ich downstream emissions should be considered effects of their action. Compounding this omission, CEQ’s 2022 amendments to its NEPA regulations also revised the definition of “effects” to eliminate language incorporating the Public Citizen standard.As a result, agencies and project proponents currently have little help in navigating this complex issue and face considerable uncertainty in case of judicial review.As the Biden administration moves to further engrain climate change impacts into federal decision-making, these and other issues are likely to be the subject of additional litigation, with projects seeking federal authorization caught in the crossfire. Project proponents will need to work proactively with agency staff to minimize legal risks and delays.The guidance is effective immediately; however, CEQ is accepting comments on the guidance through March 10, 2023.FOOTNOTESNational Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions and Climate Change, 88 FR 1196 (January 9, 2023).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, 81 FR 51866(Aug. 5, 2016).Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1200 (9th Cir. 2008).See U.S. Envtl. Protection Agency,Fact Sheet: Social Cost of Carbon, EPA.gov 1-2 (2016). See also, Interagency Working Group on Social Cost of Greenhouse Gases, Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis (August 2016).See Interagency Working Group on Social Cost of Greenhouse Gases, Social Cost of Carbon, Methane, and Nitrous Oxide, Interim Estimates (February 2021) and EPA, Docket ID No. EPA-HQ-OAR-2021-0317, EPA External Review Draft of Report on the Social Cost of Greenhouse Gases: Estimates Incorporating Recent Scientific Advances (September 2022). Ten states have attempted to halt the consideration of SC-GHG in federal rulemaking through litig

nomic impacts analysis. The Biden-Harris administration has changed this significantly through executive orders and the ascension of FERC’s recent Chairman Richard Glick. In the past two years, FERC created a Senior Counsel position for Environmental Justice and Equity and opened an Office of Public Participation, which can assist members of environmental justice communities with participation in FERC proceedings. The most notable nod to environmental justice is found the Draft Certificate Policy Statement, which would have taken environmental justice impacts beyond NEPA to be part of FERC’s NGA “public interest” review. That proposal, however, has yet to be implemented at FERC.Environmental justice remains an important issue at FERC, and will be so even if the Draft Policy is never finalized. Indeed, the Interim Guidance provides FERC with a blueprint for elevating environmental justice further, during the NEPA process, without making it a key element of NGA “public interest” review. 88 Fed. Reg. 1196 (Jan. 9, 2023).Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews, 178 FERC ¶ 61,108, deemed draft, 178 FERC ¶ 61,197 (2022). FERC simultaneously issued a revision to its Policy Statement on Certification of New Interstate Natural Gas Facilities as a companion order to the Draft Policy. Certification of New Interstate Natural Gas Facilities, 178 FERC ¶ 61,107, deemed draft, 178 FERC ¶ 61,197 (2022) (“Draft Certificate Policy Statement”). FERC practice does not consider the end-use of LNG transported from FERC-authorized export facilities in light of court precedent deeming that to be outside the scope of FERC’s NEPA obligations.SeeTenn. Gas Pipeline, Co., LLC, 181 FERC ¶ 61,051, at PP 37, 75 (2022); See Gulf South Pipeline, LLC, 181 FERC ¶ 61,145, partial concurrence and dissent of Comm’r Danly (2022).

Download PDFThe Council on Environmental Quality (“CEQ”) published in the January 9th Federal Register a document titled:National Environmental Policy act Guidance on Consideration of Greenhouse Gas Emissions and Climate Change (“Interim Guidance”)See 88 Fed Reg. 1196.CEQ was established in 1970 (as part of the Executive Office of the President) with its duties including oversight of the federal agency implementation of the National Environmental Policy Act (“NEPA”). CEQ issues both regulations and guidance to provide federal agencies its views on the appropriate interpretation of NEPA’s procedural requirements. CEQ regulations are generally viewed by the federal agencies as guideposts for compliance.CEQ states it is issuing the draft Interim Guidance to assist agencies in analyzing greenhouse gas (“GHG”) and climate change effects of their proposed actions under NEPA. The guidance is being issued as Interim Guidance so that agencies can utilize it immediately. However, CEQ is seeking comments on the draft guidance and intends to either revise it in response to public comments or produce it in final form. The intent is also stated to include improving the efficiency and consistency of reviews of proposed federal actions for:Federal agenciesDecision

s.The CEQ encourages agencies to mitigate GHG emissions to the greatest extent possible.The guidance does not establish or change legal requirements. Nevertheless, agencies will likely rely on the guidance when conducting NEPA reviews, and courts may give some deference to the guidance, as they did with prior CEQ climate change guidance documents. See, e.g., WildEarth Guardians v. Jewell, No. 1:16-CV-00605-RJ, 2017 WL 3442922 (D.N.M. Feb. 16, 2017); WildEarth Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013).Next StepsThe CEQ’s new guidance on GHG emissions and climate change is effective immediately. The guidance states that agencies should use it for all new NEPA reviews going forward and should consider whether to apply it to ongoing NEPA reviews if it would inform the consideration of alternatives or help address public comments. The CEQ is accepting comments on the guidance for 60 days, due on or before March 10, 2023, and may revise the guidance in response to comments.Endnotes 88 Fed. Reg. 1196 (January 9, 2023).86 Fed. Reg. 24669 (May 7, 2021).[View source.]