AquAlliance v. U.S. Bureau of Reclamation

The federal district court for the Eastern District of California held that more analysis of the impacts climate change would have on a water transfer program for the Sacramento/San Joaquin Delta was required under NEPA. The court ruled, however, that the California Environmental Quality Act (CEQA) did not require additional climate change analysis. The plaintiffs had challenged the CEQA “baseline” for “fail[ing] to account for ongoing increases in global temperatures,” but the court found that the plaintiffs did not develop the argument “in any serious way” and said it would not “manufacture an argument where none is made and where none exists.” With respect to the analysis of impacts associated with climate change, the court noted the general rule under CEQA that an environmental impact report need not evaluate the impacts of the environment on a project and found that the plaintiffs had not met their burden of identifying evidence that the project would “exacerbate” climate change impacts. Under NEPA, however, the court said the parties appeared to be in agreement that climate change’s impact on the project needed to be considered. The court found that the final environmental impact statement/report (FEIS/R) disclosed predicted declines in snowpack and streamflow due to climate change but failed to explain why the declines would not have significant impacts. The decision also addressed a number of non-climate change claims under NEPA, the Endangered Species Act, CEQA, and other state law.

The federal district court for the Eastern District of California asked the parties to a challenge to a water transfer program for the Sacramento/San Joaquin Delta to submit supplemental briefing on three issues related to the incorporation of climate change into the baseline used in the environmental review of the proposed program. The environmental review was conducted pursuant to both the National Environmental Policy Act (NEPA) and California Environmental Quality Act. The court asked the parties to address what record evidence supported the final environmental impact statement/report’s “apparently contradictory decision not to adjust the project baseline to reflect changes in water supply conditions projected to result from climate change” in light of the record evidence projecting such impacts. The court also asked for discussion of the extent to which existing modeling approaches incorporated foreseeable climate change impacts into the baseline. In addition, the court asked for briefing on the extent to which NEPA still imposed a responsibility to incorporate reasonably foreseeable climate change impacts into the baseline given the Trump administration’s withdrawal of the Council on Environmental Quality NEPA climate change guidance. (The court refers to the 2010 CEQ draft guidance, not the final 2016 guidance.)