At the beginning of this year, ELM forecasted that 2025 would be a big year for the National Environmental Policy Act (previously covered by ELM here), and so far, our prediction continues to ring true.
In the latest NEPA news, the Council on Environmental Quality (CEQ) published a notice in the Federal Register announcing the withdrawal of its interim guidance on “Consideration of Greenhouse Gas Emissions and Climate Change” in NEPA reviews, effective May 28. The CEQ determined this interim guidance, which was previously issued on January 9, 2023, was inconsistent with the objectives set forth in Executive Order 14154, “Unleashing American Energy.”
In particular, Executive Order 14154 purports to advance the current administration’s policies of protecting “the United States’ economic and national security and military preparedness by ensuring that an abundant supply of reliable energy is readily accessible in every State and territory of the Nation,” ensuring “that all regulatory requirements related to energy are grounded in clearly applicable law,” and ensuring “that global effects of a rule, regulation, or action shall, whenever evaluated, be reported separately from its domestic costs and benefits, in order to promote sound regulatory decision making and prioritize the interests of the American people.”
The CEQ also found the interim guidance suffered from logical deficiencies because it recommended that agencies quantify and monetize greenhouse gas emissions (GHG) using the social cost of carbon estimates. Additionally, the CEQ determined that the interim guidance inappropriately relied on environmental justice and climate policies recently abandoned by the current administration. CEQ’s decision to withdraw the interim guidance comes on the heels of the Office of Information and Regulatory Affairs’ newly issued guidance (also pursuant to Executive Order 14154) on May 5, advising agencies to “limit their analysis and consideration of [GHG] emissions only to that plainly required in their governing statutes subject to an exception” involving consultation with the U.S. Department of Justice.
While interim guidance is not legally enforceable and technically does not change a law, regulation, or other legally binding requirement, opponents of the withdrawal believe the move will make it easier for low-carbon projects to receive federal permits. Others argue it will help fossil fuel initiatives, including pipeline and nuclear plants, move forward more quickly. However, the CEQ has stated that in the future it “will consider issuing new or revised GHG guidance” in a separate notice. Therefore, stay tuned for the next chapter of NEPA.