White House Issues Final Guidance On Climate Change Impact Analysis

On August 1, 2016, the White House Council on Environmental Quality (CEQ) released its final guidance on how and when federal agencies should consider the direct and indirect impacts from climate change, including from greenhouse gas (GHG) emissions, in environmental reviews conducted under the National Environmental Policy Act (NEPA).1 The final guidance is the culmination of an effort that began in 1997, and refines draft guidance that was released by CEQ in 2014. While not a product of formal rulemaking and so not a binding regulation, the final guidance may still be influential. Agencies historically give CEQ interpretations of NEPA considerable deference,2 and a number of courts have considered CEQ guidance when determining whether an agency's NEPA analysis must be supplemented.3

In most respects, the final guidance does not plow new ground, but instead reaffirms that GHG emissions and climate change are among the many types of environmental impacts to be considered when evaluating a proposed action (and alternatives to that action) under NEPA. Like the draft version, the final guidance confirms that the well-established "rule of reason" and the principle of "proportionality" govern what degree of analysis of GHG emissions and climate change will be required with respect to a particular proposal, and allows each federal agency to utilize its own expertise in assessing impacts and mitigation options. In this regard, the final guidance does not establish any threshold of "significance" for GHG emissions (which would be used to determine whether an environmental impact statement must be prepared under NEPA), and instead allows agencies to make this determination in accordance with their applicable regulations and agency precedent.

Given that the final guidance reinforces the use of traditional NEPA procedures and precedent, but then suggests additional guidelines for analyzing GHG emissions and climate change, all stakeholders will be able to find language in the final guidance that supports their own arguments as to why a more or less thorough analysis of GHG emissions and climate change is appropriate for a particular project. The guidance is effective immediately, and CEQ encourages agencies to use it for all new proposed agency actions for which NEPA review is required, and to consider whether to apply it to any NEPA review that is already underway.4

Quantitative Analysis

While agencies have increasingly accounted for GHG emissions and climate change in their NEPA reviews,5 they often have done so...