Another Court Ruling Calls for Robust Consideration of Climate Impacts
Out of all the planet-warming fossil fuels, the combustion of coal contributes the most to climate change. So when the Department of the Interior approved a vast expansion of one of the nation’s largest coal mines several years ago without carefully examining the resulting climate impacts, eyebrows were raised. And a group of organizations* filed suit.
On Monday, the U.S. Court of Appeals for the Ninth Circuit ruled in favor of the plaintiffs, finding that Interior failed to take the required “hard look” at the climate impacts of the mine expansion. The court’s well-reasoned opinion could affect not only future coal extraction at the Bull Mountains mine, but also future analyses of proposed fossil-fuel projects throughout the federal government.
Flawed Analysis
According to Interior’s environmental analysis, expansion of the Bull Mountains mine would result in 190 million tons of greenhouse gas emissions over nine years — an annual emissions figure exceeding that of the nation’s largest point source. Interior acknowledged that those emissions would contribute to climate change and even described devastating effects of global warming. Having established that the mine expansion would contribute to climate change, the court explained, “the only question [was] the extent of this project’s contribution to the problem.” And that’s where Interior’s analysis sputtered.
Specifically, Interior compared total emissions from the mine expansion to global annual greenhouse gas emissions. Because the project’s emissions comprised 0.44% of the annual global total, Interior concluded that the mine expansion’s “contribution relative to other global sources would be minor.” Interior effectively ended its analysis there, declaring that the project would have “no significant impact” on the climate. In doing so, Interior rejected established methodologies such as the social cost of greenhouse gases that would allow for a more precise assessment of climate damage from the mine expansion.
This week, the Ninth Circuit held that Interior’s analysis was insufficient. Rejecting Interior’s analysis as irrational and arbitrary, the court explained that comparing the mine’s greenhouse gas emissions “against total global emissions predestined that the emissions would appear relatively minor.” As the court recognized:
“[V]irtually every domestic source of [greenhouse gases] may be deemed to have no significant impact as long as it is measured against total global emissions.”
Indeed, as the Institute for Policy Integrity highlighted in an amicus brief filed in the case, nearly any impact can be made to look minor by comparing it against global figures. For instance, a hypothetical action that resulted in $385 billion in economic cost or benefit — roughly equal to the annual gross domestic product of Ireland — would have the same relative effect (0.44%) if presented as a percentage of global gross domestic product. But that does not make the impact minor. The court accordingly ruled that the agency’s finding of no significant impact was “deeply troubling and insufficient to meet Interior’s burden” to take a hard look at environmental effects.
The Ninth Circuit’s decision was not especially surprising, since the same court rejected a similarly deficient agency analysis nearly 15 years ago. In that case, the court found that the National Environmental Policy Act requires agencies to assess the “actual environmental effects” of the greenhouse gas emissions resulting from their actions, and that this requirement was not satisfied simply by percentage comparisons to global and national emission totals.
Despite that prior ruling, however, federal agencies have continued to conduct cursory analyses of climate impacts in environmental reviews. Numerous agencies have failed to meaningfully consider the climate effects of their actions, duplicating the same types of errors that the Ninth Circuit has now rejected twice. This list includes Interior’s consideration of fossil-fuel leasing and extraction, the Department of Energy’s consideration of fossil-fuel export, and the Federal Energy Regulatory Commission’s consideration of fossil-fuel transmission, among others.
The Ninth Circuit’s new decision clarifies that a more robust analysis of climate impacts is needed. In particular, it states that agencies cannot simply disregard the climate impacts of major fossil-fuel projects by stating that they represent a small portion of global or national emissions. Rather, agencies must rely on rational and evidence-based assessments of the actual climate effects of the project under review.
A Better Solution
One prominent and scientifically-tested method for agencies to comply with their obligation to assess the incremental climate impacts of their actions is the social cost of greenhouse gases. Use of that metric — which shows that the mine expansion would cause $9 billion in climate damage, according to conservative estimates — would enable Interior to more carefully balance environmental cost against economic benefit.
While the Ninth Circuit declined to require Interior to necessarily use the social cost methodology — recognizing that “prescribing a specific metric for the agency to use on remand is not [the court’s] role” — it implored Interior to “use some methodology that satisfies NEPA and the [Administrative Procedure Act]” by evaluating the mine expansion’s “significance in terms of [its] contribution to global warming.”
The court’s message is clear: Agencies cannot continue to brush aside the climate impacts of major fossil-fuel projects based on a cursory analysis. Time will tell how agencies respond.
*Plaintiffs in this litigation were 350 Montana, Montana Environmental Information Center, Sierra Club, and WildEarth Guardians. The case is 350 Montana v. Haaland, No. 20–35411 (9th Cir. Apr. 4, 2022).
