On June 21, 2019, the White House Council on Environmental Quality (CEQ) issued a new draft guidance on how National Environmental Policy Act (NEPA) analysis and documentation should address greenhouse gas (GHG) emissions. CEQ Draft Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions, Docket No. CEQ-2019-0002 (June 21, 2019) (Draft Guidance). The Draft Guidance, if finalized, would replace final guidance the Obama Administration CEQ issued on August 1, 2016, entitled “Final Guidance for Federal Departments and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” (81 Fed. Reg. 51866, Aug. 5, 2016), which was withdrawn by the Trump Administration CEQ effective April 5, 2017, for further consideration pursuant to Executive Order 13783 dated March 28, 2017 (82 Fed. Reg. 16576), entitled “Promoting Energy Independence and Economic Growth.” Draft Guidance at 1. The purpose of the Draft Guidance is to facilitate compliance with NEPA by Federal agencies conducting reviews of proposed major Federal actions. Id. at 3.

The Draft Guidance notes that under CEQ regulations and the “rule of reason” that controls all NEPA analysis, impacts of proposed actions should be discussed in proportion to their significance. Id. at 4. Consequently, “Agencies preparing NEPA analyses need not give greater consideration to potential effects from GHG emissions than to other potential effects on the human environment.” Id. The Draft Guidance goes on to state that a proposed action’s “direct and reasonably foreseeable indirect GHG emissions may be used as a proxy for assessing potential climate effects.” Id. Direct effects are caused by the action and occur at the same time and place, and indirect effects are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Id.

The Draft Guidance also makes clear that quantification of GHG emissions is not always necessary. It explains that “Agencies should attempt to quantify a proposed action’s projected direct and reasonably foreseeable indirect GHG emissions when the amount of those emissions is substantial enough to warrant quantification, and when it is practicable to quantify them using available data and GHG quantification tools.” Id. Presumably the Draft Guidance leaves the determination regarding the level at which GHG emissions become substantial and warrant quantification to the agencies. The Draft Guidance also noted that an agency should explain its decision if it concludes that quantification would not be practicable or would be overly speculative. Id. at 5.

An agency may also reference local, regional, national, or sector-wide emission estimates, where GHG inventory information is available, to provide context for understanding the relative magnitude of a proposed action’s GHG emissions. The CEQ believes that this approach taken together with a qualitative summary discussion of the effects of GHG emissions based on an appropriate literature review, allows an agency to present the environmental impacts of a proposed action in clear terms with sufficient information to make a reasoned choice among the alternatives. Id. The CEQ indicated that it believes such a discussion would satisfy NEPA’s requirements that agencies analyze the cumulative effects of a proposed action, since the potential effects of GHG emissions are inherently a global cumulative effect. Thus, a separate cumulative effects analysis would not be required. Id.

The CEQ also explained that an agency should include a qualitative analysis to explain its basis for determining that quantification is not warranted, such as where an agency determines that the tools, methods, or data inputs necessary to quantify a proposed action’s GHG emissions were not practicable. The Draft Guidance explained that “Agencies are not required to quantify effects where information necessary for quantification is unavailable, not of high quality, or the complexity of identifying emissions would make quantification overly speculative.” Id.

In order to compare the current and reasonably foreseeable future state of the environment effected by a proposed action and its reasonable alternatives, analyses under NEPA should include a description of the effected environment. Id. at 6. Agencies would not need to undertake new research or analysis of potential changes to the effected environment in the proposed action area, however, and may summarize and incorporate by reference appropriate scientific literature.

The Draft Guidance also explains that agencies need not weigh the effects of the various alternatives in a NEPA monetary cost-benefit analysis using any monetized Social Cost of Carbon (SCC) estimates and related documents. Id. at 7. The SCC estimates were required in NEPA project analyses under the Obama Administration CEQ, but the Trump Administration through Executive Order 13783 dated March 8, 2018, specified that such estimates were directed to be withdrawn as no longer representing government policy. Id. at 7, citing 82 Fed. Reg. 16093 (Mar. 31, 2017). The CEQ explained that that “the SCC estimates were developed for rulemaking purposes to assist agencies in evaluating the cost and benefits of regulatory actions, and were not intended for socio-economic analysis under NEPA or decision-making on individual actions, including project-level decisions.” Id. at 8.

The Draft Guidance was submitted to the Office of Management and Budget for its review. Comments on the Draft Guidance will be due thirty (30) days after date of publication in the Federal Register.