Legal Alerts

Guidance may impact agency actions currently undergoing NEPA review and joint NEPA/CEQA documents

The White House’s Council on Environmental Quality has issued new guidance directing federal agencies to evaluate greenhouse gas emissions and climate change when preparing documents for proposed agency actions under the National Environmental Policy Act. Although CEQ’s guidance document is, as the name indicates, just guidance, it will likely result in changes to the way NEPA documents are drafted and provide ammunition to project opponents if the guidance is not followed.

A key point made in the new guidance document is that federal agencies should quantify GHG emissions when possible, regardless of a proposed action’s size. This emphasis appears to have stemmed from concern that GHG emissions might be overlooked on the basis that climate change occurs on a global scale and a single action makes only a small contribution to global conditions. CEQ’s guidance makes clear that agencies should not limit themselves to calculating a proposed action’s emissions as a percentage of sector, nationwide or global emissions in deciding whether or to what extent to consider climate change impacts under NEPA.

The emphasis on quantifying GHG emissions for all projects is a change from CEQ’s previous draft guidance document, which included a threshold of 25,000 metric tons of CO₂-equivalent emissions before quantification was warranted. The new guidance eliminates this threshold and instead recommends that agencies quantify a proposed agency action’s direct and indirect GHG emissions without “establish[ing] any particular quantity of GHG emissions as ‘significantly’ affecting the quality of the human environment.” Although federal agencies may apply the rule of reason when determining the level of review that is appropriate, CEQ’s guidance recommends that where agencies do not quantify a proposed action’s anticipated GHG emissions “agencies include a qualitative analysis in the NEPA document and explain the basis for determining that quantification is not reasonably available.”

In addition to other directives, CEQ’s guidance document makes clear that NEPA analyses should evaluate not only a proposed action’s impact on climate change, but also the effects of climate change on the proposed action. This approach diverges from environmental review under the California Environmental Quality Act, where documents do not need to consider the effects of the environment on a project, as recently confirmed by the California Supreme Court. Agencies should be mindful of this divergence when preparing joint NEPA/CEQA documents.

CEQ’s new guidance document will impact future agency actions subject to NEPA and potentially even agency actions currently undergoing NEPA review. As a result, agencies and project proponents should work closely with legal counsel to ensure their NEPA documents are consistent with CEQ’s new guidance.

If you have any questions about the new guidance or how it may impact your organization, please contact the attorney authors of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.

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