Federal agencies conduct thousands of reviews each year under the National Environmental Policy Act (NEPA) to assess the environmental effects of actions they propose to carry out, fund, or authorize. These agencies often struggle with the level of analysis required with regard to climate change impacts, and this issue has been raised in numerous NEPA challenges to agency decisions. After working on this issue for over four years, the Council on Environmental Quality (CEQ) recently released new draft guidance designed to help agencies determine how to incorporate climate change impacts into their NEPA reviews.
On December 18, 2014, CEQ released revised draft guidance outlining how federal agencies should describe the potential effects of a proposed action on greenhouse gas emissions and climate change when conducting NEPA reviews. The new draft guidance updates CEQ’s 2010 draft guidance, which was never finalized. Comments on the 2014 draft are due on February 23, 2015.
According to the CEQ press release accompanying the 2014 draft guidance, the guidance:
- Encourages agencies to draw from their experience and expertise to determine the appropriate level and type of analysis required
- Focuses analysis on the projects with the greatest impacts by providing a reference point of 25,000 metric tons of CO2-equivalent emissions on an annual basis, below which a quantitative analysis of GHG emissions is not recommended unless it is easily accomplished
- Counsels agencies to consider alternatives to the proposed action that are more resilient to climate change
- Advises agencies to use existing information when assessing proposed actions, and highlights tools and methodologies that are available
The draft guidance provides that “the extent of the analysis should be commensurate with the quantity of projected GHG emissions.” Draft Guidance at 10. Recognizing the hardship agencies would experience if they were required to link specific climate impacts with individual projects, CEQ suggests that agencies use projected greenhouse gas emissions as a proxy for gauging a project’s potential climate change impacts. CEQ offers a reference point of 25,000 metric tons of carbon dioxide equivalent (CO2e) or more per year for determining whether to provide a quantitative, as opposed to qualitative, analysis. While the 2010 draft guidance proposed the same reference level, the threshold explicitly applied to direct emissions only, and not indirect effects. In contrast, the revised draft guidance does not specify whether indirect emissions should be considered for purposes of evaluating whether to conduct a quantitative analysis.
The draft guidance could potentially expand the scope of the NEPA analysis for proposed energy infrastructure projects and other federal actions by encouraging agencies to consider indirect emissions, including those from upstream and downstream activities. The guidance states that agencies should consider the potential direct, indirect and cumulative effects of an action on climate change as indicated by its reasonably foreseeable greenhouse gas emissions. According to CEQ, agencies that state that the emissions from the action “represent only a small fraction of global emissions . . . is not an appropriate basis for deciding whether to consider climate impacts under NEPA.” Draft Guidance at 9. In particular, agencies should take into account “emissions from activities that have a reasonably close causal relationship to the Federal action” such as upstream and downstream emissions that may occur as a predicate for, or consequence of, the proposed action. Id. at 11. When addressing cumulative impacts, agencies should consider “whether the reasonably foreseeable incremental addition of emissions from the proposed action, when added to the emissions of other relevant actions, is significant.” Id. at 11-12.
If the agency prepares an environmental assessment or environmental impact statement for a proposed action, CEQ encourages agencies to take into account the greenhouse gas emissions levels caused by alternatives to the proposed action that the agency considers as part of the NEPA review. Agencies should also consider reasonable mitigation measures that could lower the greenhouse gas emissions levels.
The draft guidance provides that the NEPA review for federal land management decisions should address biogenic sources of greenhouse gas emissions (i.e. emissions that come from natural sources as opposed to fossil-derived emissions). This differs from the 2010 draft guidance which excluded land management decisions.
Although the guidance is still in draft form, it will likely be utilized by both agencies and NEPA litigants immediately to try to support a particular position on how climate change should be assessed in NEPA reviews. It remains to be seen whether the guidance is specific and clear enough to help provide reasonable bounds around the level of analysis required for climate change in NEPA reviews.