United States: White House Issues Final Guidance On Consideration Of Greenhouse Gas Emissions In NEPA Reviews

Elizabeth Lake is a Partner and Daniel Golub is an Associate in Holland & Knight's San Francisco office
Daron Threet is a Partner in Holland & Knight's Washington, D.C. office

HIGHLIGHTS:

  • The White House Council on Environmental Quality (CEQ) published its final guidance on considering greenhouse gas (GHG) and climate change impacts in reviews conducted under the National Environmental Policy Act (NEPA).
  • The final NEPA guidance directs federal agencies to analyze a project's GHG emissions using a quantitative analysis whenever the tools and data are "reasonably available."
  • The guidance leaves a great deal of discretion to individual federal agencies to determine what quantity of GHG emissions should be considered "significant," to what extent a project's "indirect" impacts on climate change should be attributable to the project, and when and to what extent alternatives and mitigation measures should be used to reduce GHG emissions.

After more than six years of review and the issuance of several draft guidance documents, the White House Council on Environmental Quality (CEQ) published on Aug. 5, 2016, its final guidance on considering greenhouse gas (GHG) and climate change impacts in reviews conducted under the National Environmental Policy Act (NEPA). See Holland & Knight's May 2015 alert for an analysis of the prior draft guidance.

Although CEQ notes that the guidance is not legally binding, as a practical matter, the final guidance effectively requires agencies to:

  • analyze a project's GHG emissions, as well as the effects the changing climate may have on a proposed project over the project's lifetime
  • use a quantitative (rather than qualitative) analysis to assess a project's projected GHG emissions whenever the tools and data to do so are "reasonably available"
  • provide a "recognizable frame of reference" by considering whether a project would be consistent with regional, state, tribal or local climate change plans, policies or laws

Beyond these requirements, it will remain up to agencies to determine what quantity of GHG emissions will be considered "significant," to what extent a project's indirect impacts (such as so-called "upstream" or "downstream" GHG emissions) should be attributed to a project, and when and to what extent alternatives and mitigation measures to reduce GHG emissions should be required.

Courts have held that NEPA is a procedural statute, requiring only a "hard look" at environmental impacts. See NRDC v. Morton, 458 F.2d 827, 838 (D.C.Cir., 1972). Despite this, the final guidance's discussion of alternatives and mitigation measures contains language that some federal agencies could cite as justification to use the NEPA process to force the substantive reduction of GHG emissions. It remains to be seen which agencies will see CEQ's guidance as an invitation to go beyond the "hard look" doctrine, and which agencies will instead follow the guidance's frequent admonitions to follow the "rule of reason" and conduct NEPA analyses that are reasonably proportionate to the scale of each project's impacts on global climate change.

The key features of the final guidance are discussed below:

Quantifying GHG Emissions to Analyze a Project's Impact on Climate Change

Citing the global scope of impacts of GHG emissions, the final guidance recommends that agencies use projected GHG emissions associated with a proposed action as a proxy for assessing a project's potential effects on climate change.

The final guidance is clear that a quantitative analysis is preferred over a purely qualitative analysis. Unlike prior drafts, the final guidance removed the 25,000 metric tons of carbon dioxide (CO2) per year threshold under which a proposed project would not have been required to disclose a quantitative analysis. The guidance advises agencies to use appropriate, available tools and methodologies to quantify GHG emissions, but notes that it does not expect agencies, and importantly, project proponents, to fund or conduct original climate change research to support NEPA analyses. If an agency determines that it will only perform a qualitative analysis, it should explain the basis of its determination that quantification tools are not reasonably available.

Following the "rule of reason" and basic principles of proportionality, the final guidance recommends that the depth of analysis should be commensurate with the scale of a project, but provides no guidance on how to judge significance.

No Guidance on Establishing a Level of Significance

The final guidance explicitly declines to establish any specific quantity or threshold of GHG emissions that would factor into an agency's "significance" determination regarding the need to prepare an environmental impact statement (EIS). Determinations of potential "significance" remain subject to individual agency practice, including normal considerations under NEPA of the context (the relationship of the impact to its environment) and intensity (the severity of the impact) of actions. As a practical matter, it is not clear how agencies will make this determination for GHG emissions, where every incremental addition exacerbates a global problem. It will remain up to individual agencies to make the critically important determination of when a project's GHG impacts are sufficient to require an EIS.

"Frame of Reference" for GHG Emissions

The final guidance also advises agencies to use a "recognizable frame of reference" when evaluating GHG emissions. Specifically, agencies should reference relevant and approved federal, regional, state, tribal or local plans, policies or laws for GHG emission reductions or climate adaptation to "make clear" whether a proposed project's GHG emissions are consistent with such plans or laws. As an example, CEQ notes that the U.S. Department of the Interior's Bureau of Land Management has appropriately discussed how agency actions in California may or may not facilitate California reaching its emission reduction goals under California's Global Warming Solutions Act of 2006, AB 32 (Stats. 2006, Ch. 488).

While the final guidance indicates that this "frame of reference" will inform the policy discussion, it may also be useful in defining significance or analyzing alternatives and mitigation.

Analyzing a Project's Indirect Impacts on Climate Change

In assessing GHG effects, CEQ instructs agencies to take into account the proposed action, including any "connected" actions, "subject to reasonable limits based on feasibility and practicality." The final guidance provides that activities that have a "reasonably close causal relationship" to the federal action should be included in the NEPA analysis. Although the final guidance dropped the use of the terms "upstream" and "downstream" emissions, which were controversial concepts in the preceding draft, CEQ still maintains that a NEPA analysis should account for actions that may occur as a predicate for a proposed agency action or as a consequence of a proposed agency action. Thus, it is not clear how far the agencies' analyses should extend into the "lifecycle" of emissions.

In the final guidance, CEQ uses an example of a resource extraction project to explain that a NEPA review could include the reasonably foreseeable effects of various phases in the process, such as clearing land for the project, building access roads, extraction, transporting the extracted resource, refining and processing, and notably "using the resource." To clarify the point regarding the "end-use" of resources, the guidance provides an example of federal land leases for the sale of coal for energy production and instructs that the impacts associated with the end-use of the extracted coal include the reasonably foreseeable combustion of the coal.

Beyond these specific examples, CEQ does not provide guidance regarding how close the "causal relationship" must be to include "upstream" or "downstream" impacts in the project review. Again, federal agencies may take disparate approaches to including "downstream" or "upstream" GHG emissions in the calculations of a project's climate change impacts.

Impact of Climate Change During the Life of a Project

In addition to requiring an analysis of a project's GHG emissions, the final guidance directs agencies to consider the extent to which a proposed action and its reasonable alternatives are potentially affected by the changing climate, including how the project's environmental impacts might change over time. CEQ notes that climate change can make a resource, ecosystem, human community or structure more susceptible to many types of impacts and lessen its resilience to other environmental impacts apart from climate change. The final guidance directs agencies to consider these potential vulnerabilities in impact analyses and to evaluate initial project designs, as well as alternatives with greater potential resilience to climate impacts, in making decisions. For example, where a proposed project would withdraw water from a stream, future projections of rainfall and snow pack on water levels in the stream should be considered, or where a proposed project would include potentially vulnerable coastal infrastructure, such as on a barrier island, the consequences of sea level rise or more intense storms should be considered.

Alternatives and Mitigation

NEPA is known as a "hard look" statute, under which the lead agency is required only to disclose the impacts and consider a reasonable range of alternatives. The U.S. Supreme Court has held that NEPA does not require an agency to mitigate the impacts of proposed actions and monitoring is not required. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989). Despite this, CEQ recommends in the final guidance that agencies should consider both alternatives and mitigation that may reduce GHG emissions and climate change effects. CEQ further recommends that agencies should also consider adopting appropriate mitigation monitoring for GHG reductions. The final guidance does not, however, specifically clarify when these recommendations should be implemented (i.e., whether such considerations are only implicated when the GHG impacts of a proposed project are significant).

The Bottom Line

In the prior draft guidance, CEQ predicted that "[t]his guidance should also reduce the risk of litigation driven by uncertainty in the assessment process as it will provide a clearer expectation of what agencies should consider and disclose." See 79 Fed. Reg. 77824 (Dec. 24, 2014). Perhaps tellingly, the final guidance does not make any such claim.

CEQ's final guidance provides some certainty to agencies and project proponents regarding the overall approach to including GHG and climate change impacts in NEPA reviews, the need to provide a quantitative analysis of GHG emissions whenever it is reasonably possible to do so, and the need to use the "rule of reason" to conduct an analysis that is reasonably proportionate to the scale of a project. But the final guidance leaves fundamental questions for individual agencies to answer, including the point at which GHG impacts should be considered "significant," the extent to which "upstream" or "downstream" emissions should be considered part of a project's impacts, and the extent to which alternatives and mitigation measures to reduce GHGs should be included. Since different state and local governments have different climate change policies and laws, CEQ's guidance to include a "frame of reference" in NEPA analyses could lead to different significance findings in different states. Finally, encouraging federal agencies to require technology-forcing mitigation and monitoring, even when impacts may not be significant, could increase the regulatory burden and raise nexus and litigation potential.   

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

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.

Authors
Similar Articles
Relevancy Powered by MondaqAI
McDermott Will & Emery
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
McDermott Will & Emery
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must 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.

Disclaimer

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.

General

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