United States: White House Issues Final Guidance On Climate Change Impact Analysis

Last Updated: August 5 2016
Article by Mark C. Kalpin, Ken Salazar, H. David Gold and Nathaniel Custer

On August 1, 2016, the White House Council on Environmental Quality (CEQ) released its final guidance on how and when federal agencies should consider the direct and indirect impacts from climate change, including from greenhouse gas (GHG) emissions, in environmental reviews conducted under the National Environmental Policy Act (NEPA).1 The final guidance is the culmination of an effort that began in 1997, and refines draft guidance that was released by CEQ in 2014. While not a product of formal rulemaking and so not a binding regulation, the final guidance may still be influential. Agencies historically give CEQ interpretations of NEPA considerable deference,2 and a number of courts have considered CEQ guidance when determining whether an agency's NEPA analysis must be supplemented.3

In most respects, the final guidance does not plow new ground, but instead reaffirms that GHG emissions and climate change are among the many types of environmental impacts to be considered when evaluating a proposed action (and alternatives to that action) under NEPA. Like the draft version, the final guidance confirms that the well-established "rule of reason" and the principle of "proportionality" govern what degree of analysis of GHG emissions and climate change will be required with respect to a particular proposal, and allows each federal agency to utilize its own expertise in assessing impacts and mitigation options. In this regard, the final guidance does not establish any threshold of "significance" for GHG emissions (which would be used to determine whether an environmental impact statement must be prepared under NEPA), and instead allows agencies to make this determination in accordance with their applicable regulations and agency precedent.

Given that the final guidance reinforces the use of traditional NEPA procedures and precedent, but then suggests additional guidelines for analyzing GHG emissions and climate change, all stakeholders will be able to find language in the final guidance that supports their own arguments as to why a more or less thorough analysis of GHG emissions and climate change is appropriate for a particular project. The guidance is effective immediately, and CEQ encourages agencies to use it for all new proposed agency actions for which NEPA review is required, and to consider whether to apply it to any NEPA review that is already underway.4

Quantitative Analysis

While agencies have increasingly accounted for GHG emissions and climate change in their NEPA reviews,5 they often have done so qualitatively. Like the 2014 draft guidance, the final guidance calls for a quantitative analysis of GHG emissions—with GHG emissions serving as a "proxy" for potential effects on climate change.6 Unlike the 2014 draft, the final guidance does not propose a minimum 25,000-metric-ton threshold for such a quantitative analysis. Instead, it calls for quantification in all cases except where "tools, methodologies, or data inputs are not reasonably available."7 While the final guidance confirms that agencies need not conduct new research on climate change or develop additional quantification tools, this exception will likely be of little consequence, as CEQ elsewhere provides that "[q]uantification tools are widely available, and are already in broad use in the Federal and private sectors, by state and local governments, and globally."8

The final guidance provides a link to tools currently used by various federal agencies and the private sector, and endorses the methodologies presented in CEQ's own "2012 Guidance for Accounting and Reporting GHG Emissions."9 Beyond these references and citations, CEQ does not prescribe any more concrete guidance for how agencies should calculate GHG emissions, but it nevertheless anticipates that an agency will almost certainly have the wherewithal to use some existing mechanism to quantify the GHG emissions of a project or other federal action.

The need for quantitative analysis also seems inherent in the final guidance's discussion of alternatives to a proposed action. The final guidance states that an alternatives analysis should compare GHG emissions of a proposed action with alternatives. In this regard, although the final guidance confirms that the federal agency should select a "range of reasonable alternatives consistent with the level of NEPA review (e.g., EA or EIS) and the purpose and need for the proposed action,"10 it elsewhere suggests that the agency should also consider reasonable alternatives "to reduce action-related GHG emissions."11 A comparison based on something other than the quantity of emissions may be vulnerable to characterization as apples-to-oranges.

The final guidance advises against an approach that frames GHG emissions as a share of emissions in a given sector or region. Instead, CEQ encourages that "[w]hen considering GHG emissions and their significance, agencies should use appropriate tools and methodologies for quantifying GHG emissions and comparing GHG quantities across alternative scenarios."12 In other words, it is not enough to say the project will have a negligible effect on sector-wide, nationwide, or worldwide emissions; rather, the relative level of GHG emissions—serving as a proxy for climate change effects—should be assessed within the context of the proposed action and the alternatives under consideration, including the no-action alternative.13

CEQ has anticipated in the final guidance that opponents may argue that a quantification of GHG emissions for any single project is unnecessary because of the negligible effect any single project has on global climate change. CEQ turns the argument on its head to say that this is the very reason the guidance is necessary, as it illustrates the unique challenge posed by GHG emissions. This is consistent with the Ninth Circuit's holding that "[t]he impact of greenhouse gas emissions on climate change is precisely the kind of cumulative impacts analysis that NEPA requires agencies to conduct."14


The final guidance states that it "do[es] not require the decision maker to select the alternative with the lowest net level of emissions."15 However, it endorses as "an important component of the NEPA process" consideration of any "mitigation measures that reduce or mitigate GHG emissions."16 The final guidance also encourages agencies to "identify those mitigation measures that the agency commits to take, recommends, or requires others to take" in the final agency decision and to provide for "monitoring to ensure that mitigation is carried out."17

Impacts of Climate Change on Proposed Actions

The final guidance also calls for agencies to consider how climate change could affect proposed actions. Such impacts could include "increasing sea level, drought, high intensity precipitation events, increased fire risk, and ecological change."18 The final guidance suggests that certain types of projects, like developments in floodplains, on coastal barrier islands, or near the coastline, could be especially vulnerable to such impacts, and asserts that agencies should identify opportunities for adaptation, "ultimately enabling the selection of smarter, more resilient actions."19

Finally, in something akin to requiring an analysis of a never-ending series of "what if" scenarios, the final guidance suggests that "considering climate change preparedness and resilience can help ensure that agencies evaluate the potential for generating additional GHGs if a project has to be replaced, repaired, or modified."20 In other words, after assessing the effects of a project on climate change, agencies must assess the effects of climate change on the project in order to determine whether climate change will, in turn, cause the project to have additional, previously unaccounted-for impacts on climate change.

Rule of Reason and Proportionality

The final guidance confirms that "[t]he rule of reason and the concept of proportionality caution against providing an in-depth analysis of emissions regardless of the insignificance of the quantity of GHG emissions that would be caused by the proposed agency action."21 While this statement provides agencies some leeway to engage in less robust analysis where GHG emissions are minor, it neither removes the expectation that there will be some level of analysis, nor provides more concrete guidance than the sentence quoted above regarding when the standard is relaxed and what level of analysis is then appropriate.


  • When the draft guidance was issued, we predicted that the days were numbered for federal agencies to avoid including a quantitative analysis of GHG emissions in their NEPA reviews.22 The final guidance confirms that those days are now over. All or nearly all NEPA analysis will now include a quantitative assessment of direct and indirect GHG emissions associated with the proposed action.
  • Despite the nonbinding nature of the guidance, it seems likely to play a role in NEPA litigation going forward. The guidance reaffirms that climate change impacts must be given a "hard look" under NEPA, just as more localized impacts to water, air, and other resources are. Even though the final guidance stresses that agencies need not give greater consideration to the effects of GHG emissions and climate change over other effects on the human environment, NEPA challenges going forward are likely to feature an attack on the sufficiency of the analysis of climate change impacts. In addition, specific suggestions in the final guidance regarding mitigation, among other things, create new standards susceptible to legal challenge, either by an aggrieved project proponent who believes these new standards lack a basis in law, or by an opponent to a proposed action who feels the new guidance was ignored in the course of approving a federal action.
  • The guidance also calls on agencies to assess the impacts that climate change could have on proposed projects. This will be especially important for projects in areas that are at greater risk from climate change impacts such as sea level rise, drought, high-intensity precipitation events, and increased fire risk. Those projects may face greater scrutiny as to whether they are sufficiently "resilient" to potential impacts.


With the release of its final guidance, CEQ has completed its decades-long effort to provide guidelines for the consideration of climate change, including GHG emissions, in the NEPA process. While the guidance is not binding, it will influence how NEPA analysis is conducted moving forward. In nearly all cases, agencies will need to quantify the direct and indirect GHG emissions associated with a proposed action and its alternatives. They will also likely give greater attention to the effects of climate change on the proposed action, accounting for the action's resiliency, and may be quicker to impose climate change-related mitigation measures. The guidance will also provide a basis for stakeholders to challenge specific NEPA analyses to the extent that agencies do not sufficiently account for climate change impacts.

1 Available here [hereinafter, CEQ Guidance].
2 See Andrus v. Sierra Club, 442 U.S. 347, 358 (1979).
3 See, e.g., Russell Country Sportsmen v. U.S. Forest Service, 668 F.3d 1037, 1045 (9th Cir. 2011).
4 CEQ Guidance, at 33.
5 See Amy L. Stein, Climate Change Under NEPA: Avoiding Cursory Consideration of Greenhouse Gases, U. Colo. L. Rev. 473, 486 (2010).
6 CEQ Guidance, at 10-13.
7 Id. at 13.
8 Id. at 12.
9 Id. at 12 fns. 28-29, 31.
10 Id. at 15.
11 Id.
12 Id. at 11.
13 Id. at 15.
14 Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538 F.3d 1172, 1217 (9th Cir. Cal. 2008).
15 CEQ Guidance, at 15-16.
16 Id. at 18-19.
17 Id. at 19-20.
18 Id. at 24.
19 Id. at 22.
20 Id. at 25.
21 Id. at 12.
22 Mark Kalpin, Ken Salazar, and H. David Gold, Regulatory Divergence May Be New Norm After GHG Guidance (Mar. 24, 2015).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions