NEPA Revised Draft Guidance On Consideration Of GHG Emissions: Version 2.0

Elizabeth Lake is a Partner in Holland & Knight's San Francisco office

Proposal Requires Federal Agencies to Assess GHG and Climate Change Impacts and Encourages Substantive GHG Reductions Under the National Environmental Policy Act


NEPA's Revised Draft Guidance could require a significant level of additional analysis, including analysis of "upstream" and "downstream" impacts as well as a cost-benefit analysis in certain circumstances. The proposed guidance goes well beyond the well-established NEPA non-substantive "hardlook" doctrine by instructing agencies to use the NEPA process to force the substantive reduction of GHG emissions. Although the White House Council on Environmental Quality (CEQ) intends the guidance to "lessen litigation driven by uncertainty," it is not clear the Revised Draft Guidance will accomplish this goal. Nearly five years after issuing its initial draft, the White House Council on Environmental Quality (CEQ) continues to revise its draft guidance on conducting greenhouse gas (GHG) impact analyses under the National Environmental Policy Act (NEPA). CEQ published its Revised Draft Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in NEPA Reviews ("Revised Draft Guidance") in December 2014, and the comment period closed at the end of March 2015. CEQ must now wade through nearly 500 NEPA comment letters before finalizing the guidance. When released as final, the guidance will be effective immediately.

Unlike the previous draft, which concluded with a series of questions, including whether and how to incorporate federal land management decisions, the Revised Draft Guidance does not leave any issues open and resolves the previous question by fully incorporating federal land management decisions in its scope. While CEQ clarifies that the final guidance will not be legally enforceable and does not impose new requirements on federal agencies, it effectively sets a standard for requiring agencies to:

assess GHG and climate change impacts look at alternatives that reduce GHGs undertake a cost-benefit analysis where warranted encourage the use of mitigation for GHGs as well as monitoring for implementation and effectiveness, regardless of the significance of the impacts Essentially, the Revised Draft Guidance appears to push federal agencies to use NEPA to take a more activist stance in reducing GHG emissions, a theme reflected in CEQ's...

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