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A Climate-Constrained NEPA

The fight to force climate change into environmental-impact assessment, pursuant to the National Environmental Policy Act (“NEPA”), has been long, bitter, and mostly pointless. Even where agencies have relented in litigation or have proactively worked to integrate climate-change considerations into their NEPA documents, the factoring done has consigned those considerations to the margins. Impact assessment naturally does so. Every such action/assessment will involve what amounts to a drop in a bucket of contributory causes to a globally scaled, temporally remote catastrophe. Aggregative analyses minimize such contributions behind other, more proximate choice factors. A 2014 proposed guidance on climate change and NEPA from the Council on Environmental Quality ignored this fact. Likewise, the Office of Management and Budget’s “social cost of carbon” estimates allow almost everything they inform to go forward essentially unchanged.

This Article argues that a new approach is both urgently needed and feasible. The approach sketched here consists of the development of programmatic alternatives pursuant to NEPA § 102(2)(E). This provision of the act requires all agencies to study and develop alternative uses of “available resources,” regardless of the magnitude or timing of their actions’ marginal environmental impacts. This Article makes the case that our principal “resource” where climate change is concerned now is what remains of the planet’s cycling and sinking capacities. If we are to pursue the mitigation goals the U.S. Government committed to in Paris in December, 2015, this approach is urgently needed. The steps outlined in Part V of this Article will help speed the U.S.’s development of mitigation options while avoiding some of the frictions other approaches entail.

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