• Council on Environmental Quality Proposes Draft Guidance on GHG and Climate Change Consideration in NEPA Disclosures
  • April 29, 2015 | Author: Greg S. Martin
  • Law Firm: Jones Day - San Diego Office
  • On December 18, 2014, the Council on Environmental Quality ("CEQ") released a new draft guidance on when and how federal agencies should consider the effects of GHG emissions and climate change in their reviews under the National Environmental Policy Act ("NEPA"). This likely will expand the scope and complexity of a project's NEPA analyses.

    NEPA requires that federal departments and agencies consider and disclose potential environmental effects caused by major federal actions. The proposed guidance now requires that this disclosure include analysis of both the potential effects of a proposed action on climate change—with projected GHG emissions used as a proxy for climate change impacts—and the implications of climate change on the environmental effects over the proposed action's lifespan.

    For the GHG emissions analysis, the CEQ notes that many previous NEPA analyses conclude merely that the GHG emissions from the individual action are inconsequential to global climate change effects. The CEQ now explicitly states that this is not an appropriate basis to consider the climate impacts and cautions against relying on such "boilerplate texts to avoid meaningful analysis" of GHG and climate change effects. Instead, the depth of the agency’s emissions analysis should be proportional to the projected level of GHG emissions and climate impacts. The proposed guidance recommends that projects with estimated GHG emissions over 25,000 annual metric tons likely warrant a quantitative assessment of emissions and sequestration.

    To analyze the effect of future climate change on the project, agencies should compare the current and future state of the environment without the proposed action to the anticipated state of the environment over the lifespan of the proposed action. This analysis should focus on the aspects of the affected environment that will be affected by both climate change and the proposed action. Consequently, the CEQ recommends that the agency consider alternatives that are more resilient or adaptive to the effects of a changing climate. A cost-benefit analysis may be relevant to choosing among such alternatives.

    Other notable changes in the draft guidance are its application to federal land and resource management actions—previously understood to be excluded under NEPA—and the requirement that the NEPA analysis consider activities that have a reasonably close causal relationship to the federal action, encompassing both upstream and downstream emissions.

    The public comment period for the draft guidance closes on February 23, 2015.