From the halls of Congress to the pages of mainstream environmental media, numerous warnings of increased regulatory burdens and litigation mischief stemming from the Council on Environmental Quality’s (CEQ) Revised Draft Greenhouse Gas NEPA Guidance have proliferated.
To quote Aaron Rodgers, the Packers’ cool-as-a-cucumber quarterback: “R-E-L-A-X!”
From my perspective, the criticism improperly merges two issues – whether federal agencies should, or must, consider GHG impacts and how they should go about doing so. Debating whether the Revised Guidance offers the best tools to address GHG NEPA analysis does not undercut the requirement to consider GHG impacts or the goal to facilitate that consideration. In many ways, the Revised Guidance does not alter the status quo. The agency stressed a couple of fundamental best practices:basic NEPA principles have always required analysis of a project’s potential GHG impacts, and agencies should have a great deal of flexibility in how those impacts are assessed.
Critical comments have ranged from the sublime to the ridiculous. Witness the May 13 hearing held by the House of Representatives Committee on Natural Resources. One Representative first complained about agencies having to consider GHG emissions as a result of the Revised Guidance in the first place because it “assumes that any GHG emissions contribute to global climate change and so they are environmental impacts.” Not true. GHG emissions are environmental impacts, like any other category of resource impacts. For the vast majority of federal actions, however, the potential emissions will be so minimal in context that it is highly unlikely those impacts would ever lead to a finding of significance.
I can forgive the Congresswoman that confusion. But the Committee proceeding then devolved into a scene out of “Blazing Saddles.” The Congresswoman attested that all Committee members “emit greenhouse gases” and it was even possible to measure just how many. Yes, she went there. Her comments led to the unusual colloquy between Committee members and the panel witnesses seeking to explore how many GHGs a person could, uh, emit, depending on what they had for dinner.
Beyond the silliness, the worst substantive criticism alleges that the Revised Guidance expands analysis required by a typical NEPA review. That conclusion will come as a surprise to those following NEPA litigation dating back over a decade finding that agencies need to consider GHG impacts (e.g., Center for Biological Diversity v. NHTSA, 538 F.3d 1172 (9th Cir. 2008); Border Power Plant Working Group v. DOE, 260 F. Supp. 2d 997 (S.D. Cal. 2003)). Indeed, the wide disparity reflected in over two dozen federal court decisions discussing how an agency should consider GHG impacts is precisely why CEQ’s Revised Guidance was so necessary.
Moreover, in many instances the analysis of GHG impacts doesn’t add to an agency’s NEPA burden, but highlights important substantive issues. For example, I reviewed many coastal bridge projects while at the Federal Highway Administration. If the project wouldn’t expand capacity, it likely would have minimal GHG emissions impacts. But shouldn’t a State DOT consider the possibility of sea level rise and/or other climate impacts on the engineering and design of that bridge? As a taxpayer, I would hope the government would think proactively about whether an improved bridge could withstand higher river flows and/or more frequent flooding events.
The oddest criticism relates to the Revised Guidance’s alleged lack of certainty. Ninety-nine times out of a hundred, project developers yearn for NEPA flexibility – not all projects are the same and they require a fact-specific analysis. Yet here, many have called for cut and dried standards of significance or a mandate for either qualitative or quantitative GHG emissions analysis. There’s a big difference between an agency decision setting the fuel efficiency standards for an entire class of vehicles and the repair of a highway off-ramp. Agencies should be given the flexibility to design methods to address GHG impacts to reflect those differences. Those of us who assist clients conduct NEPA reviews know this kind of flexibility is critical to the statute’s effectiveness.
Even though the dire warnings about the evils the Revised Guidance would visit upon NEPA are overblown, CEQ could improve its handiwork. For example, it leaves too much uncertainty regarding how to assess a project’s “downstream” GHG impacts. In other words, notwithstanding the hypothetical in the document, a company seeking a permit to construct and operate a mine arguably should not have to assess in its NEPA review the potential uses of minerals to be extracted from a project and the accompanying GHG emissions from those uses over decades. Likewise, CEQ’s view of cumulative effects and connected actions could render the scope of NEPA analysis for broader than appropriate for an individual action. Hopefully, CEQ will clarify the Revised Guidance to reflect these concerns.
In the end, nothing in CEQ’s Revised Guidance alone will prompt litigation, as some suggest. The sun setting in the west does that just fine. It merely answers in the affirmative the question “do we have to assess GHG emissions?” and offers practical options on how to do so. R-E-L-A-X.