On Aug. 2, the White House Council on Environmental Quality (CEQ) publically released a long-expected, final guidance on incorporating greenhouse gases (GHG) and climate change into agency actions where the National Environmental Policy Act (NEPA) currently applies. NEPA requires an assessment of the impact on the environment of a proposed Federal action including rulemakings, permitting, overarching programmatic decisions, and specific projects – including some construction projects.
The guidance encourages agencies to quantify direct and indirect GHG emissions for construction projects (and other actions) where NEPA applies, as well as, short-term and long-term effects, cumulative effects and impacts from connected actions—as well as for all the alternative options being evaluated, including the option of taking no action. Agencies are not required to choose the alternative with the lowest net level of emissions. As already required under NEPA, agencies also identify appropriate and reasonable efforts to mitigate resultant environmental impacts; and the guidance gives examples such as energy efficiency, carbon capture or sequestration, sustainable land management practices, etc.
The guidance also directs agencies to analyze future climate implications of their projects including the long-term adaptability and/or resilience of the project. The types of climate effects agencies could consider include: heat waves, severe wildfires, heavy downpours and flooding, increased drought, greater sea-level rise, intense storms, harm to water and air quality, etc. For example, agencies could address the future risk of development in floodplains, where resource-intensive operations are located (e.g., limiting water intensive operations in areas where drought is projected), where chemical facilities are located (e.g., in coastal areas where there may be increased storm surges), what materials they use for roadways (e.g., will they buckle in extreme heat), and where they place roads and bridges (e.g., are they vulnerable to storm surges) and other transportation infrastructure (e.g., is future flooding likely).
When they quantify GHG emissions, the guide states agencies should use available tools and methodologies; or explain why they cannot do so. CEQ does not expect agencies to “fund and conduct original climate change research to support their NEPA analyses….” CEQ will work with agencies to help them update their NEPA procedures and determine normal agency actions that may warrant quantification of their GHG emissions. Although, the guidance urges agencies to not disregard the cumulative effects of multiple small emissions in their analysis, it does not establish a significance threshold nor does it imply a greater weight to GHG emissions than other environmental concerns that agencies already must factor into NEPA reviews.
We do not know at this time how agencies will incorporate these directives into their NEPA reviews. CEQ provided agencies with links and information on available studies and GHG calculators and other tools. In addition, recent Executive Orders have directed agencies to incorporate sustainability and resilience (climate adaption) into their missions and activities (see related article in AGC’s Environmental Observer). The agencies’ existing sustainability plans and climate adaption plans will give clues as to the types of mitigation and resilience measures agencies will be likely to use. How it will play out on a project scale remains to be seen and will vary agency-by-agency.
It is also unclear at this early stage the additional burden these new requirements could add to the extremely costly and lengthy NEPA process. Environmental interest groups already use NEPA litigation as a key strategy to delay projects, and these groups are praising this development and calling on agencies to begin accounting for GHGs immediately. Although the federal government usually prevails in such litigation, according to a 2014 Government Accountability Office report, it often leads to more upfront time and cost as agencies “attempt to prepare a ‘litigation-proof’ [Environmental Impact Statement]” and can delay construction projects for years.
For more information, contact Melinda Tomaino at Tomainom@agc.org or 703-837-5415 or go to the CEQ webpage for the guidance. FedCenter.gov also provides extensive information on climate related requirements, resources, and agency adaption plans.