Calling Off the NEPA Hounds – The CEQ’s 2019 Draft Guidance on GHG Emissions

Posted on September 12, 2019 by JB Ruhl

On June 26, 2019, the Council on Environmental Quality (CEQ) published a Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions (84 Fed. Reg. 30097). This new guidance would replace the guidance on that theme CEQ published in August 2016 (2016 Guidance) and which President Trump extinguished by executive order, and CEQ immediately withdrew, early in April 2017 (E.O. 13783 and 82 Fed. Reg. 16576). The much shorter 2019 Draft Guidance bears some similarities to the 2016 Guidance:

  • Both advise agencies to use GHG emissions as a proxy for climate effects.    
  • Both emphasize that agencies should follow the NEPA “rule of reason” for identifying direct and indirect effects and for keeping the depth of analysis proportionate to the scale of the effects.
  • Both allow agencies to use available emission quantification tools, but also to refrain from quantification if the available information is of poor quality or if the analysis would be too complicated, provided they explain why.
  • Both advise agencies not to engage in overly speculative analysis.
  • Both emphasize that NEPA does not require cost-benefit monetization analysis.

From there, however, the two guidances look nothing alike. To begin with, the 2016 Guidance declared that “climate change is a fundamental environmental issue, and its effects fall squarely within NEPA’s purview,” and that “it is now well established that rising global atmospheric GHG emission concentrations are significantly affecting the Earth’s environment.” In short, climate change was the core focus throughout the 2016 Guidance. By contrast, the 2019 Draft Guidance refers only to “potential climate effects” of GHG emissions, and does so only twice in the document. It is perhaps remarkable that any Trump administration guidance actually recognizes that GHG emissions could have “potential climate effects,” but the CEQ skirts the issue so much that one might easily miss the point of why agencies are being asked to conduct GHG emissions analyses in the first place.

More substantively, the 2019 Draft Guidance omits three key features (among others) of the 2016 Guidance. First, there is no mention of mitigation in the 2019 Draft Guidance, whereas that was a focus of the 2016 Guidance. Under the 2019 Draft Guidance, in other words, agencies would estimate GHG emissions of the proposed action but not need to consider action alternatives that generate lower emissions or higher sequestration.

Second, the 2016 Guidance included a section on scope of the action that advised agencies to consider predicate and consequential effects of the action. For example, proposed resource extraction actions should consider GHG emissions from reasonably foreseeable predicates such as clearing land and building access roads, and from reasonably foreseeable consequences such as transportation, refining, and use of the resource. The 2019 Draft Guidance makes no mention of such analyses.

Most glaringly of all, the 2019 Draft Guidance completely ignores the need to assess the impacts of climate change on the proposed action. Recognizing that “GHGs already in the atmosphere will continue altering the climate system into the future” and that “NEPA review should consider an action in the context of the future state of the environment,” the 2016 Guidance included an extensive section advising agencies on how to evaluate the effects of climate change on a proposed action and to consider how adaptation and resilience measures might be integrated into the action. No doubt because it would require acknowledging that climate change is occurring, the 2019 Draft Guidance contains no such guidance.

The bottom line is that, if the 2019 Draft Guidance were adopted as is, agencies will conduct GHG emissions analyses but not need to consider reasonably foreseeable upstream and downstream emissions or how the action could incorporate climate change mitigation, adaptation, and resilience. Of course, that would just be CEQ guidance. The courts may have a different idea for how NEPA engages climate change.

Will Supreme Court Accept Challenges to Obama Climate Change Authority?

Posted on June 3, 2013 by Richard Lazarus

Four votes.  That is the number of votes required to grant a Supreme Court petition for a writ of certiorari.  And because that is the same number of Justices who dissented from the Court’s landmark 2007 ruling in Massachusetts v. EPA, EPA has reason to worry over the summer.

Pending before the Court are nine petitions seeking review of a wide ranging set of challenges to EPA’s regulation of greenhouse gas emissions from new motor vehicles and new stationary sources.  Petitioners include most every significant part of American industry, 14 States, and numerous political leaders.  Some petitions, consistent with Judge Brett Kavanaugh’s dissent from the D.C. Circuit’s denial of rehearing en banc in Coalition for Responsible Regulation v. U.S. EPA, are strategically narrow; they ask the Court to review only a relatively narrow issue regarding the applicability of the Clean Air Act’s Prevention of Significant Deterioration Program to greenhouse gas emissions. Others, by asking the Court to overturn EPA’s determination that greenhouse gas emissions from new motor vehicles endanger public health and welfare seek, as a practical matter, to topple   the Obama Administration’s effort to address global climate change in the absence of new federal legislation.  But a few of the petitions jettison even any pretense of modesty by directly asking, consistent with D.C. Circuit Judge Janice Rogers Brown’s blistering dissent from en banc denial, the Court to do no less than overrule Massachusetts v. EPA.

The Solicitor General and other respondents (including 18 States) will no doubt oppose cert on all issues in their responsive filings this summer.  They have nontrivial arguments, especially given the serious questions they can raise concerning the Article III standing of petitioners to raise the particular legal claims that would likely otherwise have the most force on the merits.  But EPA is likely to be less concerned with whether review is granted than, if granted, on what issues.  The legal stakes for some issues raised are far less consequential than they are for others, which are quite enormous.

Any cert grants will likely be announced in late September, shortly before October’s “First Monday” to allow for expedited briefing and argument as early as January 2014 and more likely in February. Otherwise, all petitions will be denied on that First Monday.  It will be a long summer’s wait for all parties.

"No More Business as Usual": A Preview of Climate Change and the California Environmental Quality Act in 2011

Posted on January 5, 2011 by Patrick Dennis

As goes California, so goes the rest of the nation? That could be the case with respect to climate change and the regulation of greenhouse gas (GHG) emissions. Climate change and the implications of California’s Global Warming Solutions Act of 2006 (also known as AB 32) continue to remain a topic of great debate and speculation nationwide, as well as in California. AB 32 recently survived an initiative challenge during California’s November 2010 election cycle, and deadlines established in AB 32 to meet greenhouse gas reduction goals continue to loom. Recently, Governor Arnold Schwarzenegger, who just left office a few days ago, gave remarks at a California Air Resources Board meeting and acknowledged the “great, great benefits” from the creation of green jobs and venture capital being provided to GHG reduction projects. However, the Governor’s excitement for the benefits of AB 32 and climate change initiatives were tempered by California’s economic reality. According to the Governor:

 


We have to be sensitive because it is an economic downturn and this Air Resources Board knows that they have to be sensitive. But we have to reach our goal by 2020, our reductions of 25 percent and we’ve got to go and have our 33 percent of renewables by 2020. There are no two ways about that.

 


So what does this mean as we look forward to 2011 with a new Governor and lingering fiscal issues?
 

One area of law where climate change is bound to remain an active topic of discussion, and likely litigation and regulatory development, is with respect to the California Environmental Quality Act (CEQA). At the time AB 32 was adopted, there was uncertainty about the type of greenhouse gas emissions analysis that would be required under CEQA, and opponents of development projects filed several lawsuits to challenge projects on that basis. The early California State superior court decisions after passage of AB 32 ran the gamut from not requiring climate change analysis or a discussion of AB 32 , to finding an environmental impact report inadequate for failing to make a meaningful attempt to determine the project’s effect on global warming simply because it was “speculative”. In 2007, California adopted SB 97, which directed the Governor’s Office of Planning and Research (OPR) to develop recommended amendments to the State CEQA Guidelines for addressing greenhouse gas emissions , with the goal of creating a coordinated policy – instead of a “piecemeal approach dictated by litigation .” The amendments became effective in March 2010.

 


Despite the adoption of the CEQA guidelines amendments, how state and local agencies should analyze and, when necessary, mitigate greenhouse gas emissions still remain somewhat of a mystery, because the amended guidelines and most local governing bodies have fallen short of providing a clear threshold as to what constitutes a significant impact under CEQA, and what should be done to mitigate the impact. However, what we can anticipate for 2011 is that project applicants must “do something” – business as usual (i.e. developing projects without evaluating and, as necessary, reducing GHG emissions) will likely not suffice. The amended guidelines have been adopted, models for quantifying GHG emissions are available, and state and local agencies such as the Attorney General’s Office ) and various air quality management districts have provided recommended mitigation measures and performance-based and numeric thresholds related to climate change. The California Court of Appeal also weighed in on the “do something” mantra in April 2010 in concluding that an environmental impact report was inadequate because it improperly deferred an evaluation of GHG mitigation measures. It held that, “[d]ifficulties caused by evolving technologies and scientific protocols do not justify a lead agency’s failure to meet its responsibilities under CEQA by not even attempting to formulate a legally adequate mitigation plan.”

 


All in all, with AB 32 left intact, the adoption of the new CEQA Guidelines, and the CARB regulatory package for implementation of AB 32 likely to be put in place, 2011 promises to be an active year in California’s legal and regulatory environment – one that the nation will continue to closely monitor as California takes the lead.

Happy New Year? With the Advent of Greenhouse Gas Regulation Only Days Away, Many in Industry Might Prefer, Instead, to Turn Back the Clock

Posted on December 28, 2010 by John Crawford

By James R. Farrell

Butler, Snow, O’Mara, Stevens & Cannada, PLLC (www.butlersnow.com)

 

 

Regulation of greenhouse gas (GHG) emissions has become a reality. Although the Supreme Court’s 2007 ruling in Massachusetts v. EPA deserves much of the credit for EPA’s aggressive response to global warming, congressional inaction on comprehensive climate change legislation ultimately set in motion the agency-driven agenda that has led our country to an historic yet extremely controversial crossroads in environmental regulation. The Supreme Court’s conclusion that GHGs constitute air pollutants as defined by the Clean Air Act required EPA to determine whether GHG emissions from motor vehicles cause or contribute to climate change that is reasonably anticipated to endanger the public health or welfare; however, the Court’s requirement for regulatory action did not preclude the possibility of a legislative response.

 

 

Despite the dim prospects for comprehensive climate change legislation today in the wake of the turbulent 2010 mid-year elections, the political landscape appeared far more favorable little more than eighteen months ago. On June 26, 2009, the House had narrowly passed the American Clean Energy and Security Act of 2009 (the “Waxman-Markey Bill”) by a vote of 219-212. The Waxman-Markey Bill featured a cap and trade component to regulate GHG emissions, and the bill would have required a seventeen percent reduction in GHG emissions from 2005 levels by 2020 and an eighty percent reduction by 2050. 

 

 

In the Senate, Senators John Kerry (D-MA), Joseph Lieberman (I-CT), and Lindsay Graham (R-SC) had been hard at work on a comparable climate change bill dubbed the American Power Act. In early 2010, the bill appeared to have bipartisan support due in large part to its provision for expanded offshore drilling, an early and significant concession by the bill’s sponsors. But when the Deepwater Horizon exploded on April 20th, everything changed. As public outrage at the offshore drilling industry grew daily in response to the unprecedented magnitude of the oil spill, it triggered a proportional decrease in political will for comprehensive climate change legislation. By the time the American Power Act was introduced on May 12th, Senator Graham had already withdrawn his support insisting that the ongoing and more immediate threat posed by the Gulf oil spill had “made it extremely difficult for transformational legislation in the area of energy and climate to garner bipartisan support . . . .”

 

 

In the end, the legislative response to climate change that had once appeared likely – if not imminent – never materialized. In contrast, EPA has wasted no time since Massachusetts v. EPA engaging in regulation-making intended to address climate change. The culmination and cornerstone of this fervent EPA activity is EPA’s Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule (the “Tailoring Rule”), which will usher in a new and hotly contested era of GHG regulation on January 2, 2011. The Tailoring Rule’s phased-in approach to regulation means that the regulatory net it casts will gradually widen with time, initially targeting those stationary sources known to be the largest emitters of GHG emissions but eventually encompassing some smaller sources as well. 

 

 

Whether or not you’ll be ringing in the new year this year likely depends on your political persuasion. For many environmental groups who have lobbied tirelessly for greenhouse gas regulation, 2011 is a long-awaited (and soon to be much-celebrated) new year. For many in industry, however, 2011 is likely to be a year of nostalgia filled with no less than 365 opportunities to remember fondly the less regulated days of yesteryear. Happy New Year!

 

 

Butler, Snow, O’Mara, Stevens & Cannada, PLLC (www.butlersnow.com)

·        John A. Crawford

·        Michael D. Caples

·        James I. Palmer, Jr.