A Guide that Doesn’t Guide?

CEQ's new guidance on greenhouse gases in NEPA leaves much work to be done.

The final Council on Environmental Quality (CEQ) guidance on “the consideration of greenhouse gas emissions and climate change in [NEPA] reviews” was signed August 1.  Although it omitted some of the more troubling points raised by the December 2014 draft (good), the document—styled as a memorandum to agency heads—is disappointingly passive on a vast and vastly important set of NEPA questions.  As this post explains, the next president will have much to do if we are to make NEPA into a useful tool for climate change mitigation and adaptation.

The Highs (and Some Lows)

To begin, the document rightly observes that, with climate change and greenhouse gas [GHG] emissions, there are two equally important dimensions.  In their words,

when addressing climate change agencies should consider: (1) The potential effects of a proposed action on climate change as indicated by assessing GHG emissions (e.g., to include, where applicable, carbon sequestration); and, (2) The effects of climate change on a proposed action and its environmental impacts.

Final Guidance at 4.  The difference here is simple: where (1) is about taking steps to mitigate climate change by ameliorating the GHG emissions resulting from one’s own actions, (2) is about planning appropriately for a future where climate change will continue—what’s typically known as adaptation.  There’s no escaping either dimension.

Also, the document now makes no mention of the 25,000 metric ton GHG emissions threshold which CEQ has hewed to in proposals going back to 2010.  That number has no relevance for NEPA and should’ve been dropped (as we argued in our submitted comments).

The guidance also rightly observes that

the effects of climate change observed to date and projected to occur in the future include more frequent and intense heat waves, longer fire seasons and more severe wildfires, degraded air quality, more heavy downpours and flooding, increased drought, greater sea-level rise, more intense storms, harm to water resources, harm to agriculture, ocean acidification, and harm to wildlife and ecosystems.

Final Guidance at 9.

But this observation belies the spatially and temporally cryptic nature of these projections.  To be sure, many regions are experiencing more frequent and more severe wildfires already.  But we have almost no capacity to project where else decision-makers should expect such threats to spike in the future.  Indeed, for most of the named consequences, resolving them to the spatial and temporal frames needed to inform the typical NEPA document is scientific work that remains essentially impossible.  What fills the void for the time being is modeling—a decidedly dodgy proposition in its own right—and what most action agencies need now is something quite a bit more informative about which models to use and when.

One interesting note from the guidance on this score, however, may be its explicit use of sea level rise (SLR) as an express outcome or condition now to be assumed as global climate change progresses:

For example, an agency considering a proposed long-term development of transportation infrastructure on a coastal barrier island should take into account climate change effects on the environment and, as applicable, consequences of rebuilding where sea level rise and more intense storms will shorten the projected life of the project and change its effects on the environment.

Final Guidance at 24.  Coastal development of all kinds today should be taking extreme care to plan for SLR (especially if it’s on a barrier island).  But how much SLR should they be planning for?  How should plans be formed if the amount of SLR is uncertain?  (And the amount of SLR is very uncertain: it’ll be determined in largest part by emissions still to be made or abated.)

These are hard questions of practical reason, to be sure.  And perhaps it is asking too much of a guidance document such as this to answer them.  But CEQ goes astray in another way for which they might easily have taken another path.

Where the Guidance Goes Off Track

Putting adaptation aside, the hardest questions still remain: how to factor GHG emissions into the typical NEPA routine.  Mitigation is, as has been written about at length by many, a truly hard question to take up in the typical NEPA document.  The typical NEPA document, after all, sketches the probable environmental consequences of a proposed action and compares that to those of its feasible (or “reasonable”) alternatives.

Yet the consequences of an emissions increment are often deeply uncertain; they may be over-determined by other, redundant causes/emissions; and they are often far off in the future, rendering their comparison to more proximate consequences problematic if not impossible.

Still, most emissions increments today can be quantified somehow.  We have the tools to at least roughly estimate the GHG or GHG-equivalent footprint of many, many actions.  Indeed, nepa.gov maintains this extensive tool kit on quantification.

So CEQ makes it abundantly clear that quantification is the preferred route:

This guidance recommends that agencies quantify a proposed agency action’s projected direct and indirect GHG emissions. Agencies should be guided by the principle that the extent of the analysis should be commensurate with the quantity of projected GHG emissions and take into account available data and GHG quantification tools that are suitable for and commensurate with the proposed agency action. The rule of reason and the concept of proportionality caution against providing an in-depth analysis of emissions regardless of the insignificance of the quantity of GHG emissions that would be caused by the proposed agency action.

Final Guidance at 11-12.

The most basic trouble here is that, sadly, even assiduous quantification is going to contribute little by itself to better decisions (which are the goal, not better documents).  How does the average responsible official process a figure that purports to quantify GHG emissions from an agency’s preferred alternative?  By translating it into some other, more familiar emissions source’s equivalents?  What good does that do?  Then one has a way to put the quantity in (perhaps) more familiar terms.  But it is still a quantity in need of a practical value.  And those values are and will remain essentially incalculable.

GHGs by Sector

GHGs by Sector

From a practical standpoint, that is, the trouble is about making rational decisions—which more information doesn’t always help (ironically enough)—and the only way to do that in NEPA contexts is to know how to compare the expected environmental consequences of one alternative with those of another.  And quantifying emissions doesn’t necessarily do much to that end.

The document (admirably) recommends considering “mitigation” of emissions in any proposal for its own sake.  See Final Guidance at 18-19.  But a blanket recommendation of the sort cannot substitute for meaningful guidance on what to do with quantified emissions estimates once they’re in hand or, for that matter, how much mitigation is imperative, in which sectors, etc.

This is where the guidance leaves the most to be fixed/improved down the road.  Indeed, this misstep may stem from the document’s very purpose:

This guidance uses longstanding NEPA principles because such an analysis should be similar to the analysis of other environmental impacts under NEPA. The guidance is intended to assist agencies in disclosing and considering the reasonably foreseeable effects of proposed actions that are relevant to their decision-making processes. It confirms that agencies should provide the public and decision makers with explanations of the basis for agency determinations.

Final Guidance at 2.

The use of “longstanding NEPA principles” in a problem like climate change and GHG emissions mitigation is a recipe for failure—or at least a recipe for not succeeding.  NEPA § 102(2)(C), as our Supreme Court has insisted, is about weighing alternatives to a proposed action based on the expected environmental consequences.  But with the project-focused approach to NEPA most agencies have taken, this turns GHG emissions into a decidedly minimal consideration for all but the most momentous decisions.  And that will consign them to the margins of our NEPA universe unless and until someone like CEQ makes a change.  For an argument still in draft (soon to be published by the University of Illinois Law Review) that NEPA § 102(2)(E) is the right tool for that job, see here.

{Image: compass @ Wikipedia}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
One Comment

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  • David
    6 August 2016 at 18:40 -

    Two systemic problems leap off the pages of the GHG/Climate Change guidance. First, it does not use mandatory language, thus leaving the agencies to their discretion as to whether they will perform climate change analysis. It is no less than the fox guarding the hen house arrangement, which is doomed to failure. Second, it appears that CEQ is averse to the use of quantitative methods. There aren’t any called for in the GHG/Climate Change guidance, or elsewhere in CEQ guidance. For example, the CEQ regulation covering cost-benefit analysis, 40 CFR 1502.23, doesn’t require such analysis. Neither does the 1997 Cumulative Effects Analysis handbook. How are we going to perform cumulative effects analysis that help us manage ecosystems in a sustainable manner without quantifying the effects?