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White House Reboots Draft Guidance on Evaluating Climate Change Impacts

leroy, bryan, manattThe White House Council on Environmental Quality (CEQ) has restarted the process for formal advice on how best to evaluate greenhouse gas emissions and the impacts of climate change under the National Environmental Policy Act (NEPA). More than four years after issuing its first draft guidance on the same subject, CEQ published its Revised Draft Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in NEPA Reviews on December 24, 2014.

Despite a complete rewrite, the Revised Draft Guidance offers no major changes in substantive advice, as CEQ mostly reinforced and clarified many of its previous positions. However, there is much to be learned in the clarification of old points and the introduction of a few new ones.

In responding to copious public comments, CEQ clarified and expanded several of its prior themes, including:

  • NEPA already requires a GHG analysis: CEQ reconfirmed that climate change is a “fundamental environmental issue” and that “analyzing the proposed action’s climate impacts and the effects of climate change…should be very similar to considering the impacts of other environmental stressors under NEPA.”
  • NEPA requires a reverse analysis of climate change impacts: The Draft Guidance emphasizes that an adequate NEPA analysis requires consideration of both (1) the potential effects of a proposed action on climate change, and (2) the implications of climate change for the environmental effects of the proposed action. This latter perspective is not just about how climate change might affect the proposed action (e.g., sea level rise), but how climate change may alter the effects of the proposed action. For example, where a proposed action requires water from a stream, the analysis should evaluate the proposed action’s impact by anticipating diminishing quantities of available water due to the effects of climate change.
  • CEQ recommends a “reference point” to indicate when a deeper analysis is warranted: The Revised Draft Guidance still recommends a “reference point” of 25,000 metric tons CO2-equivalent emissions on an annual basis. CEQ clarified that the reference point is not intended to be equivalent to a determination of significance, and that significance remains subject to the standards set forth in CEQ regulations, which require consideration of both context and intensity and set out ten factors that should be taken into account when determining significance. Presumably an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) could still conclude through quantitative and qualitative analysis that the GHG emissions of a proposed action are not significant, despite being greater than 25,000 metric tons per year.

The Revised Draft also emphasizes additional considerations that were previously discussed only in passing or not at all. Many of them raise more questions than they answer, and some of them are sure to create a new round of controversy.

Bryan LeRoy
Bryan LeRoy is a partner in the Los Angeles office of Manatt, Phelps & Phillips, LLP, where his practice focuses on representing private and public entities in government permitting, land use, environmental compliance and other property development matters. Mr. LeRoy regularly advises on the preparation of environmental documents under CEQA and NEPA for large complex projects at the state and federal level. He can be reached at 310.312.4191 or bleroy@manatt.com.
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