Congressional critics of the Obama administration’s final guidance to federal agencies for quantifying greenhouse gas emissions accused the White House in a hearing Wednesday of giving environmental groups ammunition to bring lawsuits against energy projects.
In an oversight hearing, Republican members of the House of Representatives Natural Resources Committee grilled CEQ Managing Director Christy Goldfuss over the guidance released last month, which recommends federal agencies quantify greenhouse gas emissions as part of reviews under the National Environmental Policy Act (NEPA). Industry groups have called CEQ’s updated guidance unnecessary and hinted that the changes could negatively impact natural gas projects under consideration at FERC (see Daily GPI, Aug. 2).
Rep. Rob Bishop (R-UT), the committee chairman, derided the CEQ’s recommendations for federal agencies to evaluate climate change impacts as a “voluntary guidance which must be obeyed,” saying the document exposes federal agency decisions to more lawsuits from green groups.
“The problem comes in here that the Supreme Court’s precedent says that where an agency has no ability to prevent a certain effect due to its statutory authority over the relevant actions, the agency cannot be considered a legally relevant cause of the effect, which essentially means that indirect effects cannot be considered if the agency cannot control them, but that’s not what your guidance actually says,” Bishop said. “...You don’t have the authority to do this, which is why you repeatedly say this is all voluntary, but it’s voluntary that everyone simply has to do. If not, the lawsuits will be there...If a court uses your voluntary guidance as an issue of what somebody has to do, does that not become a de facto enforcement of what takes place?”
He added, “You have given all the options out to the other groups now to make sure that if” federal agencies don’t follow the CEQ’s guidance “there’s going to be a lawsuit, so they better do it because it has to be obeyed. It’s not your responsibility, it’s not your authority, but you did it anyway, and that is why I object to it.”
For her part, Goldfuss defended CEQ’s guidance as an effort to provide clarity and tools to federal agencies wrestling with how to evaluate climate change impacts in their reviews, noting that the issue has already been raised repeatedly in the courts.
The guidance is “crafted to provide a consistent approach across the federal government” for considering climate change while also accommodating agency judgment and expertise, she said.
Goldfuss said the guidance operates within the confines of “long-standing NEPA practice” by expecting agencies to work “within their statutory authority to look at the reasonably foreseeable impacts” of their review decisions.
But the GOP committee members seemed unconvinced. Rep. Dan Newhouse (R-WA), for one, also needled Goldfuss over whether the CEQ guidance represents an overstep of executive authority and whether the “voluntary” guidelines are really an attempt at regulation while bypassing the stricter standards of rulemaking procedure.
Newhouse pointed to a recent lawsuit filed against the Bureau of Land Management that referenced CEQ’s final guidance.
“How can the administration maintain that it’s merely a voluntary guide for agencies and should be exempt from the rulemaking process when it was immediately used as a tool for obstruction by environmental organizations?” Newhouse said.
“It is still standing that this is not a regulation,” Goldfuss said. “It is not legally binding, and although it may be referenced in courts, it is up to agencies to make these decisions within the bounds of their own statutes...In fact there are many ways agencies may determine this is not appropriate. And our guidance would be that they tell us why it’s not appropriate, but the courts would determine whether or not those reviews were conducted appropriately.”
“So by setting the bar,” Newhouse shot back, “at least if they don’t follow the guidance, since it’s voluntary, they have to justify beyond the shadow of a doubt in a court of law whether or not they were right in ignoring the guidance.”