February 24, 2010

White House Issues Sweeping Draft NEPA Guidance on Greenhouse Gas Analysis, Mitigation Monitoring and Categorical Exclusions

Holland & Knight Alert
Amy L. Edwards

On February 18, 2010, timed in conjunction with the 40th anniversary of the National Environmental Policy Act (NEPA), the White House Council on Environmental Quality (CEQ) released a suite of draft guidance documents intended to “modernize and reinvigorate” the Act. The guidance documents provide instruction on when and how federal agencies must consider greenhouse gas (GHG) emissions and climate change in their proposed actions; specify when there is a need to monitor environmental mitigation commitments; and clarify use of categorical exclusions. Together, these documents represent a sweeping renewal and focus on NEPA, often called the “linchpin” of U.S. environmental laws.

Greenhouse Gas Guidance

The most anticipated of these guidance documents is the draft “NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions,” which responds to a petition from Natural Resources Defense Council, the Sierra Club and the International Center for Technology Assessment, submitted to CEQ in 2008. While CEQ states that NEPA is not intended to regulate GHG effects on climate, CEQ issued the guidance to help provide federal decision makers with methods on how to analyze the effects of GHG emissions on climate so they can develop “relevant and timely information” as part of the NEPA process.

Under this draft guidance, if a proposed federal action would be reasonably anticipated to cause direct emissions of 25,000 metric tons or more of greenhouse gas annually, federal departments and agencies should consider this an indicator that a quantitative and qualitative analysis should occur. CEQ emphasizes that the 25,000 metric ton reference point is not to serve as an indicator of a threshold of “significant effects,” but rather triggers the need to:

  • quantify cumulative emissions over the life of the project
  • discuss measures to reduce GHG emissions, including consideration of reasonable alternatives
  • qualitatively discuss the link between such GHG emissions and climate change as well as the impact of climate change on the project

The draft guidance exempts federal land and resource management actions and clarifies that NEPA does not itself regulate climate change. To that end, the draft guidance provides that it is not “currently useful for the NEPA analysis to attempt to link specific climatological changes, or the environmental impacts thereof, to the particular project or emissions, as such direct linkage is difficult to isolate and to understand.” The guidance provides examples of projects that may warrant analysis of GHG impacts such as “approval of a large solid waste landfill; approval of energy facilities such as a coal-fired power plant; or authorization of a methane venting coal mine.” CEQ also describes the kinds of effects that may occur “includ[ing], but... not limited to, effects on the environment, on public health and safety, and on vulnerable populations ...” Rather than being considered a new analysis, CEQ takes pains to explain that the required GHG analysis simply should be viewed as a factor of growing importance in the existing NEPA framework.

Finally, the draft guidance clarifies that it will not become effective until it is issued in final form. The draft guidance presents a specific list of questions for public comment, including: (i) addressing uncertainties associated with climate change projections; (ii) whether CEQ should provide guidance to agencies on determining whether GHG emissions are “significant” for NEPA purposes; and (iii) the level at which GHG emissions should be considered to have significant cumulative effects.

CEQ will accept public comment on this draft guidance for 90 days, until May 24, 2010.

Mitigation and Monitoring Guidance

The second guidance document, “Draft Guidance for NEPA Mitigation and Monitoring,” sets forth a “comprehensive approach to mitigation planning, implementation and monitoring.” Through this draft guidance, CEQ confirms that mitigation to reduce a proposed action’s environmental effects may result in a “Finding of No Significant Impact” (FONSI) without an Environmental Impact Statement (EIS), so long as the mitigation measures are made public and accompanied by monitoring and reporting. In addition, the draft guidance requires that agencies must: (i) consider mitigation throughout the NEPA process; (ii) provide robust monitoring plans to ensure mitigation implementation and effectiveness; and (iii) ensure public transparency of mitigation monitoring reports and documents. The draft guidance points to the U.S. Army’s NEPA regulations as a model.

CEQ will also accept public comment on this draft guidance for 90 days, until May 24, 2010.

Categorical Exclusions Guidance

The final guidance document released is titled, “Establishing, Applying, and Revising Categorical Exclusions Under the National Environmental Policy Act.” CEQ notes that the use of categorical exclusions that exempt from further analysis projects expected to have an insignificant impact on the environment, has expanded over the years, and unless carefully applied, their use could undermine the purpose of NEPA. Thus, in the draft guidance, CEQ establishes procedures for how agencies should promulgate, apply and reassess categorical exclusions, including ensuring that public input is sought in establishing categorical exclusions at the outset and that there is a regular process for reviewing the classifications. With respect to applying categorical exclusions, the draft guidance requires that agencies provide for public involvement before and a public record after categorical exclusions are used.

CEQ has previously sought public comment on this issue, and therefore, will accept public comment on the draft for only 45 days, until April 9, 2010.


With the issuance of these three guidance documents, CEQ has refocused the nation on NEPA, shined a spotlight on previously perceived shortcomings (failure to specifically require analysis of GHGs), shortfalls (failure to truly require and track monitoring) and shortcuts (improper use of categorical exclusions). Through these guidance documents, CEQ has put public transparency and accountability front and center.

Holland & Knight can help clients understand, comment on, and ultimately comply with CEQ guidance and NEPA.

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