NEPA Greenhouse Gas Guidance Released by CEQ

This week, the White House Council on Environmental Quality released final guidance for Federal agencies intended to clarify when and how they conduct GHG analyses as part of National Environmental Policy Act (“NEPA”) reviews.  GHG guidance was first drafted in 2010, and revised in 2014.  Previous draft versions of the guidance stated that projects expected to cause less than 25,000 metric tons of carbon dioxide-equivalent emissions per year did not need to undergo a quantitative emissions analysis.  Jessica Wentz, associate director of the Sabin Center for Climate Change at Columbia Law School, stated that between 2012 and 2014, many agencies cited this numerical threshold as a reason for not quantifying GHG emissions. 

The 25,000 metric ton threshold was removed from the final guidance.  According to the director of the Natural Resources Defense Council’s Land and Wildlife Program, Sharon Buccino, the final guidance will potentially apply to most NEPA cases, especially projects that consider whole landscapes, such as land-use management plans.  However, the final guidance also references “the rule of reason,” which indicates that federal agencies will still retain some discretion in how to apply the guidance.

The final guidance also states that if GHG emissions can be quantified, agencies should “consider and disclose the reasonably foreseeable direct and indirect emissions when analyzing the direct and indirect effects” of a project.  In our view, this could lead to agencies weighing long-range effects that they haven’t considered before.  As an example, the final guidance uses a federal lease sale of coal for energy production.  The guidance states that the impacts associated with the end-use of the fossil fuel being extracted would be the reasonably foreseeable combustion of that coal. 

Though guidance documents do not carry the force of rules or regulations, the final GHG guidance will be cited in NEPA and Administrative Procedure Act litigation, briefing and comment letters from project opponents.

Download the Guidance Documents HERE.