On January 6th, the White House Council of Environmental Quality ("CEQ") released a new Guidance on Consideration of Greenhouse Gas Emissions and Climate Change ("the Guidance") in permitting decisions, with significant implications for energy and infrastructure projects. Though this Guidance is effective as of the date of publication, it was issued on an interim basis and CEQ will consider comments until March 10th, after which it could be revised further.
CEQ's recommendations will influence the Biden Administration's analysis of greenhouse gas ("GHG") emissions in environmental reviews under the National Environmental Policy Act ("NEPA"), applying immediately to all newly proposed actions as well as some on-going NEPA reviews. While the Guidance is largely framed as a series of recommendations rather than requirements, it highlights best practices for environmental reviews that could help expedite project completions, improve agency decision making, and minimize litigation risks for developers.万博体育app手机登录归根结底,CEQ正努力确保机构和项目开发商充分关注气候影响,不无端延迟机构决策,特别是考虑到加速清洁能源基础设施是Biden爱慕气候议程的一个关键部分。
指南力求加深理解温室气体影响和替代物取舍,从而提高对联邦温室气体分析质量的期望。 项目开发商希望与联邦监管商密切合作,确保NEPA机构审查的充足性。万博体育app手机登录失败可能为项目反对者提供诉讼路径 。
Below万博体育app手机登录Encouraging Consistency in Agency Analysis of GHGs
CEQ's Guidance builds upon an earlier 2016 policy document, and is the latest in a series of efforts aimed at enhancing certainty in agency GHG analysis.[1] This Obama-era 2016 guidance was revoked and replaced by the Trump Administration,[2] and then ultimately reinstated by the Biden Administration in early 2021.[3] In the interim, court decisions have required some kind of analysis of project climate impacts under NEPA, without articulating clear generally applicable guidelines as to what level of review would be sufficient, thus resulting in uncertainty.[4]
CEQ is encouraging more certainty in addressing GHG consequences, while acknowledging that any such analysis must be conducted in a measured, proportional, yet thorough manner.CEQ实现这一点的主要方式是建议机构量化并联系相关温室气体影响
A万博体育app手机登录Quantifying GHG Emissions and Reductions
CEQ recommends agencies first quantify all reasonably foreseeable GHG emissions and reductions of a proposed action, any reasonable alternatives, and a no action alternative. In doing so, CEQ recognizes the unique nature of the climate emissions challenge, where the effects arise from a wide range of emissions activities. It thus notes, "NEPA requires more than a statement that emissions from a proposed Federal action or its alternatives represent only a small fraction of global or domestic emissions."[5] In other words, an agency is not absolved from analyzing GHG emissions because no single agency action has the ability to mitigate climate change on its own. Instead, an agency must recognize that adequate reforms will occur incrementally, and therefore analyze the emissions impacts of significant federal actions that contribute to, or remediate, climate impacts.[6] To do so, CEQ directs agencies to use tools that are commonly deployed by the private sector and government to quantify emissions.[7]
Using these tools, emissions increases and reductions should be quantified individually by constituent greenhouse gases, as well as aggregated in terms of total carbon dioxide equivalency. Additionally, where feasible, agencies are encouraged to represent the proposed action's annual emissions or reductions, especially when those emissions might vary over the life of the project.[8]
CEQ further instructs that agencies evaluate direct, indirect, and cumulative emissions as part of their environmental review. Among other things, CEQ notes that quantifying direct and indirect emissions "is generally essential to reasoned decision making."[9] Cumulative emissions are critical to consider given the nature of the climate problem, where detrimental effects flow from the accumulation of historic GHGs. Consideration of cumulative effects can be accomplished by summarizing and citing to the relevant scientific literature, as well as monetizing and contextualizing emissions as noted in the following section.[10]
Analyzing direct, indirect, and cumulative emissions is likely to be one of the most challenging aspects of CEQ's guidance to implement, and similar recommendations have already been the source of some controversy. For instance, in February 2022, the Federal Energy Regulatory Commission (FERC) issued a policy statement stating that for gas pipeline approvals FERC would review "GHG emissions that are reasonably foreseeable" including those resulting from upstream impacts—such as those tied to construction and operation of the project—and downstream impacts—such as emissions resulting from the combustion of transported gas.[11] Barely a month later, FERC re-designated this policy statement as a draft and invited additional comments after it garnered significant industry and political criticism.
CEQ attempts to tamp down such controversy by making clear that any analysis of GHGs should be bounded by principles of proportionality. They caution against "an in-depth analysis of emissions regardless of the insignificance of the quantity of GHG emissions that the proposed action would cause."[12] For example, "the relative minor and short-term GHG emissions associated with construction of certain renewable energy projects, such as utility-scale solar and offshore wind, should not warrant a detailed analysis of lifetime GHG emissions."[13] In order to further enhance efficiency and avoid duplicative efforts, CEQ expects that agencies will rely on and incorporate scientific and technical information on impacts from other, more expert, agencies, as well as international organizations and academic literature.[14]
B.Monetize and Contextualize GHG Emissions
Agencies should contextualize GHGs associated with a project after quantifying them. This can include monetizing climate damages using the "best available estimates" of the social cost of GHG ("SC-GHG") and placing emissions in the context of relevant climate goals and commitments.
The best available SC-GHG figure is currently in flux. Two years ago, the Biden Administration reconstituted an Interagency Working Group (IWG) on the SC-GHG, which issued an interim estimate of the SC-GHG in the spring of 2021. As detailed in a prior blog post, that estimate has been the subject of litigation and the IWG has yet to issue a final SC-GHG. More recently, EPA issued a regulatory document in the fall of 2022, which previewed a much higher SC-GHG than contemplated in the IWG's interim estimate.[15]
CEQ nonetheless notes that "in most circumstances" agencies should use the SC-GHG to analyze a proposed action and its alternatives. In doing so, the SC-GHG will empower agencies to make clearer comparisons of the GHG impacts of each action.[16] Monetizing emissions is particularly useful if: (a) the NEPA review monetizes other costs and benefits from the proposed action!替代物在不同时间或温室气体排放类型上有差异and (c) the significance of the climate impacts are hard to assess or not readily apparent without monetization.[17] Any such SC-GHG should be global in nature and utilize a discount rate that accurately reflects the harms climate change inflicts on future generations.[18]
Despite encouraging the monetization of GHG impacts, CEQ clearly states that "NEPA does not require a cost-benefit analysis where all monetized benefits and costs are directly compared." Utilizing SC-GHG to estimate the societal cost of GHG emissions does not create a requirement to do so.[19] However, if an agency considers a formal cost-benefit analysis appropriate, it is not prohibited from including or appending this analysis to its NEPA documents.
For any actions "with relatively large GHG emissions or reductions" or that "perpetuate reliance on GHG-emitting energy sources"—such as fossil fuels—agencies should explain how the proposed action and its alternatives would meet or detract from broader climate goals and commitments, such as federal or state goals or international agreements.[20] For example, agencies could discuss how the actions align with the U.S.机构应考虑使用更多语法或无障碍方法描述温室气体排放量,其中一些例子可包括使用“familiar度量法,例如家用每年排放量、公路上一定数车或加仑燃烧汽油平均量值”。 CEQ is also using this Guidance to encourage agencies to take actions that lower GHG emissions by building such considerations into the process. This underlines CEQ's desire to align government decision making with the Biden Administration's net-zero ambitions. Embedded in this approach is the hope that a more complete consideration of GHG impacts will lead to more climate-positive decision-making, even though NEPA does not require agencies to opt for the most environmentally friendly alternative.[22] CEQ provides advice on how to consider reasonable alternatives and mitigation measures that might address short- and long-term climate change effects, with the aim of promoting emission mitigations.[23] CEQ notes that agencies should also acknowledge the impacts of climate change on the proposed action (not just the impact of the proposed action on the climate) and embed considerations of climate adaptation and resilience into the formulation of the proposed action and alternatives.[24] CEQ also recommends evaluating reasonable alternatives that have lower GHG emissions, including technically and economically feasible clean energy alternatives to proposed fossil-fuel projects.[25] CEQ notes how "[s]ome proposed actions, such as those increasing the supply of certain energy resources like oil, natural gas, or renewable energy generation, may result in changes to the resulting energy mix as energy resources substitute for one another on the domestic or global energy market." CEQ encourages agencies to conduct a "substitution analysis" to understand how any energy project proposals will affect the resulting energy mix and GHG emissions. When doing this analysis, agencies should not assume that if any project does not go forward it will be replaced by one that generates identical emissions, such that net emissions relative to a baseline are zero.[26] Instead, agencies should conduct modeling that "accurately account[s] for reasonable and available energy substitute resources, including renewable energy."[27] By encouraging the consideration of renewable energy alternatives to fossil fuel infrastructure early in the NEPA process, CEQ is pushing agencies to prioritize permitting cleaner forms of energy, consistent with the Administration's broader climate policy goals. CEQ鼓励前方社区参赛,重点是考虑环境公义对温室气体排放的影响万博体育app手机登录One of the most effective ways to accomplish this, according to CEQ, is to leverage early planning processes to integrate GHG emissions and climate change considerations into the identification of alternatives to the proposed action, as well as any reasonable mitigation efforts. CEQ recommends that agencies use the scoping process to identify potentially affected communities and provide early notice of opportunities for public engagement, which is especially important "for communities of color and low-income communities, including those who have suffered disproportionate public health or environmental harms and those who are at increased risk for climate change-related harms."[28] Community engagement should begin in the scoping process and should recognize any unique climate-related risks and concerns posed by the proposed action. For example, CEQ discusses how "chemical facilities located near the coastline could have increased risk of spills or leaks due to sea level rise or increased storm surges, putting local communities and environmental resources at greater risk."[29] In these types of scenarios, agencies should meaningfully engage with affected communities in designing the action and selecting alternatives, "including alternatives that can reduce disproportionate effects on such communities."[30] Such early project engagement, before the contours of a project are fully fixed, can assist in improving project outcomes and building greater community-level support for a project. We will continue monitoring developments pertinent to NEPA reviews of energy and infrastructure projects in the coming months, including CEQ's final guidance on GHG analysis expected in March, and other efforts by the Biden Administration and Congress to reform federal permitting processes. [1] CEQ, Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews, 81 FR 51866 (Aug.万博体育app手机登录2016年4月5日CEQ撤销2016年最终指南。CEQ撤销联邦各部门和机构在国家环境政策法评审中审议温室气体排放和气候变化影响最终指南,III.Up-Front社区参与环境公义
[7] Guidance at 1201-1202. CEQ keeps a list of these tools on their website. See CEQ, GHG Tools and Resources, https://ceq.doe.gov/guidance/ghg-tools-and-resources.html.
[8] Id. at 1201.
[9] Id. at 1205.
[10] Id. at 1206.
[11] FERC, Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews, Docket No.万博体育app手机登录PL21-3-000, February 18, 2022.
[12] Guidance at 1201.
[13] Id.
[14] For instance, CEQ notes that "agencies may summarize and incorporate by reference the relevant chapters of the most recent national climate assessments or reports from the USGCRP and the IPCC" and encourages them to "engage other agencies and stakeholders with knowledge of related actions to participate in the scoping process to identify relevant GHG and adaptation analyses from other actions or programmatic NEPA documents." Guidance at 1208, 1210.
[15] Specifically, the February 2021 IWG estimates places the social cost of carbon at $51/ton, while the EPA in the fall of 2022 estimated the social cost of carbon at $190/ton. This larger estimate was derived in part by using lower discount rates.万博体育app手机登录See Supplementary Material for the Regulatory Impact Analysis for the Supplemental Proposed Rulemaking, "Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review," EPA External Review Draft of Report on the Social Cost of Greenhouse Gases: Estimates Incorporating Recent Scientific Advances, EPA-HQ-OAR-2021-0317 (September 2022).
[16] Guidance at 1202.
[17] Id.
[18] CEQ further notes that in utilizing a SC-GHG, agencies should keep in mind that currently available estimates "may be conservative underestimates because various damage categories (like ocean acidification) are not currently included." Id. at 1203.
[19] Id. at 1211.
[20] Id.
[21] Id.
[22] CEQ itself recognizes that "[n]either NEPA, the CEQ Regulations, or this guidance require the decision maker to select the alternative with the lowest net GHG emissions or climate costs or the greatest net climate benefits." Id. at 1204.
[23] Id. at 1203.
[24] Id. at 1208-1209.
[25] Id.1205 id>#em>
As noted in our COP27 recap, this year's climate summit in Sharm el-Sheik involved both the historic creation of a fund to compensate countries most impacted by climate change, as well as lost opportunities to adopt more ambitious and accelerated climate mitigation commitments. Perhaps hidden between these headlines, President Biden announced an initiative with significant implications for federal contractors.Under this proposal, the United States would become the first country to require major government suppliers and contractors to set science-based emissions reduction targets aligned with the Paris Agreement. It would also require contractors to disclose their greenhouse gas (GHG) emissions and climate risks.
This initiative—the proposed Federal Supplier Climate Risks and Resilience Rule—would have wide-reaching impacts if ultimately finalized. Collectively, the proposed rule would cover about 86 percent of the federal government's supply chain GHG impacts and 86 percent of federal annual spending. To put this in perspective, in the last fiscal year alone the United States purchased $630 billion in goods and services.
The comment period for the proposed Federal Supplier Climate Risks and Resilience Rule closes on January 13, 2023.大型承包商的拟议守法要求自发布最后规则两年后启动,如果发布,可按拜顿政府为联邦承包商规定的COVID-19疫苗任务向法庭质疑该规则
spanid表示'More-8294'/span>gsa.gov/policy-structions/federal-cap-control-far#:~text=%20Federal%20Actition%20最大联邦提供商-即接受5千万美元以上年度合同的majectors-a和(3)设置科学排减目标The first and second requirements would be fulfilled through an annual climate disclosure report. Contractors receiving between $7.5 million and $50 million in annual contracts would only be required to report Scope 1 and Scope 2 emissions, and all other federal contractors would be exempt from disclosures. The proposed rule does not discuss what enforcement mechanisms—if any—could be deployed against a contractor that fails to meet its emissions reduction target.Certain entities would be exempt from the proposal irrespective of the size of their annual contracts. For instance, tribally owned entities, higher education institutions, nonprofit research entities, state and local governments, and certain management and operating contracts figure to be exempt from the proposed emissions disclosures and science-based target requirements. Additionally, if a major contractor is considered a "small business" according to the North American Industry Classification System (NAICS) code in its System for Award Management (SAM) registration, or if it is a nonprofit organization, then it would not be required to complete an annual climate disclosure or to set science-based targets.
拟议规则将利用现有第三方标准和系统,包括与气候有关的财务披露建议工作队、CDP报告系统(原碳披露项目)和科学目标倡议标准下图概述(1)温室气体清单需求2) 年度气候披露报告和 3 基于科学目标需求.
清单将在连续12个月期间编目排放,结束时间不超过清单编全前12个月实体可使用环境保护局简化排量 万博体育app手机登录信息披露必须同TCFD建议保持一致,除范围1和2外,还必须包括CLE3排放清单。报告还必须描述实体的气候风险评估过程和通过该过程识别的任何风险。建议规则目前设想承包商通过完成CDP
As noted above, major contractors would be required to develop science-based targets. The Federal Register notice for the proposed rule defines a science-based target as "a target for reducing GHG emissions that is in line with reductions that the latest climate science deems necessary to meet the goals of the Paris Agreement to limit global warming to well below 2 °C above pre-industrial levels and pursue efforts to limit warming to 1.5 °C." According to the proposed rule, these targets must be validated by SBTi and be made publicly available. Though only applying to major contractors, it is estimated that these targets would address 64 percent of federal government spending and approximately 69 percent of supply chain GHG impacts.
II.Related Federal Sustainability Initiatives
The proposed rule fits within two larger Biden Administration initiatives. The first is the President's Federal Sustainability Plan, which we previously summarized in another blog entry. That plan sets a number of goals, including: 100% carbon-free electricity by 2030, and net-zero emissions in federal government procurements by 2050. To achieve the net-zero-emissions procurement goal, the government previously announced a "Buy Clean Task Force" to prioritize the procurement of low-carbon building materials, such as steel and concrete. The proposed Federal Supplier Climate Risks and Resilience Rule furthers net-zero procurement by requiring 85 percent of the emissions associated with the Federal supply chain to set net-zero targets and disclose their emissions.
The second initiative is a "comprehensive, government-wide strategy to measure, disclose, manage, and mitigate the systemic risks" of climate change. Within this bucket, the Biden Administration points to the Department of Labor's proposal to remove barriers to the consideration of climate risks and other environmental, social and governance factors by ERISA plan fiduciaries!证券交易委员会待定study climate-related risks to the financial system.
[1] Scope 1 emissions include GHG emissions from sources that are owned or controlled by the reporting company.
[2] Scope 2 emissions include GHG emissions associated with the generation of electricity, heating and cooling, or steam, when these are purchased or acquired for the reporting company's own consumption but occur at sources owned or controlled by another entity.
[3] Scope 3 emissions are a consequence of the operations of the reporting entity but occur at sources other than those owned or controlled by the entity.
One of the Inflation Reduction Act's (IRA) notable features is the creation of a Greenhouse Gas Reduction Fund (GGRF). This fund could create a mechanism to quickly disburse up to $27 billion to clean energy technologies, without undergoing the sometimes laborious reviews required by the National Environmental Policy Act (NEPA). IRA § 60103.
The GGRF would allow the EPA Administrator to disburse $20 billion to "eligible recipients," which are defined as non-profit green banks that "provide capital, including by leveraging private capital, and other forms of financial assistance for the rapid deployment of low- and zero-emission products, technologies, and services." Id. Among these $20 billion, $8 billion would be dedicated to providing financial and technical assistance in low-income and disadvantaged communities. Id. Additionally, this provision of the IRA allocates $7 billion for the EPA Administrator to provide to either states, municipalities, tribal governments, or "eligible recipients." Id.
Because the IRA does not establish a minimum or maximum number of grant recipients—it only mandates that the Administrator make the grants "on a competitive basis"—it is conceivable that all the funds could be disbursed to a single National Green Bank. This potential model bears several similarities to the $27 billion Clean Energy and Sustainability Accelerator the White House previously announced as part of the American Jobs Plan (AJP), which we have previously covered. Indeed, the GGRF has been lauded by members of Congress who previously proposed the creation of a National Climate Bank or Clean Energy Accelerator as part of the AJP,[1] who have noted that the GGRF could be used to launch a National Green Bank.[2]
A central bank is only one option. The Administrator could also fund several regional banks, or provide additional capital to pre-existing green banks in states like Connecticut and New York.[3]
Whether central or regional, proponents of the green bank model are optimistic about the model's ability to increase the pace and scale of investment. For this reason, proponents of the green bank model sometimes refer to the model as an "accelerator" given the ability for these funds, through focused investments, to "accelerate" investment in certain clean energy technologies. Those champions believe that an investment in a National Green Bank (or several regional green banks) will catalyze additional private spending, and result in a larger proportional increase in the development and deployment of clean energy technologies. Accordingly, if the initial investments and grants are successful, the green banks may be self-perpetuating and not require additional appropriations from Congress.
Finally, there is some optimism that this green bank model could result in streamlined funding for certain projects. Because the EPA administrator would be providing funding directly to the green bank(s)—not to the qualifying emissions-reduction projects—there is no federal government involvement in the administration of loans, grants, or other financial assistance for these projects. While the initial decision by the administrator to provide financing to a green bank or state, local, or tribal government might itself be subject to some sort of judicial or environmental review, the subsequent disbursement of funds from the green bank would not be a "federal action." Without "federal action," NEPA's environmental analysis requirement may be inapplicable, accelerating the timeline by which capital could be transferred to certain clean energy projects. While it is debatable how much NEPA currently slows down environmental permitting, streamlining the permitting process for energy projects is a priority for certain key members of Congress. Notably, in Senate Majority Leader Chuck Schumer (D-NY) and Senator Joe Manchin's (D-WV) joint statement announcing the IRA, the senators explained that they have an agreement with President Biden and Speaker of the House Nancy Pelosi (D-CA) to "pass comprehensive permitting reform legislation before the end of this fiscal year." This emphasis on speed echoes and underscores the IRA's commitment to rapid decarbonization.
[2] The statement of Senator Chris Van Hollen (D-MD), one of a the GGRF's key proponents, seems to imply that the law is meant to create a National Green Bank.
[3] Senator Van Hollen has previously referred to the success of state-level green banks when discussing his proposed Clean Energy And Sustainability Accelerator.
Addressing climate change has been a priority for President Biden since his first day in office. On December 8, 2021, President Biden continued that focus by issuing Executive Order (EO) 14057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability, which includes a number of requirements directed at introducing sustainability to federal acquisitions.
This most recent EO announces an administration policy to achieve net-zero emissions from federal procurement by 2050 and comes on the heels of the public comment period extension to January 13, 2022 in response to EO 14030, Climate-Related Financial Risk. Although the administration will likely be rolling out additional sustainability requirements in the coming months, contractors currently have an opportunity to help shape an initial requirement that may end up effectively establishing an environmental, social, and governance or "ESG" reporting requirement.具体地说,联邦获取管理委员会正征求公众评论,以考虑修改联邦获取规则:
政府当前提案类似于机构一级最近的活动,与美国Securities and Exchange Commission ("SEC") announcing an "all-agency approach" in response to investor demand for ESG-related information. The SEC is also seeking public comment in an effort to determine whether current climate change disclosures adequately inform investors and as of December 7, 2021 has received 5,867 comments.
In light of the rapidly evolving scope, demands, and attention placed on board and management accountability for sustainable business practices, Covington's multidisciplinary ESG and Sustainability team created an ESG and Sustainability Toolkit as an entry point for analysis, understanding, and tailored advice on this wide ranging topic.
As part of an effort to reduce federal supply chain emissions, President Biden additionally ordered the General Services Administration to "track disclosure of greenhouse gas emissions, emissions reduction targets, climate risk, and other sustainability-related actions by major Federal suppliers, based on information and data collected through supplier disclosure" of greenhouse gas emissions (as discussed in consideration (i) above).
With new reporting, tracking, and emissions reduction targets potentially on the horizon, federal contractors should consider taking the opportunity to shape aspects of new requirements, such as the preferred method of tracking and reporting emissions data, including how to evaluate the social cost of such greenhouse gases. For example, there would be a number of ways to measure the "social cost" of greenhouse gas emissions, which is generally an estimate of the monetized damages associated with incremental increases in greenhouse gas emissions. As re-established under EO 13990, the Interagency Working Group on the Social Cost of Greenhouse Gases published interim estimates of the social cost of carbon, methane, and nitrous oxide in February 2021 that reflect one method for evaluating emissions data that could ultimately inform requirements imposed on contractors. Although a coalition of states is currently challenging the administration's use of social cost estimates to calculate regulatory costs and benefits under EO 13990,[1] the notice of public comment for EO 14030 still includes the social cost of greenhouse gases as one potential factor when considering greenhouse gas emissions in federal procurement decisions.
Comments may be submitted on the following questions on or before January 13, 2022 for FAR Case 2021-016 at https://www.regulations.gov/document/FAR-2021-0016-0001:
- How can greenhouse gas emissions, including the social cost of greenhouse gases, best be qualitatively and quantitatively considered in Federal procurement decisions, both domestic and overseas?
- 什么可用并受尊重方法测量所购或租产品或所服务生命周期中的温室气体排放?
- 联邦政府通过国内外采购决策可如何考虑和尽量减少与气候有关的金融风险?
- 贵组织将如何提供温室气体排放数据供建议和/或合同性能使用?
- 联邦政府应如何验证温室气体排放报告?
- 政府应如何优先接受国内外供应商的标书或建议书,以最有效实现减少温室气体排放或降低温室气体排放社会成本? 政府可如何考虑供应商承诺减少或减少温室气体排放?
- 采购决策中考虑温室气体社会成本对小企业产生什么影响? 小企业包括处境不利小企业、妇女拥有小企业、服务性残疾老企业和历史利用不足商业区小企业FAR理事会应如何最优化地将目标与确保小企业机会的努力相匹配?
As we have described in prior posts, the social cost of carbon is a tool that expresses in dollar amounts the estimated cost to society of a one metric ton increase in CO2 emissions. Developed by a federal interagency working group (IWG) originally to aid cost benefit analysis in rulemaking context, the tool also has potential use in the project approval, by informing agency assessments of environmental impacts under the NEPA. By and large, however, courts have accepted agency decisions not to utilize the SCC in their analysis, often relying on the well-established rule that NEPA generally does not mandate cost-benefit analysis. See 40 C.F.R.1502.22.
Enter Vecinos, the most recent decision in an evolving area of law. The case concerned FERC approval of liquefied natural gas export terminals and pipelines in Texas. As it has in past projects, FERC quantified the greenhouse gas emissions associated with construction and operation of the facilities, but declined to consider the significance of those effects on the project's contribution to climate change. The Commission justified this position on the grounds that there is no "universally accepted methodology to attribute discrete, quantifiable, physical effects on the environment to" an individual source's greenhouse gas emissions. Local residents, environmental groups, and a nearby city challenged, arguing, inter alia, that the Commission was obligated to use the social cost of carbon in light of 40 C.F.R.§1502.21,CEQ执行NEPA规范要求机构评估基于理论方法或研究方法的影响,即“科学界普遍接受”,即“无法获得可合理预见重大不利影响相关信息”。
d.C电路判定委NEP分析不充分。它关于碳 < ahrf='##ftn1命名s'#ftnref1>>>[1]社会成本的决定完全取决于FERC未考虑§1502.21的潜在效果,而FERC命令或简介中则未讨论或引用该作用。Circuit decision which had upheld FERC's decision not to use the social cost of carbon in other projects, which also did not discuss the regulation.[2]
Accordingly, on remand and in the future, FERC and other agencies will have to more directly evaluate the tool and the rigor of the science behind it. Proponents will argue that the social cost of carbon is the kind of "generally accepted" theoretical approach § 1502.21 requires be incorporated into NEPA: The IWG's SCC framework is at this point over a decade old, and was designed from the start to reflect scientific consensus, incorporating the three most widely cited climate economic impact models, each of which have been extensively peer reviewed. The National Academy of Sciences has recognized the tool and provided recommendations on how to strengthen it, which the Biden Administration is actively working to incorporate through an inclusive public process with stakeholders and experts to ensure that projections are based on the "best available science."
The decision is the latest in a series of cases assessing the adequacy of FERC's NEPA analysis. The D.C.电路要求FERC更充分地考虑核准项目气候后果, 特别是s/www.sierraclub.org/files/blog/FINAL%20ORDER%202020-22-17.pdf'Circuit made clear that it was stopping short of forcing the social cost of carbon on FERC. Indeed, the Vecinos court remanded the approval without vacating it, concluding it was "reasonably likely" that the Commission would be able to reach the same result even after discussing § 1502.21, and that vacatur could "needlessly disrupt completion of the projects." Construction of the facilities continues after the ruling.
Even if Vecinos does not result in broader adoption of the social cost of carbon in project approval, changes from the executive and legislative branches may, for FERC as well as other agencies. By the end of this month, the interagency working group will submit recommendations on "areas of decision-making, budgeting, and procurement" across the federal government where the SCC should be applied, which could include project approval and NEPA analysis. Regarding FERC specifically, President Biden will soon be expected to announce his replacement for Commissioner Neil Chatterjee, potentially shifting the Commission to a Democratic majority and providing additional support to Chairman Glick, who has vocally supported having the Commission consider the significance of greenhouse gas emissions and the social cost of carbon in NEPA analyses.
[1] Vecinos separately held that the Commission's environmental justice analysis was arbitrarily limited, as it did not discuss potential disproportionate effects more than two miles away from the project site.
[2] See EarthReports, Inc.公元前FERC ,828F3d949956Cir市2016年)appalachian声音vFERC 号17-12712019WL847199Cir市二月192019SierraClub公元前FERC ,672FedAppx3839Cir市2016年)
In voting on the May 20 orders, the Commissioners were split on whether the National Environmental Policy Act ("NEPA") requires further analysis of the climate significance of the greenhouse gas emissions calculated for the pipeline projects. A majority of Commissioners compromised by merely providing GHG data for information purposes without determining their significance.
As discussed in a prior post to this blog, in March, 2021, FERC approved a pipeline project certificate in an order that considered "the significance of the project's GHG emissions and their potential impact on climate change," and stated that if a project's GHG emission impacts are significant, they "would be considered along with many other factors when determining whether a project is required by the public convenience and necessity." Two recent orders that discussed GHG emissions, however, noted that "analysis of greenhouse gas emissions is offered for informational purposes only, does not inform any part of this order's holding, and shall not serve as precedent for any future certificate order."
After an extremely tense debate at its open meeting on May 20th, FERC narrowly approved a Northern Natural Gas project in Minnesota (Docket No.CP20-503) as well as a Tuscarora Gas Transmission project in Nevada (Docket Number CP20-486).4-1表决接受James Danly专员修改命令草案动议,以明确FERC在批准两个项目时没有为其温室气体排放法开新例委员会随后表决3-2批准证书Chairman Glick and Commissioner Clements dissented in part on the grounds that the Commission should have issued an environmental impact statement ("EIS") to determine the significance of the emissions from these projects and the impact on climate change and thus FERC did not satisfy its duty under the National Environmental Policy Act ("NEPA"). They added that finding a project's GHG emissions to be significant is not a "death knell" for that project and FERC may very well conclude that the project's benefits outweigh even significant adverse impacts and may also order mitigation of adverse impacts.
In the May 20 Northern Natural order, the Commission did provide information concerning the projected downstream emissions from the projects and also compared them to the projected emissions in the United States, but issued an Environmental Assessment ("EA") instead of an EIS.发货公司全部为本地配送公司,北方发现工业和住宅用能源需求增长。EA估计项目运营产生的最大潜在温室气体排放量为每年42,814公吨二氧化碳当量(CO2e)。 FERC发现该项目的servations c 后续年份中项目运毒量和下游燃气量可能增加0.016%.s/sites/defails/2021-05/C-3.pdf.>Tuscarora命令 in subsequent years, the project operations and downstream combustion of gas transported by the project could potentially increase emissions by 0.0052%.[2] The emissions from the project would represent 0.83% and 1.08% of Nevada's 2025 and 2030 GHG inventory goals, respectively.[3]
Again, both orders noted that the analysis of greenhouse gas emissions is offered for information purposes only, does not inform any part of the order's holding, and shall not serve as precedent for any future order.
[1] FERC found that the annual GHGs from operation of the project, including the downstream combustion of the gas transported by the project, are 925,244 metric tons per year CO2e. To provide context to the GHG estimate, 5.769 billion metric tons of CO2e were emitted at a national level in 2019 (inclusive of CO2e sources and sinks). See Northern Natural order at Paragraph 33.
[2] FERC noted that although the national emissions reduction targets expressed in the EPA's Clean Power Plan were repealed, EPA, Repeal of the Clean Power Plan!现有电用生成单元温室气体排放修改排放指南实施规程 84美联储瑞格3252032202019年7月8日巴黎气候协议瑞格7619年1月27日2021年4月21日宣布目标2030年净温室气体排放比2005年水平减少50%至52%。21, 2021), https://www4.unfccc.int/sites/ndcstaging/PublishedDocuments/United%20States%20of%20America%20First/United%20States%20NDC%20April%2021%202021%20Final.pdf. See Tuscarora order at note 47.
[3] Nevada's 2005 CO2 emissions were 50.1 million metric tons. U.S.能源信息管理局,能源相关CO2排放数据表 (表1-国元二氧化碳逐年排放,未调整(1990-2018年),
类似拟议规则,最后规则为完成环境影响说明设定2年和完成环境评估设定1年的推定时限,除非牵头机构高级官员书面核准更长时间并设定新时限。
EIS目前限页或小于150页,EA最多75页(不包括附录)“除非高级代理官书面批准EIS或EA可能超出推定页限并设定新页限关于异常范围或复杂度提案,推定页数限制为300.
Final规则还允许申请方和承包商在机构监督下扩大EIS或EAs编译作用万博体育app手机登录The Final Rule includes regulations that require the decision-making or lead agency to provide guidance, independently evaluate the EIS or EA, and take ultimate responsibility for the accuracy, scope, and content of the assessment.
III. Changes to the Definition and Applicability of Categorical Exclusions
Prior NEPA regulations defined "categorical exclusion" (CE) as a "category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations … and for which, therefore, neither an environmental assessment nor an environmental impact statement is required." 40 C.F.R.§1508.4(旧规程)。终极规则修改定义,删除术语“单数或累积数”。§ 1508.1(d).
Final规则进一步补充称,如果aId 此前,代理机构会评价项目“异常环境”,这可能使通常排除项目接受审查,因为对环境产生重大不利影响终极规则维护此过程,但修改后规定,如果“异常情况存在,机构可绝对排除提议的行动,如果机构确定有情况可减少撞击或足以避免重大效果的其他条件。” 40 C.F.R.§1501.4(b)(1).
Simliarly,Final规则描述三级审查(EA、EIS和CEs)并增加一节题为“确定NEPA审查的适当级别”,规定各机构应以何种方式确定NEPA项目需要哪一级审查C.F.R.§1501.3.
最后规则还修改单列定义“主要联邦行动”,明确排除“治外活动或决定”、“非全权活动”、“非联邦项目最小联邦供资或控制,以及贷款、贷款担保或其他形式的金融援助等,如果联邦机构对援助结果不行使足够的控制和责任。Id §1508.1(q).下一步,Final规则不“包括机构因有限法定权限而无能力预防或不论拟议行动而发生”。 Id .
此外,终极规则明确指出,这是一项须接受国会根据国会审查法审查的“主要规则”,并因此CEQ将向国会和政府问责局提交包括最后规则在内的报告供审查规定最终规则自9月14日2020生效,如果国会审查改变生效日期,CEQ将在联邦注册局发布文件以确定实际生效日期或终止规则鉴于这种可能性和可能提出法律挑战的可能性,对受NEPA项目感兴趣的当事方希望监测这些动态公司执行受NEP约束项目时,可能欢迎简化和加速NEP进程的变化,但它们应认真考虑如何在不确定期间最优保护期望结果。
The Department of Energy proposes to no longer subject LNG exports to evaluation under the National Environmental Policy Act (NEPA). According to a recent Notice of Proposed Rulemaking (NOPR), DOE says that the only source of potential environmental impacts within its authority to review are those associated with transporting natural gas by ship, and those shipments qualify for categorical exclusion from NEPA review.
DOE's proposal is likely to be controversial and if adopted may be subject to litigation. This proposed change in DOE policy will be of interest to proposed LNG export projects that are now seeking or will seek such authorizations from DOE and their counterparties in gas sales contracts.
Background
Under section 3 of the Natural Gas Act (NGA), DOE authorizes exports of natural gas and LNG unless found to not be consistent with the public interest. Exports to countries with which the United States has a free trade agreement (FTA) are deemed in the public interest by the NGA and must be authorized "without modification or delay." However, for exports to countries without an FTA (non-FTA countries), DOE conducts an informal adjudication, including an evaluation under NEPA and authorizes a proposed export unless it is shown to not be consistent with the public interest. The adjudications for non-FTA authorizations can be contentious, especially with respect to the potential increase in greenhouse gas (GHG) emissions caused by the combustion of the exported gas in the destination countries.
DOE does not authorize facilities associated with the export of natural gas. The Federal Energy Regulatory Commission (FERC) authorizes the terminals from which LNG is exported as well as the pipelines that feed natural gas to the export terminals. FERC undertakes NEPA reviews with respect to those facility authorizations.
Proposal
The NOPR is directed at reforming DOE's NEPA regulations so that they are consistent with the agency's authority and practices. DOE proposes to revise its regulations consistent with the legal principle that potential environmental effects considered under NEPA do not include effects that the agency has no authority to prevent because they would not have a sufficiently close causal connection to the proposed action.[1] Because DOE's authority is limited to exports of natural gas, DOE says it will focus exclusively on NEPA review of potential environmental impacts resulting from actions occurring at or after the point of export, which DOE has construed in past adjudications as occurring when the LNG is delivered to the flange of the LNG export vessel.
According to the NOPR, the only source of potential environmental impacts associated with DOE's decision authorizing exports are any "associated transportation of natural gas by marine vessel," which DOE has previously determined does not pose the potential for significant environmental impacts.Accordingly, DOE proposes to include such transportation within the scope of a categorical exclusion from NEPA review in its regulations.
With respect to the potential for GHG increased emissions, the NOPR says that "the regasification and ultimate burning of LNG in foreign countries are beyond the scope of DOE's NEPA review." DOE says that two reports that it commissioned in 2014 and 2018 to calculate the life cycle greenhouse gas (GHG) emissions for LNG exported from the United States were used to support its public interest determination regarding a proposed export and were not part of DOE's NEPA review.[2]
Comments on the proposal are due June 1, 2020. Documents supporting the NOPR and comments received are available here.
[1] The NOPR cites Dep't of Transp.vunem/Pub公有性 541U.S.752(2004)SierraClub vFed能源规管通信 827F.3d36Cir市2016年)
/ahref=sftnref2LNG在欧洲和亚洲市场出口电源不会从生命周期角度增加全球温室气体排放量,而与区域燃煤和耗电生产相比。Earlier this week, President Trump released the outline of his infrastructure plan, which includes over three dozen proposals intended to reduce delay, inefficiency and redundancy in the project permitting process. The plan contemplates amendments to major federal environmental statutes, including the National Environmental Policy Act, the Clean Air Act, and the Clean Water Act.
The chief goal of the proposed reforms—highlighted in both the President's recent State of the Union Address and an earlier Executive Order—is to streamline the permitting process so that federal agencies approve projects in two years or less. The plan establishes a "firm deadline" for lead agencies to complete environmental reviews and issue a Record of Decision (ROD) under NEPA within 21 months, and requires them (or a state agency acting pursuant to delegated authority) to issue or deny any necessary permits within 3 months thereafter.
The plan lacks detail regarding just how such a deadline would be enforced, stating only that "appropriate enforcement mechanisms" would be established. What these might be appears to be in flux: an earlier draft plan, made public about two weeks before the President's official release, outlined a review process by the Federal Permitting Improvement Steering Council for agencies that missed deadlines. This process was omitted from the final product.
The guiding principle underlying many of the proposed reforms is eliminating overlapping agency authority and duplicative review in the permitting and review process. For example, the plan establishes a "One Agency, One Decision" environmental review structure, and requires a single environmental review document and ROD to be signed by all involved agencies. Agencies would be directed to focus only on their areas of "special expertise," and would be permitted to rely on the determinations of other agencies that certain projects are categorically exempt from environmental review, instead of having to conduct their own independent assessment. As another example, the authority to issue dredge and fill permits under section 404 of the Clean Water Act would be consolidated in the U.S.Army Corps of Engineers. The Corps would gain final authority to construe the jurisdictional terms "navigable waters"/"waters of the U.S." under section 404 of the Act—authority that currently rests with EPA, though both agencies currently exercise it pursuant to a Memorandum of Agreement—and EPA would lose its current ability to veto a 404 permit.
The plan also contains a number of other provisions intended to speed the infrastructure permitting process, including calling for procedures to expedite review for projects likely to result in positive environmental impacts, and limiting the availability of injunctive relief to stop projects that have already been approved pending a court challenge. The plan also requests that two pilot programs be established which would exempt projects wholesale from environmental review in lieu of performance-based review or negotiated environmental mitigation.
Several of the proposed changes, including the idea of setting deadlines for agency action, draw from the report Two Years, Not Ten Years: Redesigning Infrastructure Approvals, issued by the nonpartisan reform organization Common Good. Philip K.hrefs/www.cov.com/en/donald Elliott 和
Covington和Burling与Good公司、双党政策中心及国家制造商协会联合主办活动周二集专家讨论基础设施审批过程,并讨论如何改善或改革当前系统以提高效率半天论坛展示新视角并对话为何需要大修推动经济并改进环境结果可并发,但当前架构和监管屏障可防止范式变换论坛还包括介绍其他国家的最佳做法和合并决策标志和及早审议环境影响所创造的机会PhilipHoward,Covington和Burling公共良好和伙伴周二召集活动,确认“没有人设计我们现在拥有的系统-它刚刚壮大 ” 。 论坛的目标是探索大胆建议简化、加速和改善基础设施审批过程美国想从新基础建设项目中获取所有利益 — — 增强竞争力、数以百万计的工作和绿化环境足迹。
运输副秘书Victor Mendez是基调演讲人,他谈到交通部新调查DOT“Beond交通”,计算当前基础建设和运输需求并预测未来趋势最新调查《超出交通量:趋势与选择2045年》预测2045年人口增长7 000万,全国人口变化Mendez承认,我们目前的基础设施无法维系增长,他说,我们的基础设施本身不会改善,他认为我们可以改善当前系统以提高效率,从国会的长期地面运输授权开始。Mendez相信基础设施利害相关方和美国公众应开始考虑机制以保持创新超出立法行动范围。基础设施审批系统与其他国家相对照 。Nick Malyshev是OECD监管政策司司长,观察美国拥有强大的系统制定法律法规,我们可以做更好的工作评价现有法规。他和其他小组成员Parsons Brinckerhoff和Shawn DensstettOsler,Hoskin & Harcourt(Canada)讨论了加拿大、澳大利亚和许多欧盟国家如何在监管框架和审批流程方面比美国先光年。Denstedt discussed how Canada in particular revamped its environmental review process in 2012 to make it more consistent and timely and the outcomes more predictable. All of the panelists remarked on how the convoluted approval process, not necessarily the substance of projects, is dragging down the infrastructure system here in the United States, and how there must be better coordination between federal and state entities to reduce overlap and inconsistencies.
A second panel discussed the environmental review process and the devolution of the National Environmental Policy Act (NEPA). While the original intent of the act was to balance interests and understand the consequences of different choices in infrastructure projects, panelists remarked on how the process has become cumbersome, with overlapping oversight authority and review processes that have resulted in delays, escalation of costs, and an overall burden on the American economy. Attendees were reminded that the law was only 7 pages when enacted in 1970!several panelists commented that it is time to go back to the law's original intent. There was also a consensus among panelists that there needs to be more of an evidence-based discussion around environmental review. There is little analytical data on NEPA policy, but a better model could exist that is based on metrics and outcomes that can better inform decisions. Covington & Burling's Don Elliott discussed the judicial review process under NEPA, which he said has become a process for stopping projects, rather than facilitating how a project gets done. One fix he noted was for preliminary injunctions to be done away with and for CEQ to issue guidelines for judicial standing.
The final panel discussed the challenges and bright spots in the current permitting process. Joann Papageorgis of the Port Authority of New York and New Jersey discussed the Bayonne Bridge navigational clearance project as an example of how complicated the review process can be and how inefficiencies can be solved. This project in particular required approximately 50 permits from 20 different agencies. They found the complicated regulatory review contained multiple duplicative regulatory processes and conflicting federal requirements. She outlined several strategies and recommendations based on the experience of this project, many of which were echoed by the other panelists, including how important it is to enforce early coordination and synchronization between agencies, and to work on a schedule. Shoshanna Lew from DOT agreed there is no reason certain processes cannot happen simultaneously, and multiple agencies could participate as part of the same review, rather than duplicating it multiple times.
There was broad consensus across these three panels and participants that all parties should work toward permanent solutions that increase efficiencies, improve outcomes, and balance interests to advance our infrastructure systems and meet the current and future demands of our country.