Introduction

On August 2 2016 the White House Council on Environmental Quality (CEQ) 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. The final guidance is intended to provide direction on how federal agencies should address the effects of greenhouse gas (GHG) emissions and climate change as those agencies satisfy their duties under the National Environmental Policy Act when preparing an environmental impact statement or an environmental assessment when considering the use of categorical exclusions. The final guidance supersedes a revised draft guidance issued by the CEQ in December 2014.(1)

Impact

Many types of federal action could qualify, in the words of the National Environmental Policy Act, as "major federal actions significantly affecting the quality of the human environment", thereby triggering the need to prepare an environmental impact statement. Many projects may also require federal permits, approvals or funding from federal agencies and thereby require the preparation of an environmental impact statement or environmental assessment. While the CEQ made several modest, semantic changes to address concerns raised in comments on the draft guidance, there is little practical difference between the draft and final guidance documents in certain key aspects. Although the final guidance is not legally binding and does not alter the obligations found in the National Environmental Policy Act, in the CEQ's implementing regulations and in the applicable case law, the CEQ continues to recommend an expansive analysis of GHG emissions and climate change in National Environmental Policy Act reviews that pushes and, in some cases, may exceed the limits imposed on federal agencies under CEQ regulations and established judicial precedents.

For further information on this topic please contact Roger R Martella Jr, Peter R Steenland or Joel F Visser at Sidley Austin LLP by telephone (+1 202 736 8000) or email (rmartella@sidley.com, psteenland@sidley.com or jvisser@sidley.com). The Sidley Austin LLP website can be accessed at www.sidley.com.

Endnotes

(1) The attached chart provides an overview of several key issues in the guidance and identifies the changes, if any, that the CEQ has made in the final guidance. It also provides a side-by-side comparison of key language from the draft and final guidance.

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