On Thursday, the White House Council on Environmental Quality (“CEQ”) released draft National Environmental Policy Act (“NEPA”) guidance proposing changes designed to incorporate climate change considerations into federal actions and increase public participation and transparency. Under the draft guidance, if a proposed federal action would be reasonably anticipated to cause direct emissions of 25,000 metric tons or more of carbon dioxide equivalent annually, it would trigger a quantitative analysis. Additionally, agencies assessing long-term actions that do not meet the 25,000 metric tons floor are encouraged to still consider long-term emissions effects. If implemented, the proposal likely will impact federal approvals for large solid waste landfills, coal-fired power plants and other energy facilities, mining enterprises, and other such projects. The draft guidance does not apply to land and resource management actions. CEQ will accept public comment on the draft guidance for 90 days.
The same day, CEQ released draft guidance that clarifies that when a NEPA finding of no significant impact (“FONSI”) depends upon successful mitigation, those requirements should be made public and accompanied by monitoring and reporting. The office also revamped its website to provide additional tools for public reporting on NEPA activities. This guidance will also be subject to a 90-day public comment period.
Finally, CEQ also released draft guidance encouraging federal agencies to engage the public more broadly when establishing, applying and reviewing “categorical exclusions” from NEPA review. It encourages agencies to further public participation through notification or disclosure prior to using a categorical exclusion and through information dissemination to the public after granting a categorical exclusion. CEQ will accept public comment on the categorical exclusion draft guidance for 45 days.
If implemented, the NEPA draft guidance released last week could result in significant changes to the NEPA review process for those projects requiring federal approval involving greenhouse gas emissions.