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Environment & Energy Report

Legal Trouble Could Follow From Trump Guide on Climate Reviews

Aug. 30, 2019, 9:01 AM

Draft White House guidance that allows federal agencies not to consider the climate change impact of their decisions may entangle them in more lawsuits if they follow that advice.

Environmental critics and industry supporters alike are concerned the June 26 guidance from the White House Council on Environmental Quality may not be enough to shield federal agencies’ decisions on infrastructure and energy projects from being reversed by the courts.

The questions come as federal judges across the country are increasingly scrutinizing agencies’ environmental assessments for lack of analysis of climate change impacts. The Trump administration lost several cases in the past two years because it failed to consider the climate impacts of constructing pipelines, issuing leases for oil and gas development, and expanding coal mines.

The CEQ draft guidance bucks that growing legal precedent, environmentalists and Democratic policymakers say, by giving agencies wide leeway for when they should evaluate and disclose what impact their decisions may have on greenhouse gas emissions.

“This guidance increases the risks of project proponents that do not take climate change seriously and do not invest in a very serious evaluation of potential climate impacts,” David J. Hayes, executive director of New York University’s State Energy and Environmental Impact Center, said in an interview.

Industry Seeks Detail

Agencies that rely on the Trump administration’s guidance to minimize how much they assess climate change impacts “will regret choosing that path,” added Hayes, who served as deputy secretary at the Interior Department in the Obama and Clinton administrations.

Even industry groups supportive of the Trump guidance are asking the the Council on Environmental Quality to include more detail in the final version to more clearly address how agencies can protect themselves from lawsuits.

The Edison Electric Institute, which represents investor-owned utilities, said one goal of CEQ guidance “should be to help agencies comply with applicable judicial decisions concerning the sufficiency of [greenhouse gas] emissions assessments undertaken to comply with” the National Environmental Policy Act, or NEPA, according to Aug. 26 comments.

“Legally insufficient NEPA analyses can lead to costly delays and investor uncertainty,” the group added, saying it wanted additional details to ensure reviews are sufficient.

Trump Approach

The Council on Environmental Quality’s draft guidance would replace 2016 guidance from the Obama administration outlining how federal agencies should consider climate change in their analyses under NEPA.

That 1970 law requires federal agencies to take a “hard look” at the environmental impacts of their decisions, including construction of infrastructure and approval of permits for energy projects like pipelines. Agencies comply by completing environmental impact statements or environmental assessments—a process that environmental groups say is necessary to try to mitigate harms from projects, but one that industry complains often slows down development.

The Obama administration’s guidance required federal agencies to assess both the impact a decision would have on greenhouse gas emissions, and the effect climate change could have on a potential project. President Donald Trump withdrew that guidance in 2017.

The draft guidance, by contrast, leaves much of the decision-making to the federal agencies about whether and how much to evaluate climate impacts. The document simply urges agencies to quantify an action’s projected greenhouse gas emissions when the amount is “substantial enough to warrant quantification, and when it is practicable” to do so.

‘Kiss of Death’

But the draft guidance doesn’t clearly define what amount is “substantial enough,” or how an agency should determine what is “practicable,” a move critics say gives agencies a legally dangerous amount of wiggle room.

“It is the kiss of death in any sort of guidance document to not set clear guidance,” Christy Goldfuss, senior vice president for energy and environment policy at the Center for American Progress, said in an interview.

“By putting out language that is undefined and does not clarify the intent, you are making it worse,” said Goldfuss, who was managing director of the CEQ in 2016 when the Obama administration finished its guidance. “Every single NEPA officer or permitting officer gets to decide what that language means to them.”

The guidance, in a way, “codifies some of the worst environmental impact statements and environmental assessments that we’ve seen,” said Jayni Hein, natural resources director at New York University School of Law’s Institute for Policy Integrity.

For example, the guidance opens the door to agency arguments that quantifying total emissions is speculative and uncertain, and it discourages agencies from using the social cost of carbon, a tool developed during the Obama administration that prices the environmental impacts of a ton of carbon emissions.

More Detail Needed

Industry groups supportive of the Trump administration guidance are asking the CEQ for more detail.

The Edison Electric Institute, for example, asked the CEQ to outline a “threshold” at which federal agencies must fully quantify or monetize greenhouse gas emissions impacts in order to minimize the risk of future litigation.

But the group declined to provide further details to Bloomberg Environment about what form such a threshold could take.

The Chamber of Commerce in its Aug. 26 comments urged the CEQ to offer more details on what the scope of an agency’s review should be “to ensure it provides meaningful comparison between alternatives.”

Is a Threshold Enough?

But it’s not clear whether identifying a threshold in the guidance would help agencies avoid lawsuits.

The Obama administration, in the draft version of its guidance in 2014, had included a numerical threshold of 25,000 metric tons of carbon dioxide, above which more robust analysis would be required. But the CEQ eliminated that threshold in the final version.

If the Trump CEQ identifies a threshold, it could be useful in encouraging agencies to quantify climate change impacts in their assessments, but it wouldn’t necessarily protect them from lawsuits, Hein, from the Institute for Policy Integrity, said. That’s because NEPA requires more than quantification, she said.

Agencies “need to put the emissions in context” with the overall threat of climate change, she said.

To contact the reporter on this story: Abby Smith in Washington at asmith@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Renee Schoof at rschoof@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com