Obama to use Nixon-era law to fight climate change. Will it work?

President Obama will use NEPA, the National Environmental Policy Act, signed into law by President Richard Nixon in 1970, as a way to fulfill his State of the Union pledge to use executive power to address climate change when Congress fails to act.

Mark Drajem at Bloomberg explains how NEPA will work:

NEPA requires federal agencies to consider and publish the environmental impact of their actions before making decisions. Those reviews don’t mandate a specific course of action. They do provide a chance for citizens and environmentalists to weigh in before regulators decide on an action -- and to challenge those reviews in court if it’s cleared.

So, for any new major projects that require federal approval - and this will include highways, pipelines, mines and drilling, among other things - the effects the projects will have on the climate must be considered.

That seems reasonable and I'm cool with that. Why would we not consider how huge projects would affect the climate?

But as Justin Gerdes notes it can be difficult for an agency to determine how to consider climate change without a national plan for climate change:

In the absence of a national climate and energy plan, how should agencies assess the planet-warming potential of individual projects?

He points to a real-world example reported in a piece by Paul Shukovsky at Bloomberg BNA involving the Army Corp of Engineers.

Ray Clark, CEQ’s deputy director for NEPA oversight during the Clinton administration, told Shukovsky that the Corps is not keen to evaluate the climate change impact of burning U.S. coal in Asia. “Why should the corps be saddled with all the baggage of making such a huge decision?” he asked. “It’s not really a corps decision. This is a bigger thing than the Corps of Engineers. It’s got a lot of implications. For example, why would you permit mining Powder River Basin coal [from federal land] with no place for it to go? There are a lot of decisions here. Why is the corps being asked to make these big macro decisions?” [Gerdes' emphasis]

Gerdes concludes:

These are all valid points and get at what is, I think, the real takeaway from Shukovsky’s story: the United States must address how it will assess and account for the climate change impact, in and outside its borders, of major projects such as the construction of coal-export terminals and the Keystone XL pipeline and the below market price sale of coal from Wyoming’s Powder River Basin.

Shukovsky's report and Gerdes' analysis are filled with more interesting detail than I can quote here, so go read them both.

With anything this significant -- and this is significant -- we'll have to wait and see how it plays out. But I'm left concluding that it would be a whole lot less complicated, and likely far more effective, if we just had a sane Republican party that could cooperate with the administration and Democrats in Congress to pass a new, modern piece of legislation that would establish a national plan for climate change action. Without that, it is nice to see Obama using the tools in his control to at least try to fix this crisis.

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