On July 31, 2023, the White House Council on Environmental Quality (CEQ) released the second phase of its revisions to the National Environmental Policy Act (NEPA) implementing regulations that govern federal environmental review. Titled the “Bipartisan Permitting Reform Implementation Rule,” the proposed rule reflects CEQ’s aim to revise and modernize the regulations and incorporate updates to address recent statutory changes to NEPA in the Fiscal Responsibility Act of 2023.1
The Fiscal Responsibility Act of 2023, signed into law on June 3, raised the U.S. debt limit and ushered in the most significant revisions of the National Environmental Policy Act (NEPA) in its 50+ year history. While the statutory changes are notable and important to understand, most of the changes codify longstanding agency practice and are expected to have only modest effects on environmental reviews, primarily with respect to timelines for completion.
In addition to these statutory changes, energy and infrastructure developers and other stakeholders are awaiting the White House Council on Environmental Quality’s (CEQ’s) “Phase 2” proposed NEPA rule. CEQ will likely seek to harmonize its proposed rule with the new statutory changes and could pose questions for public comment regarding new provisions that may warrant interpretation by CEQ. Congress may pursue additional permitting-related changes in the coming months, as well.
The following is a summary of the key changes to NEPA, placed in relevant context.…
On January 6th, the White House Council of Environmental Quality (“CEQ”) released a new Guidance on Consideration of Greenhouse Gas Emissions and Climate Change (“the Guidance”) in permitting decisions, with significant implications for energy and infrastructure projects. Though this Guidance is effective as of the date of publication, it was issued on an interim basis and CEQ will consider comments until March 10th, after which it could be revised further.
CEQ’s recommendations will influence the Biden Administration’s analysis of greenhouse gas (“GHG”) emissions in environmental reviews under the National Environmental Policy Act (“NEPA”), applying immediately to all newly proposed actions as well as some on-going NEPA reviews. While the Guidance is largely framed as a series of recommendations rather than requirements, it highlights best practices for environmental reviews that could help expedite project completions, improve agency decision making, and minimize litigation risks for developers. Ultimately, CEQ is trying to ensure that agencies and project developers pay sufficient attention to climate impacts, without causing unwarranted delays to agency decision-making, particularly considering that accelerating clean energy infrastructure is a key component of the Biden Admiration’s climate agenda.
The Guidance seeks to foster a greater understanding of GHG impacts and the tradeoffs among alternatives, thus raising expectations around the quality of federal GHG analyses. Project developers will want to work closely with federal regulators to ensure the sufficiency of agency NEPA reviews. Failures to do so may provide project opponents a pathway to litigation. …
As noted in our COP27 recap, this year’s climate summit in Sharm el-Sheik involved both the historic creation of a fund to compensate countries most impacted by climate change, as well as lost opportunities to adopt more ambitious and accelerated climate mitigation commitments. Perhaps hidden between these headlines, President Biden announced an initiative with significant implications for federal contractors. Under this proposal, the United States would become the first country to require major government suppliers and contractors to set science-based emissions reduction targets aligned with the Paris Agreement. It would also require contractors to disclose their greenhouse gas (GHG) emissions and climate risks.
This initiative—the proposed Federal Supplier Climate Risks and Resilience Rule—would have wide-reaching impacts if ultimately finalized. Collectively, the proposed rule would cover about 86 percent of the federal government’s supply chain GHG impacts and 86 percent of federal annual spending. To put this in perspective, in the last fiscal year alone the United States purchased $630 billion in goods and services.
The comment period for the proposed Federal Supplier Climate Risks and Resilience Rule closes on January 13, 2023. The proposed compliance requirements for major contractors would start two years after publication of a final rule. If promulgated, this rule may be challenged in court along the lines of the Biden Administration’s COVID-19 vaccine mandate for federal contractors. …
One of the Inflation Reduction Act’s (IRA) notable features is the creation of a Greenhouse Gas Reduction Fund (GGRF). This fund could create a mechanism to quickly disburse up to $27 billion to clean energy technologies, without undergoing the sometimes laborious reviews required by the National Environmental Policy Act (NEPA). IRA § 60103. …
Addressing climate change has been a priority for President Biden since his first day in office. On December 8, 2021, President Biden continued that focus by issuing Executive Order (EO) 14057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability, which includes a number of requirements directed at introducing sustainability to federal acquisitions.
Continue Reading Contractors Have an Opportunity to Help Shape ESG Requirements
The D.C. Circuit issued a decision in Vecinos para el Bienestar de la Comunidad Costera v. FERC, which faulted FERC for failing to consider whether the social cost of carbon (SCC) is a “generally accepted” analytical tool for assessing the significance of greenhouse gas impacts under NEPA. The decision is likely to result in…
In two recent certificate orders issued on May 20, 2021, the Federal Energy Regulatory Commission (“FERC”) did not assess the significance of the greenhouse gas (“GHG”) emissions of natural gas pipeline projects in terms of their contribution to climate change. This seems to be a step back from a March, 2021 order, which indicated that FERC would consider the significance of natural gas emissions in the context of a certificate involving pipeline replacement facilities, but reflects an unusual last-minute compromise reached during an open meeting in order to gain sufficient votes to approve the certificates.
Continue Reading FERC Policy on GHG Impact of Gas Pipelines on Climate Still in Flux
On July 17, 2020, the Council on Environmental Quality (CEQ) published a Final Rule updating regulations to the National Environmental Policy Act (NEPA). The Final Rule closely tracks the Proposed Rule released in January 2020. The final rule makes a number of notable changes to existing NEPA regulations.
Continue Reading CEQ Finalizes NEPA Rule Updating Regulations
The Department of Energy proposes to no longer subject LNG exports to evaluation under the National Environmental Policy Act (NEPA). According to a recent Notice of Proposed Rulemaking (NOPR), DOE says that the only source of potential environmental impacts within its authority to review are those associated with transporting natural gas by ship, and those shipments qualify for categorical exclusion from NEPA review.
Continue Reading DOE Proposes to Stop Evaluating Environmental Impacts of LNG Exports