Noelle Straub of Greenwire reported on Friday at The New York Times Online that, “A top Obama administration official yesterday defended a
new draft proposal that will require federal agencies to consider
climate change during environmental analyses of proposed projects as ‘straightforward, common-sense guidance.’

“Under the draft guidance released yesterday by the White House Council on Environmental Quality, agencies
will have to consider greenhouse gas emissions and climate change
effects when carrying out National Environmental Policy Act reviews.
CEQ will take public comment for 90 days on the proposal.”

Friday’s article added that, “‘I think there was really no
question that there are environmental effects associated with climate
change, and how could we not have that as part of agencies’ thinking as
they look at their NEPA obligations and looking at environmental impacts?’ Sutley told E&E. ‘I think what we’ve tried to craft is some very straightforward, common-sense guidance.’

“Agencies will need to look at emissions that may be produced by projects such as a landfill or coal-fired power plant. They also must consider climate change effects on projects — for example, whether plans for infrastructure along the coast would need to change due to projected sea level rise.”

Washington Post writer Juliet Eilperin added additional perspective on the CEQ development in an update posted on Thursday at the Post Carbon Blog: “NEPA,
a 40-year old law, requires the federal government to evaluate the
environmental impact of any activity it takes part in or sanctions, whether it’s providing funds for a highway or allowing snowmobile riders into Yellowstone National Park.”

Ms. Eilperin noted that, “Nancy Sutley, Chair of the White
House Council on Environmental Quality, said the move represented an
attempt to modernize the landmark federal law. ‘Our country
has been strengthened by the open, accountable, informed and
citizen-involved decision-making structure created by NEPA,’ Sutley
said. ‘We are committed to making NEPA workable and effective,
and believe that these changes will contribute significantly to both
goals.'”

As the executive branch fosters NEPA application with respect to
climate change issues, some have openly speculated and suggested that
the law should be applied to the Farm Bill.

On Friday, an article published at the Harvard Law & Policy Review Online, titled, “Forty Years After NEPA’s Enactment, It Is Time for a Comprehensive Farm Bill Environmental Impact Statement,” indicated that, “Also among the losers are the industries and individuals that experience the negative
environmental impacts of U.S. farm policy, including diminished water
and soil quality, decreased biodiversity, dwindling freshwater
resources, and increased greenhouse gas (GHG) emissions. This
article addresses these damages and the failure of federal agencies to
observe a law that might provide some measure of transparency,
level-headed comparative analysis, and perhaps even mitigation: the
National Environmental Policy Act of 1969 (NEPA).”

The law journal article (full copy available here) stated that, “This
article describes how and why federal agencies should subject the Farm
Bills to the EIS [environmental impact statement] process by focusing,
as an illustration, on the impacts best analyzed by existing research:
those caused by corn overproduction and perpetuated by recent corn and
ethanol subsidies. Part I describes current Farm Bill programs with demonstrated causal links to environmental and socioeconomic damages.
Part II lays out the applicable standards for a NEPA challenge to a
legislative enactment. The authors prefer and advocate for a voluntary
EIS but acknowledge that applying NEPA to the next Farm Bill may take
more than persuasion. Part III, therefore, develops a
litigation strategy and concludes that the 2012 Farm Bill represents a
ripe opportunity to turn to NEPA for science-based reform.”

However, at the conclusion of the article, the authors stated that, “The legal principles articulated here make clear that litigation is a viable option with a reasonable chance of success.
Of course, plaintiffs must be selected, legal arguments crafted, and
target programs of NEPA litigation chosen with care given the parties
that may perceive a threat from the EIS process, such as corporations
that profit from the cheap inputs provided by current farm policy. The
authors present these arguments in the hope that litigation will prove
unnecessary. Relevant agencies in the Obama Administration may voluntarily initiate an EIS for the next Farm Bill.”

Chris Clayton
provided additional perspective and analysis of the law journal
article, the NEPA issue, and the Farm Bill in an update posted
yesterday at the DTN Ag Policy Blog: “Still, the point of the article is critical.
NEPA requires that federal agencies conduct environmental impact
statements before enacting any legislation that could significantly
impact the environment. Citing subsidies for commodity crops
that aid to increase production, and subsidies for ethanol in the farm
bill that have the same effect, the article maintains there is a strong
legal case to be made in federal court against USDA on the 2008 farm
bill because USDA does not conduct environmental impact statements on
rules coming out of the farm bill.”

Mr. Clayton added that, “USDA actually did get into trouble
in 2008 by attempting to loosen the rules on haying and grazing
Conservation Reserve Program land without conducting an environmental
impact statement. Wildlife groups took USDA to federal court
in Seattle and won an injunction stopping USDA from continuing the
program. The Harvard L&PR article makes the case that an
environmental impact statement should have been conducted because of a
reduction in CRP acreage in the farm bill and the environmental impact
because, according to the article, most of that acreage goes into corn,
which then turns into ethanol. Such changes, the article states, lead
to more hypoxia and soil erosion, as well as impacts on increased
greenhouse gas emissions. The argument is made that NEPA requires a
comprehensive review of the 2008 farm bill. Further, the article states
who could be potential litigants in a case against USDA over the farm
bill. While such a court case likely would not translate into
significant changes of policy for the 2008 farm bill, the article
states that such legal action could shape the outcomes of the 2012 farm
bill.”