By Patrick Veasy and Hina Gupta
On February 19, 2021, the Council on Environmental Quality (CEQ) rescinded the Trump administration-issued draft guidance, which would have narrowed how federal agencies consider greenhouse gas (GHG) emissions and climate change impacts from development and infrastructure projects under the National Environmental Policy Act (NEPA). See, National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions, 86 Fed. Reg. 10,252 (Feb. 19, 2021). Although CEQ may develop and issue additional guidance on how agencies should consider GHG emissions and climate change impacts under NEPA, the CEQ’s current action returns the use of Obama administration guidance that promotes a broader evaluation of GHG emissions and climate change impacts during the environmental reviews.
Background
The National Environmental Policy Act requires federal agencies to consider the effects and impacts from proposed actions or projects on the environment. 42 U.S.C. § 4321 et seq. In general, federal agencies satisfy this requirement by preparing environmental review documents such as Environmental Assessments or Environmental Impact Statements, which evaluate potential environmental effects from the proposed project.
NEPA also created the CEQ, which is the main federal agency overseeing NEPA implementation. The CEQ regulations set forth how federal agencies should comply with NEPA. Moreover, the CEQ has the authority to issue guidance regarding how agencies should satisfy NEPA’s requirements. See, 40 C.F.R. § 1506.7.
As explained in the CEQ’s recent notice, development and infrastructure projects that are reviewed and approved by federal agencies often have the potential to emit or sequester GHG emissions, and may otherwise impact climate change. In addition, federal courts have previously held that NEPA requires federal agencies to disclose and consider climate change impacts during the agency’s project reviews under NEPA. See, e.g., Center for Biological Diversity v. NationalHighway Traffic Safety Administration, 538 F.3d 1172 (9th Cir. 2008).
Greenhouse Gas Guidance
Consistent with the above framework, the CEQ previously issued “Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews” (2016 GHG Guidance), which attempted to provide a set of overarching recommendations for determining how to consider GHG emissions and climate change effects in NEPA reviews. See, 81 Fed. Reg. 51,866 (Aug. 5, 2016). Among other proposals, the CEQ’s 2016 GHG Guidance recommended that agencies: 1) use projected GHG emissions as a proxy for assessing potential climate change effects when preparing a NEPA analysis for a proposed agency action; 2) quantify projected direct and indirect GHG emissions, taking into account available data and GHG quantification tools that are suitable for the proposed agency action; and 3) where agencies do not quantify the GHG emissions for a proposed agency action because tools, methodologies, or data inputs are not reasonably available, include a qualitative analysis in the NEPA document and explain the basis for determining that quantification is not reasonably available. Id.
However, on March 28, 2017, former President Trump issued Executive Order 13783, “Promoting Energy Independence and Economic Growth,” which ordered the CEQ to rescind the 2016 GHG Guidance. On June 26, 2019, the CEQ then proposed “Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions” (2019 Draft GHG Guidance). 84 Fed. Reg. 30,097. The CEQ never finalized the 2019 Draft GHG Guidance, but proposed to significantly narrow the scope of considering GHG emissions during the NEPA environmental review process. For example, the 2019 Draft GHG Guidance stated that federal agencies should assess effects from GHG emissions “when a sufficiently close causal relationship exists between the proposed action and the effect.” In other words, a “but for” causal relationship should not be sufficient. Further, the 2019 Draft GHG Guidance directed agencies to quantify a proposed action’s projected “direct and reasonably foreseeable indirect GHG emissions” only when the amount of those emissions is substantial to warrant quantification, and when it was practicable to quantify the GHG emissions using available data and GHG quantification tools. See id.
The CEQ’s Action and Implications
On his first day in office, President Biden issued Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” which ordered the CEQ to rescind the 2019 Draft GHG Guidance. On February 19, 2021, the CEQ’s notice rescinding the 2019 Draft GHG Guidance was published in the Federal Register and returned an agency’s ability to use of the 2016 GHG Guidance.
Conclusion and Implications
As a result of the February 19, 2021 rescinding of the 2019 Draft Guidance, the CEQ reestablished the broader trend of accounting for greenhouse gas emissions during environmental reviews under NEPA. Indeed, while the CEQ clarified that it may issue updates to the 2016 GHG Guidance, the CEQ explicitly recommended that in the interim, federal agencies should consider all available tools and resources in assessing GHG emissions and climate change effects of their proposed actions, including through the use of the 2016 GHG Guidance. Accordingly, going forward project proponents should expect heightened consideration of GHG emissions and climate change impacts during NEPA reviews.
