On August 1, the White House Council on Environmental Quality (CEQ) released its Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act reviews. Published in the Federal Register (81 FR 51866) on August 5, the guidance builds on a 2010 draft and a 2014 revised draft. A CEQ fact sheet says that the guidance will bring greater clarity and predictability in how agencies address climate change in the NEPA process. The guidance does not expand the range of federal agency actions subject to NEPA.
The guidance urges agencies to use the “rule of reason” and available information to consider GHG and climate change impacts in evaluating proposed federal actions under NEPA. The rule of reason allows agencies, based on available information, to determine how to consider an environmental effect and prepare analyses. Specifically, the guidance outlines an approach for (1) quantifying the GHG emissions produced from an action and (2) analyzing how future climate change impacts may positively or negatively influence the proposed action and its corresponding effect on the environment. The guidance also urges agencies to use information from the NEPA analysis to consider project alternatives that would make communities more resilient to climate change impacts.
Agencies may incorporate by reference analyses from other programmatic studies. CEQ also states that it does not expect agencies to conduct original research or presume project proponents should do so.
CEQ calls out special consideration for biogenic GHG emissions from land management actions. For example, the guidance states that some water management practices can reduce GHG emissions, citing reservoir management, wetlands management and energy efficiency as examples.
The guidance also confirms that all new proposed agency actions that would require a NEPA review should apply this guidance and that agencies “should exercise judgment” when considering whether to apply guidance to an on-going NEPA process. Compared to the 2014 draft, the final guidance more clearly delineates and describes the differences between a GHG analysis and an analysis that considers the potential future effects of climate change on a project. This was a concern raised in AMWA’s March 2015 comment letter.
As a result of this guidance, CEQ does not expect that agencies will be required to develop new NEPA implementation procedures. However, CEQ anticipates that agencies may need to update certain procedures to facilitate implementation of the guidance and outlines areas where these updates should be coordinated with CEQ.
Considering Effects of GHG Emissions in NEPA Analyses
The final guidance no longer provides a threshold of 25,000 metric tons of GHG emissions as a point of departure for when a GHG analysis is triggered. The document notes that agencies should compare GHG emissions from each alternative, including the no action alternative. It notes that comparing the GHG emissions of a project to climate impacts on a sectoral or even global scale in order to deem them inconsequential is not appropriate for deciding “whether or to what extent to consider climate change impacts under NEPA.”
CEQ urges that agencies use projected GHG emissions associated with proposed actions as a proxy for assessing the impacts of those emissions as well as qualitatively discuss those impacts based on reports by the U.S. Global Change Research Program and other sources. Agencies should use appropriate tools and methodologies for quantifying GHG emissions and compare those emissions across alternative scenarios. CEQ released a website with a “non-exhaustive” list of potential GHG accounting tools that could be used for this analysis.
In response to AMWA’s comments, the guidance clarifies that agencies are not required to select project alternatives with the lowest net level of emissions but rather they should conduct “a careful consideration of emissions and mitigation measures along with all the other factors considered in making a final decision.” Other areas where the guidance language was tightened up to elucidate CEQ’s intent include sections that discuss how agencies should analyze direct and indirect GHG emissions, cumulative effects of GHG emissions and short and long-term effects. The guidance states that an assessment of direct and indirect effects of GHG emissions would adequately address the cumulative impacts of a proposed action.
Considering Effects of Climate Change on a Proposed Actions and its Environmental Impacts
The guidance states that the bounds for identifying the affected environment in the NEPA analysis should be described based on at least two possible future global emissions scenarios, as described in authoritative climate change reports such as the National Climate Assessment. And agencies may summarize and incorporate by reference relevant scientific literature in describing the current and expected future state of the environment, a clarification that AMWA requested in its comments.
The NEPA analysis should address “the aspects of the human environment that are impacted by both the proposed action and climate change.” And the guidance indicates that considerations of future climate impacts can help inform whether to proceed with or how to construct a proposed action to “eliminate or mitigate impacts” of climate change. The analysis could also inform potential adaptation measures that would result in a selection of a more resilient alternative.
The guidance also now includes a section on opportunities for resilience and adaptation, noting that agencies should consider their own organization’s adaptation plans and take into account increased risk associated with development in floodplains as described by Executive Orders 11998 and 13690. The guidance also notes that agencies should include environmental justice principles as outlined in Executive Order 12898, noting whether a action would have a disproportionate affect on minority and low income communities.