Regulation Database – Council on Environmental Quality
In August 2016, the Council on Environmental Quality (CEQ) released final guidance for Federal agencies on how to consider the impacts of their actions on global climate change in their National Environmental Policy Act (NEPA) reviews. This final guidance provides a framework for agencies to consider both the effects of a proposed action on climate change, as indicated by its estimated greenhouse gas emissions, and the effects of climate change on a proposed action. The final guidance applies to all types of proposed Federal agency actions that are subject to NEPA analysis and guides agencies on how to address the greenhouse gas emissions from Federal actions and the effects of climate change on their proposed actions within the existing NEPA regulatory framework. Below is the guidance and related information, including a list of greenhouse gas accounting tools available to Federal agencies.
Related Documents:
- Sabin Center Comments on Revised Draft Guidance on the Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in NEPA Reviews (submitted March 24, 2015)
Deregulatory Action:
On March 28, 2017, President Trump issued an executive order directing CEQ to rescind the final guidance on climate change and NEPA reviews. On April 5, 2017, CEQ published a notice in the Federal Register announcing the withdrawal of the guidance. On June 26, 2019, CEQ proposed new draft guidance.
Reregulatory Action:
On January 20, 2021, President Biden signed an executive order titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” which directs CEQ to rescind the 2019 draft greenhouse guidance and review, revise, and update its 2016 greenhouse gas guidance. On February 18, 2021, the Council on Environmental Quality (CEQ) withdrew draft guidance on greenhouse gases and announced that CEQ will separately review the 2016 guidance.
On February 26, 2021, the Biden Administration stated that it would revamp the way that federal agencies calculate the costs of climate change impacts. The ultimate figure that the administration uses for the social cost of carbon will determine the way that climate impacts are accounted for in federal decision-making, and could make it more difficult to justify approving fossil fuel infrastructure and other projects that contribute to climate change.The Interagency Working Group — co-chaired by the Office of Science and Technology Policy, Office of Management and Budget, and Council of Economic Advisers — announced in a technical support document as an interim measure while the administration reaches a new figure, it is replacing the previous administration’s estimates with the estimates developed prior to 2017, adjusted for inflation, amount to $51 per ton of carbon dioxide.
Litigation:
On March 8, 2021, a coalition of states challenged President Biden's action and the Interagency Working Group's interim social cost of carbon. A number of states filed a similar lawsuit on April 22, 2021. The Western District of Louisiana preliminarily enjoined the Biden administration’s interim estimates on the social cost of greenhouse gases on February 11, 2022. On March 16, 2022, the Fifth Circuit Court of Appeals stayed the preliminary injunction pending appeal of the lower court’s decision. The court found that the plaintiff’s alleged injuries were insufficient to satisfy constitutional standing standards and that the federal defendants would be irreparably harmed absent a stay because the preliminary injunction would prevent federal agencies from “considering SC-GHG in the manner the current administration has prioritized within the bounds of applicable law.” Plaintiffs then petitioned for rehearing en banc before the Fifth Circuit, which the court denied on April 14, 2022. On April 27, 2022, plaintiffs submitted an application to Justice Alito for the Supreme Court to vacate the stay, which is still pending. The Supreme Court denied the application on May 26, 2022.
In October 2010, CEQ released Guidance on Federal Greenhouse Gas Accounting and Reporting that establishes Government-wide requirements for measuring and reporting greenhouse gas (GHG) emissions associated with Federal agency operations. The guidance serves as the Federal Government’s official Greenhouse Gas Protocol and was used by Federal agencies to develop their GHG inventories. Federal agencies are required to submit GHG inventories annually beginning in January of 2011, as called for in the Executive Order on Federal Leadership in Environmental, Energy and Economic Performance (Executive Order 13514) signed by President Obama on October 5, 2009.
In June 2012, CEQ finalized an update to the guidance based on recommendations from an interagency work group co-chaired by the Department of Energy’s Federal Energy Management Program, the Department of Defense, and the Environmental Protection Agency.
- Final Revised Guidance (June 4, 2012)
- Revised Draft Guidance (Mar. 12, 2012)
- Initial Guidance (Oct. 6, 2010)
On March 4, 2011, CEQ issued formal guidance to Federal agencies on the development of climate change adaptation plans, intended to assist those agencies in fulfilling the requirements of Executive Order 13514. The guidance requires Federal agencies to draft adaptation policy statements by June 3, 2011 and to complete their adaptation plans by June 4, 2012. Under the guidance, adaptation plans will be available for public review and comment. Agency Strategic Sustainability Performance Plans released in 2013 included climate change adaptation plans for the first time.
On February 16, 2022, CEQ published an interim guidance document titled “Carbon Capture, Utilization, and Sequestration Guidance.” According to CEQ, the goal of the guidance is to “facilitate reviews associated with the deployment of CCUS and to promote the efficient, orderly, and responsible development and permitting of CCUS projects at an increased scale in line with the Administration's climate, economic, and public health goals.” Among other items, the guidance suggests that agencies should consider developing programmatic environmental reviews where such analyses can facilitate more efficient and effective review of multiple carbon capture, utilization, and/or sequestration projects, and should focus on engaging communities and Tribes in co-development of projects and approaches.
CEQ promulgated regulations for environmental review under the National Environmental Policy Act (NEPA) in 1978. Importantly for climate change, those regulations set forth requirements for assessment of direct, indirect, and cumulative impacts.
Deregulatory Action
On July 15, 2020, the Council on Environmental Quality finalized an overhaul of regulations governing environmental review under NEPA. The revisions could limit or even eliminate consideration of climate change in several ways.
Prior to the amendments, NEPA regulations required agencies to consider direct, indirect, and cumulative effects when conducting environmental reviews of proposed projects. The indirect and cumulative effect requirements have led some courts to compel agencies to account for climate change when analyzing the impact of fossil fuel leases and infrastructure projects. The revised regulations collapse the distinction between indirect and direct effects, and expressly eliminate the cumulative effect requirement. This will likely limit the role of climate change in environmental assessment. The revised regulations will also restrict analysis to effects that have a "reasonably close causal relationship" to the proposed project, which could limit consideration of life cycle greenhouse gas emissions or on-the-ground climate change impacts related to the project.
The amendments could also make it easier for agencies to dismiss the significance of impacts caused by fossil fuel projects. NEPA only requires agencies to prepare a full environmental impact statement for projects that may significantly affect the environment. By watering down the definition of "significantly," the revisions could lead agencies to determine that certain fossil fuel projects do not warrant a comprehensive environmental review even if the indirect climate change impacts would be extensive. Read more on our blog >>>
- Final rule (July 15, 2020)
- Proposed rule (Jan. 9, 2020)
Litigation
On July 29, 2020, Environmental groups filed a lawsuit to challenge the NEPA amendments in a California District Court and a Virginia District Court. On August 28, 2020, California and 20 other states, along with Guam, the District of Columbia, Harris County in Texas, and New York City, filed a lawsuit challenging the regulation revisions as well. On March 17, 2021, CEQ asked the Virginia court to remand the rule for reconsideration, but on June 21 the court instead dismissed the case, concluding that it was not justiciable.
Reregulatory Action
On October 7, 2021, the Council on Environmental Quality published a notice of proposed rulemaking to restore regulations under the National Environmental Policy Act (NEPA) that the Trump administration had removed in a 2020 rule. The proposed rule—which is “Phase 1” of the agency’s plan to restore NEPA to its pre-2020 rigor—would make three major changes to current NEPA regulations. First, the proposed rule would require agencies to consider the “direct,” “indirect,” and “cumulative” impacts of proposed agency decisions. Review of cumulative impacts, which the Trump administration’s 2020 rule removed from the NEPA process, is frequently necessary to understand a project’s contribution to climate change. Cumulative impacts are also relevant to environmental justice analyses. In addition to restoring review of cumulative impacts, the proposed rule would also restore Federal agencies’ authority to develop and analyze project alternatives to minimize the environmental and public health costs of a proposed project. Finally, the proposed rule would allow Federal agencies to go beyond NEPA’s minimum requirements in their environmental review.
CEQ finalized the "Phase 1" regulations on April 20, 2022.
- Notice of Proposed Rulemaking (Oct. 7, 2021)
- Final Rule (April 20, 2022)
On October 4, 2022, the Office of Science and Technology Policy and the Council on Environmental Quality, on behalf of the interagency Ocean Policy Committee, requested input from all interested parties to inform the development of a U.S. Ocean Climate Action Plan (OCAP) that will help guide and coordinate actions by the Federal government and civil society to address ocean, coastal, and Great Lakes-based mitigation and adaptation solutions to climate change.
The OCAP will summarize planned Federal ocean-based climate action and the benefits of these actions, identify gaps in knowledge and application of knowledge to emerging ocean-climate issues, and recommend actions to advance the effectiveness of the Nation's response to the impacts of climate change. The input received will be used to inform the development of the OCAP.
Examples of ocean-based climate solutions include: harnessing ocean renewable energy, protecting and restoring ecosystems that sequester carbon and support biological diversity, expanding the extent and level of protection of marine protected areas, pursuing responsible and efficacious ocean-based carbon dioxide removal and sequestration, and decarbonizing shipping.