WHITE HOUSE

No sign of NEPA climate standards 4 years after CEQ guidance

This story was updated at 4:56 p.m. EST.

Standards to guide federal agencies in using the National Environmental Policy Act to address greenhouse gas emissions and climate resiliency have been on the to-do list of President Obama's Council on Environmental Quality for several years.

CEQ proposed a draft guidance four years ago, but after a public comment period the draft all but vanished, and the White House office isn't offering clues about where it went -- or whether it might re-emerge.

At a Feb. 14 press briefing on her last day as CEQ chairwoman, Nancy Sutley said a revised guidance is still "being worked on."

But she added that a uniform guidance isn't urgent because agencies are already including climate impacts in their NEPA reviews. The law requires the government to weigh the environmental consequences of projects before issuing federal permits.

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"I think most agencies already recognize that they need to consider greenhouse gas emissions as an environmental effect under NEPA and need to consider to what extent they need to analyze that as part of their NEPA review," Sutley said.

But NEPA climate policies vary widely from agency to agency. A CEQ document, she said, would "help ensure a level of consistency."

Environmentalists see a CEQ guidance as key to ensuring that agencies give the issue proper weight. Failing to finalize a guidance, they say, would detract from Obama's legacy on climate change.

"I think NEPA provides one important way for the federal government to think systematically about the climate impacts of what it does and what it allows," said Michael Gerrard, director of the Center for Climate Change Law at Columbia Law School.

It's also yet one more opportunity for the White House to use existing authority to combat climate change, he said.

"If the president is saying that in the absence of new congressional action, he's going to use the tools he has, here's one tool that he has at the ready," Gerrard said.

The lack of a permanent leader at CEQ is likely a factor in what comes next on NEPA. The office is being led now by acting Chairman Mike Boots, who was Sutley's chief of staff (Greenwire, Feb. 6).

Gerrard -- who in 2008 petitioned CEQ on behalf of the Natural Resources Defense Council to write the guidance -- says that some agencies have distinguished themselves in the ways they incorporate climate change into their NEPA processes. The petition was also signed by the Sierra Club and was spearheaded by the International Center for Technology Assessment.

For example, a 2012 analysis by the center found that the Army Corps of Engineers has made strides in accounting for the climate impacts of the projects it permits and for the likelihood that bridges, dams and flood-control projects will withstand projected weather conditions decades into the future.

"A full lifecycle analysis of emissions is often included, covering indirect emissions from electricity use, induced trips and construction and maintenance activities," the report says of the Army Corps. It adds that the Energy Department and Bureau of Land Management also go to lengths to estimate the greenhouse gas and resiliency repercussions of the projects they permit.

But other agencies are using methodologies that the report says are designed to ensure that project developers won't have to reduce their greenhouse gas footprint as a condition of permitting.

"The real absence of clear guidance means that a number of agencies are doing next to nothing," Gerrard said in an interview.

Emissions from public lands

The Federal Aviation Administration, for one, considers only emissions from air travel when preparing environmental impact statements for new airports. It doesn't look at emissions from construction as a rule and doesn't consider that expanded airports will mean additional emissions.

Emissions from air travel are calculated as a percentage of U.S. greenhouse gas emissions in a way that implies the development won't have a significant impact on emissions, the report says.

The absence of a CEQ guidance on climate also limits opportunities for watchdog groups to seek judicial review of the way agencies address climate change under NEPA, Gerrard said.

Courts may insist that agencies include some discussion of the issue in their environmental impact statements, but without an interagency standard in place, there is no way to assess the adequacy of that treatment.

The 2010 CEQ draft specified that if a proposed project or action would cause direct emissions of 25,000 metric tons or more of carbon dioxide equivalents each year, the permitting agency must consider that fact "an indicator that a quantitative and qualitative assessment may be meaningful to decision makers and the public." Projects with lower annual emissions levels that are deemed to have a significant greenhouse footprint over time may also warrant an assessment, it said.

The 25,000-ton figure was drawn from U.S. EPA's 2009 rule for the mandatory reporting of greenhouse gases. CEQ staff said after the draft was released that projects that met or exceeded that emissions threshold would not necessarily face tighter restrictions or requirements. Rather, the permitting agency would see it as a signal to look for opportunities to reduce emissions.

Gerrard said this might mean asking a project developer to find lower-carbon cement or draw more of a project's power from renewables.

It would be unlikely that an agency would withhold a permit solely because a project was judged to exceed a certain greenhouse gas threshold, said Sharon Buccino, director of NRDC's land and wildlife program.

"It's guidance, so it's not going to change the underlying legal requirements," she said. "But it's going to affect how the agencies are implementing those requirements.

"It does have significance, because it will hopefully push the agencies -- the Department of Interior, for example -- in a direction that's making sound land-management decisions."

NRDC joined with other environmental groups to submit joint comments to CEQ during the public comment period on the guidance -- which closed May 24, 2010 -- asking it to strike the draft's exemption for land management agencies. Buccino said she expects that when a revised draft guidance is released, it will apply to the Bureau of Land Management, the Forest Service and other agencies that permit roads, energy development and other actions on public lands.

Curbing emissions from public lands has become a big issue for environmental groups (Greenwire, Dec. 5, 2013).

Buccino said the CEQ draft could change the weight that land managers give to the climate impacts of proposed coal and oil development projects on public lands, and of projects like the Keystone XL oil pipeline, she said.

Decisions on permitting would be "informed by a long-term perspective" that would favor lower-carbon development, she said.

Green groups also called on CEQ to identify alternatives for mitigation in its guidance, providing agencies a menu of options to choose from. This would allow agencies to spend less time trying to estimate possible future emissions, they said.

"We are quite concerned that federal agencies will spend far too much time grinding their heels in data to understand the precise mechanics of climate change when their time and limited resources could be better spent taking common-sense action to reduce [greenhouse gas] emissions and protect against climate change by promoting the resiliency of communities and the environment," the comments read.

GOP opposition

CEQ says that the 2010 draft "is currently being revised to incorporate public and stakeholder input and reviewed by agencies to ensure it is useful and responsive."

Environmentalists say they don't know why the administration appears to be dragging its feet on the NEPA question even as it rushes ahead with other controversial climate actions like Clean Air Act rules for power plants and revisions to its estimate for the social cost of carbon. They only note that CEQ's window of opportunity to make an impact through NEPA may be limited; a new administration can more easily rescind a guidance than a rulemaking.

But whenever CEQ reissues a draft, it is likely to be a political lightning rod.

Congressional Republicans warned in 2010 that requiring federal agencies to consider climate change when implementing NEPA would stop development on public lands and stymie economic growth (Greenwire, April 20, 2010).

Reed Hopper, a principal attorney at the conservative Pacific Legal Foundation, said the administration should avoid using NEPA to address climate change.

Any threshold it set for emissions from a project or action would be "arbitrary," he said.

"It's a value judgment, and therefore necessarily political to an extent," he said. The result of a uniform standard across agencies would be to delay projects and jeopardize development. Mitigation requirements would add to projects' price tags, making it less likely that they would move forward, he said.

But Stephen Kass, co-director of the environmental practice group at Carter Ledyard & Milburn LLP in New York, said that the housing developers his firm represents don’t expect the inclusion of climate concerns to change the NEPA process much. Considering climate change in the context of NEPA review would drive “best practices” in development.

“You can expect people to do everything possible and feasible to reduce the impacts from their project,” he said. But the NEPA process would not kill projects or require developers to take drastic action to reduce emissions.

But Kass said a NEPA review might compel developers to relocate a housing development if their original proposed site is deemed to be in an area that will be affected by rising sea levels, more frequent storms or other likely effects of climate change.

Reporter Robin Bravender contributed.

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