CEQ Issues Draft NEPA Guidance On Climate Change, Mitigation Measures, And Categorical Exclusions

In conjunction with this year’s 40th anniversary celebration of the National Environmental Policy Act (NEPA), the Council on Environmental Quality (CEQ) published two new draft NEPA guidance documents in the form of memoranda on February 18, 2010, addressing issues of global climate change. The NEPA process seeks to inform federal agency decision-makers and the public about major federal actions by making “advice and information useful in restoring, maintaining, and enhancing the quality of the environment[.]” (42 U.S.C. § 4332(2)(G).) The memoranda discuss the consideration of the effects of climate change and greenhouse gas emissions as well as mitigation and monitoring under NEPA.

A third memorandum, which did not address climate change, was also released on February 18, 2010. This memorandum provides guidance on establishing new categorical exclusions as well as applying and revising existing categorical exclusions under NEPA. Comments on draft NEPA guidance regarding categorical exclusions are due on April 9, 2010.

Consideration of the Effects of Climate Change and Greenhouse Gas Emissions

CEQ notes that climate change issues arise in two instances. First, climate change issues arise during the consideration of the effects of greenhouse gas emissions from a proposed action and alternatives. Second, these issues arise during the consideration of the effects of climate change on a proposed action or alternatives. CEQ advises federal agencies to consider opportunities to reduce greenhouse gas emissions caused by federal actions.

Where a proposed federal action may emit greenhouse gas emissions “in quantities that the agency finds may be meaningful,” the agency may quantify and disclose its estimate of the annual direct and indirect emissions in its NEPA documentation. In particular, the guidance proposes a reference point of 25,000 metric tons per year of direct greenhouse gas emissions as a “useful indicator” of when agencies should evaluate climate change impacts in their NEPA documents. CEQ notes that this reference point is not an absolute standard or threshold to trigger the discussion of climate change impacts. When a proposed federal action meets an applicable threshold for quantification and reporting of greenhouse gas emissions, the draft guidance proposes the agency should consider mitigation measures and reasonable alternatives to reduce emissions. Additionally, when an agency evaluates mitigation measures to address greenhouse gas emissions, the agency should carefully evaluate the quality of the mitigation measures for their ability to reduce or mitigate emissions.

CEQ also proposes that federal agencies should determine the impacts of climate change on the environment of the proposed action. The proposed guidance recognizes that climate change can affect the integrity of a proposed action by exposing it to a greater risk of flood, storm surges, or higher temperatures. To address the impacts of climate change, CEQ proposes that an agency’s NEPA analysis should focus on aspects of the environment that are affected by the proposed action and the significance of climate change for those aspects of the affected environment.

Where there is significant uncertainty about the effects of climate change, CEQ states that agencies may consider the effects of a proposed action or its alternatives against a baseline of “reasonably foreseeable future conditions[.]” CEQ also recognizes the limitations and variability of climate change models to reliably project potential impacts. Thus, agencies should disclose these limitations when explaining the extent to which they rely on particular studies or projections.

The draft guidance does not apply to land and resource management actions, and no federal protocols have been established. However, in its draft guidance, CEQ requests public comments on how NEPA documents regarding land and resource management actions should assess greenhouse gas and climate change impacts, and what should be included in NEPA guidance for these actions.

Mitigation and Monitoring

Through a separate memorandum, CEQ proposes three goals to help improve agency mitigation and monitoring: 1) consider proposed mitigation throughout the NEPA process; 2) create a strong monitoring program to ensure mitigation measures are implemented and effective; and 3) make mitigation and monitoring reports readily available to the public to support public participation and accountability. When an agency identifies mitigation in a NEPA document, including mitigation to address greenhouse gas emissions, and commits to implement that mitigation, the agency should ensure that the mitigation is actually adopted and implemented. CEQ clarifies that agencies may use mitigation measures to reduce potentially significant impacts to support a finding of no significance. CEQ proposes that if mitigation is not performed or does not mitigate the effects to achieve the desired result, the agency should consider whether supplementary action is necessary.

Conclusion

CEQ proposes that its draft guidance will “modernize and reinvigorate NEPA.” At the same time, however, CEQ’s guidance may also give project opponents another basis on which to challenge a federally proposed action. Regardless of the final form of these guidelines, federal agencies will be required to address issues of climate change and greenhouse gas emissions in their NEPA documents. Significantly, federal agencies would be required to review previous mitigation measures for their effectiveness and would place the onus on these agencies to consider additional actions to reduce impacts. Comments on the memoranda are due on May 24, 2010. For the full text of CEQ’s draft NEPA guidance, please visit www.nepa.gov.