The New NEPA Guidance

by Daniel Farber

August 04, 2016

The White House Council on Environmental Quality (CEQ) issued new guidance this week on considering climate change in environmental impact statements (EIS). Here are the key points:

  1. Quantification. The guidance recommends that agencies quantify projected direct and indirect emissions, using the amount of emissions as a proxy for the eventual impact on climate change. The EIS should also discuss the impacts of climate change, referring to government reports on the subject for conclusions. A formal cost-benefit analysis is not required and should not be used when aspects of the project can't be quantified.
  2. NEPA Thresholds. The draft guidance contained numerical thresholds at which carbon emissions would be considered significant enough to trigger the need for a full-scale environmental impact statement. Disappointingly, those have disappeared from the final version. The final guidance says that "most Federal agency actions" won't require an EIS solely because of carbon emissions, because it would be unreasonable to do so for every federal action that results in any emissions at all. The implication is that high emissions might be enough, but there's no hint about how high that would be. In other words, how high is high?
  3. Impacts of Climate Change on the Project. Agencies should consider how climate change could affect the project itself, and should avoid building in floodplains. They should also consider how the project would affect "climate change preparedness or resilience." The effects of climate change on project life (such as effects of sea level rise or more serious storms) should also be discussed.
  4. Biogenic Sources and Sinks. The statement should discuss how the project impacts biogenic emissions, such as carbon emissions from logging or carbon capture from planting more trees.

This is not only a guidance document, but is entirely phrased as recommendations rather than commands. So it's a pretty mild intervention into agency practice, as compared with executive orders requiring cost-benefit analysis. Still, I expect there will be the usual howls of outrage from the usual quarters. There may even be a few lawsuits, though I find it hard to see how anyone – including the always litigious State of Texas – would have standing.

Cross-posted at LegalPlanet.

Be the first to comment on this entry.
We ask for your email address so that we may follow up with you, ask you to clarify your comment in some way, or perhaps alert you to someone else's response. Only the name you supply and your comment will be displayed on the site to the public. Our blog is a forum for the exchange of ideas, and we hope to foster intelligent, interesting and respectful discussion. We do not apply an ideological screen, however, we reserve the right to remove blog posts we deem inappropriate for any reason, but particularly for language that we deem to be in the nature of a personal attack or otherwise offensive. If we remove a comment you've posted, and you want to know why, ask us ( and we will tell you. If you see a post you regard as offensive, please let us know.

Also from Daniel Farber

Daniel A. Farber is the Sho Sato Professor of Law, Director of the California Center for Environmental Law and Policy, and Chair, Energy & Resources Group, University of California, Berkeley.

The Off-Switch Is Inside the Fenceline

Farber | Dec 27, 2017 | Energy

Looking Back on Lucas

Farber | Dec 11, 2017 | Regulatory Policy

200 Days and Counting: Pollution and Climate Change

Farber | Aug 11, 2017 | Environmental Policy

The Center for Progressive Reform

455 Massachusetts Ave., NW, #150-513
Washington, DC 20001

© Center for Progressive Reform, 2015