federal climate change law and policy - law professor...

Land Use Institute

Federal Laws, Regulations, and Programs Affecting Land Use Decision-Making Thursday, July 30, 2015 10:30 - 11:45 AM

Stephen R. MillerUniversity of Idaho College of Law

I. Federal climate change law and policy....................................................................................2II. National Environmental Policy Act.......................................................................................19

© Stephen R. Miller 1

This memorandum provides an update on federal laws, regulations and programs affecting land use decision-making with regard to (i) federal climate change law and policy and (ii) the National Environmental Policy Act. The memorandum was drafted with an emphasis on developments since July 1, 2014, and thus does not conclusively cover either topic, but only aims to review those major developments of the last year. Those actions and decisions considered of special importance are marked with a star ().

I. Federal climate change law and policy

This section provides an overview of federal climate change actions affecting land use law. First, this memorandum will examine actions taken through executive and agency actions to address climate change. This will include a general overview of the Obama Administration’s signature policy vehicle for addressing climate change through administrative means, the President’s Climate Action Plan. Then, the section will take a closer look at several especially important administrative actions including EPA’s Clean Power Plan Rule, CEQ’s guidance on GHG emissions in NEPA, recommendations of the State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience; and several executive orders of particular import. This section will then turn to a brief review of climate change litigation and conclude with a brief resources section.

A. Executive and agency actions

Given the Obama Administration’s impasse with a Republican-led Congress, climate change policies have primarily proceeded through executive and administrative means, which will be explored in this section to the extent they are relevant to land use law.

i. Overview and update on performance of the President’s Climate Action Plan

In June, 2013, President Obama released The President’s Climate Action Plan (2013 Climate Plan). The Plan consisted of numerous executive actions based around three key pillars: (i) cut carbon pollution in America; (ii) prepare the United States for the impacts of climate change; and (iii) lead international efforts to combat global climate change and prepare for its impacts.1

In June, 2015, the Obama Administration released a two-year update report on executive actions taken to address climate change entitled President Obama’s Climate Action Plan: 2nd

Anniversary Progress Report (2015 Climate Plan Update).2 The report is arguably the best way to obtain an overview of hundreds of actions regarding climate change taken by the administration. The 2015 Climate Plan Update also contains hyperlinks to hundreds of primary source documents, and is a valuable resource for those seeking resources related to executive and agency climate change actions.

1 EXECUTIVE OFFICE OF THE PRESIDENT, The President’s Climate Action Plan (June, 2013), https://www.whitehouse.gov/sites/default/files/image/president27sclimateactionplan.pdf.2 EXECUTIVE OFFICE OF THE PRESIDENT, President Obama’s Climate Action Plan: 2nd Anniversary Progress Report: Continuing to cut carbon pollution, protect American communities, and lead internationally (June 2015), https://www.whitehouse.gov/sites/default/files/docs/cap_progress_report_final_w_cover.pdf.


This section of the memorandum excerpts those parts of the 2015 Climate Plan Update of special interest to land use lawyers. Excerpts are admittedly generous, but are provided here with a conscious effort to inform land use lawyers of the multifarious agency actions underway to address climate change that seldom receive press attention and that otherwise can be difficult to uncover.

The goals of the Climate Action Plan when fully implemented, as stated in the 2015 Climate Plan Update, are to:

Cut nearly 6 billion tons of carbon pollution through 2030, an amount equivalent to taking more than 1.2 billion cars off the road for a year;

Enable the development of nearly 12,000 megawatts of wind, solar, and geothermal energy, enough to power more than 3 million homes;

Train more than 75,000 workers to enter the solar industry; Save households and drivers nearly $300 billion on their energy bills; Improve the energy efficiency of more than 1.5 billion square feet of city

buildings, schools, multifamily housing complexes, and businesses across the country;

Protect the health of vulnerable Americans, including children and the elderly, by preventing 150,000 asthma attacks and up to 6,600 premature deaths.

a. Cutting U.S. carbon pollution

The first of the three action prongs in the 2013 Climate Plan is to cut U.S. carbon pollution. The 2015 Climate Plan Update provides status updates on executive and agency actions for this prong in the areas of clean energy; transportation; cutting energy usage in homes and businesses; reducing potent greenhouse gas emissions and protecting public health; and federal government efforts to lead by example. Actions taken as described in the 2015 Climate Plan Update are detailed below.

1. Clean energy

With regard to using clean energy to cut U.S. carbon pollution, the 2015 Climate Plan Update notes the following executive and agency actions taken since 2013 that are relevant to land use law:

Accelerating Clean Energy in Affordable Housing: The Climate Action Plan set a goal to install more than 100 megawatts of renewable energy on Federally assisted housing by 2020. As of June 2015, the Department of Housing and Urban Development (HUD) announced that 45 affordable housing and service providers across the nation have committed to installing over 180 megawatts of on-site renewable energy – far surpassing the goal five years ahead of schedule and more than doubling the amount of renewable energy on HUD-assisted multifamily buildings. Additionally, President Obama announced a series of executive actions to bolster investment in energy upgrades in homes and Federal buildings, strengthen appliance standards and building codes, and


develop a skilled solar workforce. In June 2015, the Administration announced technical and financial assistance from HUD and DOE to help unlock private-sector capital to finance low-income solar and a series of private-sector commitments to deploy solar on affordable housing and invest in low-income solar.

Bolstering Clean Energy Deployment in Rural America: In October 2014, the Department of Agriculture (USDA) committed up to $250 million for lending to finance the first program of its kind to enable rural cooperatives to invest in to invest energy efficiency improvements and renewable energy systems. Additionally, through the 2014 Farm Bill, USDA invested $880 million dollars toward solar energy generation, advanced biofuel production, energy efficiency for rural small businesses and farms, and research and development for clean fuels. For example, in February 2015, USDA announced the availability of up to $280 million in grants and loan guarantees for renewable and energy efficiency projects under the Rural Energy for America Program.

SunZia Southwest Transmission Line: In January 2015, DOI approved the SunZia Southwest Transmission Line, including two proposed 500-kilovolt transmission lines and associated infrastructure located between central New Mexico and central Arizona. SunZia is one of the priority projects of the Obama Administration’s Rapid Response Team for Transmission, which aims to improve the overall quality and timeliness of electric transmission infrastructure permitting. The project has the potential to add 3,000 to 4,500 megawatts of electric capacity to the Desert Southwest Region of the U.S., and to increase energy security by providing access to currently stranded renewable energy resources in eastern New Mexico.

2. Transportation

With regard to using transportation to cut U.S. carbon pollution, the 2015 Climate Plan Update notes the following executive and agency actions taken since 2013 that are relevant to land use law:

Reducing Emissions through Transportation Investment: In March 2015, the Department of Transportation (DOT) transmitted the Administration’s proposed Generating Renewal, Opportunity, and Work with Accelerated Mobility, Efficiency, and Rebuilding of Infrastructure and Communities throughout America (GROW AMERICA) Act to Congress. The GROW AMERICA Act would increase transit funding by 76 percent, invest $29 billion to improve rail infrastructure , and establish a $1 billion I Fixing and Accelerating Surface Transportation (FAST) grants program to incentivize strategies and best practices that include those that reduce energy use and emissions. Finally, the Act takes initial steps to understand local planning approaches and progress to determine national performance measures surrounding connectivity to public transportation and non-motorized modes.


3. Cutting energy waste in homes and businesses

With regard to cutting energy waste in homes and businesses, the 2015 Climate Plan Update notes the following executive and agency actions taken since 2013 that are relevant to land use law:

Expanding the Better Buildings Challenge: The President’s Better Buildings Challenge continues to drive progress by helping American commercial, industrial, and multifamily buildings become at least 20 percent more energy efficient by 2020. Since May 2014, over 60 new cities, school districts, universities, manufacturers, and businesses across the country made have commitments to join the Better Buildings Challenge. Additionally, 12 organizations have joined Better Buildings as new Financial Allies, committing $2 billion to help owners and managers of multifamily housing and other organizations with energy efficiency upgrades. Across the country, Better Buildings Challenge partners have completed upgrades to more than 32,000 facilities with 4,500 buildings improving efficiency by at least 20 percent, and another 12,000 by at least 10 percent, compared to their baseline years. In total, there are now 250 partners committed to cutting energy waste across 3.5 billion square feet. The Better Buildings partners are making tremendous progress and saving on average 2 percent each year, with total savings to date of 94 trillion BTUs or $840 million. Financial allies have placed over $3.5 billion dollars in energy efficiency projects.

Multifamily Housing: In December 2013, the President’s Better Buildings Challenge expanded to include multifamily housing. 89 multifamily partners have agreed to participate to date – representing roughly 400 million square feet of property and affecting nearly 400,000 households.

Data Centers: In September 2014 Better Buildings expanded to take on data centers, with 19 new public and private partners, including DOE National Laboratories, Federal agencies, and private companies, including CoreSite Realty Corporation, eBay Inc., and Staples. These partners pledged to improve the efficiency of data centers, which together currently consume more than 90 megawatts of power.

Advanced Lighting Challenge: In January 2015, the Administration launched the Advanced Outdoor Lighting Challenge, challenging mayors across the country to upgrade 1.5 million outdoor lighting poles, thus tripling the existing outdoor lighting goal. As part of this effort, the Better Buildings Outdoor Lighting Accelerator is already working with 10 cities, three regional networks of dozens of cities, and two states to upgrade their outdoor lighting.

Setting Water Savings Goals: Building on the water savings achieved by Better Buildings Challenge partners through a water pilot launched in 2014, the program is officially expanding to encourage partners to set water goals and share their solutions. To date 23 partners from the commercial, industrial, and public sectors


have set water savings targets. In 2014 alone, partners reported saving 377 million gallons of water – the equivalent of 570 Olympic-size swimming pools.

Residential Accelerators: In May 2015, two new Better Buildings Accelerators launched with 30 national and regional organizations, State and local governments, and utility partners teaming up with DOE to help American families improve the efficiency of their homes. The Home Energy Information and Home Upgrade Program Accelerators are aimed at making home energy information more accessible to potential homebuyers and improving and expanding home upgrade programs that help Americans save money on their energy bills.

Better Buildings Solution Center: The Solutions Center profiles hundreds of tested and proven partner innovations and strategies in a new web tool designed to help users explore energy efficiency solutions on topics such as building type, sector, technology, market barriers, and more.

4. Reducing potent GHG emissions and protecting public health

With regard to reducing potent GHG emissions and protecting public health o cut U.S. carbon pollution, the 2015 Climate Plan Update notes the following executive and agency actions taken since 2013 that are relevant to land use law:

Reducing Emissions and Increasing Carbon Sequestration from Agriculture and Forests: In April 2015, USDA announced a comprehensive and detailed approach to support farmers, ranchers, and forest land owners in their response to climate change. The framework consists of 10 building blocksthat span a range of technologies and practices to reduce greenhouse gas emissions, increase carbon storage, and generate clean renewable energy. USDA’s strategy focuses on climate-smart practices designed for working production systems that provide multiple economic and environmental benefits, in addition to supporting resilience to extreme weather, reduced emissions, and increased carbon storage. Through a comprehensive set of voluntary programs and initiatives, USDA expects to reduce net emissions and enhance carbon sequestration by over 120 million metric tons of carbon dioxide equivalent per year – about 2 percent of economy-wide net greenhouse emissions – by 2025.

5. Leading at the federal level

With regard to efforts of the federal government to lead in cutting U.S. carbon pollution, the 2015 Climate Plan Update notes the following executive and agency actions taken since 2013 that are relevant to land use law:

Reducing Greenhouse Gas Emissions in the Federal Government: The Federal Government is the single-largest consumer of energy in the United States. In March 2015, President Obama signed Executive Order 13693 on Planning for Federal Sustainability in the Next Decade to reduce 11 greenhouse gas emissions in the Federal Government by 40 percent over the next decade, and to increase the share of electricity


the Federal Government consumes from renewable and alternative sources to 30 percent. As a result, taxpayers will save up to $18 billion in avoided energy costs. Additionally, the Administration released a new scorecard to publicly track the self-reported emissions disclosure and progress for all major Federal suppliers. The combined results of these actions will reduce greenhouse gas emissions by 26 million metric tons by 2025 – the equivalent of taking nearly 5.5 million cars off the road for a year.

b. Preparing U.S. for impacts of climate change

The second of the three action prongs in the 2013 Climate Plan is to prepare the U.S. for the impacts of climate change. The 2015 Climate Plan Update provides status updates on executive and agency actions for this prong in the areas of building stronger and safer communities; protecting the U.S. economy and natural resources; and using sound science to manage climate impacts. Actions taken as described in the 2015 Climate Plan Update are detailed below.

1. Building stronger and safer communities

With regard to efforts to build stronger and safer communities, the 2015 Climate Plan Update notes the following executive and agency actions taken since 2013 that are relevant to land use law:

Since the release of the President’s Climate Action Plan and Executive Order 13653 on Preparing the United States for the Impacts of Climate Change, the Administration has launched a number of initiatives to protect families, businesses, and communities from the risks posed by climate change.

Building Stronger and Safer Communities State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience: Executive Order 13653 on Preparing the United States for the Impacts of Climate Change established a State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience. This group of 26 elected officials from across the country advised the Administration on how the Federal Government can remove barriers to climate-resilient investments; modernize Federal programs, grants, and loans to better support local efforts; and develop the tools necessary to help communities prepare for climate change. In November 2014, the Task Force issued their final recommendations, which address cross-cutting themes that range from improving resilience in our nation’s infrastructure to protecting human health. Many of the actions included in this progress report were informed by Task Force recommendations. Some additional examples include:

In July 2014, the Administration launched a $10 million Federal-Tribal Climate Resilience Partnership and a $13 million collaboration to develop advanced 3-D mapping.

In November 2014, EPA announced up to $600,000 in training and technical assistance to help drinking water, wastewater, and stormwater utilities in more


than 20 communities bolster their climate change resilience and readiness using EPA’s Climate Resilience Evaluation and Awareness Tool.

In December 2014, the Council on Environmental Quality released updated draft guidance for Federal agencies on how to consider greenhouse gas emissions and the impacts of climate change in their environmental analyses under the National Environmental Protection Act.

In May 2015, EPA released a new web-based climate adaptation training module to help local government officials prepare for the impacts climate change may have on the services they provide to their communities.

Support Climate-Resilient Investment: In order to ensure that our communities and economy are secure, Federal agencies are working to modernize their programs to encourage and support resilient economic development. For example:

In April 2015, DOT announced $500 million in competitive grants to fund transportation projects, including those that help communities prepare for flooding, storm damage, and disruption of the transportation network.

DOT is also working to incorporate resilience into transportation system planning. In a proposed rule published in June 2014, states and the Metropolitan Planning Organization were encouraged to reference plans that address climate change and resilience to current and future conditions as part of their overall planning document.

The Administration’s GROW AMERICA Act proposal would clarify the ability of State and local governments to use Federal transportation funding for transportation resilience through a requirement that long-range transportation plans consider potential vulnerabilities and risks of critical highway, transit assets to the impacts of current and future extreme weather, and climate change effects; and an explanation of potential strategies for the adaptation of those critical assets.

In April 2014, EPA announced an addition to the resilience requirement in its brownfields cooperative agreements.

Federal Flood Risk Management Standard: In January 2015, the President signed Executive Order 13690 on Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input, establishing a flood standard that will reduce the risk and cost of future flood disasters by requiring all Federal investments in and affecting floodplains to meet higher flood risk standards. By requiring that Federally funded buildings, roads, and other infrastructure be constructed to better withstand the impacts of flooding, the President’s action will support the thousands of communities that have strengthened their local floodplain management codes and standards, and will help ensure Federal projects last as long as intended. The


new standard gives agencies the flexibility to select one of three approaches for establishing the flood elevation and hazard area they use in siting, design, and construction.

Rebuilding and Learning from Hurricane Sandy: The Hurricane Sandy Rebuilding Task Force’s Rebuilding Strategy not only continues to help the Sandy-affected region rebuild resiliently, but also serves as a model for communities across the nation facing greater risks from extreme weather.

Refined Petroleum Product Reserve: In May 2014, DOE announced the creation of a Northeast Regional Refined Petroleum Product Reserve holding one million barrels of gasoline to help mitigate the impacts of sudden and unexpected future supply interruptions in the Sandy-affected region.

Rebuild by Design: In June 2014, HUD and the Hurricane Sandy Rebuilding Task Force announced the winners of the Rebuild by Design competition, which connected the world’s most talented researchers and designers with stakeholders in the Sandy-affected region to develop new ideas for increasing the resilience of their communities.

Restoration Projects: In June 2014, DOI announced more than $100 million in competitive grants to support 54 projects on the Atlantic coast to: (1) restore wetlands and other natural areas; (2) better manage stormwater using green infrastructure; and (3) assist states, tribes, and local communities in protecting themselves from major storms.

Transit Resilience Projects: In September 2014, DOT announced that 40 projects were selected to receive a share of nearly $3.6 billion in competitive transit resilience project grants. These investments include almost $410 million to create a natural gas/solar power generation and distribution system as a backup to the regional power network and allow transit systems to function in the event of a blackout caused by a disaster. These investments ensure that infrastructure and transportation systems damaged by Hurricane Sandy are rebuilt stronger and more resiliently in the face of increasingly frequent and extreme weather events.

Emergency Relief Program and Guidance: DOT established their Emergency Relief (ER) program – a direction under the Moving Ahead for Progress in the 21st Century (MAP-21.) This new ER program enables DOT to provide assistance to public transit operators in the aftermath of an emergency or major disaster. This program was designed in a way that encourages more resilient rebuilding after the impact of an emergency and disaster. Additionally, in February 2015, DOT published an updated Emergency Relief Manual to guide users toward appropriate disaster relief funding.

Aviation Navigation Infrastructure: In 2014, FAA began a Superstorm Sandy Case Study project to evaluate the impacts of the storm on aviation navigation


infrastructure. This case study will include information on the amount of time select navigation assets were affected and the cost of repair, as well as lessons learned to form best practices for future extreme weather events.

Recognizing Communities for Leadership on Climate Change: In 2014, the Administration launched the first round of the Climate Action Champions competition to recognize and support the steps that local and Tribal governments are already taking to reduce carbon pollution and prepare for the impacts of climate change. In December 2014, the Administration announced the first Climate Action Champions – 16 local and Tribal communities that had identified their climate vulnerabilities and taken decisive steps to cut carbon pollution and build resilience. The selected communities are benefiting from facilitated peer-to-peer learning opportunities, technical assistance, and targeted support from a range of Federal programs. In December 2014, DOE announced it was making up to $3.5 million in funding available for communities, including the Climate Action Champions, to deploy smart-grid tools and technologies to advance climate preparedness and resiliency of the electricity delivery infrastructure. In August 2014, DOE partnered with the State of Vermont and industry for the groundbreaking on a resilience microgrid that will combine 2.5 megawatts of solar generation with 4 megawatts of energy storage, pairing photovoltaic and storage in such a way that, for example, a high school serving as a public emergency center can be islanded to maintain critical facilities when the grid is down.

Partnering with Local Communities to Identify and Address Region-Specific Vulnerabilities: In July 2014, the Administration launched two Preparedness Pilots that bring together Federal agencies and local communities in assessing and planning for region-specific vulnerabilities and interdependencies associated with the impacts of climate change The City of Houston partnered with NASA’s Johnson Space Center, and the State of Colorado partnered with DOE’s National Renewable Energy Laboratory to advance preparedness planning on the ground and help create models for other communities and agencies to follow. In addition to the pilots, the White House and the Federal Emergency Management Agency (FEMA)’s National Exercise Division conducted a series of workshops to discuss region-specific climate vulnerabilities and adaptation planning strategies to address those impacts. These workshops were held in the pilot locations, as well as in Alaska, Virginia, and Washington, D.C.

Climate Adaptation Exercise Resources for Communities: In 2014, the White House and FEMA launched the Climate Adaptation, Preparedness, and Resilience Exercise Series. This inaugural campaign was comprised of five exercises: a Federal interagency workshop in May 2014; regional workshops in Houston, Texas, Fort Collins, Colorado, and Anchorage in October 2014; and a regional exercise in Hampton Roads, Virginia in December 2014. Building upon the many successes of these initial exercises, a suite of mitigation and recovery-focused exercise resources will be developed by June 2015 to foster and support community-driven climate adaptation and vulnerability reduction across State, local, and tribal communities. Through “train-the-trainer” seminars conducted in Fiscal Years 2015 and 2016, community leaders will better understand the diversity of climate data and tools available to inform locally relevant exercises, and learn


to develop exercises that validate resilience planning. These exercise materials will complement existing climate tools, including the Climate Resilience Toolkit, by making it easier for communities to incorporate existing climate data and build on established exercise design and conduct concepts.

2. Protecting the economy and natural resources

With regard to efforts to protect the U.S. economy and natural resources, the 2015 Climate Plan Update notes the following executive and agency actions taken since 2013 that are relevant to land use law:

Enhancing the Resilience of America’s Natural Resources: In October 2014, the Administration announced a Climate and Natural Resources Priority Agenda, a first-of-its-kind comprehensive commitment to support resilience of our natural resources and enhance carbon storage. The actions outlined in the Priority Agenda focus on protecting important landscapes and developing new science; planning and tools to foster climate-resilient lands and waters; enhancing U.S. carbon sinks, such as forests, grasslands, wetlands, and coastal areas; promoting innovative 21st century infrastructure that integrates natural systems into community development; and modernizing Federal programs and services to build resilience and enhance carbon storage. The Administration also announced a collection of commitments from the private and public sectors that support resilient natural resources and the communities that depend on them.

Partnering with the Energy Sector to Enhance Climate Resilience: In April 2015, Vice President Biden and Energy Secretary Moniz announced the new Partnership for Energy Sector Climate Resilience to improve U.S. energy infrastructure against extreme weather and climate change impacts with the leading providers of electricity services. The participating 17 companies represent a broad array of investor-owned, Federal, municipal, and cooperative utilities. Collectively, these partners represent approximately 20 percent of U.S. generating capacity, and serve approximately 25 percent of U.S. customers. The goal of the Partnership is to accelerate investment in technologies, practices, and policies that will enable a resilient 21st century energy system. Under this Partnership, owners and operators of energy assets will develop and pursue strategies to reduce climate- and weather-related vulnerabilities. In April 2015, DOE convened a roundtable discussion with CEOs from the initial Partners to discuss challenges and opportunities to enhance energy sector resilience.

Advancing Green Infrastructure to Improve Community Resilience: In July 2014, EPA launched the Green Infrastructure Collaborative, bringing together Federal agencies, NGOs, and private sector entities to advance green stormwater infrastructure. Through the Collaborative, Federal agencies will provide funding assistance in at least 25 communities for green-infrastructure projects and host an in person workshop to share information on green infrastructure implementation. In October 2014, new public- and private-sector organizations joined the Collaborative to improve stormwater management and expand the use of green infrastructure techniques in communities across the country. Additionally, in 2015, HUD released a report on the Green Infrastructure and Sustainable


Communities Initiative, which highlights Green Infrastructure efforts from many HUD grantees.

Assessing Vulnerability of Transportation Infrastructure: In August 2014, DOT published a synthesis report of its Climate Change Adaptation Initiative, which presents the collective findings for seven pilot projects aimed at identifying climate impacts on transit systems. In 2014, DOT completed 17 of 19 Climate Change Resilience Pilots, which aim to develop approaches to conduct climate change and extreme weather vulnerability assessments of transportation infrastructure and analyze options for improving resiliency.

Implementing a Wildfire Strategy: USDA and DOI continue to implement the Western Watershed Enhancement Partnership by engaging with local municipalities and towns to reduce hazardous fuels in critical water supply watersheds. In December 2014, DOI announced the availability of Community Assistance grants, which align with the Cohesive Strategy as they emphasize collaboration among State, local, and Tribal leaders and communities in wildland fire management. [To learn more about wildfire, go to http://www.firescience.gov/ and, regarding community wildfire protection plans, see http://www.forestsandrangelands.gov/communities/cwpp.shtml.]

Launching a National Drought Resilience Partnership: In November 2013, the White House launched a cross-agency National Drought Resilience Partnership. The Partnership leverages Federal collaborations already underway with communities, businesses, farmers, and ranchers to build drought resilience and help prepare for future drought events. In July 2014, the Partnership launched a demonstration project in Montana focused on how drought preparedness at the State, local, and Tribal levels can be achieved through enhanced coordination of Federal agency resources in a specific watershed basin. In June 2015, the President convened the Western Governors and senior Administration officials for an update on the Federal Government’s activities in support of drought-afflicted states.

Prioritizing Community Resilience in the President’s Budget: In the Fiscal Year 2016 budget, the President prioritized resilience efforts by including base funding for investments to identify and analyze critical infrastructure vulnerabilities, as well as funds for grants to support research and State- and local-level resilience planning. Additionally, the President’s budget supports programs that build resilience to climate impacts such as flooding, drought, and wildfires, including a $400 million request for National Flood Insurance Program Risk Mapping and a new budget framework classifying severe wildfire activity in the same category as other natural disasters.

3. Using sound science to manage climate impacts

With regard to efforts use science to manage climate impacts, the 2015 Climate Plan Update notes the following executive and agency actions taken since 2013 that are relevant to land use law:


Launching a Climate Resilience Toolkit: In November 2014, the Administration released the Climate Resilience Toolkit, a website that provides centralized, authoritative, and easy-to-use information, tools, and best practices to help communities, businesses, resource managers, planners, and policy leaders at all levels of government to bolster their resilience to the impacts of climate change. [The Toolkit is available at https://toolkit.climate.gov/.]

Developing Adaptation Tools for Transportation System Planners: In January 2015, DOT released Phase 2 of the Gulf Coast Study. Phase 2 focused on the region of Mobile, Alabama, with the goal of enhancing regional decision-making ability to understand potential impacts on specific critical components of infrastructure and to evaluate adaptation options. DOT developed risk management tools to assist transportation stakeholders, including the CMIP Data Processing Tool, which increases access to climate data; and the Vulnerability Assessment Scoring Tool, which provides a framework for conducting a vulnerability assessment. In 2014, FAA began developing guidance on airport climate adaptation and infrastructure resilience.

Incorporating Climate Risks into Design and Asset Management: In February 2015, DOT proposed a process for the development of State risk-based asset management plans. Risk-based asset management serves as a climate adaptation strategy by providing a platform for inventorying assets, evaluating risks to those assets, and prioritizing capital improvements. The rule also calls for evaluations to determine if reasonable alternatives exist for roads, highways, or bridges that repeatedly require repair and reconstruction activities due to emergency events.

c. Leading international efforts to address global climate change

The 2015 Climate Plan Update provides numerous examples of federal efforts to engage with the international community to address climate change. Such efforts are not reproduced here given the scope of the memorandum’s focus on local land use law.

ii. Detailed review of executive and agency actions

This section provides a detailed review of several executive and agency actions of particular relevance to land use lawyers.

a. State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience

As part of his Climate Action Plan, President Obama signed an Executive Order 136533 on November 1st, 2013 establishing a Task Force on Climate Preparedness and Resilience to advise the Administration on how the Federal Government can respond to the needs of communities nationwide that are dealing with the impacts of climate change. The Task Force

3 See Executive Order 13653: Preparing the United States for the Impacts of Climate Change (Nov. 1, 2013), http://www.whitehouse.gov/the-press-office/2013/11/01/executive-order-preparing-united-states-impacts-climate-change.


members, which included governors, mayors, county officials, and Tribal leaders from across the country, 4 offered their recommendations to the Administration in a November 2014 document entitled President’s State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience: Recommendations for the President.5 The recommendations offer guidance on how the Federal Government should modernize programs and policies to incorporate climate change, incentivize and remove barriers to community resilience, and provide useful, actionable information and tools.

In order to better support communities across the country as they prepare for the impacts of climate change, the Task Force proposed that the Administration advance actions across the Federal Government that align with the following overarching principles:

Require consideration of climate-related risks and vulnerabilities in the design, revision, and implementation of all Federal policies, practices, investments, regulations, and other programs.

Maximize opportunities to take actions that have dual-benefits of increasing community resilience and reducing greenhouse gas emissions.

Strengthen coordination and partnerships among Federal agencies, and across Federal, state, local, tribal, and territorial jurisdictions as well as economic sectors.

Provide actionable data and information on climate change impacts and related tools and assistance to support decision-making at all levels.

Consult and cooperate with Tribes and indigenous communities on all aspects of Federal climate preparedness and resilience efforts, and encourage states and local communities to do the same.

The Task Force’s Summary of Recommendations is below:

1. Building Resilient Communities: Climate change will impact communities for years to come, and longterm efforts to build resilience will help communities thrive in the 21st

4 Members of the task force were as follows: State Officials: Governor Neil Abercrombie (HI); Governor Jerry Brown (CA); Governor Eddie Calvo (GU); Governor Jay Inslee (WA); Governor Jack Markell (DE); Governor Martin O’Malley (MD); Governor Pat Quinn (IL); Governor Peter Shumlin (VT); Local Officials: Mayor Ralph Becker (Salt Lake City, UT); Mayor James Brainard (Carmel, IN); Commissioner Paula Brooks (Franklin County, OH); Supervisor Salud Carbajal (Santa Barbara County, CA); Mayor Frank Cownie (Des Moines, IA); Mayor Bob Dixson (Greensburg, KS); Mayor Eric Garcetti (Los Angeles, CA); Mayor George Heartwell (Grand Rapids, MI); Mayor Kristin Jacobs (Broward County, FL); Mayor Kevin Johnson (Sacramento, CA); Mayor Michael Nutter (Philadelphia, PA); Mayor Annise Parker (Houston, TX); Mayor Patsy Parker (Perdido Beach, AL); Mayor Madeline Rogero (Knoxville, TN); Mayor Karen Weitkunat (Fort Collins, CO); Mayor Dawn Zimmer (Hoboken, NJ); Tribal Officials: Karen Diver, Chairwoman, Fond du Lac Band of Lake Superior Chippewa (MN); Reggie Joule, Mayor, Northwest Arctic Borough (AK); and the White House Council on Environmental Quality and the White House Office of Intergovernmental Affairs (IGA) co-chair the Task Force.5 PRESIDENT’S STATE, LOCAL, AND TRIBAL LEADERS TASK FORCE ON CLIMATE PREPAREDNESS AND RESILIENCE: RECOMMENDATIONS FOR THE PRESIDENT (Nov. 2014), https://www.whitehouse.gov/sites/default/files/docs/task_force_report_0.pdf.


century and beyond. By incorporating climate change considerations into its programs, the Federal Government can support communities as they rethink traditional approaches to land use and land management, building and infrastructure siting and design, and community planning.

2. Improving Resilience in the Nation’s Infrastructure: Climate change poses a significant threat to the safety and reliability of critical infrastructure systems. Whether related to energy, transportation, freshwater management, coastal protection, or ecosystems, Federal action can improve the way climate impacts and greenhouse gas emissions are incorporated into public and private infrastructure investments, policies, and practices.

3. Ensuring Resilience of Natural Resources: Climate change puts America’s vital natural resources and ecosystems at risk. By helping communities better protect and conserve the Nation’s natural resources, the Federal Government can improve human and community resilience in cost-effective ways.

4. Preserving Human Health & Supporting Resilient Populations: Climate change presents a significant public health threat to individuals and communities, exacerbating illness and increasing the frequency and severity of dangerous extreme weather events. The Federal Government can support State, local, tribal, and territorial efforts to address the needs of populations most vulnerable to climate impacts, protect public health, and improve disaster preparedness.

5. Supporting Climate-Smart Hazard Mitigation and Disaster Preparedness and Recovery: Climate change will increase the frequency and severity of extreme weather events, which are often devastating to communities. Through more holistic hazard mitigation planning, improved data collection and mapping, partnership development, and program modernization, the Federal Government can improve efforts to prevent and mitigate the effects of extreme weather and other climate-related hazards.

6. Understanding and Acting on the Economics of Resilience: Climate change poses significant economic risk to all sectors and communities. Advancing measures to encourage more prudent investments in long-term resilience can better ensure a vibrant economic future as the climate continues to change.

7. Building Capacity for Resilience: To successfully prepare for climate change, communities must have the capacity to recognize, understand, and assess relevant climate-related hazards, risks, and impacts. The Federal Government can help communities build this capacity by continuing to shape or reshape programs, policies, information sources, and other forms of assistance that enable state, local, tribal, and territorial jurisdictions to prepare for climate change.

b. CEQ draft guidance for considering GHG emissions in NEPA documents


Perhaps one of the most important updates on federal climate change practice that will affect land use lawyers involves new draft guidance for how agencies should analyze GHG emissions in NEPA documents. This is addressed in detail in Section II regarding NEPA updates.

c. EPA’s proposed Clean Power Plan Rule

EPA’s proposed Clean Power Plan Rule is unlikely to have a significant effect on land use law even though it is a pillar of the Obama Administration’s efforts to address climate change. Briefly stated, the proposed Clean Power Plan Rule would require states to write their own plans for complying with emissions targets established by EPA. To do so, EPA has proposed that the states use four “building blocks” in creating their plans, though states are not obliged to use the building blocks, and can propose their own carbon-reducing measures so long as those measures would negate emissions as required by each state’s target. The basics of EPA’s four building blocks for GHG emissions reduction are outlined in the chart below.6

Building Block Value Allocated in Goal-Setting Formula

Make fossil fuel power plants more efficient

Improve equipment and processes to get as much electricity as possible from each unit of fuel

Using less fossil fuel to create the same amount of electricity means less carbon pollution.

Average heat rate improvement of 6% for coal steam electric generating units (EGUs)

Use low-emitting power sources more

Using lower-emitting power plants more frequently to meet demand means less carbon pollution.

Dispatch to existing and under-construction natural gas combined cycle (NGCC) units to up to 70% capacity factor

Use more zero- and low-emitting power sources

Expand renewable generating capacity, which is consistent with current trends.

Using more renewable sources, including solar and wind, and low-emitting nuclear facilities, means less carbon pollution.

Dispatch to new clean generation, including new nuclear generation under construction, moderate deployment of new renewable generation, and continued use of existing nuclear generation

Use electricity more efficiently Increase demand-side energy efficiency to 1.5% annually

6 U.S. ENVTL. PROT. AGENCY, FACT SHEET: Clean Power Plan Framework, http://www2.epa.gov/carbon-pollution-standards/fact-sheet-clean-power-plan-framework.


Building Block Value Allocated in Goal-Setting Formula

Reducing demand on power plants is a proven, low-cost way to reduce emissions, which will save consumers and businesses money and mean less carbon pollution.

iii. Agency climate change adaptation plans and sustainability plans

On October 31, 2014, the Obama Administration released agency climate change adaptation plans and sustainability plans, which were required by the Administration’s Climate Action Plan, and govern how agencies will try to reduce their own carbon footprints.7 Those plans are available on the Internet.8

iv. Climate change-related Executive Orders issued since July 1, 2014

The following is a brief description of several executive orders related to climate change that may affect land use law.

a. Executive Order 13693: Planning for Federal Sustainability in the Next Decade

President Obama issued Executive Order 13693 on March 19, 2015, which will cut the Federal Government's greenhouse gas (GHG) emissions 40 percent over the next decade from 2008 levels–saving taxpayers up to $18 billion in avoided energy costs–and increase the share of electricity the Federal Government consumes from renewable sources to 30 percent.9

b. Executive Order 13690: Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input

7 COUNCIL ON ENVIRONMENTAL QUALITY, Obama Administration Releases Federal Agency Climate Plans on Fifth Anniversary of Presidential Sustainability Initiative (Oct. 31, 2014), https://www.whitehouse.gov/administration/eop/ceq/Press_Releases/_October_31_2014.8 PERFORMANCE.GOV, Climate Change (Federal Actions): Supporting Documents (last visited July 14, 2015), http://www.performance.gov/node/3406/view?view=public#supporting-info.9 Executive Order 13693, Planning for Federal Sustainability in the Next Decade (Mar. 19, 2015); https://www.whitehouse.gov/the-press-office/2015/03/19/executive-order-planning-federal-sustainability-next-decade; see also Implementing Instructions for Executive Order 13693: Planning for Federal Sustainability in the Next Decade (June 10, 2015), https://www.whitehouse.gov/sites/default/files/docs/eo_13693_implementing_instructions_june_10_2015.pdf.


President Obama issued Executive Order 13690 on January 30, 2015,10 which provides a new flood standard that will apply when Federal funds are used to build, or significantly retrofit or repair, structures and facilities in and around floodplains to ensure that those structures are resilient, safer, and long-lasting. It will not affect the standards or rates of the National Flood Insurance Program. The new standard gives agencies the flexibility to select one of three approaches for establishing the flood elevation and hazard area they use in siting, design, and construction. They can:

Use data and methods informed by best-available, actionable climate science; Build two feet above the 100-year (1%-annual-chance) flood elevation for standard

projects, and three feet above for critical buildings like hospitals and evacuation centers; or

Build to the 500-year (0.2%-annual-chance) flood elevation.

v. FWHA transportation plans under MAP-21 to require analysis of climate change and severe weather events

On February 20, 2015, the Federal Highway Administration issued a notice of proposed rulemaking11 that would establish a process for state departments of transportation to include consideration of climate change and extreme weather-related risks in the development of asset management plans, which are required under the Moving Ahead for Progress in the 21st Century Act (MAP-21). As summarized in the notice, the proposed rule would do as follows:

[T]o ensure the asset management plan is risk-based, . . . each State DOT would be required to establish a process for undertaking a risk management analysis for assets in the [asset management] plan. As part of this process, State DOTs would identify and assess risks (e.g., extreme weather) that can affect asset condition or the effectiveness of the NHS as it relates to physical assets. The process for risk management analysis would have to include addressing the risks to assets and to the highway system associated with current and future environmental conditions, including extreme weather events, climate change, and seismic activity, in order to provide information for decisions about how to minimize their impacts and increase asset and system resiliency. The process for risk management analysis also would be required to take into account, for assets in the plan, the results of the State DOT’s evaluation of roads, highways, and bridges that have repeatedly required repair or reconstruction due to emergency events. . . . For assets in the asset management plan, State DOTs would be required to develop an approach to address and monitor high priority risks to assets and the performance of the system.

80 Fed. Reg. 9231, 9233 (Feb. 20, 2015).

10 Executive Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input (Jan. 30, 2015), https://www.whitehouse.gov/the-press-office/2015/01/30/executive-order-establishing-federal-flood-risk-management-standard-and-; see also Guidelines for Implementing Executive Order 11988, Floodplain Management, as Revised (Feb. 5, 2015), https://www.federalregister.gov/articles/2015/02/05/2015-02284/guidelines-for-implementing-executive-order-11988-floodplain-management-as-revised.11 FED. HIGHWAY ADMIN., NRPM: Asset Management Plan, 80 Fed. Reg. 9231 (Feb. 20, 2015), https://www.federalregister.gov/articles/2015/02/20/2015-03167/asset-management-plan.


B. Federal climate change litigation

The single most important federal climate change case this year was In re Murray Energy Corp., No. 14-1112, 2015 WL 3555931 (D.C. Cir. June 9, 2015) (coal company and states opposed to EPA’s proposed Clean Power Rule sought a review of the legality of the proposed rule with the court holding that as the Clean Power Rule is simply a proposed rule, it meets neither of the two requirements for final agency action: (i) they are not the “consummation of the agency's decisionmaking process,” and (ii) they do not determine “rights or obligations,” or impose “legal consequences,” and thus the court does not have jurisdiction to hear the case).

In addition to In re Murray Energy Corp., a number of other cases ancillary to climate change have emerged in the federal courts over the last few years particularly those sounding in Clean Air Act, National Environmental Policy Act, and Endangered Species Act causes of action. Perhaps the best source for keeping abreast of these ancillary cases is Arnold & Porter’s helpful website, Climate Change Litigation in the U.S. (ClimateCaseChart.com), which provides detailed summaries of every case, even those dismissed or settled through agency adjudications, with a climate change theme.

Several cases involving climate change are also discussed below with regard to the National Environmental Policy Act.

C. Resources

The following are suggested resources for keeping abreast of climate change issues in land use law:

2014 NATIONAL CLIMATE ASSESSMENT, http://nca2014.globalchange.gov/;

CONG. RESEARCH SERV., Climate Change Adaptation by Federal Agencies: An Analysis of Plans and Issues for Congress (Feb. 23, 2015) http://fas.org/sgp/crs/misc/R43915.pdf;

CONG. RESEARCH SERV, Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future (Aug. 20, 2014) http://fas.org/sgp/crs/misc/R42613.pdf; and

ARNOLD & PORTER LLP, Climate Change Litigation in the U.S., climatecasechart.com (updated regularly).

II. National Environmental Policy Act

This memorandum will now review several major rulemakings and guidance documents undertaken with regard to the National Environmental Policy Act within the last year. That review of administrative actions relative to NEPA is followed by a review of circuit court decisions involving NEPA decided within the last year.


A. CEQ draft guidance for considering GHG emissions in NEPA documents

On December 18, 2014, the Council on Environmental Quality issued draft guidance—not a proposed rule—on the evaluation of GHG emissions in NEPA documents. The guidance document is detailed, but can be summarized as following:12

Encourages agencies to draw from their experience and expertise to determine the appropriate level (broad, programmatic or project- or site-specific) and type (quantitative or qualitative) of analysis required to comply with NEPA.

Focuses analysis on the projects and actions with the greatest impacts by providing a reference point of 25,000 metric tons of CO2-equivalent emissions on an annual basis below which a quantitative analysis of GHG emissions is not recommended unless it is easily accomplished.

Counsels agencies to use the information developed during the NEPA review to consider alternatives that are more resilient to the effects of a changing climate; and

Advises agencies to use existing information and science when assessing proposed actions, and highlights tools and methodologies that are available to them for conducting their analyses.

This draft guidance updates earlier draft guidance on consideration of climate change in NEPA reviews that was released by CEQ in 2010 and sought public input on how to address land and resource management actions during a 90-day public comment period. CEQ received and considered comments representing a broad range of views from the public, corporations, non-profit organizations, trade associations, and Federal and state agencies before proposing this updated NEPA guidance, which addresses land and resource management actions.

B. CEQ final guidance on the effective use of programmatic NEPA reviews

On December 18, 2014, the Council on Environmental Quality issued final guidance—not a rule—on the effective use of programmatic NEPA reviews.13 In relevant part, the guidance provides:

A programmatic NEPA review may be appropriate when the action being considered is subject to NEPA requirements and falls into one of the four major categories of actions to which NEPA can apply (40 CFR § 1508.18(b)):

12 COUNCIL ON ENVTL. QUALITY, Draft GHG emissions guidance (Dec. 18, 2014), https://www.whitehouse.gov/sites/default/files/docs/nepa_revised_draft_ghg_guidance.pdf; see also FACT SHEET: Guidance on Considering Climate Change in NEPA Reviews and Conducting Programmatic NEPA Reviews (Dec. 18, 2014), https://www.whitehouse.gov/administration/eop/ceq/Press_Releases/December_18_2014.13 COUNCIL ON ENVTL. QUALITY, Effective Use of Programmatic NEPA Reviews (Dec. 18, 2014), https://www.whitehouse.gov/sites/default/files/docs/effective_use_of_programmatic_nepa_reviews_final_dec2014_searchable.pdf; see also COUNCIL ON ENVTL. QUALITY, Final Guidance for Effective Use of Programmatic NEPA Reviews, https://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa/programmatic-reviews (last visited July 14, 2015).


Adopting Official Policy. Decision to adopt in a formal document an official policy that would result in or substantially alter agency programs. The programmatic analysis for such a decision should include a road map for future agency actions with defined objectives, priorities, rules, or mechanisms to implement objectives. Programmatic examples include:

o Rulemaking at the national- or regional-level; The NEPA review and the decisionmaking is compromised when a programmatic NEPA review narrows or limits alternatives based on only a superficial or general review of potential impacts.

o Adoption of an agency-wide policy; or o Redesign of an existing program.

Adopting Formal Plans. Decision to adopt formal plans, such as documents that guide or constrain alternative uses of Federal resources, upon which future agency actions will be based. For example, setting priorities, options, and measures for future resource allocation according to resource suitability and availability. Specific programmatic examples include:

o Strategic planning linked to agency resource allocation; or o Adoption of an agency plan for a group of related projects.

Adopting Agency Programs. Decision to proceed with a group of concerted actions to implement a specific policy or plan; e.g., an organized agenda with defined objectives to be achieved during implementation of specified activities. Programmatic examples include:

o A new agency mission or initiative; or o Proposals to substantially redesign existing programs.

Approving Multiple Actions. Decision to proceed with multiple projects that are temporally or spatially connected and that will have a series of associated concurrent or subsequent decisions. Programmatic examples include:

o Several similar actions or projects in a region or nationwide (e.g., a large scale utility corridor project); oro A suite of ongoing, proposed or reasonably foreseeable actions that share a common geography or timing, such as multiple activities within a defined boundary (i.e., Federal land or facility).14

C. Department of Transportation NEPA regulations

i. Categorical exclusions

14 Id. at 13-14.


The Federal Highway Administration issued a final rule15 amending regulations governing NEPA categorical exclusions in October, 2014. The rule included several new categorical exclusions to the list as related mostly to highway maintenance and geotechnical work. The rule also permitted state DOTs to enter into an agreement to issue NEPA categorical exclusions with FWHA oversight.

ii. State control of NEPA reviews

The Federal Highway Administration also issued a final rule16 permitting States to assume the Federal responsibilities for the review of highway projects under NEPA and responsibilities for environmental review, consultation, or other actions required under any Federal environmental law pertaining to the review. The FHWA expects about 10 states to apply to do so.

iii. Federal reliance on local land use plans in NEPA reviews

In a proposed rule17 noticed by the Federal Highway Administration in September, 2014, federal agencies engaged in NEPA review for federal road projects could rely upon local land use plans, and other forms of local planning, in preparing the federal project NEPA documents. The proposed rule provides:

The FHWA and FTA use the term Planning and Environment Linkages (PEL) to refer to the process of using and relying on planning analyses, studies, decisions, or other information for the project development and environmental review of transportation projects. With PEL, the Agencies could, for example: establish a project's purpose and need by relying on the goal and objective developed during the planning process; eliminate the need to further consider alternatives deemed to be unreasonable by relying on alternatives analyses conducted during planning; rely on future land use plans as a source of information for the cumulative impacts analysis required under NEPA; or rely on the modal choice selection as a method of establishing the criteria for the consideration of reasonable alternatives to address the identified need—provided such strategies are consistent with NEPA for the particular project.

States, MPOs, and local agencies can achieve significant benefits by incorporating environmental and community values into transportation decisions during early planning and carrying these considerations through project development and delivery. Through its focus on building interagency relationships, the PEL approach enables non-transportation Federal, State, and local government resource agencies and tribal governments to be more effective players in the transportation decisionmaking process. Federal, State, and local

15 FED. HIGHWAY ADMIN. & FED. TRANSIT ADMIN., Final Rule: Environmental Impact and Related Procedures-Programmatic Agreements and Additional Categorical Exclusions, 79 Fed. Reg. 60100 (Oct. 16, 2014), https://www.federalregister.gov/articles/2014/10/06/2014-23660/environmental-impact-and-related-procedures-programmatic-agreements-and-additional-categorical.16 FED. HIGHWAY ADMIN., Final Rule: Surface Transportation Project Delivery Program Application Requirements, 79 Fed. Reg. 55381 (Sept. 16, 2014), https://www.federalregister.gov/articles/2014/09/16/2014-22080/surface-transportation-project-delivery-program-application-requirements.17 FED. HIGHWAY ADMIN., NRPM: Additional Authorities for Planning and Environmental Linkages, 79 Fed Reg. 53673 (Sept. 10, 2014), https://www.federalregister.gov/articles/2014/09/10/2014-21439/additional-authorities-for-planning-and-environmental-linkages.


government resource agencies and tribal governments have an opportunity to help shape transportation projects by getting involved in the early stages of planning. In addition, improvements to interagency relationships may help resolve differences on key issues as transportation programs and projects move from planning to design and implementation.

79 Fed. Reg. 53673, 53675 (Sept. 10, 2014).

D. NEPA litigation

The following case briefs attempt to give a review of many, if not most, of the major NEPA decisions since July1, 2014. The decisions are organized into rough categories based on the underlying project being reviewed; in several instances, the projects transcend the categories into which they were placed.

i. Transportation

Coal. for Advancement of Reg'l Transp. v. Fed. Highway Admin., 576 F. App'x 477, 491 (6th Cir. 2014) (mass transit advocacy organization action against FHWA and state transportation departments challenging a proposed construction and transportation management program for several bridges connecting Kentucky and Indiana on grounds that program violated NEPA denied with court holding that district court's refusal to supplement administrative record with new evidence was not abuse of discretion; drafting of purpose and need statement of EIS was not arbitrary or capricious; defendants gave consideration to a reasonable range of alternatives; and defendants took hard look at environmental impacts of project).

Defenders of Wildlife v. N. Carolina Dep't of Transp., 762 F.3d 374 (4th Cir. 2014)(environmental organizations brought action alleging that state and federal transportation agencies and officials violated NEPA and § 4(f) of Department of Transportation Act by failing to follow proper procedure in researching, designing, and choosing replacement for bridge leading to North Carolina's Outer Banks with court holding that the subject environmental impact statement scope was not deficient; defendants did not engage in unlawful segmentation under NEPA; and remanded for new proceedings related to § 4(f) analysis).

WildEarth Guardians v. U.S. Fish & Wildlife Serv., 784 F.3d 677 (10th Cir. 2015)(environmental groups brought action under Administrative Procedure Act, NEPA, and Endangered Species Act challenging land exchange between Fish and Wildlife Service and three cities for purpose of building tollway in transportation corridor abutting national wildlife refuge with court holding, in relevant part, that FWS's determination that parkway would not have significant impact on air quality in region was not arbitrary and capricious).

Coal. for Advancement of Reg'l Transp. v. Fed. Highway Admin., 576 F. App'x 477 (6th Cir. 2014) (mass transit advocacy organization brought action against Federal Highway Administration and state transportation departments challenging a proposed construction and transportation management program for several bridges connecting Kentucky and Indiana on grounds that program violated NEPA, Federal-Aid Highway Act and Title VI of the Civil Rights Act of 1964 with court holding, in relevant part, that district court's refusal to supplement administrative record with new evidence was not abuse of discretion; drafting of purpose and


need statement of EIS was not arbitrary or capricious; defendants gave consideration to a reasonable range of alternatives; defendants took hard look at environmental impacts of project).

Openlands v. U.S. Dep’t of Transportation, No. 13 C 4950, (N.D. Ill., 06/16/2015) (where the record is not clear as to whether the EIS for a proposed tollroad project between Indiana and Illinois actually contains a true no-build analysis, the no-build analysis, therefore, cannot support the EIS’ stated purpose and need and, without a true no-build analysis, the EIS does not comply with NEPA's directive to analyze the project's direct impacts).

Bellocchio v. New Jersey Dep't of Envtl. Prot., 602 F. App'x 876 (3d Cir. 2015)(property owners filed state court action against Federal Aviation Administration and various state and local entities, including Philadelphia, for damages arising primarily from noise and air pollution associated with turnpike and airport with court holding that airport owned by city was not federal agency against which claim could be brought for violation of NEPA in connection with city airport projects and that such claims would have been properly brought against FAA).

Natural Res. Def. Council, Inc. v. U.S. Dep't of Transp., 770 F.3d 1260 (9th Cir. 2014) (environmental groups brought action alleging that Department of Transportation and other federal and state agencies and officials violated Clean Air Act (CAA) and NEPA by failing to properly evaluate and disclose potential environmental impact of planned expressway with court holding, in relevant part, that environmental impact statement prepared for project did not impermissibly rely on outdated air quality standards and the EIS adequately disclosed project's likely health effects).

ii. Forest management

Friends of the Wild Swan v. Jewell, No. CV 13-61-M-DWM, 2014 WL 4182702 (D. Mont. Aug. 21, 2014) (environmental organizations challenged the Secretary of the Interior's ESA issuance of an incidental take permit under the Montana’s habitat conservation plan and NEPA compliance for proposed logging and road building activities, alleging the required mitigation is not the maximum practicable for either bull trout or grizzly bears; the no-jeopardy determination for bull trout was arbitrary and unlawful; failure to take a hard look at environmental impacts; failure to consider a reasonable range of alternatives; and failure to consider the cumulative impacts of climate change on bull trout with the court holding that all claims failed but for those related to mitigation measures for grizzly bears).

League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Connaughton, No. 3:12-CV-02271-HZ, 2014 WL 6977611 (D. Or. Dec. 9, 2014) (on appeal) (plaintiffs argued that the Forest Service violated NEPA by not providing a “full and fair discussion” of a commercial logging project's impacts on the forest's carbon stores with plaintiffs arguing, in particular, that the Forest Service disclosed only one side of the issue-the beneficial impact of the Project on climate change and the forest's ability to store carbon-without considering the Project's short-term negative impact of removing 48 million board feet of trees, including one-third of the volume from large trees and old growth stands where substantial carbon exists.)


Biodiversity Conservation Alliance v. Jiron, 762 F.3d 1036 (10th Cir. 2014) (environmental organizations interested in species and habitat protection in Black Hills National Forest brought actions against Forest Service challenging various decisions related to management of Black Hills National Forest and amendment of forest plan with court holding, in relevant part, that Forest Service met rule of reason with respect to alternatives in final environmental impact statement and took requisite hard-look with respect to how amendment would affect sedimentation policies).

Bark v. Northrop, No. 14-35398, 2015 WL 1679407 (9th Cir. Apr. 15, 2015) (non-profit organization brought action against Forest Service under NEPA and National Forest Management Act alleging it acted arbitrarily and capriciously when it approved forest thinning project with court holding that Forest Service did not act arbitrarily and capriciously in considering only the proposed plan and a no-action alternative in its environmental assessment; Forest Service's finding that any impact from temporary road would be minimal was not arbitrary and capricious; Forest Service's determination that any impacts from loss of large woody debris and spread of invasive species as a result of project was not arbitrary and capricious; Forest Service’s decision to issue a finding of no significant impact was not arbitrary and capricious; Forest Service's determination that project was consistent with its aquatic conservation strategy for forest was not arbitrary and capricious; and district court did not abuse its discretion in awarding costs to Forest Service).

Friends of the Wild Swan v. Weber, 767 F.3d 936 (9th Cir. 2014) (environmental organizations brought separate actions alleging Forest Service violated NEPA, National Forest Management Act, and the Endangered Species Act in approving logging projects in Montana's Flathead National Forest with court holding that Forest Service did not act arbitrarily and capriciously by defining the geographic scope for studying projects' cumulative effects on lynx; Forest Service did not act arbitrarily and capriciously by defining the geographic scope for studying projects' cumulative effects on grizzly bear; and thus the organizations had not demonstrated a likelihood of success on the merits of its NEPA claim).

Conservation Cong. v. Finley, 774 F.3d 611 (9th Cir. 2014) (environmental organization brought action alleging that Forest Service and Fish and Wildlife Service violated Endangered Species Act and NEPA in failing to consult adequately as to logging project's potential effects on northern spotted owl with court holding, in relevant part, that the environmental impact statements took requisite “hard look” under NEPA).

Biodiversity Conservation Alliance v. U.S. Forest Serv., 765 F.3d 1264 (10th Cir. 2014) (environmental group brought action alleging that Forest Service's decision modifying trail use in national forest to allow motorcycle use in inventoried roadless area violated NEPA, National Forest Management Act, and Forest Service regulations with court holding, in relevant part, that Forest Service did not violate NEPA in considering effects of past unauthorized motorcycle usage; Forest Service's failure to conduct on-site visits to sites identified as potential fens was not arbitrary and capricious; Forest Service took sufficiently hard look at impact of motorcycle use on fens; and Forest Service took sufficiently hard look at impact of motorcycle use on non-motorized recreation).


Am. Whitewater v. Tidwell, 770 F.3d 1108 (4th Cir. 2014) (non-motorized watercraft associations filed suit against Forest Service challenging forest land resource management plan for wild and scenic river that imposed floating restrictions on headwaters area, alleging violations of Administrative Procedure Act, Wilderness Act, Multiple–Use Sustained–Yield Act, National Forest Management Act and NEPA with court holding, in relevant part, that the Forest Service complied with NEPA in its analysis of a “heightened risk of trespass” by continued ban on floating above a specific location).

WildEarth Guardians v. Montana Snowmobile Ass'n, No. 12-35434, 2015 WL 3824898 (9th Cir. June 22, 2015) (environmental groups brought action under NEPA challenging Forest Service's decision in land and resource management plan to designate over two million acres of public land in national forest for use by winter motorized vehicles with court holding that environmental impact statement prepared by Forest Service failed to comply with NEPA's procedural requirements; Forest Service adequately reviewed consequences of its recreation allotments; Forest Service failed to comply with minimization criteria required by an executive order; and challenge to provision of Travel Management Rule exempting over-snow vehicles was not ripe for adjudication).

Alliance for the Wild Rockies v. Brazell, 595 F. App'x 700 (9th Cir. 2015) (environmental advocacy organizations filed suit against Forest Service and Fish and Wildlife Service claiming violation of National Forest Management Act, NEPA, Endangered Species Act, and Administrative Procedure Act, by allegedly failing to properly account for impact of project, involving 2,598-acre timber-thinning sale within 36,000-acre project area in 2.2 million-acre Nez Perce National Forest, on species of fisher, goshawk, pileated woodpecker, and bull trout and their habitats in project area with court holding, in relevant part, that Forest Service did not violate NEPA because Forest Service took the requisite “hard look” at the project's potential impacts on the species by considering how the project will degrade or improve those species’ critical habitats including an analysis of any potential cumulative environmental impact of the project).

Alliance for the Wild Rockies v. Bradford, 601 F. App'x 488 (9th Cir. 2015) (environmental advocacy organization brought action against Forest Service and United States Fish and Wildlife Service, alleging violations of Endangered Species Act, National Forest Management Act, and NEPA in connection with a fuel reduction project’s effects on grizzly bears with the court holding, in relevant part, that Forest Service complied with NEPA in authorizing project).

Lands Council v. U.S. Forest Serv., 601 F. App'x 478 (9th Cir. 2015) (environmental advocacy organizations brought action against the Forest Service seeking to enjoin a small fuels treatment and commercial timber harvest project as violative of the National Forest Management Act and NEPA with the court holding, in relevant part, that the Forest Service complied with NEPA by taking a hard look at including land within 300 feet of all forest roads in the project).

Oberdorfer v. Jewkes, 583 F. App'x 770 (9th Cir. 2014) cert. denied sub nom. W. Radio Servs. Co. v. United States, 135 S. Ct. 1901 (2015) (telecommunications company and its owner challenged Forest Service's determinations regarding application for replacement and expansion


of company's facilities on land leased from Forest Service, alleging violations of National Forest Management Act, NEPA, and owner's constitutional rights with court holding that owner either lacked standing or had no injury within NEPA's zone of interests).

Soda Mountain Wilderness Council v. U.S. Bureau of Land Mgmt., No. 13-35438, 2015 WL 1771134 (9th Cir. Apr. 20, 2015) (environmental organizations brought action against Bureau of Land Management alleging violation of NEPA and Federal Land and Policy Management Act by approving timber sale that would allow commercial logging on BLM land with court holding that BLM's reliance on four-year old wilderness survey was not arbitrary and capricious; BLM's decision not to analyze effects of project on potential expansion of national monument did not violate NEPA; and BLM was required to include discussion of forest management project in its cumulative impact analysis).

iii. Climate change

Landwatch v. Connaughton, No. 6:13-CV-02027-AA, 2014 WL 6893695 (D. Or. Dec. 5, 2014) (Forest Service properly analyzed climate change with reference to a special use permit to construct a new water supply pipeline impact, as quantitative tools preferred by plaintiffs were not judicially enforceable because they are merely guidance documents and the Forest Service was not required to use plaintiffs' preferred methodology).

iv. Energy

Myersville Citizens for a Rural Cmty., Inc. v. F.E.R.C., 783 F.3d 1301 (D.C. Cir. 2015) (town residents petitioned for review of FERC order approving natural gas supplier's construction of natural gas compressor station with court holding FERC's NEPA environmental assessment adequately considered and rejected alternatives to station; FERC's EA took requisite “hard look” at station's effect on property values and lost development opportunities; and FERC did not impermissibly segment its analysis in conducting EA by refusing to consider station's effects in combination with those of a liquid natural gas terminal).

Minisink Residents for Envtl. Pres. & Safety v. F.E.R.C., 762 F.3d 97 (D.C. Cir. 2014) (town residents petitioned for review of FERC decision granting a certificate of public convenience and necessity under Natural Gas Act for construction of a natural gas compressor station in town with court holding, in relevant part, that FERC adequately examined impact of station on property values under NEPA).

Sierra Club, Inc. v. Bostick, No. 14-6099, 2015 WL 3422924 (10th Cir. May 29, 2015)(environmental advocacy groups brought action against Army Corps of Engineers challenging the validity of a nationwide permit to build an oil pipeline and verification letters issued by Corps with court holding, in relevant part, that Corps was not required to prepare an environmental analysis for entire pipeline before issuing verification letters; groups failed to show that national permit authorized activities with more-than-minimal adverse environmental impacts).


Andersen v. F.E.R.C., 583 F. App'x 747 (9th Cir. 2014) (property owner petitioned for review of an order of FERC that denied owner's request for rehearing regarding his complaint regarding erosion along shoreline of lake purportedly caused by hydroelectric project with court holding, in relevant part, that FERC did not violate NEPA with regard to erosion-related recommendation in renewed license).

Alaska Wilderness League v. Jewell, No. 13-35866, 2015 WL 3620115 (9th Cir. June 11, 2015) (Bureau of Safety and Environmental Enforcement's approval of petroleum company's oil spill response plans did not require preparation of environmental impact statement prior to approval).

Sierra Club v. Bureau of Land Mgmt., 786 F.3d 1219 (9th Cir. 2015) (environmental organizations brought action against Bureau of Land Management and Secretary of the Interior alleging BLM's decision to grant a right-of-way over federal land for a wind energy project developed on private land violated the Endangered Species Act and NEPA with court holding, in relevant part, that BLM was not required under NEPA to prepare an environmental impact statement analyzing the wind project because project is not a major federal action since BLM has no control or responsibility over any aspect of the project).

Sherwood v. Tennessee Valley Auth., 590 F. App'x 451 (6th Cir. 2014) (property owners sued Tennessee Valley Authority claiming violation of NEPA by TVA's failure to conduct environmental studies prior to implementing “15–foot rule” to maintain vegetation in buffer zones of easements for 15,900 miles of power transmission lines by requiring removal of millions of trees taller than 15 feet or that would mature at height greater than 15 feet with court holding, in relevant part, that TVA filed incorrect administrative record in response to NEPA claim).

Ctr. for Sustainable Econ. v. Jewell, 779 F.3d 588 (D.C. Cir. 2015) (environmental advocacy organization petitioned for review of the final decision of the United States Department of Interior approving of five-year program of proposed leases for resource exploration and development on the Outer Continental Shelf, claiming that the Department failed to consider environmental and market effects under the Outer Continental Shelf Lands Act and that the Department violated procedural requirements of NEPA with court holding, in relevant part, that the organization's NEPA claims were not ripe).

v. Water

Vill. of Logan v. U.S. Dep't of Interior, 577 F. App'x 760 (10th Cir. 2014) (village sued Department of Interior, Bureau of Reclamation, and Eastern New Mexico Water Utility Authority seeking declaratory and injunctive relief for NEPA violations from construction of water diversion project with court holding, in relevant part, that lack of EIS regarding controlled blasting did not violate NEPA).

Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers, 781 F.3d 1271 (11th Cir. 2015) (two environmental advocacy organizations brought action against the U.S. Army Corps of Engineers claiming that the issuance of a general permit that allowed surface coal


mining operations to discharge dredged or fill materials into navigable waters violated both the Clean Water Act and NEPA with court holding, in relevant part, that remand was warranted where the Corps’ determination that its issuance of a general permit that allowed surface coal mining operations to discharge dredged or fill materials into navigable waters complied with the Clean Water Act and NEPA was based on an underestimation of the number of acres that could be affected by the general permit, it was unclear whether the error was significant, and the effect of vacating the general permit on coal mining companies could not be measured without additional fact-finding).

vi. Wildlife

Grunewald v. Jarvis, 776 F.3d 893 (D.C. Cir. 2015) (District of Columbia residents and animal rights organization brought action against National Park Service and Department of Interior challenging their plan to reduce deer population in national park with court holding, in relevant part, that Park Service did not violate NEPA when it failed to include removing exotic plants as stand-alone alternative; Park Service's draft exotic plant management plan was not connected or similar action; Park Service did not abuse its discretion when it declined to analyze exotic plant and deer management plans together as connected actions; and Park Service adequately considered deer management plan's effects on human environment).

Bear Valley Mut. Water Co. v. Jewell, No. 12-57297, 2015 WL 3894308 (9th Cir. June 25, 2015) (municipalities and water districts brought action against Fish and Wildlife Service, Interior Department, and other federal officials under Endangered Species Act alleging that FWS did not cooperate with state in resolving water resource issues that arose from designation of critical habitat for threatened Santa Ana sucker, acted arbitrarily and capriciously in revising critical habitat designation to include previously excluded land, and violated NEPA by failing to prepare environmental impact statement prior to designation with court holding, in relevant part, that circuit case law forecloses the NEPA claim because it holds “that [the] NEPA does not apply to the designation of a critical habitat”).

Alliance for the Wild Rockies v. U.S. Dep't of Agric., 772 F.3d 592 (9th Cir. 2014) (environmental organization brought action alleging that decision of federal and state agencies to permit recurring, low-altitude helicopter flights to haze bison in Yellowstone Grizzly Bear Recovery Zone violated Endangered Species Act, NEPA, and National Forest Management Act with court holding, in relevant part, that organization had standing to assert NEPA claims and federal agencies were not required to prepare supplemental environmental impact statement).

Bldg. Indus. Ass'n of the Bay Area v. U.S. Dep't of Commerce, No. 13-15132, 2015 WL 4080761 (9th Cir. July 7, 2015) (organizations representing business and property owners and building associations brought action alleging that National Marine Fisheries Service’s designation of critical habitat for southern distinct population segment of threatened green sturgeon violated the Endangered Species Act and NEPA with court holding, in relevant part, that the NEPA claim failed because NEPA does not apply to critical habitat designation).
