United States: Possible Shift Of Perspectives On Breadth Of NEPA Review; CEQ's Draft Greenhouse Gas Guidance

Pursuant to the National Environmental Policy Act (NEPA),1 and the corresponding NEPA regulations issued by the Council on Environmental Quality (CEQ)2 and the respective reviewing agencies, federal agencies are required to consider the environmental impacts of proposed federal actions—i.e., proposed activities and projects that require federal approval or authorization to carry out—before making a final decision on such action. Examples of proposed federal actions include open pit mining, hydroelectric dam projects, natural gas pipelines, liquefied natural gas terminals, airports, forest management, etc. In general, an agency's environmental review (NEPA review) consists of a comprehensive analysis of the proposed action's impacts on the air, land, waterbodies, vegetation and the animal and human populations. While industry representatives and project developers believe that NEPA reviews constitute a rigorous examination of a proposed action's impacts, environmental advocates assert that the NEPA reviews are deficient because they do not go far enough to capture all related environmental impacts, especially those involving greenhouse gas emissions.

In response to calls from environmental advocates to increase the level of scrutiny of greenhouse gas emissions, the CEQ, on December 18, 2014, issued draft guidance concerning how federal agencies should consider greenhouse gas emissions and climate change in their NEPA reviews.3 Although the draft guidance has been made available for public comment, it is not a rulemaking and does not constitute new NEPA regulations; therefore, no new legal obligations arise from this guidance. Nevertheless, the two main principles conveyed by the draft guidance are that an agency's NEPA review should consider: (1) the potential effects of a proposed action on climate change as indicated by its greenhouse gas emissions and (2) the implications of climate change for the environmental effects of a proposed action.

With respect to the first principle, the draft guidance explains that agencies should use projected greenhouse gas emissions amounts (including amounts of carbon sequestration and storage) when assessing the proposed action's effect on climate change. The CEQ explains that, in its view, proposed actions lead to incremental, or project-by-project, climate change impacts, which have not been afforded the appropriate level of attention and analysis in prior NEPA reviews. The CEQ advises that agencies should perform a degree or level of analysis of the proposed action's greenhouse gas emissions and their effect on climate change that is proportional to the quantity of those emissions. The draft guidance also sets forth a quantitative analysis baseline whereby proposed actions with annual emissions greater than or equal to 25,000 metric tons of CO2 equivalent would need to include a detailed quantitative emissions analysis in the NEPA review.

One noteworthy aspect of the draft guidance involves the temporal and spatial proximity or relationship between the proposed action and the environmental impact. While both direct and indirect climate change effects of the proposed action have to be accounted for in the analysis, the CEQ also recommends an examination of certain "connected" actions, and other activities that have a reasonably close causal relationship to the proposed action. Under this recommendation, a NEPA review should consider emissions from activities occurring prior to or "upstream" of the proposed action, as well as follow-on or "downstream" activities. In addition, the standard consideration of direct, indirect and cumulative effects, as directed by the CEQ regulations, has to be conducted and included in the NEPA review. The draft guidance provides an example of what the CEQ believes is necessary to include in the NEPA analysis. For example, in a proposed open pit mining project, NEPA review would require an analysis of land clearing, access road construction, transportation of the mined resource, resource refining and processing and use of the resource. Furthermore, NEPA analyses may include a review of the applicable environmental laws and regulations, such as emissions targets, specific to the proposed action to give context and a frame of reference to the impacts discussed therein.

With respect to the second principle, the agency performing the NEPA review should analyze the effects that climate change may have on the environmental impacts of a proposed action. The draft guidelines recommend that agencies examine and compare the current state of the environment to the condition of the environment post-action, using a timeframe concurrent with the project's anticipated lifespan. Such analysis would involve and focus on environmental impacts that are affected by both the proposed action and the effects of climate change. Examples provided in the draft guidelines include an analysis of the construction, operation and maintenance of projects located near coastlines or in locations vulnerable to the effects of sea level rise or storm surge, or projects dependent on the availability of inland water supplies.

The draft regulations have received mixed reviews, with industry advocates opposing and environmental proponents praising the guidelines. Although these draft guidelines closely resemble arguments made by environmental advocacy groups before agencies such as the Federal Energy Regulatory Commission (FERC) in natural gas pipeline and LNG terminal proceedings, it is unknown at this time when or what will be adopted as final guidance, or what the actual effect will be given that these guidelines will not be incorporated with the CEQ's regulations. Coinciding with the draft guidance is one case pending in the Court of Appeals for the District of Columbia Circuit that has the potential to determine to what extent under NEPA agencies are required to consider the impacts of natural gas production—which would include air emissions impacts—even if that production is not part of the proposed project. Additional clarity should result from the resolution of the draft guidance and related court proceeding; however, until then, it might be useful for industry personnel and project developers to be prepared to consider these questions in the future.


1. 42 U.S.C. §§ 4321 et seq.

2. 40 C.F.R. Parts 1500-1508.

3. Revised Draft Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in NEPA Reviews, 79 Fed. Reg. 77,802 (proposed Dec. 18, 2014), available at https://ceq.doe.gov/current_developments/docs/nepa_revised_draft_ghg_guidance_searchable.pdf.

If you have any questions about this Alert, please contact Sheila Slocum Hollis or Dennis J. Hough in the firm's Washington, D.C. office, any of the attorneys in our Energy, Environment and Resources Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.