New Year, New NEPA Guidance: CEQ Takes on GHGs


At the conclusion of 2014, the Council on Environmental Quality (CEQ) released revised draft guidance for federal agencies evaluating the effects of greenhouse gas (GHG) emissions and climate change as part of an environmental review under the National Environmental Policy Act (NEPA). The guidance directs agencies to consider the effects of a proposed action on climate change by following a proportionality principle and utilizing a specified emissions threshold. Generally, the established threshold dictates whether an agency should prepare a quantitative or qualitative analysis. According to the CEQ, the guidance is designed to provide for better and more informed federal decisions regarding GHG emissions and the effects of climate change. It is also supposed to reduce the risk of litigation driven by uncertainty in the NEPA assessment process. Though the CEQ claims that the substance of the guidance is already baked into NEPA’s existing framework, a reading of the guidance suggests that agencies may be obligated to prepare additional analyses.

The CEQ instructs federal agencies to consider two issues when addressing climate change: “(1) the potential effects of a proposed action on climate change as indicated by its GHG emissions; and (2) the implications of climate change for the environmental effects of a proposed action.” GHG Guidance at 3. Though affording agencies “substantial discretion” on how to address these issues, the guidance directs agencies to prepare a quantitative analysis of potential climate change impacts where a proposed action is anticipated to emit 25,000 metric tons of CO2e emissions or greater on an annual basis. The CEQ cautions that this number does not define what constitutes a “significant impact” that would require the preparation of an environmental impact statement (EIS) instead of an environmental assessment (EA). Instead, the ultimate significance determination remains subject to an agency’s consideration of context and intensity, as set forth in the CEQ Regulations. Id. at 19.

A quantitative analysis requires the agency to calculate potential impacts of an action using GHG estimation tools. A quantitative analysis may also obligate agencies to monetize the costs and benefits of a proposed action when such a consideration is relevant to choosing among alternative actions. According to the CEQ, this can be achieved using tools such as the federal social cost of carbon (SCC). When this analysis is prepared, the CEQ requires the agency either to append it to the NEPA document or to incorporate it by reference. Agencies should be careful utilizing these tools, however, as at least one court has remanded an agency’s decision based on the failure to properly apply the SCC calculations.

When a proposed action is anticipated to produce GHG emissions below the 25,000 metric tons of CO2e level, an agency may prepare either a quantitative or qualitative analysis. In performing this analysis, agencies should employ a concept of proportionality whereby the level of detail of the analysis is commensurate with the quantity of GHG emissions predicted to result from the action. For example, if a proposed action would emit small amounts of GHGs, an agency need not quantify those emissions unless quantification is “easily accomplished.” Id. at 18. A qualitative analysis should be informative and consider direct, indirect, and cumulative impacts from other projects. Agencies should avoid boilerplate statements that projected emissions represent only a small fraction of global emissions. Id. at 9. Instead, if an agency believes an analysis is not useful to inform its decision, it should state as much and provide the reason for this conclusion. Id. at 10.

On a substantive level, the guidance may add obligations during an agency’s review of a proposed action. For example, the guidance suggests that agencies should consider mitigation measures to the extent that they reduce GHG emissions. These measures include “enhanced energy efficiency, lower GHG-emitting technology (e.g., using renewable energy), carbon capture, carbon sequestration (e.g., forest and coastal habitat restoration), sustainable land management practices, and capturing or beneficially using fugitive GHG emissions such as methane.” Id. at 10. The guidance also suggests that agencies may need to prepare a programmatic EIS to address the cumulative GHG emissions and climate change impacts of actions such as “long-range energy, transportation, and resource management actions.” Id. at 29. These programmatic analyses, says CEQ, will enable an agency to better assess the potential impacts of site-specific actions that include “constructing transmission towers; conducting prescribed burns; approving grazing leases; granting a right-of-way; authorizing leases for oil and gas drilling; authorizing construction of wind turbines; and approving hard rock mineral extraction.” Id. at 30.

While this guidance is in draft form and currently subject to public comment until February 23, 2015, it certainly highlights the administration’s desire to have agencies weigh more heavily the climate change impacts of actions and consider alternatives to those actions that may have a lesser impact. Though the purpose of NEPA is to ensure informed decision-making rather than prescribe the decision, CEQ’s GHG Guidance is certainly designed to favor alternatives with the lowest GHG emissions.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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