Sustainable Developments

April 16, 2010 Advisory

On February 18, 2010, the White House Council on Environmental Quality (CEQ) issued draft guidance "for public consideration and comment" with regard to Federal agency consideration of greenhouse gas (GHG) emissions and climate change in evaluation of proposals for Federal actions under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq. [] Significantly, the term "Federal actions" includes Federal permitting of funding of private projects as well as solely governmental activities. 40 C.F.R. 1508.18(a). This draft guidance reinforces statements made by CEQ that "it is appropriate and necessary to consider the impact of significant Federal actions on greenhouse gas emissions and the potential for climate change to affect Federal activities evaluated through NEPA." "No Basis for Excluding Climate Impacts From NEPA Reviews, CEQ Says," N.Y. Times online "Greenwire, published: January 15, 2010. [] Entities that may be affected by the rule may wish to consider commenting on it to EPA. CEQ will receive public comment on the guidance document until May 24, 2010.

It is already well established for projects that require any Army Corps of Engineers or EPA permitting, including those that involve wetlands, dredge and fill, and stormwater permitting to consider the effects of the projects on GHG emissions in their NEPA submissions.[1] CEQ's proposed guidance, if adopted, would help agencies to "analyze the environmental effects of GHG emissions and climate change when they describe the environmental effects of a proposed agency action." For projects that estimate "direct emissions" of at least 25,000 metric tons per year ("tpy") of CO2 - equivalent GHG, the guidance advises agencies to compile "a quantitative and qualitative assessment" to assist decision makers and for those decision makers to consider "measures to reduce GHG emissions, including consideration of reasonable alternatives." This 25,000 tpy standard, however, is not firm, and agencies may find that GHG emissions of less than 25,000 tpy may warrant further quantitative and qualitative evaluation and suggestions for reduction and reasonable alternatives.