The White House Council on Environmental Quality on Monday released updated guidelines for federal agencies performing environmental reviews, requiring them to include a detailed quantification of a project’s greenhouse gas emissions, the estimated social costs of those emissions, and their impacts on climate change and community resilience.

Environmental assessments required under the National Environmental Policy Act should quantify a project’s “GHG emissions; place GHG emissions in appropriate context and disclose relevant GHG emissions and relevant climate impacts; and identify alternatives and mitigation measures to avoid or reduce GHG emissions,” CEQ said in the new guidelines published in the Federal Register on Monday.

The issuance started a 60-day comment period, but the guidelines will go into effect immediately on an “interim” basis, CEQ said. Potential revisions may be made before they are finalized.

According to a 2020 review by CEQ, NEPA environmental reviews can take anywhere from two to more than six years, making them a major factor in the long permitting times for large energy projects on public land in the U.S., be they utility-scale solar, natural gas pipelines or interstate transmission.

The new guidelines lay out detailed recommendations for NEPA reviews, for example, saying quantification of a project’s GHG emissions should include both separate analyses of carbon dioxide, methane and nitrogen oxide emissions, as well as an aggregated total, factoring in “each pollutant’s global warming potential.”

“Where feasible, agencies should also present annual GHG emission increases and reductions,’” the guidelines say. “This is particularly important where a proposed action presents both reasonably foreseeable GHG emissions increases and reductions.”

They also say that “the relative minor and short-term GHG emissions associated with construction of certain renewable energy projects, such as utility-scale solar and offshore wind, should not warrant a detailed analysis of lifetime GHG emissions.”

Clean energy alternatives to fossil fuel projects also get a boost in the guidelines, which frame them as “in line with the urgency of the climate crisis,” as well as U.S. national and global climate commitments. While noting that neither NEPA nor CEQ require agencies to go with a project with the lowest net GHG emissions, the guidelines say, “agencies should evaluate reasonable alternatives that may have lower GHG emissions, which could include technically and economically feasible clean energy alternatives.”

These provisions, contained in a few sentences in the 14 pages that the guidelines take up in the Federal Register, received immediate support from clean energy trade groups.

“The interim guidance will enable clean energy developers to move forward with projects, particularly on federal lands, that not only reduce climate impacts from the power sector, but that also create jobs and add economic benefits for communities in areas where solar projects are sited,” said Abigail Ross Hopper, president and CEO of the Solar Energy Industries Association.

The American Clean Power Association also issued a positive review. “The guidance appropriately recognizes that agency resources and time should not be spent reviewing the relatively minor and short-term greenhouse gas emissions associated with construction of clean energy projects and infrastructure that will provide large net emissions reductions over the course of their life.”

‘Should,’ not ‘Shall’ 

Industry analysts ClearView Energy Partners see the guidelines as evidence of a White House “lean into greening” strategies. But, ClearView says, the guidelines also set a de facto bottom line of zero GHG emissions as the minimum “significance level for purposes of triggering review under NEPA.”

“The lack of a specific significance level also eliminates a bright line below which a project can be deemed to be ‘not significant’ for purposes of NEPA,” ClearView said in its analysis of the guidelines.

ClearView also points to the guidelines’ warning that “NEPA requires more than a statement that emissions from a proposed [project] or its alternatives represent only a small fraction of global or domestic emissions.”

The intent of the guidelines is to treat all federal projects the same, ClearView says. “The CEQ makes clear that all projects must quantify direct emissions, and that only projects with ‘small’ GHG emissions may be able to use less detailed analysis of lifetime emissions due to overall negative carbon emissions of the project.”

Further, the guidelines could nudge FERC and other agencies toward more in-depth analysis and quantification of GHG emissions. ClearView references FERC’s practice of not evaluating a project’s upstream or downstream emissions, arguing that it lacks jurisdiction to request such information from a project applicant. Rather, the guidelines say agencies should “seek to obtain the information needed to quantify GHG emissions” by requesting or requiring it from project applicants.

Here, ClearView sees an opening for the kind of litigation that can delay or derail a project.

“We think the interim guidance creates a significant, and potentially insurmountable, obstacle to agencies relying on a ‘don’t ask’ strategy to limit the scope of GHG reviews in the future,” ClearView says. “Now project opponents have strong grounds for appeals if they challenge an agency to make such inquiries in order to make upstream (or downstream emissions) estimates and the agency fails to do so.”

ClearView expects plenty of opposition to the guidelines from the fossil fuel industry and congressional Republicans, who may argue that CEQ has gone “well beyond the statutory requirements of NEPA.”

But, ClearView says, CEQ avoided using the word “shall,” which signals hard and fast obligations, and instead provided agencies and itself cover by “strongly recommending” the guidelines “should” be followed.

CEQ also stakes out its interpretation of NEPA’s jurisdiction on GHG emissions in the introduction to the guidelines. “Climate change is a fundamental environmental issue, and its effects on the human environment fall squarely in NEPA’s purview.”

Permitting Reform Preview

On the same day the CEQ guidelines were published, Rep. Pete Stauber (R-Minn.) introduced a bill that would cut NEPA review for mining projects to 12 months for an environmental assessment and 24 months for an environmental impact statement. The bill would also require that appeals against a permit be filed within 120 days of a project approval.

Under NEPA, an environmental assessment is an initial study to determine whether a project will have significant impacts requiring a full review and environmental impact statement.

Some of the other key recommendations in the CEQ guidelines include that:

• agencies should “leverage early planning processes” to incorporate GHG emissions quantification and analysis of climate impacts and options for mitigation from the very beginning of environmental reviews;
• such early planning should also include consideration of impacts on and active engagement with low-income, minority and other environmental justice communities;
• along with the quantification of GHG emissions, agencies should perform an analysis of the social cost of emissions, as opposed to a comprehensive cost-benefit analysis;
• the impacts of climate change ― such as extreme weather, drought and wildfires ― on a project over time should also be factored into the environmental review; and
• quantification of a project’s GHG emissions should also be “contextualized” in terms of impacts on international, national, state and local climate goals.

ClearView sees this last provision as “bringing global dynamics home in requiring federal agencies to discuss the impacts of a project with a large GHG footprint in context of international commitments and federal policy. It could allow for agencies to determine that a project’s GHG emissions [are] contrary to emission targets or goals established.”