The CEQ Issues Draft Guidance on Consideration of Climate Change Under NEPA

Posted on February 22, 2010 by Seth Jaffe

Late last week, the CEQ issued its long-awaited draft Guidance on how to factor climate change into NEPA reviews. CEQ explicitly stated the draft is not effective at this time. CEQ will take comment for 90 days and “intends to expeditiously issue this Guidance in final form” after close of the comment period. Assuming CEQ does so, it will join several states, including California, New York, and Massachusetts, which already require that climate change be addressed in their state NEPA analogues.

The draft is very limited in scope at this point; CEQ may have decided that what is most important is simply the statement that climate change is real, it matters, and it therefore must be taken into account under NEPA. For example, CEQ proposes a threshold a 25,000 tpy of direct emissions CO2e for NEPA applicability. The Guidance does not propose to apply this threshold to indirect emissions, “the analysis of which must be bounded by limits of feasibility.” Shocking recognition of what’s actually possible.

There are some tidbits that will nonetheless give pause to those who expect to be subject to this Guidance. First, the Guidance does discuss the need to consider the cumulative effects of GHG emissions. This is not surprising, given that NEPA already requires consideration of cumulative impacts outside the GHG context, but since all GHG impacts are cumulative, it is of particular importance here. Second, the Guidance also notes that project planners must consider the impact of climate change on projects, as well as the impact of projects on climate change. The example given in the Guidance is a plan for transportation infrastructure on a barrier island. The Guidance also suggests a longer-term time horizon than may have been used in the past. The example here is that of an industrial process drawing water from a source that relies on snow pack that is expected to decrease as a result of climate change.

As noted above, CEQ spends a lot of effort making the case that the Guidance is not a radical document. The phrase “rule of reason” is used no less than four times in the draft Guidance – and it feels like more. Nonetheless, I doubt opponents will be satisfied. I suspect that they – like the CEQ itself – believe that the fact of the document is more important than its immediate requirements.

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Concerns About NEPA and the Stimulus: CEQ Is Here to Help

Posted on March 20, 2009 by Seth Jaffe

As we noted previously, in the face of efforts to include language in the stimulus bill exempting stimulus projects from the requirements of NEPA, Senator Boxer proposed what you can describe either as a compromise or a fig leaf. Section 1609 of the bill provides that NEPA reviews will be expedited and resources will be devoted to facilitate such expedited reviews. According to the Environmental Reporter today, CEQ is going to be providing guidance to federal agencies on how to conduct such expedited reviews.

Despite my normal skepticism about agency guidance documents, such guidance would almost certainly be welcome in these circumstances. Agencies are obviously going to be under a lot of pressure to get the stimulus money out the door and CEQ is not going to want to be in the position taking the blame for being an obstacle. I am therefore hopeful that the guidance will indeed help facilitate these projects. If citizen suits are brought challenging the NEPA review for any particular project, CEQ’s interpretation of what’s acceptable should receive Chevron deference, thus likely insulating agency decisions resulting from following procedures promulgated by CEQ pursuant to § 1609. 

In related news, new CEQ Chair Nancy Sutley has said that she wants “higher-level policymakers” to be more involved in NEPA reviews at their agencies than they have been in the past. If such early involvement is used to identify and resolve issues before they become problems, then who would not be pleased at this initiative? On the other hand, if such involvement is a mechanism for CEQ to have greater influence on agency decision-making, then I would be less sure of the benefits and more worried that politically sensitive agency decisions will just get bogged down, without any corresponding improvement in the quality of agency decision-making.

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