Marten Law: CEQ Marks 40th Anniversary of NEPA With New Guidance on Greenhouse Gas Impacts, Mitigation and Categorical Exclusions

"Marking the 40th anniversary of the National Environmental Policy Act (NEPA), the White House Council on Environmental Quality (CEQ), has issued three draft guidance documents in a campaign to 'reinvigorate' the workings of the Act," report Svend Brandt-Erichsen and Dustin Till of Marten Law PLLC in this Emerging Issues Analysis. "The new guidance, issued in draft for public comment, directs how federal agencies are to:

• Consider the effects of climate change and greenhouse gas (GHG) emissions in agency decision-making;
• Use mitigation to reduce or avoid impacts, and monitoring their effectiveness;
• Establish and apply categorical exclusions."

"The GHG guidance, long anticipated and hotly contested, has garnered most of the attention so far, and for good reason", explain the authors. "By requiring the consideration of climate change impacts in agency decision-making, it requires federal agencies to get into the business of using evolving and controversial scientific evidence to assess hundreds of public and private projects, including energy infrastructure, highways and ports, and landfills.

"Among the states - several of which have 'substantive' mini-NEPA statutes - it could require mitigation of those still uncertain impacts. Though less headline grabbing, the other two guidance documents are nearly as potentially far-reaching and will also change the way in which environmental review of federal actions are conducted."

This article focuses on the GHG guidance document. Subsequent articles will discuss the mitigation and categorical exclusion guidance documents. Public comments on the proposed GHG and mitigation guidance documents will be accepted for 90 days after they are printed in the Federal Register, and comments on the categorical exclusion guidance will be accepted for 45 days.

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