NEPA and Climate Change: Practitioners Should Take Note of CEQ's New Guidance

• Date: 01 July 2015

45 ELR 10646 ENVIRONMENTAL LAW REPORTER 7-2015

C O M M E N T S

NEPA and Climate Change:

Practitioners Should Take Note

of CEQ’s New Guidance

by Nicholas C. Yost

Nicholas C. Yost is a Partner at Dentons and a former General Counsel of the White House Council on Environmental Quality.

I. Introduction

e White House Council on Environmental Quality

(CEQ) has again oered for public comment dra ft g uid-

ance on how to evaluate the environmental impacts of

climate change in analyses prepared under the National

Environmental Policy Act (NEPA).1 is is not the rst

time CEQ has ventured into the area. In 2010, the Coun-

cil proposed draft guidance on the same subject but never

nalized it, presumably because a substantial number of

senators (all Republicans) vigorously opposed the concept

that environment al impacts u nder NEPA might include

those associated with climate change. ere was no pub-

lic follow-up. Indeed, nothing (or at least nothing visible)

appeared from CEQ until December 2014, when CEQ

again proposed NEPA climate guidance, and again in

draft form.2 e 2014 draft is the focus of this Comment’s

analysis. As will be discussed, again the climate change

deniers are condemning CEQ’s proposal.

e CEQ release makes excruciatingly clear that it is

only guidance: not a regulation, not a direction, in no way

mandatory. In a clear attempt to forestall criticism from

certain elements in the U.S. Congress to the eect that

CEQ is somehow attempting to regulate climate cha nge

or greenhouse gas emissions (GHG), CEQ stressed that its

guidance “is not a rule or a regulation” and that it “is not

legally enforceable.” To emphasize, said CEQ, “this docu-

ment does not establish legally binding requirements.”3

What, then, has CEQ actually done? Its aim, says the

guidance, is to “facilitate compliance with existing legal

1. 42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209.

2. CEQ, Notice of Availability, Revised Draft Guidance for Federal Depart-

ments and Agencies on Consideration of Greenhouse Gas Emissions and

the Eects of Climate Change in NEPA Reviews, 79 Fed. Reg. 77802 (Dec.

24, 2014).

3. Id. at 77823.

requirements u nder NEPA” by providing “direction

on when and how [federal agencies are] to consider the

eect of greenhouse gas emission [footnote omitted] and

climate change in their evaluation of all proposed Fed-

eral actions. .. .”4 e guidance is designed to “encour-

age consistency” among all federal agencies while at the

same “accommodating a particular agency’s unique

circumstances.”5 Consistency, or the lack of it, has been

a real issue as dierent agencies have approached climate

change in dierent ways.

“It is now well established,” the guidance asserts, “that

rising global atmospheric GHG emission concentrations

are signicantly aecting the E arth’s climate.”6 CEQ is

forthright in recognizing that “[c]limate change is a fun-

damental environmental issue” and that it “fa lls squarely

within NEPA’s focus.”7 at may seem pretty obvious, but

it needed to be said and CEQ said it well. ere are doubt-

ers, those who do not acknowledge the rea lity of climate

change a nd those who fail to acknowledge NEPA’s appli-

cability. CEQ has placed itself rmly (albeit still in draft

form) in the camp of the scientic consensus that climate

change is real and t hat it has its origin, at least in part, in

human activity. e Council has a lso placed itself in the

camp of those who strictly apply t he wording of NEPA

providing that agencies are to analyze impacts on the envi-

ronment, with no statutory exclusion for GHG emissions.

NEPA documents are written, analyzed, and defended

(or att acked) by government ocials, private parties

(including proponents, opponents, and interested citizens),

and environmental professionals including environmental

lawyers. For climate change believers and doubters alike, if

one’s interest is in the approval of the action being a nalyzed,

one must do the best job possible to create legally sucient

NEPA documents. A submission that is decient (and in

appropriate cases one that fails to adequately discuss any

4. Id.

5. Id.

6. Id. at 77824.

7. Id. at 77823.

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