[Federal Register Volume 88, Number 5 (Monday, January 9, 2023)]
[Notices]
[Pages 1196-1212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00158]
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COUNCIL ON ENVIRONMENTAL QUALITY
[CEQ-2022-0005]
RIN 0331-AA06
National Environmental Policy Act Guidance on Consideration of
Greenhouse Gas Emissions and Climate Change
AGENCY: Council on Environmental Quality.
ACTION: Notice of interim guidance; request for comments.
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SUMMARY: The Council on Environmental Quality (CEQ) is issuing this
interim guidance to assist agencies in analyzing greenhouse gas (GHG)
and climate change effects of their proposed actions under the National
Environmental Policy Act (NEPA). CEQ is issuing this guidance as
interim guidance so that agencies may make use of it immediately while
CEQ seeks public comment on the guidance. CEQ intends to either revise
the guidance in response to public comments or finalize the interim
guidance.
DATES: This interim guidance is effective immediately. CEQ invites
interested persons to submit comments on or before March 10, 2023.
ADDRESSES: You may submit comments, identified by docket number CEQ-
2022-0005, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 202-456-6546.
Mail: Council on Environmental Quality, 730 Jackson Place
NW, Washington, DC 20503.
All submissions received must include the agency name, ``Council on
Environmental Quality,'' and the docket number, CEQ-2022-0005. All
comments received will be posted without change to https://www.regulations.gov, including any personal information provided. Do
not submit electronically any information you consider to be private,
Confidential Business Information (CBI), or other information, the
disclosure of which is restricted by statute.
FOR FURTHER INFORMATION CONTACT: Jomar Maldonado, Director for NEPA,
202-395-5750 or [email protected].
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SUPPLEMENTARY INFORMATION:
I. Introduction
The Council on Environmental Quality (CEQ) issues this guidance to
assist Federal agencies in their consideration of the effects of
greenhouse gas (GHG) emissions \1\ and climate change when evaluating
proposed major Federal actions in accordance with the National
Environmental Policy Act (NEPA) \2\ and the CEQ Regulations
Implementing the Procedural Provisions of NEPA (CEQ Regulations).\3\
This guidance will facilitate compliance with existing NEPA
requirements, improving the efficiency and consistency of reviews of
proposed Federal actions for agencies, decision makers, project
proponents, and the public.\4\ This guidance provides Federal agencies
a common approach for assessing their proposed actions, while
recognizing each agency's unique circumstances and authorities.
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\1\ For purposes of this guidance, CEQ defines GHGs consistent
with CEQ's Federal Greenhouse Gas Accounting and Reporting Guidance
(Jan. 17, 2016), https://www.sustainability.gov/pdfs/federal_ghg%20accounting_reporting-guidance.pdf (carbon dioxide,
methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons,
nitrogen trifluoride, and sulfur hexafluoride). Also, for purposes
of this guidance, ``emissions'' includes release of stored GHGs as a
result of land management activities affecting terrestrial GHG pools
such as carbon stocks in forests and soils, as well as actions that
affect the future changes in carbon stocks. To facilitate
comparisons between emissions of the different GHGs, a common unit
of measurement for GHGs is metric tons of CO2 equivalent
(mt CO2-e).
\2\ 42 U.S.C. 4321 et seq.
\3\ 40 CFR parts 1500-1508.
\4\ This guidance is not a rule or regulation, and the
recommendations it contains may not apply to a particular situation
based upon the individual facts and circumstances. This guidance
does not change or substitute for any law, regulation, or other
legally binding requirement, and is not legally enforceable. The use
of non-mandatory language such as ``guidance,'' ``recommend,''
``may,'' ``should,'' and ``can,'' describes CEQ policies and
recommendations. The use of mandatory terminology such as ``must''
and ``required'' describes controlling requirements under the terms
of NEPA and the CEQ regulations, but this document does not affect
legally binding requirements.
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The United States faces a profound climate crisis and there is
little time left to avoid a dangerous--potentially catastrophic--
climate trajectory. Climate change is a fundamental environmental
issue, and its effects on the human environment fall squarely within
NEPA's purview.\5\ Major Federal actions may result in substantial GHG
emissions or emissions reductions, so Federal leadership that is
informed by sound analysis is crucial to addressing the climate crisis.
Federal proposals may also be affected by climate change, so they
should be designed in consideration of resilience and adaptation to a
changing climate.\6\ Climate change is a particularly complex challenge
given its global nature and the inherent interrelationships among its
sources and effects. Further, climate change raises environmental
justice concerns because it will disproportionately and adversely
affect human health and the environment in some communities, including
communities of color, low-income communities, and Tribal Nations and
Indigenous communities. Given the urgency of the climate crisis and
NEPA's important role in providing critical information to decision
makers and the public, NEPA reviews should quantify proposed actions'
GHG emissions, place GHG emissions in appropriate context and disclose
relevant GHG emissions and relevant climate impacts, and identify
alternatives and mitigation measures to avoid or reduce GHG emissions.
CEQ encourages agencies to mitigate GHG emissions associated with their
proposed actions to the greatest extent possible, consistent with
national, science-based GHG reduction policies established to avoid the
worst impacts of climate change.\7\
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\5\ NEPA recognizes ``the profound impact of man's activity on
the interrelations of all components of the natural environment . .
. .'' 42 U.S.C. 4331(a). Among other things, it was enacted to
promote efforts that will prevent or eliminate damage to the
environment and biosphere and stimulate the health and welfare of
humans. 42 U.S.C. 4321. See also 42 U.S.C. 4332(2)(F) (requiring all
Federal agencies to ``recognize the worldwide and long-range
character of environmental problems'').
\6\ See 42 U.S.C. 4332(2)(A) (directing agencies to ensure the
use of ``the environmental design arts'' in planning and decision
making).
\7\ See White House Fact Sheet, President Biden Sets 2030
Greenhouse Gas Pollution Reduction Target (Apr. 22, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/22/fact-sheet-president-biden-sets-2030-greenhouse-gas-pollution-reduction-target-aimed-at-creating-good-paying-union-jobs-and-securing-u-s-leadership-on-clean-energy-technologies/; see also
Executive Order (E.O.) 14008, Tackling the Climate Crisis at Home
and Abroad, 86 FR 7619 (Jan. 25, 2021), https://www.federalregister.gov/d/2021-02177; E.O. 14057, Catalyzing Clean
Energy Industries and Jobs Through Federal Sustainability, 86 FR
70935 (Dec. 13, 2021), https://www.federalregister.gov/d/2021-27114.
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As discussed in this guidance, when conducting climate change
analyses in NEPA reviews, agencies should consider: (1) the potential
effects of a proposed action on climate change, including by assessing
both GHG emissions and reductions from the proposed action; and (2) the
effects of climate change on a proposed action and its environmental
impacts. Analyzing reasonably foreseeable climate effects in NEPA
reviews \8\ helps ensure that decisions are based on the best available
science and account for the urgency of the climate crisis. Climate
change analysis also enables agencies to evaluate reasonable
alternatives and mitigation measures that could avoid or reduce
potential climate change-related effects and help address mounting
climate resilience and adaptation challenges.
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\8\ The term ``NEPA review'' as used in this guidance includes
the analysis, process, and documentation required under NEPA. While
this document focuses on reviews conducted pursuant to NEPA,
agencies should analyze GHG emissions and climate-resilient design
issues early in the planning and development of proposed actions and
projects under their substantive authorities.
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Accurate and clear climate change analysis:
Helps decision makers, stakeholders, and the public to
identify and assess reasonable courses of action that will reduce GHG
emissions and climate change effects;
Enables agencies to make informed decisions to help meet
applicable Federal, State, Tribal, regional, and local climate action
goals; \9\
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\9\ For example, the United States has set an economy-wide
target of reducing its net GHG emissions by 50 to 52 percent below
2005 levels in 2030. See United Nations Framework Convention on
Climate Change (UNFCC), U.S. Nationally Determined Contribution
(Apr. 20, 2021), https://unfccc.int/NDCREG.
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Promotes climate change resilience and adaptation and
prioritizes the national need to ensure climate-resilient
infrastructure and operations, including by considering the reasonably
foreseeable effects of climate change on infrastructure investments and
the resources needed to protect such investments over their lifetime;
\10\
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\10\ Resilience is a priority for Federal agency actions. See,
e.g., E.O. 14057, supra note 7; see also E.O. 14008, supra note 7.
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Protects national security by helping to identify and
reduce climate change-related threats including potential resource
conflicts, stresses to military operations and installations, and the
potential for abrupt stressors; \11\
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\11\ See, e.g., Nat'l Intel. Council, Implications for U.S.
National Security of Anticipated Climate Change (Sept. 21, 2016),
NIC WP 2016-01, https://www.dni.gov/files/documents/Newsroom/Reports%20and%20Pubs/Implications_for_US_National_Security_of_Anticipated_Climate_Change.pdf; see also Dep't of Def., Directive 4715.21, Climate Change
Adaptation and Resilience (Jan. 14, 2016), https://dod.defense.gov/Portals/1/Documents/pubs/471521p.pdf.
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Enables agencies to better understand and address the
effects of climate change on vulnerable communities, thereby responding
to environmental justice concerns and promoting resilience and
adaptation;
[[Page 1198]]
Supports the international leadership of the United States
on climate issues; \12\ and
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\12\ See 42 U.S.C. 4332(2)(F) (requiring all Federal agencies to
``recognize the worldwide and long-range character of environmental
problems'').
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Enables agencies to better assess courses of action that
will provide pollution reduction co-benefits and long-term cost savings
and reduce litigation risk to Federal actions--including projects
carried out pursuant to the Bipartisan Infrastructure Law \13\ and the
Inflation Reduction Act.\14\
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\13\ Infrastructure Investment and Jobs Act, Public Law 117-58,
135 Stat. 429.
\14\ Public Law 117-169, 136 Stat. 1818.
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This interim \15\ GHG guidance, effective upon publication, builds
upon and updates CEQ's 2016 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 (``2016
GHG Guidance''), highlighting best practices for analysis grounded in
science and agency experience.\16\ CEQ is issuing this guidance to
provide for greater clarity and more consistency in how agencies
address climate change in NEPA reviews. This guidance applies
longstanding NEPA principles to the analysis of climate change effects,
which are a well-recognized category of effects on the human
environment requiring consideration under NEPA. In fact, Federal
agencies have been analyzing climate change impacts and GHG emissions
in NEPA documents for many years. CEQ intends the guidance to assist
agencies in publicly disclosing and considering the reasonably
foreseeable effects of their proposed actions. CEQ encourages agencies
to integrate the climate and other environmental considerations
described in this guidance early in their planning processes. CEQ will
review any agency proposals for revised NEPA procedures, including any
revision of existing categorical exclusions, in light of this
guidance.\17\
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\15\ CEQ is issuing this guidance as interim guidance so that
agencies may make use of it immediately while CEQ seeks public
comment on the guidance. CEQ may revise the guidance in response to
public comments or finalize the interim guidance at a later date.
\16\ 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. 8, 2016), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/nepa_final_ghg_guidance.pdf. On April 5, 2017, CEQ withdrew
the final 2016 guidance, as directed by E.O. 13783. 82 FR 16576
(Apr. 5, 2017). On June 26, 2019, CEQ issued draft GHG guidance. 84
FR 30097 (June 26, 2019). CEQ rescinded this draft guidance on
February 19, 2021, pursuant to E.O. 13990. 86 FR 10252 (Feb. 19,
2021). In addition, on April 20, 2022, CEQ issued a Final Rule for
its ``Phase 1'' NEPA rulemaking. 87 FR 23453. CEQ will be proceeding
with updates to the NEPA regulations as set forth in the 2022
Regulatory Agenda.
\17\ See 40 CFR 1507.3. Agencies should review their policies
and implementing procedures and revise them as necessary to ensure
compliance with NEPA. Agency NEPA implementing procedures can be,
but are not required to be, in the form of regulation. Section
1507.3 encourages agencies to publish explanatory guidance, and
agencies also should consider whether any updates to explanatory
guidance are necessary in light of this guidance.
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II. Summary of Key Content
This guidance explains how agencies should apply NEPA principles
and existing best practices to their climate change analyses by:
Recommending that agencies leverage early planning
processes to integrate GHG emissions and climate change considerations
into the identification of proposed actions, reasonable alternatives
(as well as the no-action alternative), and potential mitigation and
resilience measures;
Recommending that agencies quantify a proposed action's
projected GHG emissions or reductions for the expected lifetime of the
action, considering available data and GHG quantification tools that
are suitable for the proposed action;
Recommending that agencies use projected GHG emissions
associated with proposed actions and their reasonable alternatives to
help assess potential climate change effects;
Recommending that agencies provide additional context for
GHG emissions, including through the use of the best available social
cost of GHG (SC-GHG) estimates, to translate climate impacts into the
more accessible metric of dollars, allow decision makers and the public
to make comparisons, help evaluate the significance of an action's
climate change effects, and better understand the tradeoffs associated
with an action and its alternatives;
Discussing methods to appropriately analyze reasonably
foreseeable direct, indirect, and cumulative GHG emissions;
Guiding agencies in considering reasonable alternatives
and mitigation measures, as well as addressing short- and long-term
climate change effects;
Advising agencies to use the best available information
and science when assessing the potential future state of the affected
environment in NEPA analyses and providing up to date examples of
existing sources of scientific information;
Recommending agencies use the information developed during
the NEPA review to consider reasonable alternatives that would make the
actions and affected communities more resilient to the effects of a
changing climate;
Outlining unique considerations for agencies analyzing
biogenic carbon dioxide sources and carbon stocks \18\ associated with
land and resource management actions under NEPA;
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\18\ See infra section IV(I).
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Advising agencies that the ``rule of reason'' inherent in
NEPA and the CEQ Regulations should guide agencies in determining,
based on their expertise and experience, how to consider an
environmental effect and prepare an analysis based on the available
information; and
Reminding agencies to incorporate environmental justice
considerations into their analyses of climate-related effects,
consistent with Executive Orders 12898 and 14008.
III. Background
Consistent with NEPA, climate change analysis is a critical
component of environmental reviews and integral to Federal agencies
managing and addressing climate change.\19\ Recognizing the increasing
urgency of the climate crisis and advances in climate science and GHG
analysis techniques, CEQ has clarified and updated its 2016 GHG
guidance on particular components including basic updates to reflect
developments in climate science, methods to provide context for the
impacts associated with GHG emissions, analysis of indirect effects,
programmatic approaches, and environmental justice considerations. This
guidance is applicable to all Federal actions subject to NEPA, with a
focus on those for which an environmental assessment or environmental
impact statement is prepared.\20\ This guidance does not--and cannot--
expand the range of Federal agency actions that are subject to
NEPA.\21\
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\19\ This updated guidance is also consistent with E.O.s 13990,
14008, and 14057, which set forth commitments to address climate
change; direct that Federal infrastructure investment reduce climate
pollution; and that Federal permitting decisions consider the
effects of GHG emissions and climate change. See E.O. 13990, 86 FR
7037 (Jan. 25, 2021); E.O. 14008, supra note 7; E.O. 14057, supra
note 7.
\20\ Notwithstanding this focus, where appropriate, agencies
also should apply this guidance to consider climate impacts and GHG
emissions in establishing new categorical exclusions (CEs) and
extraordinary circumstances in their agency NEPA procedures. See 40
CFR 1507.3(e)(2)(ii); CEQ, Final Guidance for Federal Departments
and Agencies on Establishing, Applying, and Revising Categorical
Exclusions Under the National Environmental Policy Act, 75 FR 75628
(Dec. 6, 2010).
\21\ See 40 CFR 1508.1(q).
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[[Page 1199]]
A. NEPA
NEPA is designed to promote consideration of potential effects on
the human environment \22\ that would result from proposed Federal
agency actions, and to provide the public and decision makers with
useful information regarding reasonable alternatives \23\ and
mitigation measures to improve the environmental outcomes of Federal
agency actions. NEPA encourages early planning, ensures that the
environmental effects of proposed actions are considered before
decisions are made, and informs the public of significant environmental
effects of proposed Federal agency actions, promoting transparency and
accountability.\24\
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\22\ 42 U.S.C. 4331(a) (``[R]ecognizing the profound impact of
[human] activity on the interrelations of all components of the
natural environment . . . .'').
\23\ 40 CFR 1501.9(e)(2) (``Alternatives, which include the no
action alternative; other reasonable courses of action; and
mitigation measures (not in the proposed action).'').
\24\ See 42 U.S.C. 4332 and 40 CFR 1501.2.
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Agencies implement NEPA through one of three levels of analysis: a
categorical exclusion (CE); an environmental assessment (EA); or an
environmental impact statement (EIS). Agencies have discretion in how
they tailor their individual NEPA reviews in consideration of this
guidance, consistent with the CEQ Regulations and their respective
implementing procedures and policies.\25\ NEPA reviews should identify
measures to avoid, minimize, or mitigate adverse effects of Federal
agency actions.\26\ Better analysis and informed decisions are the
ultimate goal of the NEPA process.\27\ Inherent in NEPA and the CEQ
Regulations is a ``rule of reason'' that allows agencies to determine,
based on their expertise and experience, how to consider an
environmental effect and prepare an analysis based on the available
information. The usefulness of that information to the decision-making
process and the public, and the extent of the anticipated environmental
consequences, are important factors to consider when applying that
``rule of reason.''
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\25\ See 40 CFR 1502.23 (methodology and scientific accuracy).
\26\ 40 CFR 1505.2(a)(3).
\27\ 40 CFR 1500.1(a) (``NEPA's purpose is . . . to provide for
informed decision making and foster excellent action.'').
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B. Climate Change
Climate change is a defining national and global environmental
challenge of this time, threatening broad and potentially catastrophic
impacts to the human environment. It is well established that rising
global atmospheric GHG concentrations are substantially affecting the
Earth's climate, and that the dramatic observed increases in GHG
concentrations since 1750 are unequivocally caused by human activities
including fossil fuel combustion.\28\ CEQ's first Annual Report in 1970
discussed the various ways that human-driven actions were understood to
potentially alter global temperatures and weather patterns.\29\ At that
time, the mean level of atmospheric carbon dioxide (CO2) had
been measured as increasing to 325 parts per million (ppm) from a pre-
Industrial average of 280 ppm.\30\ Since 1970, the global average
concentration of atmospheric CO2 has increased to 414.21 ppm
as of 2021, setting a new record high.\31\ Methane is a potent GHG;
over a 100-year period, the emissions of a ton of methane contribute 28
to 36 times as much to global warming as a ton of carbon dioxide. Over
a 20-year timeframe, methane is about 84 times as potent as carbon
dioxide.\32\ Concentrations of methane (CH4), have more than
doubled from pre-Industrial levels.\33\ Methane concentrations continue
to grow rapidly.\34\ Concentrations of other GHGs have similarly
continued to grow, including nitrous oxide (N2O) and
hydrofluorocarbons (HFC).\35\ Since the publication of CEQ's first
Annual Report, human activities have caused the carbon dioxide content
of the atmosphere of our planet to increase to
[[Page 1200]]
its highest level in at least 800,000 years.\36\
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\28\ See, e.g., Intergovernmental Panel on Climate Change
(IPCC), Climate Change 2021: The Physical Science Basis (``The
Physical Science Basis''), Summary for Policymakers, SPM-5 (Aug. 7,
2021), https://www.ipcc.ch/report/ar6/wg1/chapter/summary-for-policymakers/ (``Observed increases in well-mixed greenhouse gas
(GHG) concentrations since around 1750 are unequivocally caused by
human activities''); see also id., Technical Summary, TS-45, https://www.ipcc.ch/report/ar6/wg1/chapter/technical-summary/; United
States Global Change Research Program (``USGCRP''), Fourth National
Climate Assessment (``Fourth National Climate Assessment''), Volume
II: Impacts, Risks, and Adaptation in the United States, 76 (2018),
https://nca2018.globalchange.gov/ (``Many lines of evidence
demonstrate that human activities, especially emissions of
greenhouse gases from fossil fuel combustion, deforestation, and
land-use change, are primarily responsible for the climate changes
observed in the industrial era, especially over the last six
decades''); IPCC, Climate Change 2014 Synthesis Report, 46 (2014),
https://www.ipcc.ch/site/assets/uploads/2018/05/SYR_AR5_FINAL_full_wcover.pdf (``Emissions of CO2 from
fossil fuel combustion and industrial processes contributed about
78% of the total GHG emissions increase from 1970 to 2010, with a
similar percentage contribution for the increase during the period
2000 to 2010 (high confidence).''). These conclusions are built upon
a robust scientific record that has been created with substantial
contributions from the USGCRP, which informs the United States'
response to global climate change through coordinated Federal
programs of research, education, communication, and decision
support. See section 103, Public Law 101-606, 104 Stat. 3096. For
additional information on the USGCRP, visit http://www.globalchange.gov. The USGCRP, formerly the Climate Change
Science Program, coordinates and integrates the activities of 13
Federal agencies that conduct research on changes in the global
environment and their implications for society. The USGCRP began as
a Presidential initiative in 1989 and was codified in the Global
Change Research Act of 1990 (Pub. L. 101-606). USGCRP-participating
agencies are the Departments of Agriculture, Commerce, Defense,
Energy, the Interior, Health and Human Services, State, and
Transportation; the U.S. Agency for International Development, the
Environmental Protection Agency, NASA, the National Science
Foundation, and the Smithsonian Institution.
\29\ See CEQ, Environmental Quality: The First Annual Report, 93
(Aug. 1970), https://ceq.doe.gov/ceq-reports/annual_environmental_quality_reports.html.
\30\ See USGCRP, Climate Change Impacts in the United States:
The Third National Climate Assessment, Appendix 3: Climate Science
Supplement, 739 (J.M. Melillo et al. eds., 2014) (``Third National
Climate Assessment''), U.S. Env't Protection Agency (EPA), EPA 430-
R-15-004, Inventory of U.S. Greenhouse Gas Emissions and Sinks,
1990-2013 (Apr. 2015), https://www.epa.gov/sites/default/files/2015-12/documents/us-ghg-inventory-2015-main-text.pdf; see also D.L.
Hartmann et al., Observations: Atmosphere and Surface, in Climate
Change 2013: The Physical Science Basis. Contribution of Working
Group I to the Fifth Assessment Report of the Intergovernmental
Panel on Climate Change (T.F. Stocker et al. eds., Cambridge Univ.
Press 2013), https://archive.ipcc.ch/pdf/assessment-report/ar5/wg1/WG1AR5_Chapter02_FINAL.pdf.
\31\ Nat'l Oceanic and Atmospheric Admin. (NOAA), Climate
Change: Atmospheric Carbon Dioxide (June 23, 2022), https://www.climate.gov/news-features/understanding-climate/climate-change-atmospheric-carbon-dioxide.
\32\ Although there are different ways to weight methane
compared to carbon dioxide, the U.S. nationally determined
contribution (NDC) under the Paris Agreement uses the 100-year GWP
from the IPCC's Fifth Assessment Report. See IPCC, Climate Change
2014 Synthesis Report, supra note 28, at 5. To avoid potential
ambiguity, CEQ encourages agencies to use the 100-year GWP when
disclosing the GHG emissions impact from an action in their NEPA
documents.
\33\ See EPA, Proposed Rule on Standards of Performance for New,
Reconstructed, and Modified Sources and Emissions Guidelines for
Existing Sources: Oil and Natural Gas Sector Climate Review, 86 FR
63110, 63114 (Nov. 15, 2021), https://www.federalregister.gov/d/2021-24202; see also Climate and Clean Air Coalition and United
Nations Environment Programme (UNEP), Global Methane Assessment, 18
(2021), https://www.ccacoalition.org/en/resources/global-methane-assessment-full-report; USGCRP, Fourth National Climate Assessment,
supra note 28, Volume I, 82. Methane emissions are responsible for
about 20 percent of climate forcing globally. See California Air
Resources Board, Short-Lived Climate Pollutant Reduction Strategy, 7
(Mar. 2017), https://ww2.arb.ca.gov/sites/default/files/2020-07/final_SLCP_strategy.pdf.
\34\ See, e.g., NOAA, Increase in atmospheric methane set
another record during 2021 (Apr. 7, 2022), https://www.noaa.gov/news-release/increase-in-atmospheric-methane-set-another-record-during-2021.
\35\ See USGCRP, Fourth National Climate Assessment, supra note
28, Volume I, 81 (Figure 2.5).
\36\ See Nat'l Aeronautics and Space Admin. (NASA) Earth
Observatory, The Carbon Cycle (June 16, 2011), http://earthobservatory.nasa.gov/Features/CarbonCycle; Univ. of Cal.
Riverside, NASA, and Riverside Unified School District, Down to
Earth Climate Change, http://globalclimate.ucr.edu/resources.html;
USGCRP, Fourth National Climate Assessment, supra note 28, Volume
II, 1454.
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Rising GHG levels are causing corresponding increases in average
global temperatures and in the frequency and severity of natural
disasters including storms, flooding, and wildfires.\37\ Even if the
United States and the world meet ambitious de-carbonization targets,
those trends will continue for many years, adversely affecting critical
components of the human environment, including water availability,
ocean acidity, sea-level rise, ecosystem functions, biodiversity,
energy production, energy transmission and distribution, agriculture
and food security, air quality, and human health.\38\
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\37\ See IPCC, Climate Change 2022: Impacts, Adaptation, and
Vulnerability (``Climate Change 2022''), Summary for Policymakers, 8
(H.-O. P[ouml]rtner et al. eds., 2022), https://www.ipcc.ch/report/sixth-assessment-report-working-group-ii/; USGCRP, Fourth National
Climate Assessment, supra note 28, Climate Science Special Report,
Chapter 7, 207, https://science2017.globalchange.gov/downloads/CSSR_Ch7_Precipitation.pdf; NOAA, Climate Change Increased Chances
of Record Rains in Louisiana by at Least 40 Percent (Sept. 7, 2016,
https://www.noaa.gov/media-release/climate-change-increased-chances-of-record-rains-in-louisiana-by-at-least-40-percent.
\38\ See USGCRP, Fourth National Climate Assessment, supra note
28; IPCC, Special Report on the Ocean and Cryosphere in a Changing
Climate, (H.-O. Portner et al., eds., 2019), https://www.ipcc.ch/srocc/; IPCC, Special Report on Climate Change and Land, (P.R.
Shukla et al., eds., 2019), https://www.ipcc.ch/srccl/; see also
USGCRP, http://www.globalchange.gov; 40 CFR 1508.1(g)(4) (``effects
include ecological (such as the effects on natural resources and on
the components, structures, and functioning of affected ecosystems),
aesthetic, historic, cultural, economic, social, or health''
effects); USGCRP, The Impacts of Climate Change on Human Health in
the United States: A Scientific Assessment (2016), https://health2016.globalchange.gov/.
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Based primarily on the scientific assessments of the U.S. Global
Change Research Program (USGCRP), the National Research Council, and
the Intergovernmental Panel on Climate Change (IPCC), in 2009 the
Environmental Protection Agency (EPA) issued a finding that declared
that the changes in our climate caused by elevated concentrations of
GHGs in the atmosphere are reasonably anticipated to endanger the
public health and welfare of current and future generations.\39\ Since
then, EPA has acknowledged more recent scientific assessments that
highlight the urgency of addressing the rising concentration of GHGs in
the atmosphere \40\ and has found that certain communities, including
communities of color, low-income communities, Tribal Nations and
Indigenous communities, are especially vulnerable to climate-related
effects.\41\ Climate change also is likely to increase a community's
vulnerability to other environmental impacts, further exacerbating
environmental justice concerns. The effects of climate change observed
to date and projected to occur in the future include more frequent and
intense heat waves, longer fire seasons and more severe wildfires,
degraded air quality, increased drought, greater sea-level rise, an
increase in the intensity and frequency of extreme weather events, harm
to water resources, harm to agriculture, ocean acidification, and harm
to wildlife and ecosystems.\42\ The IPCC Assessment Report reinforces
these findings by providing scientific evidence of the impacts of
climate change driven by human-induced GHG emissions, on our
ecosystems, infrastructure, human health, and socioeconomic makeup.\43\
Moreover, the effects of climate change are likely to fall
disproportionately on vulnerable communities, including communities of
color, low-income communities and Tribal Nations and Indigenous
communities with environmental justice concerns.\44\
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\39\ See generally EPA, Endangerment and Cause or Contribute
Findings for Greenhouse Gases Under Section 202(a) of the Clean Air
Act; Final Rule, 74 FR 66496 (Dec. 15, 2009) (noting, for example,
``[t]he evidence concerning how human-induced climate change may
alter extreme weather events also clearly supports a finding of
endangerment, given the serious adverse impacts that can result from
such events and the increase in risk, even if small, of the
occurrence and intensity of events such as hurricanes and floods.
Additionally, public health is expected to be adversely affected by
an increase in the severity of coastal storm events due to rising
sea levels,'' id. at 66497-98).
\40\ See EPA, Final Rule for Phasedown of Hydrofluorocarbons:
Establishing the Allowance Allocation and Trading Program Under the
American Innovation and Manufacturing Act, 86 FR 55124 (Oct. 5,
2021), https://www.federalregister.gov/d/2021-21030.
\41\ See EPA, Final Rule for Carbon Pollution Emission
Guidelines for Existing Stationary Sources Electric Utility
Generating Units, 80 FR 64661, 64647 (Oct. 23, 2015), https://www.federalregister.gov/d/2015-22842 (``[c]ertain groups, including
children, the elderly, and the poor, are most vulnerable to climate-
related effects.'' Recent studies also find that certain
communities, including low-income communities and some communities
of color . . . are disproportionately affected by certain climate
change related impacts--including heat waves, degraded air quality,
and extreme weather events--which are associated with increased
deaths, illnesses, and economic challenges. Studies also find that
climate change poses particular threats to the health, well-being,
and ways of life of indigenous peoples in the U.S.); see also EPA,
EPA 430-R-21-003, Climate Change and Social Vulnerability in the
United States: A Focus on Six Impacts (``Six Impacts'') (Sept.
2021), https://www.epa.gov/system/files/documents/2021-09/climate-vulnerability_september-2021_508.pdf.
\42\ See 80 FR 64647, supra note 41; see also USGCRP, Fourth
National Climate Assessment, supra note 28, Volume II, Chapters 2-12
(Sectors) and Chapters 18-27 (Regions); Thomas R. Knutson et. al.,
Global Projections of Intense Tropical Cyclone Activity for the Late
Twenty-First Century from Dynamical Downscaling of CMIP5/RCP4.5
Scenarios, 7221 (Sep. 15, 2015), https://journals.ametsoc.org/view/journals/clim/28/18/jcli-d-15-0129.1.xml; Ashley E. Payne et. al.,
Responses and Impacts of Atmospheric Rivers to Climate Change, 143,
154 (Mar. 9, 2020), https://www.nature.com/articles/s43017-020-0030-5; IPCC, Climate Change 2022, supra note 37; IPCC, Special Report on
Climate Change and Land, supra note 38, at 270-72; U.S. Nat'l Park
Service (NPS), Wildlife and Climate Change (last updated Dec. 8,
2021), https://www.nps.gov/articles/000/wildlife-climateimpact.htm.
\43\ See IPCC, Climate Change 2022, supra note 37, Summary for
Policymakers.
\44\ See, e.g., EPA, Six Impacts, supra note 41.
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IV. Quantifying, Disclosing, and Contextualizing Climate Impacts, and
Addressing the Potential Climate Change Effects of Proposed Federal
Actions
Consistent with section 102(2)(C) of NEPA, Federal agencies must
disclose and consider the reasonably foreseeable effects of their
proposed actions including the extent to which a proposed action and
its reasonable alternatives (including the no action alternative) would
result in reasonably foreseeable GHG emissions that contribute to
climate change. Federal agencies also should consider the ways in which
a changing climate may impact the proposed action and its reasonable
alternatives, and change the action's environmental effects over the
lifetime of those effects.
This guidance is intended to assist agencies in disclosing and
considering the effects of GHG emissions and climate change. This
guidance does not establish any particular quantity of GHG emissions as
``significantly'' affecting the quality of the human environment.
However, quantifying a proposed action's reasonably foreseeable GHG
emissions whenever possible, and placing those emissions in appropriate
context are important components of analyzing a proposed action's
reasonably foreseeable climate change effects.
This section of the guidance identifies and explains the following
steps agencies should take when analyzing a proposed action's climate
change effects under NEPA:
(1) Quantify the reasonably foreseeable GHG emissions (including
direct and indirect emissions) of a proposed action, the no action
alternative, and any reasonable alternatives as discussed in Section
IV(A) below.
[[Page 1201]]
(2) Disclose and provide context for the GHG emissions and climate
impacts associated with a proposed action and alternatives, including
by, as relevant, monetizing climate damages using estimates of the SC-
GHG, placing emissions in the context of relevant climate action goals
and commitments, and providing common equivalents, as described below
in Section IV(B).
(3) Analyze reasonable alternatives, including those that would
reduce GHG emissions relative to baseline conditions, and identify
available mitigation measures to avoid, minimize, or compensate for
climate effects.
A. Quantifying a Proposed Action's GHG Emissions
To ensure that Federal agencies consider the incremental
contribution of their actions to climate change, agencies should
quantify the reasonably foreseeable direct and indirect GHG emissions
of their proposed actions and reasonable alternatives (as well as the
no-action alternative) and provide additional context to describe the
effects associated with those projected emissions in NEPA analysis.\45\
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\45\ See 40 CFR 1502.16.
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Climate change results from an increase in atmospheric GHG
concentrations from the incremental addition of GHG emissions from a
vast multitude of individual sources.\46\ The totality of climate
change impacts is not attributable to any single action, but is
exacerbated by a series of actions including actions taken pursuant to
decisions of the Federal Government. Therefore, it is crucial for the
Federal Government to analyze and consider the potential climate change
effects of its proposed actions.\47\
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\46\ Some sources emit GHGs in quantities that are orders of
magnitude greater than others. See EPA, Greenhouse Gas Reporting
Program, 2021 Reported Data, Figure 1: Direct GHG Emissions Reported
by Sector (2021), https://www.epa.gov/ghgreporting/ghgrp-reported-data (showing amounts of GHG emissions by sector).
\47\ In addition to NEPA's requirement to describe the
environmental impacts of the proposed action and any adverse
environmental effects that cannot be avoided should the proposal be
implemented, 42 U.S.C. 4332(2)(C)), NEPA also articulates a policy
to use all practicable means and measures ``to foster and promote
the general welfare, to create and maintain conditions under which
[humans] and nature can exist in productive harmony, and fulfill the
social, economic, and other requirements of present and future
generations of Americans,'' including by ``attain[ing] the widest
range of beneficial uses of the environment without degradation,
risk to health or safety, or other undesirable and unintended
consequences.'' 42 U.S.C. 4331(a)-(b).
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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. Such a statement merely notes the nature
of the climate change challenge, and is not a useful basis for deciding
whether or to what extent to consider climate change effects under
NEPA. Moreover, such comparisons and fractions also are not an
appropriate method for characterizing the extent of a proposed action's
and its alternatives' contributions to climate change because this
approach does not reveal anything beyond the nature of the climate
change challenge itself--the fact that diverse individual sources of
emissions each make a relatively small addition to global atmospheric
GHG concentrations that collectively have a large effect.
Therefore, when considering GHG emissions and their significance,
agencies should use appropriate tools and methodologies to quantify GHG
emissions, compare GHG emission quantities across alternative scenarios
(including the no action alternative), and place emissions in relevant
context, including how they relate to climate action commitments and
goals. This approach allows an agency to present the environmental and
public health effects of a proposed action in clear terms and with
sufficient information to make a reasoned choice between no action and
other alternatives and appropriate mitigation measures. This approach
will also ensure the professional and scientific integrity of the NEPA
review.\48\
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\48\ See 40 CFR 1502.23 (requiring agencies to ensure the
professional and scientific integrity of the discussions and
analyses in environmental impact statements).
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As part of the NEPA documents they prepare, agencies should
quantify the reasonably foreseeable gross GHG emissions increases and
gross GHG emission reductions \49\ for the proposed action, no action
alternative, and any reasonable alternatives over their projected
lifetime, using reasonably available information and data.\50\ Agencies
generally should quantify gross emissions increases or reductions
(including both direct and indirect emissions) individually by GHG, as
well as aggregated in terms of total CO2 equivalence \51\ by
factoring in each pollutant's global warming potential (GWP), using the
best available science and data.\52\ Agencies also should quantify
proposed actions' total net GHG emissions or reductions \53\ (both by
pollutant and by total CO2-equivalent emissions) relative to
baseline conditions.\54\ To facilitate readability, agencies should
include an overview of this information in the summary sections of EISs
and, when relevant, in the summary section of EAs. Agencies also may
use visual tools, such as charts and figures, to help readers more
easily comprehend emissions data and compare emissions across
alternatives.
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\49\ Note that agencies should be guided by a rule of reason and
the concept of proportionality in undertaking this analysis,
particularly for proposed actions with net beneficial climate
effects, as described in Section IV(A).
\50\ See, e.g., Sierra Club v. Fed. Energy Regul. Comm'n, 867
F.3d 1357, 1374 (D.C. Cir. 2017); San Juan Citizens Alliance v.
Bureau of Land Mgmt., 326 F. Supp. 3d 1227, 1241-44 (D.N.M. 2018);
see generally Scientists' Inst. for Pub. Info., Inc. v. Atomic
Energy Comm'n, 481 F.2d 1079, 1092 (D.C. Cir 1973) (``Reasonable
forecasting and speculation is thus implicit in NEPA, and we must
reject any attempt by agencies to shirk their responsibilities under
NEPA by labeling any and all discussion of future environmental
effects as `crystal ball inquiry.' '').
\51\ This is typically expressed in metric tons of
CO2 equivalent, or mt CO2-e.
\52\ As discussed above, methane is a potent GHG. See supra note
32.
\53\ Net emissions can be calculated by totaling gross emissions
(all reasonably foreseeable direct and indirect GHG emissions from
the proposed action) and subtracting any gross emissions reductions
from the proposed action, such as renewable energy generation that
will displace more carbon intensive energy sources or the addition
of carbon sinks. The resulting net value may be either a net
increase in total GHG emissions or a net decrease in emissions. In
rare circumstances, agencies should consider whether a significant
delay between increased emissions and decreased emissions could
undermine the value of a net emissions calculation as a metric of
climate impact.
\54\ See infra section IV(D).
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Where feasible, agencies should also present annual GHG emission
increases or reductions. This is particularly important where a
proposed action presents both reasonably foreseeable GHG emission
increases and GHG emission reductions. The agency generally should
present annual GHG emissions increases or reductions, as well as net
GHG emissions over the projected lifetime of the action, consistent
with existing best practices.\55\ Agencies should be guided by a rule
of reason and the concept of proportionality in undertaking this
analysis, particularly for proposed actions with net beneficial climate
effects, as described below.
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\55\ For example, certain types of actions may involve
construction emissions in their first year or two, followed by
operational emissions increases in a few years prior to achieving
net emissions reductions in later years.
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Quantification and assessment tools are widely available and are
already in broad use in the Federal Government and private sector, by
state and local governments, and globally. CEQ maintains a GHG
Accounting Tools website listing many such tools.\56\ These tools are
designed to assist agencies, institutions, organizations, and companies
that have different levels of
[[Page 1202]]
technical sophistication, data availability, and GHG source profiles.
Agencies should use tools that reflect the best available science and
data. These tools can provide GHG emissions estimates, including
emissions from fossil fuel combustion and carbon sequestration \57\ for
many of the sources and sinks potentially affected by proposed resource
management actions.\58\ When considering which tools to employ, it is
important to consider the proposed action's temporal scale and the
availability of input data.\59\ Furthermore, agencies should seek to
obtain the information needed to quantify GHG emissions, including by
requesting or requiring information held by project applicants or by
conducting modeling when relevant.
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\56\ See CEQ, GHG Tools and Resources, https://ceq.doe.gov/guidance/ghg-tools-and-resources.html.
\57\ Carbon sequestration is the long-term carbon storage in
plants, soils, geologic formations, and oceans.
\58\ For example, the U.S. Department of Agriculture's (USDA's)
Forest Inventory and Analysis tool can be used to assess the carbon
sequestration of existing forestry activities along with the
reduction in carbon sequestration (emissions) of project-level
activities. See USDA, Forest Inventory Data & Tools (FIA), https://www.fs.usda.gov/research/products/dataandtools/forestinventorydata.
\59\ See 40 CFR 1502.21.
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In the rare instance when an agency determines that tools,
methodologies, or data inputs are not reasonably available to quantify
GHG emissions associated with a specific action, the agency should
explain why such an analysis cannot be done, and should seek to present
a reasonable estimated range of quantitative emissions for the proposed
action and alternatives. Where tools are available for some aspects of
the analysis but not others, agencies should use all reasonably
available tools and describe any relevant limitations. Agencies are
encouraged to identify and communicate any data or tool gaps that they
encounter to CEQ.
If an agency determines that it cannot provide even a reasonable
range of potential GHG emissions, the agency should provide a
qualitative analysis and its rationale for determining that a
quantitative analysis is not possible. A qualitative analysis may
include sector-specific descriptions of the GHG emissions from the
category of Federal agency action that is the subject of the NEPA
analysis, but should seek to provide additional context for potential
resulting emissions.
Agencies should be guided by the rule of reason, as well as their
expertise and experience, in conducting analysis commensurate with the
quantity of projected GHG emissions and using GHG quantification tools
suitable for the proposed action.\60\ The rule of reason and the
concept of proportionality caution against providing an in-depth
analysis of emissions regardless of the insignificance of the quantity
of GHG emissions that the proposed action would cause. For example,
some proposed actions may involve net GHG emission reductions or no net
GHG increase, such as certain infrastructure or renewable energy
projects. For such actions, agencies should generally quantify
projected GHG emission reductions, but may apply the rule of reason
when determining the appropriate depth of analysis such that precision
regarding emission reduction benefits does not come at the expense of
efficient and accessible analysis. Absent exceptional circumstances,
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. As a second example, actions with only small
GHG emissions may be able to rely on less detailed emissions estimates.
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\60\ See 40 CFR 1502.2(b) (environmental impact statements shall
discuss impacts in proportion to their significance); 40 CFR 1502.15
(data and analyses in a statement shall be commensurate with the
importance of the impact).
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B. Disclosing and Providing Context for a Proposed Action's GHG
Emissions and Climate Effects
In addition to quantifying emissions as described in Section IV(A),
agencies should disclose and provide context for GHG emissions and
climate effects to help decision makers and the public understand
proposed actions' potential GHG emissions and climate change effects.
To disclose effects and provide additional context for proposed
actions' emissions once GHG emissions have been estimated, agencies
should use the following best practices, as relevant:
(1) In most circumstances, once agencies have quantified GHG
emissions, they should apply the best available estimates of the SC-GHG
\61\ to the incremental metric tons of each individual type of GHG
emissions \62\ expected from a proposed action and its
alternatives.\63\ SC-GHG estimates allow monetization (presented in
U.S. dollars) of the climate change effects from the marginal or
incremental emission of GHG emissions, including carbon dioxide,
methane, and nitrous oxide.\64\ These 3 GHGs represent more than 97
percent of U.S. GHG emissions.\65\ The SC-GHG provides an appropriate
and valuable metric that gives decision makers and the public useful
information and context about a proposed action's climate effects even
if no other costs or benefits are monetized, because metric tons of
GHGs can be difficult to understand and assess the significance of in
the abstract.\66\ The SC-GHG translates metric tons of emissions into
the familiar unit of dollars, allows for comparisons to other monetized
values, and estimates the damages associated with GHG emissions over
time and associated with different GHG pollutants.\67\ The SC-GHG also
can
[[Page 1203]]
assist agencies and the public in assessing the significance of climate
impacts. This is a simple and straightforward calculation that should
not require additional time or resources.
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\61\ The SC-GHG estimates provide an aggregated monetary measure
(in U.S. dollars) of the future stream of damages associated with an
incremental metric ton of emissions and associated physical damages
(e.g., temperature increase, sea-level rise, infrastructure damage,
human health effects) in a particular year. The ``Technical Support
Document: Social Cost of Carbon, Methane, and Nitrous Oxide Interim
Estimates under Executive Order 13990'' released by the Interagency
Working Group on Social Cost of Greenhouse Gases (IWG SC-GHG) in
February 2021 presents interim estimates of the social cost of
carbon, methane, and nitrous oxide, which are the same as those
developed by the IWG in 2013 and 2016 (updated to 2020 dollars). See
IWG SC-GHG, U.S. Gov't, Technical Support Document: Social Cost of
Carbon, Methane, and Nitrous Oxide Interim Estimates under Executive
Order 13990 (Feb. 2021), https://www.whitehouse.gov/wp-content/uploads/2021/02/TechnicalSupportDocument_SocialCostofCarbonMethaneNitrousOxide.pdf.
The Technical Support Document notes that estimates of the SC-GHG
have been used in NEPA analysis.
\62\ Note that applying the specific social cost of each
individual GHG to the quantifications of that GHG is more accurate
than transforming the gases into CO2-equivalents and then
multiplying the CO2-equivalents by the social cost of
CO2. See IWG SC-GHG, U.S. Gov't, Addendum to Technical
Support Document on Social Cost of Carbon for Regulatory Impact
Analysis under Executive Order 12866: Application of the Methodology
to Estimate the Social Cost of Methane and the Social Cost of
Nitrous Oxide, 2 (Aug. 2016), https://www.epa.gov/sites/default/files/2016-12/documents/addendum_to_sc-ghg_tsd_august_2016.pdf.
\63\ See IWG SC-GHG, Technical Support Document, supra note 61.
Agencies should typically apply the best available estimates of the
SC-GHG to the incremental metric tons of GHG emissions expected from
a proposed action and its alternatives. In uncommon circumstances,
an agency may choose not to do so if doing so would be confusing,
there are no available estimates for the GHG at issue, or,
consistent with the concept of proportionality, an agency does not
produce a quantitative estimate of GHG emissions because the
emissions at issue are de minimis.
\64\ Estimates of SC-HFCs have been developed and are available
for use in NEPA analysis. See, e.g., EPA, Regulatory Impact Analysis
for Phasing Down Production and Consumption of Hydrofluorocarbons
(HFCs) (June 2022), https://www.epa.gov/system/files/documents/2022-07/RIA%20for%20Phasing%20Down%20Production%20and%20Consumption%20of%20Hydrofluorocarbons%20%28HFCs%29.pdf.
\65\ EPA, EPA 430-R-22-003, Inventory of U.S. Greenhouse Gas
Emissions and Sinks, 1990-2020 (Apr. 2022), https://www.epa.gov/system/files/documents/2022-04/us-ghg-inventory-2022-main-text.pdf.
\66\ As described in section VI(F), NEPA does not require a
cost-benefit analysis in which all monetized benefits and costs are
directly compared.
\67\ For example, if alternatives or mitigation strategies would
result in varying emissions or reductions of carbon dioxide,
methane, and nitrous oxide over time, presenting emissions estimates
in metric tons of each gas, or in metric tons of CO2e,
alone cannot fully illustrate the differences in the temporal
pathways of these pollutants' impacts on society. The SC-GHG
estimates can capture these differences when estimating the damages
from the emission of each specific pollutant in a common unit of
measurement, i.e., the U.S. Dollar.
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Certain circumstances may make monetization using the SC-GHG
particularly useful, such as if a NEPA review monetizes other costs and
benefits for the proposed action (see Section VI(F)); if the
alternatives differ in GHG emissions over time or in the type of GHGs
emitted; or if the significance of climate change effects is difficult
to assess or not apparent to the public without monetization. SC-GHG
estimates can help describe the net social costs of increasing GHG
emissions as well as the net social benefits of reducing such
emissions. Given NEPA's mandates to consider worldwide and long-range
environmental problems,\68\ it is most appropriate for agencies to
focus on SC-GHG estimates that capture global climate damages and,
consistent with the best available science, reflect a timespan covering
the vast majority of effects and discount future effects at rates that
consider future generations. It is often also worth affirming that SC-
GHG estimates, including those available at the publication of this
guidance, may be conservative underestimates because various damage
categories (like ocean acidification) are not currently included.
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\68\ See, e.g., NEPA's direction that agencies shall consider
the ``worldwide and long-range character of environmental
problems.'' 42 U.S.C. 4332(2)(F).
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(2) Where helpful to provide context, such as for proposed actions
with relatively large GHG emissions or reductions or that will expand
or perpetuate reliance on GHG-emitting energy sources, agencies should
explain how the proposed action and alternatives would help meet or
detract from achieving relevant climate action goals and commitments,
including Federal goals, international agreements, state or regional
goals, Tribal goals, agency-specific goals, or others as
appropriate.\69\ However, as explained above, 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. Such comparisons and fractions are not an appropriate method
for characterizing the extent of a proposed action's and its
alternatives' contributions to climate change. Agencies also should
discuss whether and to what extent the proposal's reasonably
foreseeable GHG emissions are consistent with GHG reduction goals, such
as those reflected in the U.S. nationally determined contribution under
the Paris Agreement. Federal planning documents that illustrate multi-
decade pathways to achieve policy may also provide useful information,
such as the Long-Term Strategy of the United States: Pathways to Net-
Zero Greenhouse Gas Emissions by 2050.\70\ Similarly, agencies' own
climate goals may provide relevant context. Evaluating a proposed
action's and its alternatives' consistency with such goals and
commitments can help illuminate the policy context, the importance of
considering alternatives and mitigation, and tradeoffs of the decision
and help agencies evaluate the significance of a proposed action's GHG
emissions and climate change effects. This type of comparison provides
a different kind of disclosure and context than that provided by
application of SC-GHG estimates as described above, demonstrating the
potential utility of multiple contextualization methods.
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\69\ For example, the U.S. Department of the Interior's Bureau
of Land Management (BLM) has discussed how agency actions in
California, especially joint projects with the State, may or may not
facilitate California reaching its GHG emission reduction goals,
including goals under the State's Assembly Bill 32 (Global Warming
Solutions Act) and related legislation. See, e.g., BLM, Desert
Renewable Energy Conservation Plan Proposed Land Use Plan Amendment
and Final Environmental Impact Statement, Vol. I, section I.3.3.2,
12 (Oct. 2015), https://eplanning.blm.gov/public_projects/lup/66459/20012403/250016887/I.3_Planning_Process.pdf; see also 40 CFR
1506.2(d) (directing agencies to discuss any inconsistency of a
proposed action with an approved State, Tribal, or local plan or
law); BLM, Environmental Assessment for Oberon Renewable Energy
Project, 33-34 (Aug. 2021), https://eplanning.blm.gov/public_projects/2001226/200478716/20043975/250050165/Environmental%20Assessment%201-Main%20Text.pdf.
\70\ U.S. Dep't of State (DOS) & U.S. Exec. Off. of the
President (EOP), The Long-Term Strategy of the United States:
Pathways to Net-Zero Greenhouse Gas Emissions by 2050 (Nov. 2021),
https://www.whitehouse.gov/wp-content/uploads/2021/10/US-Long-Term-Strategy.pdf.
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(3) Where relevant, agencies should summarize and cite to available
scientific literature to help explain the real-world effects--including
those that will be experienced locally in relation to the proposed
action--associated with an increase in GHG emissions that contribute to
climate change, such as sea-level rise, temperature changes, ocean
acidity, and more frequent and severe wildfires and drought, and human
health effects (including to underserved populations).\71\ Agencies
should use the best available information, including scenarios and
climate modeling information that are most relevant to a proposed
action.\72\
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\71\ For example, see the scientific studies referenced in
section III(B).
\72\ In addition, newer tools or modelling may enable agencies
in some cases to provide information on localized or ``downscaled''
climate effects in addition to global effects. See, e.g., Romany M.
Webb et al., Evaluating Climate Risk in NEPA Reviews: Current
Practices and Recommendations for Reform, 29, https://blogs.edf.org/climate411/files/2022/02/Evaluating-Climate-Risk-in-NEPA-Reviews-Full-Report.pdf.
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(4) Agencies also can provide accessible comparisons or equivalents
to help the public and decision makers understand GHG emissions in more
familiar terms. Techniques may include placing a proposed action's GHG
emissions in more familiar metrics such as household emissions per
year, annual average emissions from a certain number of cars on the
road, or gallons of gasoline burned.\73\ Such comparisons may be a
useful supplement and can, for example, be presented along with
monetized damage estimates using SC-GHG values. Agencies should use
disclosure and contextualization methods that best fit their proposed
actions and alternatives.
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\73\ See EPA's equivalency calculator, https://www.epa.gov/energy/greenhouse-gas-equivalencies-calculator.
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C. Reasonable Alternatives
Considering reasonable alternatives, including alternatives that
avoid or mitigate GHG emissions, is fundamental to the NEPA process and
accords with Sections 102(2)(C) and 102(2)(E) of NEPA, which
independently require the consideration of alternatives in
environmental documents.\74\ NEPA calls upon agencies to use the NEPA
process to identify and assess the reasonable alternatives to proposed
actions that will avoid or minimize adverse effects on the human
environment.\75\
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\74\ See 42 U.S.C. 4332(2)(C) and (2)(E).
\75\ See 42 U.S.C. 4332(2)(C)(iii); 40 CFR 1502.1, 1502.14.
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Consideration of alternatives provides an agency decision maker the
information needed to examine other possible approaches to a particular
proposed action (including the no action alternative) that could alter
environmental effects or the balance of factors considered in making
the decision. Agencies make better informed decisions by comparing
relevant GHG emissions, GHG emission reductions, and carbon
sequestration potential across reasonable alternatives, assessing
trade-offs with other environmental values, and evaluating
[[Page 1204]]
the risks from or resilience to climate change inherent in a proposed
action and its design.
Agencies must consider a range of reasonable alternatives, as well
as reasonable mitigation measures if not already included in the
proposed action or alternatives, consistent with the level of NEPA
review (e.g., EA or EIS) and the purpose and need for the proposed
action.\76\ Agencies should leverage the early phases of their existing
planning processes to help identify potential alternatives to address
an action's anticipated environmental effects. When analyzing
alternatives, agencies should compare the anticipated levels of GHG
emissions from each alternative--including the no action alternative--
and mitigation to provide information to the public and enable the
decision maker to make an informed choice. To help provide clarity,
agencies should consider presenting charts, tables, or figures, as
appropriate, to compare GHG emissions and climate effects across
alternatives.
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\76\ See 42 U.S.C. 4332(2)(C), 4332(2)(E), and 40 CFR
1502.14(e), 1501.5(c)(2). The purpose and need for action usually
reflects both the extent of the agency's statutory authority and its
policies.
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Neither 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.
However, and in line with the urgency of the climate crisis, agencies
should use the information provided through the NEPA process to help
inform decisions that align with climate change commitments and goals.
For instance, agencies should evaluate reasonable alternatives that may
have lower GHG emissions, which could include technically and
economically feasible clean energy alternatives to proposed fossil
fuel-related projects, and consider mitigation measures to reduce GHG
emissions to the greatest extent possible.
Where relevant--such as for proposed actions that will generate
substantial GHG emissions--agencies should identify the alternative
with the lowest net GHG emissions or the greatest net climate benefits
among the alternatives they assess. And, as described throughout this
guidance, they should use the NEPA process to make informed decisions
grounded in science that are transparent with respect to how Federal
actions will help meet climate change goals and commitments, or
alternately, detract from them.
D. Baseline for Considering Environmental Effects
A NEPA review must identify the area affected by a proposed action
(i.e., the affected environment).\77\ Identification of the affected
environment includes identifying and describing reasonably foreseeable
environmental trends, including climate change effects. The NEPA review
also must identify the current and projected future state of the
affected environment without the proposed action (i.e., the no action
alternative), which serves as the baseline for considering the effects
of the proposed action and its reasonable alternatives.\78\ For an
estimate of GHG emissions from the proposed action to have meaningful
context, an accurate estimate of GHG emissions without the proposed
action should be included in a NEPA review. The temporal bounds for the
analysis are determined by the projected initiation of the action and
the expected life of the proposed action and its effects.\79\ It is
noteworthy that the impacts of GHGs can be very long-lasting.\80\
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\77\ See 40 CFR 1502.15 (providing that environmental impact
statements shall succinctly describe the environmental impacts on
the area(s) to be affected or created by the alternatives under
consideration).
\78\ See, e.g., CEQ, Memorandum to Agencies: Forty Most Asked
Questions Concerning CEQ's NEPA Regulations, Question 3, ``No-Action
Alternative'' (1986) (``This analysis provides a benchmark, enabling
decisionmakers to compare the magnitude of environmental effects of
the action alternatives'').
\79\ CEQ, Considering Cumulative Effects Under the National
Environmental Policy Act (1997), https://ceq.doe.gov/publications/cumulative_effects.html. Agencies also should consider proposed
actions pursuant to E.O. 13653, Preparing the United States for the
Impacts of Climate Change, 78 FR 66817 (Nov. 6, 2013), which
considers how capital investments will be affected by a changing
climate over time.
\80\ Elevated concentrations of carbon dioxide will persist in
the atmosphere for hundreds or thousands of years, so the earth will
continue to warm in the coming decades. The warmer it gets, the
greater the risk for more severe changes to the climate and the
earth's system. EPA, Impacts of Climate Change, https://www.epa.gov/climatechange-science/impacts-climate-change (last updated Aug. 19,
2022); EPA, Understanding Global Warming Potentials, https://www.epa.gov/ghgemissions/understanding-global-warming-potentials
(last updated May 5, 2022).
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E. Direct and Indirect Effects
NEPA requires agencies to consider the reasonably foreseeable
direct and indirect effects of their proposed actions and reasonable
alternatives (as well as the no-action alternative).\81\ The term
``direct effects'' refers to reasonably foreseeable effects that are
caused by the action and occur at the same time and place.\82\ The term
``indirect effects'' refers to effects that are caused by the action
and are later in time or farther removed in distance, but are still
reasonably foreseeable.\83\ Indirect effects generally include
reasonably foreseeable emissions related to a proposed action that are
upstream or downstream of the activity resulting from the proposed
action.\84\ For example, where the proposed action involves fossil fuel
extraction, direct emissions typically include GHGs emitted during the
process of exploring for and extracting the fossil fuel. The reasonably
foreseeable indirect effects of such an action likely would include
effects associated with the processing, refining, transporting, and
end-use of the fossil fuel being extracted, including combustion of the
resource to produce energy. Indirect emissions \85\ are often
reasonably foreseeable since quantifiable connections frequently exist
between a proposed activity that involves use or conveyance of a
commodity or resource, and changes relating to the production or
consumption of that resource.\86\
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\81\ 42 U.S.C. 4332(2)(C)(i); 40 CFR 1508.1(g).
\82\ 40 CFR 1508.1(g)(1).
\83\ 40 CFR 1508.1(g)(2); see also Birckhead v. Fed. Energy
Regul. Comm'n, 925 F.3d 510, 516 (D.C. Cir. 2019).
\84\ These indirect emissions are sometimes referred to as
``upstream'' or ``downstream emissions,'' described in relation to
where in the causal chain they fall relative to the proposed action.
\85\ As used in this guidance, ``indirect emissions'' refers to
emissions that are indirect effects of the proposed action.
\86\ For example, natural gas pipeline infrastructure creates
the economic conditions for additional natural gas production and
consumption, including both domestically and internationally, which
produce indirect (both upstream and downstream) GHG emissions that
contribute to climate change.
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As discussed in Section IV(A), agencies generally should quantify
all reasonably foreseeable emissions associated with a proposed action
and reasonable alternatives (as well as the no-action alternative).
Quantification should include the reasonably foreseeable direct and
indirect GHG emissions of their proposed actions. Agencies also should
disclose the information and any assumptions used in the analysis and
explain any uncertainty.\87\ In assessing a proposed action's, and
reasonable alternatives', reasonably foreseeable direct and indirect
GHG emissions, the agency should use the best available
information.\88\ As with any NEPA review, the rule of reason should
guide the agency's analysis and the level of
[[Page 1205]]
effort can be proportionate to the scale of the net GHG effects and
whether net effects are positive or negative, with actions resulting in
very few or an overall reduction in GHG emissions generally requiring
less detailed analysis than actions with large emissions.\89\
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\87\ See 40 CFR 1502.21.
\88\ For example, agencies may consider consulting information
available from the U.S. Energy Information Administration, the
International Energy Agency, the Federal Energy Management Program,
or the Department of Energy. See, e.g., U.S. Energy Info. Admin.,
Annual Energy Outlook 2022 (Mar. 3, 2022), https://www.eia.gov/outlooks/aeo/; International Energy Agency (IEA), Net Zero by 2050,
(May 2021), https://www.iea.org/reports/net-zero-by-2050.
\89\ For example, as noted in section (IV)(A)(1), for proposed
actions that involve net GHG emission reductions (such as renewable
energy projects), agencies should attempt to quantify net GHG
emission reductions, but may apply the rule of reason when
determining the appropriate depth of analysis such that precision
regarding emission reduction benefits does not come at the expense
of efficient and accessible analysis.
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Agencies should seek to obtain the information needed to quantify
emissions, including by requesting or requiring information held by
other entities (such as project applicants), because such information
is generally essential to reasoned decision making.\90\ Where
information regarding direct or indirect emissions is not available,
agencies should make best efforts to develop a range of potential
emissions.\91\ Agencies can provide an upper bound for effects analysis
by treating the resource provided or enabled by the actions they take
as new or additional. In the example of fossil fuel extraction or
transportation, this is sometimes referred to as a ``full burn''
assumption, as the agency can provide an upper bound estimate of GHG
emissions by assuming that all of the available resources will be
produced and combusted to create energy.\92\
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\90\ See 40 CFR 1502.21(b); see also Birckhead, 925 F.3d at 520;
Barnes v. U.S. Dep't of Transp., 655 F.3d 1124 (9th Cir. 2011).
Agencies also may consider amendments to their regulations, where
appropriate, to ensure they are able to gather from applicants the
information needed to analyze the climate change effects of proposed
actions.
\91\ See, e.g., Jayni Hein, Jason Schwartz, and Avi Zevin,
Pipeline Approvals and Greenhouse Gas Emissions, 29-30 (Apr. 2019),
discussing availability of tools for quantifying substitution
effects and noting the need for further modeling tool development.
\92\ A full burn assumption is consistent with analyses prepared
by some agencies. See BLM, Environmental Assessment, DOI-BLM-CO-
S010-2011-0074-EA, 81 (2017), https://eplanning.blm.gov/public_projects/nepa/70895/127910/155610/King_II_Lease_Mod_Final_EA_2017-1012.pdf (stating that the agency
``assume[d] that the remaining portion of the maximum year coal to
be shipped . . . is eventually combusted.'').
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Some 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.\93\ Different energy resources emit different amounts of GHGs
and other air pollutants.\94\ For proposed actions involving such
resource substitution considerations, where relevant, CEQ encourages
agencies to conduct substitution analysis to provide more information
on how a proposed action and its alternatives are projected to affect
the resulting resource or energy mix, including resulting GHG
emissions.\95\ Substitution analysis generally is relevant to actions
related to the extraction, transportation, refining, combustion, or
distribution of fossil fuels, for example. Agencies should not simply
assume that if the federal action does not take place, another action
will perfectly substitute for it and generate identical emissions, such
that the action's net emissions relative to the baseline are zero.\96\
Such an assumption of perfect substitution typically contradicts basic
economic principles of supply and demand.\97\ Instead, where relevant,
agencies can use available models to help conduct substitution
analysis.\98\ Agencies should disclose any assumptions and inputs used
in substitution analysis and use models that accurately account for
reasonable and available energy substitute resources, including
renewable energy. Further, the analysis generally should be
complemented with evaluation that compares the proposed action's and
reasonable alternatives' energy use against scenarios or energy use
trends that are consistent with achieving science-based GHG reduction
goals, such as those pursued in the Long-Term Strategy of the United
States.\99\
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\93\ See, e.g., WildEarth Guardians v. BLM., 870 F.3d 1222, 1235
(10th Cir. 2017) (``[W]hen coal carries a higher price, for whatever
reason that may be, the nation burns less coal in favor of other
sources. A force that drives up the cost of coal could thus drive
down coal consumption.''); see also Jayni Hein and Natalie Jacewicz,
Implementing NEPA in the Age of Climate Change, 10 Mich. J. Envtl L.
1, 40-43 (2020) (describing energy substitution analysis and how
agencies can conduct it for NEPA analysis).
\94\ See Hein & Jacewicz, supra note 93, at 42 (citing B.D. Hong
& E.R. Slatick, U.S. Energy Info. Admin., Carbon Dioxide Emission
Factors for Coal, https://www.eia.gov/coal/production/quarterly/co2_article/co2.html).
\95\ See, e.g., Peter Howard, Inst. for Pol'y Integrity, N.Y.U.
Sch. of L., The Bureau of Land Management's Modeling Choice for the
Federal Coal Programmatic Review (June 2016), https://policyintegrity.org/files/publications/BLM_Model_Choice.pdf
(describing multiple power sector models available to Federal
agencies for use in NEPA analysis); see also WildEarth Guardians,
870 F.3d at 1235 (holding that an agency's ``blanket assertion that
coal would be substituted from other sources, unsupported by hard
data, does not provide `information sufficient to permit a reasoned
choice' between the preferred alternative and no action
alternative.'').
\96\ Hein & Jacewicz, supra note 93, at 43-44 (describing the
fallacy of perfect substitution); id. at 51-52 (describing
litigation concerning the Wright Area coal leases).
\97\ See, e.g., WildEarth Guardians, 870 F.3d at 1235-37.
\98\ Available models include the Bureau of Ocean Energy
Management's Revised Market Simulation Model, the U.S. Energy
Information Administration's National Energy Modeling System, and
ICF International's Integrated Planning Model.
\99\ DOS & EOP, supra note 70; see also Hein & Jacewicz, supra
note 93, at 48 (stating, ``[a] far more rational approach would be
to model at least two policy scenarios: one taking the ``constant
demand'' approach, and the other based on fossil fuel consumption
consistent with meeting the 1.5 or 2 degrees Celsius warming targets
laid out in the Paris Accord.'').
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In addition to addressing an action's direct and indirect effects,
NEPA requires agencies to address the effects of ``connected''
actions.\100\ When evaluating a proposed Federal action, agencies
should account for other closely related actions that should be
discussed in the same EIS or EA. Actions are connected if they: (i)
automatically trigger other actions that may require environmental
impact statements; (ii) cannot or will not proceed unless other actions
are taken previously or simultaneously; or (iii) are interdependent
parts of a larger action and depend on the larger action for their
justification.\101\ For example, NEPA reviews for proposed resource
extraction and development projects typically should address the
reasonably foreseeable effects of other closely related agency actions
that authorize separate phases or aspects of development. Depending on
the relationship between any of the phases, as well as the authority
under which they may be carried out, agencies should use the analytical
scope that best informs their decision making.
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\100\ Note that the concepts of ``connected actions'' and
``indirect effects'' bear some similarities but are analytically
distinct. ``Connected actions'' are actions related to a proposed
action that an agency must consider in the same environmental impact
statement. See 40 CFR 1501.9(e)(1). ``Indirect effects'' are not
actions in themselves, but rather reasonably foreseeable effects
that are caused by the proposed action.
\101\ 40 CFR 1501.9(e)(1).
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F. Cumulative Effects
In addition to analyzing a proposed action's direct and indirect
effects, NEPA and CEQ's regulations require an agency to also consider
the proposed action's cumulative effects.\102\ Cumulative effects are
effects on the environment that result from the incremental effects of
the action when added to the effects of other past, present, and
reasonably foreseeable actions regardless of what agency (Federal or
non-Federal) or person undertakes such other actions.\103\ In
evaluating a proposed action's cumulative climate change effects, an
[[Page 1206]]
agency should consider the proposed action in the context of the
emissions from past, present, and reasonably foreseeable actions. When
assessing cumulative effects, agencies should also consider whether
certain communities experience disproportionate cumulative effects,
thereby raising environmental justice concerns.\104\
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\102\ See 40 CFR 1502.16, 1508.1(g)(3).
\103\ 40 CFR 1508.1(g)(3).
\104\ See infra section VI(E).
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All types of GHG emissions contribute to real-world physical
changes. Given that climate change is the result of the increased
global accumulation of GHGs climate effects analysis is inherently
cumulative in nature. Thus, the analysis and public disclosure of
cumulative effects can be accomplished by quantifying GHG emissions and
providing context for understanding their effects as discussed above,
including by monetizing climate damages using estimates of the SC-GHG,
placing those damages in the context of relevant climate action goals
and commitments, and summarizing and citing to available scientific
literature to help explain real world effects.
G. Short- and Long-Term Effects
When considering effects, agencies should take into account both
the short- and long-term adverse and beneficial effects using a
temporal scope that is grounded in the concept of reasonable
foreseeability. Some proposed actions and reasonable alternatives will
require consideration of effects from different stages of the action to
ensure the direct effects and reasonably foreseeable indirect effects
are appropriately assessed; for example, the effects of construction
are different from the effects of the operations and maintenance of a
facility.
The effects analysis should cover the action's reasonably
foreseeable lifetime, including anticipated GHG emissions associated
with construction, operations, and decommissioning. Agencies should
identify an appropriate lifetime for the proposed action using
available indicators and guided by the concept of reasonable
foreseeability.
Identifying an appropriate lifetime for the action also will inform
assessment of long-term emissions benefits of proposed actions and
reasonable alternatives. For example, development of a new wind energy
project may result in short-term construction GHG emissions but overall
long-term GHG benefits. Agencies should describe both short- and long-
term effects in comparison to the no action alternative in NEPA reviews
and clearly explain the net effect of their actions even if precision
regarding the timing of short- and long-term effects is not possible.
H. Mitigation
Identifying and analyzing potential mitigation measures is an
important component of the NEPA process.\105\ Evaluating potential
mitigation measures generally involves first determining whether
impacts from a proposed action or alternatives can be avoided, then
considering whether adverse impacts can be minimized, then, when
impacts are unavoidable, rectifying them and, if appropriate, requiring
compensation for residual impacts.\106\ Mitigation plays a particularly
important role in how agencies should assess the potential climate
change effects of proposed actions and reasonable alternatives.
Agencies should consider mitigation measures that will avoid or reduce
GHG emissions. Given the urgency of the climate crisis, CEQ encourages
agencies to mitigate GHG emissions to the greatest extent possible.
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\105\ See 42 U.S.C. 4332(2)(C) (requiring consideration of
mitigation measures in impact statements by requiring the
consideration of ``any adverse environmental effects which cannot be
avoided'').
\106\ See 40 CFR 1508.1(s), 1501.9(e)(2) (alternatives include
mitigation measures not included in the proposed action); see
generally 10 CFR 900.3 (2019) (identifying ``mitigation hierarchy''
as ``first seeking to avoid, then minimize impacts, then, when
necessary, compensate for residual impacts''); U.S. Fish and
Wildlife Service (FWS) Mitigation Policy (Nov. 21, 2016), https://www.federalregister.gov/d/2016-27751.
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Agencies should consider mitigation, particularly avoidance and
minimization, as early as possible in the development of their actions,
including during scoping, public engagement, and alternatives analysis.
As part of early and meaningful public engagement, agencies should
solicit public input on potential mitigation measures, including from
communities that the proposed action and reasonable alternatives may
affect. In their NEPA documents, agencies should discuss any mitigation
measures considered and whether they included those measures in the
preferred alternative. Where potential mitigation measures are not
adopted, agencies should explain why as early as practicable in the
NEPA process.
Agencies should consider available mitigation measures that avoid,
minimize, or compensate for GHG emissions and climate change effects
when those measures are reasonable and consistent with achieving the
purpose and need for the proposed action. Such mitigation measures
could include enhanced energy efficiency, renewable energy generation
and energy storage, lower-GHG-emitting technology, reduced embodied
carbon in construction materials, carbon capture and sequestration,
sustainable land management practices, and capturing GHG emissions such
as methane.
Federal agencies also should evaluate the quality of that
mitigation by ensuring it meets appropriate performance standards.\107\
Appropriate performance standards help ensure that GHG mitigation is
additional, verifiable, durable, enforceable, and will be
implemented.\108\ NEPA does not limit consideration of mitigation to
actions involving significant effects. However, mitigation can be
particularly effective in helping agencies reduce or avoid significant
effects.\109\ Agencies can discuss the scope of their mitigation
authority to support any mitigation commitments relied upon in NEPA
analysis, including mitigation supporting a finding of no significant
impact.\110\ In addition, consistent with existing agency best
practice, an agency's decision on a proposed action should identify the
mitigation measures that the agency commits to take, recommends, or
requires others to take.\111\
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\107\ See CEQ, Memorandum to Heads of Federal Agencies,
Appropriate Use of Mitigation and Monitoring and Clarifying the
Appropriate Use of Mitigated Findings of No Significant Impact
(``Appropriate Use of Mitigation and FONSI Memo''), 8-9, 76 FR 3843
(Jan. 21, 2011), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.
\108\ See id.; see also U.S. Army Corps of Engineers and EPA,
Final Rule, Compensatory Mitigation for Losses of Aquatic Resources,
73 FR 19593 (Apr. 10, 2008) (discussing verifiable and enforceable
performance standards for mitigation).
\109\ See 40 CFR 1501.6(c).
\110\ See id. (The finding of no significant impact shall state
the authority for any mitigation that the agency has adopted and any
applicable monitoring or enforcement provisions. If the agency finds
no significant impacts based on mitigation, the mitigated finding of
no significant impact shall state any enforceable mitigation
requirements or commitments that will be undertaken to avoid
significant impacts.); see also CEQ, Appropriate Use of Mitigation
and FONSI Memo, supra note 107, at 7 (``Mitigation commitments
needed to lower the level of impacts so that they are not
significant should be clearly described in the mitigated FONSI
document and in any other relevant decision documents related to the
proposed action.'').
\111\ See CEQ, Appropriate Use of Mitigation and FONSI Memo,
supra note 107, at 13-14.
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The CEQ Regulations and guidance also recognize the value of
monitoring to ensure that mitigation is carried out as provided in a
record of decision or finding of no significant impact.\112\ Monitoring
intensity and duration
[[Page 1207]]
should be aligned with the mitigation action taken.
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\112\ See 40 CFR 1505.2(a)(3), 1505.3; see also CEQ, Appropriate
Use of Mitigation and FONSI Memo, supra note 107.
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Finally, while this subsection primarily addresses mitigating a
proposed action's GHG emissions, agencies also should consider
environmental design features, alternatives, and mitigation measures to
address the effects of climate change on the proposed action, including
to enhance resilience and adaptation. See Section IV(D).
I. Special Considerations for Biological GHG Sources and Sinks
Many GHG emissions come from combusting fossil fuels and releasing
substances into the atmosphere.\113\ In addition to these sources, some
GHG emissions are related to the natural carbon cycle,\114\ or result
from the combustion, harvest, decomposition, or other processing of
biologically based materials.\115\ These types of emissions are
referred to as ``biogenic.'' \116\ Biogenic GHG emissions from land
management actions--such as prescribed burning, timber stand
improvements, fuel load reductions, and scheduled harvesting--involve
GHG emissions and carbon sequestration that operate within the global
carbon and nitrogen cycle, which may be affected by those actions.
Similarly, some water management practices have GHG emission
consequences that may require unique consideration (e.g., reservoir
management practices can reduce methane releases, wetlands management
practices can enhance carbon sequestration, and water conservation can
improve energy efficiency).
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\113\ Burning fossil fuels (such as oil, coal, and natural gas),
wood, and other forms of carbon releases stored carbon into the
atmosphere, where it becomes a GHG. GHGs are gases in the atmosphere
that absorb and release heat. Dep't of Energy, Off. of Science, DOE
Explains...the Carbon Cycle, https://www.energy.gov/science/doe-explainsthe-carbon-cycle.
\114\ The carbon cycle is the process that moves carbon between
plants, animals, and microbes; minerals in the earth; and the
atmosphere. Most carbon on Earth is stored in rocks and sediments.
The rest is in the ocean, atmosphere, and in living organisms.
Scientists use the term ``carbon sinks'' to refer to places where
carbon is stored away from the atmosphere. Id.
\115\ Fossil fuels are not considered biologically based
materials. See, e.g., EPA, Framework for Assessing Biogenic
CO2 Emissions from Stationary Sources, 5 (Nov. 2014),
https://www.epa.gov/sites/default/files/2016-08/documents/framework-for-assessing-biogenic-co2-emissions.pdf (``In contrast to the
relatively short timescale of the biological carbon cycle, carbon in
fossil fuel reservoirs, such as coal seams and oil and gas deposits,
was removed from the atmosphere by plants over millions of years but
was not returned to the atmosphere through the natural processes
described above. Instead, because of geologic processes, the carbon
that accumulated in these deposits has been isolated from the active
biological cycling of carbon to and from the atmosphere. Without
human intervention, carbon in fossil fuel reservoirs could remain
isolated from the biogeochemical cycling of carbon long into the
future.'')
\116\ EPA, Carbon Dioxide Emissions Associated with Bioenergy
and Other Biogenic Sources, https://19january2017snapshot.epa.gov/climatechange/carbon-dioxide-emissions-associated-bioenergy-and-other-biogenic-sources_.html; see also Merriam-Webster Dictionary,
Biogenic (Online Ed., last updated Oct. 21, 2022), https://www.merriam-webster.com/dictionary/biogenic (defining ``biogenic''
as ``produced by living organisms'').
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In the land and resource management context, how a proposed action
and reasonable alternatives (as well as the no-action alternative)
affects a net carbon sink or source will depend on multiple factors
such as the local or regional climate and environment, the distribution
of carbon across carbon pools in the action area, ongoing activities
and trends, and the role of natural disturbances in the relevant area.
In NEPA reviews, for actions involving potential changes to
biological GHG sources and sinks, agencies should include a comparison
of net GHG emissions and carbon stock \117\ changes that are
anticipated to occur, with and without implementation of the proposed
action and reasonable alternatives. The analysis should consider the
estimated GHG emissions (from biogenic and fossil-fuel sources), carbon
sequestration potential, and the net change in relevant carbon stocks
in light of the proposed actions and timeframes under consideration,
and explain the basis for the analysis.
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\117\ See, e.g., 10 CFR 300.2 (``Carbon stocks mean the quantity
of carbon stored in biological and physical systems including:
trees, products of harvested trees, agricultural crops, plants, wood
and paper products and other terrestrial biosphere sinks, soils,
oceans, and sedimentary and geological sinks.'').
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Some actions that involve ecosystem restoration \118\ can generate
short-term biogenic emissions while resulting in overall long-term net
reductions of atmospheric GHG concentrations through increases in
carbon stocks or reduced risks of future emissions. One example is
certain vegetation management practices that affect the risk of
wildfire, insect and disease outbreak, or other disturbance. Some
resource management activities, such as a prescribed burn or certain
non-commercial thinning of forests or grasslands conducted to reduce
wildfire risk or insect infestations, might result in short-term GHG
emissions or loss of stored carbon but greater long-term ecosystem
health, including an overall net increase in carbon sequestration and
storage. However, other types of land-use changes, such as permanent
deforestation, can adversely alter ecosystem long-term carbon dynamics,
resulting in net emissions. Agencies can use relevant tools to analyze
the anticipated long-term GHG emissions implications from proposed
ecosystem restoration actions.
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\118\ For example, Federal agencies sometimes consider actions
that would benefit ecosystems by restoring degraded lands or
restoring shoreline.
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Federal land and resource management agencies should consider
developing and maintaining agency-specific principles and guidance for
considering biological carbon in management and planning
decisions.\119\ Such guidance can help address the importance of
considering biogenic carbon fluxes and storage within the context of
other management objectives and ecosystem service goals, and
integrating carbon considerations as part of a balanced and
comprehensive program of sustainable management, climate change
mitigation, and climate change adaptation.
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\119\ See, e.g., USDA Forest Service, Considering Forest and
Grassland Carbon in Land Management (2017), https://www.fs.usda.gov/research/treesearch/54316; see also U.S. Dep't of the Interior,
Order No. 3399, Department-Wide Approach to the Climate Crisis and
Restoring Transparency and Integrity to the Decision-Making Process
(Apr. 16, 2021), https://www.doi.gov/sites/doi.gov/files/elips/documents/so-3399-508_0.pdf.
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V. Considering the Effects of Climate Change on a Proposed Action
According to the USGCRP and others, GHGs already in the atmosphere
will continue altering the climate system into the future, even with
current or future emissions control efforts.\120\ To illustrate how
climate change may impact proposed actions and alternatives and to
consider climate resilience, NEPA reviews should consider the ongoing
impacts of climate change and the foreseeable state of the environment,
especially when evaluating project design, siting, and reasonable
alternatives. In addition, climate change resilience \121\ and
adaptation \122\ are important
[[Page 1208]]
considerations for agencies contemplating and planning actions.\123\
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\120\ See USGCRP, Fourth National Climate Assessment, supra note
28, Chapter 2, Our Changing Climate, https://nca2018.globalchange.gov/chapter/2/.
\121\ Resilience refers to the ability to prepare for and adapt
to changing conditions and withstand and recover rapidly from
disruption. U.S. Dep't of Commerce Nat'l Inst. of Standards and
Tech. (NIST), SP 800-160 Vol. 2, Rev. 1, 76, https://csrc.nist.gov/
glossary/term/resilience#:~:text=with%20mission%20needs.-
,Source(s)%3A,naturally%20occurring%20threats%20or%20incidents.
\122\ Adaptation refers to actions taken at the individual,
local, regional, and national levels to reduce risks from even
today's changed climate conditions and to prepare for impacts from
additional changes projected for the future. USGCRP, Fourth National
Climate Assessment, supra note 28, Chapter 28, Reducing Risks
Through Adaptation Actions, https://nca2018.globalchange.gov/chapter/28/.
\123\ See E.O. 14008, supra note 7 and E.O. 14057, supra note 7.
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A. Affected Environment
Agencies should identify the affected environment to provide a
basis for comparing the current and future state of the environment as
affected by the proposed action or its reasonable alternatives.\124\ As
discussed in Section IV(D), the current and projected future state of
the environment without the proposed action (i.e., the no action
alternative) represents the reasonably foreseeable affected
environment. In considering the effects of climate change on a proposed
action, the agency should describe the affected environment for the
proposed action based on the best available climate change
reports,\125\ which often project at least two possible future
emissions scenarios.\126\ The temporal bounds for the description of
the affected environment are determined by the projected initiation of
implementation and the expected life of the proposed action and its
effects.\127\
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\124\ See 40 CFR 1502.15 (providing that environmental impact
statements shall succinctly describe the environmental impacts on
the area(s) to be affected or created by the alternatives under
consideration). Note, however, that GHG emissions have effects that
are global in scale.
\125\ See, e.g., USGCRP, Fourth National Climate Assessment,
supra note 28 (regional impacts chapters).
\126\ See, e.g., id. (considering a low future global emissions
scenario and a high emissions scenario).
\127\ CEQ, Considering Cumulative Effects Under the National
Environmental Policy Act, supra note 79. Agencies also should
consider their work under relevant executive orders. See E.O. 13990,
supra note 16; E.O. 14008, supra note 7; E.O. 14057, supra note 7.
Note that the effects of GHG emissions by their nature can be very
long-lasting.
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B. Effects
The analysis of climate change effects should focus on those
aspects of the human environment that are impacted by the agency's
potential action (i.e., the proposed action or its alternatives) and
climate change. The analysis also should consider how climate change
can make a resource, ecosystem, human community, or structure more
vulnerable to many types of effects and lessen its resilience to other
environmental effects. This increase in vulnerability can exacerbate
the environmental effects of potential actions, including environmental
justice impacts. For example, a proposed action or its alternatives may
require water from a stream that has diminishing quantities of
available water because of decreased snow pack in the mountains, or add
heat to a water body that is already warming due to increasing
atmospheric temperatures. Such considerations are squarely within the
scope of NEPA and can inform decisions on siting, whether to proceed
with and how to design potential actions and reasonable alternatives,
and to eliminate or mitigate effects exacerbated by climate change.
They also can inform possible adaptation measures to address the
effects of climate change, ultimately enabling the selection of
smarter, more resilient actions.
C. Using Available Assessments and Scenarios To Assess Present and
Future Impacts
In accordance with NEPA's rule of reason and standards for
obtaining information regarding reasonably foreseeable effects on the
human environment, agencies may summarize and incorporate by reference
relevant scientific literature concerning the physical effects of
climate change.\128\ For example, 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.\129\ Particularly relevant to some proposed actions and
reasonable alternatives are the most current reports on climate change
effects on water resources, ecosystems, vulnerable communities,
agriculture and forestry, health, coastlines, and ocean and arctic
regions in the United States.\130\
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\128\ See 40 CFR 1501.12 (material may be incorporated by
reference if it is reasonably available for inspection by
potentially interested persons during public review and comment).
\129\ See USGCRP, Fourth National Climate Assessment, supra note
28; IPCC, The Physical Science Basis, supra note 28.
\130\ See USGCRP, Fourth National Climate Assessment, supra note
28. Agencies should consider the latest final assessments and
reports as they are updated.
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Agencies should remain aware of the evolving body of scientific
information as more refined estimates of the effects of climate change,
both globally and at a localized level, become available.\131\ Agencies
should use the most up-to-date scientific projections available,
identify any methodologies and sources used, and where relevant,
disclose any relevant limitations of studies, climate models, or
projections they rely on.\132\
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\131\ See, e.g., id.
\132\ See 40 CFR 1502.23. Agencies can consult www.data.gov/climate/portals for model data archives, visualization tools, and
downscaling results.
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In addition to considering climate change effects at the relevant
global and national levels, agencies should identify and use
information on future projected GHG emissions scenarios to evaluate
potential future impacts (such as flooding, high winds, extreme heat,
and other climate change-related impacts) and what those impacts will
mean for the physical and other relevant conditions in the affected
area. Such information should help inform development of the proposed
action and alternatives, including by ensuring that proposed actions
and alternatives consider appropriate resilience measures,
environmental justice issues, and existing State, Tribal, or local
adaptation plans. When relying on a single study or projection,
agencies should consider any relevant limitations and discuss
them.\133\
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\133\ Id.
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D. Resilience and Adaptation
As discussed in Section III(B), climate change presents risks to a
wide array of potential actions across a range of sectors. Agencies
should consider climate change effects on the environment and on
proposed actions in assessing vulnerabilities and resilience to the
effects of climate change such as increasing sea level, drought, high
intensity precipitation events, increased fire risk, or ecological
change. Consistent with NEPA, environmental reviews should provide
relevant information that agencies can use to consider siting issues,
the initial project design and consistency with existing State, Tribal,
and local adaptation plans, as well as reasonable alternatives with
preferable overall environmental outcomes and improved resilience to
climate effects.\134\ Climate resilience and adaptation may be
particularly relevant to the description of a proposed action, the
alternatives analysis, and the description of environmental
consequences. For instance, agencies should consider increased risks
associated with development in floodplains, avoiding such development
wherever there is a practicable alternative, as required by Executive
Orders 11988 and 13690.\135\ Agencies also should consider the
likelihood of increased temperatures and more frequent or severe storm
events over the lifetime of the proposed action, and reasonable
alternatives (as well as the
[[Page 1209]]
no-action alternative).\136\ For example, an agency considering a
proposed development of transportation infrastructure on a coastal
barrier island should consider climate change effects on the
environment and, as applicable, consequences of rebuilding where sea
level rise and more intense storms will shorten the projected life of
the project and change its effects on the environment.\137\
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\134\ See 40 CFR 1502.16(a)(5), 1506.2(d).
\135\ See E.O. 11988, Floodplain Management, 42 FR 26951 (May
24, 1977), http://www.archives.gov/federal-register/codification/executive-order/11988.html; E.O. 13690, Establishing a Federal Flood
Risk Management Standard and a Process for Further Soliciting and
Considering Stakeholder Input, 80 FR 6425 (Jan. 30, 2015), https://www.federalregister.gov/d/2015-02379 (reinstated by E.O. 14030,
Climate-Related Financial Risk, 86 FR 27967 (May 20, 2021), https://www.federalregister.gov/d/2021-11168).
\136\ See, e.g., E.O. 14030, supra note 135.
\137\ See U.S. Dep't of Transp., FHWA-HEP-15-007, Assessing
Transportation Vulnerability to Climate Change Synthesis of Lessons
Learned and Methods Applied, Gulf Coast Study, Phase 2 (Oct. 2014),
http://www.fhwa.dot.gov/environment/climate_change/adaptation/ongoing_and_current_research/gulf_coast_study/phase2_task6/fhwahep15007.pdf (focusing on the Mobile, Alabama region); U.S.
Climate Change Science Program, Impacts of Climate Change and
Variability on Transportation Systems and Infrastructure, Gulf Coast
Study, Phase I (Mar. 2008), https://downloads.globalchange.gov/sap/sap4-7/sap4-7-final-all.pdf (focusing on a regional scale in the
central Gulf Coast). Information about the Gulf Coast Study is
available at https://www.fhwa.dot.gov/environment/sustainability/resilience/ongoing_and_current_research/gulf_coast_study/index.cfm;
see also Third National Climate Assessment, supra note 30, Chapter
28, Adaptation, 675, http://nca2014.globalchange.gov/report/response-strategies/adaptation#intro-section-2 (noting that Federal
agencies in particular can facilitate climate adaptation by
``ensuring the establishment of [F]ederal policies that allow for
`flexible' adaptation efforts and take steps to avoid unintended
consequences'').
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Agencies should integrate the NEPA review process with the agency's
planning, siting, and design efforts at the earliest possible time that
would allow for a meaningful analysis.\138\ Agencies may incorporate
information developed during early planning processes that precede a
NEPA review into the NEPA review. Decades of NEPA practice have shown
that integrating environmental considerations with the planning
processes provides useful information that program and project planners
can consider in designing the proposed action, alternatives, and
potential mitigation measures.
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\138\ See 42 U.S.C. 4332 (``agencies of the Federal Government
shall . . . utilize a systematic, interdisciplinary approach which
will insure the integrated use of the natural and social sciences
and the environmental design arts in planning and in decision-
making''); 40 CFR 1501.2 (``Agencies should integrate the NEPA
process with other planning and authorization processes at the
earliest reasonable time. . . .''); see also CEQ, Memorandum for
Heads of Federal Departments and Agencies, Improving the Process for
Preparing Efficient and Timely Environmental Reviews under the
National Environmental Policy Act (``Efficient Environmental
Reviews''), 77 FR 14473 (Mar. 12, 2012), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Improving_NEPA_Efficiencies_06Mar2012.pdf.
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Agencies also may consider co-benefits of the proposed action,
alternatives, and potential mitigation measures for human health,
economic and social stability, ecosystem services, or other benefits
that increase climate change preparedness or resilience. Individual
agency adaptation plans and interagency adaptation strategies, such as
agency Climate Adaptation Plans, the National Fish, Wildlife and Plants
Climate Adaptation Strategy, and the National Action Plan: Priorities
for Managing Freshwater Resources in a Changing Climate, provide other
good examples of the type of relevant and useful information that
agencies can consider.\139\
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\139\ See https://www.sustainability.gov/progress.html for
agency sustainability plans and agency adaptation plans; see also
U.S. Climate Resilience Tool Kit, National Fish, Wildlife, and
Plants Climate Adaptation Strategy, https://toolkit.climate.gov/tool/national-fish-wildlife-and-plants-climate-adaptation-strategy;
Interagency Climate Adaptation Task Force, National Action Plan:
Priorities for Managing Freshwater Resources in a Changing Climate
(Oct. 2011), https://www.epa.gov/sites/default/files/2016-12/documents/2011_national_action_plan_1.pdf; and CEQ, Off. of the
Federal Chief Sustainability Officer, Climate Resilient
Infrastructure and Operations, https://www.sustainability.gov/adaptation/.
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Considering the effects of climate change on a proposed action, and
reasonable alternatives (as well as the no-action alternative), also
helps to develop potential mitigation measures to reduce climate risks
and promote resilience and adaptation. Where the analysis identifies
climate-related risks to a proposed action or to the area affected by
the proposed action, the agency should consider possible resilience and
adaptation measures--including measures consistent with State, Tribal,
or local adaptation plans--that could be employed to manage those
effects. For example, where one or more climate effects could impair
the operation of the proposed action, the agency should identify
possible adaptation measures to enhance the action's climate
resilience. The agency should indicate whether the proposed action
includes measures to adapt to climate change and, if so, describe those
measures and the climate projections that informed them. The agency
also should consider whether any potential measures undertaken to
address a proposed action's climate risk could result in any
undesirable or unintended consequences.\140\
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\140\ See, e.g., Jane Ebinger & Walter Vergara, World Bank,
Climate Impacts on Energy Systems: Key Issues for Energy Sector
Adaptation, 89-90 (2011), https://openknowledge.worldbank.org/bitstream/handle/10986/2271/600510PUB0ID181mpacts09780821386972.pdf?sequence=1&isAllowed=y
(describing the potential for adaptation-related decision errors
including ``maladaptation,'' in which actions are taken that
constrain the ability of other decision makers to manage the impacts
of climate change).
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In addition, agencies should consider their ongoing efforts to
incorporate environmental justice principles into their programs,
policies, actions, and activities, including the environmental justice
strategies required by Executive Orders 12898 and 14008, and consider
whether the effects of climate change in association with the effects
of the proposed action may result in disproportionately high and
adverse effects on communities with environmental justice concerns,
which often include communities of color, low-income communities, and
Tribal Nations and Indigenous communities, in the area affected by the
proposed action.\141\ Federal agencies should identify any communities
with environmental justice concerns, including communities of color,
low-income communities, and Tribal Nations and Indigenous communities,
impacted by the proposed action, and consider how impacts from the
proposed action could potentially amplify climate change-related
hazards such as storm surge, heat waves, drought, flooding, and sea
level change.\142\ Moreover, Executive Order 13985 calls for an all-of-
government approach to advancing equity for underserved populations,
including rural communities and persons with disabilities. Agencies
should meaningfully engage with affected communities regarding their
proposed actions and consider the effects of climate change on
vulnerable communities in designing the action or selection of
alternatives, including alternatives that can reduce disproportionate
effects on such communities. For example, 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
[[Page 1210]]
risk. Increased resilience could minimize such potential future
effects. Finally, considering climate change preparedness and
resilience can help ensure that agencies evaluate the potential for
generating additional GHGs if a project has to be replaced, repaired,
or modified, and minimize the risk of expending additional time and
funds in the future.
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\141\ See infra Section VI(E); E.O. 12898, Federal Actions to
Address Environmental Justice in Minority and Low-Income
Populations, 59 FR 7629 (Feb. 16, 1994), https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf, as amended by
E.O. 14008, supra note 7, section 219 (``Agencies shall make
achieving environmental justice part of their missions by developing
programs, policies, and activities to address the disproportionately
high and adverse human health, environmental, climate-related and
other cumulative impacts on disadvantaged communities, as well as
the accompanying economic challenges of such impacts.''); CEQ,
Environmental Justice Guidance Under the National Environmental
Policy Act (Dec. 1997), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ej/justice.pdf.
\142\ See, e.g., Federal Interagency Working Group on
Environmental Justice & NEPA Committee, Promising Practices for EJ
Methodologies in NEPA Reviews (Mar. 2016), https://www.epa.gov/sites/default/files/2016-08/documents/nepa_promising_practices_document_2016.pdf.
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VI. Traditional NEPA Tools and Practices
A. Scoping and Framing the NEPA Review
Scoping helps agencies integrate decision making, avoid
duplication, and focus NEPA reviews.\143\ In scoping, the agency
determines the issues that the NEPA review will address and identifies
the effects related to the proposed action that the analysis will
consider.\144\ An agency can use the scoping process to help it
determine whether analysis is relevant and, if so, the extent of
analysis appropriate for a proposed action.\145\ When scoping for the
climate change issues associated with the proposed action, and
reasonable alternatives (as well as the no-action alternative), the
nature, location, timeframe, and type of the proposed action and the
extent of its effects will help determine the degree to which to
consider climate projections, including whether climate change
considerations warrant emphasis, detailed analysis, and
disclosure.\146\
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\143\ See 40 CFR 1501.9 (``Agencies shall use an early and open
process to determine the scope of issues for analysis in an
environmental impact statement, including identifying the
significant issues and eliminating from further study non-
significant issues.''); see also CEQ, Efficient Environmental
Reviews, supra note 139 (the CEQ Regulations explicitly require
scoping for preparing an EIS; however, agencies also can take
advantage of scoping whenever preparing an EA).
\144\ See 40 CFR 1500.4(d), 1500.4(i), 1501.9(a) and (e).
\145\ See 40 CFR 1501.9 (The agency preparing the NEPA analysis
must use the scoping process to, among other things, determine the
scope and identify the significant issues to be analyzed in depth);
CEQ, Memorandum for General Counsels, NEPA Liaisons, and
Participants in Scoping (Apr. 30, 1981), https://www.energy.gov/sites/default/files/nepapub/nepa_documents/RedDont/G-CEQ-scopingguidance.pdf.
\146\ As noted infra in section VI(E), to address environmental
justice concerns, agencies should use the scoping process to
identify potentially affected communities and provide early notice
of opportunities for public engagement.
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Consistent with this guidance, agencies may develop their own
agency-specific practices and guidance for framing NEPA reviews.
Grounded in the principles of proportionality and the rule of reason,
such practices and guidance can help an agency determine the extent to
which it should explore climate change effects in its decision-making
processes and will assist in the analysis of the no action and proposed
alternatives and mitigation.\147\ The agency should explain such a
framing process and its application to the proposed action to the
decision makers and the public during the NEPA review and in the EA or
EIS document.
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\147\ See, e.g., U.S. Forest Service, The Science of
Decisionmaking: Applications for Sustainable Forest and Grassland
Management in the National Forest System (2013), https://www.fs.usda.gov/research/treesearch/44326; U.S. Forest Service, The
Comparative Risk Assessment Framework and Tools (2010), https://www.fs.usda.gov/treesearch/pubs/34561; Julien Martin, et al.,
Structured decision making as a conceptual framework to identify
thresholds for conservation and management, 19 Ecological
Applications 1079-90 (2009), https://pubs.er.usgs.gov/publication/70036878.
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B. Incorporation by Reference
Agencies should consider using incorporation by reference in
considering GHG emissions or where an agency is considering the
implications of climate change for the proposed action and its
environmental effects. The NEPA review for a specific action can
incorporate by reference earlier programmatic studies or information
such as management plans, inventories, assessments, and research, as
well as any relevant programmatic or other NEPA reviews.\148\ Agencies
should identify situations where prior studies or NEPA analyses are
likely to cover emissions or adaptation issues, in whole or in part,
and incorporate them by reference in NEPA documents (including tiered
NEPA documents) where appropriate. Agencies should confirm that prior
studies or programmatic documents were conducted within a reasonable
timeframe of the proposed action under consideration such that
underlying assumptions are still applicable. Incorporation by reference
may be helpful when larger scale analyses have considered climate
change effects and GHG emissions, and calculating GHG emissions for a
specific action would provide only limited information beyond the
information already collected and considered in the larger scale
analyses.
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\148\ See 40 CFR 1502.4(b), 1501.12.
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Agencies should use the scoping process to consider whether they
should incorporate by reference GHG analyses from other programmatic
studies, action specific NEPA reviews, or programmatic NEPA reviews to
avoid duplication of effort. Furthermore, agencies should 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.
In addition, agencies are encouraged to use searchable databases,
websites, GIS tools, and other technology to share NEPA reviews with
relevant agencies, stakeholders, and the public.
C. Programmatic or Broad-Based Studies and NEPA Reviews
In the context of long-range energy, transportation, resource
management, or similar programs or strategies, an agency may decide
that it would be useful and efficient to provide an aggregate analysis
of GHG emissions or climate change effects in a programmatic analysis
and then incorporate it by reference into future NEPA reviews. These
broad analyses may occur through programmatic NEPA documents, or they
may occur through other processes by which agencies conduct analyses or
studies at the national or other broad scale level (e.g., landscape,
regional, or watershed) to assess the status of one or more resources
or to determine trends in changing environmental conditions.\149\ In
appropriate circumstances, agencies may rely on programmatic analyses
to make project-level NEPA reviews more efficient by evaluating and
analyzing effects at an earlier stage and at a broader level than
project-specific actions. Agencies also can use programmatic analysis
to analyze emissions from related activities in a given region or
sector, or to serve as benchmark against which agencies can measure
site-specific actions.\150\
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\149\ Programmatic studies may be distinct from programmatic
NEPA reviews in which the programmatic action itself is subject to
NEPA requirements. See CEQ, Memorandum for Heads of Federal
Departments and Agencies, Effective Use of Programmatic NEPA
Reviews, section I(A), 9 (Dec. 18, 2014), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Effective_Use_of_Programmatic_NEPA_Reviews_Final_Dec2014_searchable.pdf (discussing non-NEPA types of programmatic analyses such as data
collection, assessments, and research, which previous NEPA guidance
described as joint inventories or planning studies).
\150\ For instance, where a planning level programmatic review
of GHG emissions indicates that a collection of individual actions
will collectively reduce GHG emissions, the NEPA analyses for the
individual actions can demonstrate that the action is consistent
with the emission reductions examined in the programmatic review.
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A tiered, analytical decision-making approach using a programmatic
NEPA review is used for many types of Federal actions and can be
particularly relevant to addressing proposed land, aquatic, and other
resource management plans. Under such an approach, an agency conducts a
broad-scale programmatic NEPA analysis for decisions such as
establishing or revising the USDA Forest Service land management plans,
Bureau of Land Management resource
[[Page 1211]]
management plans, or Natural Resources Conservation Service
conservation programs. Subsequent NEPA analyses for proposed site-
specific decisions--such as proposed actions that are consistent with
land, aquatic, and other resource management plans--may be tiered from
the broader programmatic analysis, drawing upon its basic framework
analysis to avoid repeating analytical efforts for each tiered
decision. Examples of project- or site-specific actions that may
benefit from being able to tier to a programmatic NEPA review include:
siting and constructing transmission lines; siting and constructing
wind, solar or geothermal projects; conducting wildfire risk reduction
activities such as prescribed burns or hazardous fuels reduction;
approving grazing leases; granting rights-of-way; and approving site-
specific resilience or climate adaptation actions.
A programmatic NEPA review also may serve as an efficient mechanism
in which to assess Federal agency efforts to adopt broad-scale
sustainable practices for energy efficiency, GHG emissions avoidance
and emissions reduction measures, petroleum product use reduction, and
renewable energy use, as well as other sustainability practices.\151\
While broad department- or agency-wide goals may be of a far larger
scale than a particular program, policy, or proposed action, an
analysis that informs how a particular action affects that broader goal
can be of value.
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\151\ See E.O. 14057, supra note 7 (establishing government-wide
and agency GHG reduction goals and targets).
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D. Using Available Information
Agencies should make decisions using current scientific information
and methodologies. CEQ does not necessarily expect agencies to fund and
conduct original climate change research to support their NEPA analyses
or for agencies to require project proponents to do so. Agencies should
exercise their discretion to select and use the tools, methodologies,
and scientific and research information that are of high quality and
available to assess relevant effects, alternatives, and
mitigation.\152\
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\152\ See 40 CFR 1502.23 (requiring agencies to ensure the
professional and scientific integrity of the discussions and
analyses in environmental impact statements).
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E. Environmental Justice Considerations
Numerous studies have found that environmental hazards (including
those driven by climate change) are more prevalent in and pose
particular risks to areas where people of color and low-income
populations represent a higher fraction of the population compared with
the general population.\153\ The NEPA process calls for identifying
potential environmental justice-related issues and meaningfully
engaging with communities that proposed actions and reasonable
alternatives (as well as the no-action alternative) may affect.
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\153\ See, e.g., USGCRP, Fourth National Climate Assessment,
supra note 28, Volume II, 342 and 1077-78; USGCRP, The Impacts of
Climate Change on Human Health in the United States: A Scientific
Assessment (Apr. 2016), https://health2016.globalchange.gov/downloads; EPA, Six Impacts, supra note 41, at 8 (Figure ES.2),
https://www.epa.gov/system/files/documents/2021-09/climate-vulnerability_september-2021_508.pdf.
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Agencies should be aware of the ongoing efforts to address the
effects of climate change on human health and vulnerable
communities.\154\ Certain groups, including children, the elderly,
communities with environmental justice concerns, which often include
communities of color, low-income communities, Tribal Nations and
Indigenous communities, and underserved communities are more vulnerable
to climate-related health effects and may face barriers to engaging on
issues that disproportionately affect them. CEQ recommends that
agencies regularly engage environmental justice experts and leverage
the expertise of the White House Environmental Justice Interagency
Council \155\ to identify approaches to avoid or minimize adverse
effects on communities of color and low-income communities.\156\
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\154\ USGCRP, The Impacts of Climate Change on Human Health in
the United States: A Scientific Assessment, supra note 153.
\155\ For more information on the White House Environmental
Justice Interagency Council, see https://www.energy.gov/lm/white-house-environmental-justice-interagency-council-resources.
\156\ President's Memorandum for the Heads of All Departments
and Agencies, Executive Order on Federal Actions to Address
Environmental Justice in Minority and Low-Income Populations (Feb.
11, 1994), https://www.epa.gov/sites/production/files/2015-02/documents/clinton_memo_12898.pdf; CEQ, Environmental Justice
Guidance Under the National Environmental Policy Act (Dec. 10,
1997), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ej/justice.pdf.
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When assessing environmental justice considerations in NEPA
analyses, agencies should use the scoping process to identify
potentially affected communities and provide early notice of
opportunities for public engagement. This is important for all members
of the public and stakeholders, but especially 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. Agencies should
engage such communities early in the scoping and project planning
process to understand any unique climate-related risks and concerns.
Agencies also should use the NEPA process to identify and analyze
reasonably foreseeable effects, reasonable alternatives, and measures
to avoid or minimize any such effects.
F. Monetizing Costs and Benefits
NEPA does not require a cost-benefit analysis where all monetized
benefits and costs are directly compared. In a NEPA review, the
weighing of the merits and drawbacks of the various alternatives need
not be displayed using a monetary cost-benefit analysis and should not
be when there are important qualitative considerations.\157\ Using the
SC-GHG to provide an estimate of the cost to society from GHG
emissions--or otherwise monetizing discrete costs or benefits of a
proposed Federal action--does not necessitate conducting a benefit-cost
analysis in NEPA documents. As described in Section IV(B), the SC-GHG
estimates are useful information disclosure metrics that can help
decision makers and the public understand and contextualize GHG
emissions and climate damages. Agencies can use the SC-GHG to provide
information on climate impacts even if other costs and benefits cannot
be quantified or monetized.
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\157\ See 40 CFR 1502.22.
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If an agency determines that a monetary cost-benefit analysis is
appropriate and relevant to the choice among different alternatives the
agency is considering, the agency may include the analysis in or append
it to the NEPA document, or incorporate it by reference \158\ as an aid
in evaluating the environmental consequences. For example, a rulemaking
could have useful information for the NEPA review in an associated
regulatory impact analysis, which the agency could incorporate by
reference in a NEPA document.\159\
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\158\ See 40 CFR 1501.12 (material may be cited if it is
reasonably available for inspection by potentially interested
persons within the time allowed for public review and comment).
\159\ For example, the regulatory impact analysis was used as a
source of information and aligned with the NEPA review for Corporate
Average Fuel Economy (CAFE) standards. See Nat'l Highway Traffic
Safety Admin., Corporate Average Fuel Economy Standards, Passenger
Cars and Light Trucks, Model Years 2017-2025, Final Environmental
Impact Statement, Docket No. NHTSA-2011-0056, section 5.3.2 (July
2012), https://www.nhtsa.gov/corporate-average-fuel-economy/environmental-impact-statement-cafe-standards-2017-2025.
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When using a monetary cost-benefit analysis, just as with tools to
quantify emissions, an agency should disclose the assumptions,
alternative inputs, and
[[Page 1212]]
levels of uncertainty associated with such analysis. Finally, if an
agency chooses to monetize some but not all effects of an action, the
agency providing this additional information should explain its
rationale for doing so.\160\
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\160\ For example, the information may be responsive to public
comments or useful to the decision maker in further distinguishing
between alternatives and mitigation measures. In all cases, the
agency should ensure that its consideration of the information and
other factors relevant to its decision is consistent with applicable
statutory or other authorities, including requirements for the use
of cost-benefit analysis.
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VII. Conclusions and Effective Date
Agencies should use this guidance to inform the NEPA review for all
new proposed actions. Agencies should exercise judgment when
considering whether to apply this guidance to the extent practicable to
an on-going NEPA process. CEQ does not expect agencies to apply this
guidance to concluded NEPA reviews and actions for which a final EIS or
EA has been issued. Agencies should consider applying this guidance to
actions in the EIS or EA preparation stage if this would inform the
consideration of alternatives or help address comments raised through
the public comment process.
Dated: January 4, 2023.
Brenda Mallory,
Chair.
[FR Doc. 2023-00158 Filed 1-6-23; 8:45 am]
BILLING CODE 3325-F3-P