On December 18, 2014, the federal Council on Environmental Quality (CEQ) released draft guidance describing how federal departments and agencies should consider the effects of greenhouse gas emissions (GHGs) and climate change when conducting reviews under the National Environmental Policy Act (NEPA). 42 U.S.C. ch. 55.  The draft guidance supersedes a previous draft guidance that CEQ issued in 2010 but never finalized.

Congress established the CEQ within the Executive Office of the President as part of the National Environmental Policy Act of 1969 (Source: whitehouse.gov)

Congress established the CEQ within the Executive Office of the President as part of the National Environmental Policy Act of 1969 (Source: whitehouse.gov)

The new draft guidance retains many core concepts of the 2010 guidance. For example, agencies must evaluate a proposed action’s impacts upon climate change, as indicated by GHG emissions, as well the implications of climate change for the proposed action’s environmental effects. The draft guidance also retains the 2010 proposed threshold for conducting a quantitative climate change analysis of 25,000 metric tons per year of CO2 emissions.

Among the significant new aspects of the proposed rule is that it applies to all proposed federal agency actions, including land and resource management actions. These actions, which were excluded from the 2010 guidance, include a wide range of activities such as coal, oil and gas leasing proposals on federal land as well as timber management, grazing and other federally permitted actions.

The draft guidance also sets a broad scope for the consideration of an action’s environmental effects. For example, it provides that agencies should consider emissions from activities that have a “reasonably close causal relationship” to the federal action, including “upstream” emissions (those that occur as a predicate for the agency action) and “downstream” emissions (those that occur as a consequence of the agency action).

As an example, the guidance states that the NEPA analysis for a proposed open-pit mine should include discuss not only the GHG emissions from activities such as land clearing, road building, resource extraction, processing and transporting, but also, and much more broadly, the GHG emissions associated with “using the resource.

For NEPA reviews where the agency determines it is appropriate to monetize costs and benefits, the draft guidance recommends using the Federal Social Cost of Carbon, a metric developed by the Office of Management and Budget. With regard to evaluating the effects of climate change upon a proposed project, the draft guidance directs agencies consider the projected future state of the relevant environment—as predicted through available climate change information—through the expected lifespan of the project. CEQ is accepting public comments on the draft guidance through February 23, 2015.

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