Compilation and Analysis of Court Decisions Regarding Greenhouse Gas (GHS) Emissions

Focus Area

Climate Change

Subcommittee

Air Quality, Environmental Process

Status

Archived

Cost

$100,000-$249,000

Timeframe

Unknown

Research Idea Scope

Problem
The regulation of greenhouse gases is in its infancy in the United States, with piecemeal programs promulgated by the states and nascent regulations proposed and finalized by the United States Environmental Protection Agency. As is often the case, when regulatory agencies struggle to establish standards for particularly controversial environmental problems, courts fill in the gaps. This is happening now with respect to GHG emissions. U.S. courts have begun issuing decisions regarding the adequacy of GHG analyses in a number of different situations, including environmental review documents, endangered species listings, and Clean Air Act permitting decisions. Given the still developing regulatory scheme covering greenhouse gases, these various court decisions provide useful insight as to how future Federal, state, and local agency decisions can best incorporate and include information regarding GHG emissions and climate change. To date, there has been no comprehensive attempt to gather and analyze these court decisions. 
 
Objective
This project requires the compilation and analysis of the various court decisions which have been issued regarding the adequacy of federal, state, and local GHG and climate change analyses. The research would attempt to cull lessons or standards from those opinions to guide future decisionmakers in their climate change and GHG analyses. 
 
Related Work
We are not aware of any similar work, although there have been attempts to simply catalogue decisions of this nature.
 
Urgency/Priority
The U.S. transportation sector is responsible for 30% of the country’s GHG emissions. As a result, transportation agencies are constantly confronted with the need to perform GHG analyses. In the absence of a comprehensive regulatory scheme or even any policy or guidance concerning the methodology or standards for such analyses, agencies are forced to use a case-by-case piecemeal approach. This approach has meet with modest success when agency actions are challenged in U.S. courts. A research paper like that proposed in this Research Needs Statement would be extremely valuable in providing transportation officials and the consulting community some degree of guidance and standards as to how to confront this pressing need.

Urgency and Payoff

Implementation
This research would be used by local, state, and federal transportation agencies across all modes to help guide them as to the scope of GHG and climate change analyses they need to comply with NEPA, ESA and Clean Air Act analyses and decision documents. The research also would be used by the consulting community that supports government agencies in these endeavors.
 
EffectivenessDespite the best efforts of transportation officials, litigation cannot be avoided in all instances. Especially with respect to a controversial environmental concern such as the appropriate methodology to assess and address GHG impacts, litigation is inevitable. The cost of program delays resulting from successfully challenged administrative actions is tremendous. Agencies and environmental professions are constantly seeking ways to minimize litigation risk, but more important, to reach excellent decisions for their transportation proposals. This research will be most effective if it provides a framework for future permitting and environmental reviews based on successes and failures coming out of the U.S. judicial system.

Suggested By

RNS. Sponsoring Committee: A0020T, Special Task Force on Climate Change and Energy Source Info: Special Task Force on Climate Change & Energy January 2010 Workshop

Submitted

08/06/2010