The White House’s Council on Environmental Quality (CEQ) recently issued updated draft guidance on how federal agencies should consider greenhouse gas (GHG) emissions and the attendant impacts on climate change when conducting environmental analysis under the National Environmental Policy Act (NEPA).  CEQ simultaneously released related, final guidance on conducting programmatic NEPA reviews.  While these actions are designed to improve the consistency and predictability of permitting approaches and thereby facilitate NEPA reviews, they do increase the focus on GHGs for federal permitting considerations and may make it easier for environmental and community groups to challenge project approvals on these grounds.  They may also provoke a careful look from Congress on the basis for CEQ’s focus on GHGs.

The proposed guidance, an update of CEQ’s earlier February 2010 draft guidance, includes significant provisions that will likely increase the scope and complexity of many NEPA analyses.  CEQ seeks to clarify how agencies should assess and describe the effects of greenhouse gases as well as the impact of climate change on proposed federal actions.  Some of the key provisions are as follows:

  • The draft guidance would more clearly require federal agencies to evaluate GHG impacts by federal actions, including federal project approvals or federal funding decisions.  The draft treats GHGs in a similar manner to other pollutants caused by federal activities.
  • Unlike the 2010 version, the current draft guidance does not exclude federal land and resource management actions.  As a result, the guidance would apply to many actions previously thought to be excluded, including natural resource activities on federal and tribal land.
  • Agencies are encouraged to provide quantitative estimates of GHG emissions and sequestration, and are discouraged from using simple recitations that the emissions from a particular action would represent only a small fraction of global emissions.  However, in following the rule of reason and concept of proportionality, quantitative analysis of emissions is generally not required if expected annual emissions are below 25,000 tons of CO2e, or some other threshold that an agency selects and justifies.
  • Consideration should be given to mitigation measures and alternatives to reduce the level of potential GHG emissions.  Some mitigation methods may include enhanced energy efficiency, carbon sequestration, and using renewable energy.
  • Agencies are also asked to consider the effect of a changing environment on proposed projects.  For example, an infrastructure project on a coast will want to account for the environmental consequences of rebuilding if raised sea levels or storms reduce the projected life of the infrastructure.

Some provisions may be prove particularly difficult to comply with and will likely be a significant source of continuing challenge and litigation.  For example, the draft guidance calls on agencies to include in NEPA analyses “emissions from activities that have a reasonably close causal relationship to the Federal action,” which can include both upstream emissions (those that may occur as a predicate for agency action) and downstream emissions (those that may occur as a consequence of the agency action).  Project applicants will want to consider carefully the scope of their analysis in order to minimize the potential for adverse litigation outcomes by satisfying the draft guidance’s approach.

The release of the final programmatic guidance, which became effective December 23, 2014, guides agency decisionmakers and the public in complying with NEPA and indicates that CEQ is striving to make NEPA as workable as possible.  To that end, the final guidance encourages agencies to use programmatic and tiered NEPA reviews wherever appropriate.

The draft guidance will be available for 60 days of public comment.

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Photo of Gary S. Guzy Gary S. Guzy

Gary Guzy brings thirty five years of experience in environmental law, regulation, and public policy. He provides counsel to industry leaders in the transportation, energy, technology, and consumer sectors on emerging environmental and clean energy issues. He is skilled at creating strategic partnerships…

Gary Guzy brings thirty five years of experience in environmental law, regulation, and public policy. He provides counsel to industry leaders in the transportation, energy, technology, and consumer sectors on emerging environmental and clean energy issues. He is skilled at creating strategic partnerships that bring together diverse groups to resolve challenging public policy controversies through close work with industry and environmental community leaders. Mr. Guzy co-chairs the firm’s Energy Industry Group.

Mr. Guzy served as Deputy Director and General Counsel of the White House Council on Environmental Quality (CEQ). In this position, he helped develop and guide the Obama Administration’s environmental, public health, and clean energy agenda, bringing business insights to government policy and coordinating policy across government agencies. He spearheaded negotiations that achieved the Obama Administration’s agreement to double motor vehicle fuel efficiency standards and significantly cut greenhouse gas emissions with the support of automobile manufacturers, states, labor unions, environmental and consumer groups, and Congress. Mr. Guzy also led CEQ’s efforts to modernize permitting and environmental review under the National Environmental Policy Act, and counseled federal agencies on how to fulfill their NEPA obligations for dozens of high profile decisions and assisted in resolving NEPA controversies at numerous complicated sites.

Mr. Guzy served as General Counsel of the U.S. Environmental Protection Agency and Counselor to the EPA Administrator during the Clinton Administration. He was a member of the Administrator’s senior policy team, setting regulatory, legislative, and communications strategy. He led efforts to design regulatory approaches to protect children’s environmental health, develop and defend new air quality and motor vehicle standards, defend EPA from Congressional oversight investigations, and protect iconic ecosystems such as the Everglades and Yellowstone National Park. He also authored climate change opinions that were later ratified by the U.S. Supreme Court in its landmark decision finding that greenhouse gases are pollutants under federal law.

Mr. Guzy has also served as the chief legal officer, sustainability officer, and climate strategist for a variety of business organizations