CEQ's Draft Guidance on NEPA Climate Analyses: Potential Impacts on Climate Litigation

Date01 October 2015
10-2015 NEWS & ANALYSIS 45 ELR 10925
I. Introduction
In December 2014, the White House Council on Environ-
mental Quality (CEQ) issued for public comment a draft
guidance document1 on how federal agencies should evalu-
ate climate change in their ana lyses under the National
Environmental Policy Act.2 e draft guidance does not
directly regulate greenhouse gases (GHGs) or climate
change, but rather provides agencies with “direction on
when and how to consider the eects of greenhouse gas
emissions and climate change in their evaluation of all pro-
posed Federal actions....”3
is is the second time CEQ has issued draft guidance
on the subject. Its 2010 draft guidance on the analysis of
GHGs in NEPA documents, though nonbinding, was
widely expected to draw attention from federal agencies
and ultimately from the courts.4 However, this expectation
did not come to fruition. While federal agencies did begin
to incorporate climate change in NEPA analyses more fre-
quently, there wa s little consistency in how they did so,5
and in the courts, the 2010 d raft guidance has had very
little inuence.6
1. Revised Draft Guidance for Federal Departments and Agencies on Consid-
eration of Greenhouse Gas Emissions and the Eects of Climate Change in
NEPA Reviews, 79 Fed. Reg. 77802 (proposed Dec. 24, 2014) [hereinafter
2014 Draft Guidance].
2. National Environmental Policy Act (NEPA), 42 U.S.C. §§4321-4370f,
ELR S. NEPA §§2-209.
3. 2014 Draft Guidance, supra note 1, at 77823.
4. See Svend Brandt-Erichsen,    
            
Exclusions, M L N, Feb. 22, 2010, http ://www.martenlaw.
com/newslet ter/20100222-nep a-climate-change- guidance (predicting
that portions o f the 2010 draf t guidance would be “like ly to inuence
future legal challenges to the adequacy of GHG ana lyses con tained in
NEPA documents”).
5. P W, C.  C C L, C 
C  F EIS 2009-2011 3 (2012).
6. In two cases, courts upheld an agency’s climate analysis based in part on the
agency’s assertion that it followed some elements of the 2010 draft guidance.
WildEarth Guardians v. Jewell, 738 F.3d 298, 310 & n.5, 44 ELR 20001
(D.C. Cir. 2013); Save Strawberry Canyon v. U.S. Dep’t of Energy, 830
F. Supp. 2d 737, 754-55, 41 ELR 20344 (N.D. Cal. 2011). In no cases,
however, does it appear that a court overturned an agency’s NEPA analysis
because it was not conducted in accordance with the guidance.
CEQ’s Draft Guidance on NEPA
Climate Analyses: Potential
Impacts on Climate Litigation
by Katherine Lee
Katherine Lee is a Postgraduate Fellow with the Turner Environmental Law Clinic at Emory School of Law.
Like the 2010 draft guidance, the 2014 draft guidance
repeatedly states that it is not intended to create any new or
binding requirements on agencies.7 Yet, despite its apparent
lack of teeth, the 2014 draft guidance has renewed inter-
est from environmental practitioners and scholars. A recent
Environmental Law Reporter (ELR) Comment by Nicho-
las Yost, a former general counsel of CEQ, proclaimed in
its title that “Practitioners Should Take Note of CEQ’s
New Guidance.”8 Yost further stated that, given the risk of
NEPA litigation, a “wise” agency would “follow the guid-
ance CEQ has proered in order to produce an adequate
NEPA document.9
But if the guidance, either in draft or na l form, is
purely advisory, why would a NEPA document’s legal suf-
ciency depend on whether t he agency had followed the
draft guidance? A nd why should the 2014 draft guida nce
inuence courts when the 2010 guidance did not? In this
Comment, I argue that the 2014 guidance diers from the
2010 guidance in several importa nt ways, and that it—
in combination with the body of climate case law under
NEPA—may have the potential to ultimately improve the
level and detail of climate analysis that courts will require
in future NEPA litigation.
II. Overview of NEPA and Climate Change
NEPA can—and should—play a role in addressing future
climate ch ange. As Chief Judge Patric ia Wald of the U.S.
Court of Appeals for the District of C olumbia (D.C.)
Circuit stated in her dissent in one ca se, climate should
be considered under NE PA because “anticipat[ing ]
environmenta l problems a nd develop[ing] strategie s for
their resolution  they re ach the crisis stage . .. is
far cheaper in human, socia l, and economic terms.”10
7. 2014 Draft Guidance, supra note 1, at 77823 n.4.
8. Nicholas C. Yost, 
, 45 ELR 10646, 10646 (July 2015).
9. Id. at 10647.
10. City of Los Angeles v. National Highway Trac Safety Admin., 912 F.2d
478, 489-90, 21 ELR 20170 (D.C. Cir. 1990) (Wald, C.J., dissenting) (em-
phasis added).
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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