September 2, 2010
On August 16, the White House Council on Environmental Quality (“CEQ”) issued a report (“CEQ Report”) summarizing the findings of a thirty-day review of the U.S. Department of Interior (“DOI”) Minerals Management Service’s (“MMS”)[1] environmental polices for oil and gas exploration and development in the Outer Continental Shelf (“OCS”). CEQ found that MMS’s reliance on the “tiering process” (where prior programmatic environmental reviews are incorporated into later site-specific analyses) was not transparent and led to confusion and concern regarding whether MMS sufficiently evaluated and disclosed environmental impacts. CEQ stated that in order for information from one level of review to be effectively included in subsequent reviews, assumptions made by MMS must be independently tested by other agencies, and site-specific environmental impacts should also be evaluated.
The report presents seven recommendations “to promote robust and transparent implementation of the National Environmental Policy Act (NEPA) practices, procedures, and policies.” (CEQ Report at 4.) BOEM, the successor agency to MMS, has committed to using these recommendations as guideposts to reform its NEPA policies and practice.
CEQ’s recommendations to BOEM are:
- Perform careful and comprehensive NEPA review of individual deepwater exploration, operation, development, production, and decommissioning activities, including site-specific information where appropriate.
- Track and take into account all mitigation commitments made in NEPA and decision documents that are relied upon in determining the significance of environmental impacts, from the initial Programmatic EIS through site-specific NEPA analyses and decision.
- Ensure that NEPA analyses fully inform and align with substantive decisions at all relevant decision points; that subsequent analyses accurately reflect and carry forward relevant underlying data; and that those analyses will be fully available to the public.
- Ensure that NEPA documents provide decisionmakers with a robust analysis of reasonably foreseeable impacts, including an analysis of reasonably foreseeable impacts associated with low probability catastrophic spills for oil and gas activities on the OCS.
- Review the use of categorical exclusions for OCS oil and gas exploration and development in light of the increasing levels of complexity and risk and the consequent potential environmental impacts associated with deepwater drilling. Determine whether to revise these categorical exclusions.
- Continue to seek amendments to the Outer Continental Shelf Lands Act to eliminate the 30-day decisional timeframe for approval of submitted Exploration Plans.
- Consider supplementing existing NEPA practices, procedures, and analyses to reflect changed assumptions and environmental conditions, due to circumstances surrounding the BP Oil Spill.
CEQ also solicited public comments to assist its review of MMS’s environmental policies and practices. Among the thirty comments that CEQ received are those stating that Environmental Impact Statements (“EIS”) should be prepared with a greater level of specificity, and individual lease sales should require an EIS that comprehensively evaluates all stages of OCS activity; that categorical exclusions have not been applied appropriately, and their use has enabled MMS to avoid further analyses and public participation at every stage of oil and gas development; and that procedures for oil and gas development should be published as rules, rather than guidelines, not guidelines to ensure compliance.
The CEQ Report details the review process used by MMS prior to undergoing reform, linking to the environmental documents that the agency relied on in authorizing activities in the OCS. Additionally, it identifies the BP oil spill as significant new information that likely requires MMS (now BOEM) to reevaluate the conclusions it reached in prior NEPA reviews, environmental analyses and studies.
Following the release of the CEQ Report, Secretary of the Interior Ken Salazar and BOEM Director Michael R. Bromwich announced that the DOI will undertake a comprehensive review of its NEPA policies and use of categorical exclusions for offshore oil and gas development activities. During this review, BOEM will restrict its use of categorical exclusions to activities involving “limited environmental risk.” Development activities that potentially involve significant environmental risk, and which previously fell within a categorical exclusion, will need individual environmental assessments. A notice of this comprehensive review will be published in the Federal Register. BOEM stated that its new approach to NEPA will take into account the CEQ Report’s recommendations.
BOEM Director Bromwich’s August 16 memo regarding the use of categorical exclusions in the Gulf of Mexico region is available here.
[1] MMS is undergoing reform and reorganization and has been renamed the Bureau of Ocean Energy Management, Regulation and Enforcement (“BOEM”).
August 2, 2010
In a July 21 email to wildlife stakeholders, the New York State Department of Environmental Conservation (“DEC”) announced that draft revisions to the State Endangered Species Act (“ESA”) Regulations, 6 N.Y.C.R.R. Part 182, pursuant to Article 11 of the Environmental Conservation Law (“ECL”), were ready for public review and comment and would be published in the State Register, Environmental Notice Bulletin, and on DEC’s website on August 4.
If promulgated as proposed, the State ESA regulations will be significantly changed. Several sections have been added, including how DEC will list endangered and threatened species and species of special concern; requirements for recovery and restoration plans; requests for determination whether a specific action is subject to Part 182; and penalties and enforcement for violations. The most significant changes are the new sections regarding “incidental take permits.” The draft regulations define “incidental take” as “any taking of a species listed as endangered or threatened in Part 182.5 and otherwise prohibited by section 11-0535 of the [ECL] that is incidental to, and not the intended purpose of, an otherwise lawful activity.” Proposed 6 N.Y.C.R.R. § 182.2(k). “Take” or “taking” would be defined as “pursuing, shooting, hunting, killing, capturing, trapping, snaring and netting of any species listed as endangered or threatened in this Part, and all lesser acts such as disturbing, harrying or worrying.” Id. § 182.2(y). This proposed definition is similar to the definition of “take” under the federal ESA, where it is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).
The proposed regulations state that “any activity that is likely to result in the take or a taking of any species listed as endangered or threatened in this Part as determined by the [DEC] . . .” must be done pursuant to an incidental take permit. Proposed 6 N.Y.C.R..R § 182.11. The permit application will have to include a mitigation plan and implementation agreement, an analysis of whether being issued the permit would jeopardize the continued existence of the species’ population, a description of ways to modify the project to minimize or completely avoid a take of the species, and a certification statement, in addition to describing the proposed project and its potential impacts to the listed species.
Significantly, the applicant will have to demonstrate that measures taken pursuant to the mitigation plan will result in “a net conservation benefit to the listed species,” which is defined as:
[A] successful enhancement of the species’ overall population or contribution to the recovery of the species within New York. To be classified as a net conservation benefit, the enhancement or contribution must benefit the affected species listed as endangered or threatened in this Part or its habitat to a greater degree than if the applicant’s proposed activity were not undertaken.
Id. § 182.2(o). Based on recently issued State ESA Permits, a net conservation benefit most likely may be demonstrated by measures to set aside critical habitat or create new habitat for the listed species, depending on the species affected. Applicants also must include a monitoring plan and a description and guarantee of how the plan will be funded. For example, the applicant may post a performance bond that will cover habitat monitoring costs.
An applicant’s permit application will also have to identify involved persons, the timeline for implementing the plan (which will become the permit term), specify the source of funding, and be signed by all involved persons. DEC will issue an incidental take permit if it determines that any taking will be incidental to, and not the purpose of, the proposed activity, and there will be a net conservation benefit to the species. The Department will base its decision “upon the best scientific and other information that is reasonably available to [DEC].” Id. § 182.12.
These new regulations, as evidenced by the recently issued ESA permits, will add a regulatory hurdle to projects proposed in areas where there may be a take of a listed endangered or threatened species. Developers previously addressed a project’s potential impacts to such species during the State Environmental Quality Review Act (“SEQRA”) process. Now, they will have to go through two processes – a SEQRA review process and a separate ESA permitting process. This independent permitting jurisdiction means that DEC now will be a SEQRA “involved agency.” This means DEC will have formal commenting authority, and may even claim “lead agency” status in certain matters, potentially displacing local town or village boards, and driving the entire SEQRA review process. Regardless, unless the project’s mitigation measures result in a net conservation benefit to the listed species, as opposed to just minimizing any potential adverse impacts under SEQRA, DEC will not have legal authority to issue a State ESA Permit.
As we stated previously, when planning a project, developers should try to ensure that any potential impacts to listed species are considered and avoided in a manner consistent with DEC’s regulations.
Update (August 4, 2010):
Today, DEC published its proposed ESA regulations. DEC will accept comments from August 4 – September 20, 2010. Comments may be submitted via email to: Proposed Rulemaking Part 182 – Endangered and Threatened Species of Fish and Wildlife; Species of Special Concern or by mail to:
Dan Rosenblatt
New York State Department of Environmental Conservation
628 Broadway
Albany, New York 12233-4750
For additional information on submitting comments:
June 28, 2010
On Thursday, June 24, 2010, New York’s highest court approved the Empire State Development Corporation‘s (“ESDC”) use of eminent domain to acquire land in West Harlem that will be used to support Columbia University’s campus expansion. Kaur v. New York State Urban Dev. Corp., No. 125, __ N.Y.3d ___ (2010), consolidated with Tuck-It-Away v. New York State Urban Dev. Corp., No. 125, __ N.Y.3d ___ (2010) (collectively, “Kaur“). In a unanimous decision authored by Judge Cipatrick, the Court of Appeals reversed a ruling of the Appellate Division, First Department that ESDC could not condemn property for Columbia’s expansion project. Relying on its recent decision in Goldstein v. New York State Urban Dev. Corp., 13 N.Y.3d 511 (2009) (“Goldstein“), in which the Court upheld ESDC’s use of eminent domain to acquire land for the Atlantic Yards project in Brooklyn, in the Kaur case the Court of Appeals deferred to ESDC and criticized the Appellate Division for undertaking an improper de novo review of the record.
In December 2008, ESDC determined to use its condemnation power to acquire 17 acres of privately-owned property, including petitioners’, in connection with Columbia’s expansion plan. ESDC found that the project qualified under the Urban Development Corporation Act as both a “land use improvement project” (because the project would eliminate blighted conditions) and as a “civic project” (because the project would provide educational facilities). The $6.28 billion project, which is being exclusively underwritten by Columbia, a private non-profit institution, will comprise 6.6 million gross square feet in 16 new buildings, 2 acres of open space, and other structures. Petitioners contested ESDC’s designation of the project area as “blighted,” and challenged the integrity of the two neighborhood studies commissioned by ESDC that supported its blight finding, arguing that the studies were biased and demonstrated bad faith on the agency’s part. Petitioners also argued that the “civic project” designation was impermissible because Columbia is a private, not a public, entity.
In Thursday’s Kaur decision, the Court of Appeals reaffirmed that the judiciary has a limited role in reviewing the actions of ESDC, a quasi-legislative entity. Citing Goldstein, the Court noted that ESDC was authorized by the state legislature, and that a court “may only substitute its own judgment for that of the legislative body authorizing the project when such judgment is irrational or baseless.” The Court rejected petitioners’ arguments that ESDC acted in bad faith and with pretext, finding no evidence to support such allegations. The Court instead held that ESDC’s determination was made rationally and in good faith, and that the separate neighborhood conditions studies on which ESDC relied were creditable and not biased. The Court then cited blight evidence dating back to the 1960s to reject petitioners’ argument that Columbia created blight by neglecting the project-area properties that it acquired starting in the early 2000s. The Court also held that the UDC Act’s definition of a “substandard or insanitary” (i.e., blighted) area was not unconstitutionally vague.
The Court of Appeals made new law in New York by holding that “civic projects” under the UDC Act are not limited to public institutions, and may in fact include projects proposed by private educational institutions. After noting that the Columbia project “unquestionably [] promote[s] education and academic research while providing public benefits to the local community,” the Court rejected the First Department’s determination that the statutory language is limited to public entities. In a concurring opinion, Judge Smith stated that because the Court upheld ESDC’s blight determination, the civic project doctrine need not have been reached, and that it was subject to constitutional constraints that the Court failed to address.
Finally, the Court rejected petitioners’ claims that ESDC violated their procedural due process rights by closing the administrative record and proceeding with the condemnation despite ongoing disputes as to whether ESDC was required to turn over additional documents to petitioners. The Court stated that a violation of the Freedom of Information Law (“FOIL”) only rises to a due process violation where petitioners can demonstrate that they were deprived of a meaningful opportunity to be heard, or demonstrating that materiality of the records sought through FOIL. The Court found that ESDC did not withhold documents that formed part of the administrative record, and that petitioners had unfettered access to thousands of pages of documents, including those at the core of ESDC’s action. Noting that the legislature intended for expedient condemnation proceedings that did not allow for any discovery, the Court held that petitioners failed to meet their burden.
According to the New York Times, petitioners plan to seek review of the decision by the United States Supreme Court.
SPR serves as environmental counsel for the Empire State Development Corporation, and Mark Chertok and Dan Chorost served as co-counsel to ESDC’s eminent domain counsel in the Kaur case. David Paget and Dan Chorost served as co-counsel for ESDC in the Goldstein case. A copy of ESDC’s appellate brief is available here (pdf), and reply brief here (pdf).
June 17, 2010
On June 1, Mayor Bloomberg announced the launch of four measures relating to the City Environmental Quality Review (“CEQR”) process, which requires an assessment of the potential environmental impacts of projects undertaken by the city or subject to its permitting authorities. The new reforms are intended to make CEQR more transparent and user-friendly while improving the quality of review. The four initiatives are:
- Revised Technical Manual: A revised CEQR Technical Manual, the City’s guidance for conducting CEQR analyses, has been prepared. It was released on May 17, 2010.
- New Environmental Assessment Statement (EAS) Short Form: CEQR requires the preparation of an EAS as the first step in an agency’s environmental review of a project. A new short EAS form, featuring a “check-list” format, is intended to simplify reporting for smaller projects.
- Revised EAS Full Form: In a revised full EAS form, the City has aimed to guide the applicant to focus on impacts requiring technical analysis and has clarified the form’s instructions by eliminating unnecessary text.
- CEQR Informational Services: The Mayor’s Office of Environmental Coordination has improved its website, adding among other things a centralized city-wide CEQR calendar and a one-stop CEQR forms page. The site also features a help-line for CEQR-related questions.
The new Technical Manual, which should be used for every environmental review commenced after May 17, 2010, is of critical interest to anyone undertaking a project subject to CEQR. Aside from changes to the organization of the Manual itself, the revisions expand CEQR review to cover some of the city’s most prominent environmental concerns – climate change and the water quality impacts of combined sewer overflow (CSO) events – as well as to promote the goals of Mayor Bloomberg’s citywide environmental sustainability plan, PlaNYC. These additions are coupled with efforts to simplify and focus review in a more streamlined process. These goals are reflected in two sets of changes to the CEQR process.
First, the revised Manual establishes or adjusts certain criteria for “screening analyses” for certain impact categories, by virtue of which projects that fall below certain thresholds may be determined to have no significant adverse impact on the environment without an in-depth technical analysis. These new criteria include numeric screening thresholds for direct residential and business displacement (as relates to socioeconomic impacts), a two-level screening process for transportation impacts, and step-by-step screening methods for public health and shadows impacts. The revisions also increase the threshold number of vehicle miles traveled needed to trigger a mobile air quality analysis. Overall, the new screening analyses are intended to encourage “targeted” reviews and expedite analysis of non-significant impacts.
The second set of revisions seeks to clarify, expand, and improve technical analysis of impacts requiring detailed review. Data on new legal standards have been updated, and factual background has been improved with additions such as open space maps and updated background traffic growth rates. For larger projects, the Manual now includes guidance for greenhouse gas emissions analysis and assessments of wind effects. Large city-sponsored projects will also need to be assessed for consistency with sustainability goals set forth in PlaNYC. The infrastructure analysis was expanded to include sewer system capacity between the project site and discharge point, taking into account possible CSO events. Other changes include updates that reflect minor changes in laws and codify current agency practice.
Dan Mach is a summer associate at Sive, Paget & Riesel, P.C.
June 4, 2010
In response to the oil spill from the Deepwater Horizon well and drilling rig in the Gulf of Mexico, the White House Council on Environmental Quality (“CEQ”) announced on May 17, 2010 that it would conduct a thirty-day review of the U.S. Department of Interior, Minerals Management Service’s (“MMS”) environmental polices for oil and gas exploration and development in the Outer Continental Shelf. CEQ has primary authority for implementing the National Environmental Policy Act (“NEPA”) and may review and require that agencies revise their policies if they do not fully comply with NEPA. 40 C.F.R. § 1507.3. CEQ stated that the review will “be holistic, i.e., from leasing decisions to drilling and production.” 75 Fed. Reg. 29996, 29996 (May 28, 2010).
MMS implements a four-stage process for oil and gas development, which includes: “(1) [p]reparing a nationwide 5-year oil and gas development program, (2) planning for and holding a specific lease sale, (3) approving a company’s exploration plan, and (4) approving a company’s development and production plan.” 75 Fed. Reg. at 29996. The agency must consider NEPA’s requirements during each stage. However, MMS has also promulgated regulations defining certain “categorical exclusions,” or categories of actions for which the agency found not to have a significant effect on the environment, and therefore, an individual environmental review is not prepared.
In April 2007, MMS developed a multi-sale environmental impact statement (“EIS”) for lease sales in the Outer Continental Shelf, which included the Deepwater Horizon project. Based on an environmental assessment under the multi-lease sale EIS, MMS determined that the Deepwater Horizon project fit within the following categorical exclusion:
Approval of an offshore lease or unit exploration. [sic] development/production plan or a Development Operation Coordination Document in the central or western Gulf of Mexico (30 CFR 250.2) except those proposing facilities: (1) In areas of high seismic risk or seismicity, relatively untested deep water, or remote areas, or (2) within the boundary of a proposed or established marine sanctuary, and/or within or near the boundary of a proposed or established wildlife refuge or areas of high biological sensitivity; or (3) in areas of hazardous natural bottom conditions; or (4) utilizing new or unusual technology.
516 DM 15.4(C)(10).
Because of this determination, MMS did not analyze the potential significant adverse environmental impacts of the Deepwater Horizon project.
As part of its review, CEQ is requesting public comment on current MMS NEPA practices, policies, and procedures relating to oil and gas exploration and development in the Outer Continental Shelf. Specifically, CEQ is requesting input on the following issues:
- Whether substantive issues exist and how those issues should be analyzed during the NEPA process.
- Whether the current permitting process and NEPA submissions allow for comprehensive evaluation of all relevant issues.
- Whether using categorical exclusions has been effective for oil and gas activities in the Outer Continental Shelf.
- Whether MMS’s use of Categorical Exclusion Review has been an effective tool for reducing paperwork without compromising necessary review under NEPA.
- Whether public engagement has been a part of MMS NEPA practice, particularly with respect to categorical exclusions.
- What resources are available to federal, tribal, state, and local government agencies to participate in MMS NEPA reviews.
Comments should be submitted “as soon as possible” because CEQ’s review ends June 17. 75 Fed. Reg. at 29997.
April 23, 2010
In what appears to be a significant emerging trend, the New York State Department of Environmental Conservation (“DEC”) is beginning to exercise its long-dormant authority to regulate endangered and threatened species and their habitat. This trend could have a significant impact on developments proposed in or near these species’ habitat.
The DEC recently issued four licenses, or New York State Endangered Species Act permits (“ESA Permits”) under Article 11 of the Environmental Conservation Law (“ECL”), a number which is notable for far exceeding past issuances. The permits were issued for the construction of a wind power plant, a retail facility, a road project, and a residential development. These ESA Permits authorize the “taking” of endangered and/or threatened species, which includes the killing, capturing, disturbing and worrying the species, or modification of its habitat. ECL § 11-0535; see also State v. Sour Mt. Realty, Inc., 714 N.Y.S.2d 78 (2d Dept. 2000); State v. White Oak Co., 787 N.Y.S.2d 333 (2d Dept. 2004).
To receive the ESA Permit, the applicants had to demonstrate a net conservation benefit to the identified species once all mitigation measures and permit conditions are complete. Although DEC determines necessary mitigation measures on a case-by-case basis depending upon the type of species involved, DEC required similar mitigation conditions for each of the ESA Permits. Conditions included permanently protecting land by transferring title or a conservation easement, and securing a performance bond before commencing any activities on site to cover the estimated costs of habitat restoration and mitigation. Setting aside crucial habitat or new habitat that did not exist may become a standard permit requirement.
Under Governor Pataki, the DEC did not exercise its endangered species authority pursuant to Article 11. Instead, endangered and threatened species issues were dealt with pursuant to the State Environmental Quality Review Act (“SEQRA”). Under the new administration, and Commissioner Pete Grannis, DEC has notably begun to exercise its Article 11 authority. Therefore, projects that might “take” a listed species and cannot be modified to avoid the taking entirely will have to obtain an ESA Permit.
Although developers have always had to consider the impacts of a proposed project on listed species under SEQRA, if the mitigation measures minimized the adverse impacts, then the requirements of SEQRA were usually satisfied and the review ended, even if the project resulted in alteration or destruction of the species’ habitat. Now, it appears that even when the project satisfies SEQRA requirements, if the project’s impacts alter or destroy listed species’ habitat or “take” a listed species, the developer must apply for an ESA Permit. To receive the permit, the developer must demonstrate a “net conservation benefit” from the proposed mitigation measures, which may include setting aside crucial habitat or creating new habitat for the listed species. Therefore, when planning a project, the developer should try to ensure that impacts to listed species and their habitat are considered and avoided entirely. Otherwise, the developer will need an ESA Permit.
DEC has sent draft regulations to the Governor’s office for approval, a required step before releasing them for public comment. The draft regulations are expected in the near future. The content of the draft regulations are unknown, but based on the ESA Permits issued, they may likely require mitigation measures like permanent protection and monitoring of habitat, and securing a performance bond to ensure that the mitigation measures are implemented.
DEC’s Article 11 enforcement authority was made clear in the recent ESA Permits and DEC’s recent letter (pdf) denying Entergy’s application for a Water Quality Certificate pursuant to Section 401 of the Clean Water Act for Indian Point Units 2 and 3 (“Indian Point”) in Buchanan, New York. Sampling data from 1975-1990 determined that Indian Point’s operations harmed (i.e., resulted in a “taking” of) shortnose sturgeon, a New York listed endangered species, and Atlantic sturgeon, a federally protected species, by impinging the sturgeon on and entraining them in the cooling water intake structures. Although recent sampling data was not available, DEC determined that based on prior studies and Indian Point’s unauthorized “take” of the listed species, the relicensing of Indian Point “would continue to cause mortality to the sturgeon species” and therefore was not in compliance with Article 11.
March 8, 2010
On February 18, 2010, the Council on Environmental Quality (“CEQ”) released a long-anticipated draft guidance document addressing how the effects of climate change and greenhouse gas (“GHG”) emissions should be analyzed under the National Environmental Policy Act (NEPA).
The CEQ guidance stresses that NEPA “demands informed, realistic governmental decision making.” Accordingly, the guidance instructs federal agencies to include a discussion of climate change within the scope of its NEPA analysis when an analysis of the direct and indirect of GHG emissions from proposed actions “may provide meaningful information to decision makers and the public.”
To put some meat on the bones of its overarching standard for “meaningful information”, the guidance deems projected direct annual CO2-equivalent GHG emissions from a proposed action of 25,000 metric tons or more “an indicator that a quantitative or qualitative assessment may be meaningful to decision makers and the public.”
However, the 25,000 metric ton figure is not a firm standard. The guidance makes clear that impacts from long-term projects with emissions below 25,000 metric tons annually may also warrant analysis. The Guidance goes on to list a number of technical documents that can assist agencies in quantifying GHG emissions for the purpose of a NEPA review. The Guidance also states expressly that the 25,000 ton standard should not be seen as an indicator of the significance of potential impacts of an action.
Apart from GHG emission, the Guidance also provides that, when appropriate, agencies should consider the potential effects of climate change on, or in combination with, a proposed action. According to the Guidance, climate change effects should be considered in the analysis of projects designed for long-term utility and located in climate-change vulnerable areas. It states that as such “the observed and projected effects of climate change that warrant consideration are most appropriately described as part of the current and future state of the proposed action’s ‘affected environment.’” The Guidance emphasizes that, in light of the uncertainties associated with climate change predictions, in considering the future effects of climate change, monitoring programs should be considered for inclusion in NEPA decision documents.
The draft Guidance specifically does not address what climate-change related impacts rise to the level of “significance” – thus requiring the preparation of an EIS. Rather, it seems to assume that agencies will analyze climate change within whatever NEPA document is otherwise being prepared for an action. However, CEQ has asked for comment on whether the final Guidance should address significance.
The Guidance attempts to strike a balance between requiring an assessment of GHG emissions and climate change impacts within the scope of NEPA review where it would be meaningful, while limiting the scope of such review so it does not run afoul of the “rule of reason,” the principle that agencies should focus on the usefulness of the potential information to the decision making process when determining the scope of its NEPA review. To that end, CEQ makes clear that agencies should use the NEPA scoping process “to set reasonable spatial and temporal boundaries” on any GHG assessment and, most importantly, “focus on aspects of climate change that may lead to changes in the impacts, sustainability, vulnerability and design of the proposed action and alternative courses of action.” It is clear that CEQ is not looking for wholly academic discussions of climate change in NEPA EAs and EISs, and also does not want a discourse on “wholly speculative effects.” Rather, the Guidance favors a discussion of GHG emissions and climate change in a manner where it could meaningfully impact the decision making process subject to the NEPA review, such as cases where the NEPA review could be used “to reduce vulnerability to climate change impacts, adapt to changes in our environment, and mitigate the impacts of Federal agency actions that are exacerbated by climate change.” In that vein, the Guidance emphasizes the importance of comparing the climate change-related effects of various project alternatives.
Thus, the emphasis of the Guidance is precisely where it should be – to provide information and analysis consistent with NEPA’s “rule of reason.” Of course, like most things NEPA, the devil is in the details. While this draft Guidance document, when finalized, will provide some useful broad overarching principles to determine the scope of any GHG/climate change analysis, as well as some specific tools to assist agencies in conducting that analysis, it will be left to the agencies – and ultimately the federal courts – to grapple with these issues in the context of the myriad federal actions with the potential to cause GHG/climate change impacts or that are potentially vulnerable to climate change impacts.
CEQ will receive public comment on the guidance documents for 90 days. The guidance documents and instructions for submitting comments are available here: www.whitehouse.gov/ceq/initiatives/nepa.
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