Download CEQ Draft Guidance on Consideration of the

CEQ Draft Guidance on Consideration
of the Effects of Climate Change and
Greenhouse Gas Emissions
Seth D. Jaffe
Foley Hoag LLP
June 2, 2010
© 2009 Foley Hoag LLP. All Rights Reserved.
© 2010 Foley Hoag LLP. All Rights Reserved.
Topics for Discussion

Background to the Proposal
– CEQ’s 1997 Draft Guidance
– NEPA and Greenhouse Gases in the Courts
– 2008 Petition of the ICTA, NRDC, and Sierra Club –
http://www.icta.org/doc/CEQ%20Petition%20Final%20Version%202-28-08.pdf

CEQ’s Draft guidance –
(http://ceq.hss.doe.gov/nepa/regs/Consideration_of_Effects_of_GHG_Draft_NEPA_
Guidance_FINAL_02182010.pdf)
– Tone and Significance
– Greenhouse Gas Emissions Effects of a Proposed Action
• 25,000 tpy of CO2e: a threshold or not?
• Approaches to measuring emissions
– Climate Change Impacts on a Proposed Action
– Open Questions

Responses to the Draft

Implications and Issues
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CEQ’s 1997 Draft Guidance

The 1997 Guidance:
– Explained that scientific evidence supported the existence of climate change
– Stated that NEPA “provides an excellent mechanism for consideration of ideas
related to global climate change”
– Provided that climate change was a “reasonably foreseeable” impact of emitting
greenhouse gases
– “Federal agencies must determine whether and to what extent their actions
affect greenhouse gases. Further, federal agencies must consider whether the
actions they take, e.g., the planning and design of federal projects, may be
affected by any changes in the environment which might be cause by global
climatic change.”
– Suggested that program level analysis of climate change was likely to be more
helpful than project level analyses
– Urged agencies to stay up to date on climate science in order to better predict
impacts climate change might have on federal projects

All of these themes reemerge in the 2010 guidance
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NEPA and GHGs in the Courts
 Law already exists holding that NEPA, at least in some

circumstances, requires consideration of GHG emissions
Several high profile cases have held or implied that GHGs should
be considered in NEPA reviews, but have not necessarily clarified
the precise obligations agencies have in this regard:
– Border Power Plant Working Group v. Department of Energy, 260 F.Supp.2d 997
(S.D. Cal. 2003) (EIS should have considered air emissions including CO2)
– Friends of the Earth, Inc. v. Mosbacher, 488 F.Supp.2d 889 (N.D. Cal. 2007)
(allowing case alleging international financing actions would generate
greenhouse gas emissions to go forward)
– Center for Biological Diversity v. National Highway Traffic Safety Administration,
538 F.3d 1172, 1217 (9th Cir. 2008) (“The impact of greenhouse gas emissions
on climate change is precisely the kind of cumulative impacts analysis that
NEPA requires agencies to conduct.”)
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The 2008 Petition
 International Center for Technology Assessment, NRDC, and
Sierra Club petitioned CEQ to amend its regulations to clarify that
Climate Change analysis should be included in NEPA reviews
– Petitioners argued that NEPA and existing regulations included
obligations to consider climate change
– Nevertheless, the petitioners asked CEQ to amend its NEPA
regulations and issue a guidance memorandum so as to “fulfill its
statutory responsibilities” to advise and instruct federal agencies on this
important issue
 Center for American Progress issued a document calling for an
executive order to clarify that federal agencies must address
greenhouse gas emissions in their NEPA reviews
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CEQ’s Draft Guidance
 As part of its 40th anniversary, CEQ proposed steps to “modernize


and reinvigorate” NEPA on February 18, 2010
One of those steps was the issuance of draft guidance on the
consideration of GHGs
The two other draft guidance documents issued on the same date
are also significant and are also relevant to how NEPA will be
applied to climate change
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Current Status
 Is not currently effective
 90 day public comment period ended on May 24th
 CEQ recently held “listening sessions”
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CEQ’s Draft Guidance: Big Picture
 Follows the same outline as the draft guidance from 1997
 Addresses many of the concerns raised in the 2008 petition, but
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does not reach the level of specificity the petition requested
Generally requires consideration for actions causing direct annual
emissions exceeding 25,000 metric tons
Does not apply to land and resource management actions.
Focus on cumulative effects
Goes both ways – analysis must assess impact of climate change
on project as well as impact of project on climate change
Guidance is limited in scope and seems to strain to emphasize its
own reasonableness
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CEQ’s Draft Guidance:
Emission Effects of a Proposed Action
 25,000 tpy direct CO2e emissions as a general threshold for NEPA
applicability
– However – 25,000 tpy is an “indicator,” not an “absolute standard”
 Examples of actions for which analysis probably should occur:
– Approval of a large solid waste landfill;
– Approval of energy facilities such as a coal-fired power plant;
– Authorization of a methane venting coal mine;
– Programmatic actions.
 Analysis should:
– Quantify cumulative emissions over the life of a project;
– Discuss GHG reduction measures and alternatives;
– Qualitatively discuss link between GHG emissions and climate change.
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Some More Details
 Gives suggested methods for quantifying emissions by referring to
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

other requirements (specifically EPA’s GHG reporting rule)
Emphasizes that the purpose of NEPA is to assist the decisionmaking process and that a “rule of reason” should govern the
extent of the GHG analysis
Encourages consideration of mitigation
Encourages agencies to consider GHGs as part of programmatic
analyses that can then be incorporated into analyses for individual
actions
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Impact of Climate Change on a Proposed Action
 Agencies should consider not only the impact of emissions on

climate change, but also the impact of climate change on actions
Climate change impacts include:
– Exposing structures to greater risk of floods, storm surges, and higher
temperatures
– Increasing the vulnerability of a resource, ecosystem, or community,
and thereby making consequences of proposed actions more damaging
than would otherwise be the case
 Examples include:
– An industrial process that draws water from a stream that is dwindling
because of decreases snowpack, or adds heat to a water body
exposed to increasing atmospheric temperatures
– Developing transportation infrastructure along coastal barrier islands
that may be impacted by rising sea levels
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Impact of Climate Change on a Proposed
Action (Cont.)
 Analyses are bounded by the “rule of reason”
 Prioritizes analysis of “aspects of the environment that are affected
by the proposed action and the significance of climate change for
those aspects of the affected environment”
– “Agencies should consider the specific effects of the proposed action
(including the proposed action’s effect on the vulnerability of affected
ecosystems), the nexus of those effects with projected climate change
effect on the same aspects of our environment, and the implications for
the environment to adapt to the projected effects of climate change.”
 Acknowledges limits on the ability to predict the impacts of climate

change on a regional or project relevant level
Agencies are not required to undertake research on the effects of
climate change and suggests sources of reliable information
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Open Questions
 Does not apply to land and resource management actions
 CEQ asked for comments on how to apply NEPA to such actions
– While the CEQ Draft Guidance does not propose to apply to land
management actions, federal land management agencies often have
policies requiring the consideration of GHG emissions in agency
actions
 CEQ has asked for comments on how to apply NEPA to long-range

energy and resource management programs
CEQ has asked for comments on whether it should provide
guidance to agencies on determining whether GHG emissions are
“significant” for NEPA purposes
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Congressional Response to Draft
 Barton/Burgess letter to CEQ. Letter focuses on cost of complying

with GHG NEPA guidance and whether guidance is consistent with
a “jobs first” approach to policy
Inhofe Legislation – S. 3230 would preclude federal agencies from
analyzing GHGs under NEPA
http://www.eenews.net/features/documents/2010/04/20/document_
gw_03.pdf
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Public Response To Date
 Responses to the Draft have been mixed
 Many see the Draft simply as a general statement that GHGs fall
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within the scope of NEPA
The Draft has been criticized for its generality and for failing to
provide clarity to the preparers of NEPA documents
Specific criticism has focused on identifying a 25,000 tpy threshold
but not making that threshold a trigger
Whether and how to address land and resource management
actions is likely to be controversial
Concerns about increased costs and delays
Potential for litigation
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Public Response To Date (Cont.)
 NEPA mitigation requirements could serve as a market driver
 Federal action may encourage more states to follow suit
 “Much ado about nothing” – NEPA already requires this
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Potential Implications/Issues
 How much of an impact can NEPA analysis really have
– What we can affect v. what really matters
– How can NEPA analysis be used for decision-making given an “x
plus/minus 10x” situation
– Real game is in programmatic analysis
 Analysis of feedback loop issues is very difficult
– No more coastal roads?
– What is the role of the market and insurance to address these issues?
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Contact Information
Seth D. Jaffe
Chair, Administrative Law Department
Coordinator, Environmental Practice Group
Boston
617.832.1203 (t)
617.832.7000 (f)
[email protected]
www.foleyhoag.com
www.lawandenvironment.com
© 2010 Foley Hoag LLP. All Rights Reserved.
© 2010 Foley Hoag LLP. All Rights Reserved.
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