NEPA Draft Climate Change Guidance
NEPA Draft Climate Change Guidance
NEPA Draft Guidance on Mitigation
NEPA Draft Guidance on Mitigation
NEPA Draft Guidance on Categorical Exclusions
NEPA Draft Guidance on Categorical Exclusions
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CEQ Issues Draft NEPA Guidance Regarding Greenhouse Gases and beyond
02.19.2010
On February 18, 2010, the White House Council on Environmental Quality (CEQ) issued draft guidance on the following subjects of importance to the National Environmental Policy Act (NEPA): (1) when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions; (2) the use of environmental mitigation in "Findings of No Significant Impact"; and (3) the use of categorical NEPA review exclusions.
CEQ issued the draft guidance on climate change in response to informal requests by federal agencies and a formal request in the form of a petition filed in 2008. The 2008 petition, filed by Sierra Club, Natural Resources Defense Council and International Center for Technology Assessment, requested that CEQ amend the NEPA regulations to address climate change.
The draft NEPA guidance on climate change requires Federal agencies to consider greenhouse gas (GHG) emissions and climate change when carrying out NEPA reviews. In particular, this draft guidance states that if a proposed federal action would be reasonably anticipated to cause direct emissions of 25,000 metric tons or more of carbon dioxide equivalent annually, it would trigger a quantitative analysis. For long-term actions that have annual direct emissions of less than that amount, CEQ encourages federal agencies to consider whether the action's long-term emissions should still receive a similar analysis.
The draft guidance proposes that an agency analysis of GHG emissions should include , quantification of cumulative emissions over the life of the project, a discussion of measures to reduce emissions, including consideration of reasonable alternatives; and a qualitative discussion of the link between such emissions and climate change. However, the guidance also notes that it is not currently useful for the NEPA analysis to attempt to link specific climatological changes to the particular project or emissions, as such direct linkage is difficult to isolate and to understand. The draft guidance on climate change indicates that it would not apply to land and resource management actions.
CEQ will receive public comment on this draft guidance for 90 days.
The CEQ also issued draft guidance on February 18, 2010, on how monitoring and mitigation measures can impact a Federal agency "Finding of No Significant Impact" (FONSI). Many Federal actions receive an environmental review, known as an Environmental Assessment. In those instances, NEPA compliance is usually completed with a FONSI regarding environmental impact, meaning that a more detailed Environmental Impact Statement would not be required.
The draft guidance on this topic clarifies that the environmental impacts of a proposed action may be mitigated to the point when the agency may make a FONSI determination.
The draft guidance also states that when the FONSI depends on successful mitigation, such mitigation requirements should be made public and be accompanied by monitoring and reporting. The draft guidance lays out three goals: (1) that proposed mitigation should be considered throughout the NEPA process; (2) that a monitoring program should be created or strengthened to ensure mitigation measures are implemented and effective; and (3) that public participation and accountability should be supported through proactive disclosure of agency mitigation monitoring reports and documents.
CEQ will accept public comment on this draft guidance for 90 days.
CEQ also released draft guidance on the use of a broad categories of activities under which agencies may apply a "categorical exclusion" from further NEPA review. This draft guidance addresses how agencies establish, apply, and review categorical exclusions. The draft also requires that a concise public record be maintained when agencies apply categorical exclusions.
CEQ will accept public comment on this draft guidance for 45 days.
Questions?
If you have questions regarding this proposed rule and the impacts that it may have for your company, please contact Jeff Talbert or David Van Slyke with Preti Flaherty's Climate Strategy Group.