On Monday, the Council on Environmental Quality (CEQ) released interim guidance for analyzing greenhouse gas (GHG) emissions and climate change impacts of major federal actions undergoing National Environmental Policy Act (NEPA) review.
The guidance allows for less detailed lifetime GHG emissions analyses for renewable energy projects, but it also emphasizes new angles of analysis, such as the impact of ground disturbance on biological carbon stocks, a topic environmental groups have often raised over large-scale solar energy projects.
Overall, solar developers and their consultants should take care to observe CEQ’s climate change guidance when preparing GHG studies for NEPA documents.
The interim guidance builds upon CEQ’s 2016 NEPA guidance that was rescinded by the previous administration. The purpose of the guidance is to provide a uniform approach for federal agencies to consider both the impacts of a project on climate change and the impacts of climate change on a project.
The guidance takes effect immediately while CEQ considers whether to revise or finalize it based on public comments received before March 10.
There are several key components of the interim guidance that federal agencies, developers and consultants should keep in mind:
First, Environmental Assessments (EAs) and Environmental Impact Statements (EISs) should quantify GHG emissions wherever possible, both over the project’s lifetime and on an annual basis.
The guidance points to tools for doing so on the CEQ’s GHG Accounting Tool website. In accordance with recent federal case law, the guidance asserts that comparisons and fractions alone are insufficient to assess the impacts of GHG emissions: “NEPA requires more than a statement that emissions from a proposed federal action or its alternatives represent only a small fraction of global or domestic emissions.”
Instead, NEPA documents should include some form of absolute, quantitative GHG emissions estimate for the proposed project and each alternative, including the no-action alternative, except for the “rare instance” in which quantification is not possible.
Second, in addition to quantifying GHG emissions, federal agencies should contextualize them such as by monetizing emissions using the social cost of carbon metric (i.e., the estimated economic costs associated with each additional metric ton of carbon dioxide in the atmosphere); placing emissions in the context of applicable climate action goals and commitments; or providing common equivalents (e.g., comparing emissions to a number of households, cars, or gallons of gasoline burned).
The social cost of carbon in particular has been the controversial subject of federal court decisions in recent years. The rule that has emerged and is now reflected in CEQ’s interim guidance is that the social cost of carbon is an appropriate metric to analyze climate change impacts under NEPA, but it is not strictly required as long as emissions impacts are otherwise contextualized using comparisons, common equivalents or foreseeable real-world effects.
Third, the interim guidance directs federal agencies to analyze all reasonably foreseeable indirect climate change impacts of a project. For example, in addition to the direct GHG emissions of mining equipment and transportation vehicles used for a coal extraction project, the project’s NEPA analysis should also assess a “full burn” scenario and describe the GHG emissions that would result from downstream consumption of the extracted coal. This, too, is consistent with recent federal caselaw.
Fourth, the interim guidance calls for special consideration of the effects of a project on biological GHG sources and sinks in addition to direct ambient emissions. In fact, these “biogenic” GHG impacts are so important that the CEQ guidance directs federal agencies to “consider developing and maintaining agency-specific principles and guidance for considering biological carbon in management and planning decisions,” and points to the Forest Service’s current guidance as an example.
This could mean, for example, that where a solar energy project disturbs a carbon stock such as topsoil, the climate change impacts of that disturbance should be considered in the project’s NEPA analysis – something for which environmental organizations have long advocated.
Fifth, in addition to analyzing the impacts of a project on climate change, NEPA documents conversely should analyze the impact of climate change on a project by forecasting foreseeable environmental changes over the life of the project and considering climate change resilience and adaptation measures.
For example, agencies “should consider the likelihood of increased temperatures and more frequent or severe storm events over the lifetime of the proposed action” and include measures to address these risks.
Relatedly, EAs and EISs should consider how climate change could exacerbate the direct effects of a project. For example, “A proposed action or its alternatives may require water from a stream that has diminishing quantities of available water because of decreased snow pack in the mountains, or add heat to a water body that is already warming due to increasing atmospheric temperatures.”
Other areas of the interim guidance reiterate well-established NEPA principles, such as the need to analyze cumulative effects; the requirement to analyze interdependent, connected actions in the same NEPA document; the importance of selecting appropriate alternatives; environmental justice considerations; incorporating previous studies by reference; and implementing appropriate mitigation measures to reduce or offset GHG emissions.
Importantly for solar energy projects, the guidance emphasizes the “rule of reason” principle when analyzing GHG emissions, meaning that the depth of analysis can be proportional to the overall emissions of the project. Low-emissions projects such as solar energy facilities can have less detailed GHG evaluations: “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.”
Overall, the interim guidance reinforces the importance of thoroughly but reasonably analyzing GHG emissions and climate change impacts in federal environmental reviews and may create new opportunities for legal challenge if agencies, developers and consultants do not take care to consider them during the NEPA process.
Reed McCalib is an attorney at Bell Kearns Ltd., a law firm specializing in the permitting of large-scale energy projects across the western U.S.
