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When the Cochiti Pueblo of New Mexico objected to the development of hydropower at the Cochiti Dam, Hobbs Straus helped the Tribe secure legislation blocking its development (1990).

GENERAL MEMORANDUM 11-009

GENERAL MEMORANDUM 11-009
Council on Environmental Quality Seeks Input from Tribes on Guidance on Consideration of Effects of Climate Change and Greenhouse Gas Emissions

On February 18, 2010, the President's Council on Environmental Quality (CEQ) issued a guidance document captioned "Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions" (the "CC/GHG Guidance"). This was one of three guidance documents on the National Environmental Policy Act (NEPA) issued by CEQ in draft on that date for public review and comment. The other two guidance documents have since been issued in final form: "Final Guidance for Federal Agencies on Establishing, Applying, and Revising Categorical Exclusions under the National Environmental Policy Act" (Nov. 23, 2010) (75 Fed. Reg. 75628 (Dec. 6, 2011)) (see our General Memorandum 11-005 (Jan. 14, 2011)); and "Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact" (Jan. 14, 2011) (76 Fed. Reg. 3843 (Jan. 21, 2011)). The draft CC/GHG Guidance is available on the CEQ NEPA website: www.nepa.gov. (Under "Current Developments," click on "CEQ Issues New Guidance" and scroll to the bottom.)

Opportunity for Tribes. We have been advised by staff of CEQ that, although the period for filing public comments on the CC/GHG Guidance has closed, in recognition of the government-to-government relationship with tribes, CEQ will accept comments from tribes and that CEQ is quite interested in receiving such comments. Tribal comments should filed by email to Scott Nuzum at Robert_S._Nuzum@ceq.eop.gov no later than February 28, 2011.

Overview. As noted in the CC/GHG Guidance, global emissions of greenhouse gases (GHGs) "are significantly affecting the Earth’s climate." Climate change is largely driven by the increased concentration of carbon dioxide in the atmosphere, which has resulted, for the most part, from combustion of fossil fuels. As such, the CC/GHG Guidance states, "Nearly every aspect of energy choices and use affect the development of fossil fuel and other energy resources, either adding to or reducing the cumulative total of GHG emissions." The CC/GHG Guidance refers to the "endangerment" finding made by the Environmental Protection Agency (EPA) under the Clean Air Act (74 Fed. Reg. 66496 (Dec. 15, 2009)) to summarize the environmental effects of climate change, in general terms, as follows:

[T]he effects of climate change observed to date and projected to occur in the future include, but are not limited to more frequent and intense heat waves, more severe wildfires, degraded air quality, more heavy downpours and flooding, increased drought, greater sea-level rise, more intense storms, harm to water resources, harm to agriculture, and harm to wildlife and ecosystems.

The CC/GHG Guidance says that American Indians and Alaska Natives are likely to be affected by "ecological changes on the landscape in ways that many Americans are not" and that the effects of climate change "affect the survival for both their livelihood and their culture."

The CC/GHG Guidance addresses two contexts in which climate change issues arise in NEPA analyses:

  1. GHG emissions effects of a proposed action and alternative actions; and
  2. The relationship of climate change effects to a proposed action or alternatives, including the relationship to proposal design, environmental impacts, mitigation and adaptation measures.

In other words, in the CC/GHG Guidance, "CEQ proposes that the NEPA process should incorporate consideration of both the impact of an agency action on the environment through the mechanism of GHG emissions and the impact of changing climate on that agency action."

Evaluating Greenhouse Gas Emissions. The CC/GHG Guidance says that when a proposed federal action is analyzed in either an environmental assessment (EA) or an environmental impact statement (EIS), and the agency anticipates that annual GHG emissions will be 25,000 metric tons or more of carbon dioxide equivalent, the EA or EIS should include a quantitative analysis. The CC/GHG Guidance provides references to a number of technical documents that may be useful in quantifying GHG emissions from various sources. CEQ says that this threshold is not meant as an indicator that a proposed action would "significantly" effect the environment and thus require an EIS. CEQ has asked for comments on whether they should provide guidance to agencies on how to determine whether GHG emissions would "significantly" affect the environment.

Consideration of Effects of Climate Change on Proposed Actions. Agencies are advised to follow NEPA’s "rule of reason" in deciding the level of detail in their analyses. They need not undertake "exorbitant" research but, rather, may summarize and incorporate by reference relevant scientific research. The CC/GHG Guidance provides references to a number of sources of scientific information on the reasonably foreseeable effects of climate change. Agencies are advised that they should consider particular impacts of climate change on "vulnerable communities" such as tribal and Alaska Native communities.

Questions on Which CEQ Seeks Comments. The CC/GHG Guidance sets out several questions on which CEQ seeks public input. Several of these questions have to do with guidance for federal land management agencies. This is a subject in which tribes might recommend that CEQ provide some guidance on how to address impacts on wildlife, ecosystems, and natural resources in which tribes have treaty or statutory rights, or that are important to tribes for cultural or religious reasons. Such guidance should be developed in consultation with tribes.

If you would like further information regarding the CC/GHG Guidance, or assistance in preparing comments, please contact us.

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Inquiries may be directed to:
Dean Suagee (dsuagee@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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