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 The draft guidance contained numerical thresholds at which carbon emissions would be considered significant enough to trigger the need for a full-scale environmental impact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.

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Daniel A. Farber is the Sho Sato Professor of Law and Director of the California Center for Environmental Law and Policy at the University of California, Berkeley.

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