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The National Environmental Policy Act (NEPA), enacted in 1970, sets out a national environmental policy and requires that federal agencies consider the effects of their activities on the environment prior to undertaking certain proposed agency actions. The White House Counsel on Environmental Quality (CEQ) recently announced several initiatives seeking to incorporate climate change considerations into federal agency reviews under NEPA. This announcement prompted a legislative proposal to prohibit federal agencies from considering greenhouse gas (GHG) emissions during a NEPA review of proposed agency actions.
The NEPA Certainty Act, introduced on April 20, 2010 by a group of seven Republican senators, states that NEPA should not be used "to document, predict, or mitigate the climate effects of specific Federal actions." If passed, this act would prohibit consideration, as part of a NEPA review, of the climate change effects of a proposed federal project's design or environmental impacts, or of mitigation or adaptation measures. To access the proposed NEPA Certainty Act, click here.
This proposed legislation responds to CEQ's February 2010 draft guidance addressing GHG emissions under NEPA. If finalized in its current form, this guidance will instruct federal agencies on when and how to consider GHG emissions from, and the effects on climate change of, proposed agency actions in NEPA analyses. Concurrently, CEQ proposed new NEPA environmental mitigation requirements and revised guidance for the application of categorical exclusions to NEPA.
Considering the Effects of Greenhouse Gas Emissions and Climate Change
The intent of CEQ's February 18, 2010 draft guidance is to provide federal agencies with methods for analyzing GHG emissions and the climate change effects of proposed agency actions under Section 102 of NEPA. It advises federal agencies to consider direct and indirect GHG emissions from proposed agency actions, provided that these emissions are "meaningful" to decision makers and the public. The proposed threshold for meaningful direct GHG emissions is 25,000 metric tons or more of CO2-equivalent - the same threshold used by the EPA in recent GHG-related Clean Air Act rulemakings.
Once a federal agency determines there will be meaningful, direct GHG emissions, the guidance as proposed concludes that "it would be appropriate to: (1) quantify cumulative emissions over the life of the project; (2) discuss measures to reduce GHG emissions, including consideration of reasonable alternatives; and (3) qualitatively discuss the link between such GHG emissions and climate change." To assist agencies in quantifying cumulative GHG emissions, the draft guidance identifies a number of federal protocols for quantitative analyses, including the EPA's Mandatory Reporting of Greenhouse Gases Final Rule. Examples given in the draft guidance of projects deserving of this analysis include solid waste landfills and coal-fired power plants.
The draft guidance also addresses when federal agencies should consider risks to proposed agency actions due to climate change. It says, "Climate change can increase the vulnerability of a resource, ecosystem, or human community, causing a proposed action to result in consequences that are more damaging than prior experience with environmental impacts might indicate." Accordingly, federal agencies should consider how climate change effects on the environment, or climate change-related threats to a resource, an ecosystem, or a community, will factor into NEPA Environmental Assessments and Impact Statements for proposed agency actions. The draft guidance emphasizes NEPA's "rule of reason" and encourages agencies to keep their analyses proportional to the anticipated effects. CEQ discourages "useless bulk and boilerplate documentation, so that the NEPA document may concentrate attention on important issues."
To access the climate change draft guidance, click here. CEQ is soliciting public comment on its draft guidance; the comment period ends May 24, 2010.
Other NEPA Proposals from CEQ
CEQ recently published draft guidance on mitigation measures necessary to support a "Finding of No Significant Impact" (FONSI) under NEPA. Where an environmental assessment of a proposed agency action yields a FONSI that depends on mitigation measures, the draft guidance advises that those measures be monitored, reported, and made public. To access the mitigation draft guidance, click here.
The comment period ends May 24, 2010. CEQ has also revised earlier draft guidance clarifying categorical exclusions from NEPA review. To access this revision, click here.
The comment period for the revised guidance closed on April 9, 2010.
On May 18, Day Pitney New Jersey Real Estate Partner Peter Wolfson was a panelist on the "P3 Partnerships: A Path for Progressive Development," panel at a CoreNet NJ event.
Day Pitney is sponsoring the upcoming New England Energy Conference and Exposition (NEECE), which is being held on May 17-18 at the AC Hotel by Marriott in Worcester, MA.
Day Pitney Alert
New Jersey-based partner Christopher Stracco is speaking on a panel at the Annual New Jersey Seminar of the Society of Professional Assessors titled, "Timely Topics for Assessors and Appraisers," on April 8.
On February 23, Partner Craig M. Gianetti spoke at the program, "Land Use Update 2022," about challenges to zoning ordinances and ethical issues in land use matters.
Day Pitney Environmental Partner Todd Terhune was featured by Law360 Pulse in a Q&A article discussing his arrival to the firm and his position as Vice Chair of the Environmental practice.
Environmental partner Todd Terhune's arrival to Day Pitney was featured in Real Estate NJ article, "Day Pitney Adds Terhune as Partner, Vice Chair of Environmental Team."
Todd Terhune's arrival to the firm was profiled in the Law360 article titled, "Day Pitney Adds Environmental Group Vice Chair in NJ."
Day Pitney was included in Real Estate NJ's "Professional Spotlight 2022: Top Law Firms in New Jersey Commercial Real Estate."
Boston-based Commercial Real Estate Partner Jared Ross was quoted in The Boston Globe article, "BPDA Bids to Streamline Process of Developing City-Owned Land."
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This website may use cookies, pixel tags and other passive tracking technologies, including Google Analytics, to improve functionality and performance. For more information, see our Privacy Policy. By using our website, you are consenting to our use of these tracking technologies. You can alter the configuration of your browser to refuse to accept cookies, but if you do so, it is possible that some areas of web sites that use cookies will not function properly when you view them. To learn more about how to delete and manage cookies, refer to the support instructions for each browser (e.g., see AllAboutCookies.org). You may locate Google Analytics' currently available opt-outs for the web here.