Flooding and sea level rise in the United States is projected to become more frequent and severe due to climate change. Such climate events increase the risk of chemical spills into the environment, which disproportionally impact the health of low-income communities and communities of color. Despite international agreement that climate change is an immediate threat that endangers human health and the environment, the United States does not have a national climate policy, but rather a few bedrock environmental laws where climate policy is mentioned. The National Environmental Policy Act (NEPA) is one such law. NEPA includes a provision for the creation of an Environmental Impact Statement (EIS) for major federal actions. The EIS creates an avenue for creative lawyers to challenge damaging oil and chemical projects in court with the claim that the EIS discussion of environmental impacts and alternatives is inadequate. Such a challenge delays and often ends projects that would otherwise contribute to climate change and harm environmental justice communities. This prompts two questions: first, what is the importance of considering climate and environmental justice in NEPA’s commenting process; and second, how to challenge a proposed chemical or fossil fuel project through the NEPA’s EIS commenting process based on climate and environmental justice claims. This paper addresses these questions by examining an Earthjustice comment on a proposed liquified natural gas complex in a floodplain in Louisiana, which demonstrates how to successfully challenge a project due to a lack of analysis on climate and environmental justice impacts. This paper concludes that analysis of climate and environmental justice is critical to protect human health and the environment, and the prevention and delay of these projects will help fight against climate change. While an agency does not have to follow the path advocates argue for, political pressure created from points raised in the comments or the time it takes an agency to properly address concerns in the comment in a changing energy market may end an action. The paper additionally concludes that to challenge an EIS for lack of climate analysis there are legal hooks in NEPA, the Clean Air Act, and the Federal Emergency Management Agency rules, and to challenge an EIS for lack of environmental justice analysis, there are legal hooks in NEPA and Title VI of the Civil Rights Act. Finally, the path ahead must address a Trump-era rule that restricts EIS analysis.
NEPA’s Teeth: How to Challenge Chemical and Fossil Fuel Complexes Using a Climate and Environmental Justice Argument, 27 Hastings Envt'l L.J. 145
Available at: https://repository.uchastings.edu/hastings_environmental_law_journal/vol27/iss2/6