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Climate Change Blog

CEQ Issues Final Guidance on How Federal Agencies Should Assess Climate Change Under NEPA: What Has Changed?

On August 2, 2016, the Council on Environmental Quality (“CEQ”) released guidance on the assessment of climate change impacts under the National Environmental Policy Act (“NEPA”) (“the Guidance”). The Guidance is the culmination of a long process: the Obama Administration first proposed draft NEPA climate change guidance in 2010, and published subsequent draft guidance in 2014, before taking action to issue the final Guidance. While this Guidance does not purport to create any new obligations for federal agencies under NEPA, it nonetheless has the potential to significantly expand the scope of climate impacts considered in prior NEPA documents for “major federal actions.” This is the first in a series of posts discussing the new Guidance. 

Background: What is NEPA, and what impacts must be considered?

NEPA is a procedural statute that requires federal agencies to evaluate the environmental impacts of any major federal action significantly affecting the quality of the human environment. Projects become subject to NEPA if they use or require federal permits, funds, facilities, or land, even if the project proponents are private parties. The goal of NEPA is to evaluate an action’s environmental impacts, as well as alternatives and possible mitigation that could avoid or lessen the impacts identified in the assessment. This assessment includes the direct, indirect, and cumulative impacts caused by the proposed action. Importantly, NEPA does not require a specific outcome; instead, it simply requires federal agencies to make informed decisions regarding the environmental impacts of a proposed project. Also, while NEPA requires consideration of possible mitigation measures, it does not mandate that any particular mitigation be adopted.

Under NEPA, federal agencies are required to prepare an environmental document, either an Environmental Assessment (“EA”), which is a more concise document generally used when environmental impacts are expected to be less than significant, or an Environmental Impact Statement (“EIS”), which is a more detailed evaluation of the significant environmental impacts of major federal actions. At several points in the process, the public is able to provide input and feedback to the agency regarding this document and the NEPA process generally. Opponents of projects have long used challenges to the sufficiency of an agency’s NEPA analysis, including the analysis of possible climate change impacts, in an effort to slow down or block projects they oppose. Challenges to the adequacy of federal agencies’ analyses of climate change in NEPA documents are sure to increase in light of the final Guidance.

The CEQ is responsible for promulgating NEPA’s implementing regulations. In addition, federal agencies are directed to adopt regulations specific to their own NEPA-related activities. While neither NEPA’s statutory language nor CEQ’s implementing regulations expressly reference climate change or greenhouse gas (“GHG”) emissions, it is CEQ’s position that potential climate change impacts already fall within the scope of potential impacts that should be considered as part of a NEPA analysis. That concept itself is hard to debate; but whether and how potential climate change impacts must be considered in the NEPA analyses of widely varying federal actions, from site-specific actions with relatively de minimis GHG emissions on a global scale to broad programmatic actions that could result in greater GHG emissions, is very controversial. The new CEQ Guidance ignores important aspects of existing CEQ regulations and decades of NEPA case law in an effort to force federal agencies to greatly expand their consideration not only of climate change impacts caused by their actions, but GHG emissions as well. Fundamentally, the final Guidance ignores the well-established requirement that direct and indirect impacts must be proximately caused by the federal action at issue before NEPA requires their consideration. The final Guidance never even mentions this requirement, and instead conveniently dispenses with NEPA’s proximate causation requirement by introducing the concept of using GHG emissions as a “proxy” for climate change impacts. As a result, the Guidance runs afoul of established NEPA law.

CEQ’s Final Climate Change Guidance

The stated purpose of the Guidance is to improve the consistency and efficiency of climate change evaluations in NEPA analyses prepared by various federal agencies. According to the document, it uses “longstanding NEPA principles because such an analysis should be similar to the analysis of other environmental impacts under NEPA.”

CEQ also stated that the goal of the Guidance is to ensure that the EA or EIS include a useful consideration of climate change by focusing on projects that involve GHG emissions or have a life span that is long enough that they may be affected by the physical impacts of climate change. Although not expressly required, “CEQ recommends that agencies review their NEPA procedures and propose any updates they deem necessary or appropriate to facilitate their consideration of GHG emissions and climate change.”

Greenhouse Gases as a “proxy” for climate change impacts

NEPA requires consideration of direct and indirect impacts proximately caused by federal actions—not an assessment of GHG emissions from federal actions. To leap over this logical abyss, the Guidance directs federal agencies to “use projected GHG emissions [] as a proxy for assessing potential climate change effects when preparing a NEPA analysis for a proposed agency action.” This approach, however, conflicts with NEPA.

NEPA requires federal agencies to evaluate the environmental impacts of any major federal action significantly affecting the human environment. Specifically, section 102(2)(C) of NEPA requires federal agencies to consider “the environmental impact of the proposed action . . . including any adverse environmental effects which cannot be avoided should the proposal be implemented.” CEQ regulations define “direct effects” as those “which are caused by the action and occur at the same time and place,” and “indirect effects as those “which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” To be considered a direct or indirect effect under NEPA, an environmental impact must be both “caused by” the proposed action and “reasonably foreseeable.”1 The Supreme Court has equated this causation requirement to the doctrine of proximate causation under tort law, explaining that NEPA “requires a reasonably close causal relationship between the environmental effect and the alleged cause.”This is so, the Court explains, because given NEPA’s purpose of informing agency decision-making, it would be pointless to require the agency to consider environmental effects over which it has no control.3 An environmental effect that is not proximately caused by the proposed action would be outside of the agency’s control, and therefore irrelevant to NEPA analysis. Further, the Supreme Court has determined that these impacts require a “reasonably close causal relationship” between the physical change in the environment and the action being analyze under NEPA.4

CEQ can hardly doubt the absence of proximate causation, and so glosses over the requirement in the final Guidance. “CEQ recognizes that the totality of climate change impacts is not attributable to any single action, but exacerbated by a series of actions including actions taken pursuant to decisions of the Federal Government.” (Emphasis added.) There is currently no scientific way to attribute a particular amount of climate change or specific climate impacts to an individual action being reviewed under NEPA. Such effects are not reasonably foreseeable nor can it be said that they are proximately caused by any particular action. A ton of GHG-equivalent emissions released anywhere in the world has the same effect on global climate change as any other ton, and in direct proportion to the total global emissions of GHG-equivalent emissions. The Guidance goes on to note, “a statement that emissions from a proposed federal action represent only a small fraction of global emissions is essentially a statement about the nature of the climate change challenge, and is not an appropriate basis for deciding whether or to what extent to consider climate change impacts under NEPA.” How so? It’s not an appropriate basis for deciding how to consider the issue of climate change under NEPA only if you dispense with the requirement of proximate cause. So the Guidance introduces the concept of using GHG emissions as surrogate for climate change impacts, which conflicts with the traditional proximate-cause NEPA requirement laid out by the Supreme Court.

Expanding the analysis to include direct and indirect climate impacts of a project

The Guidance suggests that agencies take climate change impacts into account as direct, indirect, and cumulative impacts. But owing to the lack of proximate cause, which CEQ does not contest, climate change impacts can only be evaluated meaningfully under NEPA as a cumulative impact. “Cumulative impact” is defined under the CEQ regulations as “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (federal or non-federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.” When the Guidance states that global climate change is “not attributable to any single action, but exacerbated by a series of actions” worldwide, CEQ is effectively admitting that climate change is a cumulative impact. It just refuses to come right out and say so.

Over the past few decades, federal agencies have properly analyzed climate change as a cumulative impact under NEPA. The Guidance now directs agencies to alter this longstanding and well-founded approach, which will no doubt prove problematic as agencies try to directly or indirectly link specific projects to allegedly reasonably foreseeable climate change impacts. But again, there is no way to identify specific climate change impacts as being proximately caused by a single project, and CEQ does not suggest otherwise. Thus, any analysis of the direct or indirect impacts of a project related to climate change would be meaningless.

Including the potential impacts of climate change on a project.

CEQ also notes that “[c]limate change can make a resource, ecosystem, human community, or structure more susceptible to many types of impacts and lessen its resilience to other environmental impacts apart from climate change. This increase in vulnerability can exacerbate the effects of the proposed action.” In other words, through NEPA, the agency should consider how climate change itself will impact a project. This is essentially the flip side of the issue discussed above—whether NEPA requires consideration of the potential effects of future climate change on federal actions subject to NEPA. Unlike CEQ’s tortured attempt to have agencies consider the effects on climate change of a particular federal action, if you assume that the future effects of climate change (e.g., rising sea levels, changing weather patterns, more extreme temperature ranges) are reasonably foreseeable, then those impacts could be considered consistent with NEPA as changes in the affected environment. For example, the Guidance states agencies should consider the impacts that “increasing sea level, drought, high intensity precipitation events, increased fire risk, or ecological change” will have on the proposed federal action. The Guidance explicitly notes that “chemical facilities located near the coastline could have increased risk of spills or leakages due to sea level rise or increased storm surges, putting local communities and environmental resources at greater risk.” So if you assume the future effects of global climate change are reasonably foreseeable within the specific environment regions affected by a federal action (and that issue can and no doubt will be hotly debated), NEPA could be interpreted to require the consideration of those future climate change impacts on a particular federal action at issue.

We will continue to explain and analyze the Guidance in a future post…stay tuned!

40 C.F.R. § 1508.8(b).

U.S. Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 768 (2004) (quotations and citations omitted).

3 Id. at 768.

4 Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774 (1983).



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