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CEQ’s Draft Guidance on NEPA Climate Analyses: Potential Impacts on Climate Litigation

October 2015

Citation: ELR 10925

Author: Katherine Lee

In December 2014, the White House Council on Environmental Quality (CEQ) issued for public comment a draft guidance document on how federal agencies should evaluate climate change in their analyses under NEPA. Like the 2010 draft guidance, the 2014 draft guidance repeatedly states that it is not intended to create any new or binding requirements on agencies. But if the guidance, either in draft or final form, is purely advisory, why would a NEPA document’s legal sufficiency depend on whether the agency had followed the draft guidance? And why should the 2014 draft guidance influence courts when the 2010 guidance did not? In this Comment, the author argues that the 2014 guidance differs from the 2010 guidance in several important ways, and that it— in combination with the body of climate case law under NEPA—may have the potential to ultimately improve the level and detail of climate analysis that courts will require in future NEPA litigation.

Katherine Lee is a Postgraduate Fellow with the Turner Environmental Law Clinic at Emory School of Law.

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