Special Report: As Case Law Evolves, Agencies Should Consider Conducting GHG Emissions Analyses for Transportation Projects, Steve Higgs, Bill Malley (Published April 2011, AASHTO Climate Change Weekly Briefing). Transportation agencies increasingly are faced with determining how or whether to consider greenhouse gas emissions when planning and developing transit and highway construction projects. This article, written by Steve Higgs and Bill Malley of Perkins Coie LLP in Washington, D.C., reviews relevant case law and notes that while there is no legal requirement to consider GHG emissions in environmental impact statements for such projects, it is possible - even likely - that future court decisions may require such analysis. The authors suggest that project sponsors give careful consideration to including a GHG emissions analysis as part of the environmental impact review for transportation projects.
Special Report: Climate Change Analysis in NEPA Documents: What Can We Learn from Recent Court Decisions in Non-Highway Cases?, Bill Malley, Perkins Coie LLP, Published July 25, 2012, AASHTO Climate Change Briefing. Case law interpreting the extent to which environmental documents for highway projects must include an analysis of greenhouse gas emissions has remain unchanged since a federal court ruling in 2010 upheld the Federal Highway Administration's approach. In this second analysis article, author Bill Malley, an attorney with Perkins Coie LLP, reviews recent case law involving other federal agencies' consideration of GHG emissions in NEPA documents. The article suggest that courts will be satisfied with a relatively low level of detail of GHG emissions in a NEPA document, as long as the federal agency explains the global nature of the problem and describes the project's GHG emissions in relation to that global problem. However, the direction of the case law could easily change in the coming years if federal agencies require more intensive analysis of GHG emissions.