Don’t get too comfortable with the newest federal climate change guidelines, legal experts cautioned yesterday.
A number of environmental policy experts warned that the White House recommendation that federal agencies consider climate change when conducting project reviews could be easily dialed back under a new administration.
“These are not regulations, not rules and not binding for agencies,” said Raul Garcia, legislative counsel for Earthjustice. “It depends who’s in office like everything else.”
Released yesterday by the White House Council on Environmental Quality (CEQ), the finalized guidance recommends that agencies both calculate direct and indirect greenhouse gas emissions of a project and assess how climate change might affect a project (Greenwire, Aug. 2).
Although the document is light on legal clout, it will go far to get federal agencies on the same page when it comes to climate change impacts and federal reviews.
“The document is meant to harmonize practices across federal agencies,” said Jayni Hein, policy director for the Institute for Policy Integrity. “The guidelines are not legally binding, but they will be persuasive to agencies, most importantly.”
Environmental groups praised the new policy document, while Republican lawmakers and industry groups expressed dismay that adding another layer of analysis to environmental reviews would slow down what they argue is an already glacial process.
Sen. Jim Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee, questioned whether CEQ has the legal authority to issue such a policy directive, since the acting head of CEQ, Christy Goldfuss, has not been confirmed by the Senate.
“With no Senate-confirmed chairman, or even a nominee, today’s guidance can have no force or effect as CEQ staff have no authority to take any official action,” he said in a statement.
Inhofe added that climate change falls outside of the scope of federal environmental project review, “so the guidance has no legal basis.”
Garcia categorically disagreed with the argument that climate change falls outside of the federal environmental review process.
“NEPA [the National Environmental Policy Act] says that agencies must consider and analyze any major federal action that may have a significant impact on the human environment,” he said. “Climate change is probably the most significant impact that the human environment will suffer in our generation.”
Upstream vs. downstream emissions
For its part, on page two of the new guidance, CEQ asserts that the effect of climate change “falls squarely” under the purview of the federal environmental review process.
Hein said the majority of the case law actually falls in line with CEQ’s new directive. She said that more than anything, the new guidance will provide clarity for agencies struggling to add climate change impacts into environmental reviews.
Compared to the draft guidance, issued nearly 20 months ago, the final guidance provides specifics in areas that had previously caused headaches. For example, the new recommendations suggest that direct, indirect and cumulative greenhouse gas emissions from a proposed project should be modeled if the tools and data exist.
That replaces the terms “upstream” and “downstream” emissions. Jessica Wentz, associate director and a postdoctoral research fellow at Columbia University’s Sabin Center for Climate Change Law, wrote in a blog post that the phrasing shift is more technically precise and likely addresses concerns about how far an agency needs to go in calculating emissions.
Wentz said the word switch does not mean agencies no longer need to look at emissions -- rather, the contrary.
“Agencies must still consider reasonably foreseeable indirect effects, and these may include upstream and downstream emissions,” she wrote. “This is certainly true for fossil fuel-related approvals, where there is a clear causal connection between each phase of the fossil fuel supply chain (production, transportation, processing, and end-use) and the emissions from these activities can be estimated with existing tools and data.”
The new guidance also calls on agencies to address concerns voiced in public comments concerning climate change, which will likely “prompt many agencies to adopt more detailed, agency-specific guidance that is tailored to the types of projects that they frequently review.”
It also clarifies that agencies should account for greenhouse gas emissions emitted over the short and long term. That could be important for projects where land-use changes may occur and carbon stocks are affected. For example, clearing part of a forest for a project may produce a lot of emissions in a short time frame; however, if the project calls for replanting or other restoration efforts over the long term, emissions could be neutral.
It will also likely be persuasive to the courts, said Michael Drysdale, an attorney specializing in environmental law with Dorsey & Whitney LLC. Federal agencies that depart from its recommendations may be vulnerable to legal challenge if they do not provide a clear and reasoned explanation for their decisions, he said.
Reprinted from ClimateWire with permission from Environment & Energy Publishing, LLC. E&E provides daily coverage of essential energy and environmental news at www.eenews.net. Click here for the original story.