New Guidance Requires Federal Agencies to Consider GHG Emissions and Climate Change in their NEPA Reviews

The President’s Council on Environmental Quality (“CEQ”) has finalized guidance to assist federal agencies in their consideration of the effects of greenhouse gas (“GHG”) emissions and climate change when evaluating proposed federal actions under the National Environmental Policy Act (“NEPA”).

According to the CEQ, the guidance will “facilitate compliance with existing NEPA requirements, thereby improving the efficiency and consistency of reviews of proposed Federal actions for agencies, decision makers, project proponents, and the public.”

NEPA is implemented by federal agencies either through a Categorical Exclusion (“CE”), an Environmental Assessment (“EA”) or an Environmental Impact Statement (“EIS”).  The guidance is intended to ensure that a federal agency’s analysis of potential GHG emissions and the effects of climate change in an EA or EIA is commensurate with the extent of the effects of the proposed action.  The CEQ encourages agencies to review their NEPA procedures to propose any updates necessary to facilitate consideration of GHG emissions and climate change, noting that CEQ will review any proposals for revising NEPA procedures, including revisions to any CEs, in light of the guidance.

Agencies are instructed to consider not only the potential effects of a proposed action on climate change but also the effects of climate change on a proposed action.

The guidance recommends that agencies quantify GHG emissions, both direct and indirect, and project GHG emissions as a proxy for assessing potential climate change effects when preparing a NEPA analysis.  Agencies can rely upon available information and science and do not need to undertake new research.  If agencies are unable to quantify projected GHG emissions due to lack of methodologies or information, agencies must include a qualitative analysis in their NEPA documentation and must explain how they concluded that a qualitative analysis was not feasible.

Among other things, the guidance informs agencies that they can rely on the “rule of reason” inherent in NEPA and CEQ regulations to determine, based on agency expertise and experience, how to consider an environmental effect and prepare an analysis based on the available information.

Agencies are advised to consider not only a proposed action, but also “connected” actions when evaluating the effects of GHG emissions.  In addition, agencies are to consider alternatives to proposed actions that will avoid or minimize adverse effects of the proposed action.  This includes the consideration of alternatives that mitigate GHG emissions.

While the guidance is not retroactive, the CEQ encourages agencies to consider applying the new guidance to projects in the EIS or EA preparation stage if the guidance would inform the consideration of differences between alternatives.  Similarly, agencies should apply the new guidance if doing so would address comments raised during the public comment process that suggest the environmental analysis is otherwise incomplete, and where the additional time necessary for such review would be proportionate to the perceived value to be gained.

The Guidance will be published in the Federal Register.  A copy of the Guidance is available here.

Kathy Milenkovski is an energy and environmental lawyer. She helps clients comply with complex state and federal regulatory programs and represents clients in litigation, appearing in administrative, state and federal courts.
 
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