On August 2, the White House Council on Environmental Quality (CEQ) issued
Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews. The Final Guidance is intended to provide direction on how federal agencies should address the effects of greenhouse gas (GHG) emissions and climate change as those agencies satisfy their duties under the National Environmental Policy Act (NEPA) when preparing an Environmental Impact Statement (EIS), or an Environmental Assessment (EA) and when considering the use of Categorical Exclusions. The Final Guidance supersedes a revised draft guidance issued by CEQ in December 2014.
The Final Guidance is especially important for the energy sector. Many types of federal actions involve the management of federal and tribal land and resources and could qualify, in the words of NEPA, as “major federal actions significantly affecting the quality of the human environment,” thereby triggering the need to prepare an EIS. Also, many energy projects, including infrastructure improvements, may require federal permits, approvals or funding from federal agencies and thereby require the preparation of an EIS or EA. While CEQ made several modest, semantic changes to address concerns raised in comments on the Draft Guidance, there is little practical difference between the Draft and Final Guidance documents in certain key aspects. Although the Final Guidance is not legally binding and does not alter the obligations found in NEPA, CEQ’s implementing regulations, and applicable caselaw, CEQ continues to recommend an expansive analysis of GHG emissions and climate change in NEPA reviews that pushes – and in some cases may exceed – the limits imposed on federal agencies under CEQ regulations and established judicial precedents.
The following chart provides an overview of several key issues in the Final Guidance and identifies the changes, if any, that CEQ had made in the Final Guidance. It also provides a side-by-side comparison of key language from the Draft and Final Guidance documents to illustrate the semantic changes that CEQ has made in the Final Guidance.
The attached chart provides an overview of several key issues in the Final Guidance and identifies the changes, if any, that CEQ had made in the Final Guidance. It also provides a side-by-side comparison of key language from the Draft and Final Guidance documents to illustrate the semantic changes that CEQ has made in the Final Guidance.
If you have any questions regarding this Sidley Update, please contact the Sidley lawyer with whom you usually work, or
The Environmental Practice of Sidley Austin LLP
The Energy Practice of Sidley Austin LLP
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