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Courts are waking up to the cost of climate change

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When considering the costs and benefits of a fossil fuel project — from building a single pipeline to expanding some of the biggest coal mines in the country — how much consideration should be given to the project’s eventual contribution to climate change-causing carbon emissions?

That’s a question that has plagued regulators, environmental groups, and courts for years. But this summer, in the span of a month, four different decisions came to the same conclusion: when deciding whether or not to allow a fossil fuel project to move forward, you have to take into consideration how the project will impact carbon emissions — even if those emissions would be released far from the boundaries of the project in question.

At the high level, this wave of court decisions is an indicator that courts are pushing for accountability, and a true accounting of climate and public health costs of these projects,” Mary Anne Hitt, director of the Sierra Club’s Beyond Coal Campaign, told ThinkProgress. “That is going to be a big challenge to Trump’s anti-climate science and pro-polluter agenda.”

The wave of decisions began in mid-August, when a U.S. District Judge blocked a proposed expansion of an underground coal mine in Montana, arguing that the Office of Surface Mining (OSM) failed to properly consider how the proposed expansion would impact climate change. Environmental groups argued — and the court agreed — that OSM focused primarily on alleged economic benefits of the expansion, like local taxes, while refusing to use any metric to analyze the harm that the expansion would cause.

The OSM, in effect, put its “thumb on the scale by inflating the benefits of the action while minimizing its impacts,” the court ruled.

Weeks later, the D.C. Circuit Court vacated permits for an entirely different fossil fuel project on similar grounds. It found that the Federal Energy Regulatory Commission (FERC) had failed to adequately consider how construction of the Sable Trail pipeline — which would run from Alabama to Florida — would result in more greenhouse gas emissions from the burning of natural gas. As a result, the court ruled that FERC, which has been notably loathe to consider the climate impacts of various projects, had to redo its assessment.

It was a win for pipeline opponents who have long argued that FERC acts as little more than a rubber stamp for fossil fuel projects. A recent investigation from the Center for Public Integrity lends credence to those claims, finding that the regulatory body has only rejected two pipeline proposals in the last 30 years.

Then, in a surprising twist, the Tenth Circuit Court of Appeals, a conservative-leaning courtruled in mid-September that the Bureau of Land Management (BLM) had improperly calculated the climate impacts of expanding several federal coal leases in Wyoming’s Powder River Basin, forcing the agency redo its environmental impact study. The court found that BLM’s assertion that there was essentially no difference between approving the expansion of the leases — which include two mines that produce about 20 percent of the country’s coal used for electricity generation — and rejecting the leases; if the expansion were rejected, BLM reasoned, the same amount of coal would simply be mined elsewhere.

Environmental groups argued that BLM’s analysis was a willful misreading of the economics of the energy market, because if the expansions were not granted and less coal was extracted from those mines, utilities would turn to cheaper, and less carbon-intensive options, like natural gas or renewables.

If you take a significant amount of a commodity on the market, you are probably going to change the price of that commodity,” Nathaniel Shoaff, a senior attorney with the Sierra Club and one of the attorneys that argued the case before the 10th Circuit, told ThinkProgress. “That’s not surprising. If the price of milk suddenly goes up, people are going to buy less milk.”

Three days later, a state board in Washington overturned two key permits that had been issued for a massive methanol project along the state’s Columbia River, finding that the project’s environmental impact study had not properly considered its greenhouse gas emissions. And like they had done following the three previous decisions, environmentalists cheered the finding, calling it a win for advocates who have long argued that agencies needed to take a broader approach to their consideration of climate impacts.

“You can’t build a massive fossil fuel project like this and pretend that the impacts end at the property line,” said Nathan Matthews, staff attorney for the Sierra Club, told Oregon Public Broadcasting.

As individual cases, each decision represents a notable — albeit, small — barrier for each of these fossil fuel projects. The National Environmental Policy Act (NEPA), a cornerstone of environmental law that requires agencies to analyze the environmental impacts of major projects, is a notoriously broad statute. Under NEPA, agencies simply have to conduct an honest accounting of the costs and benefits of a particular project; they are not necessarily required to pick the most cost-effective outcome. As a result, any of the projects in question ostensibly could still move forward once agencies redo their environmental assessments to more fully account for the costs of climate change impacts.

But environmental experts and attorneys who worked on the cases see the decisions, when taken together, as a sign of something potentially much larger than individual projects — they see the realization, at least in the judicial branch, that the costs of climate change can no longer be ignored by federal agencies.

“In some unexpected places, you’re seeing the courts say ‘these projects just can’t go forward unless there is honest accounting of public,’” Sierra Club’s Hitt said. “It seems like a striking development that courts are pushing for true accounting and accountability, and it seems like it’s going to loom larger and larger to what Trump is trying to accomplish.”

One place these court rulings could have particular influence is in the Trump administration’s freeze of the Department of the Interior’s review of the federal coal leasing program, which the Obama administration created to make sure that the program included a full accounting of the financial and environmental costs to taxpayers. Part of the Trump administration’s argument for freezing the review was ostensibly that an overarching review was not needed because individual leases are required to undergo environmental studies under NEPA — an argument that Sierra Club attorney Shoaff says is seriously undermined by the recent court decisions, especially the two concerning coal lease expansions.

According to Shoaff, the assumption that expanding a coal mine would have no impact on greenhouse gas emissions because coal would simply be mined elsewhere is “appears in every single federal coal lease” that he has seen. And since two courts recently ruled that such an assumption is based on a faulty understanding of energy markets and economics, that could spell legal trouble for federal coal leases moving forward.

We just invalidated the assumption that is baked into every single federal coal leasing environmental impact statement,” Shoaff said. “So if the government wants to point to the climate impact it does, it’s going to be pointing to faulty analysis every single time.”

The legal requirement that agencies conduct a full accounting of the costs — and benefits — of a particular proposal could also undermine the administration’s attempt to roll back the Clean Water Rule, an Obama-era rule that tried to define the legal scope of the Clean Water Act. In arguing for the rule’s repeal, the EPA’s economic analysis failed to consider the benefits of leaving the rule in place — things like the increased protection for wetlands, which could generate between $306 and $501 million annually. Environmental groups have already expressed their intent to challenge the rule-making process once the repeal is made final.

Generally, Shoaff says, the recent spate of court decisions shows that the judicial branch isn’t willing to separate economic realities from agency’s decisions about climate and the environment.

Agencies aren’t going to be allowed to just disown the climate impacts of what they are doing by claiming that it’s not going to have any influence on the marketplace,” he said. “They are no longer just going to be able to dodge this question. At some point, the agency is going to have to answer this.”

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