On August 1, the White House Council on Environmental Quality (CEQ) issued a final Guidance intended to help federal agencies analyze and quantify greenhouse gas (GHG) emissions associated with federally supported projects.  The Guidance has been a couple years in the making.  A draft was circulated for comments in 2014.  The final is presented as a "Memorandum," signed by CEQ Director Christina Goldfuss.

CEQ wants the Guidance to be used on new projects when a NEPA review is initiated.  (NEPA is the National Environmental Policy Act, the over-arching federal law requiring extensive analysis of the impacts of major federal projects, from air and water quality to endangered species to environmental justice.)  For current NEPA reviews, agency leadership should "exercise judgement" about the Guidance.

The Guidance repeatedly states that it is not a rule or regulation; it is "not legally enforceable."  However, a CEQ newsletter states "courts may reference the document as a persuasive authority."

Applicability will surely become clearer in the next few months.  On the one hand, new major projects will enter the NEPA pipeline and project managers will learn then whether an oversight agency - Federal Highway, for example - will require GHG analyses.  On the other hand, elections have consequences and a new administration in 2017 could send very different signals about climate issues. 

Project Questions

For construction and highway project managers this is a topic to watch.  The Guidance raises important questions about project timing and advancement.

One basic question is how a GHG analysis will fit within NEPA's two primary documents: an Environmental Assessment (EA) or the more extensive Environmental Impact Statement (EIS).  EISs are expensive, taking years to complete.  In 2016, the average EIS cost $5 million and took 47 months.  Obviously, no one wants that time and cost to increase.

Another concern is how emissions data may be used.  For example, could a federal reviewer decide that a project's GHG emissions are "too high"?  Or that emissions from a preferred alternative are "too high"?  NEPA does not set emission limits, and the Guidance does not change that.  Still, U.S. policies seek to decrease GHG emissions.

"Agency decisions," Director Goldfuss writes, "are aided when there are reasonable alternatives that allow for comparing GHG emissions and carbon sequestration potential."  Project alternatives are fundamental to NEPA, now including alternatives that mitigate GHG emissions.

Transport GHG Emissions

Transport related GHG emissions now exceed energy sector emissions.  It's likely that transportation projects will draw much greater scrutiny, particularly if project emissions are deliberately quantified and publicized.  Concurrent with this NEPA change is FHWA's evaluation of whether GHG emissions should be one of the performance metrics for judging national transportation goals.  This overlap could influence leadership directions.  Many state officials have encouraged FHWA to include GHG emissions as a transportation metric.

In an interview, CEQ officials downplayed concerns that the Guidance presents as an outsized, onerous step for NEPA review.  Rather, CEQ expects business pretty much as usual.  That's according to Ted Boling, NEPA Associate Director.  Boling emphasized that the Guidance presents no new or additional requirements and that the Guidance stays within the existing NEPA framework.  He said that each federal agency can decide when it's best to use the Guidance, that application is selective, determined during individual project reviews.  Boling said a GHG review would neither raise EIS costs nor add significantly to completion times.  Boling advised project managers to get in touch now with regional agency personnel and ask them how leadership plans to apply the Guidance.

In response to written questions, FHWA would only offer brief comments on how it might use the Guidance.  A press person replied that "the agency is currently in the process of assessing the requirements for state DOTS and the application of FHWA NEPA procedures."  That review should be complete "in the next few weeks."  FHWA expects GHG information to be considered similar to other environmental challenges, as "one of many factors to be considered when making decisions regarding project selection and federal funding.  FHWA does not anticipate, nor does the guidance suggest, that GHG analysis will be the primary driver behind project decisions."

AASHTO, too, deferred when asked to comment on the Guidance.  A press person stated that their policy experts "are still reviewing the material."

Two Major Changes

The Guidance contains two changes worth a closer look.  First, CEQ has eliminated the 25,000 metric ton CO2-equivalent annual emission reference point for quantification that was included in the 2014 draft.  A U.S. Department of Energy NEPA newsletter points out that "this change expands the suite of projects for which the Guidance recommends quantification of projected direct and indirect GHG emissions."

Second, Director Goldfuss focuses on the global totality of GHG emissions.  Project managers should no longer dismiss a GHG analysis just because a singular project represents only a small fraction of global emissions. "That is essentially a statement about the nature of the climate change challenge," Goldfuss notes, "and is not an appropriate basis for deciding whether or to what extent to consider climate change impacts under NEPA."  She adds that "agencies should not limit themselves to calculating a proposed action's emissions as a percentage of sector, nationwide, or global emissions in deciding whether or to what extent to consider climate change impacts under NEPA."

CEQ does not expect agency directors to become climate scientists in order to evaluate GHG.  The Guidance advises that directors take advantage of existing analytical tools, said to be "widely available" and in broad use.  (The Guidance includes footnote links to tools made available by CEQ.)

The Effects of Climate Change on a Project

CEQ also wants a kind-of reverse analysis, i.e., agencies should analyze how climate change itself might affect a project.  "A NEPA review should consider an action in the context of the future state of the environment," the Guidance advises.

Consider a highway.  Fuel consumption, loss of greenspace, construction activities - all of these present climate impacts.  But if climate and weather shift, CEQ wants expanded insight about how the highway might be affected.  Higher sea levels could place a coastal roadway at risk.  Increases in rainfall might indicate the need for a deeper or different roadbed or drainage design.  To offset potential future problems, project managers might need to consider building "resilience" into a project.

The Guidance further advises Agencies to consider mitigation "when those measures are reasonable and consistent with achieving (project) purpose and need."  Mitigation might include enhanced energy efficiency, lower GHG-emitting technology, carbon capture, carbon sequestration (e.g., forest, agricultural soils, and coastal habitat restoration), sustainable land management practices, and capturing or beneficially using GHG emissions such as methane. An agency's final decision should identify mitigation measures that the agency commits to take, recommends, or requires others to take.

 As noted, next steps will soon become clearer.  The Guidance "recommends that agencies review their NEPA procedures and propose any updates they deem necessary or appropriate to facilitate their consideration of GHG emissions and climate change."  There's no deadline for those updates, but surely the White House does not want the Guidance to just sit on the proverbial shelf.