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Records of the White House Office of Cabinet Affairs (George H. W. Bush Administration)
Paul Korfonta Subject Files
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Originally Processed With FOIA(s):
FOIA Number:
2017-0310-F
2017-0310-F
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the George Bush Presidential
Library Staff.
Record Group/Collection: George H.W. Bush Presidential Records
Collection/Office of Origin: Cabinet Affairs, White House Office of
Series:
Korfonta, Paul, Files
Subseries:
OA/ID Number:
07692
Folder ID Number:
07692-026
Folder Title:
Global Climate Change
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G
15
13
4
climate
Document No.
CA
OFFICE OF CABINET AFFAIRS STAFFING MEMORANDUM
Date: 6-20-90
Due by:
Subject: Memo for Grady -- Climate Change Litigation
From: Juanita Duggan
ACTION CONCUR FYI
ACTION CONCUR FYI
BATES
JACKSON
DANZANSKY
MCBEE
ADAIR
SCHALL
BUCHHOLZ
WETHINGTON
D'ANDREA
WILLIAMSON
DEWITT
YALE
DUGGAN
EVANS
FARRAR
HEIMBACH
Comments:
complete packge
in fils already (suattaded
staff Sheet in bork)
THE WHITE HOUSE
WASHINGTON
June 20, 1990
MEMORANDUM FOR BOB GRADY
FROM:
STEVE DANZANSKY
SUBJECT:
Climate Change Litigation
You will remember that we met in April to discuss Dick
Stewart's concerns about widely varying litigation
positions on climate change adopted by the Departments
and Agencies. At that time, it was agreed that OMB,
through its management function, would provide a
mechanism for coordinating the positions taken by the
Departments regarding their activities' affect on climate
change.
Please let me know ASAP your plans to implement such a
mechanism or if Cabinet Affairs can be of any assistance
to you.
THE WHITE HOUSE
WASHINGTON, DC
Date: june 20
FROM: juanita Duggar
ACTION
FYI
ACTION
FYI
TO:
Holiday
Jackson
Danzansky
McBee
Adair
McMunn
Buckholz
Wethington
D'Andrea
Williamson
Duggan
Yale
Evans
Farrar
Heimbach
Comments:
please even and make
changes sign.
THE WHITE HOUSE
WASHINGTON
Date: June 19, 1990
TO:
Juanita Duggan
FROM:
STEPHEN I. DANZANSKY
Deputy Assistant to the President
and Director of Cabinet Affairs
Please prepare a memo from me to Grady
asking for action as promised on providing
a coordinative mechanism. See me for more
information.
Document No.
CA
OFFICE OF CABINET AFFAIRS STAFFING MEMORANDUM
Date: 6-11-90
Due by:
Federal Agencies and their relationships with global climate change
Subject:
From:
Barry McBee
ACTION CONCUR FYI
ACTION CONCUR FYI
BATES
JACKSON
DANZANSKY
MCBEE
ADAIR
SCHALL
BUCHHOLZ
WETHINGTON
D'ANDREA
WILLIAMSON
DEWITT
YALE
DUGGAN
EVANS
FARRAR
HEIMBACH
Comments:
THE WHITE HOUSE
WASHINGTON
Steve:
Discussed the attached with Dave Gibbons. He
has not pushed this concept further at all,
intentionally so, on the premise that the
Administration does not yet have a position
that global warming exists and will have any
adverse consequences, so why should we require
federal entities to take note of the effects
of their actions in this area? The motivation
for proceeding with an executive order on this
issue, which was the antecedent of this proposal,
was that the Hill was about to require this
anyway and this would be a "first strike".
Dave notes that the Hill has lost momentum
on the issue, so this rationale is weakened
significantly. Dave also noted that the OMB
circular process, which would be a substitute
for the cumbersome executive order process,
is itself not a very fast procedure and could
take several months - this is a fact he may not
have shared with anyone else and should be
kept close hold.
Let me know if you want further info.
Barry
U.S. Department OI Justice
Land and Natural Resources Division
POSTITIA
Office of the Assistant Attorney General
Washington, D.C. 20530
May 2, 1990
COVER MEMORANDUM
TO:
Robert E. Grady
David M. Gibbons
Office of Management & Budget
THRU:
C. Boyden Gray
Counsel to the President
FROM:
Richard B. Stewart RRS
Assistant Attorney General
In light of the issues set forth in the enclosed
memorandum, I believe it quite important that OMB, as agreed at
our meeting of April 9, promptly initiate a process for guidance
and coordination of the activities and positions of federal
agencies regarding the relations between their programs and
potential global climate change, or consider other avenues for
such coordination. Please let me know when we can assist in this
effort.
CC: D. Allan Bromley
Stephen I. Danzansky
Michael Deland
Theresa Gorman
Richard Schmalensee
Document No.
CA
OFFICE OF CABINET AFFAIRS STAFFING MEMORANDUM
Date: 6-11-90
Due by:
Federal Agencies and their relationships with global climate change
Subject:
From:
Barry McBee
ACTION CONCUR FYI
ACTION CONCUR FYI
BATES
JACKSON
DANZANSKY
MCBEE
ADAIR
SCHALL
BUCHHOLZ
WETHINGTON
D'ANDREA
WILLIAMSON
DEWITT
YALE
DUGGAN
EVANS
FARRAR
HEIMBACH
Comments:
THE WHITE HOUSE
WASHINGTON
Steve:
Discussed the attached with Dave Gibbons. He
has not pushed this concept further at all,
intentionally so, on the premise that the
Administration does not yet have a position
that global warming exists and will have any
adverse consequences, so why should we require
federal entities to take note of the effects
of their actions in this area? The motivation
for proceeding with an executive order on this
issue, which was the antecedent of this proposal,
was that the Hill was about to require this
anyway and this would be a "first strike".
Dave notes that the Hill has lost momentum
on the issue, so this rationale is weakened
significantly. Dave also noted that the OMB
circular process, which would be a substitute
for the cumbersome executive order process,
is itself not a very fast procedure and could
take several months - this is a fact he may not
have shared with anyone else and should be
kept close hold.
Let me know if you want further info.
Barry
U.S. Department of Justice
Land and Natural Resources Division
Office of the Assistant Attorney General
Washington, D.C. 20530
May 2, 1990
COVER MEMORANDUM
TO:
Robert E. Grady
David M. Gibbons
Office of Management & Budget
THRU:
C. Boyden Gray
Counsel to the President
FROM:
Richard B. Stewart RRS
Assistant Attorney General
In light of the issues set forth in the enclosed
memorandum, I believe it quite important that OMB, as agreed at
our meeting of April 9, promptly initiate a process for guidance
and coordination of the activities and positions of federal
agencies regarding the relations between their programs and
potential global climate change, or consider other avenues for
such coordination. Please let me know when we can assist in this
effort.
CC: D. Allan Bromley
Stephen I. Danzansky
Michael Deland
Theresa Gorman
Richard Schmalensee
* FOIA Exempt -- Litigation Sensitive *
May 1, 1990
MEMORANDUM
SUBJECT: Update on Agency Evaluations of Impacts on Climate
Change
The issue of potential global climate change is
appearing with increasing frequency in federal agency evaluations
of their programs' environmental impacts, in comments made by
outside parties on those evaluations, and in litigation over such
evaluations. More attention to climate change by the various
federal agencies can be expected in the future.
Absent government-wide coordination, these agency
evaluations will continue to proliferate and at times to diverge
from one another. For example, some agencies may report that
climate change will occur and is the foreseeable result of their
activities, while other agencies will dispute either or both of
those propositions. Disparate viewpoints among and even within
agencies are already apparent. Private litigants are pressing
for increased attention to climate issues in agency evaluations;
courts are being asked to resolve the scientific questions.
Without a coordinating guide for agencies to follow, it is
relatively clear that agencies will differ in their public
statements and litigating positions, unnecessarily expressing
discordant views on issues of significant concern to the
Administration and to the public.
In addition, it would be desirable to collect, on a
coordinated basis, information and analysis which agencies have
or will develop regarding the relations between their programs
and global climate change. Among other matters, this material
would assist in the appropriate treatment of climate change
issues under NEPA, and the formulation of the U.S. position in
international discussions regarding potential international
agreements on climate change.
* FOIA Exempt - Litigation Sensitive *
- 2 -
1. Pending litigation.
(a)
In Foundation on Economic Trends V. Watkins, Civ. No.
89-1483-GHR (D.D.C.), plaintiffs have alleged that the programs
of the Energy, Interior and Agriculture Departments are in
violation of NEPA because the NEPA statements (such as
Environmental Impact Statements or EISs) that were prepared for
those programs failed to address the programs' possible impacts
on climate change, and have not been supplemented to do so. The
set of programs and NEPA documents challenged is potentially
enormous; the plaintiffs have not identified them with much
specificity.
The government faces several risks in this litigation.
(1) Collecting the numerous NEPA documents and, if ordered to do
so, supplementing them, could be expensive and time-consuming.
(2) The scientific issues of climate change -- its likelihood,
its anthropogenic causes, the impacts of federal programs on
climate, and the foreseeability of these events -- could be
decided by the judge. Indeed, at a status conference in
February, the judge remarked that there was great debate over the
science of climate and that "I guess the court will have to
resolve it." Other judges in similar suits in the future could
be similarly emboldened. Yet the evolving and highly complex
science of climate is particularly inappropriate for "resolution"
by lay judges. (3) The three defendant agencies may approach the
case from different perspectives. Already USDA has begun
developing a statement that it wants to publish in the Federal
Register as an agency-wide answer to the questions posed by this
litigation, asserting that climate change is too uncertain and
too distantly related to USDA activities (such as forest
management) to be a foreseeable impact requiring evaluation under
NEPA. DOE is likely taking a different view, having already
asserted in state court lawsuits (see below) that climate change
is a foreseeable outcome of individual nuclear power plant
shutdowns. DOI has not yet expressed a clear view on the
science. Agency statements on a high-profile issue such as
climate change that are inconsistent with each other (and
potentially inconsistent with other Administration statements)
could prove troublesome and embarrassing; without intruding on
the scientific judgments of experts, some coordination could be
brought to the determinations that each agency makes on whether
NEPA requires evaluation of climate impacts. (4) The court could
render a variety of decisions. At worst, the court could find
the NEPA documents inadequate and enjoin all further work on
these programs -- that is, order the three agencies to stop all
their activities -- until the NEPA documents are supplemented to
the court's satisfaction. Alternatively, the court could decide
to enjoin selected programs (presumably those most clearly
related to impacts on climate), to require supplementation of
* FOIA Exempt -- Litigation Sensitive *
- 3 -
existing NEPA documents without an injunction, to require any new
NEPA documents to consider climate, or to hold that no evaluation
of climate is required at all. The court could also decide to
remand the substantive issues to the agencies for hearings and
review, affording the agencies the first opportunity to decide
the substantive scientific questions and then leaving to the
court only the question of whether the agency decision, as judged
on the agency's record of hearings and opinions, was not
arbitrarily reached.
The defendants' motion to dismiss the suit on standing
grounds was denied on February 12, 1990. The case is now in the
process of discovery. The judge instructed the parties to begin
discovery promptly and to meet again in his chambers in July. We
have filed our first round of discovery requests, seeking to
clarify the specific programs and NEPA documents the plaintiff is
challenging. We have not yet received discovery requests from
the plaintiffs. We anticipate that the plaintiffs may ask us to
identify all the NEPA documents that mention climate change, and
then seek summary judgment as to those that do not. The question
on summary judgment will likely be whether new scientific
information gained since the NEPA documents were prepared raises
sufficient concern about the foreseeability of climate change
impacts due to the federal program to which the NEPA document
relates that the agency should supplement its NEPA document. The
proof and defense of this proposition could require expert
witnesses such as climatologists to be questioned in depositions
about the state of climate science and whether the government
should examine its impacts on climate change. It is also
conceivable that this case could result in a public trial at
which each side, using scientific expert witnesses, argues such
issues as whether climate change is foreseeable.
(b)
Similar suits are likely to be brought against other
programs of these and other agencies. For example, at an
academic conference in February, a public interest group attorney
mentioned his intention to sue the Federal Highway Administration
for failure to conduct NEPA evaluations of climate change
impacts.
(c)
In Dollard V. Long Island Power Authority, No. 4307-89
(N.Y. Sup. ct., County of Albany; Travers, J.), a suit in New
York State court under the New York version of NEPA, the Energy
Department (represented by the Civil Division of the Justice
Department) has intervened to argue that the Shoreham nuclear
power plant should not be shut down without an evaluation of the
environmental impacts of that action. DOE has argued that New
York's State Environmental Quality Review Act (SEQRA) requires
consideration of the environmental impacts of shutdown including,
* FOIA Exempt -- Litigation Sensitive *
- 4 -
among others, the impacts on climate change of shifting from
nuclear to fossil fuel energy generating plants. The Declaration
of Deputy Secretary of Energy W. Henson Moore asserts that:
If Shoreham is completely replaced by fossil-fired
plants, emissions of
carbon dioxide would
increase.
...
carbon dioxide is one of the
'greenhouse' gases that some scientists believe is a
major contributor to possible global climate change.
Replacement with oil-fired capacity would produce
additional emissions of
3 million tons of carbon
dioxide
per year.
There is no practical
way of neutralizing the carbon dioxide emitted by a
fossil-fuel plant.
The chief concern with added
carbon dioxide burden is its potential contribution to
climate change. Global climate change may alter
weather patterns, disrupting food crops and other
vegetation, as well as negatively affecting wildlife
distribution patterns. It may cause sea levels to
rise, destroying coastal wetlands, valuable property,
and entire communities. The effects of carbon dioxide
on the atmosphere will be long lasting, because
emissions result in a net accumulation.
The
damage would
hurt millions of people in other
parts of the State and Nation.
Decl. of W. H. Moore, Aug. 11, 1989, at 6-7 pars. 8-9. Later his
declaration argues:
Increased emissions of carbon dioxide from the
necessary fossil-fired replacements plants will
increase 'greenhouse' gases in the atmosphere. These
gases have been potentially linked to adverse global
climate changes, including global warming, as discussed
in paragraphs 8 [quantifying carbon dioxide emissions]
and 9 [describing harms of climate change].
Decl. of W. H. Moore, Aug. 11, 1989, at 15-16 par. 22. Moore
therefore asks the court to require evaluation of these impacts
under SEQRA. The claims made against DOE by the plaintiffs in
FOET V. Watkins (above) are substantially the same: that DOE
programs, such as the Fossil Energy Program and the Clean Coal
Technology program, add carbon dioxide to the atmosphere and
therefore must be evaluated under NEPA.
(d)
DOE has also made a similar statement to the state
court in New Hampshire in an effort to dissuade the court from
staying the issuance of a full power license to operate the
Seabrook nuclear power plant. DOE argues in a declaration by
Secretary of Energy James D. Watkins that among the environmental
impacts of a stay would be continued emissions of carbon dioxide
from fossil energy sources, "which is one of the 'greenhouse'
gases that some scientists believe is a contributor to possible
* FOIA Exempt -- Litigation Sensitive *
- 5 -
global climate change." Decl. of J. Watkins, March 9, 1990 at 7.
2. Agency comments on other agencies' NEPA statements.
Offices of the U.S. Forest Service proposing individual
timber sales have been informed by regional offices of the EPA
that the NEPA statement to be issued in connection with the
timber sale should address the impacts on climate change of
cutting the timber. Under NEPA and its case law, the EPA
comments require a response by the Forest Service; EPA's comments
could give aid and comfort to private litigants seeking to block
timber sales. The Forest Service is concerned that evaluations
would be inappropriate under NEPA because the impact of
individual timber sales on ultimate climate change phenomena is
not foreseeable.
3. Evaluations undertaken voluntarily by agencies.
As described above in connection with the FOET case,
the Department of Agriculture is developing a statement for
possible publication in the Federal Register. The statement
would describe the current state of scientific understanding of
climate change and the relation of human activities to climate
change. The statement would argue that the science is too
uncertain to link individual projects (such as forest timber
sales) to foreseeable impacts on global climate, and that any
consideration of climate impacts would therefore need to be
program-wide or possibly agency-wide. The statement would also
describe USDA programs relevant to climate, including research on
the ability of trees to sequester carbon and the ability of crops
to adapt to climate change.
The National Highway Traffic and Safety Administration
(NHTSA) of the Department of Transportation, as part of its
upcoming programmatic EIS for its rulemakings under the Corporate
Average Fuel Economy (CAFE) program, is planning to evaluate the
impacts of the CAFE program on emissions of greenhouse gases,
chiefly carbon dioxide. In each of its last two environmental
assessments of CAFE rules, covering 1992-94 models of light
trucks (published in 1990) and 1989-90 models of automobiles
(1988), NHTSA made an estimate of the carbon dioxide emissions
that would be entailed by the rulemaking.
The Department of Energy's Bonneville Power
Administration will apparently address potential climate change
* FOIA Exempt - Litigation Sensitive *
- 6 -
impacts of its "Non-Treaty Storage Agreement" in a forthcoming
environmental assessment. DOE has also indicated its intention
to address climate change in forthcoming NEPA documents. (We
have also heard that the Department of Energy may be considering
conducting a full agency-wide environmental review of all its
activities, ostensibly pursuant to NEPA; it is not yet clear
whether that review would cover potential impacts on climate.)
4.
Extraterritorial Application of Environmental Impact
Assessments
Efforts are underway on several fronts to expand the
& requirements of environmental impact assessments pertaining to
projects with environmental impacts outside the United States.
Under Executive Order 12114, which requires federal agencies to
examine the environmental impacts abroad of their major federal
actions, the main requirements of NEPA are already applicable to
many extraterritorial impacts. EO 12114 contains reservations
that limit its scope: for example, it provides that "votes and
other actions in international conferences and organizations" are
exempt from its coverage, and states that "nothing in this Order
shall be construed to create a cause of action."
Congress is considering legislation to codify and
expand those requirements. For example, H.R. 1113, which would
make NEPA formally applicable to major federal actions having
extraterritorial impacts, has passed the House and a related bill
is soon to be considered by the Senate (S. 1089). H.R. 1113
would require CEQ to promulgate regulations providing guidance
for agencies to assess the effects, including cumulative effects,
of federal actions on "matters of international environmental
concern" including global climate change, ozone layer depletion,
loss of biological diversity, and transboundary pollution. H.R.
1113 as passed contains no exemptions for votes in international
fora, although it does provide that the regulations issued by CEQ
"shall be consistent with the national security and foreign
policy of the United States." Thus, H.R. 1113 might arguably
give rise to the challenge that an environmental impact review
should be undertaken prior to development or negotiation of a
U.S. position on global climate change. It may also raise other
concerns, including constitutional questions to the extent that
the bill purports to regulate the President's exercise abroad of
inherent Executive authority. (The provisions of concern in H.R.
1113 have recently been incorporated into section 505 of H.R.
3847, the Department of the Environment bill in the House.) In a
related development, Public Law 101-240 (formerly H.R. 2494)
amends the International Financial Institutions Act, 22 U.S.C. §§
262m et seq., to require an environmental assessment prior to any
vote by the U.S. Executive Director of a multilateral development
* FOIA Exempt -- Litigation Sensitive *
- 7 -
bank in favor of any action which would have a significant effect
on the human environment. H.R. 3977 would also extend NEPA to
Antarctica.
The Administration is considering suggesting that, as
an alternative to new legislation such as H.R. 1113, EO 12114 be
broadened instead. CEQ has recently convened an Interagency Task
Force on extraterritorial application of NEPA to review EO 12114
and to try to achieve a clear Administration position before S.
1089 and H.R. 1113 pass the full Congress.
Meanwhile, international bodies are considering
expanding the requirements of environmental impact assessment.
The UN Economic Commission for Europe is working toward an
international convention on environmental impact assessments.
The ECE convention has recently been narrowed to focus on
transboundary impact assessment of projects located close to
national borders. As a member of the ECE, the United States is
participating in these negotiations. There is also likely to be
discussion of environmental impact requirements in the
international negotiations of treaties on Antarctica.
All of these developments could enlarge the duty of
federal agencies to assess the impacts of their programs on
extraterritorial environmental media, including global climate.
THE WHITE HOUSE
WASHINGTON, DC
Date: 6/11
TO:
Holly Williamson
FROM:
BRin
ACTION CONCUR FYI
ACTION CONCUR FYI
Bates
Jackson
Danzansky
McBee
Adair
Schall
Buchholz
Wethington
D'Andrea
Williamson
DeWitt
Yale
Duggan
Evans
Farrar
Heimbach
URGENT
BY NOON
X
C.O.B.
Comments: