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NEPA Review of Climate Change

May 2016

Citation: ELR 10378

Author: Barry Kellman

The 2014 Draft Guidance issued by the White House Council on Environmental Quality (CEQ) has substantially increased understanding about how NEPA can contribute to informed consideration of the accelerating impacts of climate change. But the magnitude of NEPA’s contribution depends on how thoughtfully courts address questions that are among the most perplexing in environmental jurisprudence. This Comment addresses these questions in light of recent case law that illuminates when and how to consider climate change. Cases from federal appellate and district courts are exposing several conceptual fissures in the application of NEPA obligations to climate change. The author concludes that while substantial progress has been made to optimize NEPA’s contribution to the U.S. climate change response, the first wave of lower court decisions concerning NEPA’s requirements in this context perpetuates ambiguities as to what federal agencies must do—ambiguities that might be dangerous to leave unresolved.

Barry Kellman is a professor at DePaul University College of Law and director of the International Weapons Control Center.

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