Updated CEQ Guidance For Analysis Of GHG Emissions Sidesteps Key Legal Issues

• Published date: 23 February 2023
• Subject Matter: Environment, Environmental Law, Climate Change
• Law Firm: Sheppard Mullin Richter & Hampton
• Author: Ms Gail Suchman and James Rusk

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In the latest effort by the Biden administration to promote consideration of climate and environmental justice impacts in federal decision-making, the White House Council on Environmental Quality (CEQ) recently issued interim guidance for federal agencies analyzing greenhouse gas emissions (GHG) and climate change under the National Environmental Policy Act (NEPA).¹ Under the new guidance, which is similar to previous guidance that had been withdrawn under the Trump administration, NEPA review documents generally will be expected to quantify GHG emissions caused by federal actions, discuss the resulting climate impacts, and incorporate environmental justice considerations. While the guidance recommends methods for conducting the necessary technical analysis, it sidesteps key legal issues surrounding climate change analysis under NEPA, leaving federal agencies'and project proponents seeking federal approvals or funding'with difficult questions to resolve.

The interim guidance effectively replaces and updates the final guidance CEQ issued in 2016 under the Obama administration.² The Trump administration withdrew that guidance in 2017 and, in 2019, published a brief draft guidance document advising federal agencies to quantify GHG emissions if "substantial" and if doing so was "practicable" rather than "overly speculative." The Biden administration rescinded the 2019 draft guidance in 2021.

The new guidance generally echoes the recommendations embodied in the 2016 final guidance, including that agencies should:

• quantify direct and indirect GHG emissions resulting from their actions using suitable quantification tools;
• use the projected GHG emissions to assess potential climate impacts, both short-term and long-term, associated with the proposed action and alternatives;
• consider the potential effects of climate change on the proposed action and alternatives, including potential measures to enhance resilience and adaptation;
• consider reasonable alternatives and available mitigation measures that avoid, minimize, or compensate for GHG emissions and climate change effects; and
• incorporate environmental justice considerations, including whether the proposed action may contribute to disproportionate effects on communities with environmental justice concerns.

While these principles are familiar to NEPA practitioners, the guidance also incorporates some new elements, including an explicit recommendation that NEPA documents include the social...