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Lawmakers, others want guidance on weighing emissions impacts withdrawn

Environmental groups, several Democratic U.S. senators and a number of state attorneys general have called on the White House Council on Environmental Quality to withdraw its new draft guidance for how agencies weigh greenhouse gas emissions' impacts when reviewing infrastructure project permits and other major decisions.

The groups and officials argued that the guidance on performing environmental reviews under the National Environmental Policy Act, or NEPA, could leave agencies vulnerable to having their decisions overturned in courts. But fossil fuel groups largely lauded the draft as needed to streamline and speed up permitting.

The draft drops from the prior Obama-era version the recommendation that agencies quantify a project's direct and indirect emissions. It also urges agencies to consider alternatives to monetize the costs associated with project-related emissions and not use the social cost of carbon in any cost-benefit analysis. When finalized, the guidelines will not be legally binding, but the law firm Troutman Sanders in a July blog indicated the guide will nevertheless likely be challenged in court.

In Aug. 26 comments, U.S. Democratic Sens. Sheldon Whitehouse of Rhode Island, Jeff Merkley of Oregon, Ben Cardin of Maryland and Dianne Feinstein of California suggested the draft guidelines the Council on Environmental Quality, or CEQ, issued in June would "weaken" the analysis of project-related greenhouse gas emissions and alternative mitigation measures. "Numerous federal courts have concluded that climate change must be considered in an environmental impact statement as an adverse effect," the senators said.

Similarly, a coalition of attorneys general from 18 states plus the District of Columbia argued the draft guidance "encourages agencies to violate NEPA and is arbitrary and capricious." The state attorneys general are from California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Mexico, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont and Washington state.

The attorneys general argued the draft guidance "moves in the wrong direction, muddying the waters on the analysis of climate change impacts under NEPA and creating new legal risks for actions subject" to that law.

Environmental groups echoed those concerns. "Agencies that follow the draft guidance will run a substantial risk of having their NEPA decisions overturned by the courts," wrote the Natural Resources Defense Council.

The Edison Electric Institute, an association of investor-owned electric utilities often referred to as EEI, also questioned whether agencies will be able to fend off legal challenges if they followed the draft guidelines. The EEI noted that some courts have found an agency's failure to quantify greenhouse gas emissions in proposed actions and projects violated NEPA. The courts have also required agencies to disclose the social costs of carbon or greenhouse gas emissions where those agencies have also monetized the economic benefits, such as royalty revenue and labor income, from fossil fuel leasing, the EEI said.

"Any final guidance should recognize these decisions and provide agencies with some rubric for identifying the threshold at which quantification or monetization of [greenhouse gas] emissions and impacts may be necessary for a full and balanced assessment of impacts under NEPA to help minimize the risk of future litigation on proposed infrastructure projects," the EEI said. Nevertheless, the EEI voiced support for the overall approach the CEQ took in the draft.

In contrast, fossil fuel trade groups, including the American Coal Council, largely praised the draft guidelines. The Natural Gas Supply Association and the Center for Liquified Natural Gas in a joint filing suggested the draft guidance "provides for a pragmatic and meaningful environmental review within the bounds of NEPA" and ensures projects are permitted in a timely manner.

The American Petroleum Institute, or API, and the GPA Midstream Association each generally voiced support for the guidance while at the same time effectively suggesting the CEQ should roll back the guidelines even further.

GPA Midstream asked the CEQ to "clarify that NEPA does not require lead agencies to attempt to monetize the potential costs of [greenhouse gas] emissions even where there is readily available information on the economic benefits of a proposed project."

The API took issue with the CEQ's suggestions that agencies undertake a qualitative assessment of emissions of indirect effects when a quantitative analysis would be overly speculative. API said the CEQ should not include this measure in the final guidelines.

"What constitutes an appropriate qualitative analysis is not explained in the guidance, and such analysis may be particularly ill-suited to the putative effects of individual agency decisions on global [greenhouse gas] emissions," the API said.

To reduce confusion, the API said the guidance could include examples of indirect effects that are sufficiently remote in time and location to not be considered.