CEQ’s response to the lawsuit brought two key issues to light. First, it appears the White House has no current plans to finalize the draft guidance. In denying the petition to issue NEPA guidance, the August 7, 2014 letter from the Acting Chair of CEQ pointed to the “ongoing process underway” on the draft guidance memo and indicated that CEQ is “considering how to proceed in light of the [public] comments.” Then, in a rather mysterious explanation for denying the petition, the letter revealed that “CEQ is using mechanisms other than guidance to assist Federal agencies in considering GHGs in their NEPA compliance.” The letter went on to explain that “[t]hese processes are providing CEQ further insight on the types of issues that Federal agencies are confronting as they attempt to integrate climate considerations into their NEPA analyses and can help inform the nature of the guidance that would be most beneficial to the range for Federal agencies and actions.” In other words, it will be a while . . . if ever.

Second, in denying the request to amend the NEPA regulations, CEQ confirmed that current regulations already require NEPA compliance documents to address climate change effects. According to CEQ, “revisions are unnecessary because NEPA and its implementing regulations already require Federal agencies to evaluate reasonably foreseeable environmental impacts of their actions, including foreseeable GHG and climate change implications.”

So where does all this leave us? Well, for one thing, it is clear by now that some level of climate change analysis is required in any NEPA document. Prompted in part by the 2007 U.S. Supreme Court decision in Massachusetts v. EPA where the Court recognized that “the harms associated with climate change are serious and well recognized,” a consistent line of court cases has acknowledged NEPA’s mandate to consider an action’s greenhouse gas (GHG) emissions and the contribution those emissions may make to global climate change. CEQ obviously agrees.

But what level of analysis is sufficient and what criteria and standards should be used? For that, we are left hanging…twisting in the legal winds.

Despite its imprecision, the draft guidance memo at least offered a bit more certainty in the process. For example, the draft guidance recommended using a “reference point” of 25,000 metric tons of direct CO2-equivalent GHG emissions. The reference point was not intended to be a threshold of significance, but rather a “useful indicator” beyond which the action-specific analysis would consider the context and intensity to determine the significance. The implication was that GHG emissions of less than 25,000 metric tons would not typically trigger an EIS or warrant a detailed discussion.