What effect will this holding have?

The holding and the reasoning in this case will not only affect the type of environmental analysis that must be performed for future federal actions, but also offers guidance on how state courts might address environmental review requirements under CEQA. In interpreting CEQA, the California state courts frequently refer to federal court interpretations of NEPA. Such may be the case here.

Key principles from this case that may impact future discretionary approvals under NEPA and CEQA include:

The impact of a proposed project’s GHG emission releases on climate change is precisely the kind of cumulative impact analysis that NEPA requires agencies to conduct. A similar holding under CEQA may soon follow.
Simply accounting for the amount of GHG emissions generated by a project does not constitute a "hard look" at the environmental consequences of the action.
Even if a proposed project would have an improvement over existing conditions, i.e., an infill project, does not necessarily mean that it will not have a cumulatively significant impact on the environment.

Ninth Circuit Holds: Federal Agency Must Prepare EIS Based on the Cumulative Impacts the Project Will Have On Climate Change as the Result of GHG Emissions

William R. Devine
(949) 851-5412
wdevine@
allenmatkins.com

Salvador M. Salazar
(949) 851-5418
ssalazar@
allenmatkins.com

On November 19, 2007, the 9th Circuit Court of Appeals held that the National Highway Traffic Safety Administration (“NHTSA”) must prepare an EIS in order to properly assess Greenhouse Gas ("GHG") emissions attributable to new automobile fuel efficiency standards. This is the first opinion by the 9th Circuit requiring a federal agency to assess GHG emissions and other climate change impacts under the National Environmental Policy Act (“NEPA”).

The court not only held that GHG emissions and climate change impacts must be addressed, but required NHTSA to prepare an EIS in order to appropriately analyze these issues. The court stated that the “impact of GHG emissions on climate change is precisely the kind of cumulative impact analysis that NEPA requires agencies to conduct.”

Events leading to the decision

In prior decisions, the 9th Circuit has held that NEPA requires federal agencies to prepare an EIS if there is a substantial question as to whether a proposed project may have a significant effect on the environment, either individually or cumulatively. The court reviewed the Environmental Assessment ("EA") prepared by NHTSA and concluded that the cumulative impacts analysis was inadequate because the project may have a significant effect on the environment.

In making this determination, the court noted that, while the EA quantified the expected amount of carbon dioxide (a GHG) emitted from light trucks to be governed by the federal rule, it did not evaluate the incremental impact that these emissions will have on climate change or on the environment in light of other past, present, and reasonably foreseeable actions.

The Court later noted that the fact that climate change is largely a global phenomenon that includes actions that are outside of the agency’s control does not release the agency from the duty of assessing the effects of its action on global warming within the context of other actions that also affect global warming.

Finally, the Court rejected NHTSA’s position that an EIS was not required because the new standards would result in decreased carbon dioxide emissions over the old standards and noted that simply because the final rule may be an improvement over the prior standards does not necessarily mean that it will not have a significant impact on the environment. In reaching this conclusion, the court stated that simply accounting for the amount of GHG generated by a project does not constitute a "hard look" at the environmental consequences of the action. In light of all of the above, the court directed NHTSA to prepare an EIS to, among other things, analyze the impact of GHG emissions on climate change.