Greenhouse Gases “Rise” in Importance for NEPA Reviews --National Environmental Policy Act

Just before Christmas, the White House Council on Environmental Quality (“CEQ”) published revised draft guidance intended to direct federal agencies on when and how to consider the effects of greenhouse gas (“GHG”) emissions and climate change when evaluating the environmental effects of proposed agency actions under the National Environmental Policy Act (“NEPA”).  Consideration of climate change is not a new phenomenon in agency NEPA reviews, decision-making, or litigation.  Nevertheless, the draft guidance is noteworthy for the sheer breadth of its envisioned climate change analysis for all projects with a federal nexus.  It could significantly alter how federal agencies approach NEPA review.  As written, the open-ended draft guidance could engender significant delays, confusion, or new grounds for challenging projects. This draft guidance represents a significant departure from an earlier version released almost four years ago (and never finalized).  If adopted, the draft guidance would apply to all proposed major federal actions, including site-specific projects, project grants, permit issuance, rulemaking, and land and resource management decisions.  Additionally, this recent draft more fully recognizes agency discretion in complying with NEPA and allows greater flexibility in determining when, how, and to what extent climate change analyses are to be included in agency NEPA documents.  From a project proponent’s viewpoint, that could be a good or a bad thing. The CEQ sets out a two-fold inquiry for all proposed major federal actions.  Specifically, federal agencies should consider:

1. the extent to which a proposed action and its reasonable alternatives contribute to climate change (through GHG emissions or proxies); and
2. ways in which a changing climate may affect the resources impacted by the proposed action, or the ways in which climate change may affect the proposed action itself.

While CEQ disclaims any new legally binding requirements, as a practical matter most agencies will defer and conform to the new guidance for pending and future NEPA analyses.  Given the ubiquitous scope of climate change considerations, it is critical that stakeholders provide comments within the next 60 days before CEQ considers finalizing the guidance. Here are some of the guidance highlights:...more

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