Special Topics in Environmental Management

NEPA Draft Guidance: Comment Period Extended, Climate Considerations Mostly Absent

In response to public requests, the White House Council on Environmental Quality (CEQ) is extending the comment period on its draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions. Comments on the draft will now be accepted by the CEQ until August 26, 2019.

The draft directs federal agencies to consider greenhouse gas (GHG) emissions in environmental reviews they must complete under the National Environmental Policy Act (NEPA). However, consideration of the impacts of climate change itself appears to be a lower priority.

The draft is intended to replace previous guidance the CEQ issued under the Obama administration. The CEQ withdrew that document for further consideration pursuant to President Donald Trump’s Executive Order 13783, Promoting Energy Independence and Economic Growth.

Expedite Permitting

Under NEPA authority, the CEQ establishes rules and guidelines federal agencies must follow when assessing the impact of their actions on the environment. Environmental reviews developed by agencies must include reasonable alternatives, including a no-action alternative, to the proposed action, along with mitigation measures not contained in the proposal for the action. Federal and state agencies will not approve major projects absent a completed NEPA review, and protective measures described in those reviews are typically incorporated into project permits. In 2018, the CEQ said the average for completing federal NEPA reviews is 4 ½ years; reviews for controversial projects have stretched over 10 years. The Trump administration has been exploring ways to reduce the maximum time allowed for federal NEPA reviews to 2 years.

Climate—a Fundamental Environmental Issue

Regardless of how it might extend the NEPA review process or the nature of mitigation measures, the Obama guidance document made consideration of direct and indirect GHG emissions and climate impacts a central consideration in reviews. That guidance stated:

“Climate change is a fundamental environmental issue, and its effects fall squarely within NEPA’s purview. Climate change is a particularly complex challenge given its global nature and the inherent interrelationships among its sources, causation, mechanisms of action, and impacts. Analyzing a proposed action’s GHG emissions and the effects of climate change relevant to a proposed action—particularly how climate change may change an action’s environmental effects—can provide useful information to decision makers and the public.”

GHGs as a Proxy

Neither that language nor anything close to it appears in the new draft guidance. In fact, the guidance places no particular emphasis on determination of climate effects and seems to indicate that NEPA reviews can stop with the estimation of GHG emissions from a project.

“Agencies preparing NEPA analyses need not give greater consideration to potential effects from GHG emissions than to other potential effects on the human environment,” states the draft. “A projection of a proposed action’s direct and reasonably foreseeable indirect GHG emissions may be used as a proxy for assessing potential climate effects.”

Regarding research into climate effects, both the Obama guidance and the Trump draft noted that no agency is required to develop new information. However, the Obama guidance recommended that agencies “review their NEPA procedures and propose any updates they deem necessary or appropriate to facilitate their consideration of GHG emissions and climate change.”

The CEQ’s draft removes this recommendation, simply stating, “Agencies need not undertake new research or analysis of potential climate effects and may rely on available information and scientific literature.”

Finally, the draft notes that in their economic analyses, agencies are not required to place a dollar value on all effects of a proposed action. Specific to GHG emissions, the draft states, “Monetization or quantification of some aspects of an agency’s analysis does not require that all effects, including potential effects of GHG emissions, be monetized or quantified. Where an agency decides to quantify some effects, but not others, the agency should explain the choices it has made in its analysis.”

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