Federal 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 It appears CEQ may have been pushed to issue the draft guidance in part by a petition from environmental groups; so now that the petition and a related lawsuit have been resolved, the White House seems to be backing off.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 So in April 2014, long after CEQ issued the draft guidance memo, the International Center for Technology Assessment along with the Center for Food Safety filed a lawsuit for declaratory and injunctive relief to compel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.
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 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.
More importantly, the draft guidance recognized that the measure of indirect effects is “bounded by the limits of feasibility in evaluating upstream and downstream effects.” The draft guidance further proclaimed that “[i]t is not currently useful for the NEPA analysis to attempt to link specific climatological changes, or the environmental impacts thereof, to the particular project or emissions, as such direct linkage is difficult to isolate and to understand.”
Even the 2008 petition to CEQ acknowledged that “uncertainty may exist regarding the extent of a proposed project’s effect on climate change, or conversely, the extent of climate change’s effect on a proposed project.” The petitioners then focus on the existing regulations which state that if the cost of obtaining the necessary information is exorbitant or the means to obtain it are unknown, the agency must, among other things, summarize the existing relevant scientific evidence and evaluate the impacts based on theoretical approaches or research methods generally accepted in the scientific community.
But in the absence of any formal guidance, project opponents are now arguing that the draft guidance represents a bare minimum level and that an adequate NEPA analysis must go a lot farther. Consider that in 2011, in a lawsuit involving an expansion of the West Elk mine, Judge Krieger in the District Court for the District of Colorado denied a NEPA challenge based on climate change in part because there was no method in the record that would have enabled the Forest Service to describe with particularity how the project would contribute to overall climate change.
Yet in June of this year, in another lawsuit filed by the same plaintiff in the very same court, Judge Jackson rejected the same argument by the agencies and overturned a lease modification at the West Elk mine. This time, in response to the explanation that “standardized protocols...are presently unavailable” and that “predicting the degree of impact any single emitter of may have on global climate change...is not possible at this time,” Judge Jackson concluded that the agency should have used an existing protocol to determine the “social cost of carbon.”
Indeed, the Interagency Working Group on the Social Cost of Carbon prepared a Technical Support Document in 2010 to assist agencies in cost-benefit analyses associated with rulemakings. Despite the fact that the lease modifications at issue were not a rulemaking, Judge Jackson turned the tables on the agencies for not explaining why the agencies believed the protocol was inaccurate or not useful for a NEPA analysis. “The critical importance of the subject,” Judge Jackson wrote, “tells me that a ‘hard look’ has to include a ‘hard look’ at whether this tool, however imprecise it might be, would contribute to a more informed assessment of the impacts than if it were simply ignored.”
In other words, when it comes to climate change, the absence of any formal guidance from CEQ not only causes confusion and handwringing by the NEPA practitioners, it creates a void for the latest protocol to fill. Once endorsed by a court, that becomes the new normal.
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.
This column is part of a series of articles by law firm Manatt, Phelps & Phillips, LLP’s Energy, Environment & Natural Resources practice. Earlier columns in the fourth edition of this series discussed California’s Proposed Overhaul of Standards for Transportation-related Environmental Impact Analysis, CPUC’s Energy Storage Rulemaking, EPA’s Proposed Rule for Reducing Carbon Emissions from Power Plants, Nanomaterial Safety Research Plans, the Obama Administration’s Plans to Reduce Methane Emissions, US Ban on Oil Exports and Environmental Risks in Buying Contaminated Properties.
