[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
THE OBAMA ADMINISTRATION'S CEQ RECENTLY REVISED DRAFT GUIDANCE FOR GHG
EMISSIONS AND THE EFFECTS OF CLIMATE CHANGE
=======================================================================
OVERSIGHT HEARING
before the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
Wednesday, May 13, 2015
__________
Serial No. 114-6
__________
Printed for the use of the Committee on Natural Resources
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COMMITTEE ON NATURAL RESOURCES
ROB BISHOP, UT, Chairman
RAUL M. GRIJALVA, AZ, Ranking Democratic Member
Don Young, AK Grace F. Napolitano, CA
Louie Gohmert, TX Madeleine Z. Bordallo, GU
Doug Lamborn, CO Jim Costa, CA
Robert J. Wittman, VA Gregorio Kilili Camacho Sablan,
John Fleming, LA CNMI
Tom McClintock, CA Niki Tsongas, MA
Glenn Thompson, PA Pedro R. Pierluisi, PR
Cynthia M. Lummis, WY Jared Huffman, CA
Dan Benishek, MI Raul Ruiz, CA
Jeff Duncan, SC Alan S. Lowenthal, CA
Paul A. Gosar, AZ Matt Cartwright, PA
Raul R. Labrador, ID Donald S. Beyer, Jr., VA
Doug LaMalfa, CA Norma J. Torres, CA
Bradley Byrne, AL Debbie Dingell, MI
Jeff Denham, CA Ruben Gallego, AZ
Paul Cook, CA Lois Capps, CA
Bruce Westerman, AR Jared Polis, CO
Garret Graves, LA Vacancy
Dan Newhouse, WA
Ryan K. Zinke, MT
Jody B. Hice, GA
Aumua Amata Coleman Radewagen, AS
Thomas MacArthur, NJ
Alexander X. Mooney, WV
Cresent Hardy, NV
Jason Knox, Chief of Staff
Lisa Pittman, Chief Counsel
David Watkins, Democratic Staff Director
Sarah Parker, Democratic Deputy Chief Counsel
------
CONTENTS
----------
Page
Hearing held on Wednesday, May 13, 2015.......................... 1
Statement of Members:
Bishop, Hon. Rob, a Representative in Congress from the State
of Utah.................................................... 2
Prepared statement of.................................... 3
Bordallo, Hon. Madeleine Z., a Delegate in Congress from the
Territory of Guam.......................................... 8
Prepared statement of.................................... 9
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona........................................... 4
Prepared statement of.................................... 6
Lummis, Hon. Cynthia M., a Representative in Congress from
the State of Wyoming....................................... 6
Prepared statement of.................................... 8
Statement of Witnesses:
Christy, John, Professor of Atmospheric Science and State
Climatologist, National Space Science and Technology
Center, University of Alabama, Huntsville, Alabama......... 32
Prepared statement of.................................... 34
Questions submitted for the record....................... 41
Clark, Ray, President, Rivercrossing Strategies, LLC,
Birmingham, Alabama........................................ 46
Prepared statement of.................................... 48
Questions submitted for the record....................... 50
Goldfuss, Christy, Managing Director, Council on
Environmental Quality, Washington, DC...................... 11
Prepared statement of.................................... 12
Questions submitted for the record....................... 21
Martella, Roger R., Jr., Partner, Sidley Austin LLP,
Washington, DC............................................. 21
Prepared statement of.................................... 23
Additional Materials Submitted for the Record:
List of documents submitted for the record retained in the
Committee's official files................................. 88
Napolitano, Hon. Grace F., a Representative in Congress from
the State of California, Prepared statement of............. 87
Sablan, Hon. Gregorio Kilili Camacho, a Delegate in Congress
from the Northern Mariana Islands, Prepared statement of... 87
OVERSIGHT HEARING ON THE OBAMA ADMINISTRATION'S CEQ RECENTLY REVISED
DRAFT GUIDANCE FOR GHG EMISSIONS AND THE EFFECTS OF CLIMATE CHANGE
----------
Wednesday, May 13, 2015
U.S. House of Representatives
Committee on Natural Resources
Washington, DC
----------
The committee met, pursuant to notice, at 10:04 a.m., in
room 1324, Longworth House Office Building, Hon. Rob Bishop
[Chairman of the Committee] presiding.
Present: Representatives Bishop, Young, Gohmert, Lamborn,
Wittman, Fleming, Thompson, Lummis, Benishek, Gosar, Labrador,
Cook, Westerman, Graves, Zinke, Hice, MacArthur, Hardy;
Grijalva, Bordallo, Costa, Tsongas, Huffman, Lowenthal,
Cartwright, Beyer, Torres, and Polis.
The Chairman. The committee will come to order. The
committee is meeting today to hear testimony on the Obama
administration's CEQ recently revised draft guidance for
greenhouse gas emissions and the effects of climate change. So,
under the Committee Rule 4(f), oral opening statements in
hearings are limited to the Chairman and the Ranking Minority
Member--it is better with my glasses--and the Vice Chair and
the designee of the Ranking Member. This will allow us to hear
from our witnesses sooner, and help Members keep their
schedules.
Therefore, I ask unanimous consent that all other Members'
opening statements be made part of the hearing record, if they
are submitted to the clerk by 5:00 p.m. today.
[No response.]
The Chairman. And, hearing no objections, so ordered.
Before we begin, though, I have one of our staffers who has
worked so long for us on the Minority side--it is, I think, her
last day here. So if I could turn to the Ranking Member, just
to say goodbye.
Mr. Grijalva. Thank you very much. And I appreciate that
very much, Mr. Chairman, to have a moment. This is her last
week. And she will be sorely missed, and an institutional
memory, and a drive for the issues, and a passion for the
issues that we have jurisdiction over in this committee. It is
a loss, but she leaves with a legacy of accomplishment, hard
work, and, more importantly, having trained many Members of
Congress that sit in this dais. Some of her class are doing
well. And we are going to miss her deeply, sorely, and my
colleagues and the staff that she has worked with, present and
past, are all going to join in not only acknowledging her, but
thanking her profoundly for the contributions she has made to
this committee and to the issues we confront here. Thank you so
much.
[Applause.]
The Chairman. We wish you well in your further endeavors
because, let's face it, anything has to be better than this.
[Laughter.]
The Chairman. I am now going to recognize myself for an
opening statement, and then we will go to the Ranking Member,
then to the Vice Chair and the designee of the Ranking Member.
STATEMENT OF THE HON. ROB BISHOP, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF UTAH
The Chairman. This is the first in what I plan to have as a
series of oversight hearings this committee will undertake on
policies involving the National Environmental Policy Act, a law
that was enacted 45 years ago, before many here were born, and
hasn't been revised since that time.
The focus of today's hearing is the White House Council on
Environmental Quality's sweeping draft guidance on greenhouse
gas emissions. On its face, the draft guidance acknowledges
that it is not legally enforceable. Some may say that means it
is unlawful. Despite not being legally enforceable, curiously,
CEQ claims that the guidance will facilitate compliance and
improve efficiency and consistency of existing NEPA reviews--
literally, thousands of reviews annually.
Based upon the Federal Government's track record on NEPA, I
am highly dubious, but will listen closely to the testimony
today for evidence on whether or not that is, indeed, the case.
This draft guidance set the stage for potential sweeping
Federal overreach, by pushing agencies to examine greenhouse
gas emissions that are beyond their ability to control or
regulate the impacts, including the vast array of all upstream
and downstream impacts. The draft guidance is overly broad,
expansive, it goes outside the scope of NEPA. Otherwise, it is
OK. For NEPA to work correctly, Federal agencies must be able
to affect the outcome of the proposed projects.
But the draft guidance goes far beyond what an agency can
control. The results will force more delays, more costs onto
economic and energy-related activities nationwide, and
uncertainty for those who want to balance the needs important
to all Americans with protecting the environment. The draft
guidance would even frustrate the Administration's other goals,
such as modernizing the Nation's electric grid, to improve
energy reliability and resiliency.
The trend for this Administration seems to be that the end
justifies the means, regardless of whether the law allows it.
This draft guidance is the latest case in point. CEQ states as
a fact that ``Many agency NEPA analyses have concluded that
greenhouse gas emissions from an individual agency action will
have small, if any, potential climate change effects.
Government action occurs incrementally, program by program and
step by step, and climate impacts are not attributable to any
single action, but are exacerbated by a series of smaller
decisions, including decisions made by the government.''
Even though they say that, CEQ then concludes that being a
small impact is not a good-enough reason not to consider
everything that could possibly impact any climate change in any
NEPA analysis. Federal agencies have jurisdictional limits.
They cannot possibly consider the entire range of climate
impacts of things outside their jurisdiction under existing
NEPA guidelines.
CEQ acknowledges the limits of the guidance when it says,
``This guidance is not a rule or regulation, it does not change
or substitute for any law, regulation, or other legally binding
requirement. It is not legally enforceable, and does not
establish legally binding requirements in and of itself.''
Which begs the question, ``Then why do it? ''
Clearly, for an administration that advocates climate
change policies as more pressing than national security
threats, the answer is, regardless of its enforceability, the
end justifies the means. They could not get the cap and trade
passed by Congress, so now they address climate change by
forcing it through the NEPA process by unlawful guidance.
CEQ is bound by the statutes. Therefore, any environmental
review conducted by an agency is bound by the statutorily
prescribed mission and jurisdiction limits of the permitting
agency. In the absence of congressional action to expand the
scope of the environmental review for Federal agencies by
expanding their jurisdiction, agencies, including CEQ, are
stuck with the recognition that greenhouse gas emissions from
an individual Federal agency action will have small, if any,
potential climate change effects.
Numerous and exhaustive NEPA analyses agree, and imposing
hugely costly and lengthy new analyses will not change that.
With that, I kind of look forward to hearing from our witnesses
today, and hope that the Obama administration will recognize
this guidance should be withdrawn.
[The prepared statement of Mr. Bishop follows:]
Prepared Statement of the Hon. Rob Bishop, Chairman, Committee on
Natural Resources
This is the first of a series of oversight hearings this committee
will undertake on policies involving the National Environmental Policy
Act, a law enacted 45 years ago. The focus of today's hearing is the
White House Council on Environmental Quality's sweeping draft guidance
on greenhouse gas emissions.
On its face, the draft guidance acknowledges it is ``not legally
enforceable.'' In other words, it is unlawful. Despite not being
``legally enforceable,'' curiously, CEQ claims the guidance ``will
facilitate compliance'' and ``improve efficiency and consistency'' of
existing NEPA legal requirements and reviews impacting literally
thousands of actions annually with a Federal nexus.
CEQ states: ``Overall, this guidance is designed to provide for
better and more informed Federal decisions regarding greenhouse gas
emissions and effects of climate change consistent with existing NEPA
principles.'' Based upon the Federal Government's track record on NEPA,
I am highly dubious, and will listen closely to the testimony today for
evidence whether or not that is the case.
This draft guidance sets the stage for potentially sweeping Federal
overreach by pushing agencies to examine greenhouse gas emissions that
are beyond their ability to control or regulate the impacts, including
the vast array of all upstream and downstream impacts.
The draft guidance is overly broad and expansive, and goes outside
the scope of NEPA. For NEPA to work correctly, Federal agencies must be
able to affect the outcome of the proposed project. But, the draft
guidance on its face goes far beyond what an agency can control. The
result will force more delays, more costs onto economic and energy-
related activities nationwide, and uncertainty for those that want to
balance needs important to all Americans with protecting the
environment. The draft guidance would even frustrate the
Administration's other goals, such as modernizing the Nation's electric
grid to improve energy reliability and resiliency.
The trend for this Administration seems to be that the end
justifies the means, regardless of whether the law allows it. This
draft guidance is the latest case in point.
CEQ states as fact that ``many agency NEPA analyses have concluded
that greenhouse gas emissions from an individual agency action will
have small, if any, potential climate change effects. Government action
occurs incrementally, program-by-program and step-by-step, and climate
impacts are not attributable to any single action, but are exacerbated
by a series of smaller decisions, including decisions made by the
government.''
Yet, CEQ concludes that being a small impact is not a good enough
reason not to consider everything that could possibly impact climate
change in a NEPA analysis. But, Federal agencies have jurisdictional
limits, and cannot possibly consider the entire range of climate
impacts of things outside their jurisdiction under NEPA.
CEQ itself acknowledges the limits of the guidance when it says:
``This guidance is not a rule or regulation . . . [it] does not change
or substitute for any law, regulation, or other legally binding
requirement, and is not legally enforceable, and does not establish
legally binding requirements in and of itself.''
Which begs the question, ``Why do it? '' Clearly, for an
administration that advocates climate change polices as more pressing
than national security threats, the answer is that, regardless of its
enforceability, the end justifies the means. They could not get cap and
trade passed by the Congress, so now they will address climate change
by forcing it through the NEPA process by an unlawful guidance.
CEQ is bound by the statute, its own regulations, and case law
precedent. Therefore, any environmental review conducted by an agency
is bound to the statutorily prescribed mission and jurisdictional
limits of the permitting agency set by Congress and the statutory and
regulatory interpretations of the courts.
In the absence of congressional action to expand the scope of the
environmental reviews for Federal agencies by expanding their
substantive jurisdiction, agencies, including CEQ, are stuck with the
recognition that greenhouse gas emissions from an individual Federal
agency action will have small, if any, potential climate change
effects. Numerous and exhaustive NEPA analyses agree, and imposing
hugely costly and lengthy new analyses will not change that.
With that, I look forward to hearing from our witnesses today and
with any hope, a recognition from the Obama administration, that this
guidance should be withdrawn.
______
The Chairman. With that, I recognize the Ranking Member,
Mr. Grijalva, for his statement.
STATEMENT OF THE HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Grijalva. Thank you, Mr. Chairman, for recognizing me.
And I want to thank our witnesses for being here today. I would
like to extend a special welcome to the Managing Director of
CEQ, Christy Goldfuss, who is making her first appearance
before the committee in her new role. I know she will find this
appearance memorable for its pleasant tone, civility, and the
thoughtful discourse that will occur.
[Laughter.]
Mr. Grijalva. I want the Managing Director--who used to be
a member of the Democratic staff on this committee when I
chaired the National Parks and Public Lands Subcommittee. I
know she will do an excellent job, and keep our country on the
right course in responding to climate change and other pressing
environmental challenges that we face.
Mr. Chairman, I hope this hearing is not intended to
undermine and mischaracterize the National Environmental Policy
Act, which remains one of our Nation's bedrock environmental
laws. I also hope that the misguided task forces and
investigation we have seen before, aimed at proving that NEPA
and other laws somehow stifle our economy and limit our
freedoms, are a thing of the past.
Mr. Chairman, in your chairmanship, and the recognition by
the committee in our first meeting in January that climate
change does exist, I hope with that we have entered a new era
with respect to understanding NEPA's value to our communities,
our environment, and our economy.
NEPA shines a light on proposed government actions and
helps local citizens provide new information and ideas, improve
projects, and ensure sustainable decisionmaking. It helps
Federal authorities consider a range of alternatives, often
resulting in lower cost to the public. NEPA provides for
environmental justice, helping communities that cannot afford
expensive lobbyists to protect their lands and their values.
This is especially important when agencies consider the effects
of greenhouse gas emissions and climate change.
Climate change is hitting poor communities, communities of
color, our rural communities, and our most disenfranchised
people the hardest. America is living in vulnerable areas, and
those with fewest resources to help them adapt or recover
quickly are already bearing the brunt: one of the various
social costs of climate change that is not being adequately
analyzed and addressed.
I congratulate the Administration and the Council on
Environmental Quality on issuing this very appropriate revised
guidance. In my opinion, it is long overdue. I urge CEQ to
review the many comments it has received, and issue a final
draft as soon as possible.
This guidance will provide for better, more informed and
more efficient Federal decisions. It will produce consistent
Federal decisions on evaluating climate change impacts, while
accommodating each agency's unique processes. The guidance
makes clear that Federal agencies must factor greenhouse gas
emissions and climate change into their decisions. This is just
common sense. Arguing that they fall outside the scope of NEPA
analyses is like denying the existence of climate change
itself; it is dangerous for our health, for our economy, and
for our national security. Campaigns to convince the American
people we have nothing to do with climate change will not slow
the pace of actual climate change at all.
Climate change will only be slowed by efforts to reduce
carbon pollution, to accelerate the inevitable transition to a
clean energy economy, to create millions of good-paying jobs
for those who need them the most in the green economy, and to
put our faith in the American track record of innovation.
Insurance companies, the Department of Defense, FEMA,
states, cities, towns, and counties are all assessing the risk
of climate change and emissions as part of their business and
the function of delivering public services. I don't think it is
wrong for our agencies to do the same.
Again, I thank the witnesses for being here today, and I
yield back my time, Mr. Chairman.
[The prepared statement of Mr. Grijalva follows:]
Prepared Statement of the Hon. Raul M. Grijalva, Ranking Member,
Committee on Natural Resources
Thank you, Mr. Chairman, for recognizing me, and I thank our
witnesses for being here today. I would like to extend a special
welcome to the Managing Director of CEQ, Christy Goldfuss, who is
making her first appearance before this committee in her new role. Ms.
Goldfuss used to be a member of the Democratic staff of this committee
when I chaired the National Parks and Public Lands Subcommittee. I know
she will do an excellent job and keep our country on a progressive
course in responding to climate change and the other pressing
environmental challenges we face.
Mr. Chairman, I hope this hearing is not intended to undermine and
mischaracterize the National Environmental Policy Act, which remains
one of our Nation's bedrock environmental laws. I also hope the
misguided task forces and investigations we've seen before--aimed at
proving that NEPA and other laws somehow stifle our economy and limit
our freedoms--are a thing of the past.
With your new chairmanship, and the recognition by this committee
in our first meeting in January that climate change does exist, I hope
we have entered a new era with respect to understanding NEPA's value to
our communities, our environment and our economy.
NEPA shines a light on proposed government actions and helps local
citizens provide new information and ideas, improve projects, and
ensure sustainable decisionmaking. It helps Federal authorities
consider a range of alternatives, often resulting in lower costs to the
public--something I am sure everyone here supports.
NEPA provides for environmental justice, helping communities that
cannot afford expensive lobbyists to protect their lands and their
values. This is especially important when agencies consider the effects
of greenhouse gas emissions and climate change. Climate change is
hitting low income communities, communities of color, and our most
disenfranchised people the hardest. Americans living in vulnerable
areas and those with the fewest resources to help them adapt or recover
quickly are already bearing the brunt.
I congratulate the Administration and the Council on Environmental
Quality on issuing this very appropriate revised guidance. In my
opinion, it is long overdue. I urge CEQ to review the many comments it
has received and issue a final draft as soon as possible.
This guidance will provide for better, more informed, and more
efficient Federal decisions. It will produce consistent Federal
decisions on evaluating climate change impacts while accommodating each
agency's unique processes.
This guidance makes clear that Federal agencies must factor
greenhouse gas emissions and climate change into their decisions. This
is just common sense. Arguing that they fall outside the scope of NEPA
analyses is like denying the existence of climate change itself. It's
dangerous for our health, for our economy, and for our national
security.
Campaigns to convince the American people we have nothing to do
with climate change will not slow the pace of actual climate change at
all. Climate change will only be slowed by efforts to reduce carbon
pollution, to accelerate the inevitable transition to a clean energy
economy, to create millions of good-paying green jobs for those who
need them most, and to put our faith in the American track record of
innovation.
Again, I thank the witnesses for being here today, and I yield back
my time.
______
The Chairman. Thank you.
I will now recognize the Vice Chair, Mrs. Lummis, for her
statement.
STATEMENT OF THE HON. CYNTHIA M. LUMMIS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WYOMING
Mrs. Lummis. Good morning, Mr. Chairman, and thank you for
holding this hearing.
Look, major Federal decisions should be informed by an
understanding of how they impact our environment. That is the
simple idea behind NEPA. NEPA requires the Federal Government
to take a hard look at the environmental impacts of Federal
actions and projects. There has to be a causal relationship
between a project and the alleged impacts.
But CEQ's revised draft guidance on greenhouse gas
emissions turns this upside down. The new guidance assumes that
any greenhouse gas emissions contribute to global climate
change, and so they are environmental impacts.
Now, indulge me this indelicate statement, Mr. Chairman. I
emit greenhouse gases. You emit greenhouse gases. The Ranking
Member, our panelists, we all emit greenhouse gases. You can
measure our emissions with a high degree of accuracy. What is
difficult, but not--in fact, what is difficult, but perhaps
impossible to measure is how much our emissions actually
contribute to global warming, or global cooling, or other
global climate changes that impact our environment.
As our experts will reveal today, this connection is
difficult enough to make, even if you analyze the greenhouse
gas emissions of the entire United States. Yet CEQ is now
telling agencies that if a project emits greenhouse gases, it
is a de facto environmental impact. That will lead to project
delays, project modifications, added costs, mitigation costs,
and, in some cases, even project denials. From public lands
permits, to energy production, to roads and pipelines, there
isn't a corner of the United States that isn't touched by this
new guidance, and the costs could be enormous.
This so-called guidance didn't even go through rulemaking,
which is astounding when you consider its economic impacts.
I look forward to the hearing. I look forward to listening
to our panelists today. Some will question the science and
legal basis for this draft guidance.
I have with me here somewhere a copy of NEPA. I brought it
with me. Six pages. Well, it barely goes over to the seventh
page. Six pages, the National Environmental Policy Act. It is
supposed to inform Federal decisions, not dictate them. But,
after 45 years of agencies and courts reading more and more
requirements into NEPA, this six-page bill has generated reams
of paperwork that created lots of greenhouse gases--so many
greenhouse gases that it could fill the halls of Congress and
then some.
Some of this paperwork has likely produced environmental
benefits, but much of it is duplicative and unnecessary. CEQ's
draft guidance is a prime example. This guidance will create
far more paperwork and greenhouse gases than environmental
benefits, regardless of one's position on global warming.
We need to recognize, Mr. Chairman, that NEPA procedure has
become so time-consuming, so costly, and so fraught with
litigation that, in many cases, the process alone dictates
outcomes. Only then can we have a reasonable conversation about
how the 45-year-old NEPA could better serve our environmental
needs in the 21st century.
Thank you, Mr. Chairman. I yield back.
[The prepared statement of Mrs. Lummis follows:]
Prepared Statement of the Hon. Cynthia M. Lummis, Vice Chairman,
Committee on Natural Resources
Thank you Mr. Chairman, and thank you for holding this hearing.
Most would agree that major Federal decisions should be informed by
an understanding of how they impact our environment. That's the simple
idea behind the National Environmental Policy Act of 1969, or NEPA.
But the Council on Environmental Quality's revised draft guidance
on greenhouse gas emissions turns NEPA on its head. NEPA requires the
Federal Government to take a hard look at the environmental impacts of
Federal actions and projects. There has to be a causal relationship
between a project and the alleged impacts.
The new greenhouse gas guidance assumes that any greenhouse gas
emissions contribute to global climate change, and are hence
environmental impacts.
Now, I emit greenhouse gases. The Chairman and Ranking Member and
our panelists emit greenhouse gases. You can measure our emissions with
a high degree of accuracy. What's more difficult, if not impossible, is
measuring how much our emissions are actually contributing to global
warming, or global cooling, or other global climate changes that impact
the environment.
As expert testimony will reveal today, this connection is difficult
enough to make even if you analyze the greenhouse gas emissions of the
entire United States. Yet CEQ is now telling agencies that if a project
emits greenhouse gases, it is a de facto environmental impact. That
will lead to project delays, project modifications, added project
costs, mitigation costs, or even project denials. From public lands
permits to energy production to roads and pipelines, there isn't a
corner of the United States that isn't touched by this new guidance,
and the costs could be enormous.
This so-called guidance didn't even go through a rulemaking, which
is astounding considering its sweeping impacts.
I look forward to hearing from panelists today who will question
both the scientific and legal basis of this draft guidance.
I want to end by reminding everyone that NEPA, the statute, is six
pages long, barely reaching the seventh page. This law is supposed to
inform Federal decisions, not dictate them. But after 45 years of
agencies and courts reading more and more requirements into NEPA, this
six-page bill has generated reams of paperwork that could literally
fill the halls of Congress and then some.
Some of this paperwork has likely produced environmental benefits,
but much of it is duplicative or unnecessary. The CEQ's draft guidance
is a prime example. Testimony today will demonstrate that it creates
far more paperwork and costs than it will environmental benefits,
regardless of one's position on global warming.
We need to recognize that NEPA procedure has become so time
consuming, so costly, and so fraught with litigation that in many cases
the process alone dictates outcomes. Only then can we have a reasonable
conversation about how the 45-year-old NEPA could better serve our
environmental needs in the 21st century.
Thank you Mr. Chairman. I yield back.
______
The Chairman. Thank you. At the request of the Ranking
Member, I now recognize Ms. Bordallo to give an opening
statement.
You made it back from the White House, I see.
Ms. Bordallo. Thank you very much, Mr. Chairman. Before I
begin my statement, I do want to recognize a committee staff
member here, Jean, who is going to be retiring. When we were in
the Majority, some time ago, I was the Chair of the
Subcommittee on Fisheries, Wildlife, Oceans and Insular
Affairs, and Jean, here, provided all the guidance I needed. I
was new, and she certainly was very professional in her ways.
And not only was she a professional committee staffer, but she
was my friend. So we are going to miss her.
STATEMENT OF THE HON. MADELEINE Z. BORDALLO, A DELEGATE IN
CONGRESS FROM THE TERRITORY OF GUAM
Ms. Bordallo. Mr. Chairman, I thank you for holding this
important hearing on the CEQ's draft guidance that would
provide Federal agencies more guidance on considering the
effects of greenhouse gases and climate change, with regards to
the NEPA process.
I think we all understand, and can agree, that the NEPA
process is not perfect. But it has been an important tool for
many of our communities to weigh in and voice concerns about
Federal agencies' actions that would have potential
environmental impacts. I also appreciate the efforts of the CEQ
and the Obama administration in drafting guidance for
considering the impacts of greenhouse gases and climate change
within the NEPA process.
Guam, Guam as an island territory faces very real threats
of sea-level rise, ocean acidification, periods of low-quality
air, intensifying storm seasons, and invasive species, as a
result of harmful gases and climate change. But don't let that
change your mind; still come to Guam to visit.
[Laughter.]
Ms. Bordallo. Moreover, I think it is wise that we
encourage, not force, Federal agencies and departments to
consider the potential impacts of climate change.
For example, I would hope that the U.S. Navy would take
potential sea-level rise when developing military construction
projects in Apra Harbor, so they are making long-term and wise
investments in critical infrastructure. I think it is important
to highlight how the NEPA process was extremely critical in
shaping Federal actions regarding the military buildup on Guam.
The NEPA process allowed local stakeholders to voice their
concerns about the impact of the relocation of the Marines from
Okinawa to Guam.
The process helped to clarify that one of the main concerns
on Guam was the initial need to acquire additional private or
Government of Guam land. The Department of Defense had to
respond to these concerns, and took additional time to re-
analyze their needs and place more of the relocation functions
on existing DoD land. This is a great example of how local
collaboration and input through NEPA helped to shape a better
outcome of a critical Federal action.
Because of the NEPA process, the people of Guam were able
to influence agency decisions regarding the volume of military
personnel, the placement and construction of facilities, the
impact of invasive species, and the preservation of
historically and culturally important lands and artifacts. So I
appreciate and support the efforts of the Administration to
further improve and refine the NEPA process with this draft
guidance of the GHGs and climate change, and look forward to
working with the Administration and Congress to ensure that
local communities, such as mine on Guam, have access to a NEPA
process that better addresses the challenges and opportunities
of this changing world.
I yield back, Mr. Chairman.
[The prepared statement of Ms. Bordallo follows:]
Prepared Statement of the Hon. Madeleine Z. Bordallo, a Delegate in
Congress from the Territory of Guam
Mr. Chairman, thank you for holding this important hearing on the
CEQ's draft guidance that would provide Federal agencies more guidance
on considering the effects of greenhouse gases and climate change with
regards to the NEPA process.
I think we all understand and can agree that the NEPA process is
not perfect, but it has been an important tool for many of our
communities to weigh in and voice concerns about Federal agencies'
actions that would have potential environmental impacts.
I also appreciate the efforts of CEQ and the Obama administration
in drafting guidance for considering the impacts of greenhouse gases
and climate change within the NEPA process. Guam as an island territory
faces very real threats of sea level rise, ocean acidification, periods
of low quality air, intensifying storm seasons, and invasive species,
as a result of harmful gases and climate change.
Moreover, I think it is wise that we encourage, not force, Federal
agencies and departments to consider the potential impacts of climate
change. For example, I would hope that the U.S. Navy would take
potential sea level rise when developing military construction projects
in Apra Harbor so they are making long-term and wise investments in
critical infrastructure.
I think it is important to highlight how the NEPA process was
extremely critical in shaping Federal actions regarding the military
buildup on Guam. The NEPA process allowed local stakeholders to voice
their concerns about the impact of the relocation of Marines from
Okinawa to Guam.
The process helped to clarify that one of the main concerns on Guam
was the initial need to acquire additional private or Government of
Guam land. The Department of Defense had to respond to these concerns
and took additional time to re-analyze their needs and place more of
the relocation functions on existing DoD land. This is a great example
of how local collaboration and input through NEPA helped to shape a
better outcome of a critical Federal action.
Because of the NEPA process, the people of Guam were able to
influence agency decisions regarding the volume of military personnel,
the placement and construction of facilities, the impact of invasive
species, and the preservation of historically and culturally important
lands and artifacts.
I appreciate and support the efforts of the Administration to
further improve and refine the NEPA process with this draft guidance on
GHGs and climate change, and look forward to working with the
Administration and Congress to ensure that local communities such as
mine on Guam have access to a NEPA process that better addresses the
challenges and opportunities of a changing world.
______
The Chairman. Thank you very much.
OK, I now will turn to our panel of witnesses. We
appreciate them coming at great distance to be here, many of
you from great distances to be here.
On my left, going to right, we have Ms. Christy Goldfuss,
who is the Managing Director for the Council of Environmental
Quality. We are happy to have you. As has been mentioned, you
used to be a staffer here. It is good to have you back.
Mr. Roger Martella, Jr. is a partner in the Sidley Austin
LLP; Dr. John Christy, a Professor of Atmospheric Science and
State Climatologist at the National Space Science and
Technology Center at the University of Alabama; and Mr. Ray
Clark, who is the President of Rivercrossing Strategies, LLC.
We appreciate all of you being here.
Before we ask you for your testimony, we remind you that
your written testimony is included in the record. Your oral
comments should be limited to 5 minutes. And, for those of you
who have not been here before, the light system in front of you
should indicate--if it is green, you are good to go. When it
hits the yellow light, that means you have a minute left. And
at red, I will be gaveling you down. So, hopefully, you will
respect that, as well.
So, with that, Director, we recognize you for 5 minutes for
your oral testimony. And, once again, we appreciate having you
here.
STATEMENT OF CHRISTY GOLDFUSS, MANAGING DIRECTOR, COUNCIL ON
ENVIRONMENTAL QUALITY, WASHINGTON, DC
Ms. Goldfuss. Good morning, Chairman Bishop, Ranking Member
Grijalva. And just a quick note to Jean, thank you for all of
your work. You are a true environmental champion, and we are so
sad, so sad that you are leaving this committee. Thank you for
the opportunity to appear before you today to discuss CEQ's
efforts to modernize NEPA through proposed guidance on the
consideration of greenhouse gas emissions and the effects of
climate change in NEPA reviews. We at CEQ are proud of this
guidance, and we welcome the opportunity to speak to you about
it today.
As you know, and has been mentioned, NEPA calls on agencies
to consider the potential environmental impacts of their
actions when making decisions to quote the statute which,
really, was before its time. The law was established 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.
In short, NEPA asks agencies, and requires agencies, to
look before they leap. It allows agencies the flexibility to
consider environmental impacts in a reasonable and measured
manner. It allows them to focus on issues that are important,
hear from all stakeholders, and exercise their professional
judgment in projecting environmental impacts.
CEQ's draft GHG guidance will add further predictability to
the NEPA process by clarifying for agencies and project
sponsors how to account for climate change as part of
environmental reviews. It provides a reasoned and transparent
approach that will enable them to make more informed decisions.
This guidance reflects our latest effort to help agencies
complete environmental reviews consistently, efficiently, and
openly under the existing NEPA framework.
We know that a changing climate is a reality, and carbon
pollution is the biggest driver of climate change. We also know
that Federal actions can contribute to emissions, and that
climate change affects agencies and their actions. And we know
that consideration of climate change falls squarely within the
scope of NEPA. And Federal courts across multiple circuits have
considered various approaches to this analysis.
Where the courts differ, and what agencies have been
wrestling with for years, however, is how climate change should
be considered in NEPA reviews. Our guidance offers a consistent
approach that increases certainty and preserves agency
discretion. This makes it easier and faster for agencies to
prepare reviews and will reduce the threat of litigation, which
can be costly and cause further delay.
I want to be clear about something, as I think it often
gets lost when we talk about NEPA generally or specifically
with relation to the greenhouse gas guidance. NEPA's
requirements focus on the process by which agencies consider
the impacts of their actions, not on the outcomes. It does not
require agencies to make an environmentally preferred decision,
or to reject certain projects. The guidance is simply about
transparency and informed decisionmaking. I like to think of it
like the calorie count on a box of cereal. Just like nothing
prevents a consumer from selecting the most calorie-intensive
alternative, nothing about our guidance requires an agency to
select the least greenhouse gas-intensive alternative.
The guidance does not regulate emissions, direct agencies
to prohibit emissions-intensive projects, or mandate that
agencies select the alternative with the least emissions. What
the guidance does do is put an end to delays caused by hand-
wringing over whether climate change should be addressed, or
how to address it. Our guidance provides a consistent framework
for how agencies can consider climate impacts.
Specifically in the guidance we encourage agencies to focus
their analysis on those actions involving large levels of
emissions which are most likely to raise climate issues. We
encourage agencies to use existing GHG estimation tools, rather
than attempting to build their own. We advise agencies to
consider the potential effects of climate change, such as
flooding or drought, early in the project planning process. And
we emphasize that agencies should rely on existing assessments
and reports on climate change, rather than conducting their own
research.
As always under NEPA, agencies must focus their analysis on
reasonably foreseeable direct, indirect, and cumulative
impacts, as a project; limit their analysis on what is
necessary, given the scope of the project; and avoid
speculation. We remain confident that this guidance will bring
greater clarity on when, why, and how the NEPA process should
apply to climate change issues.
Mr. Chairman and Ranking Member Grijalva, and members of
the committee, I am proud of what CEQ has accomplished over the
past 5 years to modernize and reinvigorate NEPA and the NEPA
process. I appreciate the opportunity to present to you today,
and I look forward to your questions. Thank you.
[The prepared statement of Ms. Goldfuss follows:]
Prepared Statement of Christina W. Goldfuss, Council on Environmental
Quality
Chairman Bishop, Ranking Member Grijalva, and members of the
committee, thank you for the opportunity to appear before you today to
discuss efforts by the Council on Environmental Quality (CEQ) to
modernize National Environmental Policy Act (NEPA) implementation and
the recent release of the Revised Draft Guidance for Federal
Departments and Agencies on Consideration of Greenhouse Gas (GHG)
Emissions and the Effects of Climate Change in NEPA Reviews. We at CEQ
are proud of this guidance and welcome the opportunity to speak with
you about it.
As you know, NEPA calls upon agencies to inform decisionmakers and
the public of potential environmental effects of agency actions and
consider comments on the proposed action. In short, it requires
agencies to ``look before they leap'' when making decisions. Embodied
in NEPA is the flexibility for agencies to consider environmental
effects in a reasonable and measured manner. It allows agencies to
focus on issues that are important, hear from all stakeholders and
consider their input, and exercise their professional judgment in
projecting the potential environmental impacts. These potential impacts
of a proposal, and any reasonable alternatives, include all elements of
the human environment and include ecological, social, and economic
effects.
ceq's climate guidance
Consistent with efforts throughout the Administration to modernize
and increase the efficiency of the NEPA process, CEQ's draft guidance
will add further predictability to the NEPA process by clarifying for
Federal agencies and project sponsors how to account for climate change
as part of considering environmental effects of proposed actions. It
provides a reasoned, consistent, and transparent approach for
considering the effects of GHGs and climate change that will enable
agencies to make better decisions that achieve NEPA's goal of creating
and maintaining conditions under which our citizens and our environment
``can exist in productive harmony, and fulfill the social, economic,
and other requirements of present and future generations of
Americans.'' \1\
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\1\ 42 U.S.C. Sec. 4331(a).
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We are we here today, primarily, to focus on the NEPA climate
guidance, so I would like to share with you a few thoughts about the
guidance and how we got to this point. CEQ's issuance of the GHG
guidance reflects its latest effort to provide Federal agencies with
how they can complete environmental reviews consistently,
expeditiously, and openly under the existing NEPA framework.
We know that a changing climate is a reality, and carbon pollution
is the biggest driver of climate change.\2\ We also know that emissions
associated with Federal actions contribute to climate change and that
climate change affects Federal agencies and their actions. Further, we
know that consideration of climate change falls squarely within the
scope of NEPA, and Federal courts across multiple circuits and
districts have been considering various approaches to the analysis.
Where courts differ and what agencies have been wrestling with for
years, however, is how the effects of climate change and GHGs should be
considered in NEPA reviews.\3\
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\2\ 2 http://nca2014.globalchange.gov/report.
\3\ A. Litigation in the 8th, 9th, and DC Circuits, as well as
District Courts in states including Washington, Alaska, South Dakota,
Montana, Utah, Virginia, Colorado, Texas, Vermont, Iowa, Oregon, Idaho,
Minnesota, Kentucky, and Nevada have delayed projects and the Courts
have increasingly found that agencies should consider climate in their
NEPA reviews. See the compendium of Climate Change Litigation in the
U.S. available at http://www.arnoldporter.com/resources/documents/
ClimateChangeLitigationChart.pdf.
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Previously, agencies were inconsistent in whether and how they
addressed GHGs and climate impacts, adding a measure of uncertainty to
the NEPA process. For example: some agencies have not addressed GHGs
and climate impacts; some have modeled various emissions and considered
them in different contexts (e.g., state and nationwide or regional);
some have used existing tables of average emissions; and others have
calculated the percentage of their emissions in comparison to worldwide
emissions (which invariably leads to a miniscule percentage) or used
strictly qualitative analyses.
Our guidance simplifies the consideration of climate change in NEPA
reviews by offering a consistent approach to analysis, increasing
certainty while preserving agency discretion. Added clarity will make
it easier and faster to prepare analyses, and will also reduce the
threat of litigation, which can be costly and cause further delay.
We have learned a great deal about GHGs and climate change since
the release of CEQ's draft guidances on the subject in 1997 and 2010.
Not only has the science surrounding climate change improved
significantly since then, we also have a better understanding of how to
analyze it within the NEPA context. This is a result of our continual
efforts to solicit input and receive feedback from Federal agencies,
business and industry leaders, environmental groups, academia, legal
scholars, and the public. Our latest GHG guidance reflects years of
effort in determining how to tackle the challenges posed by analyzing
GHGs and climate change effects in NEPA documents. Specifically, it
responds to agency and stakeholder requests for guidance in this area,
and increases the predictability and timeliness of decisions that our
citizens deserve.\4\
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\4\ One example is the Task Force on Climate Preparedness and
Resilience which included 26 governors, mayors, county officials, and
Tribal leaders from across the country, who recommended that the
Administration ``Finalize guidance for considering climate impacts and
greenhouse gas emissions in National Environmental Policy Act
evaluations of proposed Federal actions.'' See the Task Force
recommendations at p20, available at: https://www.whitehouse.gov/sites/
default/files/docs/task_force_report_0.pdf.
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I want to be clear about something, as I think it often gets lost
when we talk about NEPA generally and our GHG guidance specifically.
NEPA's requirements focus on the process by which agencies consider the
impacts of their actions, not on substantive outcomes. Put another way,
NEPA informs the Federal agency decisionmaking process. It does not
require agencies to make an environmentally preferred decision or
prevent proposed projects from occurring. Think of it like a calorie
count on a restaurant menu or on a box of cereal. The guidance is about
disclosure and informed decisionmaking. There is nothing about it that
requires an agency--or consumer, continuing with my analogy--from
selecting the most or least GHG--or calorie-intensive alternative. As
such, the guidance does not:
Regulate emissions;
Direct agencies to prohibit emissions-intensive projects;
or
Mandate that agencies select the alternative with the
least emissions.
What the guidance does do is put an end to delays for hand wringing
over whether climate should be addressed or how to address it. Our
guidance provides a consistent framework for how agencies can consider
the climate to inform decisionmakers and the public, and point to tools
and techniques designed to ensure the NEPA review is efficient and
timely. In the guidance, we:
Encourage agencies to focus their analysis of GHGs on
actions involving potentially large levels of emissions
most likely to raise climate issues. For example, the
climate analysis for new CAFE standards, which will cut
greenhouse gas emissions by more than 2 billion metric
tons, merits much more attention than adding a handful of
vehicles to an agency motor-pool.
Recommend agencies use a proposed action's projected
emissions for analyzing its climate change effects. This
recognizes that climate is different from other resources--
like clean water or critical habitat--yet, it still adheres
to standard NEPA principles and practices, and reduces
debate and delay over which methodologies to employ, while
providing an understandable indicator that has meaning for
decisionmakers and the public.
Highlight when calculating GHGs is appropriate for
purposes of disclosure in a NEPA review. The guidance
recommends using a reference point of 25,000 metric tons of
CO2 per year to focus efforts to quantify emissions on
actions that are not minor.\5\ To provide some context of
this reference point, purchasing 5,000 passenger vehicles,
driving over 59 million miles a year, using 2.5 million
gallons of gasoline, burning 26 million pounds of coal, or
converting 190 acres of forest to cropland would not exceed
the reference point.
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\5\ See the results when entering 25,000 metric ton CO2 equivalents
in the calculator at http://www.epa.gov/cleanenergy/energy-resources/
calculator.html.
Counsel agencies to use existing GHG estimation tools--
rather than attempting to create their own--when the data
necessary to use a tool are available.\6\
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\6\ One example is the compendium of tools available at https://
ceq.doe.gov/current_ developments/GHG_accounting_methods_7Jan2015.html.
Advise that agencies consider the potential effects of
climate change, such as flooding or drought, early in the
project planning process, as part of their routine
assessment of the status of the environment that will be
affected by the proposed project, so that they develop
alternatives that retain operational and financial
viability over the long term. For example, agencies should
consider whether a proposed pipeline or highway may be
affected by subsidence or rising sea levels over the
reasonably foreseeable life of the project, to ensure there
are no unintended--and potentially costly--consequences for
siting it in an area or using inadequate materials that may
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put the project at risk.
Emphasize that agencies rely on and incorporate by
reference existing assessments and reports on climate
change rather than conducting their own research into the
potential impacts of climate change on an individual
project.
Recommend that an agency select the appropriate level of
action for NEPA review--programmatic or site/project-
specific--at which to assess the effects of GHG emissions,
and that agencies should consider the utility of a
programmatic review.
As with CEQ guidance in the past, key NEPA principles will assist
agencies as they develop their GHG and climate change analyses. As
previously referenced, Agencies must use a rule of reason in conducting
their analyses on the reasonably foreseeable direct, indirect, and
cumulative impacts of a project, limiting the analysis to what is
necessary given the scope of the project and avoiding speculation.
Let's spend a moment looking at what this means for an
infrastructure project. The guidance in its draft form recommends an
agency could consider the emissions from the reasonably foreseeable
amounts of construction materials, construction equipment used in
constructing the facility, and operations over the facility's projected
life. The disposition of the facility after that point would typically
be speculative and therefore should not be included in the analysis.
The agency would typically not analyze the emissions associated with
the widgets produced (for example: vehicles, solar panels, tons of
coal, gallons of gas, board feet of timber) unless there are reasonably
foreseeable quantities--any attempt at speculation could be mistaken as
valid and lead to misinformed decisions.
We remain confident that agency implementation of our recommended
approach to GHG and climate change effects in NEPA reviews--just like
the guidance we have provided on the use of categorical exclusions or
programmatic reviews--will bring greater clarity to when, why, and how
the NEPA process should address climate issues. With this clarity comes
efficient and transparent agency decisionmaking that will lead to
better, more predictable, and timelier decisions for projects and
agency actions that benefit our economy, communities, and the
environment.
ceq and the importance of nepa
To provide context for our discussion today, I would like to
address CEQ's important role under NEPA, followed by a review of our
efforts over the last 5 years to expedite environmental reviews and
promote informed decisionmaking.
Signed into law by President Nixon on January 1, 1970, NEPA is the
cornerstone of our country's commitment to responsive government and
decisionmaking. It is important to remember that the House of
Representatives adopted NEPA by a vote of 372 to 15 and that the Senate
passed NEPA by voice vote without any recorded dissent.
Today, we take for granted that the public has a right to
participate in Federal decisions regarding the environment, energy, and
natural resources, but in fact it was in NEPA that Congress and the
President clearly established this right. It wasn't that long ago that
the public had little voice in the Federal decisionmaking process
regarding all aspects of the human environment, which include the
social and economic aspects of Federal decisions, for projects that
affected them. Prior to the passage of NEPA, there were limited
opportunities for preventing the Federal Government from ignoring the
concerns of affected communities.
NEPA democratized the Federal decisionmaking process by formally
including environmental considerations and requiring public input into
Federal decisions. Today, NEPA facilitates the public, communities,
tribes, state and local governments and industry having a seat at the
table when Federal agencies analyze decisions that potentially impact
our communities and the environment.
As eight prior CEQ leaders from both Republican and Democratic
administrations noted to Congress a few years ago:
``Consideration of the impacts of proposed government actions
on the quality of the human environment is essential to
responsible government decisionmaking. Government projects and
programs have effects on the environment with important
consequences for every American, and those impacts should be
carefully weighed by public officials before taking action.
Environmental impact analysis is thus not an impediment to
responsible government action; it is a prerequisite for it.''
\7\
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\7\ Letter to Rep. Cathy McMorris, Chair of the Task Force on
Improving the National Environmental Policy Act. September 19, 2005.
Signed by former Chairs and General Counsels of CEQ.
At its heart, NEPA recognizes that citizens and communities, local
and state governments, Indian tribes, and businesses all have a vital
interest in government actions--and more often than not, their unique
knowledge of risks, consequences, and possible alternatives can produce
better decisions. Better decisions result from better integrated
planning and reduce the risk of litigation and delay.
Importantly, NEPA includes three different levels of review, making
it possible to evaluate simpler projects commensurate with their level
of complexity. More than 90 percent of all Federal actions are quickly
handled through categorical exclusions, the least intensive form of
NEPA review. Agencies used categorical exclusions for 96 percent of all
Recovery Act projects.\8\ Only a very small fraction of projects or
decisions require an environmental impact statement, the most intensive
NEPA review. In the case of the 275,000 projects funded under the
Recovery Act, only 841 projects (or 0.44 percent) required an
environmental impact statement.
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\8\ CEQ Report to Congress, ``The Eleventh and Final Report on the
National Environmental Policy Act Status of Progress for American
Recovery and Reinvestment Act of 2009 Activities and Projects''
November 2, 2011, available at https://ceq.doe.gov/ceq_reports/
recovery_act_ reports.html.
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Each year, Federal agencies conduct hundreds of thousands of
actions, yet between 2001 and 2013, no more than 175 NEPA cases were
filed each year--with fewer than 100 cases filed during several of
those years including 2010 and 2011, 2012, and 2013.\9\ This relatively
small percentage of actions challenged in no way diminishes the
importance of addressing the underlying reasons NEPA reviews are
challenged, and in recognizing that big projects that result in jobs,
environmental effects, and economic growth merit our continued
attention. While agencies vary in their tracking of NEPA
implementation, I think the Department of Transportation (DOT) and the
Department of Energy (DOE) provide some valuable data about the scope
and scale of NEPA in the permitting process.
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\9\ CEQ annual litigation surveys are available at https://
ceq.doe.gov/legal_corner/litigation.html.
In 2011 and 2012,\10\ the Congressional Research Service
(CRS) found in its analysis of transportation project
delivery that, ``The overwhelming majority of highway
projects are deemed to have no significant impact on the
environment and require no or limited environmental review
or documentation under NEPA.'' \11\
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\10\ CRS Report R42479, ``The Role of the Environmental Review
Process in federally Funded Highway Projects.'' April 11, 2012.
\11\ CRS Report R41947, ``Accelerating Highway and Transit Project
Delivery: Issues and Options for Congress.'' August 3, 2011.
In 2012, the Federal Highway Administration (FHWA)
estimated that, annually, about 9,700 projects are covered
by categorical exclusions, which involve no significant
environmental impacts and, hence, require limited
documentation, analysis, or review under NEPA.
Approximately 130 environmental assessments are processed
by FHWA in a year, which can take just a couple of months
to complete, and 30 projects require an environmental
impact statement. Of the NEPA reviews completed each year,
it is estimated that 98 percent are categorical exclusions,
1.7 percent are environmental assessments and only 0.3
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percent are environmental impact statements.
For the Federal Transit Administration (FTA), the majority
of FTA projects fall within categorical exclusions. Of the
NEPA reviews completed per year (2010-2012), FTA estimates
that on average approximately 3,000 projects (99 percent)
were classified as CEs, 20 were (0.6 percent) were
processed as environmental assessments, and 5 (0.2 percent)
were processed as environmental impact statements.
The Department of Energy reviewed 10 years of NEPA (2003-
2012) and found 98 percent of activities were categorical
exclusions, 2 percent were environmental assessments, and
less than .5 percent were environmental impact statements
with a median completion time of 29 months.\12\
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\12\ DOE Lessons Learned Quarterly Report, September 2013,
available at http://energy.gov/nepa/downloads/lessons-learned-
quarterly-report-september-2013.
Frequently, delays in project implementation are inaccurately
attributed to the NEPA process when other factors are relevant to the
time needed for decisions on all environmental reviews, permits, and
approvals needed for a project to proceed. NEPA becomes the ``target''
because NEPA is the ``commonality''--it is a part of the planning
process that always applies regardless of the availability of funds or
the applicability of another specific statutory or regulatory regime.
Challenges securing project funding, local opposition to a project,
project complexity, or changes in project scope or priorities can and
often do result in delays. However, because these issues are frequently
identified during the NEPA process, NEPA itself is often targeted as
the culprit.
It's also important to bear in mind that some state, tribal and
local jurisdictions have their own permitting and approval processes,
which can add time to the review of federally funded projects, in some
cases at the request of state, tribal, or local officials. And states,
tribes, and local communities often vary in their available resources,
both in staffing and funding, and expertise for permitting or reviewing
challenging projects. We are continuing our efforts to share their and
our best practices and lessons learned.
ceq's nepa modernization accomplishments to date
Five years ago, in conjunction with NEPA's 40th anniversary,
President Obama and CEQ embarked upon an historic effort to modernize
and reinvigorate NEPA to improve the transparency and efficiency of
environmental reviews. Since then, CEQ has taken a number of steps to
assist Federal agencies to meet the goals and requirements of NEPA,
while making it easier for agencies to implement them. A fact sheet
outlining our NEPA modernization efforts is attached with my written
testimony and I ask that it be included in the record. These steps
reflect our continued commitment to giving Federal agencies the tools
to advance predictable, timely outcomes in NEPA reviews that ultimately
enhance our economy while protecting our environment.
In exercising its authority under NEPA, CEQ issued several guidance
documents to Federal agencies that have enabled them to expedite
completion of their environmental review analyses while remaining true
to NEPA's mandate to ensure an informed decisionmaking process that is
open to the public. These guidance documents explain how Federal
agencies can:
Establish and use categorical exclusions for activities--
such as routine facility maintenance or construction on
existing sites--that, absent extraordinary circumstances,
do not need to undergo intensive NEPA review because the
activities do not normally, individually, or cumulatively
have significant environmental impacts;
Conduct programmatic reviews to assess landscape-scale
(e.g., Federal land management plans) or broad-scale (e.g.,
transportation corridor) activities, or address common
potential effects and how they will be addressed (e.g.,
addressing effects of fire at a facility \13\) that can
expedite future agency decisions, including individual
permit approvals; and
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\13\ In 1998 DOE, in response to public comment, included an
analysis of wildfire as a plausible risk in its site-wide environmental
impact statement. The DOE was subsequently able to take immediate
actions to mitigate the effects of the 2000 Cerro Grande Fire as those
steps were addressed in the site-wide environmental impact statement.
See Environmental Law Institute, ``NEPA Success Stories: Celebrating 40
Years of Transparency and Open Government'', at 14, available at
https://ceq.doe.gov/nepa_information/NEPA_Success_Stories.pdf.
Improve the efficiency of the NEPA process overall by
integrating planning and environmental reviews, avoiding
duplication in multi-agency or multi-governmental reviews
and approvals, engaging early with stakeholders to head off
possible future delays, and setting clear timelines for the
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completion of reviews.
CEQ's role in issuing guidance on different aspects of NEPA
implementation is to clarify existing requirements, to ensure the
consistent application of NEPA by Federal agencies and to focus those
efforts on the issues or concerns on areas most likely to delay the
review process. To be clear, and apropos of the committee's focus on
our draft GHG guidance, CEQ guidance does not change or substitute for
any law, regulation, or other legally binding requirement on agencies.
Rather, it provides CEQ's interpretation of existing regulations in the
context of an emerging issue or context. Finally, CEQ guidance, as is
the case with our draft GHG guidance, is often developed in response to
agency inquiries about how to apply NEPA to their actions.
Let's take a closer look at CEQ's efforts over the last 5 years
that have allowed Federal agencies to accelerate the environmental
review process and make better decisions without compromising NEPA's
fundamental objectives.
Categorical Exclusions
In 2010, CEQ issued final guidance on ``Establishing, Applying and
Revising Categorical Exclusions under the National Environmental Policy
Act'' to support timely Federal agency decisionmaking. The guidance
provided agencies with a set of best practices to ensure that they
establish and then use categorical exclusions appropriately and
transparently. As noted, categorical exclusions have become the most
frequently employed method of complying with NEPA, covering over 90
percent of agency NEPA reviews. A categorical exclusion is a category
of actions that a Federal agency determines does not normally result in
individually or cumulatively significant environmental effects, and
therefore, does not require further analysis in an environmental
assessment or environmental impact statement. The categorical exclusion
reflects the least intensive form of NEPA review and ensures the use in
a particular place and time does not give rise to concerns that merit
additional review.
Example--Categorical Exclusions and Tribal Housing
We have seen the benefit of this guidance in the assistance it
provided to the Bureau of Indian Affairs in its development of a
categorical exclusion for housing on tribal lands.\14\ We can all agree
that housing serves a basic and fundamental need in society, and when
housing comes under the auspices of a Federal agency action subject to
NEPA, expeditious and thoughtful decisions should be a priority. The
Bureau of Indian Affairs provides funding and approves leases and
rights-of-way for proposed housing, and these decisions are subject to
NEPA. Instead of conducting environmental assessments for scattered
home sites, which it historically had done, the Bureau of Indian
Affairs developed a category of actions, in consultation with and the
approval of CEQ, to enable it to carry out its mission and objectives,
comply with NEPA, and expedite decisions for home-building on Indian
reservations. This is just one success that has emerged from this
guidance.
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\14\ See Notice of Proposed National Environmental Policy Act:
Implementing Procedures; Addition to Categorical Exclusions for Bureau
of Indian Affairs (516 DM 10), 77 FR 26314 (May 3, 2012). See also,
Notice of Final National Environmental Policy Act Implementing
Procedures, 77 FR 47862 (August 8, 2012).
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Example--Categorical Exclusions and Broadband Infrastructure
Deployment
CEQ is also using the categorical exclusion guidance to expedite
the deployment of broadband infrastructure nationwide. CEQ is working
with multiple agencies that have decisionmaking authority over
broadband infrastructure to expedite the NEPA review process through
the use of categorical exclusions. In 2009, the National
Telecommunications and Information Administration \15\ developed
categorical exclusions based in large part on the expertise and
experience Rural Utilities Service had with its categorical exclusions.
Currently, CEQ is assisting Federal agency members of the Broadband
Infrastructure Deployment Working Group to revise their agency
implementing procedures to include categorical exclusions for broadband
projects. This revision will facilitate and expedite the development of
critical 21st century infrastructure projects in a way that is
environmentally sound and consistent across agencies.
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\15\ See ``Notice and Request for Comments, National Environmental
Policy Act-Categorical Exclusions covering the Broadband Technology
Opportunity Program (BTOP)'', 74 FR 32876 (July 9, 2009). See also
``Notice, National Environmental Policy Act-Categorical Exclusions
covering the Broadband Technology Opportunities Program (BTOP),'' 74 FR
52456 (October 13, 2009).
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Programmatic NEPA Reviews
Last December, CEQ issued its programmatic environmental review
guidance. The use of programmatic NEPA reviews has increased as
agencies undertake more broad, landscape-scale analyses for proposals
that affect the resources they manage. This guidance was requested by
agencies to explain NEPA requirements and CEQ regulations when
programmatic reviews are prepared. It identifies opportunities for
incorporating greater efficiency and transparency in agency reviews as
well as better defined and more expeditious paths toward informed
decisionmaking. Through the use of programmatic reviews, agencies can
more quickly complete the review process, while maintaining the ability
for the public, businesses, and other stakeholders to engage in
project-specific reviews that fall within a broader, landscape scale
environmental review. This guidance also made it clear that the
efficiencies for programmatic environmental impact statements also
apply to programmatic environmental assessments to overcome challenges
to the use of programmatic environmental assessments when not
explicitly addressed in agency NEPA implementing procedures.
Example--Black Hills National Forest Pine Bark Beetle Environmental
Impact Statement
Another example of how programmatic reviews can serve as an
efficient and expeditious tool in NEPA implementation is the
environmental impact statement prepared by the Black Hills National
Forest (BHNF).\16\ The Forest Supervisor made decisions about the
expanding bark beetle epidemic in an environmental impact statement
that covered over 200,000 acres. As the result of warmer weather, bark
beetles are ravaging public and private lands across the West, creating
vast areas that are vulnerable to wildfire, which risks the health and
safety of countless communities across the West. This land area was
three to six times larger than typically analyzed in environmental
impact statements for the BHNF. In addition to site-specific treatments
to be taken immediately, the decision also included an anticipatory
component, allowing the Forest Service to treat additional areas beyond
the current infestation without the need for new NEPA analyses. The
process to develop this environmental impact statement took less than
14 months and included extensive collaboration with local stakeholders,
resulting in a decision that was widely supported and allowed the
Forest Service to move expeditiously in treating bark beetle infected
areas. We believe the USFS's use of programmatic environmental reviews
in the BHNF is a model or other agencies and forest supervisors to
follow.
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\16\ See ``Notice of Intent to Prepare An Environmental Impact
Statement, Black Hills National Forest, Custer, South Dakota-Mountain
Pine Beetle Response Project,'' 76 FR 48120 (August 8, 2011). See also
``Mountain Pine Beetle Response Project Record of Decision'' (December
2012).
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NEPA Efficiencies
In 2012, CEQ issued Final Guidance on ``Improving the Process for
Preparing Efficient and Timely Environmental Reviews under the National
Environmental Policy Act.'' The guidance emphasized and clarified
existing techniques established under NEPA and the CEQ Regulations to
expedite NEPA processes, while ensuring the completion of a thorough
and meaningful environmental review. At its core, NEPA encourages
simple, straightforward, and concise reviews and documentation. The
guidance provided basic recommendations, designed to overcome gold-
plating or bullet-proofing NEPA reviews, which amplified and built upon
the CEQ Regulations. For example:
NEPA should be integrated into project planning rather
than be an after-the-fact add-on that can delay project
reviews;
NEPA reviews should coordinate and take appropriate
advantage of existing documents and studies to avoid
duplication and reduce the time and effort required to
conduct analyses;
Early, well-defined project scoping should be used to
focus environmental reviews on appropriate issues that
would be meaningful to a decision and avoid spending
unnecessary time and effort on issues that are of less or
no importance;
Agencies should develop meaningful and expeditious
schedules (milestones and timelines) for environmental
reviews; and
Agencies should respond to comments in proportion to the
scope and scale of the environmental issues raised.
The guidance was developed to encourage efficiencies in the
preparation of environmental impact statements, as well as the more
commonly used environmental assessments. When followed, these
recommendations will expedite reviews and decisions, ensure the public
and key stakeholders are involved in the process, and minimize the risk
of challenges.
Example--Efficiencies and Infrastructure
Efforts to improve efficiencies do not stop at issuing guidance.
Building a 21st century infrastructure that also safeguards our
communities and environment is an Administration priority. Safe,
reliable, and resilient infrastructure will bring immediate and long-
term economic benefits across the country, such as new jobs, energy
independence, and a competitive edge in the global economy. CEQ has
focused on improving the overall efficiency and effectiveness of
Federal environmental review and permitting processes. These efforts
have concentrated on expediting Federal decisionmaking, sharing best
practices, supporting job creation, and facilitating interagency
collaboration pertaining to NEPA.
For major projects, the NEPA process can provide a vehicle for
coordinating other permitting and planning requirements at the Federal,
state, local, and tribal levels, and avoiding duplicative and
unnecessary sequential reviews. Through interagency coordination and
oversight of Federal NEPA implementation, CEQ is leading or
participating in several efforts to achieve these objectives, either by
accelerating decisions on particular priority projects, or advancing
broad reforms to the overall process. Examples include the Transmission
Rapid Response Team, the Transportation Rapid Response Team, the
Interagency Infrastructure Permitting Improvement Team, the Unified
Federal Review process for recovery projects following Presidentially
declared disasters,\17\ and the Broadband Infrastructure Deployment
Working Group. These groups consist of senior staff representatives
from the relevant action and resource agencies working together to
expedite environmental reviews and permitting decisions on critical
infrastructure that serves the foundation for sustainable economic and
community development.
---------------------------------------------------------------------------
\17\ http://www.fema.gov/unified-federal-environmental-and-
historic-preservation-review-presidentially-declared-disasters.
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CEQ NEPA Pilot Program
Another effort CEQ has undertaken to modernize NEPA implementation
is the CEQ NEPA Pilot Program, which was launched in 2011. CEQ worked
with practitioners and other parties with an interest in NEPA reviews
to identify innovative time- and cost-saving approaches to NEPA
implementation. In January 2015, CEQ issued its CEQ NEPA Pilot Projects
Report and Recommendations \18\ based on the five selected pilot
projects. These projects were selected because of their focus on
bringing NEPA practice into the 21st century by integrating IT and web-
based tools into the review process as well as identifying best
practices for conducting environmental assessments, evaluating high-
speed rail infrastructure, and developing forest restoration projects.
More specifically, the NEPA Pilots included:
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\18\ https://www.whitehouse.gov/sites/default/files/docs/
ceq_nepa_pilots_conclusion_ recommendations_jan._2015.pdf.
An ongoing initiative advanced the National Park Service's
Planning, Environment, and Public Comment System (PEPC) and
the Forest Service's electronic management of NEPA system
(MNEPA), two online tools that improve management of the
review process, collaboration among agency personnel, and
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processing of public comments;
A survey and assessment used by the National Association
of Environmental Professionals to develop best practice
principles for environmental assessments based on lessons
learned by NEPA practitioners;
A public access component established for the
Environmental Protection Agency's online GIS-mapping
program, NEPAssist, which provides Federal agencies,
applicants and project developers, and the public with
geographic information for use in NEPA reviews and
decisionmaking;
A process for improving early engagement and an
expeditious alternative to formal Memoranda of
Understanding/Agreement developed during the initiation of
a programmatic environmental impact statement by the
Department of Transportation's Federal Railroad
Administration for intercity passenger rail service from
Washington, DC, to Boston, Massachusetts; and
The development of best practices by the Forest Service to
foster early collaboration with stakeholders for forest
restoration projects to reduce costs and enhance
efficiencies for planning and NEPA reviews, as well as for
post-decision on-the-ground restoration.
These pilots focused on cooperative efforts aimed at expediting
environmental reviews and soliciting public input to inform decisions
that will ensure sustainable development of our resources. In addition
to focusing on the procedural aspects of NEPA implementation, two of
the pilot projects looked at how Federal agencies can expedite projects
that (1) improve the sustainable management of our public lands for
multiple uses and (2) support critical infrastructure that will enable
us to compete in the global marketplace in the coming decades.
conclusion
After 45 years, NEPA endures as the cornerstone of our Nation's
environmental protections, and CEQ remains steadfast in promoting and
ensuring that its ideals of open government and informed decisionmaking
are attained by all Federal departments and agencies. Recognizing that
the health of our environment and our economy are inexorably linked,
CEQ is dedicated to engaging with Federal agency, industry,
environmental, legal, and public stakeholders to learn how best to
guide NEPA's implementation such that it benefits our natural and
cultural resources, human health and the environment, and American
communities and commerce.
Mr. Chairman, Ranking Member Grijalva, and members of the
committee, I am proud of what CEQ has accomplished over the past 5
years with respect to modernizing and reinvigorating the NEPA process
to provide for better Federal agency decisions that benefit our Nation
both environmentally and economically. I appreciate the opportunity to
testify before you today and look forward to answering your questions.
Attachment: NEPA Modernization Efforts--The Last Five Years
[This document has been submitted for the record and is being retained
in the Committee's official files.]
Questions Submitted for the Record by Rep. Grace F. Napolitano to Ms.
Christy Goldfuss
Ms. Goldfuss did not submit responses to the Committee by the
appropriate deadline for inclusion in the printed record.
Question 1. As you are aware, in 2008, several court decisions had
found the consideration of greenhouse gas emissions during the NEPA
review process as appropriate. Over the years, how much time and
resources has the Council on Environmental Quality spent fighting
litigation in court? How many cases? How many resulted in reward?
Question 2. When developing the draft guidance on greenhouse gases
and climate change, what outreach did the Council of Environmental
Quality do to key stakeholders? Since the comment period is still open
and the final guidance has not been published, have any departments or
agencies voluntarily considered the impact of greenhouse gases and
climate change in their reviews?
Question 3. Instead of the Department of Transportation having to
re-build a highway in 25 years due to rising sea levels, wouldn't the
draft guidance take these effects into consideration and only save
taxpayers money? Wouldn't this prevent the U.S. Government from having
to go back and re-build or change multiple projects?
Question 4. Are you aware of any projects in which the proposed
greenhouse gases and climate change guidance could have saved taxpayers
money?
______
The Chairman. Thank you very much.
The Chair now recognizes Mr. Martella to testify. Same 5
minutes. You are on.
STATEMENT OF ROGER R. MARTELLA, JR., PARTNER, SIDLEY AUSTIN
LLP, WASHINGTON, DC
Mr. Martella. Thank you, Chairman Bishop, Ranking Member
Grijalva, and for the whole committee, for the honor to appear
before you at this important hearing.
For 45 years, NEPA has served as the broadest, most diverse
shield of environmental protection in the United States.
Ranking Member, I agree with your statement that it really
is the bedrock of environmental law. And it has probably
realized more benefits per word of statutory text in the six
pages than any other statute.
But while it was enacted as a shield, it has also been
transformed by some into a secondary purpose that was
unintended by Congress, which is as a sword intended to block
projects, delay projects, and cancel projects. So, what we want
to talk about today is this balance, focusing on NEPA being a
shield to protect the environment, to assess greenhouse gases,
assess climate change and environmental impacts, but not
furthering this secondary purpose that some have adopted, to
make it a sword that will block projects that are critically
important to our energy independence, modern energy
infrastructure, and the various goals that the Obama
administration is pursuing to address climate change.
And, as NEPA is entering middle age--and there has been
some discussion about how old NEPA is; I was born the same year
NEPA was enacted, so I can fairly say it is middle-aged--it is
struggling to keep up with applying these older tools to
address modern problems. And no example of that is better than
climate change.
As the Chairman pointed out, NEPA has not been amended
since 1970, but we are asking it now to address greenhouse
gases and climate change, like we are asking several other
statutes to do. NEPA was designed to address specific projects
in specific areas, and look at the local and regional impacts
of those projects. As we know, climate change is a global
issue. It is an issue where you have almost an infinite amount
of sources around the world contributing to a single concern.
That is not something that syncs up very well with NEPA. So,
the question today is how do we go about reconciling these two
things.
I want to say at the outset I am in agreement with, I
think, the two fundamental principles that the Director has
shared, and that the guidance does. I do agree that an analysis
of greenhouse gases is appropriate under NEPA for certain
projects that do impact greenhouse gases. I don't dispute that;
that is what the courts have--that is where the courts have
been going, and what they have been saying.
I also do recognize the importance of guidance. I think it
can be helpful to the decisionmakers, to the courts, to the
stakeholders, to get guidance from CEQ, appropriate guidance on
how to look at this kind of 1970s tool and how it should be
addressing the modern concerns associated with climate change.
So I am in agreement on those two issues.
But, as I say in my written testimony, I do think there are
five ways that the guidance gets it wrong, and should be doing
it better. And I am not going to go through all five in the
brief time here, but I do want to focus on the first three. And
the first one, importantly, is how the guidance goes beyond
CEQ's own regulations. CEQ's regulations require an analysis of
direct, indirect, and cumulative impacts.
But the guidance goes much further than that, and it says,
beyond those, you have to consider all the upstream impacts of
a decision, and all the downstream impacts of the decision. And
it gives an example of a mine, and says you not only have to
look at the impacts of a mine--I agree, we should look at the
greenhouse gas impacts of that mine--but you have to go all the
way downstream, to look at the transportation of the resources,
the refining of the resources, the ultimate combustion or
utilization of the resources. And that goes far beyond the CEQ
regulations, and you can't amend a regulation with the
guidance.
I was interested to read the Director's testimony, where,
on page four, there is more that I agree with there than I did
in the actual guidance. And maybe there is some refinement
going on, which would be welcomed.
The second fundamental issue I want to raise has to do with
the CEQ's applying a one-size-fits-all guidance to all types of
decisions: land decisions, resource decisions. Encompassed in
this guidance are forestry decisions, grazing decisions, oil
and gas permits, export terminals, railroad spurs, highways,
and bridges, and things like that. And, for something like
climate change, we simply can't have a one-size-fits-all
guidance that applies to all those actions. That is just going
to lead to confusion, unnecessary interpretation, litigation
risk, delays, and, again, the potential to frustrate these very
important projects that are key to our energy independence and
a modern energy infrastructure.
I think what CEQ should do--and with respect--would be to
develop guidance that is specific for these sectors, as opposed
to a one-size-fits-all approach, which is misleading.
Then, the third thing I wanted to emphasize is the reliance
on the social cost of carbon. At the outset, I am not sure why
the social cost of carbon is even relevant under the law to
this. But even if you were to engage in some social cost of
carbon analysis, by no means should they be relying on the OMB
social cost of carbon. The OMB social cost of carbon metrics, I
think, are probably the single least transparent decisionmaking
in the environmental area in this administration. It is the
antithesis of NEPA, that a bunch of agencies, kind of behind
closed doors in a black box, developed these figures without
any public participation and input, and it goes against
everything NEPA stands for, when it comes to public
participation. So the social cost of carbon should not be
referred to in the NEPA analysis.
The other arguments are--the other positions are in the
written testimony. But with respect, in just 10 seconds, I do
want to repeat Chairman Bishop's statement that I do believe,
in the interim, that the guidance should be withdrawn while
these concerns are addressed. Even though it is a draft
guidance, other Federal agencies--even the courts look to
anything CEQ says with significant deference. It is having an
impact in the short term. So, I would recommend and request
that the guidance be withdrawn while these issues are
addressed, and these other guidances are developed. Thank you
very much.
[The prepared statement of Mr. Martella follows:]
Prepared Statement of Roger R. Martella, Jr., Sidley Austin LLP \1\
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\1\ The views expressed here are that of the author and are not
intended to represent the views of Sidley Austin LLP or its clients.
A Hard Look at the Administration's Revised Guidance for Greenhouse
Gas Emissions and Climate Change under NEPA Law and Practice:
Five Key Things to Fix
Chairman Bishop, Ranking Member Grijalva, and members of the
committee, thank you for providing me the opportunity and the honor to
appear before you today.
The National Environmental Policy Act (NEPA) was signed into law on
January 1, 1970 as the first official act of the environmental decade
that quickly ushered in the comprehensive laws that since have set the
standard for the world in protecting human health and the environment.
As it enters middle age 45 years later, NEPA remains the first statute
that students learn in their environmental law classes and that other
nations replicate as they enact their own environmental regimes. Unlike
every other environmental statute, it is a short, simple and
straightforward law that may be responsible for more environmental
benefits per word of statutory text than any other.
But like most other environmental statutes, NEPA is struggling to
apply its 1970s era tools to the emerging environmental challenges of
modern times. I believe that NEPA is being stretched to the proverbial
breaking point, because it is, like other environmental statutes, being
asked to perform functions its authors never intended. And, like most
other environmental laws, this challenge is most prevalent when
approaching greenhouse gases (GHGs) and climate change impacts.
The subject and timing of today's hearing could not be more
important. There is a pressing need to reconcile how Federal agencies
should assess GHGs in a way that fulfills NEPA's overarching purpose of
requiring a hard look at a full range of environmental impacts but also
upholds limits against uninformative analysis that risks significant
delays, litigation, and cancellation of important projects. No statute
is more important to informing decisionmakers and the public of the
environmental consequences of a proposed project. At the same time,
NEPA, if pushed outside established limits, can obstruct projects
needed to transition the Nation to energy independence, realizing a
more diverse energy portfolio and infrastructure, and achieving a true
manufacturing and economic renaissance associated with affordable and
reliable energy.
The question presented here is how to ensure NEPA functions
foremost as a shield that ensures sound environmental decisionmaking
and not as an obstructionist's sword against energy and infrastructure
projects and resource management plans. The answer increasingly hinges
on the extent to which GHGs are appropriately addressed in
Environmental Impact Statements (EISs) and other NEPA documents. While
there is no debate that GHG analysis is relevant to certain projects
that have an impact on GHG emissions, the key question is, ``What
should be the scope and limits of such analysis when there are almost
limitless contributors to climate change itself? ''
As explained below, properly established guidance from the Council
for Environmental Quality (CEQ) can serve a key role in providing the
appropriate direction to resolve this question in a way that provides
vigorous environmental analysis while preventing unintended
consequences of delay and litigation risk. At the same time, for the
reasons explained below, the current draft CEQ Guidance suffers from
five significant flaws that warrant the draft Guidance being withdrawn
pending revision.
Time is of the essence. Although the Guidance is labeled ``draft''
in form, in function any direction from CEQ can create a de facto
binding impact on agencies that implement NEPA, and may be cited by
opponents before courts as the position of the Federal Government. The
mere existence of such a draft is itself significant enough to cause
uncertainty and delays for both Federal decisionmakers and project
developers who are impacted by NEPA. Ideally, CEQ should reconsider and
withdraw the draft Guidance for the reasons described below, and issue
further guidance, following public notice and comment, that address and
respond to the issues below in a way that is better reconciled with
NEPA case law and past practice.
Background
By way of background, I am both a lifelong environmentalist and a
career environmental lawyer. I am very proud to have spent the majority
of my career in public service, as a trial attorney in the Justice
Department's Environment Division, as the General Counsel of the United
States Environmental Protection Agency, and as a judicial law clerk on
the Tenth Circuit Court of Appeals. At the Justice Department, I served
as the Principal Counsel for Complex Litigation where I was responsible
for leading the teams that defended the government's highest profile
and most controversial NEPA decisions. I worked closely with the
agencies in assessing the necessary scope of NEPA documents and
maintained a 100 percent success rate defending such documents in the
courts.
Both in the government and in private practice, I have served as
counsel in almost every case addressing climate change and greenhouse
gases. Last year, the Supreme Court in UARG v. EPA specifically adopted
a position advanced by my clients that both affirmed in part and
rejected in part the EPA's GHG regulation under the Prevention of
Significant Deterioration (``PSD'') permitting program. In my current
capacity as a private practitioner, I am privileged to work with a
number of stakeholders, including private companies and trade
associations, environmental organizations, and the government, to
develop regulatory solutions that advance environmental protection and
address climate change while also enabling the United States to retain
economic competitiveness in a trade sensitive, global environment where
very few economies provide even the faintest glimmer of our own
environmental controls.
Finally, in both my government and private careers, I am very proud
of the opportunities I have to participate in and advance international
rule of law initiatives, working to help develop the enactment of
environmental and public participation laws in growing economies.
Recently, I served as one of two vice-chairs in the United States of
the International Bar Association's Climate Change Justice and Human
Rights Task Force, which released a landmark report regarding
international legal mechanisms to address climate change. I am also
honored to serve on the American Bar Association's President's
Sustainable Development Task Force, Rule of Law Initiative, and as a
delegate to the United Nations at the Rio+20 sustainable development
conference in Brazil and the World Justice Forum at the Hague.
NEPA and the Need to Assess GHGs in Appropriate Ways
I. NEPA as a Shield to Protect the Environment
While NEPA is unique among environmental laws in that it does not
impose substantive requirements on the decisionmaking agency, its reach
and influence may be the broadest of any environmental statute. NEPA
applies to any Federal agency action with a significant impact on the
environment. Importantly, NEPA does not mandate any particular outcome
or require an agency to select an alternative that has the lowest
environmental consequences or GHG emissions. NEPA simply requires that
an agency take a ``hard look'' at the environmental consequences of any
major Federal action it is undertaking. See Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 350-51 (1989); Kleppe v. Sierra Club,
427 U.S. 390, 410, n.21 (1976). Once the procedural elements of NEPA
have been satisfied and the environmental consequences of a proposed
action have been given the required scrutiny, an agency may issue its
decision relying on the factors and considerations specified in the
statute under which it is acting.
When evaluating a proposed agency action under NEPA, an agency can
begin by conducting an Environmental Assessment (EA), which is a
concise environmental analysis that allows an agency to evaluate the
significance of any potential environmental impacts of the proposed
action. See 40 C.F.R. Sec. 1508.9. If the agency determines that the
environmental impacts of a proposed action will not be significant, it
can issue a Finding of No Significant Impact (FONSI) and conclude its
NEPA obligations. Id. Sec. Sec. 1508.9, 13. However, if an agency
determines--either before or after conducting an EA--that a project's
environmental impacts will be significant, it must prepare an EIA that
addresses, among other things, ``the environmental impact of the
proposed action'' and ``alternatives to the proposed action.'' 42
U.S.C. Sec. 4332(C).
To complete this analysis, an agency must consider the direct,
indirect, and cumulative effects of the proposed action 40 C.F.R.
Sec. Sec. 1508.7, 8. However, the scope of such a review is
appropriately limited by the requirement that such effects be
``reasonably foreseeable'' and, for indirect effects, proximately
caused by the proposed action under review. Dep't of Transp. v. Public
Citizen, 541 U.S. 752, 767 (2004); city of Shoreacres v. Waterworth,
420 F.3d 440, 453 (5th Cir. 2005). In addition, the agency must
evaluate mitigation measures which, if implemented, could reduce the
environmental impact of the proposed action. Id. Sec. Sec. 1508.20, 25.
The scope of a NEPA analysis is not unlimited, and only that
information that is useful to the environmental decisionmaker need be
presented. See Dep't. of Trans. v. Public Citizen, 541 U.S. 752, 767-
770 (2004) (``Rule of reason'' limits agency obligation under NEPA to
considering environmental information of use and relevance to
decisionmaker.). For example, an agency need not evaluate an
environmental effect where it ``has no ability to prevent a certain
effect due to its limited statutory authority over the relevant
actions.'' Id. Thus, despite its lack of substantive requirements,
these procedural obligations, coupled with opportunities for public
involvement, see 40 C.F.R. Part 1503, ensure that agencies are fully
informed of potential environmental impacts before taking final action
with respect to a proposed Federal action.
II. NEPA as a Sword to Obstruct Projects
Environmental lawyers most frequently associate NEPA as the bedrock
of the American environmental legal regime. Project developers who rely
upon Federal action, however, more typically consider NEPA their
opponents' most powerful tool of creating uncertainty, delay and risk.
Importantly, the projects challenged under NEPA are among those
that are most critical to realizing the goals of pursuing energy
independence, a diverse mix of conventional and renewable fuels, and
the infrastructure for a modern energy future. NEPA is frequently cited
in challenges to energy projects that require permits, licenses, and
approvals from the Federal Government, such as wind and solar farms,
oil and gas development on Federal lands, pipelines, rail expansions,
import and export terminals, and even roads, highways, and bridges.
Delays and cancellations to such projects frustrate the
Administration's other policy goals, such as the President's Clean
Power Plan goal of lowering the GHG footprint of the energy generating
sector by 30 percent by 2030. Importantly, these actions also have
consequences beyond just the energy sector. The manufacturing
renaissance in the United States is dependent on the availability and
accessibility of affordable and reliable energy at home. Thus, efforts
to frustrate such projects under NEPA have broader impacts on
manufacturing and other industrial sectors and--ultimately--the
strength of the economy and jobs at home.
At the outset, it typically takes 18 to 42 months to develop a
draft EIS, respond to comments and convert that document into a final
EIS. In addition, decisions on whether to issue EAs or EISs under NEPA,
as well as the substance of the final documents, are subject to
judicial review in Federal district court. According to CEQ, every
year, opponents of a variety of projects that require Federal approval
bring about 100 new challenges alleging violations of NEPA.
Fortunately the government wins a much higher percentage of NEPA
decisions than it loses. However, ultimate victory in the courts alone
is a misleading metric. Frequently, an outcome of a project hinges not
on just an affirmance by the court, but more importantly the timing of
such a decision. NEPA litigation in Federal district court can take 9
to 18 months or longer. There is then a right to appeal in the courts
of appeals, which can add another year to 2 years for a final decision.
And remands to correct information in the record are not uncommon and
can add many months to a year of additional delay.
Because many project investors are risk averse, they are frequently
unwilling to proceed without the security blanket of a final decision
from the Federal courts. As a result, project opponents have become
skilled over the decades of using NEPA in their arsenal as not only a
sword to strike down projects but, just as importantly, a tool to delay
final decisions to the point that financing windows close, project
investors lose patience, or the risk of litigation itself vacates
interest in proceeding with a project. As a matter of practice the
government has responded proactively. Government staff across the
agencies increasingly have become skilled at creating ``litigation
proof'' NEPA records that anticipate likely litigation arguments at the
earliest stages and address such positions proactively in the
administrative record. This has contributed to the successful outcomes
in the courts, but has not solved the significant problems associated
with delay. Increasingly the bigger threat to projects is not whether a
NEPA decision will be defended, but when.
Ultimately, in order to create such strong records that survive
judicial review, there must be clear and strong direction regarding
what NEPA requires to be considered as part of the decisionmaking
process. Because the assessment of GHGs is in its relative infancy
compared to the history of NEPA, we are in a stage where without proper
and appropriate guidance, the courts will be providing the direction to
the agencies for the first time years after the NEPA documents are
finalized, which risks significantly longer delays in the case of a
remand. For example, in High Country Conservation Advocates v. U.S.
Forest Service, 52 F. Supp. 3d 1174 (D. Colo. 2014), the court found
that a final EIS was arbitrary and capricious because the agencies
failed to properly justify their decision not to apply the draft Office
of Management and Budget (OMB) social cost of carbon estimates in
assessing climate change impacts. Id. at 1191. Significantly, although
the court remanded the document back to the agency, the court did not
mandate the inclusion of the draft OMB social cost of carbon estimates
in NEPA cost benefit analysis and observed that ``the agencies might
have justifiable reasons for not using (or assigning minimal weight to)
the social cost of carbon protocol to quantify the cost of GHG
emissions from the Lease Modifications.'' Id. at 1193. This case
highlights the challenges that agencies face when addressing novel
issues without adequate guidance on how to apply the law.
Because NEPA is strictly a procedural statute, it may seem
intuitive to adopt a ``more is more'' approach to create the most
inclusive and expansive documents possible. But such an approach
carries two significant risks: (1) adding undue delay to the
development of the documents where every week causes larger delays on
the timing of finalizing documents and ultimately defending a final
decision in the courts; and (2) adding unnecessary information that not
only confuses the reader, but more importantly generates additional
litigation risks by providing further targets for project challengers,
even if such information should not be required in the first instance.
Thus, while guidance can be of paramount help to implementing
agencies in defining the approach and scope to NEPA documents, such
guidance must be carefully and surgically crafted to advise on what is
required under NEPA without creating the risk for superfluous analysis.
To require agencies to do more than what is necessary or required will
lead to unnecessary delays and introduce significant litigation risk
without better informing decisionmakers or the public. Overly broad
guidance thus runs the risk of jeopardizing projects important and
necessary to stronger energy independence, opportunities for renewable
energy and a modern infrastructure and, in turn, the manufacturing
renaissance in the United States associated with these goals.
III. NEPA as a Vehicle for Assessing GHG Impacts
Congress has yet to pass a law that is specifically drafted to
substantively and directly address GHGs or climate change. In the
meantime, existing laws such as the Clean Air Act are being put to new
and creative service by regulatory agencies to address climate change.
NEPA is no exception. Although Congress has not amended NEPA to
address climate change, NEPA's broad language requiring a hard look at
impacts of a project, as well as the extensive case law that has
evolved over 45 years, makes it clear that assessing GHG emissions is
relevant to NEPA analysis for certain projects. For approximately a
decade, an assessment of certain projects' GHG emissions have been part
of the analysis of environmental impacts when such a project is likely
to emit or otherwise impact GHG emissions to a significant extent.
Thus, for certain types of proposed Federal actions, quantifying
GHG emissions in appropriate and specific circumstances can be an
effective tool in comparing various alternatives in a NEPA analysis.
However, it is important to remember a fundamental NEPA principle I
identified earlier: the statute's goal is to achieve informed
decisionmaking on the particular matter pending before the agency; it
is not to develop encyclopedic materials on larger issues that should
be decided in a broader framework. In order for such an approach to
achieve NEPA's primary goal of informing agency decisionmaking, it is
critical that the GHG emissions included in the comparison are
appropriately limited to those that are closely related to the proposed
project and thus are useful to inform the agency's decision. As the
causal connection between a proposed action and potential upstream and
downstream effects becomes more attenuated, attempts to quantify GHG
emissions also become more speculative and uncertain. Without
appropriate limits in place, the scope of a NEPA review could become
boundless and preclude any meaningful comparison between alternatives.
At the same time, beyond assessing GHG emissions themselves, the
unique nature of GHG emissions and climate change presents
fundamentally different considerations than any other environmental
issue and, in turn, bars a one-size-fits-all approach for all agencies
addressing all projects in all situations as CEQ proposes. As CEQ
explains in the Revised Draft Guidance, ``GHG emissions from an
individual agency action will have small, if any, potential climate
change effects. Government action occurs incrementally, program-by-
program, and climate impacts are not attributable to any single action,
but are exacerbated by a series of smaller decisions, including
decisions made by the government.'' 79 Fed. Reg. at 77,825. And as the
Environmental Protection Agency (``EPA'') stated in its endangerment
determination for GHG emissions from mobile sources, ``greenhouse gas
emissions emitted from the United States (or from any other region of
the world) become globally well-mixed, such that it would not be
meaningful to define the air pollution as greenhouse gas concentrations
over the United States as somehow being distinct from the greenhouse
gas concentrations over other regions of the world.'' 74 Fed. Reg.
66,496, 66,517 (Dec. 15, 2009). As a result, the GHG concentration at a
given location cannot be traced to a specific source or subset of
sources, but instead is the product of the incremental contributions of
all sources of GHG emissions across the planet.
The global nature of GHG emissions and climate change has important
implications for NEPA analyses and the evaluation of the potential
environmental effects of a proposed Federal action. As CEQ and other
Federal agencies have recognized:
climate change presents a problem that the United States alone
cannot solve. Even if the United States were to reduce its
greenhouse gas emissions to zero, that step would be far from
enough to avoid substantial climate change. Other countries
would also need to take action to reduce emissions if
significant changes in global climate are to be avoided.
Interagency Working Group on Social Cost of Carbon, Technical Support
Document:--Social Cost of Carbon for Regulatory Impact Analysis--Under
Executive Order 12866 at 10 (Feb. 2010). In light of the comparative
magnitude of GHG emissions from other sources, it is virtually
impossible to isolate and evaluate the climate change impacts of GHG
emissions from a single Federal action, let alone the incremental
differences in climate change impacts between various alternatives.
In recognition of these unique challenges posed by the global
nature of GHG emissions and climate change, CEQ has proposed to use GHG
emissions as a ``proxy for assessing a proposed action's climate change
impacts.'' 79 Fed. Reg. at 77,825. It is important to recognize,
however, the limitations with respect to establishing a causal link
between GHG emissions from a particular source and the environmental
and climate change impacts related to such source. Since the
proportional and relative emissions from any given project are
infinitesimally small, CEQ must ensure that agencies avoid any
temptation to expand the scope of the NEPA review to include other
upstream or downstream GHG emissions that lack the requisite causal
connection to the proposed action in an effort to artificially increase
the significance of a proposed project's climate change impacts. CEQ
must take steps to ensure that a NEPA discussion of GHG emissions
provides pertinent and helpful information to an agency decisionmaker
rather than simply adding fuel to an ongoing debate about climate
change.
Five Ways to Reconcile a Revised CEQ Guidance with NEPA Law
and Practice
As described above, I agree with CEQ regarding two overarching
assumptions in the draft CEQ guidance: (1) that an assessment of GHG
emissions is relevant to NEPA analysis for certain projects; and (2)
that appropriately drafted guidance can be an aid to Federal
decisionmakers, project developers, interested stakeholders, and the
courts. However, although GHG emissions and climate change present
distinct challenges from other types of environmental impacts as
described above, these distinctions do not excuse CEQ from acting
within the bounds of NEPA law and regulations, case law, and past
practice. As described below, there are at least five key ways revised
guidance should be drafted to ensure that the CEQ directive is fully
consistent with NEPA law and practice. In the meantime, CEQ should
withdraw the Revised Draft Guidance to avoid confusion and uncertainty
to decisionmakers, stakeholders and the courts in the interim as it
considers the comments provided by stakeholders.
1. Any Final Guidance Should Not Expand Consideration of Upstream and
Downstream Effects
At the outset, any final GHG Guidance must be clear that agencies
are not required to expand the scope of NEPA analysis to include
upstream and downstream effects that are not closely related to the
proposed Federal action under review. CEQ's current regulations require
agencies to consider direct, indirect, and cumulative effects within
certain prescribed limits. CEQ cannot use a guidance to effectively
amend those regulations by broadening their scope. The Revised Draft
Guidance's broad allowance to consider upstream and downstream effects
could be construed as expanding the scope of NEPA reviews beyond what
is permissible under CEQ's regulations and well-established case law.
Further, eliminating agency discretion to determine which potential
indirect or cumulative impacts should be considered would, as the
Supreme Court recognized in Andrus v. Sierra Club, 442 U.S. 347, 355
(1979), ``trivialize NEPA.''
The purpose of NEPA is to inform agency decisionmaking. To achieve
this purpose, it is critical that agencies avoid consideration of
potential environmental impacts that are irrelevant to the proposed
Federal action because they are either too far removed from the
proposed Federal action or are too speculative in nature. CEQ's
regulations address this concern by directing agencies to limit their
consideration of cumulative and indirect effects to those that are
``reasonably foreseeable.'' 40 C.F.R. Sec. Sec. 1508.7, 8. These
regulations ensure that agencies will not consider potential
environmental effects over which the agency has no control and allows
them to avoid unnecessary litigation over hypothetical, tangential, or
de minimis impacts. Courts interpreting these regulations have adopted
a standard based on the tort concept of proximate cause to ensure that
a sufficiently close relationship exists between the proposed Federal
action and the potential environmental impact. Metropolitan Edison Co.
v. People Against Nuclear Energy, 460 U.S. 766, 774 (1983); see also
Public Citizen, 541 U.S. at 767 (citing W. Keeton, et al., Prosser and
Keeton on Law of Torts 264, 274-75 (1983) for proximate cause
standard). Thus, for example, an agency need not consider environmental
effects of actions over which the agency has no control. Public
Citizen, 541 U.S. at 770 (``We hold that where an agency has no ability
to prevent a certain effect due to its limited statutory authority over
the relevant actions, the agency cannot be considered a legally
relevant `cause' of the effect.''); National Association of Home
Builders v. Defenders of Wildlife, 551 U.S. 644, 667 (2007) (same).
This is a heightened level of causation, and it is not enough that a
proposed Federal action would be a ``but for'' cause of the potential
impact.
Courts have applied this proximate cause standard in several past
cases addressing upstream and downstream impacts that are instructive
in the context of GHG emissions. Courts have frequently held that a
proposed Federal action cannot be considered a proximate cause of an
upstream or downstream action if the upstream or downstream action
would occur even if the Federal action did not occur. For example,
courts have held that agencies need not consider the effect of future
growth or economic development if the proposed Federal action is
responding to, rather than inducing, that growth. See, e.g., Citizens
for Smart Growth v. Dep't of Transp., 669 F.3d 1203, 1205 (11th Cir.
2012) (no need to evaluate ``the project's stimulation of commercial
interests in a previously residential area'' when ``commercial uses in
the study area were already being planned or developed''); City of
Carmel-By-The-Sea v. Dep't of Transp., 123 F.3d 1142, 1162 (9th Cir.
1997) (``The construction of Hatton Canyon freeway will not spur on any
unintended or, more importantly, unaccounted for, development because
local officials have already planned for the future use of the land,
under the assumption that the Hatton Canyon Freeway would be
completed.''); Morongo Band of Mission Indians v. Fed. Aviation
Administration, 161 F.3d 569 (9th Cir. 1998) (``[T]he project was
implemented in order to deal with existing problems; the fact that it
might also facilitate further growth is insufficient to constitute a
growth-inducing impact under 40 C.F.R. Sec. 1508(b).''). Likewise, in
the context of an oil pipeline, a court held that an agency does not
need to consider upstream impacts from extracting the oil if the oil
would be extracted, transported, and consumed even if the pipeline were
not built. Sierra Club v. Clinton, 746 F. Supp. 2d 1025, 1045 (D. Minn.
2010).
In addition, an agency's obligation to evaluate indirect and
cumulative impacts is limited to those effects which are ``reasonably
foreseeable.'' 40 C.F.R. Sec. Sec. 1508.7, 1508(b). `` `Reasonable
foreseeability' does not include `highly speculative harms' that
`distort[] the decisionmaking process' by emphasizing consequences
beyond those of `greatest concern to the public and greatest relevance
to the agency's decision.' '' City of Shoreacres, 420 F.3d at 453
(quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 356
(1989)) (alteration in original). Applying this standard, the Fifth
Circuit affirmed the Department of Transportation's decision to exclude
from its cumulative impacts analysis of a proposed LNG facility the
potential environmental effects of other proposed Federal projects for
which draft EISs had not yet been prepared. Gulf Restoration Network v.
Dep't of Transp., 452 F.3d 362, 370 (5th Cir. 2006). The court
explained that the agency was ``entitled to conclude that the
occurrence of any number of contingencies could cause the plans to
build the ports to be canceled or drastically altered.'' Id.
As CEQ has recognized, GHG emissions and climate change are
difficult to address under NEPA because GHGs are well-mixed, global
pollutants emitted by countless sources. As a result, the relative and
proportional climate change impacts of emissions associated with any
given Federal action will be infinitesimally small and such impacts are
likely to be realized regardless of the project due to other GHG
emissions globally. In response, in order to create a larger climate
change footprint for a project, some may be tempted to advocate for an
expansion of the scope of upstream and downstream emissions under
consideration to increase the overall emissions associated with a
proposed Federal action. That outcome, however, is precisely what CEQ's
own regulations and NEPA case law have sought to prevent.
The Revised Draft Guidance does not do enough to discourage such an
expansive approach to addressing upstream and downstream GHGs and
climate change impacts. To the contrary, the Revised Draft Guidance
includes an example of an open pit mine and suggests that a NEPA review
should encompass GHG emissions from every activity beginning with
clearing land for extraction and extending to the ultimate use of the
resource. These actions strain the concept of proximate cause and could
encourage agencies to look too far in their NEPA reviews and project
challengers to cite the guidance in litigation when the agencies stay
within proper bounds. CEQ should clarify that nothing about GHGs or
climate change alters the limits established in the regulations and
caselaw, and that an expanded upstream and downstream assessment for
GHGs is neither required nor lawful.
2. Any Final Guidance Should Not Be Applied Across the Board to Diverse
Land and Resource Management Actions
The Revised Draft Guidance departed significantly from CEQ's prior
2010 draft Guidance by proposing to apply the Guidance across the board
to land and resource management actions. In doing so, the Guidance
fails to fully appreciate that land and resource management actions are
inherently diverse, complex and not conducive to a one-size-fits-all
approach. Applying the Revised Draft Guidance to all land and resource
activities will make an already difficult NEPA review process even
worse. The complexity of these actions requires a more tailored
approach than the Revised Draft Guidance offers.
Agencies responsible for Federal land management are strictly bound
by statutory requirements to manage Federal land for multiple and
diverse uses, many of which have some associated environmental impacts.
Relevant statutes here include the Multiple-Use Sustained-Yield Act,
National Forest Management Act, Federal Land Policy and Management Act,
and Alaska National Interest Lands Conservation Act. A core principle
of many of these statutes is the requirement that agencies develop
comprehensive resource management plans that then guide agency actions
at the site-specific level. Once established, these plans must be
revised on a regular basis to reflect changing conditions and changing
public needs.
Land and resource management action and decisions are often among
the most contentious under NEPA. This is particularly true of
comprehensive resource management plans, which, in many cases, are
dramatically slowed--if not paralyzed--by NEPA challenges brought by
groups who oppose certain uses of Federal land. For example, opponents
of off-road vehicle use, timber harvesting, and oil and gas development
can use the NEPA process and related litigation to stall implementation
of otherwise authorized uses with which they happen to disagree.
Given the far-reaching scope of NEPA to diverse actions across the
Federal Government, applying a generic one-size-fits-all evaluation of
GHG emissions to the diverse universe of land and resources management
actions will only serve to exacerbate these challenges. While
uniformity and consistency are laudable goals, they should not be
applied indiscriminately to actions that are so fundamentally
different. Thus, to the extent that guidance is necessary for
addressing GHG emissions from land and resource management actions,
such guidance should be done separately for various types of activities
in a manner tailored to specific types of land and resource management
decisions that agencies face.
3. Any Final Guidance Should Not Require Agencies to Apply OMB's Draft
Social Cost of Carbon Estimates in NEPA Reviews
The Revised Draft Guidance also directs agencies to apply OMB's
draft Social Cost of Carbon in NEPA reviews when costs and benefits of
a proposed Federal action are monetized. OMB's draft Social Cost of
Carbon estimates are among the least transparent environmental
decisions of this Administration, having been formulated in a ``black
box'' interagency process without public input that itself seems to go
against every principle of public participation otherwise omnipresent
in NEPA and other environmental laws. In substance, the estimates are a
work in progress at best and should not be applied in NEPA reviews. To
do otherwise would gloss over several critical flaws in this draft
metric and apply mere estimates that have not been vetted by the public
with a degree of certainty and precision that is deserved. As a result,
applying social cost of carbon estimates would fail to provide the
transparency on which NEPA is based and would impede rather than
promote informed agency decisionmaking.
The OMB's draft Social Cost of Carbon estimates suffer from a
number of significant flaws that should exclude them the NEPA process.
First, projected costs of carbon emissions can be manipulated by
changing key parameters such as time frames, discount rates, and other
values that have no relation to a given project undergoing review. As a
result, applying social cost of carbon estimates can be used to promote
pre-determined policy preferences rather than provide for a fair and
objective evaluation of a specific proposed Federal action. Second, OMB
and other Federal agencies developed the draft Social Cost of Carbon
estimates without any known peer review or opportunity for public
comment during the development process. This process is antithetical to
NEPA's central premise that informed agency decisionmaking must be
based on transparency and open dialog with the public. Third, OMB's
draft Social Cost of Carbon estimates are based primarily on global
rather than domestic costs and benefits. This is particularly
problematic for NEPA reviews because the Courts have established that
agencies cannot consider transnational impacts in NEPA reviews. See
NRDC v. NRC, 647 F.2d 1345 (D.C. Cir. 1981). Fourth, there is still
considerable uncertainty in many of the assumptions and data elements
used to create the draft Social Cost of Carbon estimates, such as the
damage functions and modeled time horizons. In light of the lack of
transparency in the OMB's process, these concerns over accuracy are
particularly problematic.
The problems associated with the confusion and uncertainty
surrounding the draft OMB social cost of carbon estimates to NEPA
analyses are readily observable in the High Country decision, discussed
above. The court found that the final EIS was arbitrary and capricious
because the agencies failed to justify their decision not to apply the
draft OMB social cost of carbon estimates. 52 F. Supp. 3d at 1191.
Significantly, however, the court did not mandate the inclusion of the
draft OMB social cost of carbon estimates in NEPA cost benefit analysis
and observed that ``the agencies might have justifiable reasons for not
using (or assigning minimal weight to) the social cost of carbon
protocol to quantify the cost of GHG emissions from the Lease
Modifications.'' Id. at 1193. Given the critical flaws and deficiencies
in the draft OMB social cost of carbon estimates and the district
court's clear direction that agencies have discretion to exclude the
draft OMB social cost of carbon estimates from cost benefit analysis
when properly justified, it is critical that CEQ provide guidance to
the agencies that explains the deficiencies in the draft OMB social
cost of carbon estimates and assists agencies in articulating a
reasoned basis for excluding the metric from cost benefit analyses in
future NEPA reviews at this time.
Requiring agencies to apply a flawed Social Cost of Carbon estimate
is contrary to NEPA's requirements that agencies must understand and
address uncertainty and unknown data points. In fact, 40 C.F.R.
Sec. 1502.22, provides a procedure for agencies to address incomplete
or unavailable information, directing them to explain the information
that is missing and its relevance to the proposed agency action.
Directing agencies to apply the OMB's flawed draft Social Cost of
Carbon estimates will give the public a false sense of certainty with
respect to those estimates and will prevent them from appreciating the
uncertainty related to potential climate change impacts. Thus, until
OMB completes a more transparent process that produces a more accurate
method of calculating the cost of carbon emissions, CEQ should direct
agencies to avoid using the estimates and instead rely on existing CEQ
regulations addressing incomplete or unavailable information.
4. Any Final Guidance Should Make Clear that NEPA Does Not Require
Adoption of Specific Mitigation Methods
The Revised Draft Guidance also arguably goes beyond what NEPA
requires by suggesting that agencies could be required to adopt GHG
mitigation measures as part of their NEPA analyses and subsequent
decisions. While evaluation of mitigation measures can be an
appropriate part of a NEPA analysis, agencies are under no legal
obligation to adopt mitigation measures. To avoid confusion, CEQ should
clarify that the guidance's discussion of GHG mitigation measures is
not intended to alter existing NEPA law and regulations for mitigation.
It is well-settled that NEPA does not impose substantive
requirements on agency decisionmaking. Instead, as the Supreme Court
has explained, NEPA's ``mandate to the agencies is essentially
procedural.'' Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519,
558 (1978). Consistent with this requirement, CEQ's regulations direct
agencies consider ``mitigation measures (not included in the proposed
action'' as alternatives in their NEPA analyses. 40 C.F.R.
Sec. 1508.25(b)(3). In interpreting NEPA and CEQ's regulations, courts
have frequently confirmed that mitigation measures are an important
ingredient of assessment in NEPA analyses, but held that agencies have
no substantive obligation to adopt the mitigation measures that they
identify.
Mitigation measures do play a central role in ``mitigated findings
of no significant impact,'' or mitigated FONSIs. Rather than preparing
a full EIS, an agency can conduct a less detailed EA. If the agency
concludes after the EA that there will be no significant environmental
impact from the proposed action, it can issue a FONSI and conclude its
NEPA review; if significant impacts are identified, the agency must
prepare an EIS. Agencies can issue a mitigated FONSI with binding
mitigation requirements if it determines that including those
mitigation measures will avoid any significant environmental impacts.
The Revised Draft Guidance as written creates a risk it could be
interpreted by decisionmakers, project challengers, and courts as
crossing the established line between assessing mitigation impacts and
requiring agencies to adopt mitigation measures. For example, in
discussions of the Record of Decision or ROD that is issued after an
EIS, CEQ directs agencies to ``identify those mitigation measures
[adopted to address climate change] and . . . consider adopting an
appropriate monitoring system.'' Similarly, CEQ directs agencies to
evaluate ``the permanence, verifiability, enforceability, and
additionality'' of proposed mitigation measures. 79 Fed. Reg. at 77828.
This language is similar to what is required by regulatory agencies in
mandatory offset programs for GHGs and other pollutants and, therefore,
could be interpreted to include substantive, rather than merely
procedural, components. Finally, in comments on the 2010 draft
guidance, several commenters urged CEQ to ``explicitly acknowledge that
adoption of mitigation measures considered under NEPA are not per se
required, and should not be required under the NEPA statute.'' Id. at
77,819. EPA declined to do so, creating further uncertainty about the
role of mitigation of GHG emissions in NEPA reviews. Statements such as
these could be misconstrued as crossing the line to impose substantive
requirements as part of a NEPA analysis. CEQ must clarify in any final
guidance that NEPA cannot be used to compel an agency to adopt
mitigation measures.
5. Any Final Guidance Should Not Adopt a Presumptive Threshold for
Quantifying GHG Emissions in NEPA Analyses
In the Revised Draft Guidance, CEQ retains a presumptive GHG
emissions threshold of 25,000 metric tons and suggests that agencies
should attempt to quantify GHG emissions if they will exceed that
threshold. This presumptive threshold is both contrary to well-
established NEPA precedent and without basis in the administrative
record.
First, adopting a presumptive threshold such as this is
inconsistent with the discretion that agencies are given in conducting
NEPA reviews. Rather than providing detailed procedures, NEPA directs
agencies to apply the ``rule of reason'' when determining when and how
to do things such as quantifying emissions. Indeed, there are no
similar thresholds for quantifying emissions of other pollutants.
Further, it is unlikely that CEQ can fully cure this deficiency by
adding appropriate disclaimers that the threshold merely is presumptive
or illustrative and need not be followed in all cases. As a practical
matter, once a quantifiable figure--such as 25,000 metric tons--is
provided as guidance, it will likely be applied as a de facto standard
by many agencies and the courts.
Second, the Revised Draft Guidance does not explain why 25,000
metric tons is an appropriate threshold for NEPA reviews. Instead, the
number, which first appeared in the 2010 draft guidance appears to be
taken from EPA's then-proposed regulations for GHG emissions from
stationary sources under the PSD permitting program. As an initial
matter, that EPA rulemaking served a very different purpose than NEPA
review and CEQ offered no explanation as to why the same number is
appropriate in each case. Further, in the final Tailoring Rule, EPA
substantially increased the emissions thresholds to 100,000 and 75,000
metric tons, casting even more doubt on the appropriateness of a 25,000
metric ton threshold.
Conclusion
ceq should withdraw the revised draft guidance pending consideration of
comments
For the reasons above and stated more thoroughly by stakeholders in
comments filed in the public record, there is a need for significant
revisions before finalizing any guidance. In the interim, although the
revised Guidance is labeled ``draft,'' this is a unique scenario where
the existence of a draft can have the effect of influencing
decisionmakers in the interim as if it were a final document.
Implementing Federal agencies are likely to look to any CEQ direction,
whether draft, interim, or final, in assessing how they should approach
GHG and climate change analysis in their NEPA documents. Similarly,
opponents of projects undoubtedly will cite even a draft CEQ guidance
to the courts as carrying weight and relevance. For these reasons, CEQ
should withdraw the Draft Revised Guidance while it considers and
responds to the filed comments and the input of this committee.
______
The Chairman. Thank you.
Dr. Christy.
STATEMENT OF JOHN CHRISTY, PROFESSOR OF ATMOSPHERIC SCIENCE AND
STATE CLIMATOLOGIST, NATIONAL SPACE SCIENCE AND TECHNOLOGY
CENTER, UNIVERSITY OF ALABAMA, HUNTSVILLE, ALABAMA
Dr. Christy. Thank you, Chairman Bishop for this
opportunity, and Ranking Member Grijalva, I hope your
investigation has found me to be an independently minded
climate scientist.
I am John Christy, a professor of atmospheric science at
the University of Alabama in Huntsville--we don't play football
at my campus--an Alabama State climatologist. I have served in
many climate capacities, including as a lead author of the
United Nations IPCC.
My research might best be described as building data sets
from scratch to advance our understanding of what the climate
is doing, and why it does what it does. The main point of my
testimony is simple; there is no causal link between the
elimination of any single project and changes in the global
climate. Thus, no individual project should be held up, due to
climate change concerns.
But let me go much, much further. Suppose the United States
closed everything and ceased to exist on this day, May 13,
2015. No people, no cars, no industry, no utilities. Climate
models tell us the result of this imaginary scenario in 50
years might be a few hundredths of a degree, an amount smaller
than the amount by which the global temperature already bounces
around from one month to the next. The impact would be so small
as to be unattributable to regulations. This result is well
known, as described in my written testimony. I have presented
similar calculations in Federal court that went uncontested.
But we should back up a bit and address the presumed causal
link between CO2 emissions and climate change. You know, we
monitor the climate for such variables as temperature. What we
do not have is a direct and observable means to tell us why
those changes occur. Our thermometers only tell us what has
happened; they do not tell us why it happened.
To understand why these changes occur, we use climate
models whose equations attempt to contain all of the important
factors that affect climate. If they are accurate, we can then
see how each factor, such as rising greenhouse gases, affects
the climate and whether CO2 would be the cause of the changes
we see.
[Slide]
Dr. Christy. As shown in my written testimony, and up on
the chart here, the models failed the simplest validation test.
They can't even reproduce what has already happened. All 102
model runs warm up the planet more than has actually occurred
in the past 36 years. On average, the warming rate of the
atmosphere in these models is three times reality. As a
consequence, our science has not established the causal link
between CO2 emissions and what the climate is actually doing.
Therefore, emissions cannot be used as a proxy for climate
change. Further, the CEQ guidance gives a list of weather and
climate events it claims are increasing, due to extra
greenhouse gases. But, as demonstrated in my written testimony,
several of these phenomena have shown no change, while CO2
emissions have risen. So there is no proof of a link. This
evidence indicates that it has not been established that CO2
emissions have a confident and quantifiable causal link to
climate change, whether one is talking about global temperature
or about disruptive weather events.
Now, it is no secret that the state of Alabama is in a
desperate fight with the Federal EPA. Our elected officials
understand, as do I, their State Climatologist, that the
regulations being established will do nothing to alter whatever
the climate is going to do. We are fighting for our industries,
which are being tempted by lower costs in Mexico and China,
where their emissions will actually rise. We are fighting for
our utilities, which sell over 30 percent of their electricity
production to nearby states who need it. And we are fighting
for the many poor people in our state who do not need another
hike in their utility bills to satisfy a regulation whose only
demonstrable impact will be this further drain on their meager
resources.
This is a time when even so-called green countries like
Germany and Japan are adding to their carbon emissions by
building more coal-fired power plants, while the rest of the
world is moving forward with affordable carbon-based energy. It
simply does not seem to me to be scientifically justifiable or
economically rational that this Nation should establish
regulations whose only discernable consequence is an increase
in economic pain visited most directly and harshly on the
poorest among us.
Thank you.
[The prepared statement of Dr. Christy follows:]
Prepared Statement of John R. Christy, Professor of Atmospheric
Science, University of Alabama
I am John R. Christy, Distinguished Professor of Atmospheric
Science, Alabama's State Climatologist and Director of the Earth System
Science Center at The University of Alabama in Huntsville. I have
served as a Lead Author, Contributing Author and Reviewer of United
Nations IPCC assessments, have been awarded NASA's Medal for
Exceptional Scientific Achievement, and in 2002 was elected a Fellow of
the American Meteorological Society.
It is a privilege for me to offer my analysis of the impact that
proposed regulations might have on the climate system. My research area
might be best described as building data sets from scratch to advance
our understanding of what the climate is doing and why. I have used
traditional surface observations as well as measurements from balloons
and satellites to document the climate story. Many of our UAH data sets
are used to test hypotheses of climate variability and change.
impact of single (or many) federal projects on climate
The basic question under consideration here is to understand
whether there is a causal relationship between the carbon emissions
generated by a single proposed Federal project and possible climate
change related to those emissions. It is obvious that the emissions
generated by a single project would be vanishingly small in comparison
to the current emissions of the global economy or even of the United
States as a whole. Because of the minuscule nature of the relative size
of its emissions, the impact of a single project on the global climate
system would be imperceptible.
To demonstrate any impact at all on the climate system, we must
scale up the size of the emission changes to a much larger value than
that of a single project. By doing so, our tools would then be able to
provide some results. Let us assume, for example, that the total
emissions from the United States are reduced to zero, today, 13 May
2015. In other words as of today and going forward, there would be no
industry, no cars, no utilities, no people--i.e. the United States
would cease to exist as of this day. With this we shall attempt to
answer the question posed by the NEPA statement which is, essentially,
what is the ``climate change through GHG emissions.''
[Note: There seems to be some confusion here. The NEPA statement
appears to call for the calculation of the amount of climate change
brought about by the emission levels proposed for each project.
However, the CEQ guidance states, ``the potential effects of a proposed
action on climate change as indicated by its GHG emissions.'' The CEQ
guidance, in effect, claims that any GHG emissions in some sense relate
to all of the alleged consequences of extra GHGs. Thus, the guidance
apparently seeks to claim emissions are a direct proxy for negative
impacts of climate change (which as shown below has not been
established) while skipping any calculation of that effect from the
individual projects. Then, inconceivably, the guidance does not even
consider the inarguably positive consequences of increases in GHG
emissions which are quantifiable as well: (1) the enhancement of the
length and quality of human life through affordable energy, and (2) the
invigoration of the biosphere (specifically plant material used for
human food).]
Using the U.N. IPCC impact tool known as Model for the Assessment
of Greenhouse-gas Induced Climate Change or MAGICC, graduate student
Rob Junod and I reduced the projected growth in total global emissions
by U.S. emission contribution starting on this date and continuing on.
We also used the value of the equilibrium climate sensitivity as
determined from empirical techniques of 1.8 +C. After 50 years, the
impact as determined by these model calculations would be only 0.05 to
0.08 +C--an amount less than that which the global temperature
fluctuates from month to month. [These calculations used emission
scenarios A1B-AIM and AIF-MI with U.S. emissions comprising 14 percent
to 17 percent of the 2015 global emissions. There is evidence that the
climate sensitivity is less than 1.8 +C, which would further lower
these projections.]
Because changes in the emissions of our entire country would have
such a tiny calculated impact on global climate, it is obvious that
single projects, or even entire sectors of the economy would produce
imperceptible impacts. In other words, there would be no evidence in
the future to demonstrate that a particular climate impact was induced
by the proposed regulations. Thus, the regulations will have no
meaningful or useful consequence on the physical climate system--even
if one believes climate models are useful tools for prediction.
how well do we understand the climate?
It is important to understand that projections of the future
climate and the specific link that increasing CO2 might have on the
climate are properly defined as scientific hypotheses or claims, not
proof of such links. The projections being utilized for this and other
policies are based on the output of climate model simulations. These
models are complex computer programs which attempt to describe through
mathematical equations as many factors that affect the climate as is
possible and thus estimate how the climate might change in the future.
The equations for many of the important processes are not exact, but
represent the best approximations modelers can devise at this point.
A fundamental aspect of the scientific method is that if we say we
understand a system (such as the climate system) then we should be able
to predict its behavior. If we are unable to make accurate predictions,
then at least some of the factors in the system are not well defined or
perhaps even missing. [Note, however, that merely replicating the
behavior of the system (i.e. reproducing ``what'' the climate does)
does not guarantee that the fundamental physics are well-known. In
other words, it is possible to obtain the right answer for the wrong
reasons, i.e. getting the ``what'' of climate right but missing the
``why''.]
Do we understand how greenhouse gases affect the climate, i.e. the
link between emissions and climate effects? A very basic metric for
climate studies is the temperature of the bulk atmospheric layer known
as the troposphere, roughly from the surface to 50,000 ft altitude.
This is the layer that, according to models, should warm significantly
as CO2 increases. And, this CO2-caused warming should be easily
detectible by now, according to models. This provides a good test of
how well we understand the climate system because since 1979 we have
had two independent means of monitoring this layer--satellites from
above and balloons with thermometers released from the surface.
I was able to access 102 CMIP-5 rcp4.5 (representative
concentration pathways) climate model simulations of the atmospheric
temperatures for the tropospheric layer and generate bulk temperatures
from the models for an apples-to-apples comparison with the
observations from satellites and balloons. These models were developed
in institutions throughout the world and used in the IPCC AR5
Scientific Assessment (2013).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
.epsAbove: Global average mid-tropospheric temperature variations
(5-year averages) for 32 models representing 102 individual simulations
(lines). Circles (balloons) and squares (satellites) depict the
observations.
The information in this figure provides clear evidence that the
models have a strong tendency to over-warm the atmosphere relative to
actual observations. On average the models warm the global atmosphere
at a rate three times that of the real world. Using the scientific
method we would conclude that the models do not accurately represent at
least some of the important processes that impact the climate because
they were unable to ``predict'' what has occurred. In other words,
these models failed at the simple test of telling us ``what'' has
already happened, and thus would not be in a position to give us a
confident answer to ``what'' may happen in the future and ``why.'' As
such, they would be of highly questionable value in determining policy
that should depend on a very confident understanding of how the climate
system works.
There is a related climate metric that also utilizes atmospheric
temperature which in models has an even larger response than that of
the global average shown above. This metric, then, provides a stronger
test for understanding how well models perform regarding greenhouse
gases specifically. In the models, the tropical atmosphere warms
dramatically in response to the added greenhouse gases--more so than
that of the global average atmospheric temperature.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
.epsAbove: Tropical average mid-tropospheric temperature variations
(5-year averages) for 32 models representing 102 individual simulations
(lines). Circles (balloons) and squares (satellites) depict the
observations.
In the tropical comparison here, the disparity between models and
observations is even greater, with models on average warming this
atmospheric region by a factor of four times greater than in reality.
Such a result re-enforces the implication above that the models have
much improvement to undergo before we may have confidence they will
provide information about what the climate may do in the future or even
why the climate varies as it does. For the issue at hand, estimates of
how the global temperature might be affected by emission reductions
from the halting of projects would be over done and not reliable. As
such greenhouse gas emissions cannot be used as a proxy for alleged
climate change because our capability to demonstrate how greenhouse
gases influence the already-observed climate is so poor.
alleged impacts of human-induced climate changes outlined in the ceq
guidance
As stated in the bracketed paragraph earlier, the CEQ guidance
attempts to equate any GHG emissions with all alleged impacts of these
emissions, which as mentioned earlier is apparently not consistent with
NEPA. In other words, CO2 is assumed to be a direct proxy for alleged
climate change due to human activities. However, these claimed impacts
are not even consistently backed up by observational evidence: from the
CEQ, ``observed to date and projected to occur in the future include
more frequent and intense heat waves, more severe wildfires, degraded
air quality, more heavy downpours and flooding, increased drought,
greater sea-level rise, more intense storms, harm to water resources,
harm to agriculture, and harm to wildlife and ecosystems.'' (Section
II.B pp 6-8.)
A simple examination of several of these alleged ``observed to
date'' changes in the climate indicates the CEQ has evidently
disregarded the actual observational record. I shall offer several
examples which indicate these claims are misrepresentative.
In terms of heat waves, below is the number of 100 +F days observed
in the United States from a controlled set of weather stations. It is
not only clear that hot days have not increased, but it is interesting
that in the most recent years there has been a relative dearth of them.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Above: Average per-station fraction of days in each year
reaching or exceeding 100 +F in 982 stations of the USHCN database
(NOAA/NCEI, prepared by JR Christy). A value of 0.03 is equivalent to
an average of 11 days per year greater than 99 +F per station using all
982 stations nationwide.
Forest and wild fires are documented for the United States. The
evidence below indicates there has not been any change in frequency of
wildfires. Acreage (not shown) shows little change as well.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Above: Number of U.S. wildfires. As the management of these
events changes, the number also changes, but the number of events since
1985 has remained constant.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Above: Number of U.S. forest fires per year since 1965.
The two figures above demonstrate that fire events have not
increased in frequency in the United States during the past several
decades.
The claims that droughts and floods are increasing may be examined
by the observational record as well.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Above: Global areal extent of five levels of drought for 1982-
2012 where dryness is indicated in percentile rankings with D0 < 30, D1
< 20, D2 < 10, D3 < 5 and D4 < 2 percentile of average moisture
availability. (Hao et al. 2014)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Above: Areal fraction of conterminous U.S. under very wet
(blue) or very dry (red) conditions. NOAA/NCEI.
The two figures above demonstrate that moisture conditions have not
shown a tendency to have decreased (more drought) or increased (more
large-scale wetness). Such information is rarely consulted when it is
more convenient simply to make unsubstantiated claims that moisture
extremes, i.e. droughts and floods (which have always occurred), are
somehow becoming even more extreme. Over shorter periods and in certain
locations, there is evidence that the heaviest precipitation events are
tending to be greater. This is not a universal phenomenon and it has
not been established that such changes may be due to changes in
greenhouse gas concentrations as demonstrated earlier because the model
projections are unable to reproduce the simplest of metrics.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Above: World grain production 1961-2012. U.N. Food and
Agriculture Organization.
It is a simple matter to find documentation of the ever-rising
production of grains. One wonders about the CEQ allegation that there
has been ``harm to agriculture'' from human-induced climate change
because when viewing the total growth in production, which appears to
be accelerating, one would assume no ``harm'' has been done during a
period of rising greenhouse gases.
With the evidence in these examples above, it is obviously
difficult to establish the claims about worsening conditions due to
human-caused climate change, or more generally that any change could be
directly linked to increasing CO2. This point also relates to the issue
of climate model capability noted earlier. It is clear that climate
models fall short on some very basic issues of climate variability,
being unable to reproduce ``what'' has happened regarding global
temperature, and therefore not knowing ``why'' any of it happened. It
is therefore premature to claim that one knows the causes for changes
in various exotic measures of weather, such as rainfall intensity over
short periods, which are not even explicitly generated in climate model
output.
In summary, the information above indicates that preventing
individual projects from going forward or even shutting down entire
sectors of the energy economy will have no impact on the global climate
system. Further, the information above indicates that the scientific
understanding (i.e. climate models) of how increasing greenhouse gases
are affecting the climate is rather poor, with no quantified and
established link between emissions growth and specific changes in
climate or disruptive weather.
______
Questions Submitted for the Record by Rep. Grijalva to John Christy
Question 1. Much of your testimony and answers to questions in the
hearing hinges on one possible interpretation of the differences
between modeled and what you labeled as observed temperature trends--
the models are wrong. Are there many other (not mutually exclusive)
interpretations of the differences between modeled and observed
tropospheric warming trends?
Answer. Applying the scientific method, I find that the difference
between the average model result and the observations is
``significant'' indicating that the model-average value failed the
hypothesis test (the test essentially being, ``Is the average 36-year
model trend of the bulk atmospheric temperature equal to the
observational trend since 1979? ''). There are many explanations for
this failure and this is perhaps what the question is seeking. Some say
the models fail because they are not advanced enough to account for
natural variations. Others say that fundamental processes such as the
exchange of heat between the ocean and air or the processes which
distribute heat and moisture (clouds) within the atmosphere are so
poorly represented in models that they tend to accumulate too much heat
in the atmosphere. In any case, the fundamental result stands: the
average of the climate model simulations fails to depict the actual
bulk atmospheric temperature since 1979. Many explanations have been
offered, but they all admit that the models are not accurate enough to
mimic the real world regarding the bulk atmosphere. [Note: Because the
observations are produced by three separate and independent methods,
balloons, satellites and reanalyses, and by multiple institutions, we
don't have evidence to conclude the observations are so wrong that they
can be made consistent with the model output--see later where this
issue is more directly addressed.]
Question 2. My understanding of the satellite temperature data is
that it does not represent observations, but estimates. The satellites
measure microwave emissions from oxygen molecules, which must then be
converted into a temperature reading using a series of corrections,
like correcting for orbital drift, and subjective judgments. So the
satellite data seems to me more like a modeled temperature than an
actual temperature reading.
a. Why are your modeled satellite temperatures more trustworthy
than the many other independently derived models which have the backing
of the vast majority of qualified scientists?
Answer. The notion that satellite temperatures are not observations
is remarkable. The satellites measure the intensity of microwave
radiation near the 60 GHz absorption band which is a direct and
fundamental measurement of the temperature of those molecules. Indeed
it is a more direct observation than is typically made by a thermometer
because a thermometer requires the energy to impact a response material
(such as liquid rising in a glass tube) which is then measured as a
secondary response to the temperature of the air. With satellites, the
emitted radiation is the metric that is directly related to temperature
and this is what is measured. While the measurement is a direct
indication of the temperature of the atmosphere, the instruments,
especially the early ones, required adjustments for the issues you
mentioned--many of which my group discovered. These adjustments have
been applied. This is no different in a basic sense than the many
adjustments that must be applied to surface temperature records to
account for the many problems that affect their data sets.
I do not understand what is meant by ``independently derived
models'' ? If this is a reference to climate models, those clearly
cannot be thought of as observations while satellite radiances
certainly are observations. If the question is dealing with the various
observed data sets (i.e. not models) and their differences, then I have
discussed these issues in the annual reports of the official State of
the Climate reports that appear in the Bulletin of the American
Meteorological Society for which I serve as the Lead Author of the
section on tropospheric temperatures. Quoting from the publication
State of the Climate--2014 to appear soon regarding the global
temperature trend of the lower troposphere, ``. . . the long-term
global trend based on both radiosondes and satellites (starting in
1979) is +0.13 0.02 +C/decade. The range represents the
variation among the different data sets which then serves as an
estimate of the structural uncertainty . . .'' This quote refers to the
lower troposphere for 1979-2014 and demonstrates how closely the
various and independent data sets are. Applying the same analysis to
the mid-troposphere, the metric shown at the hearing, the value would
be +0.07 0.03 +C/decade (including the European Centre
Reanalyses but not UW and IUK data sets as they were not available).
To place this in perspective, the average of the 102 CMIP-5 model
runs for the ``mid-troposphere'' (or bulk-atmosphere) is +0.21 +C/
decade, which is highly significantly different from the observations
(+0.07). In scientific terms we would say that, for the globally
averaged, bulk tropospheric temperature, the hypothesis that the
average model trend is equal to the observational trend has been
falsified at an extremely high level of significance.
b. Why does your testimony not mention the possibility that some of
the differences between most other models and temperature changes from
your models may be due to remaining errors in your estimated
temperature data?
Answer. I shall assume that a misunderstanding has been created
here and consider ``model'' to mean ``observation''. The testimony did
not include such discussion as this is found elsewhere in the
literature and does not affect the conclusions provided. As stated
above, the range in the various model data sets is small. Removing the
UAH data set (assuming ``your estimated temperature data'' is the UAH
data set) from the comparison does not change the result in any
significant way. All data sets have errors, including UAH's, and no two
give the identical trend as any other, but the differences, as stated
several times, are small. This implies the errors are also small for
the problem at hand (model comparison). Below is a table of the global
and tropical average trends of the bulk-atmospheric temperature for
1979-2014 by data set.
------------------------------------------------------------------------
Layer MT (Bulk Atmosphere) Global Tropical Method
------------------------------------------------------------------------
RAOBCORE....................... +0.077 +0.064 Balloon
RICH........................... +0.079 +0.087 Balloon
RATPAC (NOAA).................. +0.043 +0.017 Balloon
IUK (1979-2012)................ N/A +0.066 Balloon
UAHv6.0b2...................... +0.068 +0.057 Satellite
RSSv3.3........................ +0.074 +0.085 Satellite
UW (1979-2012)................. N/A +0.114 Satellite
STAR (NOAA).................... +0.102 +0.097 Satellite
ERA-I.......................... +0.085 +0.089 Reanalyses
102 CMIP5 Models............... +0.211 +0.268 Models
------------------------------------------------------------------------
The situation with the critical region of the tropics is even worse
for models whose average trend over the period 1979-2014 is +0.27 +C/
decade. The balloon average is +0.07 (without RATPAC), satellites +0.09
and reanalyses +0.09 +C/decade. These tropical results were shown at
the hearing because the models show that a clear and rapid response to
greenhouse gases should be observable by now, so this is the region to
test model performance against observations. Again, the difference
between models and observations is significant, requiring a conclusion
that models failed to reproduce the bulk atmospheric temperature change
since 1979, the period when greenhouse gases should have impacted the
climate system by the largest amount.
c. Why did you leave out the latest results from Sherwood et al.
(2015) and from Po-Chedley et al. (2014) that show pronounced warming
of the tropical mid- to upper troposphere over the satellite era?
Answer. The results of Sherwood et al. (2015) and Po-Chedley et al.
(2014) for the tropics are included in the table above because they
were published in their papers (Sherwood et al. and Po-Chedley et al.
do not have geographically averaged public files yet as do all of the
other data sets). In any case, they do not show ``pronounced warming''
in the bulk tropical atmospheric layer which I presented at the
hearing. Their inclusion, as done in the previous paragraph, does not
change the results. Sherwood (IUK) is cooler than the average trend and
Po-Chedley (UW) is warmer. Indeed UW is warmest of all observational
data sets and raises suspicion as the data set has not been
independently tested as have the other data sets. In any case,
including even UW does not change the results regarding the failure of
the climate model simulations to reproduce the past 36 years of
temperature change.
Question 3. Scientists at Remote Sensing Systems, the University of
Washington, and NOAA/NESDIS are also working to estimate tropospheric
temperature from satellite microwave radiometry. For temperature
changes in the tropical mid- to upper troposphere, these three groups
obtain results that are substantially different from yours.
Answer. See the discussion and table above. The results indicate
all satellite data sets agree for the tropics at the level of
0.03 +C/decade (i.e. 0.055 to 0.115, or +0.085
0.03 +C/decade). This is within the margin of error. This does not
imply ``substantially different'' trends, yet confirms the significant
difference between observations (which average +0.085) and models
(which average +0.268 +C/decade).
a. What can be done to collaboratively work with the other three
groups to resolve the causes of these differences?
Answer. We have been fairly open with the exchange of information
among the groups. For example, UAH placed its new methodology on a Web
site prior to finalizing the products for community input. RSS provides
a significant Web site to understand the products they produce. The
key, missing ingredient for better collaboration is substantial
funding.
b. Please explain why your satellite-based temperature estimates
are more reliable than theirs?
Answer. The claim that UAH data are ``more reliable'' was not made
at the hearing. There are a few metrics that indicate UAH has some
characteristics that demonstrate reliability which I will show here.
Below, for example, is a comparison between four of the satellite data
sets in which the satellite temperatures are directly compared with
balloon measurements at 59 stations in the United States, U.S.
controlled islands, and Australia (update of Christy et al. 2011). The
quantity shown is the magnitude of the agreement (variance) between the
balloons and the given satellite data set. Each balloon station has had
adjustments applied based on the identified satellite data set, thus
all comparisons are apples-to-apples. In this comparison, UAH shows the
better agreement with the independent balloon data, though all show
excellent agreement.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
A curious result involving UW data is that the tropical UW bulk
temperature data over the ocean show a trend that is warmer than that
over land. STAR does as well, but since UW essentially begins their
construction with the STAR data set, the two are not completely
independent and so would share common errors. All surface temperature
data sets as well as UAH, RSS and ERA-I show that the bulk atmospheric
temperature trend over land is warmer than over the ocean. This raises
questions regarding the method by which UW (and STAR) applied the
adjustment for the east-west drift of the spacecraft. This is one topic
for which further investigation is needed.
Question 4. There have been important changes over time in our
understanding of tropospheric temperature changes inferred from weather
balloons. You have argued for over 25 years that weather balloon
temperature data provide an unambiguous gold standard for evaluating
the quality of satellite-based tropospheric temperature estimates. Do
you still believe this?
Answer. The claim that I have argued that the balloon temperature
data are an ``unambiguous gold standard'' is new to me. Balloons have
homogeneity issues with which to deal and I have been one of the
scientists who has published extensively regarding these issues. As
Lead Author of the IPCC 2001 report on upper air temperatures, I
discussed many of the problems that require attention with balloons
(section 2.2.3). The real advantage of balloon data is their total
independence from satellite measurements. Several groups have built
data sets which account for the inhomogeneities, including me. I
prefer, as shown above in the chart, to utilize the individual balloon
data from the U.S. VIZ and Australian stations as these have
considerable documentation of instrument and procedural changes which
allow for more confident means to account for changes.
However, rather than comparisons performed at individual stations,
another direct comparison simply compares the global and tropical
average bulk temperatures produced by NOAA (RATPAC) and the University
of Wein (Austria, RICH and RAOBCORE) with the satellite data. Below are
the results for these comparisons (I do not have UW results, but as
indicated above they should be similar to NOAA STAR).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The results above, though not thoroughly definitive, again
suggest that the UAH product has characteristics that better-match
results from independently homogenized balloon data sets.
Question 5. Weather balloon and satellite-based estimates of
tropospheric temperature change have evolved in important ways as
scientists have identified non-climatic errors in these estimates. Yet,
you argue that your satellite temperature estimates are always in very
close agreement with weather balloon data.
a. Is such agreement with uncertain weather balloon data a source
of concern to you?
Answer. As noted above, there are multiple sources and collections
of weather balloon data produced by independent groups, and indeed UAH
data tend to have higher levels of agreement with the balloons than do
the other data sets in the tests we produce. However, these don't
represent all of the types of tests possible. We have higher confidence
in the results from weather balloons as the ``non-climatic errors'' are
identified and accounted for independently. Each balloon data set has
its own uncertainties which over time have been better-characterized
and which lead to a reduction in errors, especially as independent
groups evaluate these issues separately. The UAH satellite data set has
also evolved over time as we have discovered issues that must be fixed,
some of which increase the trend and others that decrease the trend by
small amounts. The high level of agreement with balloons has been
consistent through time because our evolving satellite adjustments are
relatively small when applied to the trend (order of a few hundredths
+C/decade). With little change in the adjustments to the satellite
data, there is little change in the results of the balloon comparisons.
One of the most interesting of the data sets however, is the
Reanalyses from the European Centre for Medium Range Forecasts (ERA-I
above). This global data set uses completely independent means to
correct for both balloon errors as well as satellite errors in the most
advanced system of its kind in the world. This data set is used, for
example, as the demonstration data set in the annual, internationally
produced State of the Climate reports mentioned earlier of which I am a
co-author. In comparison with this data set, UAHv6.0 again shows the
most consistency (i.e. similar to the two figures above) though only
very slightly better than the other two satellite data sets (RSS and
STAR) available for this type of comparison at this time (though again,
UW should be very similar to STAR in its results.) These results do not
prove UAH has the best of the satellite data sets, but does suggest
that the data set is certainly useful as a comparison metric for
climate model evaluation.
The main point of my analysis for the hearing is that even given
the differences (which are small) among the balloon, satellite and
reanalyses, their global and tropical bulk-atmospheric trends are all
consistently (and significantly) less than the average trend of the
climate model simulations.
b. Are the true uncertainties in weather balloon and satellite
estimates of tropospheric temperature change far larger than you have
claimed in your recent and past testimony?
Answer. To answer this question I would need to understand the
magnitude of what is asserted as ``far larger''. In the table above I
have provided the magnitudes of the bulk-atmospheric trends from nine
different sources. The range of global trends of the seven data sets
with published global values is +0.04 to +0.10 +C/decade. In other
words a statement that the global bulk-atmospheric trend is +0.07 +C/
decade 0.03 +C/decade captures all values and provides a
sense of where the central value lies (this is similar to the
information in the State of the Climate--2014 publication.)
Does the question ask whether the error range should be greater
than 0.03? As a thought experiment we could double the
error range to 0.06 +C/decade, though with little
justification. This would give a range of +0.01 to +0.13 +C/decade,
being, again, well below the climate model average, confirming the
results presented at the hearing.
______
The Chairman. Thank you.
Mr. Clark.
STATEMENT OF RAY CLARK, PRESIDENT, RIVERCROSSING STRATEGIES,
LLC, BIRMINGHAM, ALABAMA
Mr. Clark. Good morning, Chairman Bishop, Ranking Member
Grijalva, and members of the committee. Thank you for the
opportunity to appear before you today to discuss this revised
draft guidance for the Federal departments and agencies on the
consideration of greenhouse gas emissions and the effects of
climate change and NEPA reviews.
I began my career at an Army installation over 35 years
ago, helping develop the first environmental program at that
installation. I wrote and reviewed NEPA analyses as a part of
that and, before I left, I was responsible for the power
production and energy program at the facility, as well as the
management of the natural resources and environmental program.
During that period, the Army constructed a chemical
decontamination training facility, the only one in the world,
and I headed up a team that prepared the NEPA analysis and was
responsible for getting that facility permitted. In 1985, I
moved to the Assistant Chief Engineer's office at the Pentagon,
and then to the Secretary of the Army's office. I wrote the
Army's first NEPA regulation during this period, and was part
of a senior-level team that prepared the EISs to destroy
chemical weapons, and to advance the Army's biological defense
research program, and all the analysis for base closure and
realignment, and many other controversial and necessary
programs for national defense.
In 1992, during the President George H.W. Bush
administration, I was asked to come to the Council on
Environmental Quality, and was asked to stay after President
Clinton took office. Part of my job at CEQ was to develop NEPA
guidance on topics such as cumulative effects analysis. But
most of my career has been related to environmental policy
around matters such as Army infrastructure, environmental
programs, and policy development.
In 1999, President Clinton appointed me as the Principal
Deputy Assistant Secretary for Installations and Environment at
the Army. And, at the end of the Clinton administration, I was
asked by Secretary Rumsfeld to stay over and help with the
transition of his facilities team.
The firm I developed in 2001 worked on a number of Federal
agencies' NEPA analyses, and I have worked ever since, trying
to improve the management of NEPA analysis.
I think people will tell you that I am not a fan of
voluminous documents, nor am I a fan of unnecessary delay. I
developed a program at Duke University in the Duke
Environmental Leadership Program to teach young and emerging
leaders how to develop programs that were based on better
decisions, not better documents. I led that program for over 20
years.
I come to address this committee on whether or not I think
CEQ guidance incorporating climate change is appropriate, and
whether or not such analysis can be done in a practical and
timely manner. Finally, to provide my honest assessment of what
I would advise a client who will face this guidance. And I have
at least one client who probably will.
I do support CEQ providing the agencies with guidance on
how to incorporate climate change in the NEPA analysis. It was
this House Merchant Marine and Fisheries Committee, more than
45 years ago, that reported out a bill to require that we use
new and emerging science about the environment to advise
decisionmakers within government about courses of action. It
was this committee that responded to the anomalies like rivers
catching fire, oil spills along our coast, garbage piles in our
cities, and ``No Swimming'' signs along many of our coasts. It
was this committee that shepherded NEPA through the legislative
process, and got it passed by a margin that was supported by
both parties.
One of the major contributions to the statute was the
Chairman of the House Merchant Marine and Fisheries Committee's
insistence that there be established a Council on Environmental
Quality in the Executive Office of the President.
Climate change falls squarely in the consideration in a
NEPA analysis. Scientists and the Supreme Court have said that
greenhouse gases are precisely the kind of issues that NEPA and
CEQ regulations intended for agencies to assess.
While many may say that few agencies are going to emit
anything significant, the truth is that it may be individually
minor, but it is the collective number of small actions,
whether positive or negative, that may lead to a cumulative
significant impact.
It is important that agencies should understand the impacts
that climate change will have on Federal facilities, and think
about how to design and site facilities. Most agencies are
already doing this, based on their own understanding of
resilience and adaptation.
I support CEQ's efforts, because I think it is about better
government. Government is supposed to answer to its citizens
and be transparent. NEPA has helped communities get answers
from the Federal agencies operating in their communities. In
many ways, that is NEPA's major success.
I support CEQ's efforts because I think it will lead to
better investments. The government is, after all, using other
people's money. The money we spent to build facilities in the
Army went through a long and arduous process to get approval.
And, while I was there, many of these proposals were
disapproved, frankly, because some of them were just dumb
ideas.
I will just conclude, Mr. Chairman, that I support CEQ's
efforts because I think it will lead to better decisions, not
better documents. The purpose of NEPA is to make sure that, in
any proposal that is undertaken by agencies, they balance all
the costs, from the mission to the social and the environmental
costs. And many agencies, including my own Army, is already
moving out on this, whether we do anything about this, or not.
If not guidance----
The Chairman. Sir, you have to conclude in one sentence,
please.
Mr. Clark. Pardon?
The Chairman. You are way over. Conclude in one sentence,
please.
Mr. Clark. Oh, OK. I am sorry. I would just say that I will
be happy to answer questions.
[The prepared statement of Mr. Clark follows:]
Prepared Statement of Ray Clark, RiverCrossing Strategies
Good morning Chairman Bishop, Ranking Member Grijalva, and members
of the committee. Thank you for the opportunity to appear before you
today to discuss the Revised Draft Guidance for Federal Departments and
Agencies on Consideration of Greenhouse Gas (GHG) Emissions and the
Effects of Climate Change in NEPA Reviews.
I began my career at an Army installation over 35 years ago helping
develop the first environmental program at that installation. I wrote
and reviewed NEPA analyses as part of that, and before I left I was
responsible for the power production and energy program at the
facility, as well as the management of natural resources and
environmental program. During this period the Army constructed a
Chemical Decontamination Training Facility, the only one in the world
and I headed up a team that prepared the NEPA analysis and was
responsible for getting the facility permitted.
In 1985, I moved to the Assistant Chief of Engineers office at the
Pentagon, and then to the Secretary of the Army's office. I wrote the
Army's first NEPA regulation during this period and was part of the
senior level team that prepared the EISs to destroy chemical weapons
and to advance the Army's Biological Defense Research Program, all the
analyses for base closure and realignment, and many other controversial
and necessary programs for national defense.
In 1992, during the President George H.W. Bush administration, I
was asked to come to the Council on Environmental Quality and was asked
to stay after President Clinton took office. Part of my job at CEQ was
to develop NEPA guidance on topics such as cumulative effects analysis,
but most of my career has been related to environmental policy around
matters such as Army infrastructure and environmental program and
policy development.
In 1999, President Clinton appointed me as the Principal Deputy
Assistant Secretary of the Army for Installations and Environment. At
the end of the Clinton administration, I was asked by Secretary
Rumsfeld to stay over to help with the transition of his facilities
management team.
The firm I developed in 2001 worked on a number of Federal agencies
NEPA analyses. And I have worked ever since trying to improve the
management of NEPA analyses. I think people will tell you I am not a
fan of voluminous documents, nor am I fan of unnecessary delay. I
developed a program at Duke University in the Duke Environmental
Leadership Program to teach young and emerging leaders how to develop
programs that were based on better decisions, not better documents. I
led that program for over 20 years.
I come to address this committee on whether I think CEQ guidance is
incorporating climate change into NEPA analyses is appropriate and
whether I such analysis can be done in a practical and timely manner.
Finally, to provide my honest assessment of what I would advise a
client who will face this guidance (and I have at least one client who
will).
I do support CEQ providing the agencies with guidance on how to
incorporate climate change into NEPA analysis. It was the House
Merchant Marine and Fisheries Committee more than 45 years ago that
reported out a bill to require that we use new and emerging science
about the environment to advise decisionmakers within government about
courses of action. It was this committee that responded to the
anomalies like rivers catching fire, oil spills along our coasts,
garbage piles in cities, and no swimming signs along many of our
coasts.
It was this committee that shepherded NEPA through the legislative
process and got it passed by a staggering margin that was supported by
both parties. One of the major contributions to the statute was the
Chairman of the House Merchant Marine and Fisheries Committee's
insistence that there be established a Council on Environmental Quality
in the Executive Office of the President.
Climate change falls squarely into consideration in a NEPA
analysis. Scientists and the Supreme Court have said that greenhouse
gases are a pollutant. These are precisely the kind of issues NEPA and
CEQ regulations intended for agencies to assess. While many may say
that few agencies are going to emit anything significant, the truth is
that it may be individually minor, but it is the collective number of
small actions that lead to a cumulatively significant impact. As
important, is that agencies should understand the impacts that climate
change will have on Federal facilities and think about how to design
and site facilities. Most agencies are already doing this based on
their own understanding of resilience and adaptation.
I support CEQ's efforts because I think it about better governance.
Government is supposed to answer to its citizens and be transparent.
NEPA has helped communities get answers from the Federal agencies
operating in their communities. In many ways that is NEPA's major
success.
I support CEQ's efforts because I think it will lead to better
investments. The government is, after all, using other people's money.
The money we spent to build facilities in the Army went through a long
and arduous process to get approval and while I was there when many
proposals were disapproved, frankly because some of them were just dumb
ideas.
I can tell you today that when the Army is studying where to site
and how to build facilities around the world, they are already
factoring in rising sea levels, storm surge expansion onto land, and
increasing drought frequency. It is common sense that they consider and
plan for these impacts before spending taxpayer money. CEQ's guidance
will not change the Army's dedication to this, but it will help bring
structure and consistency to those efforts and reduce confusion.
I support CEQ's efforts because I think it will lead to better
decisions, not better documents. The purpose of NEPA is to make sure in
any proposal that is undertaken by Federal agencies balance all the
costs including mission, environmental, and social costs. Any Federal
proposal should start a conversation with the affected community. And
that conversation should lead to a better decision and in the best of
worlds the project makes the community a better place to live.
I support CEQ's efforts because guidance to the agencies is
overdue. Since 1997 CEQ has struggled with guidance that agencies have
been seeking. If there is criticism to be aimed at CEQ, it could be
that it has taken this long to issue guidance. They have been asked by
agencies, the practitioner community, and finally petitioned. In the
face of confusion and controversy, they have been pretty methodical,
thoughtful and not rushed to judgment. They have sought advice from
scientists and agencies, but they are getting close to deserving the
fair criticism of it being overdue in their responsibility to help the
agencies with some clarity
If not now with guidance, when? Never? Absent this guidance would
agencies take climate change into account? Most agencies are very far
along in considering climate change in their day-to-day operations. The
Chief of the Corps of Engineers, LTG Bostick recently said the Corps is
translating science into policy and adapting new infrastructure to
withstand changes in climate. They are also looking at existing
infrastructure to see where it is vulnerable to changing climate. They
are moving on.
Other agencies need guidance. If they don't get this guidance, they
will needlessly spend more time and money and they will face
litigation. Either the executive branch designs an approach or the
courts will and judges will establish precedents that perhaps no one
wants to see. A lack of guidance does not stop lawsuits, it encourages
them.
My sense, based on my own experience, is that we are in a similar
environment when agencies were confused about how to assess cumulative
effects and they were getting litigated. I headed up a team that
produced the 1996 CEQ guidance that by all accounts helped the agencies
and CEQ improved on that guidance in 2007.
My final point is that I do think this analysis can be done in a
practical, timely manner. Much like the cumulative effects guidance,
there were some who thought it would add much more time. The opposite
is true; The reality is that this new guidance does not change the
approach to NEPA analysis in any meaningful way; it simply requires
taking climate change into account as an integral part of designing new
proposals. Every step of the current NEPA process, scoping,
alternatives analysis and impact analysis simply requires thought about
how the project is designed. There should be a better project because
they took it into account.
The opportunity in this guidance is that we will have better siting
and design of facilities, we may move to a more efficient method of
approaching NEPA by preparing programmatic analyses and integrating
NEPA analyses into the agency planning process, and the Federal
Government will do its part in adapting to the future.
I will be happy to answer any questions you may have.
______
Questions Submitted for the Record by Rep. Grace F. Napolitano to Mr.
Ray Clark
Question 1. In 2014, Former Defense Secretary Chuck Hagel stated,
``Among the future trends that will impact our national security is
climate change.'' The Department of Defense also announced the
integration of climate change threats into all of its plans,
operations, and training. The U.S. Military has thousands of bases,
installations and facilities across the global. In your former role
overseeing installations for the U.S. Army, what type of impact can
climate change have on the U.S. militaries facilities both at home and
overseas?
Answer. The most significant installation impact resulting from
climate change is its potential to undermine the capacity of our
domestic installations to support training activities. Installations
have extensive built infrastructure in cantonments and training ranges.
Training ranges are often large natural landscapes and serve as
realistic training environments for soldiers and support small and
large weapons training. Climate change will also add to existing
stresses on the installation infrastructure and will exacerbate other
stresses such as lack of a robust operations and maintenance program.
Climate stresses will likely increase the need for O&M budgets in an
era of declining budgets for facilities.
As sea levels rise, and average temperatures increase, facilities
that were planned and constructed in another era become vulnerable.
Heat events, changes in severe weather and occurrence of tropical
cyclones, and alteration of the ecosystems and natural landscapes used
for training will add additional strain on Army facilities and
soldiers.
Family housing could be devastated, and extreme storms could
completely remake a valuable or even one-of-a-kind training facility.
Based on the predictions of climate scientists, water scarcity or
flooding could accompany small increases in temperature rise. The Army
alone has more than 14 million acres and over 2,000 Installations,
12,000 historical structures, a multi-billion dollar military
construction program, and a base operations program. Not only should
the Army be preparing for the effects for which they may not be the
cause, the Army is rightfully examining how their institutional
processes are creating greenhouse gases, what the installations can do
to be apart of local, regional and national solutions, and how they are
going to adapt the 21st century base structure to the new realities of
climate change. The Army is currently one of the national leaders in
converting to renewable energy.
As the Department of Defense report ``National Security and Climate
Change'' points out, ``Lack of planning for (critical defense
installations) can compromise them or cause them to be inundated,
compromising military readiness and capability.''
Whether a facility is in the United States or abroad, if it planned
to be an integral part of the national security infrastructure of the
future, planning for the impacts of climate change should already have
begun.
Question 2. While the draft guidance can only be implemented in the
United States, is it important to get our departments agencies thinking
about the future effects of climate change abroad? Climate change is
not just something that threats us at home, but also abroad. For
example, rising sea levels can affect our Navy installations all over
the globe. If our Navy does not have the proper facilities, our ships
cannot properly assess threats and easily move around the globe.
Answer. It is indeed true that NEPA applies only to actions within
the United States. However, NEPA is simply a good planning tool to
assess and mitigate impacts of actions, whether man-made or natural. It
does not mandate or regulate an outcome. I believe the Department of
Defense is taking climate change seriously, whether the facilities are
in the United States or abroad and I think that it is wise to have some
structural way to think about investments abroad as a result of climate
change. Many of DOD planning processes are similar to NEPA.
______
The Chairman. Thank you.
I will start the questioning process for our witnesses. We
appreciate you very much for giving your testimony, both orally
and written. I am going to ask my questions at the end of the
panel, so I will turn to Representative Lummis for the first
questions.
Mrs. Lummis. Thank you, Mr. Chairman. My first question is
for Ms. Goldfuss. Welcome to the Committee.
CEQ says that this draft greenhouse gas guidance is not a
rule or regulation, this document does not establish legally
binding requirements in and of itself. What does that mean?
Ms. Goldfuss. Well, Congress has given CEQ the
responsibility to interpret and implement NEPA, and that means
working with the agencies to give them the guidance they need
to do it properly. So we have issued guidance on several
occasions on many issues to help them with that process. So
this guidance----
Mrs. Lummis. What does it----
Ms. Goldfuss [continuing]. Falls in that category.
Mrs. Lummis. Yes. What does it mean, though, when it says
this is ``not legally binding, in and of itself'' ?
Ms. Goldfuss. It means it is not a regulation. This is
guidance for the agencies to help them with their
decisionmaking process.
Mrs. Lummis. So you expect agencies to follow the guidance?
Ms. Goldfuss. We do. It is our hope--that is part of the
purpose of putting out the guidance----
Mrs. Lummis. OK.
Ms. Goldfuss [continuing]. That the agencies will use it.
Mrs. Lummis. So what if an agency says, ``We don't want to
follow the guidance'' ?
Ms. Goldfuss. Well, agencies do have much discretion. And,
on a case-by-case basis, they may make that decision. But it is
CEQ's hope that they will use the guidance, when appropriate.
Mrs. Lummis. OK. So if a disagreement occurs between
agencies about the application of the guidance, would CEQ get
involved? Would you mitigate or arbitrate that?
Ms. Goldfuss. That is not necessarily our role. On
occasion, a project will become so contentious between agencies
that we will get a referral, that's what it is called, and then
we will help them work that through. But it is not our intent
to intervene on that level.
Mrs. Lummis. So how does----
Ms. Goldfuss. Each agency has their own discretion----
Mrs. Lummis. How does a referral happen? Does one agency
sort of tell on the other agency? You know, ``They are not
playing nice with us, they are''----
Ms. Goldfuss. No.
Mrs. Lummis [continuing]. ``Disagreeing with us'' ?
Ms. Goldfuss. No, it is----
Mrs. Lummis. Well, how does it work?
Ms. Goldfuss. It is an official process. We have not had
one since the 1980s to CEQ, though. So it has been a long time
since there has been a referral.
Mrs. Lummis. So what would be the practical effects of an
agency not following the guidance?
Ms. Goldfuss. If they went forward and determined that it
was not appropriate to use the guidance on their project, they
could continue with their process. And then, if the courts
determined that was not an appropriate choice, they would then
have to redo.
Mrs. Lummis. So the courts can get involved.
Ms. Goldfuss. The courts get involved----
Mrs. Lummis. Even with the guidance, a non-binding
guidance, access to the courts is somehow----
Ms. Goldfuss. The guidance is not what gives them access to
the courts.
Mrs. Lummis. OK, what----
Ms. Goldfuss. It is the regulations for NEPA.
Mrs. Lummis. OK. But how does the guidance layer on top of
that to give court access?
Ms. Goldfuss. It doesn't give court access. The guidance is
simply a tool for agencies when they ask questions about how to
implement NEPA.
Mrs. Lummis. OK. Well, if two different agencies are
interpreting the guidance differently, on how to apply NEPA,
are you going to arbitrate that?
Ms. Goldfuss. No.
Mrs. Lummis. What is going to happen?
Ms. Goldfuss. Agencies have discretion to implement NEPA
the way that they see fit on a----
Mrs. Lummis. Why are you providing this----
Ms. Goldfuss [continuing]. Project-by-project basis----
Mrs. Lummis. What is this guidance for, then? Why are you
doing this?
Ms. Goldfuss. We have a series of court cases and questions
from the agency, specifically, about how to address climate
change. We have heard from the courts, as Mr. Martella also
referenced, that including climate change is an appropriate
consideration in NEPA reviews.
So, from questions from stakeholders, the courts, and the
agencies themselves, they have been asking how to do this. So
this is our best guess at the way to do it.
Mrs. Lummis. OK. So let's say a disaffected party, like, a
permitting document, could they seek a legal appeal and use the
guidance against an agency that did not accept it?
Ms. Goldfuss. This is new guidance that is not final yet,
and I can't speculate on how individuals will use it in the
courts in----
Mrs. Lummis. What do you think about that question, Mr.
Martella?
Mr. Martella. Well, thank you, Vice Chairman. Your question
goes exactly to my point on why I believe the guidance needs to
be withdrawn now, as CEQ considers it further.
At the end of the day, we have a practical reality and two
perspectives. One is a--let's take the Forest Service as an
example. Even though it is a draft guidance, no one at the
Forest Service is going to ignore it. They are going to give
deference to CEQ. And no one at the Forest Service is going to
risk not paying attention to the draft CEQ guidance. It is, de
facto, in effect, in my view, across the Federal Government.
And, from the court's perspective--let's say the Forest
Service says, ``Well, we are going to disagree with CEQ.'' What
is going to happen is someone is going to challenge that Forest
Service decision, take it to the court, and the first thing
they are going to say in their brief, ``Well, CEQ said the
Forest Service should have done it differently,'' and the
court, again, is going to give that significant weight. So
that, I think, is the danger and the risk.
While, again, I recognize there is a need for guidance, as
a general proposition, that is the danger and the risk of
having a draft guidance out there that is inconsistent with the
law.
Mrs. Lummis. Thank you, Mr. Martella. And thank you, Ms.
Goldfuss. I yield back.
The Chairman. Thank you.
Ms. Bordallo.
Ms. Bordallo. Thank you very much, Mr. Chairman.
I just have one question for you, Mr. Clark. In 2006, the
Center for Naval Analysis, the CNA, Military Advisory Board,
composed of 11 retired three- and four-star generals and
admirals, released its landmark report, ``The National Security
in the Threat of Climate Change.'' Now, the report concludes
that, among other things, climate change is a threat multiplier
that makes unstable security situations bad, and bad situations
worse, across the world.
The Department of Defense has echoed that conclusion,
including, in the 2014 Quadrennial Defense Review, and is
incorporating climate change into the operations. Can you
please expand on how seriously the U.S. military takes the
threat of climate change, and how this guidance will enable
other Federal agencies to better access its impacts when
planning and permitting activities?
Mr. Clark. Thank you for that question, Congresswoman. I am
proud to say that I think that the U.S. Army, in particular,
the Department of Defense in general, has sort of led the way
on some of the science regarding climate change, and they have
done these threat assessments, as you note.
The QDR, the Quadrennial Defense Review--it is very
difficult to get your issue in front of the QDR, and they took
up this issue. It might not be a big surprise, if you think
about it, that if there is climate change, when there is
climate change, the things that are predicted, like droughts,
will create conflict around the world. And when there is
conflict, it is often our U.S. Army who is the first to have to
show up at that.
So, the Army has taken this very seriously. I just recall
reading that General Bostick, who is the Chief of Engineers, is
now doing a study on the vulnerability of Army installations.
And I will just say the Department of Defense is moving very
quickly. Whether the CEQ or anybody else issues guidance, the
Department of Defense is going to act on climate change.
Ms. Bordallo. Since they are the leader, Mr. Clark, the
Department of Defense, is it enabling other Federal agencies to
look into the matter? I mean I think that is pretty much what
it would----
Mr. Clark. Yes, again, I think the U.S. Army is often
looked to, and the Department of Defense is often looked to, as
a leader within the Federal agencies. And I hope that they can
create some very efficient framework for the other agencies to
act. So, I suspect that other agencies will look to the
Department of Defense in that regard.
Ms. Bordallo. Well, good. Thank you, and I yield back, Mr.
Chair.
The Chairman. Thank you. Mr. Young, do you have questions?
Mr. Young. Thank you, Mr. Chairman.
Director, I am deeply concerned about this. I have been
around here long enough to watch the CEQ work, and I am
somewhat concerned about--we are trying to build a gas line in
Alaska. We have five different agencies that will be involved.
And you keep saying this is not a regulation, it is not a rule.
But the gentleman just mentioned a moment ago, I have never
seen an agency that goes through a recommendation from the
White House, because the Secretary will get fired. It's that
simple. So, they do follow it. Whether they do it
subconsciously or consciously, I don't know, but I just know--
go back to the court action.
Maybe something, if, let's say, an agency doesn't follow
your recommendations--you say it is a recommendation. And the
Sierra Club, one of my favorite agencies--I say it is an agency
because they have more staff than your agency does, by the
way--they will file suit against the Fish and Wildlife or
against the Corps of Engineers or against FERC, and that delays
the project. Why are we doing this, if that is the case? I mean
is there any safety that says this won't happen?
Ms. Goldfuss. So I would just add right now, as the status
quo, that challenge still could come. We have more than 20
cases that have criticized the agencies in how they have or
have not analyzed climate change in their review. So, with or
without this guidance, that challenge can come. I can't speak
to the specific situation in Alaska, and what the outcome would
be. But the status quo would allow for that challenge already.
Mr. Young. OK, but--it would allow. You can sue a skunk for
crossing a road. But, in reality, will this give another
legal--Mr. Martella, you can address this. You know what I am
leading up to? I have gone through this. We had the past
legislation in this committee to build the Trans-Alaska
Pipeline that has given this Nation 17 billion barrels of oil,
so there would be no lawsuits. It is the only time in history
that happened, and we did it.
Now, what do you see happening if this supposed advice to
the agency occurs?
Mr. Martella. I understand your point, sir, and I agree
with it fully. I was a Justice Department attorney for many
years, where I defended the government in NEPA decisions. And
it is unrealistic to think that any Federal decisionmaker would
ignore any kind of guidance from the White House on these
issues.
But I would like to give you an example that brings your
hypothetical to a reality. Just last year, about 9 months ago,
there was a court decision in Colorado, where a NEPA document
was done for a coal mine, and the NEPA document did not address
the social cost of carbon from OMB, something I talked about.
And the court looked at this EIS, after many years of
preparation, and the court said, ``Well, you never talked about
this thing that came out of OMB. I am not sure if you have to
talk about it or not. But the fact you didn't even explain it
gives me concern,'' and it remanded the EIS back to the agency
to explain why it was or was not considering it.
So, that is a prime, real-world example of a court decision
within the last year that did exactly what you are concerned
about, which is to remand a decision back after many, many
years of analysis, simply because the Federal agency did not
follow something that was coming out of the White House.
Mr. Young. OK. Director, again, how are you funded?
Ms. Goldfuss. [No response.]
Mr. Young. Where do you get your money?
Ms. Goldfuss. CEQ gets our money from you, sir. We are
funded by Congress.
Mr. Young. That is what I thought. Gentlemen, I think that
is something we should look at. Because I just don't know why
this extra layer is going in. You haven't explained it is not a
regulation, it is not a law, and yet it is there. And I think
it is a lawyer's dream. And, if I had anything to do--if I was
a dictator, I would shut down every law school.
[Laughter.]
Mr. Young. We would be a lot happier, there would be more
things done in the United States, instead of everybody worried
about being sued. I just think this is a lawyer's dream. What
you are proposing now will be used in the courts, and that is
not what we are all about.
You know, take into consideration--go back to my gas line.
You know, they can say, ``Well, it is going to add to the so-
called climate change down in'' wherever we sell the gas.
Someone didn't take that and consider it.
I am just concerned, Mr. Chairman. Thanks for holding this
hearing, because it is another example, I think, of a continued
overreach, unnecessary, not needed. Yield back.
The Chairman. Thank you. And if you go through with that, I
will make you dictator after all.
Mr. Grijalva.
Mr. Grijalva. Thank you, Mr. Chairman. Mr. Clark, your
testimony is largely complementary of CEQ guidance. However,
let me ask you if you have any concerns about it.
For instance, the one example, there have been questions
raised about the upstream and downstream impact provisions, and
whether they would require limitless unending analysis. Do you
think CEQ needs to provide further clarity on that, with
respect to those provisions in the final guidance?
Mr. Clark. This is certainly a complex issue.
The Chairman. Is your microphone on?
Mr. Clark. I'm sorry. I said that this is a complex issue,
and my substantive criticism of this is that it does introduce
new lexicon, new ideas that are not contained within NEPA
itself, nor is it contained within the CEQ regulations. And I
fear that some reading of the guidance could lead one to
believe that the guidance is expanding the law. I don't think
that was the intent, but I do think that the upstream-
downstream lexicon creates a whole new complexity that is
unnecessary.
Mr. Grijalva. Thank you.
Director, Mr. Clark's response to that question, that
provision, any comments on that?
Ms. Goldfuss. Yes. I would say that we have heard about
this issue of upstream and downstream more than any other one
specific issue, and are listening to industry and stakeholders
on it directly, and are considering, as we go through the 100
comments that we have right now, those recommendations.
It is our hope, our focus, and our intent to really focus
on what NEPA, the major tenants of NEPA, which are the direct,
indirect, and cumulative impacts, and not be speculative about
it. So we don't want to add confusion to what exists already.
Mr. Grijalva. Thank you. Mr. Clark, one more question. I
know of a number of large companies, including Shell, BP, Exxon
Mobil, Wal-Mart, Wells Fargo, Disney, and others have used
something akin to a social cost of carbon for their own
internal planning to guide their investment strategies and
decisions in the future. In fact, even these internal prices,
and the social cost of carbon price are similar.
But we have heard criticisms about it from one of the
witnesses today. Since major corporations see fit to include a
carbon price in their planning, doesn't it make sense that the
Federal Government would use that index, as well?
Mr. Clark. Well, let me start out by saying I am not an
expert on the social cost of carbon. My career, though, as I
have been doing NEPA and doing NEPA analysis, is to try to do a
full cost accounting of the impacts. And what I mean by a full
cost accounting is that if you are a beneficiary of the impacts
that are being cast on someone else, that you ought to be able
to capture the cost. I don't know that that is the social cost
of carbon, I don't know that that is the mechanism. But
somehow, to account for your impacts, I think, is a smart move.
I don't know that social cost of carbon is it.
Mr. Grijalva. OK. Yield back.
The Chairman. Thank you.
Mr. Lamborn, do you have questions?
Mr. Lamborn. Ms. Goldfuss, you said that the revised draft
guidance will not--I will start over, thank you. If you could,
start the clock over.
[Laughter.]
Mr. Lamborn. Ms. Goldfuss, you said that your revised draft
guidance ``is not a rule or regulation, and is not legally
enforceable.'' So you have no legal authority to impose your
guidance on other Federal agencies, but you are doing so,
anyway. It sounds to me like you have been learning at the feet
of President Obama, who is taking action by executive order,
using his pen and his phone, whether, in my belief, he has the
legal authority or not.
OK. Dr. Christy, I have a couple of questions for you. In
your testimony you state, ``Because changes in the emissions of
our entire country would have such a tiny calculated impact on
global climate, it is obvious that single projects, or even
entire sectors of the economy, would produce imperceptible
impacts.''
In light of this, is the CEQ guidance well advised?
Dr. Christy. I don't think so. I look at it from the
scientific perspective, as a working stiff scientist. And the
fundamental thing here is that there is no proof that these
emissions cause specific things you see in climate. So how can
one link a cause to an effect here? Because there is no proof
of it. I build those climate data sets. It is not there.
Mr. Lamborn. If all of the climate models that Ms. Goldfuss
and others do adhere to were correct, are you still saying that
a single country, or a single project within a country, like a
particular electrical generating coal-fired power plant, is
going to have an imperceptible, maybe even an immeasurable
impact? Is that correct?
Dr. Christy. That is correct. The emissions globally are so
large, compared to what a country has, or what a single project
would have, you would be spitting in the ocean, is what you
would be doing.
Mr. Lamborn. Thank you. Now, you say in your testimony also
that ``greenhouse gas emissions cannot be used as a proxy for
alleged climate change, because our capability to demonstrate
how greenhouse gases influence the already-observed climate is
so poor.'' Could you elaborate on that, please?
Dr. Christy. As I showed in my chart, none of the climate
models is able to reproduce the most simple of metrics, the
global atmosphere temperature, over the past 36 years. This is
a period in which we have had satellite information to show--
and also independent balloon information--what has happened in
the real world is not produced by these models that have a
greenhouse gas effect in them. So we don't know what the effect
of greenhouse gases are to the climate.
Mr. Lamborn. Is it scientific for someone to say that a
particular climate event, like a drought in the West, or
wildfires resulting from a drought, can be attributable to
human climate actions?
Dr. Christy. Well, two quick things. That is not provable.
One cannot prove that. And, second of all, if you look at the
charts I included in the testimony, drought around the world is
not increasing. So we have no link, in terms of global drought,
versus global emissions.
Mr. Lamborn. What about severe events like hurricanes?
Dr. Christy. There is no increase in hurricanes. We have
monitored them for 150 years. There is no increase in intensity
or severity of hurricanes. So there is no link there.
Mr. Lamborn. So if someone stands up in Congress, for
instance, and says a hurricane was caused by human climate
action, is that scientific or not?
Dr. Christy. That is not scientific.
Mr. Lamborn. OK, thank you. Now, your testimony suggests
that climate models are not useful tools for prediction. Why is
that? And are there better tools?
Dr. Christy. Well, the simple answer to that is can they
reproduce the past first? That should be a simple test. Can you
reproduce what has already happened? And, as I demonstrated in
the testimony, the climate models have been unable to reproduce
what has actually happened in the past. I would not claim that
they would have--I would have confidence in them to tell us
what would happen in the future.
Mr. Lamborn. So what would be a better model?
Dr. Christy. I think the better model is to look at the
real world, as it is going on. And that is what we do, in
observational science. I mean I built my first climate data set
50 years ago, before NEPA. So we can watch the real world. That
will tell us what is going on. And not much is happening, in
truth.
Mr. Lamborn. Thank you for being here.
And, Mr. Chairman, thank you for having this hearing. I
yield back.
The Chairman. Thank you. Ms. Tsongas.
Ms. Tsongas. Thank you, Mr. Chairman, and thank you all for
appearing before the committee today.
To reiterate, the bill that we are talking about today, the
National Environmental Policy Act, is one of our Nation's
bedrock environmental laws, crafted on a bipartisan basis by
Congress, signed into law by President Nixon, this committee
having played a very important role. NEPA has informed Federal
decisionmaking and increased transparency for over 40 years. It
is the starting point for evaluating the environmental impacts
of Federal action.
NEPA does not dictate decisionmaking or project choices,
nor does it require Federal agencies to elevate environmental
concerns above all others. Instead, it simply makes sure that
agencies have all the necessary information on potential
environmental impacts, and consider alternatives before moving
forward with a Federal project.
To put it simply, NEPA makes sure we ``look before we
leap,'' and are using our taxpayer dollars wisely. It is also
one of the primary ways through which the public is able to
participate in the Federal decisionmaking process, fulfilling
the fundamental right of American citizens to have a voice
regarding a proposed Federal project. We hear much on this
committee about the conflict between states and the Federal
Government. But, in essence, NEPA ensures that the Federal
Government is a good neighbor, giving its neighbors a chance to
be heard on Federal actions.
So, I strongly support the Administration's efforts to
better incorporate the impacts of climate change in the NEPA
review process. Climate change is a critical generational issue
that we cannot ignore. The proposed guidance that we are
discussing today will increase predictability and certainty for
Federal agencies, state, and local governments, not least the
Defense Department, private businesses, and the public, on how
climate change impacts will be considered as part of NEPA. Our
Federal courts have also overwhelmingly determined that this is
something that we need to do.
Mr. Clark, I want to thank you for appearing before this
committee today and sharing your expertise. As Ms. Bordallo is,
I am also a member of the Armed Services Committee, so I
particularly appreciated the fact that, in your testimony, you
stated that the Army considers the impacts of sea-level rise,
storm surge, and increasing frequency of drought when studying
where and how to build facilities.
I know when I first went on to that committee, I was very
impressed with the ways in which the different services were
really in leadership positions of taking into account the
impacts of climate change. And it is my hope, as you referenced
in your testimony, that as they deal with this through the NEPA
process, that they will create templates for other agencies to
follow.
But from your experience, having served in both Republican
and Democratic administrations, if we don't conduct careful
planning, could the impacts of climate change negatively impact
military readiness? We know that they certainly deal with it in
national security framework, but could it impact military
readiness?
Mr. Clark. Well, the Army is doing a number of those
studies now, and one of the things that they are concerned
about is operations and training, about whether or not climate
change can impact that.
So, yes, they are taking that into account. And I would
also refer you to the study that the Army did, I think, in
2012, about the vulnerability of the Army.
Ms. Tsongas. You also said in your testimony that CEQ's
guidance will ``help bring structure and consistency'' and
``reduce confusion'' for the Army's current efforts. Can you
expand on this? Can you give some examples of confusion under
the current process that could be improved by increased
guidance from CEQ?
Mr. Clark. Well, I would like to answer that by giving some
experience when I was at CEQ. When I first came to CEQ, I came
from the Secretary of the Army's office, and I was asked to put
together a cumulative effects guidance. And that had much of
the same discussion that we are having now, that this was going
to create new law, it was going to create more stoppages of
projects, and all that sort of stuff. But what was really going
on was that the agencies were getting sued, and the agencies
were begging CEQ for guidance. It was not an easy thing to do,
but we did put together a framework. And I think that is the
major contribution of this, to put together a framework that
agencies can work with.
Ms. Tsongas. So it creates consistency across the agencies,
which is what you are saying.
Mr. Clark. Yes, ma'am.
Ms. Tsongas. Great. Thank you. I yield back.
The Chairman. Thank you. I am assuming climate change is
causing you guys to screw around with the equipment over there
and break things?
[Laughter.]
The Chairman. There is a social cost to that. I just want
you to know.
[Laughter.]
The Chairman. Mr. Wittman, you are recognized.
Dr. Wittman. Thank you, Mr. Chairman. I want to present a
question to the entire panel. I just want to get in my mind the
magnitude of what we are talking about here, in looking at
reducing the impact of emissions on global climate change. And
how much would the United States have to reduce its emissions
to have an impact on overall global emissions? And would there
be a noticeable impact on the environment if no other nation
did the same?
In other words, if we were the sole entity to reduce our
emissions, what would the total impact be on the conditions
that we assert would be affected by this? Sea-level rises, the
overall average temperature change, plus or minus. Panel
members, can you give me a perspective on what would happen
under that scenario?
Ms. Goldfuss. I want to make sure I understand the
question. So you are saying if we were the only country to
address this.
Dr. Wittman. If we were the only country to address it, how
much would we have to reduce our emissions in order to have an
impact, a noticeable impact, on those conditions, sea level
and----
Ms. Goldfuss. I can't estimate that number. I apologize.
Dr. Christy. Well, I have done those calculations,
Congressman. Our effect would be between five and eight
hundredths of a degree. We would not even be able to measure
any sea-level--the sea-level change would be so tiny as to be
immeasurable.
By the way, sea-level has been rising for 20,000 years. It
will continue to rise. So, no matter what anyone does about
their emissions, it will continue to rise. It is not the inch
per decade that is the problem; it is that 20 feet in 6 hours
from the next hurricane. That is the problem. And that is a
different kind of issue to address.
Dr. Wittman. Ms. Goldfuss--or anybody else that would like
to answer that?
[No response.]
Dr. Wittman. OK. Ms. Goldfuss, let me ask you this--again,
to get a perspective. Do you envision any single project that
you either wouldn't approve, or wouldn't be approved under this
guidance that would have a significant effect on global
climate, sea-level rise, all those different parameters? Can
you give us an example about how, if you didn't do a project or
a project that you anticipate--a single project that would have
an effect on those conditions?
Ms. Goldfuss. NEPA would not lead to a decision where you
would not do a project. It is not about outcomes; it is about
informed decisionmaking.
Dr. Wittman. Well, give us the nature of how it would
inform decisionmaking. What do you think the outcome of that
would be? In other words, if you are saying, well, we have to
have this information that we believe would reflect climate
change, how do you envision that would impact the outcome of
that decisionmaking?
Ms. Goldfuss. Well, CEQ is responsible for helping the
agencies to implement NEPA. And we give them great deference in
making those decisions. So it will be decided on a case-by-case
basis, what the impact will be, and whether or not the guidance
is appropriate for that project.
Dr. Wittman. Would you see under the NEPA process what you
see now, incorporating climate change information, would you
see that being the turning point for a project then not being
approved, based on the projected impact of----
Ms. Goldfuss. No, I once again would go back to the fact
that this is about informed decisionmaking, so it is up to the
decisionmaker to determine whether or not one of the
alternatives is appropriate for all the factors that go into
the NEPA review, not just the greenhouse gas guidance.
Dr. Wittman. OK. Mr. Christy, I want to ask this. The one
purpose of NEPA, as we know, is to increase transparency, so we
understand the information that is being exchanged in this
decisionmaking process. The draft guidance suggests that
agencies incorporate the social cost of carbon into NEPA review
documents. Can you tell me, was the social cost of carbon
created in a transparent process?
Dr. Christy. What I know of the social cost of carbon is
minimal. I do know it is a black box, and that it is not
representative of the science that we really have today. And
one of the real shortcomings of the social cost of carbon is it
does not consider the real benefits that come when people have
access to low-cost energy, plus some other things. But when you
add all those in, you find out burning carbon creates benefits,
not costs.
But the fundamental climate parameters that are going into
that model are that red line I showed you earlier, which is not
what is happening in the real world. So, immediately, the
social cost of carbon is giving an erroneous answer.
Ms. Goldfuss. I just want to clarify. NEPA does not require
cost benefit analysis, and this guidance does not require that
the social cost of carbon be used. So I can direct you to
language specifically in the guidance, but it is not a
requirement.
Dr. Wittman. OK. Thank you, Mr. Chairman. I yield back.
The Chairman. Mr. Huffman.
Mr. Huffman. Thank you, Mr. Chairman. And thanks to the
witnesses.
It was very interesting for me to hear a scientist tell us,
``We don't know the effects of greenhouse gases on the
climate,'' and that prompted me to just quickly do a Google
search to look at what NASA has to say on the subject. And the
NASA Web site right here says multiple studies published in
peer-reviewed journals show 97 percent or more of the climate
scientists in the world agree to a very different proposition
than what we heard today, that, in fact, human activities and
greenhouse gas emissions are contributing to climate change and
global warming.
So, I want to congratulate the Majority for finding a
scientist with this unique, contrarian view. I suppose, if we
looked hard enough, we could find a cardiologist who would tell
us that chocolate cake is good for us. But when there is such
an overwhelming scientific consensus--you know, just a
thought--we might want to hear scientific testimony that
reflects that.
There has been some question about the need for this CEQ
guidance, Director Goldfuss. And I just wanted to ask you now,
courts have looked at the question of whether NEPA requires
consideration of climate change matters. And, by my count, I
found about 27 cases that have held that various Federal
agencies must consider climate change in their NEPA analysis.
There is one case out there that disagrees, but does that sound
about right to you, that the Federal courts are weighing in 27
to 1 that this must be included in NEPA?
Ms. Goldfuss. Yes. And each of those decisions is somewhat
inconsistent on what they are telling the agencies. So those
different decisions are part of the reason that the agencies
have been asking us to clarify what their approach should be.
Mr. Huffman. Right. Thank you for bringing that up, because
the other point that has been made is that this is some kind of
a lawyer's dream, or an attempt to set up a litigation trap.
If you've got agencies out there with so much conflicting
guidance from the courts, and no guidance on how they are
supposed to actually do this climate analysis, this hard look
under NEPA, if left to their own devices, are they more likely
to face litigation or less likely?
Ms. Goldfuss. I would say they are more likely. I mean
there are 27 different approaches and ideas about how it should
apply it, and then it is left to the agencies to determine what
their approach should be, based on those decisions.
Mr. Huffman. And with some guidance from your office, and
some consistency, would you say that the projects that they are
analyzing are more likely to be approved and successful, or
less likely?
Ms. Goldfuss. With consistent approach and developing the
tools, and using the tools that--excuse me, let me restate
that. We don't want them to develop new tools, but using the
existing tools that they have, they will be more successful in
their approach of carrying out NEPA.
Mr. Huffman. That is what I thought. So we are probably
looking at less litigation, more effective NEPA analysis, and a
smoother path for the various projects that are subjected to
that than left to the uncertainty of how courts are addressing
this under the status quo.
My colleague, Mrs. Lummis, brought up an interesting point.
Theoretically, at least, humans emit greenhouse gases, right?
And she said that under this guidance from CEQ, theoretically,
any emission would have to be subject to climate analysis. I
just wanted to ask you about that, because my understanding was
you have set a threshold of 25,000 metric tons per year for any
action that would even need to be subject to this analysis. Is
that right?
Ms. Goldfuss. Well, just one little correction. It is just
a point of reference, not an actual threshold. So we wanted to
give the agencies a point of reference to focus on the projects
that will have the greatest greenhouse gas emissions impact.
Mr. Huffman. OK. Is it possible for a human being to emit
25,000 metric tons of greenhouse gases in a year?
Ms. Goldfuss. That would be an impressive human being.
Mr. Huffman. OK. Just wondering, because, I mean, using
Mrs. Lummis's hypothetical--we all like Mrs. Lummis, we like
hanging around her, she has lots of friends--but if someone
emitted that much greenhouse gas, would they have any friends?
[Laughter.]
Ms. Goldfuss. I will let the committee answer that one.
Mr. Huffman. All right. Thank you very much. I yield back.
The Chairman. With what I ate last night, I am close to
that already. And you did say that when you are doing your
final guidance, you are not going to eliminate chocolate cake,
right?
[Laughter.]
Ms. Goldfuss. That is outside our authority, I would say,
Chairman.
The Chairman. I hope to shout. All right. Mr. Gohmert, you
are recognized.
Mr. Gohmert. Thank you, Mr. Chairman, and I appreciate the
witnesses being here. I was just curious, in considering the
kind of questions you have just been asked, and the questions
that you often get, Professor Christy, do you ever feel like
Galileo?
Dr. Christy. [No response.]
Mr. Gohmert. You remember Galileo? The overwhelming amount
of science was against Galileo. And the other scientists got
money from the church, they got money from the government for
their research in opposing Galileo. And yet, Galileo was right,
and he had the courage to stand up and say so.
I know it is often said by climate fearmongers that, Gee,
money really dictates the kind of results. I am curious. Is it
true you would have access to hundreds of millions of potential
grant dollars if you would change your scientific position?
Dr. Christy. I don't consider myself a Galileo in that
sense. No one has arrested me yet.
Mr. Gohmert. That is coming.
Dr. Christy. And it does get personal when you talk about
chocolate cake, though. I wonder about that.
What I see as a real problem in the government is that
there is an agenda that has been stated from the top: climate
change, settled science, on and on and on, like that. That is a
message to everyone in the agencies, which have the funding, to
make sure that happens.
We do not see what I would call a red team situation,
where, if an issue is going to cost the economy so much that
you would set aside some funding to say, ``Are there problems
with this, are there independent people, skeptical people, that
will look and see what might be wrong with it''--I am one of
the few people that actually builds these climate data sets
from scratch, so that we can see what the real climate is
doing.
Mr. Gohmert. Well, I understand you may have a slide that
compares the various climate models.
Dr. Christy. Yes, being from Alabama, a lot of target
numbers there----
Mr. Gohmert. Would you explain that?
[Slide]
Dr. Christy. So this is a target. That is the trend and the
atmospheric temperature that has happened since 1979. That is
the target that you want to hit with your climate model.
So, it is like we give someone 102 bullets to shoot at that
target. OK, go to the next one.
[Slide]
Dr. Christy. That is what they got. Not a single one of
these climate model projections was able to hit the target.
That is the basis, though, on which the policy is being made,
it is on those climate models, not on the evidence before us.
Mr. Gohmert. That is what we are basing all of these rules,
all of this massive amount of paper that is produced, reports
that are produced, requirements for reports--let me just tell
you. I have a woman over 80 in my district, lives in a rural
area, and she said, ``When I was born and raised, it was in a
home where the only energy we had was in our woodburning stove,
and my power is getting more and more expensive. I am afraid I
am going to die in a home like that.''
Do you have another slide that shows a difference in what
is projected and what is real?
[Slide]
Mr. Gohmert. Oh, this is the one you were showing a while
ago.
Dr. Christy. Yes, I think everyone here in this room can
understand that slide, and I think they would understand
something is wrong with the scientific theory we have about how
greenhouse gases affect the climate. No one has said this slide
is wrong. It has been available for over 2 years, or over a
year. It took me a long time to build it, because that is
downloading 102 models, and so on.
But that is, the way I understand it, the extreme claims
about climate change are based upon what those models, what
that red line is showing, and not on what the real world is
actually doing.
Mr. Gohmert. Yes. Well, as someone who was shocked, and
didn't believe all the scientific projections in the 1970s that
said we are at the beginning of a new ice age, I get a little
leery of the new projections that we are headed toward warming
this place up to where we are going to have more crops than we
have ever had. What a terrible thing.
But--yes, sir?
Dr. Christy. Right, yes. And one other thing is I lived in
Africa. So your comment about the woodburning stove, and so
on--I can say this, without a doubt, that without energy, life
is brutal and short. I witnessed it as someone living in
Africa. And to withdraw energy, make it more expensive, make it
inaccessible, that is not being--that is immoral.
Mr. Gohmert. That does more harm to men than anything. I am
on record as believing climate change to be a fact in east
Texas, where I live. It happens four times a year.
The Chairman. Mr. Beyer.
Mr. Beyer. Thank you, Mr. Chairman. And thank you to the
witnesses. Although I am not a lawyer, I do feel I should take
10 seconds to defend the rule of law.
I understand what makes our democracy endure is that we are
a nation of laws, and that there are many tragic examples today
of dystopic countries that do not have the rule of law: North
Korea, Somalia, Sudan. A quick aside.
Ms. Goldfuss, Mr. Martella had written that ``GHGs are
well-mixed, global pollutants emitted by countless sources. As
a result, the relative and proportional climate change impacts
of emissions associated with any given Federal action will be
infinitesimally small.''
Then, Dr. Christy testified that if we close the USA, a few
hundredths of a degree.
These statements seem to ignore the leadership role of the
United States, that the laws and regulations we pass, the
actions we take, do affect what other countries will do. I have
been trying to think of the best analogy. There are many, but I
keep coming up with is it OK to throw one beer can out the
window, because there will be a lot of other beer cans thrown
out the window, so it is OK for me to do it.
Can you tell me what the big picture is for CEQ if any one
plant is really not going to make any difference?
Ms. Goldfuss. For starters, we are talking about NEPA here
today, which is a great example of how we have impacts across
the country, because this model that was created 45 years ago
has now been emulated in many countries as a process that
works, in terms of looking at different options and informing
our decisions.
So, yes, we lead by example. All of these decisions that
are being made, and work that is being put into climate talks
around the globe, the Obama administration clearly recognizes
that we can't do this on our own. The historic announcement
that was made with China and, as we lead up to negotiations in
Paris, this is a challenge of enormous proportions that really
requires that we look at this in every decision.
So, maybe not one individual decision is going to tip the
scales, but, cumulatively, we can have an impact on this
problem, and not just here, in the United States, but China,
India, and all of the countries around the world.
Mr. Beyer. Yes, thank you. And, Director Goldfuss, Mr.
Martella argued against applying the new guidance to land and
resource management actions. And does it make any sense to
apply the greenhouse gas metrics to, say, oil and gas
explorations on Federal lands, when there is greenhouse gas, by
definition? I mean what is the rationale for doing that? So----
Ms. Goldfuss. We looked at many comments with relation to
the land sector, specifically. And when the draft guidance was
first put out in 2010, it was an open question, as to whether
or not this guidance would address actions on Federal lands.
The Federal Government manages about 30 percent of the land
mass across the country, as Chairman Bishop is very familiar
with. That is more than 600 million acres. So it is our
responsibility to look at those actions. We understand that it
is different with relation to forestry activities, or other
actions that are taken, so we have tools that specifically,
sector by sector, can calculate these emissions, both short-
term and long-term, but feel that it is appropriate, given the
land management position that we hold to analyze those
emissions, as well.
Mr. Beyer. Great. Thank you. In the minute I have left, Dr.
Christy, I appreciated your building the data sets from
scratch, and the slides that we saw. It would be, maybe at
another time, interesting to take those slides farther back to
1950, 1900, 1850, and not just compare what the IPCC scientists
have projected the difference in temperature would be over a 5-
year period of time, but look at the temperature, and look at
the J-curve on the greenhouse gas emissions, and see how they
align. I am sure you have worked on things like that, too, but
this is where the 97 percent of the climate scientists come
down on believing that climate change is something that is
real, and that we have to deal with.
Dr. Christy.
Dr. Christy. OK. I would hope I could disabuse you of that
97 percent number. That has been debunked in several studies.
So that is just not real.
Mr. Beyer. I was just quoting my colleague.
Dr. Christy. Yes, and remember, the NASA Web site is
controlled by a specific government. So the key about the
diagram I showed is, when are the greenhouse gases supposed to
be most evident, in terms of the response of the climate
system. It is the last 36 years. That is the time period you
need to study and see, because that is where the response is
measurable, according to climate models. We can hardly measure
much of a temperature increase in that time, as you saw on the
chart.
So, that is why you want this period, because this is when
greenhouse gases, the increase in greenhouse gases, would be
affecting the climate the most.
The Chairman. Thank you. And if it was 30 percent of my
state, I would be a lot nicer to you, as well.
Mr. Fleming.
Dr. Fleming. Thank you, Mr. Chairman. And let me say, first
of all, as a physician who has practiced 40 years, including
cardiology, I can say that chocolate cake is good for you. But
I don't recommend eating in excess. Nor do I recommend eating
kale in excess, either.
[Laughter.]
Dr. Fleming. So, that brings us to this. As a physician, I
was always taught, and still practice, the fact that it is the
scientific method that really leads us into progress, to do
what is right for the future.
Now, Mr. Huffman suggests this may be consensus. And
certainly there has been a suggestion here that maybe the
courts should decide these things.
But, Professor Christy, enlighten us on this whole issue.
What is the science, and what is this 97 percent? My
understanding about the 97 percent--it is often quoted that
this is consensus, rather than true settled science--is that
this was 97 percent of colleagues who were asked the question.
And certainly, you are going to get any outcome you want, as
long as you ask the people that you choose to ask.
Dr. Christy. There are many failings with that study that
came up with the 97 percent. One was how the sample was chosen.
Dr. Fleming. Right.
Dr. Christy. Who did the decision about whether someone
came on one side or the other. That was one of the problems
with that.
But when it comes to scientific method, I am right with
you. If we think we understand a system, then we have to be
able to predict it. If we can't predict it, we don't understand
it.
Dr. Fleming. Yes.
Dr. Christy. The climate is clearly something we can't
predict. Therefore, there is something very fundamental about
the system we do not understand, as I have shown in the charts.
And I think we have a long way to go.
Dr. Fleming. Absolutely. So you show very clearly there
that, out of 102 different models, not a single one of them
even comes close, it appears, to being accurate in
predictability.
Dr. Christy. Yes. That should concern everyone in this
committee.
Dr. Fleming. Absolutely. So, now we have a tremendous
amount of policy coming out of our government, out of
governments around the world. And, by the way, I believe it is
Australia that actually repealed their cap and trade tax. So
some of them, I think, are getting smart and actually looking
at the science.
So, after all of these years, and all of this policy, and
now cost to government and to free enterprise, to private
businesses and individuals, we actually find out that all of
that policy is based on what perhaps one could say is voodoo
science. What would you say?
Dr. Christy. Well, I would say the policy is based upon
some theory that needs a whole lot of correction to it.
But also, you should look at the numbers, too, about carbon
emissions and coal burning, and so on. No one is following the
United States on this. Emissions are rising. I mentioned
Germany and Japan. Their emissions are rising. They are
building more coal-fired power plants. So no one, really, is
following us. Look at the numbers; they will tell you the
truth.
Dr. Fleming. Well, what about this social cost thing, now
that is coming up? The social cost of carbon. And it was
calculated. How is that number calculated?
Dr. Christy. Now we are talking about voodoo, I think. But
I am familiar more with the inputs that are on the climate
side. If the climate does this, I think it is basically the
global temperature does this, then all these other factors
are----
Dr. Fleming. Right.
Dr. Christy [continuing]. Supposed to happen, and
theoretically happen. That is fundamentally the wrong input,
because I have shown you that the input that is just based on
the global temperature is already off by a good bit. So any of
those downstream effects that the social cost of carbon
determines are going to be off.
Dr. Fleming. So there is no way to truly calculate the
offsetting taxation necessary in order to improve the climate
outcomes when we, first, don't have the science, or the
predictable science, in place, to begin with.
Dr. Christy. Yes. You are talking about an economic
question.
Dr. Fleming. Yes.
Dr. Christy. I probably am not an expert at all on that.
But I would say, since you start with a false or an erroneous
input, you are not going to get a good answer at the end----
Dr. Fleming. Right.
Dr. Christy [continuing]. No matter what else you do on----
Dr. Fleming. You basically have to make a number up, and
extrapolate from there, then, is what you are saying, in order
to come up with any number, because you don't really have the
science to prove what you can do economically with taxes and
regulations that are actually going to mitigate climate change.
Dr. Christy. Right. We can test some of these things, as I
have done. OK, let's shut down the United States. What would
that affect be? So there are tests like that we can do. And
they all show that these regulations and intents will just do
nothing to whatever the climate is going to do.
Dr. Fleming. Well, it just certainly appears to me that
before we continue down this road, Mr. Chairman, of taxing
individuals, taxing businesses, taxing our economy, and hyper-
regulating our economy, killing jobs, flattening our economy
even more than it is today, we should actually get the science
right.
With that, I will yield back.
The Chairman. Mr. Lowenthal.
Mr. Lowenthal. Thank you, Mr. Chair. Dr. Christy, I am a
little confused, so I just really want some quick
clarification.
In an earlier statement today you said that you did not
believe in a causal link between carbon dioxide, CO2, and
climate change. In fact, I think you said that thermometers say
that temperatures have gone up, but they don't say why. Is that
accurate?
Dr. Christy. Yes, thermometers tell us what has happened;
they don't tell us why.
Mr. Lowenthal. So you do not believe that, as I say, that
there is this causal link. We have not proven this causal link.
Dr. Christy. Yes. What I believe is irrelevant. I am just
looking at data, the output from the theory, and the output
from the real world. They don't match.
Mr. Lowenthal. I got it. Then you went on to say, though,
in response to a question from my esteemed colleague, Mr.
Wittman, that you know exactly how much less the earth would
warm if the United States stopped emitting all of its
greenhouse gases.
So, on one hand, you say there is no causal connection
between greenhouse gases and the warming. And then you say, in
the same hearing, you can definitely predict the exact future
warming due to less greenhouse gases. How do you reconcile
this?
Dr. Christy. I think if you listened to what I said,
Congressman, I said if you use the climate models, this is what
they tell us.
Mr. Lowenthal. So you do not believe in that climate model
at all.
Dr. Christy. What I believe is irrelevant.
Mr. Lowenthal. I am asking you a question.
Dr. Christy. I look----
Mr. Lowenthal. Do you----
Dr. Christy. I look at the information there----
Mr. Lowenthal. You told us exactly how much there would be
less greenhouse warming.
Dr. Christy. I use the climate models--the magic sea model,
which is the IPCC-approved model, to demonstrate what they
would say.
Mr. Lowenthal. So, you pick and choose when you use that
model, by saying to us that it does not occur. So, to me, I am
trying to understand. Are you saying that you do not understand
how much CO2 will warm the earth, that there is no
relationship, or that there is--that CO2--not that CO2 will
warm the earth, it is just how much it will warm the earth, is
that what you are saying?
Dr. Christy. That is pretty accurate, that CO2 is a
greenhouse gas. All things being equal, it will cause increased
warming of the atmosphere. The amount of that warming, from the
evidence, from the observations, is quite small.
Mr. Lowenthal. All right. So then, I would just like to
say, as we go on, before I even ask any more questions, that I
first want to put into the record, Mr. Chair, if it is OK, a
letter that 53 of my colleagues and I wrote to the Director,
indicating our strong support on the Council of Environmental
Quality's December 2014 draft guidance providing Federal
agencies the direction. So I would like that to be in the
record, that 53 of my colleagues have supported what the CEQ is
doing, if that is OK.
The Chairman. Without objection.
Mr. Lowenthal. Thank you. Then I just want to also make a
statement that I am pleased that we are holding this hearing,
first, to acknowledge the successes of NEPA. It has been a
bedrock of transparency, it has been an essential tool, also,
for many, many people who have been cut out of the process, or
otherwise would be cut out of the process, because of their
lack of money or power.
For example, in my own district recently, there is a new
8\1/2\ mile light rail that is being developed in Los Angeles.
But because of community comments during the NEPA process,
which included public meetings and comment periods, the
developer has now re-purposed 5 miles using existing tracks,
rather than build the entire 8\1/2\ miles from scratch, cause
less disruption, and save substantial time and money.
So, I think that we can see this tremendous benefit of
NEPA, especially in providing greater and greater input. I
believe that a NEPA analysis should include the impacts of
projects on greenhouse gases. I think that is really important.
And I just want to make sure, for the record, that--Mr. Clark,
do you agree that they should, that this would be very helpful
for them to include this?
Mr. Clark. I believe it would be very helpful.
Mr. Lowenthal. Thank you. Also, Director?
Ms. Goldfuss. Yes, definitely.
Mr. Lowenthal. Good. I am then, again, very pleased that 53
of my colleagues have agreed with me, and place this into the
record, and I yield back.
The Chairman. Mr. Thompson.
Mr. Thompson. Thank you, Chairman. Well, just for the
record, let me say I would hope that NEPA would include the
social cost of government bureaucracy and the impact on
individual lives and, quite frankly, there be a requirement
that we use transparent science in setting that.
Mr. Martella, I have a series of questions for you. Would
you consider a CEQ guidance that addresses programmatic
environmental reviews as procedural in nature?
Mr. Martella. I get back to my overarching proposition to
anything CEQ does, anything it does with the guidance. It is
going to effectively be binding the day it comes out. The
Federal Government, all the decisionmakers, are going to follow
that CEQ guidance as the command that they have to be paying
attention to.
Mr. Thompson. How about a CEQ guidance that addresses
categorical exclusions, procedural?
Mr. Martella. Whether it is procedural or substantive, I
think it has the same impact, that the agencies are going to
follow it and give it great weight. And if the agencies don't
follow it, then there are going to be significant
vulnerabilities defending the decision in the courts.
Mr. Thompson. Then, specifically, would you consider a CEQ
guidance that addresses the efficiency of NEPA process as
procedural?
Mr. Martella. Again, I believe it is going to be binding on
the agency. It is going to effectively give them substantive
direction on how they should be applying NEPA.
Mr. Thompson. Finally, do you consider this draft guidance
on the GHG emissions, greenhouse gas emissions, to be
procedural or substantive?
Mr. Martella. I believe it is substantive. I believe it
is--as I have said before, it is in effect, to some extent,
right now, that if I were working at the Forest Service, how
could I look away from it? I would have to be applying it.
One of the things that makes me particularly nervous about
it--I appreciate Director Goldfuss saying they are paying very
close attention to the comments, they are going to take them
into consideration. I see some things in her written testimony
that were encouraging to me. But what makes me concerned about
it is it--those changes need to happen now. There is always a
risk that the government never finalizes something that is a
draft. And if it is not finalized, it is going to always stick
out there as a draft, and it is just never going to go away.
So, while I very much support the efforts to take the
comments into consideration, I think we have a challenge in the
interim, that is it in effect at the moment, de facto. It
should be withdrawn while they are considering these comments.
And there should also be a commitment to address the comments,
I think, within a reasonable period of time, so we don't just
have it lingering out there indefinitely.
Mr. Thompson. It seems to me--when you look at--the cost of
carbon requirement is really going to lead to massive new
litigation. It paints a bulls eye on the back of industries, on
the back of our national forests, the Bureau of Land
Management, it is really becoming--those lawsuits, nuisance
lawsuits, have become a fundraising scheme for certain groups,
and then we have the audacity to reimburse those costs under
the Equal Access to Justice Act that has been hijacked. That
was not the purpose of that, what was an excellent law, when it
was written.
So, I guess my question is, do you agree that this
requirement is just going to expand that bulls eye, and just
going to attract more nuisance lawsuits, which comes at a
direct cost to the taxpayers, but also comes at a social cost,
because I would argue, somewhat related to management of
national forests, have been--the Forest Service has been,
really, it has melted down their ability to actively manage
these forests to keep them healthy--invasive species,
wildfires, terrible economies in rural areas, and I just see
this as expanding that target.
Mr. Martella. Well, as I have indicated earlier, your
prediction has already come true. I cited the case from 2014 in
Colorado that struck down many years of hard work on an EIS
because of the inconsistency, and how they considered the
social cost of carbon. So that is already a reality, and why it
needs to be addressed.
And if I could just clarify, too, my fundamental
criticism--and I have several with the social cost of carbon--
but we have heard from both sides today, everybody
complimenting NEPA as being so transparent, and opening up the
doors to public transparency and public participation, and I
fully concur in that. It is the landmark statute for doing
that. The social cost of carbon is at the exact polar opposite
of that. This was a decision by several agencies and the
Federal Government that was done behind closed doors, in a
black box, without the public even knowing about it, and then
just announced from on high.
So, for CEQ to now incorporate the social cost of carbon
into NEPA documents, and to say this is a metric, it takes away
the whole public participation transparency component that all
of us have agreed today is so essential to the success of NEPA
going forward. So it should not be addressed until the public
has an opportunity to participate in the social cost of carbon
process.
Mr. Thompson. Thank you. Chairman, I yield back.
The Chairman. Mrs. Torres.
Mrs. Torres. Thank you. Ms. Goldfuss, as my home state of
California grapples with a fourth consecutive year of drought,
it is no secret that climate change is real, and is already
having a negative impact on California's water resources. From
reduced snow pack to a rising sea level, warming temperatures
will continue to strain our state's water storage capacity, as
well as posing a threat to millions of acres of farmland.
And as this demand for water supply continues to grow, we
urgently need to invest in and upgrade our water
infrastructure. As a former mayor, I know, from firsthand
experience, that our local government budgets lack the
resources for the planning and permitting of vital projects.
Can you expand on how the NEPA process can streamline the
permitting and planning process across all levels of
government, to ensure that local and state governments can
build projects that increase efficiency and make our economies
more competitive?
Ms. Goldfuss. I guess where I would start, not knowing
specifically which project to address here, that, overall, NEPA
allows state governments, local governments, and Federal
Governments to work together. We do not require duplication of
review or analysis. So what one agency or one entity does can
be used for the overall review, so that the outcome is
appropriate. In large projects, you frequently have Federal
dollars, state dollars, local dollars. You have private
dollars, you have all of this coming together, which makes a
very complicated project that has a major impact on a
community.
So, through NEPA, we are able to make sure it is cited
properly, we are able to work together with all of those
entities, and come out with the best result.
Mrs. Torres. Thus expediting projects, and not having to
duplicate reports.
Ms. Goldfuss. Not having to duplicate reports. And, in the
best outcome, when NEPA is given the appropriate partnership
and analysis, the project leads to a better project, and less
delay, and no litigation.
Mrs. Torres. As the one cited by Mr. Lowenthal. Thank you.
Mr. Clark, some have suggested that this draft guidance is
forcing agencies to use an outdated law--in their opinion,
NEPA--to address something that was seen as a problem when the
law was passed; namely, climate change.
However, the beauty of NEPA is that it is flexible,
adaptable law that was intended to help the government
incorporate new scientific information into the decisionmaking.
Will you please explain why this guidance is appropriate under
NEPA?
Mr. Clark. Thank you, yes. It was this committee who
actually, in much of the hearings about NEPA, was urging to
take account of new and emerging science. It was recognized
that we did not know a lot of things about ecosystems. We
didn't know a lot of things about the environment,
scientifically, that we have learned over 40 years. NEPA itself
has been so flexible to allow the agencies to take into account
new and emerging science. I think that that is where we are
now, and I think that we will learn a lot more about climate as
we go along. I am hoping that the NEPA reviews will actually
help that.
But let me just say that 95 percent of all environmental
reviews are categorically excluded. In a $4 trillion Federal
budget, 95 percent are categorically excluded. About 4 percent
are environmental assessments, which leads to, usually,
findings of no significant impact. And less than 1 percent turn
out to be EISs and a $4 trillion budget.
Mrs. Torres. Thank you, and I yield the rest of my time.
The Chairman. Thank you. Dr. Benishek.
Dr. Benishek. Thank you, Mr. Chairman.
Director Goldfuss, I would like a little bit more
information about your agency. Maybe I just don't understand it
well. Do you advise the Administration on environmental
policies besides the other different, the other agencies? Do
you advise the Administration, as well?
Ms. Goldfuss. Well, the National Environmental Policy Act
created CEQ to advise the Administration--advise the President,
in particular. There are 11 components in the White House. The
National Security Council is one of those that you may be more
familiar with.
Dr. Benishek. Right, right.
Ms. Goldfuss. So we are the Council on Environmental
Quality, responsible for advising the President on----
Dr. Benishek. Right.
Ms. Goldfuss [continuing]. Environmental decision----
Dr. Benishek. Here is my question. This is of great concern
to me, because I just don't understand how it works, to tell
you the truth, because I think Americans have spent billions
and billions of dollars improving our environment here, at
home. But I am somewhat concerned about the fact that we are
adding more and more controls for less and less improvement in
our environment, while we are allowing foreigners to pollute
and put out all kinds of greenhouse gases, other gases,
pollutants, without any restriction from us. And we are
allowing them to out-compete us.
In other words, our steel industry has gone overseas. It is
cheaper to produce steel overseas in some areas that pollute
like crazy. I have been to China, I have been to India, and the
pollution there is unbelievably bad. But we are making stuff so
expensive here that it is--people are going overseas and
actually making more pollution overseas.
Now, do you take any of this kind of economic reality into
account when you advise the President, that some of the laws
that we are actually--by making it easier for foreigners to
compete against us at home, are actually polluting the world
worse than if we did the production here? I mean I am very
concerned about this.
Ms. Goldfuss. Well, Congressman, I would respectfully say
that last week the jobs number came out with an unemployment
rate of 5.4, and we have had 60----
Dr. Benishek. I am not talking about unemployment. I am
talking about----
Ms. Goldfuss. Yes, but we are having a strong economic
recovery now, and----
Dr. Benishek. I can tell you that----
Ms. Goldfuss. I guess I don't agree----
Dr. Benishek [continuing]. The steel industry in this
country is going down the tubes because of foreign competition.
A lot of it is based on the price of energy to produce steel,
which is a lot cheaper in China, which has no pollution
controls on any of the stuff they do. And we, here, are trying
to produce steel in an environment that protects our
environment, and they don't have any of that over there.
So, do you take that into account when you advise the
President----
Ms. Goldfuss. I would also say that we have had an enormous
energy growth in this country over the past several years that
has really carried this economy, that has happened with these
environmental rules and information in place. So these things
can happen at the same time. We can have a strong environment,
and have an economic recovery----
Dr. Benishek. You are denying the fact that our friends
overseas have an economic advantage over us because we are
investing----
Ms. Goldfuss. I am saying that----
Dr. Benishek [continuing]. In our infrastructure to save
the environment, and they are not? You deny that there is any
advantage to that?
Ms. Goldfuss. I am saying that it is important here, in the
United States, that we both have infrastructure that we build,
and we have energy development, and we protect our environment
at the same time. And the American public----
Dr. Benishek. So we don't care what the people across the
globe are doing?
Ms. Goldfuss. [No response.]
Dr. Benishek. I mean I am asking if you are advising the
President about what people around the globe are doing, and
they are not protecting the environment. We are working to
protect our environment. We are arguing about it all the time,
how the best to do it, and there are people overseas that are
not doing a thing to protect the environment----
Ms. Goldfuss. I would say----
Dr. Benishek [continuing]. And they are out-competing us
because of that, in my opinion, to a certain degree. So, do you
advise the President about that? Or what to do about it?
Ms. Goldfuss. I would say that we have--as the United----
Dr. Benishek. You do not advise the President about that
issue, then. Is that what you are saying?
Ms. Goldfuss. I advise the President on making smart
environmental decisions, and we do that in the----
Dr. Benishek. The issue I am asking----
Ms. Goldfuss [continuing]. Complex decisionmaking scheme--
--
Dr. Benishek [continuing]. Is the issue that I mentioned,
the fact that foreigners are not investing enough in their
environmental stuff as we are. Do you advise him on that issue,
in particular?
Ms. Goldfuss. I would say Todd Stern from the State
Department, and members of my team, as well, as we work with
partners----
Dr. Benishek. All right. Well, I guess that is a no.
Ms. Goldfuss [continuing]. Around the globe----
Dr. Benishek. I will yield back.
Ms. Goldfuss [continuing]. To have a strong environment and
a strong economy.
The Chairman. Thank you.
Mr. Polis.
Mr. Polis. Thank you, Mr. Chair.
Director Goldfuss, I come from the town of Boulder,
Colorado. We had unprecedented floods in the year 2013, six
people died and tens--hundreds of millions of dollars in
property damage, public and private. We have seen similar
unprecedented catastrophes across the country and the world,
and science has shown that natural disasters are more common
and more severe and more detrimental than they have been. Might
take longer to conclusively establish that trend, but we have
certainly seen a short-term trend in that direction. And,
whatever you want to call that, it seems we ought to plan for
it.
We have a responsibility to ensure taxpayer-funded
development is done in the most informed and effective way
possible, not only so we can mitigate against any negative
environmental impacts, but so that we can ensure our
communities are prepared for the intensity of future storms or
weather patterns, and are adept in dealing with their effects.
I was hoping that you could speak to weather, and how the
need for Federal consideration of increasingly severe and
threatening weather patterns when considering new developments
went into CEQ's calculus as the guidelines were developed.
Ms. Goldfuss. Yes, I would say that we--certainly within
the guidance, and then more specifically, when we hear from
local mayors and governors who are dealing with the impacts on
their infrastructure and the decisions that they need to make
in their towns, they step away from the politics of it, and
this idea of building more resilient infrastructure, and making
sure taxpayer dollars are spent responsibly is going into their
planning already.
As we look at the guidance, we have two components of it.
One is to incorporate greenhouse gas emissions. The other is
to--in this look-before-you-leap proposal, what information do
we have about where sea-level rise is? If we are in a drought-
stricken area, are there smarter decisions that could be made
about how we build, where we build, and where we spend taxpayer
dollars, so that we are making the smartest decision for the
future?
Mr. Polis. Mr. Clark, it has been argued that the CEQ
guidelines are somehow an overreach of the Council's authority.
To my knowledge, no Federal court has declared things like
increasing temperatures and sea-level rise to be illusionary.
In fact, quite the contrary.
So, with that in mind, it seems like a changing climate is
exactly the kind of occurrence we should be considering as we
review newer additional Federal projects for the purposes of
both the developer, as well as the contracting agency.
I was hoping you could explain to me how the clients you
serve would benefit from adding these impacts to their list of
considerations, as they navigate the Federal Government and the
NEPA process, specifically.
Mr. Clark. Well, I represent some developers. I have
represented developers ever since I left the Administration.
NEPA is about informed decisions, and it is a structure and a
framework to consider what you are about to do. All of the
discussions about whether or not we ought to consider this or
not, there are many things that we consider within a NEPA
context.
I would advise my clients to start with--see if this is
categorically excluded, because, as I said, 95 percent of
everything is categorically excluded right now.
Number two, then, I would say that we would integrate low
emissions into everything that we buy, and everything we build.
I would make sure that we prepared the Environmental Impact
Analysis at a more programmatic level, because that is a more
efficient way to go about doing the analysis in this project-
by-project approach.
And then, I would advise them to scope it so that the
discussions are proportional to the impacts we are talking
about in a programmatic way.
Then I would say, ``Don't go out and gather new data. There
is so much data out there right now that you can borrow, steal,
and buy, data that is out there that has been tested.'' So--to
make this a more efficient way to go about doing it.
Finally, I would say, ``Don't speculate about anything.''
Mr. Polis. Would you think that there are some dangers to
not including these impacts on a list of considerations with
regard to the Federal Government and NEPA?
Mr. Clark. Well, I think the CEQ's guidance really does
help the agencies in a lot of ways, because rather than
expanding NEPA, or rather than expanding the CEQ reach, they
are actually trying to put some boundaries around how the
agencies go about doing it. And I think that, in the end, it
will lead to a much more efficient way to go about doing it.
That is one of the reasons I support the CEQ guidance.
Mr. Polis. Thank you. I yield back the balance of my time.
The Chairman. Thank you.
Mr. Gosar.
Dr. Gosar. Mr. Clark, did I just hear you say you wouldn't
take new data in?
Mr. Clark. I am sorry. The question was?
Dr. Gosar. Did I just hear you answer my colleague that you
wouldn't take new data in, because there is so much data out
there, floating around, you have plenty of it?
Mr. Clark. I would say that I would, first of all, see if
there is data out there, and there is much data that is
existent. It is existent in NASA, it is existent in
universities across the country. It is existent in many
agencies who have already generated it.
Dr. Gosar. Oh. Well, please explain to me, then, cancer
research. Because you can't get enough data.
I am going to take another question for you. Are you
familiar with the Paleozoic Era and the Mesozoic Era?
Mr. Clark. [No response.]
Dr. Gosar. I mean, once again, you have to learn from your
past to go forward. And when we make these comments, you have
to be held accountable.
Do you know that 80 percent of all marine life in the
Paleozoic Era went extinct? Was there climate change there?
Absolutely. Unlike my colleague from Texas that said four
seasons, climate change has been happening without man forever.
Geology tells us that. Would you not agree, Dr. Christy?
Dr. Christy. Well, yes, and especially about the droughts
in California. That is where I started building my data sets,
as a native of California. And it turns out that California has
experienced droughts hundreds of years long, not just four.
Dr. Gosar. And part of the problem is--I am from Arizona,
by the way, OK? So we invested in infrastructure. We built dams
for reserves, we actually put water in the ground. We bank. So
we are better off than California is, that keeps flushing water
because they haven't built those processes.
Ms. Goldfuss, my colleague over there talked about these
court cases, the Federal court cases, 2701. You are very
familiar with that, right? Those 2701 court cases in the
Federal courts, right?
Ms. Goldfuss. I am not familiar with the details of each of
those cases.
Dr. Gosar. But you are following the court cases.
Ms. Goldfuss. We--yes.
Dr. Gosar. And you are advising the President on that.
Ms. Goldfuss. We are looking at what is coming out of those
court cases, yes.
Dr. Gosar. Who has the highest legal opinion in the land?
Would it be the Supreme Court?
Ms. Goldfuss. I believe that is true, yes.
Dr. Gosar. So why would you be advising the President in
going forward even at all from another agency called Waters of
the U.S.? We have four Supreme Court rulings that defy EPA from
going there. I find it kind of contradicting that we are citing
when we want to cite, but then, on the other hand, we don't
cite the Supreme Court ruling, the highest of the land of the
Federal courts, in that jurisdiction. I find that kind of
interesting, don't you?
Ms. Goldfuss. Well, the Supreme Court cases that we have on
Waters of the U.S. are less than clear. And we have been given
the tall task of clarifying what----
Dr. Gosar. But what that means is that you need to come
back to Congress to work the law. Wouldn't you agree, Mr.
Martella?
Mr. Martella. Right. And, on Waters of the United States, I
would probably disagree with Director Goldfuss. I think that
there are things that the Administration is proposing on those
that are flatly inconsistent with what the Supreme Court has
directed, and the Supreme Court is the highest law of the land,
in terms of those directions.
Dr. Gosar. Yes. Now, let's go back to the NEPA. I mean NEPA
is not really transparent.
I am from rural America. By the way, I have had to deal
with the Forest Service. So it has been--in Arizona,
catastrophic fires, I have had to deal with them, 19
firefighters dying in the Prescott and Yarnell fire, the Wallow
fire, the largest fire in Arizona history. There are
consequences in these aspects, and I am one of those pushing
that we have to do something different.
We don't know a lot about ecosystems, because we have
gotten it wrong, particularly in Arizona. We know some of the
things, but we are off on a lot of these aspects.
The timetable for NEPA--and time is money. I am a dentist,
by the way, so very calibrated. Do you know it takes, like, to
infinity and beyond in rural America to get a NEPA done? Would
you address that, Ms. Goldfuss?
Ms. Goldfuss. Yes. I would say that, when it comes to NEPA
timelines, as Mr. Clark referenced earlier, more than 90
percent of the NEPA decisions are categorical exclusions, which
happens in a week or two.
Dr. Gosar. Oh, I----
Ms. Goldfuss. And then----
Dr. Gosar. I have to stop you right there. So the
categorical exclusions. But let's focus on the ones that
actually go through. Those are the cases that are most
important, because once you get that niche, everything becomes
non-categorical exclusions, because NEPA applies all the way
across the board. Does it not, then?
Ms. Goldfuss. I am afraid I don't understand the question.
Dr. Gosar. I have run out of time, so I will have more for
you to follow. Thank you.
Ms. Goldfuss. Thank you.
The Chairman. Mr. Westerman.
Mr. Westerman. Thank you, Mr. Chairman. I have a question
for Director Goldfuss.
You did state rather emphatically, and included in your
written testimony, that carbon pollution is the biggest driver
of climate change. You know, that obviously is debatable. It
has been debated here quite a bit today. But I want to go past
that, and I want to pretend with you that carbon is arch enemy
number one. And I want to talk through some of the issues in
your draft, because I believe, as proposed, your calorie
counter will make the atmosphere fat with carbon and defeat
your purpose to reduce carbon.
I have a fitness app on my phone. I think it is called
Fitness Pal. So if we had a CEQ app on our smartphone called
Carbon Pal, how would it register current management of Federal
lands? Would it show that they are sequestering more carbon?
More of a sync? Are they more of an emitter?
Ms. Goldfuss. Well, the truth on that is I don't have the
exact calculations. And we have many tools that look at
specific case-by-case decisions. So that is what we would do in
the case of CEQ.
Mr. Westerman. So how would you say it would rank with
privately managed land?
Ms. Goldfuss. I don't have those estimates.
Mr. Westerman. So not even an idea of whether privately
managed lands sequesters more carbon, or publicly managed land?
So we really don't know what is going on there with our carbon
sequestration on Federal lands.
You--assuming in your position you are familiar with the
carbon--photosynthesis, the way that works, how when we----
Ms. Goldfuss. Yes.
Mr. Westerman. Trees pull carbon dioxide out of the air,
and that is what makes them grow, and everything. Probably also
familiar with the biological growth curve, how the younger
something is, the faster it grows. So, naturally, the faster it
is growing, the more carbon it is pulling out of the air.
My concern is, in reading through this draft, that some of
the recommendations that you would be making might cause
forestry managers, or other managers of public lands, to stop
some of their forestry management practices because of this
concern of emitting too much carbon, which--prescribed burn is
a method to manage land. Also, harvesting.
I am also concerned that people who are in the biomass
energy business, they will get left out because somebody will
interpret this to say biomass is really not carbon neutral. How
would you address those concerns?
Ms. Goldfuss. First, I understand, and we understand, that
the land sector is different. Each of these decisions will have
to be made on a case-by-case basis, and we will have to analyze
the short- and long-term impacts of the climate cycle. So, I
completely understand what you are saying, in terms of how we
assess that, and there are tools and data sets that allow us to
do that.
What was the second part of your question?
Mr. Westerman. Well, my question was, really, how do you
prevent your data from being used wrongly, so that the
renewable fuels business--that biomass isn't considered a
renewable fuel because somebody says, ``Well, you cut down
trees to make biomass, or you cut down any kind of vegetation
to make biomass, you are increasing the carbon load,'' when, by
science, we know that--back to that growth curve. When
something grows back, it is pulling out more carbon out of the
atmosphere than what was actually cut.
Ms. Goldfuss. So this guidance would just advise the Forest
Service or any agency to use the available data to make the
decisions on a case-by-case basis. So, with the appropriate
science, they should be able to make a decision and get to the
right place.
Mr. Westerman. I think you are correct, if we are using
appropriate science. But what I am hearing from the field is
that people who manage land on national forests are concerned
that they are not going to be able to manage the land any more,
which is going to cause it to slow down its growth. It is going
to cause it to be more susceptible to wildfire, which is going
to, in the end, have catastrophic wildfire that puts more
carbon into the atmosphere.
So, I just have a real concern that the way these rules are
proposed, it is going to ultimately add to more carbon in the
atmosphere, which, if you follow your statement, would be
detrimental.
Ms. Goldfuss. Based on the specific land section we have in
the guidance, it is our hope to work with agencies that that
would not be the case. We want to make this to work for them,
and they can apply it on each decision, to the best of their
ability.
Mr. Westerman. I am out of time, Mr. Chairman.
The Chairman. Thank you.
Jim, do you need more time, or are you ready?
Mr. Costa. I am ready.
The Chairman. Mr. Costa, you are recognized.
Mr. Costa. Thank you very much, Mr. Chairman, and members
of the committee, for holding this hearing, although I must say
that I find the discussion somewhat mind-numbing. Having been a
part of similar hearings in the past, I can give the talking
points for both sides.
I want to make some comments and an observation, and then I
don't know if any of our witnesses would care to respond. Dr.
Christy, who is here, actually he and I went to Fresno State
University together just a few years ago, so I know him to be,
obviously, well versed in his subject field.
But the themes, obviously, from my Republican colleagues,
is that NEPA delays or prohibits development of projects on
Federal lands, and it fosters litigation. And I believe some of
that is true, there is no doubt about it. Of course, my
Democratic colleagues point out that NEPA provides an
opportunity for public input, it is a tool for the
environmental justice, it saves money--sometimes, maybe, not so
sure--and that the Obama administration is making an effort to
modernize it--although that is in the eye of the beholder, of
course.
Recently, effort on the actions to update to administrative
guidance is the subject of six separate updates for guidance
since 2010. Generally, the goals of NEPA, I think, are
laudable. Public disclosure, increased access for communities
most impacted by Federal action, that is laudable.
Unfortunately, its litigation tools have provided an
opportunity for some stakeholders to delay Federal action, and
to litigate, litigate, and litigate--forcing Federal agencies
to try to create these bullet-proof documents that are never,
ever possible, it seems.
So, I guess my observation, or my comment, is this, and
that is that the Majority continues to attack NEPA. I am not so
sure it is helpful, in terms of changing it. The Minority's
wholehearted endorsement, without recognizing the challenges,
both in the statute itself, and, most importantly, how it is
being utilized in the real world, I think, are equally
unhelpful.
So, what Congress ought to be doing is working together on
a bipartisan fashion to look at this after 45 years. President
Nixon signed this into law in January 1970, a good Republican
president. And, clearly, in 45 years, we have a lot of case
history as to what we think has worked, and what are the
problems with the current NEPA process. That is my comment and
my observation, and that is why I find, once again, this
discussion in this committee to be somewhat mind-numbing.
So, I don't know if any of the witnesses care to respond.
Mind-numbing, that is when you numb the mind after you hear,
and hear, and continue to re-hear talking points that both
sides are very good at giving. I describe that as mind-numbing.
So that is my observation, those are my comments, and I don't
care--I mean I care, I would like to hear, I guess, if the
witnesses have any instructive--instructive--comments on how we
might get past our talking points.
Ms. Goldfuss. So, Congressman Costa, thank you for that. I
know at CEQ--and we work with our colleagues at OMB and other
areas around the Executive Office of the President--we are
trying hard to modernize NEPA. And that does mean getting
appropriate timelines, working through technology tools to help
the agencies. When we come up against big projects that we know
will be difficult, we try to start out with a cooperative
approach with agencies all coming together.
But, yes, these can be difficult discussions, and I think
your point about making it work, and modernizing it, is
something that we have been trying to do in this Administration
as much as possible.
Mr. Costa. The graduate of Fresno State University have any
insights?
Dr. Christy. This is more of a political discussion, but I
will say that it was just a few years ago we graduated, wasn't
it? But for the coming rainy season, I will pray for rain for
California.
Mr. Costa. And I am praying every day.
Mr. Clark. Congressman Costa, I would say that--and I have
talked about this for a very long time--I think the management
of the NEPA process really needs the scrutiny of this
committee. It is not the National Environmental Policy Act that
needs the scrutiny. It is, in my view--it is constitutional in
nature, and it is fine.
The management of the NEPA process, though, could use a lot
of oversight. And----
Mr. Costa. That is where you think we ought to focus.
Mr. Clark. That is where the focus really needs to be. You
have one person at CEQ right now who is trying to do oversight
for all of the Federal agencies and a $4 trillion budget. So, I
would urge you to take a look at the way the process is
managed.
Mr. Costa. My time is expired. Thank you, Mr. Chairman.
Thank you, Ranking Member.
The Chairman. You did say that mind-numbing is a social
cost of carbon, right?
[Laughter.]
The Chairman. Mr. Hice.
Mr. Costa. It could be viewed that way.
The Chairman. Yes, OK. Mr. Hice.
Dr. Hice. Thank you, Mr. Chairman.
Dr. Christy, I know you said it perhaps in jest a little
bit, but I would agree that prayer is probably the most
effective thing we can do for a drought. We certainly can't
legislate the rain to come.
Mr. Gosar brought this up a while ago, about one of the
purposes of NEPA is transparency. The draft guidance suggests
that agencies incorporate the social cost of carbon into the
NEPA review documents. Just your opinion, was the social cost
of carbon created in a transparent manner, Dr. Christy?
Dr. Christy. I would say no. It is very difficult to
untangle the kinds of models that are there, and virtually
impossible to reproduce exactly what is there. And that is
fundamental to any kind of oversight you have. Can you
independently reproduce the outcome of such a thing? And then
you understand how it works.
But I just know in the part I deal with, on the climate
part, that the input of that is already wrong, because it is
based upon the climate models I showed are, basically,
invalidated.
Dr. Hice. So you are saying there are problems with the
social cost of carbon?
Dr. Christy. Oh, absolutely, yes.
Dr. Hice. All right. With that train of thought, is the
social cost of carbon based solely on domestic costs, or does
it include global?
Dr. Christy. That I would not be able to answer right off
the bat.
Dr. Hice. OK. Does anyone have the answer to that?
Mr. Martella. My recollection is it does incorporate
transnational impacts as well as----
Dr. Hice. It does?
Mr. Martella. That is my best recollection.
Dr. Hice. OK. Mr. Martella, I will just let you continue
this question, since you brought that up. Since agencies really
cannot consider global impacts into NEPA analysis, how are they
supposed to extrapolate the foreign costs from the social cost
of carbon?
Mr. Martella. Well, I think you are right on the
proposition. It gets back to my theme, that while my dispute is
not with, if this is my project, not with assessing the
greenhouse gases of this project. My dispute is that the
guidance goes much further, and says we have to look not just
at this project, but all the downstream effects, and all the
upstream effects.
So, if we limited the emissions to the direct, indirect,
cumulative impacts of the project, as CEQ has always said in
its regulations, we wouldn't have a transnational issue. It is
only because of this downstream, upstream, and the
incorporation of social cost of carbon that triggers these
transnational concerns.
So, again, I would urge CEQ, as they revise the guidance,
to limit it, consistent with the regulations, and not go beyond
the scope of the regulations.
Dr. Hice. Yes, and they can't go beyond the scope of the
regulations. So what is the point of dealing with it from a
global perspective, period? We have a major problem there.
Back to you, Dr. Christy. Just from your perspective, how
large would a project really have to be before it would have a
direct impact on the environment or a climate change?
Dr. Christy. Well, as we calculated the number, the project
would have to be bigger than the entire economy of the United
States of America.
Dr. Hice. So it is not going to happen, in your opinion.
Dr. Christy. In my opinion that would not happen. I hope it
doesn't happen.
Dr. Hice. All right, and then you add into the equation no
ability for us to control foreign governments when it comes to
them being involved with these environmental policies.
What in the world would we have to do to have a significant
impact on climate change?
Dr. Christy. The climate is always going to be changing.
Right now it looks like the effect of the enhanced greenhouse
gases that we are putting into the atmosphere is pretty minor,
and difficult to even extract from the way the natural climate
system works.
I just look at numbers when we talk about the evidence
here, and I don't see anything happening in the rest of the
world that is going to change their means of getting energy,
because carbon-based energy is the energy that powers the
world. It lifts people out of poverty. That is not going to
stop, no matter what the United States does.
Dr. Hice. Well, you have created a computer program that
creates weather simulations. Is that correct?
Dr. Christy. Not right now, no. I take output from computer
models.
Dr. Hice. OK. You take output from computer models. How
long has that been taking place, these models?
Dr. Christy. The modeling, really, has gone on for 50 years
for these global climate models. They are very expensive now,
they are very complicated. I can't see a lot of improvement,
though, in----
Dr. Hice. Have they been peer reviewed?
Dr. Christy. OK, yes.
Dr. Hice. OK.
Dr. Christy. They are peer reviewed quite often.
Dr. Hice. OK, thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you. Let me ask a few questions, if I
could, here.
Ms. Goldfuss, first of all, just tell me if you agree with
this statement. The National Environmental Policy Act, or NEPA,
is a procedural statute that requires an environmental review
regarding major Federal actions significantly affecting the
quality of human environment.
Ms. Goldfuss. I do.
The Chairman. So, it is a procedural statute. NEPA, then,
is a look-before-you-leap statute that then requires an agency
to take a hard look at the environmental consequences of the
qualifying action.
OK, so far?
Ms. Goldfuss. [Nonverbal response.]
The Chairman. The agency's scope review under NEPA is
limited by the requirement that the effects or impacts of the
proposed action be reasonably foreseen in statute. And for
indirect effects or impacts, they must be approximate cause of
the proposed action.
Ms. Goldfuss. Yes.
The Chairman. We are still together so far.
Ms. Goldfuss. Yes.
The Chairman. So you agree, then, that the scope of NEPA is
not unlimited.
Ms. Goldfuss. Yes.
The Chairman. The rule of reason limits NEPA analysis to
environmental information of use and relevance to the agency.
In other words, the rule of reason, as interpreted by the
courts, means that the agency cannot evaluate an environmental
effect or impact where the agency has no ability to prevent a
certain effect, due to its limited statutory authority over the
relevant actions.
So, would you agree, then, that the draft guidance is bound
by the limitations we just mentioned?
Ms. Goldfuss. Yes, it is bound by those limitations, and we
have the ability to measure the greenhouse gas emissions of
projects.
The Chairman. So that the draft guidance cannot suggest an
agency go beyond the statutory jurisdiction in its NEPA
analysis.
Ms. Goldfuss. Correct.
The Chairman. So, if the draft guidance is not withdrawn,
there will be a clarification that an agency cannot perform a
NEPA environmental review beyond its statutory jurisdiction
limits, or the limits imposed by the courts?
Ms. Goldfuss. Are you--I have lost you now.
The Chairman. Obviously, the first question is--I would
prefer you withdraw----
Ms. Goldfuss. Yes.
The Chairman [continuing]. The guidance. But, if not, there
will be a clarification the agency cannot perform its NEPA
environmental review beyond the statutory jurisdictional
limits?
Ms. Goldfuss. I guess I am not sure why that would be
needed. I mean the guidance does not change the underlying
scope of the statute, and that would be true of any guidance
that we put out. So, stating that it doesn't go beyond the
underlying statute would not be necessary.
The Chairman. OK. Let me--and that, I think, is
significant, where that jurisdiction becomes.
Let me ask just a couple of quick questions of individuals
who are here.
Mr. Martella--well, actually, let me ask all of you. All of
you mentioned talking about the downstream and upstream
requirements in this guidance, that there is a need for
clarification. Do I have any disagreement that what is upstream
and downstream should be clarified in some way? I think, Ms.
Goldfuss, you said you would look at that.
Ms. Goldfuss. Correct.
The Chairman. I hope you do it.
Mr. Martella?
Mr. Martella. Agree.
The Chairman. Dr. Christy?
Mr. Clark, I think you mentioned that, as well?
Mr. Clark. I agree.
The Chairman. Mr. Martella, the social cost of carbon, is
that easily definable?
Mr. Martella. It is not. I don't think any one person could
define it. As pointed out earlier, companies have different
versions of it. The challenge here is a government has
developed its own version of it, which has not been made
transparent, has not gone through all the public participation
processes that are so inherent in NEPA.
The Chairman. Well, as much as I have difficulty with
trying to define that term, as well--maybe, Dr. Christy, I can
ask you the same thing. Obviously, weather is different than
climate. Is climate definable in the absolute or the historic?
Dr. Christy. We have all kinds of information about what
has happened in the past, so we have some sense about where we
are at the present, and what changes are--how they relate to
the past.
The Chairman. Well, I think many people, when they talk
about climate, they actually think of weather, so that when it
was raining back when I was back in Utah, and it was sunny
here, in the 80s, and my friends were sending me pictures of
them at the beach and I was upset about it, that is not the
same thing.
Dr. Christy. I think one of the real problems here is that
weather events that get so much attention because of video
availability, and so on, are somehow linked to this global
climate change movement, when droughts, floods, all these
things have always been going on.
The Chairman. But it seems, also, that this climate issue
is pretty irrelevant, if there is no legal authority to act
upon it, anyway.
Dr. Christy. That would be up to you all to determine. I
don't know about legal----
The Chairman. Let me just ask you, yes or no. I have 20
seconds left. Do you believe these guidances will produce more
or less litigation in the future, based on these guidances?
Ms. Goldfuss, more or less?
Ms. Goldfuss. Less.
The Chairman. Mr. Martella?
Mr. Martella. Significantly more, and especially while it
is still hanging out there.
The Chairman. Dr. Christy?
Dr. Christy. I don't know.
The Chairman. That is cheating.
[Laughter.]
The Chairman. Mr. Clark?
Mr. Clark. There is litigation, there will be litigation
now, absent this guidance. This guidance will help reduce that.
The Chairman. All right. I think, for my--he left? OK. For
my final question, then--do you have any more questions, Mr.
Grijalva?
Mr. Grijalva. One.
The Chairman. Go ahead.
Mr. Grijalva. Thank you, Mr. Chairman. One of the witnesses
claimed that a key slide has been unchallenged, and I would
like unanimous consent to enter into the record several peer-
reviewed articles and reports that essentially debunk the
contents and the methodology of that slide.
Those are for the record, six articles, including the Royal
Society, the U.S. National Academy of Sciences, on and on and
on. And I would enter those into the record, if there is no
objection.
The Chairman. Without objection.
Mr. Grijalva. Thank you. The other is the question about
the consensus around science, the 97 percent that is, the
consensus deniers are saying that that is not true, that it is
less than that, that it is the consensus--the information put
forward is a defense of that robust number of that 97 percent
that--the consensus on the basis of human-caused global
warming, and basically, after continued analysis of the
protocols, of the methodology, and reviewing everything that
has been brought up as questions by deniers of this consensus,
reaffirming that that 97 percent is correct.
In addition to that, studies--the National Academy of
Science, 33 different countries, all endorsing this consensus,
dozens of scientific organizations have endorsed the consensus.
And only one has rejected the consensus, the American
Association of Petroleum Geologists. Interesting. And even they
have now shifted to neutral, when their members threatened to
quit the organization if they continued to take such an
unscientific position.
I mentioned those, and that, as well, into the record, with
no objection.
Then my final question, Mr. Chairman, is for Ms. Goldfuss.
Thank you very much for being here. Dr. Christy stated earlier
that we shouldn't worry about sea-level rise caused by global
warming, but scientists and economists estimated last year that
sea-level rise was responsible for an additional $2 billion in
impacts to New York City. Other places across the country, like
Virginia's Chesapeake Bay counties, and the Louisiana coast,
are similarly at risk.
Doesn't it make sense to ensure that government at least
isn't making the problem worse by buying a building, allowing a
project to go forward, building flood protection where it is
not going to do any good, and waste taxpayers' dollars? Isn't
this the whole point of this guidance?
Ms. Goldfuss. Yes. All politics aside, we see local
communities making these decisions on their own with the
information that we can provide and that they have on their
own.
As protectors of taxpayer dollars, it is our responsibility
to recognize the climate is changing. This guidance will help
us make smarter, more informed decisions, so that we don't
waste taxpayer dollars, and that we have a stronger future.
Mr. Grijalva. I yield back, and thank you, Mr. Chairman.
The Chairman. Thank you. Let me ask, then, my last couple
of questions, if I could. And since there was--I was going to
object to the articles that were put in, because I also have
three articles that discuss the 97 percent claim and the
problems with it, about the consensus of the climate. So, with
unanimous consent, I would like to put those in the record, as
well.
This is going to be an entire magazine before we are done
with this record.
Ms. Goldfuss, when do you expect these recommendations,
your recommendations, to be finalized?
Ms. Goldfuss. I don't have an exact date. We are looking
through the comments now. But we are working to do it swiftly.
The Chairman. Mr. Martella, does not having an exact date
present a problem?
Mr. Martella. It creates a problem, both for the agencies
and for the courts. One of the risks here is, during the
interim period, right now--we will go back to our hypothetical
Forest Service. They are looking at this draft guidance, and
they are doing work right now. If the guidance changes again in
another revision, then they have already invested in something
that is going to change. That is going to create more
vulnerability for the courts.
The Chairman. All right. That is very helpful. There is one
thing that just nags at me, though, that I would really like to
do. You mentioned that you were born the year that NEPA passed.
Mr. Martella. About 6 months later.
The Chairman. And signed by President Nixon?
Mr. Martella. That is correct.
The Chairman. Who is doing penitence for it on the other
side, already.
[Laughter.]
The Chairman. One of the things we ought to do, in all
sincerity, is, instead of coming up with simple guidances, is
simply reform NEPA so that we include this in statute, so it is
very clear, and it goes through the congressional process, so
they have input from every side in the congressional process,
and we actually just fix the statute, as opposed to writing
more regulations and more guidance. That is the proper approach
to it. That should be the legislative approach to it. And it
actually provides better opportunity for people to have input
than simply providing comments.
In the future, that is one of the areas we should be
looking toward, and that is one of the reasons why we will have
more discussions on NEPA, as a document itself, going forward
in the future. It needs to be revised in some way to fit the
reality of today.
With that, I would like to thank the witnesses for coming
here, and for providing the testimony that you have given. I
appreciate it all. As we said, I appreciate your staying for
almost 2\1/2\ hours to go through this process. Unfortunately,
we did not have a chance to have every Member give questions
that they had, but we will be working with that.
Those Members who may have additional questions, or were
not able to ask questions, can submit them in writing for the
record. And, under Rule 4(h), this hearing record will be open
for 10 business days. We would ask, if those questions come
forward, that we be able to get responses from you for those
particular questions in a timely manner.
And, with that, if there is no further business, with, once
again, my expression of gratitude for you being here today,
without objection, the committee stands adjourned.
[Whereupon, at 12:38 p.m., the committee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Prepared Statement of the Hon. Grace F. Napolitano, a Representative in
Congress from the State of California
There is overwhelming scientific consensus on climate change. Over
97 percent of scientists that study the climate agree it is driven by
human activity. Ignoring climate change will not make it go away.
California's 32nd Congressional District has already experienced more
severe wildfires, intense heat waves and an ongoing drought due to
change in climate. It is important we work proactively to reduce the
effects of climate change moving forward. I would like to introduce two
articles for the record regarding climate change:
The first was published in the New York Times on April 28, 2015 and
is titled ``Air Pollution Tied to Brain Aging.'' It discusses the link
between air pollution and the premature aging of the brain.
The second was published on ScienceTimes.com on April 28, 2015 and
is titled ``Extremely Hot Days--Why One Study Is Saying that Global
Warming is to Blame.'' It discusses how extreme heat events will now
occur in about 4 or 5 out of every 1,000 days. They used to only occur
1 out of every 1,000 days.
These articles were submitted for the record and are being retained in
the Committee's official files.
______
Prepared Statement of the Hon. Gregorio Kilili Camacho Sablan, a
Delegate in Congress from the Northern Mariana Islands
Mr. Chairman--Ask anyone in the Northern Mariana Islands today
about the value of the National Environmental Policy Act of 1969 and I
think you will find resounding support. Because today we are in the
middle of reviewing a proposed expansion of activity by the U.S.
military on property already leased from us on the island of Tinian and
on public lands on the island of Pagan, where up until now the military
has had no presence. If it were not for NEPA, the military might never
have had to explain their plans to the public or estimate what the
costs would be to our environment and way of life. And were it not for
NEPA, the public would have had little or no opportunity to comment or
criticize or question the impact of the military's plans.
Today's Natural Resources Committee hearing is intended to show
that the National Environmental Policy Act is being abused by the
Administration's new guidelines on inclusion of climate change effects
in environmental reviews. Some members of the committee may say this is
one more example of how NEPA stifles freedom.
I would disagree. It is true that NEPA review can be complex,
tedious, slow. But most of the people I represent in the Northern
Mariana Islands would say they appreciate the complexity and the
thoroughness of the environmental impact statement that NEPA required
the military to prepare for its proposed actions on Tinian and Pagan.
Many of the people I represent, including the Governor of the
Commonwealth and other elected officials, even argue that the process
should be slower, should allow more time for the public and for
technical and scientific experts to review the military's actions,
which could have long-lasting and profound impact on our community.
Public meetings on Tinian and on the island of Saipan have been
very well attended and the military will now have to take into
consideration the comments of hundreds of residents, as well as the
more formal responses from our government entities. But neither the
lengthy exposition of the military's plans and the impacts of those
plans contained in the draft EIS nor the opportunity for public review
and comment might have occurred without the National Environmental
Policy Act of 1969. This Act declaring that it is our national policy
to protect our environment has stood the test of time. NEPA has proven
its worth by forcing the Federal Government to explain the consequences
of its actions in a way that must be thorough and transparent. And NEPA
has proven its worth by empowering ordinary American--like my
constituents today--to stand up to their government and say no, when
government threatens to take actions that could damage our environment,
or, as I call it, our home.
______
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
Submitted by Chairman Rob Bishop:
Global Warming Alarmists Caught Doctoring `97-
Percent Consensus' Claims--Forbes
The Myth of the Climate Change `97%'--Joseph Bast
& Roy Spencer
About that overwhelming 97%-98% number of
scientists that say there is a climate consensus--
Anthony Watts
Submitted by Ranking Member Grijalva:
UAH Misrepresentation Anniversary, Part 1--
Overconfidence--SkepticalScience.com
The Reproducibility of Observational Estimates of
Surface and Atmospheric Temperature Change--Science
Lapse in Understanding, This Week in Science--
Science
The Effect of Diurnal Correction on Satellite-
Derived Lower Tropospheric Temperature--Science
Satellite measurements of warming in the
troposphere--SkepticalScience.com
Santer et. al Catch Christy Exaggerating--
SkepticalScience.com
Fact Sheet for human and natural influences on the
changing thermal structure of the atmosphere--
Published in the Proceedings of the U.S. National
Academy of Sciences
Use of Internal Carbon Price by Companies as
Incentive and Strategic Planning Tool--CDP North
America
Christy's Unconvincing Congressional Testimony--
SkepticalScience.com
The Cook et al. (2013) 97% Consensus Result is
Robust--SkepticalScience.com
Extremely Hot Days--Why One Study is Saying that
Global Warming is to Blame--Sciencetimes.com
Air Pollution Tied to Brain Aging--The New York
Times
Radiosonde Daytime Biases and Late-20th Century
Warming--Science
Climate Change Evidence & Causes--The Royal
Society and the U.S. National Academy of Sciences
Submitted by Representative Lowenthal:
Letter to CEQ Managing Director Christy Goldfuss
re: GHG Guidance
Submitted by the White House Council on Environmental Quality:
NEPA Modernization Efforts--The Last Five Years
[all]