Feds Not Likely to Provide NEPA Guidance on Climate Change Any Time Soon

by | Sep 25, 2014

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leroy, bryan, manattFederal permittees and practitioners have been waiting more than four years for the Council on Environmental Quality (CEQ) to issue final guidance on how to address climate change and greenhouse gas emissions in a National Environmental Policy Act (NEPA) document. A recent letter from CEQ and the dismissal of a lawsuit suggest that we may be waiting a whole lot longer while the White House is “considering how to proceed.” But where does that leave us in the meantime?

CEQ issued its Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions in February 2010 to great fanfare and much consternation. It appears CEQ may have been pushed to issue the draft guidance in part by a petition from environmental groups; so now that the petition and a related lawsuit have been resolved, the White House seems to be backing off.

When Congress enacted NEPA in 1969, CEQ was established within the Executive Office of the President to assist the federal agencies with NEPA compliance and to recommend national environmental policy to the President. CEQ promulgated NEPA regulations applicable to all federal agencies in 1978 and has issued a number of guidance memos since.

In early 2008, a collection of environmental groups, including the International Center for Technology Assessment, the Natural Resources Defense Council and the Sierra Club, submitted a petition requesting that CEQ: (1) amend the NEPA regulations to clarify that climate change analysis is required, and (2) issue a guidance memorandum on addressing climate change impacts in NEPA documents. Under the Administrative Procedures Act (APA), the public has a right to petition the federal government to issue, amend or repeal a rule.

Obviously, the APA doesn’t obligate the government to take the very action that the petitioners request, but it does require “prompt notice” for the denial of a petition, accompanied by a brief statement of the grounds for denial. So in April 2014, long after CEQ issued the draft guidance memo, the International Center for Technology Assessment along with the Center for Food Safety filed a lawsuit for declaratory and injunctive relief to compel CEQ to respond to the 2008 petition.

Last month, CEQ finally responded to the 2008 petition by denying the requests. The Administration then moved to dismiss the lawsuit because the claims regarding the failure to act on the petition were now moot.

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