On Friday, the White House Council on Environmental Quality (CEQ) rescinded draft guidance published by the Trump administration in June 2019 discussing how agencies should consider greenhouse gas (GHG) emissions when evaluating proposed major federal actions under the National Environmental Policy Act (NEPA). In that draft guidance, CEQ rescinded its 2016 Obama-era guidance and suggested that agencies may perform a more limited review of a project’s GHG emissions and impact on climate change, stating that “[a]gencies preparing NEPA analyses need not give greater consideration to potential effects from GHG emissions than to other potential effects on the human environment.” That draft guidance had further stated that agencies do not need to account for the “social cost of carbon” when quantifying the direct and reasonably foreseeable indirect greenhouse gas emissions from proposed actions.
On February 18, 2021, the U.S. Federal Energy Regulatory Commission (FERC) reopened the comment period for its Notice of Inquiry (NOI) on the Certification of New Interstate Natural Gas Facilities. FERC applies its current policy, issued in 1999, to assess whether to issue interstate natural gas transportation facilities a Certificate of Public Convenience and Necessity (CPCN), a foundational permit required for their construction and operation. FERC must abide with its obligations under the Natural Gas Act and National Environmental Policy Act when considering pipeline certificate applications. FERC initially issued the NOI in April 2018, seeking comment on whether, and if so how, it should revise its approach to evaluating CPCN applications. The docket has been pending for nearly three years.
On January 20, 2021, President Joe Biden issued an executive order, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” The order directs executive agency heads to review hundreds of agency actions implemented during the Trump administration, including more than 120 related to energy and the environment. In addition, the order suspends or revokes, in whole or in part, nearly one dozen executive orders issued by the prior president directly tied to energy infrastructure.
On July 29, a number of environmental groups, including Earth Justice, Center for Biological Diversity, Environmental Defense Fund, and the National Wildlife Federation, filed suit in the U.S. District Court for the Northern District of California challenging the White House Council on Environmental Quality’s (CEQ) July 15 final rule revising its National Environmental Policy Act (NEPA) implementing regulations. A similar suit followed on June 30 by a different collection of environmental groups in the U.S. District Court for the Western District of Virginia. The CEQ’s final rule sets forth a significant shift in how the White House views the government’s duties and obligations under NEPA and is the first change its NEPA implementation regulations since 1978. Notably, the final rule expands projects categorically excluded from NEPA review, limits most Environmental Impact Statement reviews to two years, and removes an obligation for an agency to consider impacts that are not reasonably foreseeable or those that are “are remote in time, geographically remote, or the product of a lengthy causal chain.”