March 28, 2023

Volume XIII, Number 87


March 27, 2023

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White House Publishes Guidance on GHGs in Permitting

On January 9, 2023, the White House Council on Environmental Quality (CEQ) published new interim guidance intended to assist federal agencies in analyzing greenhouse gas (GHG) and climate change effects of project proposals under the National Environmental Policy Act (NEPA).

NEPA requires federal agencies to evaluate the environmental impacts of their proposed actions prior to making final decisions, such as on permit applications, rulemaking, and federal land management decisions. This interim guidance is the latest in a line of GHG guidance documents issued over the last decade, and while it (like its predecessors) may be repealed by a future administration, it is immediately available to guide federal agencies in preparing Environmental Assessments and Environmental Impact Statements.

Recognizing that “there is little time left to avoid a dangerous—potentially catastrophic—climate trajectory,” and that the Biden administration’s clean energy and climate agenda requires a substantial build-out of clean energy infrastructure subject to prolonged permitting review, the new guidance seeks to reduce the depth of analysis where a project involves net GHG emission reductions or no net GHG increase.

Accordingly, while federal agencies should quantify the reasonably foreseeable gross GHG emissions increases and gross GHG emission reductions for a proposed project, the no action alternative, and any reasonable alternatives over their projected lifetime, those agencies should be guided by a “rule of reason” and the “concept of proportionality” in undertaking this analysis.

In other words, projects with net beneficial climate effects warrant a less thorough climate impact review. For example, citing utility-scale solar and offshore wind, CEQ advises that “the relative minor and short-term GHG emissions associated with construction of certain renewable energy projects…should not warrant a detailed analysis of lifetime GHG emissions.” CEQ further advises that projects with only small GHG emissions “may be able to rely on less detailed emissions estimates.”

Comments on the new interim guidance are due March 10, 2023. 

©2023 Pierce Atwood LLP. All rights reserved.National Law Review, Volume XIII, Number 11

About this Author

Lisa Gilbreath, Pierce Atwood, Environmental lawyer

Lisa Gilbreath is an associate in the Environmental & Land Use and Energy Infrastructure Development, Acquisition & Financing practice groups. Lisa works on a wide variety of environmental and energy matters, offering clients strategic advice in regulatory, legislative, and judicial proceedings.

In her environmental practice, Lisa assists clients with numerous issues including energy project development permitting, energy and environmental litigation, air quality legislative and regulatory activities, air quality enforcement, hazardous substances and...

(207) 791-1397
Matthew D. Manahan, Pierce Atwood LLP, Environmental lawyer

Since 1989 Matt Manahan has worked closely with businesses to find innovative solutions to the environmental law issues they face. He provides strategic counsel in regulatory, legislative, and judicial proceedings involving a broad range of environmental and land use issues, including those relating to energy project development, transfer and development of contaminated property, water use, energy, and Native American regulatory claims.

Matt is adept at stakeholder negotiations, including with state and federal regulators, that are a necessary part of large...

(207) 791-1189
Brian M. Rayback, Pierce Atwood, environmental regulatory lawyer

Brian Rayback focuses his practice on environmental and land use law, with expertise in all aspects of water, air, natural resources, solid waste, and zoning regulation.

Brian provides cost-effective, strategic advice on project permitting, enforcement matters, appeals of agency decisions, regulatory compliance, and legislative issues for property developers and owners, trade associations, utilities, construction companies, and industrial and manufacturing facilities. He regularly appears before federal, state, and local boards and agencies to assist clients in...

(207) 791-1188