Beveridge & Diamond
 

White House Proposes Draft NEPA Guidance on Climate Change, Mitigation, and Categorical Exclusions

Beveridge & Diamond, P.C., February 19, 2010

In connection with the 40th anniversary of the National Environmental Policy Act (“NEPA”), the White House Council on Environmental Quality (“CEQ”) issued three draft guidance items on February 18, 2010 that address various aspects of NEPA implementation and compliance.  According to CEQ, these items will “modernize” NEPA and enhance public involvement in "and the transparency of" the NEPA process.  The draft guidance broadly applies to all Federal agencies’ analyses of proposed actions.  Taken together, these guidance documents represent the biggest developments in NEPA practice in the last 30 years.   

Perhaps the most anticipated item is the “Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions.”  The draft guidance recognizes that many Federal actions will result, directly or indirectly, in the emission of greenhouse gases (“GHG”).  It proposes a reference point of 25,000 metric tons of GHG emissions per year as an indicator (rather than an absolute threshold) that a project warrants NEPA analysis for climate change impacts, and also promotes analysis of project alternatives that may have lower annual emissions.  In conducting its analysis, the draft guidance encourages agencies to quantify cumulative emissions over the life of the project; to discuss measures to reduce emissions, including the consideration of reasonable alternatives; and to discuss from a qualitative perspective the link between the project’s emissions and climate change.  Importantly, the guidance recognizes scientific limits on an agency’s ability to predict climate change effects, and therefore cautions agencies about engaging in speculative analyses or attempting to link a particular project to specific climatological changes.

While the GHG draft guidance would provide substantive and substantial direction for Federal agencies, it also reserves a number of practical issues for public comment.  For example, CEQ does not propose to make the guidance applicable to Federal land and resource management actions (such as the preparation of Forest Plans or Resource Management Plans), but seeks public comment on the appropriate means of assessing GHG emissions affected by such actions.  CEQ also seeks public comment on the means by which agencies can tailor their NEPA analyses in proportion to the importance of climate change in the decision-making process.  The public comment period is 90 days.  A link to the draft guidance and full set of issues on which CEQ seeks public comment can be found here.

CEQ separately issued “Draft Guidance for NEPA Mitigation and Monitoring,” which proposes  a “comprehensive approach to mitigation planning, implementation and monitoring.”  The draft guidance reconfirms that mitigation to reduce a proposal’s environmental effects may result in a “Finding of No Significant Impact” (“FONSI”) and obviate preparation of a more detailed Environmental Impact Statement (“EIS”), so long as the mitigation measures are made public and accompanied by monitoring and reporting.  For other projects, mitigation commitments are to be included in the EIS and Record of Decision.  CEQ lists three broad goals to revamp agency mitigation and monitoring:  consideration of mitigation throughout the NEPA process; robust monitoring plans and programs to ensure mitigation implementation and effectiveness; and public transparency of mitigation monitoring reports and documents.  An Appendix highlights the U.S. Army’s NEPA regulations as a model for other agencies to follow in reevaluating their respective NEPA programs.  The public comment period also is 90 days.  A link to the draft guidance can be found here.

CEQ’s final draft guidance item is entitled “Establishing and Applying Categorical Exclusions Under the National Environmental Policy Act.”  “Categorical exclusions” permit recognized types of actions with insignificant environmental effects to go forward on an expedited basis.  The draft guidance addresses how agencies should promulgate, apply, and reassess categorical exclusions from further NEPA review.  It does not cover categorical exclusions established by Congress.  CEQ seeks a concise public record and public involvement before and after categorical exclusions are used.  CEQ previously sought public comment on this issue, and thus affords only a 45-day public comment period.  A link to the draft guidance can be found here.

Finally, CEQ has enhanced its public webpage, www.nepa.gov, to create a comprehensive NEPA portal and to improve public participation and the quality of Federal agency administration of NEPA.

For more information, please contact Fred Wagner at (202) 789-6041, fwagner@bdlaw.com, Bill Sinclair at (410) 230-1354, wsinclair@bdlaw.com, or James Auslander at (202) 789-6009, jauslander@bdlaw.com.