NEPA and Climate Change: Another Basis for Defending the Clean Power Plan

The Environmental Protection Agency's (EPA) Clean Power Plan – the agency's bold attempt to use the Clean Air Act to protect our health and the environment by regulating greenhouse gas emissions from new and existing power plants – has been challenged in court by some 28 states, 205 members of Congress, electric utilities, coal companies and other industries, some labor unions, and a few conservative, nonprofit law firms. In response, EPA's rule has been defended by the agency itself, 18 states, more than 200 current and former members of Congress, dozens of cities and counties, numerous environmental and public health organizations, certain industries and labor unions, climate scientists, electric grid experts, two former EPA administrators, and others.

The ongoing litigation – now scheduled for a full-court (or en banc) oral argument before the D.C. Circuit in September – seems likely to be ultimately resolved by the U.S. Supreme Court. It focuses primarily on whether EPA has the legal authority, under section 111 of the Clean Air Act, to impose its Clean Power Plan regulation, and whether the agency's rule infringes on the regulatory prerogatives of the states. Undoubtedly, the federal courts will look to prior judicial interpretations of the Clean Air Act, as well as its specific language and legislative history, to resolve those issues.

Perhaps surprisingly, however, none of the many briefs filed thus far have referred to a congressional mandate, tucked away in the National Environmental Policy Act of 1969 (NEPA), that provides an authoritative directive to EPA as to how the agency must interpret all public laws. That provision is section 102 (1). It states that "the Congress authorizes and directs that, to the fullest extent possible, the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter." Significantly, NEPA also declares that it is "the continuing policy of the Federal Government…to use all practicable means and measures…to create and maintain conditions under which man and nature can exist in productive harmony."

It can be strongly argued that EPA – in designing and promulgating the Clean Power Plan – was merely complying with a clear congressional requirement. NEPA section 102 (1) is unmistakably mandatory. It states that public laws "shall" be interpreted and administered consistent with NEPA's policies. And the word "shall" has long been defined as having a duty or being required to do something.

Moreover, EPA's final rule responds to a well-identified and urgent environmental problem: disruption of the Earth's climate caused by human emissions of carbon dioxide and other greenhouse gases. Clearly then, in interpreting section 111 of the Clean Air Act to allow it to regulate greenhouse gas emissions from power plants, EPA is simply interpreting and administering a "public law of the United States" consistent with NEPA's policy of creating conditions that promote "productive harmony" between humankind and nature.

Although NEPA's pithy legislative history makes no specific mention of sub-section 102 (1), the report of the Conference Committee regarding the version of NEPA that was enacted did mention this: "The language in section 102 is intended to assure that all agencies of the Federal Government shall comply with the directives set out in said section 'to the fullest extent possible' under their statutory authorizations and that no Agency shall utilize an excessively narrow construction of its existing statutory authorizations to avoid compliance with NEPA." In addition, several of the judicial decisions that have cited the provision have viewed it as directing federal agencies to carefully factor environmental considerations into their decision-making.

This succinct provision, often overlooked in environmental litigation, provides powerful support for the notion that EPA was on solid legal ground when it established the Clean Power Plan to combat the threat of climate change and restore harmony between humankind and nature. Defenders of the Clean Power Plan could strengthen their future legal contentions by weaving section 102 (1) into their briefs and oral arguments.