On March 28, 2017, President Trump signed Executive Order – Promoting Energy Independence and Economic Growth, which repealed several components of President Obama’s environmental agenda. One such component involved the guidelines issued by the Council on Environmental Quality (“CEQ”), which specified how federal agencies should analyze greenhouse gas (“GHG”) emissions in environmental reviews under the National Environmental Policy Act (“NEPA”).

NEPA and Greenhouse Gas Analysis

In 1970, NEPA was enacted to require federal agencies to consider the environmental effects of proposed federal projects. Under NEPA, a federal agency is required to conduct an environmental review of all proposed projects that could significantly affect the quality of the human environment. This review informs the agency and the public of the potentially significant environmental effects of a proposed project. NEPA review encompasses aesthetic, biological, cultural, historical, economic, and social impacts, whether direct, indirect, or cumulative.

The CEQ oversees the implementation of NEPA requirements by all federal agencies. On August 1, 2016, the CEQ released “Guidance on Greenhouse Gases and Climate Change.” These guidelines established standards for federal agencies to consider GHG emissions in two areas: (1) the potential effects of a proposed project on climate change; and (2) the effects of climate change on a proposed project and its environmental impacts. The guidelines were intended to provide a detailed methodology for quantifying direct and indirect GHG emissions, analyzing impacts to global climate change, and implementing feasible mitigation and alternatives.

Effect of Executive Order Rescinding CEQ Guidelines

President Trump’s Executive Order revokes the CEQ guidelines for factoring GHG emissions into NEPA reviews. Although federal agencies are no longer required to follow the guidelines, analysis of GHG emissions may still be required. GHG analyses are frequently litigated, and courts have held that NEPA reviews must analyze GHG emissions for certain projects, such as leases of public lands for coal mining (WildEarth Guardians v. Jewell (D.C. Cir. 2013) 738 F.3d 298). Courts have even required NEPA review of GHG impacts from wind projects and other renewable energy activities that will significantly offset GHG emissions in the energy sector (Protect Our Communities Foundation v. Jewell (9th Cir. 2016) 825 F.3d 571). The obligations imposed by these cases will remain in effect, despite the repeal of the CEQ guidelines. President Trump’s Executive Order may therefore increase litigation risk for controversial projects, by repealing the guidelines and removing the CEQ’s recommended methodologies for quantifying and analyzing GHG emissions.

California’s Response

Governor Jerry Brown denounced President Trump’s Executive Order and committed Californians to the challenge of reducing GHG emissions. In anticipation of President Trump’s actions, state agencies have taken steps to ensure that environmental laws are fully implemented and enforced. On March 7, 2017, the State Water Board adopted a resolution requiring a proactive approach to combat climate change in all of its actions, including drinking water regulation, water quality protection, and financial assistance. On March 26, 2017, the California Air Resources Board voted unanimously to maintain the vehicle admissions standards that it adopted in 2012, which are stricter than the vehicle emissions standards set by the federal government.

Next Steps

President Trump’s Executive Order rescinds a number of environmental regulations established during President Obama’s term. The Executive Order also requests all federal agencies to draft reports identifying obstacles to domestic energy production. These reports and findings will continue to develop as federal agencies revise their policies to comply with the Executive Order and states, like California, implement their own policies for reducing GHG emissions.

If you have any questions regarding the effect of the Executive Order or California’s response, please contact Barbara A. Brenner at barbara@whitebrennerllp.com, Robin Baral at robin@whitebrennerllp.com, or Churchwell White LLP at (916) 468-0950.