An Executive Order to Require Consideration of Global Warming Under the National Environmental Policy Act
SOURCE: AP/Charles Dharapak
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The Earth’s climate is changing due to the emission of greenhouse gases caused by the combustion of fossil fuels. This jeopardizes social and economic well-being and threatens global ecosystems. Avoiding the worst effects of global warming requires aggressive action to reduce greenhouse gas emissions and prepare for imminent changes in sea level, air temperature, and precipitation patterns.
The United States can and should take immediate action to address climate change through comprehensive domestic and international policy. The U.S. Congress is considering legislation that would implement a national carbon cap-and-trade system to begin to limit greenhouse gas emissions and facilitate a transition to a low-carbon economy. This transition offers profound opportunities for global leadership through policies that address climate change while providing solutions to long-standing social, economic, and environmental challenges.
It is not necessary, however, to wait for new legislation to take action. Existing federal and state environmental laws and regulations provide the authority and mandate to begin to understand and address greenhouse gas emissions and prepare for changing climatic conditions. The federal government, for example, has been repeatedly challenged to take action under the:
- Clean Air Act. In January 2008, California filed a lawsuit in conjunction with 15 other states to contest the Environmental Protection Agency’s denial of California’s waiver request to regulate tailpipe carbon dioxide emissions as a pollutant under the Clean Air Act.
- Endangered Species Act. In 2005, the Center for Biological Diversity petitioned the Secretary of the Interior to list the polar bear (Ursus maritimus) as a threatened species due to habitat loss and degradation associated with global warming, noting that “the species sea-ice habitat is literally melting away.”
Congress has also recognized the need to use existing laws as the basis for federal action. In 2007, for example, Senator John Kerry (D-MA) proposed an amendment to the Water Resources Development Act that would have required the Army Corps of Engineers to assess costs and impacts related to global warming in all future water resources development projects. Unfortunately, the amendment was withdrawn before it could be voted on.
More promisingly, Senator Hillary Rodham Clinton (D-NY) earlier this year proposed a global warming amendment that made it into the FY 2008 Department of Defense Authorization Act that President Bush signed into law. This amendment requires the Department of Defense to consider the national security risks posed by global warming in the National Security Strategy, National Defense Strategy, and the Quadrennial Defense Review.
Unfortunately, executive branch agencies have largely failed to recognize and act to address the implications of climate change for their areas of responsibility. For example, the General Accountability Office recently discovered that the Department of Interior failed to consider climate change in a wide variety of planning documents—as required under a 2001 order by then-Secretary of the Interior Bruce Babbitt. The GAO concluded that federally managed lands are vulnerable to a wide variety of effects associated with global warming, but the GAO noted that the department has yet to finalize guidance for consideration of such effects more than seven years after the Secretarial Order was issued.
Indeed, the U.S. government currently lacks a systematic process for evaluating the consequences of federal actions for greenhouse gas emissions or vulnerability to changing climatic conditions. This situation contributes directly to a critical gap in information needed to make decisions about the costs and consequences of federal actions for global warming.
Over the past decade, the lack of such assessments might once have been accepted as a product of scientific uncertainty or, perhaps, personal or political ideology. Today, however, the failure to consider these issues approaches negligence in the stewardship of public resources. This paper examines how another foundational environmental law, the National Environmental Policy Act, should be applied to fill this critical information gap by requiring the consideration of global warming in environmental assessments of federal actions.
NEPA is designed to provide full disclosure of the environmental effects of federal actions to the government and to the public. The law is intended to ensure that decision-makers are armed with a complete understanding of the environmental impacts associated with such decisions. Failure to systematically consider global warming under NEPA undermines this goal. That’s why the federal government must clarify NEPA’s authority to ensure that global warming is systematically considered during environmental assessments of federal actions, rather than relying upon a series of litigation challenges to force attention to this issue, as is currently the case. The government should not waste its limited resources defending the notion that information about climate change is not relevant to decision-makers or the public.
In this paper, we outline an Executive Order that clarifies what we believe is already a requirement under NEPA— that federal agencies can and should explicitly assess the implications of their actions for greenhouse gas emissions and global warming. The consideration of global warming under existing NEPA authorities mandated by a new Executive Order would:
- Provide an essential foundation of public information
- Increase understanding of the costs and consequences of federal actions
- Encourage federal actions that reduce greenhouse gas emissions
- Promote investments that help adapt to the effects of global warming
This will ensure that the costs and consequences of climate change associated with federal actions are understood by decision-makers and disclosed to the public. Such a systematic federal approach will provide the foundation of information needed to identify opportunities to reduce greenhouse gas emissions and prepare for changing conditions. The immediate and appropriate use of existing authorities such as the Clean Air Act, Endangered Species Act—and as highlighted here, the National Environmental Policy Act—will contribute to a comprehensive climate change strategy that complements efforts to achieve an economy-wide cap on greenhouse gas emissions, and demonstrates the leadership necessary for the United States to participate fully in international negotiations.
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