The Wins Keep Coming for Robust Climate Analysis in Fossil-Fuel Permitting
Environmental advocates have insisted for years on the need to robustly account for climate impacts when permitting fossil-fuel infrastructure. Courts and agencies are starting to listen. A recent decision from the U.S. Court of Appeals for the Tenth Circuit and a new guidance document from the White House Council on Environmental Quality mark the latest developments in ensuring that federal agencies consider climate-change impacts before greenlighting fossil-fuel projects.
Both documents relied extensively on Policy Integrity’s research and scholarship. Collectively, these new developments — coupled with similar recent decisions in which Policy Integrity has also played a part — will help ensure that climate impacts play a key role in federal permitting and leasing decisions.
Another Appellate Court Decision Calls for More Robust Climate Analysis
In Dine Citizens Against Ruining Our Environment v. Haaland, the Tenth Circuit reviewed the Bureau of Land Management’s approval of 199 permits for oil and gas extraction in New Mexico. According to the agency’s analysis, these wells (plus 171 additional wells considered in the same environmental review) would directly and indirectly produce over 31 million metric tons of carbon dioxide. Policy Integrity’s amicus brief explained that these emissions equated to more than $1.6 billion in climate harm using conservative damage estimates from a federal interagency working group.
But BLM did not apply those climate-damage estimates, nor did it apply another reasonable method to assess the significance of the climate effects from those 31 million metric tons. Instead, the agency compared the project’s emissions to national and state totals and used such percentage comparison to dismiss the project’s substantial climate effects as minimal. But as Policy Integrity explained in our amicus brief, this dubious logic can be used to make any effect appear small: According to this logic, for instance, Bill Gates’s wealth is insignificant because it comprises a relatively small percentage of all global wealth.
The Tenth Circuit agreed. In its decision last month, the court concluded that BLM’s dismissal of the project’s climate impacts was arbitrary and capricious and failed to satisfy the National Environmental Policy Act’s (NEPA) “hard look” requirement. Relying on Policy Integrity’s amicus brief, the court explained that “comparing the quantity of project emissions to the quantity of state or national emissions provides little guidance because a small percentage of an enormous amount of emissions could still be an enormous amount of emissions.”
While the Court did not dictate that BLM use a particular methodology for considering climate impacts, it offered a few possibilities. These include comparing project emissions to carbon budgets or, as our brief suggested, applying the social cost of greenhouse gases. In recent years, BLM and other federal permitting agencies have begun integrating the social cost of greenhouse gases into leasing and permitting decisions — though they continue to understate the long-term climate impacts of fossil-fuel extraction and transmission.
The Tenth Circuit’s decision follows several other recent federal court decisions similarly rejecting federal analyses for disregarding the climate impacts of fossil-fuel leasing and permitting. Last April, the U.S. Court of Appeals for the Ninth Circuit issued a similar ruling rejecting the Department of Interior’s approval of a coal mine expansion. And in March 2022, the D.C. Circuit rejected an analysis by the Federal Energy Regulatory Commission that failed to consider the approved pipeline’s indirect greenhouse gas emissions.
In the past year, therefore, three different federal appellate courts have called for the robust consideration of climate change impacts in fossil-fuel leasing and permitting.
White House Guidance Formalizes Best Practices
Building on these recent court decisions, the White House Council on Environmental Quality issued long-awaited guidance on assessing climate-change impacts under NEPA. The guidance, which expands on Obama-era guidance rescinded under the Trump administration, outlines best practices for considering climate impacts in fossil-fuel permitting and leasing.
The guidance directly targets the bad analytic practices described above, as it advises agencies to meaningfully contextualize a project’s full emissions and not falsely minimize them through comparison to global or national emissions totals. The guidance also endorses specific methodologies that agencies can use for that contextualization — focusing most prominently on the social cost of greenhouse gases.
But perhaps most notably, CEQ’s guidance recognizes that reasonable decisionmaking requires not simply counting and contextualizing greenhouse gas emissions, but meaningfully integrating climate effects into the agency’s permitting and leasing decisions. Accordingly, the guidance calls for agencies to consider reasonable alternatives and mitigation measures that could avoid the emissions associated with the project — including not permitting the project at all when greener alternatives are available.
CEQ’s guidance offers policymakers critical legal support for promoting cleaner alternatives to fossil fuels that are needed to meet the nation’s climate targets. Policy Integrity’s work played a crucial role in CEQ’s guidance, which cited our publications numerous times.
Coupled with the recent caselaw, CEQ’s latest guidance reenforces the need for agencies to robustly consider climate impacts when assessing proposed fossil-fuel projects. These authorities should help ensure that regulators do not overlook climate change when making critical decisions affecting our energy future.
