2017 Articles

Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA Review

Burger, Michael; Wentz, Jessica A.

Recently, legal controversies have arisen regarding the scope of greenhouse gas emissions that should be considered in environmental reviews of fossil fuel extraction and transportation proposals under the National Environmental Policy Act (NEPA). The key question is whether and how agencies should account for emissions from activities that occur “downstream” from the proposed action, such the combustion of fossil fuels, and emissions from activities that occur “upstream” of the proposed action, such the extraction of fossil fuels. This Article argues that such emissions do typically fall within the scope of indirect and cumulative impacts that must be evaluated under NEPA, and provides recommendations on how agencies should evaluate such emissions in environmental review documents.