently approaches NEPA compliance for onshore oil and gas leasing impacts on climate change. It also links to helpful examples of BLM’s actual analysis.