White House Gives Agencies Guide to Weigh Climate in Permits (1)

The White House on Friday released its long-awaited guidance telling agencies how to consider the climate impacts of proposed projects.

As a whole, the new instructions could provide a legal backbone to agency permitting decisions, clearing up ambiguity over whether a given agency went far enough in analyzing a proposed project’s effect on the climate.

The Council on Environmental Quality’s guidance recommends that agencies make sure the depth of the analysis they undertake is proportional to a project’s impact. But the document also gives agencies clearance to undertake less detailed analyses for projects that will reduce emissions, such as clean energy projects.

Other pieces of the guidance lay out best practices for analyzing the effects of climate change. One recommended practice, for example, is for agencies to clarify why it’s important to quantify indirect emissions, as a way of deterring future legal challenges.

The guidance further encourages agencies to engage with affected communities and build environmental justice considerations into their analyses. It also supports programmatic approaches to make subsequent reviews more efficient and updates the existing guidance, issued in 2016, to reflect developments in climate science, case law, and “the urgency of the climate crisis,” according to the agency.

The new instructions take effect immediately, but are open for public comment through March 10. They replace the 2016 guidance, which the Trump administration withdrew until President Joe Biden’s administration resuscitated it.

The guidance “will provide greater certainty and predictability for green infrastructure projects, help grow our clean energy economy, and help fulfill President Biden’s climate and infrastructure goals,” Brenda Mallory, chair of the CEQ, said in a statement.

The guidance dovetails with a CEQ final rule from April that requires federal agencies to consider the direct, indirect, and cumulative impacts of a permit decision under the National Environmental Policy Act. That analysis includes a project’s climate change impact, as well as the consequences of additional pollution in communities that are already overburdened.

Since CEQ finalized that rule, environmentalists and industry attorneys have said clear instructions were needed to fortify agency decisions against legal challenges.

Indeed, several courts have already struck down federal projects on the grounds that the climate change analyses under NEPA were inadequate.

In January, for example, the U.S. District Court for the District of Columbia vacated an oil and gas lease sale in the Gulf of Mexico because the Bureau of Ocean Energy Management didn’t account for the climate effects of the extracted fuels being burned overseas, as required by NEPA.

The U.S. Court of Appeals for the District of Columbia Circuit also ruled in 2021 that the Federal Energy Regulatory Commission hadn’t considered the climate change and environmental justice impacts of several newly approved liquefied natural gas projects in Texas.

The guidance is “a huge achievement for frontline communities fighting to make their voices heard across the country,” Abigail Dillen, president of Earthjustice, said in a statement.

But Dillen also said the administration could tighten its guidance even further by giving more detail on how to analyze substitutions for fossil fuel projects and how to measure the significance of an energy project.

Similarly, the American Clean Power Association—whose members stand to benefit from the less-detailed reviews recommended in the guidance—applauded the new instructions. The group also called on the White House and Congress to keep trying to streamline the permitting process, an effort that has been playing out for months.

Agencies have too often in the past ignored or downplayed the climate impacts of proposed projects, but the new guidance should force a more meaningful accounting, said Max Sarinsky, senior attorney at New York University School of Law’s Institute for Policy Integrity.

Another set of changes to the rules under NEPA is expected to be proposed this month, according to the administration’s recent regulatory agenda.