The White House’s Council on Environmental Quality (CEQ) recently issued updated draft guidance on how federal agencies should consider greenhouse gas (GHG) emissions and the attendant impacts on climate change when conducting environmental analysis under the National Environmental Policy Act (NEPA).  CEQ simultaneously released related, final guidance on conducting programmatic NEPA reviews.  While these actions are designed to improve the consistency and predictability of permitting approaches and thereby facilitate NEPA reviews, they do increase the focus on GHGs for federal permitting considerations and may make it easier for environmental and community groups to challenge project approvals on these grounds.  They may also provoke a careful look from Congress on the basis for CEQ’s focus on GHGs.

The proposed guidance, an update of CEQ’s earlier February 2010 draft guidance, includes significant provisions that will likely increase the scope and complexity of many NEPA analyses.  CEQ seeks to clarify how agencies should assess and describe the effects of greenhouse gases as well as the impact of climate change on proposed federal actions.  Some of the key provisions are as follows:

• The draft guidance would more clearly require federal agencies to evaluate GHG impacts by federal actions, including federal project approvals or federal funding decisions.  The draft treats GHGs in a similar manner to other pollutants caused by federal activities.

• Unlike the 2010 version, the current draft guidance does not exclude federal land and resource management actions.  As a result, the guidance would apply to many actions previously thought to be excluded, including natural resource activities on federal and tribal land.

• Agencies are encouraged to provide quantitative estimates of GHG emissions and sequestration, and are discouraged from using simple recitations that the emissions from a particular action would represent only a small fraction of global emissions.  However, in following the rule of reason and concept of proportionality, quantitative analysis of emissions is generally not required if expected annual emissions are below 25,000 tons of CO2e, or some other threshold that an agency selects and justifies.

• Consideration should be given to mitigation measures and alternatives to reduce the level of potential GHG emissions.  Some mitigation methods may include enhanced energy efficiency, carbon sequestration, and using renewable energy.

• Agencies are also asked to consider the effect of a changing environment on proposed projects.  For example, an infrastructure project on a coast will want to account for the environmental consequences of rebuilding if raised sea levels or storms reduce the projected life of the infrastructure.

Some provisions may be prove particularly difficult to comply with and will likely be a significant source of continuing challenge and litigation.  For example, the draft guidance calls on agencies to include in NEPA analyses “emissions from activities that have a reasonably close causal relationship to the Federal action,” which can include both upstream emissions (those that may occur as a predicate for agency action) and downstream emissions (those that may occur as a consequence of the agency action).  Project applicants will want to consider carefully the scope of their analysis in order to minimize the potential for adverse litigation outcomes by satisfying the draft guidance’s approach.

The release of the final programmatic guidance, which became effective December 23, 2014, guides agency decisionmakers and the public in complying with NEPA and indicates that CEQ is striving to make NEPA as workable as possible.  To that end, the final guidance encourages agencies to use programmatic and tiered NEPA reviews wherever appropriate.

The draft guidance will be available for 60 days of public comment.