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94–721 PDF 2015

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DRAFT GUIDANCE FOR GHG 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 

( 

Available via the World Wide Web: http://www.fdsys.gov 

or 

Committee address: http://naturalresources.house.gov 

(II) 

COMMITTEE ON NATURAL RESOURCES 

ROB BISHOP, UT, Chairman 

RAU ́ L M. GRIJALVA, AZ, Ranking Democratic Member 

Don Young, AK 

Louie Gohmert, TX 

Doug Lamborn, CO 

Robert J. Wittman, VA 

John Fleming, LA 

Tom McClintock, CA 

Glenn Thompson, PA 

Cynthia M. Lummis, WY 

Dan Benishek, MI 

Jeff Duncan, SC 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Doug LaMalfa, CA 

Bradley Byrne, AL 

Jeff Denham, CA 

Paul Cook, CA 

Bruce Westerman, AR 

Garret Graves, LA 

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 

Grace F. Napolitano, CA 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Gregorio Kilili Camacho Sablan, CNMI 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

Jared Huffman, CA 

Raul Ruiz, CA 

Alan S. Lowenthal, CA 

Matt Cartwright, PA 

Donald S. Beyer, Jr., VA 

Norma J. Torres, CA 

Debbie Dingell, MI 

Ruben Gallego, AZ 

Lois Capps, CA 

Jared Polis, CO 

Vacancy 

Jason Knox, Chief of Staff 

Lisa Pittman, Chief Counsel 

David Watkins, Democratic Staff Director 

Sarah Parker, Democratic Deputy Chief Counsel 

(III) 

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. Rau ́l 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 

(1) 

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 

2 

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.’’ 

3 

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 

4 

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, programby-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. RAU ́ L 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 

5 

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:] 

6 

PREPARED STATEMENT OF THE HON. RAU ́ L 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 

7 

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:] 

8 

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-yearold 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 

9 

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 sealevel 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 

10 

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 reanalyze 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. 

11 

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 environVerDate Mar 15 2010 09:11 Oct 30, 2015 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6602 J:\114TH CONGRESS\FULL COMMITTEE\05-13-15\94721.TXT DARLEN
12 

mentally 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 calorieintensive 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. 

13 

1 42 U.S.C. § 4331(a). 

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. 4One 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. 

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

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

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

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 

14 

5See the results when entering 25,000 metric ton CO2 equivalents in the calculator at http:// 

www.epa.gov/cleanenergy/energy-resources/calculator.html. 6One example is the compendium of tools available at https://ceq.doe.gov/current_ 

developments/GHG_accounting_methods_7Jan2015.html. 

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. 

• 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

• 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 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 

15 

7Letter 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. 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. 

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

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. 

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, 

16 

9 CEQ annual litigation surveys are available at https://ceq.doe.gov/legal_corner/ 

litigation.html. 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. 12DOE Lessons Learned Quarterly Report, September 2013, available at http://energy.gov/ 

nepa/downloads/lessons-learned-quarterly-report-september-2013. 

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. 

• 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

• 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 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

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 

17 

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. 14See 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, 

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 

• Improve the efficiency of the NEPA process overall by integrating planning 

and environmental reviews, avoiding duplication in multi-agency or multigovernmental reviews and approvals, engaging early with stakeholders to 

head off possible future delays, and setting clear timelines for the 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 

18 

2012). See also, Notice of Final National Environmental Policy Act Implementing Procedures, 

77 FR 47862 (August 8, 2012). 15See ‘‘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). 16See ‘‘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). 

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-ofway 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. 

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. 

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 

19 

17http://www.fema.gov/unified-federal-environmental-and-historic-preservation-reviewpresidentially-declared-disasters. 

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. 

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-thefact 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. 

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 

20 

18https://www.whitehouse.gov/sites/default/files/docs/ceq_nepa_pilots_conclusion_ 

recommendations_jan._2015.pdf. 

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: 

• 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 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 postdecision 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.] 

21 

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. 

22 

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. 

23 

1The views expressed here are that of the author and are not intended to represent the views 

of Sidley Austin LLP or its clients. 

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 LLP1

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 

24 

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. 

25 

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. § 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. §§ 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. 

§ 4332(C). 

To complete this analysis, an agency must consider the direct, indirect, and cumulative effects of the proposed action 40 C.F.R. §§ 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. §§ 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. 

26 

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. 

27 

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 

28 

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. §§ 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 exVerDate Mar 15 2010 09:11 Oct 30, 2015 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 J:\114TH CONGRESS\FULL COMMITTEE\05-13-15\94721.TXT DARLEN
29 

ample, 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-TheSea 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. § 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. §§ 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 

30 

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 

31 

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. § 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. § 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. 

32 

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, 

33 

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 

34 

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).] 

35 

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). 

36 

Above: 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. 


94721.001.eps
37 

Above: 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. 


94721.002.eps
38 

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. 

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. 

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. 


94721.003.eps 94721.004.eps
39 

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. 

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) 


94721.005.eps 94721.006.eps
40 

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. 


94721.007.eps
41 

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 modelaverage 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 perVerDate Mar 15 2010 09:11 Oct 30, 2015 Jkt 000000 PO 00000 Frm 00045 Fmt 6633 Sfmt 6621 J:\114TH CONGRESS\FULL COMMITTEE\05-13-15\94721.TXT DARLEN

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42 

haps 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 

43 

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. 

44 

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. 

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. 


94721.009.eps
45 

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). 

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. 


94721.010.eps 94721.011.eps
46 

Question 5. Weather balloon and satellite-based estimates of tropospheric temperature change have evolved in important ways as scientists have identified nonclimatic 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 guidVerDate Mar 15 2010 09:11 Oct 30, 2015 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6602 J:\114TH CONGRESS\FULL COMMITTEE\05-13-15\94721.TXT DARLEN
47 

ance 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 

48 

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 

49 

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. 

50 

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 

51 

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—— 

52 

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—— 

53 

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 

54 

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 

55 

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 

56 

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 

57 

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. 

58 

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 

59 

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 

60 

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? 

61 

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 

62 

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 

63 

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 

64 

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. 

65 

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 wellmixed, 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. 

66 

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 

67 

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 coalfired 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. 

68 

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. 

69 

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 81⁄2 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 repurposed 5 miles using existing tracks, rather than build the entire 

81⁄2 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. 

70 

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 

71 

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 

72 

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 

73 

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—— 

74 

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, 

75 

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 

76 

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. 

77 

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. 

78 

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-bycase 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 

79 

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, 

80 

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. Mindnumbing, 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 

81 

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. 

82 

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 carbonbased 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. 

83 

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 

84 

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. 

85 

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. 

86 

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 21⁄2 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 

87 

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 

88 

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 

89 

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 

Æ