In August, 2017, Hurricanes Harvey and Irma brought widespread devastation to the southeastern United States, destroying buildings, flooding neighborhoods, and taking lives. Harvey shattered the national rainfall record for a single storm, dropping over 50 inches of rain in a 36-hour period. The Houston area suffered massive flooding, as the U.S. Army Corps of Engineers attempted to balance flooding behind strained older retention dams while releasing water to avoid dam breaches.
However, even before the unprecedented rainfall of Hurricane Harvey, severe problems had been noted at the dams. In 2016, the Army Corps noted that the dams needed repair and that a failure would be catastrophic. The federal government concluded that the dams were in critical condition in 2009. The Army Corps had multiple opportunities to evaluate the state of the dams decades before the problem reached crisis level.
In fact, despite raising the dams, rebuilding the gates, and creating various additional outflows, the Corps never did an environmental impact assessment, as required under the National Environmental Policy Act (NEPA) for federal actions that significantly affect the quality of the human environment. The Corps’ last major construction on the dams in 2015 cost more than $100 million, but the project was not deemed significant enough to invoke the Environmental Impact Statement requirement that would have forced the federal and state agencies in charge of the dams to evaluate newer stresses, including development and climate change. Other critical infrastructure controlled by federal agencies has also received scant attention.
Hollowed Out Government Environmental Analysis
Adopted in 1969, NEPA was the first major environmental statute of the modern era. The law, which has been amended only modestly since its passage, makes environmental protection a part of the mandate of all federal agencies. It also requires that all national policies, regulations, and public laws be interpreted in accordance with the broad, environmentally protective policies that the statute declares. Although it was enacted well before natural disasters intensified by climate change became a focus of national and international concern, NEPA should be used by federal agencies to mitigate, respond to, and proactively adapt to such catastrophic events.
NEPA has particularly important implications in our world of disasters and climate change. Climate change is widely recognized by the scientific community as a significant factor in the intensification of hurricane events, flooding rains, sea level rise, and other actual or potential disasters.
NEPA expresses a bold purpose: “to declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; [and] to enrich the understanding of the ecological systems and natural resources important to the Nation…” To accomplish these important goals, the law states that “it is the policy of the Federal Government, in cooperation with state and local governments, and other public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic and other requirements of present and future generations of Americans.” NEPA further declares that it is the “continuing responsibility of the federal government…to improve and coordinate Federal plans, functions, programs and resources to the end that the Nation may…assure for all Americans, safe, healthful, productive, and aesthetically and culturally pleasing surroundings; and attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable or unintended consequences.”
It is difficult to conceive of anything more inconsistent with these statutory purposes and policies than the overwhelming damage from storms intensified by human-caused climate change that could have been mitigated by federal agencies. The federal government’s continued failure to adopt clear national policies to mitigate and adapt to climate change — and the extraordinary devastation that followed Hurricanes Harvey, Irma, and Maria in 2017 — did precisely the opposite of fostering and promoting the general welfare. In fact, the horrific damage wrought by those storms created conditions of grotesque disharmony between humankind and nature. That damage also set back the social and economic requirements of residents in the storm-affected regions. Moreover, the dilatory, under-resourced, and profoundly inequitable responses of the federal government to these disasters entirely failed to fulfill our national government’s statutory responsibility to ensure safe, healthful, and productive surroundings for all Americans, and to make beneficial use of the Nation’s environment without degradation, risk to health or safety, or other unintended, undesirable consequences.
NEPA’s policies are more than mere grandiloquent rhetoric. They have clear legal significance. The statute 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 Act.”
Notably, this provision employs the directive word “shall,” as opposed to the permissive word “may,” to describe what must occur. Traditionally, the use of “shall” is intended as a legislative command as opposed to a mere aspiration. Moreover, the inclusion of the phrase “to the fullest extent possible” strongly suggests that Congress intended to require a wholehearted and vigorous application of the policies set forth in NEPA. The emphasis on ensuring safety for all Americans demands that agencies consider the vulnerability of affected communities if they are to ensure “safe, healthful, protective” conditions without risk to health or safety for those who already bear a disproportionate share of risks and environmental burdens.
These aspects of the statute call into serious legal question some of the Trump administration’s policy priorities. One example is the recent cancellation of the National Aeronautics and Space Administration’s (NASA’s) Carbon Monitoring System, a $10 million program that (until very recently) undertook remote satellite and aircraft monitoring of greenhouse gas emissions and created high-resolution models of the Earth’s flow of carbon. It seems impossible to rationally justify this misguided action as compliant with NEPA’s stated policy of enriching the understanding of the ecological systems and natural resources important to the nation.
NEPA’s language also appears to call into question the legality of the administration’s decision to remove a previously effective regulatory requirement that Environmental Impact Statements (EISs) contain an analysis of the impacts of (and on) climate change with regard to proposed federal projects. The statute specifically requires all federal agencies to include “in every major federal action significantly affecting the quality of the human environment” a detailed statement on the environmental impact of the proposed action, and any “adverse environmental effects which cannot be avoided should the proposal be implemented.” These statements are required to “recognize the worldwide and long-range character of environmental problems.” They must also “lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind’s world environment.” Inclusion of climate-impact analyses in EISs clearly furthers these mandatory congressional policies. Their wholesale elimination, in sharp contrast, runs grossly afoul of them.
What Should Be Done?
Incorporate climate change analysis
The executive branch (through the Council on Environmental Quality (CEQ)) should require all agencies to incorporate climate change analysis into agency environmental impact statements.
Require systematic examination of flood control projects
CEQ should issue guidance to the U.S. Army Corps of Engineers to require them to systematically examine large-scale flood control projects to ensure that they are consistent with the stressors that are increasing because of climate-induced weather.
Reiterate that NEPA applies across the board
It bears reiteration that NEPA’s policies and “action-forcing” provisions apply to all significant executive branch actions, activities, and programs. CEQ should issue guidance to clarify to federal executive branch agencies that NEPA applies to the interpretation of all federal policies, statutes, programs, and regulations, regardless of whether or not they are primarily intended to protect the environment and public health. Thus, for example, consistent with NEPA, the Energy Policy Act of 2005 — which is administered by the Department of Energy (DOE) and the Federal Energy Regulatory Commission (FERC) — must be interpreted by those agencies in a manner that fosters productive harmony between humankind and nature. Doing so should require adopting and implementing policies that mitigate the impacts of climate change, and such an interpretation must necessarily encourage the development of renewable sources of energy and de-emphasize the fossil-fuel based generation of electricity.
Require disaster assistance to be distributed equitably
While the Stafford Act exempts emergency disaster assistance from NEPA’s EIS requirement, that act contains no exemption from NEPA’s mandate that federal laws be interpreted in accordance with NEPA’s policies. Thus, FEMA should be required (by executive branch directive) to distribute disaster assistance in an equitable manner. It can be strongly contended that inequitable distribution of FEMA assistance — such as occurred when that agency provided considerably more aid to the victims of Hurricane Harvey in Texas then it did to the American citizens of Puerto Rico and the U.S. Virgin Islands after Hurricane Maria — is not consistent with NEPA’s declaration that the federal government has a responsibility to ensure for all Americans “safe, healthful and productive surroundings.” Nor does uneven administration of the Stafford Act square with NEPA’s requirement that federal government entities avoid “risk to health or safety or other unavoidable and dangerous consequences” for American citizens.
