1. Seth D. Jaffe Foley Hoag LLP June 2, 2010
CEQ Draft Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions
Seth D. Jaffe
Foley Hoag LLP
June 2, 2010

2. Topics for Discussion Background to the Proposal
CEQ’s 1997 Draft Guidance
NEPA and Greenhouse Gases in the Courts
2008 Petition of the ICTA, NRDC, and Sierra Club –
CEQ’s Draft guidance – (
Tone and Significance
Greenhouse Gas Emissions Effects of a Proposed Action
25,000 tpy of CO2e: a threshold or not?
Approaches to measuring emissions
Climate Change Impacts on a Proposed Action
Open Questions
Responses to the Draft
Implications and Issues

3. CEQ’s 1997 Draft Guidance The 1997 Guidance:
Explained that scientific evidence supported the existence of climate change
Stated that NEPA “provides an excellent mechanism for consideration of ideas related to global climate change”
Provided that climate change was a “reasonably foreseeable” impact of emitting greenhouse gases
“Federal agencies must determine whether and to what extent their actions affect greenhouse gases. Further, federal agencies must consider whether the actions they take, e.g., the planning and design of federal projects, may be affected by any changes in the environment which might be cause by global climatic change.”
Suggested that program level analysis of climate change was likely to be more helpful than project level analyses
Urged agencies to stay up to date on climate science in order to better predict impacts climate change might have on federal projects
All of these themes reemerge in the 2010 guidance

4. NEPA and GHGs in the Courts
Law already exists holding that NEPA, at least in some circumstances, requires consideration of GHG emissions
Several high profile cases have held or implied that GHGs should be considered in NEPA reviews, but have not necessarily clarified the precise obligations agencies have in this regard:
Border Power Plant Working Group v. Department of Energy, 260 F.Supp.2d 997 (S.D. Cal. 2003) (EIS should have considered air emissions including CO2)
Friends of the Earth, Inc. v. Mosbacher, 488 F.Supp.2d 889 (N.D. Cal. 2007) (allowing case alleging international financing actions would generate greenhouse gas emissions to go forward)
Center for Biological Diversity v. National Highway Traffic Safety Administration, 538 F.3d 1172, 1217 (9th Cir. 2008) (“The impact of greenhouse gas emissions on climate change is precisely the kind of cumulative impacts analysis that NEPA requires agencies to conduct.”)

5. The 2008 Petition
International Center for Technology Assessment, NRDC, and Sierra Club petitioned CEQ to amend its regulations to clarify that Climate Change analysis should be included in NEPA reviews
Petitioners argued that NEPA and existing regulations included obligations to consider climate change
Nevertheless, the petitioners asked CEQ to amend its NEPA regulations and issue a guidance memorandum so as to “fulfill its statutory responsibilities” to advise and instruct federal agencies on this important issue
Center for American Progress issued a document calling for an executive order to clarify that federal agencies must address greenhouse gas emissions in their NEPA reviews

6. CEQ’s Draft Guidance
As part of its 40th anniversary, CEQ proposed steps to “modernize and reinvigorate” NEPA on February 18, 2010
One of those steps was the issuance of draft guidance on the consideration of GHGs
The two other draft guidance documents issued on the same date are also significant and are also relevant to how NEPA will be applied to climate change

7. Current Status Is not currently effective
90 day public comment period ended on May 24th
CEQ recently held “listening sessions”

8. CEQ’s Draft Guidance: Big Picture
Follows the same outline as the draft guidance from 1997
Addresses many of the concerns raised in the 2008 petition, but does not reach the level of specificity the petition requested
Generally requires consideration for actions causing direct annual emissions exceeding 25,000 metric tons
Does not apply to land and resource management actions.
Focus on cumulative effects
Goes both ways – analysis must assess impact of climate change on project as well as impact of project on climate change
Guidance is limited in scope and seems to strain to emphasize its own reasonableness

9. CEQ’s Draft Guidance: Emission Effects of a Proposed Action
25,000 tpy direct CO2e emissions as a general threshold for NEPA applicability
However – 25,000 tpy is an “indicator,” not an “absolute standard”
Examples of actions for which analysis probably should occur:
Approval of a large solid waste landfill;
Approval of energy facilities such as a coal-fired power plant;
Authorization of a methane venting coal mine;
Programmatic actions.
Analysis should:
Quantify cumulative emissions over the life of a project;
Discuss GHG reduction measures and alternatives;
Qualitatively discuss link between GHG emissions and climate change.

10. Some More Details
Gives suggested methods for quantifying emissions by referring to other requirements (specifically EPA’s GHG reporting rule)
Emphasizes that the purpose of NEPA is to assist the decision-making process and that a “rule of reason” should govern the extent of the GHG analysis
Encourages consideration of mitigation
Encourages agencies to consider GHGs as part of programmatic analyses that can then be incorporated into analyses for individual actions

11. Impact of Climate Change on a Proposed Action
Agencies should consider not only the impact of emissions on climate change, but also the impact of climate change on actions
Climate change impacts include:
Exposing structures to greater risk of floods, storm surges, and higher temperatures
Increasing the vulnerability of a resource, ecosystem, or community, and thereby making consequences of proposed actions more damaging than would otherwise be the case
Examples include:
An industrial process that draws water from a stream that is dwindling because of decreases snowpack, or adds heat to a water body exposed to increasing atmospheric temperatures
Developing transportation infrastructure along coastal barrier islands that may be impacted by rising sea levels

12. Impact of Climate Change on a Proposed Action (Cont.)
Analyses are bounded by the “rule of reason”
Prioritizes analysis of “aspects of the environment that are affected by the proposed action and the significance of climate change for those aspects of the affected environment”
“Agencies should consider the specific effects of the proposed action (including the proposed action’s effect on the vulnerability of affected ecosystems), the nexus of those effects with projected climate change effect on the same aspects of our environment, and the implications for the environment to adapt to the projected effects of climate change.”
Acknowledges limits on the ability to predict the impacts of climate change on a regional or project relevant level
Agencies are not required to undertake research on the effects of climate change and suggests sources of reliable information

13. Open Questions Does not apply to land and resource management actions
CEQ asked for comments on how to apply NEPA to such actions
While the CEQ Draft Guidance does not propose to apply to land management actions, federal land management agencies often have policies requiring the consideration of GHG emissions in agency actions
CEQ has asked for comments on how to apply NEPA to long-range energy and resource management programs
CEQ has asked for comments on whether it should provide guidance to agencies on determining whether GHG emissions are “significant” for NEPA purposes

14. Congressional Response to Draft
Barton/Burgess letter to CEQ. Letter focuses on cost of complying with GHG NEPA guidance and whether guidance is consistent with a “jobs first” approach to policy
Inhofe Legislation – S would preclude federal agencies from analyzing GHGs under NEPA

15. Public Response To Date
Responses to the Draft have been mixed
Many see the Draft simply as a general statement that GHGs fall within the scope of NEPA
The Draft has been criticized for its generality and for failing to provide clarity to the preparers of NEPA documents
Specific criticism has focused on identifying a 25,000 tpy threshold but not making that threshold a trigger
Whether and how to address land and resource management actions is likely to be controversial
Concerns about increased costs and delays
Potential for litigation

16. Public Response To Date (Cont.)
NEPA mitigation requirements could serve as a market driver
Federal action may encourage more states to follow suit
“Much ado about nothing” – NEPA already requires this

17. Potential Implications/Issues
How much of an impact can NEPA analysis really have
What we can affect v. what really matters
How can NEPA analysis be used for decision-making given an “x plus/minus 10x” situation
Real game is in programmatic analysis
Analysis of feedback loop issues is very difficult
No more coastal roads?
What is the role of the market and insurance to address these issues?

18. Contact Information
Seth D. Jaffe
Chair, Administrative Law Department
Coordinator, Environmental Practice Group
Boston
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