White House Draft Guidance on Climate Change and Environmental Impact Statements -- A First Look

by Daniel Farber

February 19, 2010

Cross-posted from Legal Planet.

The Council on Environmental Quality has issued a draft guidance to agencies on treatment of greenhouse gases.  The key point is that emissions exceeding 25,000 tons per year of CO2 will be considered a “significant environmental impact” and require preparation of an environmental impact statement.

Overall, of course, this is a huge step forward. One point that does deserve further attention is the discussion of land use. On a fairly quick read, I’m not clear on the scope or effect of the draft’s discussion of this issue.

1. Scope of the exclusion. The drafts says: “Land management techniques, including changes in land use or land management strategies, lack any established Federal protocol for assessing their effect on atmospheric carbon release and sequestration at a landscape scale. Therefore, at this time, CEQ seeks public comment on this issue but has not identified any protocol that is useful and appropriate for NEPA analysis of a proposed land and resource management actions.” It could be true that we don’t have a good metric for determining whether a change in federal forest management orgrazing rules would cause a significant GHG release.

On the other hand, the GHG effect of an oil or coal lease on federal lands seems pretty easy to calibrate (just take the amount of carbon extracted and multiple by three to get CO2 weight). Obviously CEQ knows this. Maybe they‘re not thinking of  fossil fuel extraction as a “land and resource management action.” Maybe this point doesn’t have much practical significance because mining and oil drilling are going to require EISs anyway. Or maybe they’re just afraid of the political response if they cover fossil fuel extraction.

2. Effect of the exclusion. Is this a “categorical exclusion” in the sense that CEQ is telling agencies they don’t ever need to include climate effects of a “land and resource use” decision? Or are they simply leaving the question open, so that the agency should consider such effects if it has a reasonable way of doing so in a particular case?

Unless I’m missing something that’s already in the draft, some clarification of these issues in the final guidance document might be in order.

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Daniel A. Farber is the Sho Sato Professor of Law and Director of the California Center for Law, Energy and the Environment at the University of California, Berkeley.

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