Attorney General Becerra Condemns Trump Administration for Guidance Encouraging Agencies to Ignore Climate Change in NEPA Review

SACRAMENTO – California Attorney General Xavier Becerra today, leading a 19-state coalition, filed a comment letter opposing the Council of Environmental Quality’s (CEQ) draft guidance on consideration of greenhouse gas emissions under the National Environmental Policy Act (NEPA). NEPA serves as the cornerstone of America’s environmental regulatory framework and requires agencies to consider environmental impacts, including greenhouse gas emissions and the effects of climate change, as part of their decision-making process. The requirement to consider greenhouse gas emissions and climate change was the result of guidance issued by the Obama Administration in 2016 that the Trump Administration is now attempting to revoke. In the comment letter, the coalition asserts that the Trump Administration’s draft guidance encourages agencies to violate NEPA and is arbitrary and capricious.

“This reckless guidance by the Trump Administration leads agencies to ignore the climate crisis, the most pressing environmental challenge of our time,” said Attorney General Becerra. “We’re reminding President Trump once again: if you try to backslide on the safeguards protecting our nation’s environment and put polluters in the driver’s seat, we will hold you accountable."

Enacted in 1969, NEPA is one of the nation’s foremost environmental statutes. NEPA requires that before any federal agency undertakes a “major federal action significantly affecting the quality of the human environment,” it must consider the environmental impacts of the proposed action, alternatives to the action, and any available mitigation measures. Nearly every federal action, from the approval of significant energy and infrastructure projects to key decisions concerning the management of federal public lands, requires compliance with NEPA.

In the comment letter, the coalition asserts that the guidance encourages agencies to violate NEPA, is arbitrary and capricious, and should be withdrawn. The draft guidance moves in the wrong direction, muddying the waters on the analysis of climate change impacts under NEPA and creating new legal risks for projects subject to NEPA. The letter outlines a number of concerns, including that the draft guidance:

• Unlawfully and arbitrarily ignores the growing body of scientific evidence pointing to the threats of climate change, and the contribution of greenhouse gas emissions to this threat;
• Subverts the purpose and requirement of NEPA to promote informed decision-making, by disregarding climate change, the most pressing environmental issue of our time;
• Fails to clarify how agencies should consider indirect greenhouse gas emissions, including upstream or downstream emissions caused by projects such as pipelines and mining;
• Includes vague and undefined terms that would allow agencies to unlawfully cast aside their obligations under NEPA and that conflict with the straightforward language of the previous 2016 guidance;
• Unlawfully suggests that agencies may meet NEPA requirements by comparing projects’ greenhouse gas emissions to other estimates and providing a qualitative summary discussion, which is insufficient;
• Supports an unbalanced approach to cost-benefit analysis by allowing agencies to exclude the costs or quantities of climate impacts;
• Discourages a consideration of required mitigation methods as well as the exploration of reasonable alternatives to reduce climate change; and
• Fails to consider coordination and consistency between NEPA and state environmental analysis.

In August 2018, Attorney General Becerra urged CEQ to carefully consider any changes to NEPA regulations and to prioritize the environment and public health if the Administration chose to move forward with revisions to its guidance.

Joining Attorney General Becerra are the attorneys general of Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Mexico, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia.

A copy of the comment is available here.