The Biden administration has continued its efforts to reverse the previous administration's approach to climate change, this time relating to the National Environmental Policy Act (NEPA), which requires reviews of large infrastructure projects. First, the White House's Council on Environmental Quality (CEQ) announced it is rescinding its “Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions,” issued in June 2019 but never finalized. Second, the Department of Justice (DOJ) asked the U.S. District Court for the Western District of Virginia to pause proceedings in a lawsuit challenging CEQ's July 2020 revisions to NEPA's implementing regulations, which the court denied. Both moves follow from President Biden's Day One Executive Order entitled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” which instructed federal agencies to review and consider rescinding all environmental rules promulgated under the previous administration.
CEQ Rescission of Draft NEPA Guidance (and Return to 2016 Guidance)
In rescinding the 2019 draft guidance,1 CEQ encouraged agencies to apply its 2016 guidance on the subject—which the 2019 draft guidance would have replaced—while it considers whether and how to revise and update the 2016 guidance. That guidance recommends that agencies quantify a proposed action's projected direct and indirect greenhouse gas (GHG) emissions and use those projected emissions, including carbon dioxide sequestration implications, as a proxy for assessing potential climate change effects. It also recommends that, where projected GHG emissions are too difficult to quantify, agencies explain why and analyze estimated emissions qualitatively instead. The guidance also counsels agencies to use information developed during the NEPA review to consider alternatives that would make the actions and affected communities more resilient to climate change effects, and outlines special considerations for analyzing biogenic carbon dioxide sources (e.g., landfills) and carbon stocks (e.g., vegetation) associated with land and resource management actions.
We expect that CEQ will issue new draft guidance in the coming months, in line with the Biden administration's initiatives to consider the most up-to-date science, as well as environmental justice concerns, in federal actions during the next four years. Such guidance will likely encourage or require agencies to utilize forthcoming “ social costs of GHGs.”
Motion for Stay of NEPA Lawsuit
Around the same time Biden's CEQ rescinded the draft GHG guidance, the DOJ sought a pause in the Western District of Virginia lawsuit brought by a number of local environmental groups to CEQ's July 2020 final rule that revised NEPA procedures for federal agencies.2 In the past three weeks, courts had issued stays at the DOJ's request in the other four cases brought by states and environmental groups challenging the rule around the country. Here, the DOJ sought “an equivalent 60-day stay” to “allow CEQ the time it requires to review the 2020 Rule and determine next steps” and “maintain a coordinated approach in all five cases.” The plaintiffs opposed the stay request, saying that because the rule was already in effect, delay could result in agency actions that would harm them, and they cited nearly 30 examples of agency decision-making processes in which they said that aspects of the new rule were already being implemented. The court agreed with the plaintiffs, finding even a 60-day stay would lead to unreasonable delays in resolving the case and cause harm to the plaintiffs, but did grant the government's alternative request for extra time to file its reply in support of its motion for summary judgment, now due March 17. The net effect is a three-week pause in proceedings. Interestingly, the plaintiffs' opposition to the stay request indicates that environmental groups will be holding the administration's feet to the fire when it comes to acting on policy pronouncements such as the regulatory review.
At the end of the day, NEPA is still a procedural statute, designed to inform the public and agency decision makers regarding the environmental impacts of major federal actions, and CEQ changes to NEPA's implementation can do only so much. However, agencies will feel pressure to include more robust and specific discussions of climate change impacts, giving public interest groups and lawmakers more room to apply political pressure and courts more room to pick apart inadequate reviews. Moreover, these actions make clear that the Biden administration is forging ahead with its all-of-government approach to combating climate change,3 in this instance, through NEPA's environmental reviews of major projects.
1 The draft NEPA guidance would have narrowed how federal agencies consider climate change impacts in their reviews of major federal actions, such as issuing permits for pipelines or highways, or providing significant funding for such projects. The draft guidance aimed to give agencies broader discretion in their NEPA reviews by allowing them to consider GHG emissions during construction and localized impacts during operation (e.g., methane leaks from a pipeline), but did not require agencies to consider contributions to climate change generally. Specifically, the draft guidance directed agencies to assess GHG effects only “when a sufficiently close causal relationship exists between the proposed action and the effect,” and that a “‘but for' causal relationship is not sufficient.” It also limited quantification of a project's estimated GHG emissions, and told agencies they did not have to use a “social cost of carbon” estimate in weighing project alternatives.
2 The revisions were comprehensive; perhaps most notably, CEQ redefined “reasonable alternative” to explicitly exclude alternatives not “technically or economically feasible” and redefined “effects” to narrow the scope at which they must be analyzed. However, CEQ refrained in the rulemaking from taking any action to codify the draft GHG emission guidance.
3 In fact, on the same day CEQ announced it was withdrawing the 2019 draft guidance, the Federal Energy Regulatory Commission (FERC) issued a “ notice of inquiry” seeking comment on its approach for certifying natural gas projects, including how it evaluates GHG impacts for such projects under NEPA. Also, on February 17, the Department of Transportation (DOT) announced an $889 million funding opportunity under the Infrastructure for Rebuilding America (INFRA) program. While this grant program, which funds transportation projects of national and regional significance, is authorized in law and has been in effect through the prior administration, this new announcement stated for the first time that DOT will favor projects that address climate change and environmental justice.
Originally Published by Akin Gump, February 2021
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