What You Need to Know on the New NEPA Draft Guidance on Greenhouse Gas Emissions

If you’ve not already heard, the new 2019 Draft National Environmental Policy Act (NEPA) Guidance on Consideration of Greenhouse Gas Emissions (GHG) from the Council on Environmental Quality (CEQ) was published on June 26, 2019 for public comment.  CEQ proposes to replace the withdrawn 2016 Final Guidance of Consideration of GHG and the Effects of Climate Change in NEPA Reviews.  The public comment period closed on July 26, 2019. After CEQ reviews and assesses the public comments, CEQ may issue the draft proposed guidance as is or may make additional edits and finalize.

The purpose of this blog post is to summarize the draft proposed guidance and our take-aways and tips.

Here’s What You Need To Know:

This proposed new guidance is much shorter and may lead to a reduction in effort to analyze climate change effects of proposed actions by many agencies.  The 2019 draft guidance is strikingly shorter than the 2016 guidance and reduces the amount of guidance from the CEQ by nearly 31 pages of discussion. While this proposed shorter guidance may save trees during printing, our take is that it reduces the volume of examples and detail available to agencies to use GHG as a proxy for climate change.  So what does this mean?  We may see increasing differences in the discussions of GHG and climate change in documents from various federal agencies.

One item that stood out is the revised guidance on cumulative analyses.  Agencies are now able to satisfy cumulative effects analysis of a proposed action by comparing emissions estimated from the proposed action to local, regional, national or sector-wide emissions estimates and establishing an understanding of the relative order of magnitude of a proposed action’s GHG emissions. The order of magnitude can also be used to compare alternatives. Therefore, with one quantitative analysis, both cumulative and direct proposed action impact analysis can be completed.

In many ways, GHGs have become a simple extension of the air quality analysis in the new guidance – an estimate from direct and indirect emissions related to the proposed actions.  The challenge is the guidance still does not define a threshold for impact like what is defined for criteria pollutants. We anticipated that most agencies will still likely use the reporting requirement from EPA’s Greenhouse Gas Reporting Program of 25,000 metric tons of carbon dioxide equivalents per year as the de facto threshold for significance.

In the new guidance, recommendations are limited to provide the quantitative estimates of GHG emissions, a comparison to a reasonable inventory to state what percent increase or reduction would be reasonable for each proposed action or alternative, and a statement from the agency based on their review of existing scientific literature if there is an impact to consider or not.  There is no requirement to discuss specific climate change impact in any amount of detail.

Will this lead to greater comments from the public with regard to climate change? Given the anticipated change to softer impact analysis, it is likely that the public (or agencies) may request additional detail to demonstrate no significant impact. We will monitor for developments especially if raised in the courts.

Will this lead to more inconsistencies between agencies and regions in their discussion of climate change?  Yes. As in the past, agencies will likely develop their own guidance documents to address GHGs and climate change in their NEPA documents – or – continue to use their existing guidance. While overall the approach to analysis is anticipated to be similar and in keeping with the CEQ guidance, we anticipate subtle agency differences.

Does this make it even harder for agencies to define how they want to approach the level of detail for discussion of climate change as a result of their actions?  Definitely.  The lack of a discrete quantifiable threshold leaves it up to each agency to defined what constitutes a significant GHG/climate change impact.

The best way for agencies to be ready for comments and the uncertainty that exist with climate change is to prepare talking points for your stakeholders in advance so that you may show a united and consistent front. We suggest modernizing your quantitative models by making sure the calculations are transparent and well documented.  Ensure your analyses include the newest emission factors available and that the updates are used by all.

Tell Me More…!

Reduces details available to federal agencies. The 2019 draft guidance document reduces the details available to agencies to implement recommendations about utilizing GHG emissions as a proxy for assessing potential climate change affects from the proposed action to just one sentence. The 2019 draft guidance also is largely silent about consideration of mitigation and the detail as to what climate change indicators and resiliency (i.e. sea level rise planning) might be considered as part of the proposed action.

Less prescriptive approach.  Overall the 2019 guidance is efficient in its recommendations to agencies but leaves a lot of white space where the agency must complete their own literature review and determine for themselves what they deem is appropriate and within the “rule of reason” versus the more prescriptive approach in the 2016 guidance.

Another key difference is the softening of the 2016 guidance to not compare emissions from the proposed action and alternatives to existing emissions inventories to demonstrate that the Federal action represents a small fraction of global emissions. Instead, in the 2019 proposed guidance, agencies are encouraged to consider not only impacts from the proposed action, but consider cumulative effects analysis of a proposed action by comparing emissions estimated from the proposed action and alternatives to local, regional, national or sector-wide emissions estimates and establishing an understanding of the relative order of magnitude of a proposed action GHG emissions. The order of magnitude can then be used to compare alternatives.

Qualitative analysis still an option but….The proposed guidance still encourages use of existing information and discourages undertaking new research and provides the option to perform a qualitative analysis when enough information does not exist, or existing information would be speculative or not of high quality. However, a lost opportunity is glaring at us from the guidance: Scientific study into GHG emissions relationships to the acceleration of climate change is largely absent from consideration in NEPA evaluations.

How might this affect federal regulatory agencies and future NEPA GHG Analysis?

Possibly a gap in analysis from the public’s perspective.  The first noticeable change is the lack of discussion of climate change and the lack of a recommendation to include climate change within NEPA documents.  While for some agencies this may be a relief and will result in a dramatic difference in the complexity of their NEPA documents compared to what they may have been doing under the 2016 guidance, it will likely leave a hole in the analysis as seen from the eyes of the public reviewer. The result could be higher volumes of comments accusing the agency of a lack of foresight to what some news outlets are calling a “climate emergency.”

The new guidance states specifically that federal agencies preparing NEPA analyses need not give greater consideration to potential effects from GHG emissions than to other potential effects on the human environment – seeming alluding to the statements in the 2016 guidance about the complexity of climate change and that guidance’s undertone of the level of attention needed to evaluate both impacts and mitigation for climate change related to any proposed actions.

Evaluating mitigation measures and carbon sequestration is not included.  The requirement to evaluate mitigation measures and carbon sequestration is absent in the 2019 draft guidance. The biggest affect may be to forestry projects, as the new guidance is largely silent about consideration of carbon sequestration as a reasonably foreseeable result of a proposed action. Planting of trees and other vegetation is being studied extensively by scientific groups as ways to reduce GHG concentrations in the atmosphere. Now there is no need for federal agencies not concerned with emissions to evaluate the need for carbon sequestration as part of their proposed action. It’s unclear if federal agencies whose proposed actions do have substantial emissions (also undefined) would include sequestration into their analyses.

Agency preparation of cumulative affects analysis for GHG and climate change will see potentially dramatic different presentations, depending on the agency.  The CEQ has continued recommendations on a “no need for separate cumulative effects analysis to include climate change considerations” but has lightened guidance against using an order of magnitude analysis comparing the estimated emissions of GHG from each alternative to available emissions inventories to compare the alternatives.

Other Tips

Sound quantitative analysis still recommended.  The 2019 proposed guidance still requires agencies to perform sound quantitative analysis to estimate the GHG emissions from proposed actions. However, the proposed guidance silences another Federal agency for officially speaking out about climate change concerns and the evidence that elevated concentrations of GHG are reasonably anticipated to endanger public health and welfare that was previously presented in the 2016 guidance. Research is happening worldwide on the changing climate and the relationship to GHG emissions. It would be prudent of agencies to keep abreast of that research, as political changes could dramatically change the guidance yet again.

Tips to succeed with this proposed guidance is to:

• Ensure you are carefully documenting the sources used in your quantitative analysis.
• Apply the newest versions of the models that CEQ recommends (see https://ceq.doe.gov/guidance/ghg-accounting-tools.html).
• Use current emissions factors, not just the ones that are in your spreadsheet from past analyses that could be outdated based on update models.
• Create clear and transparent spreadsheets or calculation records for each action you consider.
• Don’t purposely underestimate activities because you are getting close to the 25,000 metric tons of CO₂ equivalents threshold commonly used.
• Proactively prepare statements for when community members comment about the lack of discussion of climate change impacts in your NEPA documents.
• Provide your staff and contractors with speaking points for public meetings.
• Be transparent with how your agency is considering GHGs – and how your agency is consistent with the CEQ guidance.
• Anticipate changes from CEQ as administrations change.

So, our final advice – continue to be aware of GHG research and policy making that is happening around our great nation. Science is wonderful because by its nature, if it is scientifically provable once, it can be proven again and again if only one is willing to listen. If you need help with your GHG emissions, Scout Environmental is here for you. Contact us at hello@scoutenv.com.