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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 8 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<a>In early January, the Council on Environmental Quality (CEQ) published interim guidance (2023 Interim Guidance) instructing federal agencies on how to assess the effects of greenhouse gas (GHG) emissions and climate change when evaluating major federal actions under the National Environmental Policy Act (NEPA). NEPA is a federal procedural statute that requires agencies to assesses the environmental impacts of decisions that may significantly impact the human environment. The 2023 Interim Guidance is effective immediately. CEQ has chosen to simultaneously undertake a public comment period that closes on March&nbsp;10, 2023, following which it will either revise the 2023 Interim Guidance in response to public comment received or finalize its current guidance as is.</a>

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The 2023 Interim Guidance directs agencies to “quantify proposed actions’ GHG emissions, place GHG emissions in [the] appropriate context and disclose relevant GHG emissions and relevant climate impacts, and identify alternatives and mitigation measures to avoid or reduce GHG emissions.” Federal agencies will now be expected to analyze GHG emissions and their effects throughout the life of a proposed project. This is the most significant action CEQ has taken on GHG emissions since 2016.

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NEPA GHG Emissions Guidance Under Prior Administrations

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The 2023 Interim Guidance builds upon CEQ’s 2016 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 (2016 GHG Guidance). Issued during the Obama administration, the 2016 GHG Guidance represented the culmination of over six years of efforts to modernize NEPA reviews and provide the public with predictability and certainty on how federal agencies would quantify potential climate impacts and, in turn, compare alternatives and consider mitigation measures. The 2016 GHG Guidance contained the following instructions:

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The Trump administration rescinded the 2016 GHG Guidance in 2019 and issued in its place draft guidance that did not require federal agencies to weigh impacts attributable to GHG emissions more significantly than other environmental impacts. The draft guidance also notably discouraged agencies from developing agency-specific practices to evaluate GHG emissions and advised that estimating the social costs of GHG was no longer relevant to a NEPA analysis.

President Biden rescinded the 2019 draft guidance shortly after taking office in 2021 and directed CEQ to begin revisions to other Trump-era revisions to NEPA. CEQ has chosen to undertake this review in phases, with Phase 1 completed on April 20, 2022. We envision that a long-awaited Phase 2 will include additional regulations to modernize NEPA to address climate change and environmental justice.

Some Key Provisions of CEQ’s 2023 Interim Guidance

The 2023 Interim Guidance is a major step in meeting the Biden administration’s stated commitment to combat the effects of climate change through the analysis of the environmental impacts of GHG emissions. Though the guidance does not alter NEPA’s legal requirements, as with prior CEQ climate guidance, courts will rely upon it and provide it some deference as part of an analysis of whether an agency’s decision was reasonable.

The Biden administration intends to use the 2023 Interim Guidance to achieve the dual purpose of pollution reduction and reduced litigation risk for federal actions related to the <a>Bipartisan Infrastructure Law </a>and the <a>Inflation Reduction Act</a>. The guidance will create increased burdens and scrutiny for project proponents that will likely result in more data collection and extensive NEPA reviews, which will include more robust alternatives analysis and create lengthier wait times for agency adjudications.

<a><em>This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.</em></a>

<em>This document may be considered attorney advertising in some jurisdictions.</em>

https://admin.thompsonhine.com/wp-content/uploads/2023/02/Environmental-Update-New-CEQ-Guidance-Takes-Most-Significant-Action-on-GHG-Emissions-Since-2016.pdf

New CEQ Guidance Takes Most Significant Action on GHG Emissions Since 2016

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