Neither the National Environmental Policy Act (“NEPA”) nor its implementing regulations require consideration of climate change in NEPA documentation. Yet an ever-growing body of NEPA case law related to climate change is making it increasingly difficult for a federal agency to avoid discussing the impacts of those emissions under NEPA in its Environmental Impact Statements (“EISs”). Although consideration of climate change in NEPA documents sounds right in theory, within the current legal framework, the NEPA documents provide only lip service to the goals of NEPA without any meaningful consideration of climate change. An empirical evaluation of two years of selected EISs demonstrates that the degree of “consideration” is far from meaningful, an outcome that fails to reflect the purposes behind NEPA. As a result, the nation is left with more paperwork and more greenhouse gas emissions. This Article concludes that inclusion of climate change in NEPA documentation is inevitable, but that within the current judicial interpretations of NEPA and the Administrative Procedure Act, litigation has reached its maximum effectiveness to elicit meaningful consideration of climate change. It makes recommendations for fortifying NEPA with concrete requirements to address this new challenge, including a recommendation that all but de minimis greenhouse gas emissions be considered significant under a NEPA analysis.
Amy L. Stein, Climate Change Under NEPA: Avoiding Cursory Consideration of Greenhouse Gases, 81 U. Colo. L. Rev. 473 (2010), available at http://scholarship.law.ufl.edu/facultypub/503