Raising the Stakes on Climate-Change Environmental Policy: White House Issues Guidance on Climate Change in NEPA (EA/EIS). Why it Matters.

Raising the Stakes on Climate-Change Environmental Policy: White House Issues Guidance on Climate Change in NEPA  (EA/EIS).  Why it Matters.  
​Environmental Impact Assessments and Statements that fall under NEPA have been the focus of conflicts and legal disputes over a broad swath of environmental issues. These range from land use including development and restoration e.g. South Florida Everglades Restoration, to transportation and more recently Carbon Emissions and fuel standards. NEPA is a powerful process and its potential use by federal agencies e.g. EPA in addressing climate change has been hotly debated by all sides. Today the White House will issue its final guidance on consideration of greenhouse gas emissions and the effects of climate changeBecause NEPA Process is so pervasive in environmental policy these guidelines have potentially far reaching influence. They are likely to affect all of us either directly in our own lives, and through our work iin the environment and/or for clients. In the weeks ahead there will be new analysis, and we will add to the discussion. 
The Final Guidance on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change.
Federal agencies are required to consider and disclose the potential effects of their actions and decisions on the environment under NEPA. Agency actions can potentially affect climate change by e.g., contributing to greenhouse gas emissions. Alternatively, federal agency actions can be affected by climate change for instance, land use activities including development, restoration, management for endangered species etc. may be affected by changes in the frequency of extreme weather, droughts, wildfires, coastal storms, salt water intrusions etc.
The final guidance released today was designed to provide “a level of predictability and certainty by outlining how Federal agencies can describe these impacts by quantifying greenhouse gas emissions when conducting NEPA reviews.” The underlying goal is to give decision makers and the public a greater understanding the potential climate impacts of all proposed Federal actions, and in comparing alternatives and measures that can mitigate them.
 According to the White House, the new set of guidance also:

• Advises agencies to quantify projected greenhouse gas emissions of proposed federal actions whenever the necessary tools, methodologies, and data inputs are available;
• Encourages agencies to draw on their experience and expertise to determine the appropriate level (broad, programmatic or project- or site-specific) and the extent of quantitative or qualitative analysis required to comply with NEPA;
• Counsels agencies to consider alternatives that would make the action and affected communities more resilient to the effects of a changing climate; and
• Reminds agencies to use existing information and science when assessing proposed actions.

Today’s guidance has been in the works since a first draft was issued 2010 and a revised one in 2014. It will affect how agencies and in turn the courts deal with climate change across a diversity of actions. There’s no doubt that it provides another arrow in the environment quiver, and sets a stage for challenges to environmental policy by all sides. Conservationists may believe that agency decisions have not gone far enough in their actions for protection of e.g. endangered species or to mitigate climate change. Many entities may come to feel that the guidelines demand agencies to be more or less cognizant of climate change in e.g., transportation and clean air. We have already seen e.g. in California, that State actions on climate change and greenhouse gases where there is a nexus with federal ones can be challenged under NEPA. (Association of Irradiated Residents et al v California Air Resources Board (Superior Court of California for the County of San Francisco Oct, 20, 2011, decided for the plaintiffs). We will witness more consortia of States and diverse organizations coming together on shared concerns. (Center for Biological Diversity v NHTSA (Ninth Circuit 2007)- Eleven states, the District of Columbia, the City of New York, and four public interest organizations challenged a rule promulgated by the National Traffic Safety Administration). Expect the guidance on using science when assessing proposed actions to raise questions on the quality of science, what are acceptable levels of certainty and uncertainty, and how peer review guides quality and court-admissible science. The NEPA Statute requires high quality and professional integrity. ( 40 CFR 1500.1, 1502.24. The final NEPA rule under called for use of natural, social and environmental sciences Section 102(2)(A). The climate change landscape is already dotted with the beginnings of such legal debates on science. The broad analysis and discussions on the NEPA process and climate change begin today, but expect them to play out in decisions and the courts for a long time.
NEPA and the EA/EIS: A Snapshot: NEPA (National Environmental Policy Act) was enacted in 1969 in response to the Santa Barbara Oil Spill and other environmental activities around that time. Often referred to as the “environmental Magna Carta” it is best known among the public because it governs guidelines and procedures for Environmental Assessments (EA) and Environmental Environmental Impact Statements (EIS). NEPA requires executive federal agencies to disclose the potential environmental effects of their proposed actions and to prepare an EA or full EIS when they significantly affect the environment. Agency activities that trigger NEPA are broad and include any major project at federal, state or local level involving federal funding, or work performed by federal agencies, or that require federal permits. An EIS must identify the potential environmental impacts of a project and evaluate reasonable and prudent alternatives. Public, external party and other federal agency input and comment is part of the EIS or NEPA process. Because all enforcement of NEPA must occur through the court system, it has been front and center in many environmental disputes. The US Supreme Court has decided seventeen NEPA cases. In the last few years NEPA has been invoked in public discourse and in the courts to address climate change and carbon emissions.    * Final Guidance will be published on Aug 2, 2016 in the Federal Register