PROPOSED FRAMEWORK FOR COMPLYING WITH COUNCIL FOR ENVIRONMENTAL QUALITY GREENHOUSE GAS EMISSIONS AND CLIMATE CHANGE NEPA GUIDANCE THROUGH AN EXAMINATION OF POLICIES, RESEARCH, AND LITIGATION
The President’s Council on Environmental Quality published final guidance for evaluating climate change through the National Environmental Policy Act process in 2016, yet many federal agencies have demonstrated a lack of understanding on how best to consider the guidance, as substantiated through research and increased litigation. This study revealed two major litigation themes including 1) challenges to agency methodology for evaluating greenhouse gas emissions, and 2) challenges for not quantifying greenhouse gas emissions or for not conducting a meaningful climate change analysis. The objective of this study was to propose an easily referenced approach (framework) for complying with the 2016 guidance. This study involved a review of federal policy, published research, and a detailed examination of relevant Circuit Court and some District Court climate change litigation cases (2010 to 2021). All sources were reviewed for relevancy and whether the source was current. Cases were reviewed to identify major litigation challenge themes. Results revealed that just 9 of 440 federal agencies experienced litigation during the time period reviewed. None of the cases involved categorical exclusions; however, 13 cases (46%) involved Environmental Assessments, and 15 cases (54%) involved Environmental Impact Statements. Ample evidence was found within the guidance and also Executive Order 14008 to aid federal agencies in determining the circumstances requiring climate change analyses. The guidance further advised agencies on two distinct types of climate change analysis requirements with very different expectations and analysis issues, and which is often unmet by agencies; 1) the implications of climate change on a project now and in the future, and 2) the analysis of greenhouse gas emissions. A qualitative analysis was used to develop a proposed framework for complying with the 2016 guidance.