Brenda Mallory's Confirmation as CEQ Chair Will Kick-Off Major Policy Shifts on NEPA & Climate Change; Is FERC Paving the Way?

Brenda Mallory has been confirmed as the Chair of the White House Council on Environmental Quality (CEQ). In that role, she will lead and coordinate key aspects of the Biden-Harris Administration's "whole-of-government" climate change agenda, and oversee implementation of the National Environmental Policy Act (NEPA). In the coming weeks, we expect to see major announcements about CEQ's plans for revising NEPA regulations and guidance on analysis and mitigation of greenhouse gas emissions (GHGs), as discussed in our February 2021 Advisory.

We also expect to see key industry and environmental groups staking out positions on these issues before a different agency—the Federal Energy Regulatory Commission (FERC). As described in our April 2021 Advisory, FERC issued a Notice of Inquiry (NOI) on the Certification of New Interstate Natural Gas Facilities on February 24, 2021 seeking input on how it should determine whether a proposed natural gas project meets the public convenience and necessity test under Section 7 of the Natural Gas Act. Comments are due by May 26, 2021.

Stakeholders with an interest in NEPA & GHG issues should consider providing input to FERC, which will be previewing the same issues that CEQ must grapple with government-wide. For example, FERC seeks feedback on the:

• Scope of GHG emissions impact assessment;
• Calculation of a project's carbon footprint;
• Assessment of "significance" of that carbon footprint;
• Appropriate use of the social cost of carbon (SCC) in NEPA analysis; and
• Mitigation of GHGs.

In our April 2021 Advisory, we provide insights on two particularly controversial issues, including "significance" and use of the SCC in NEPA.

FERC's analysis of GHG emissions under NEPA in natural gas pipeline decisions has resulted in an important series of decisions from US Court of Appeals for the DC Circuit (e.g., Sierra Club v. FERC (the "Sabal Trail" case)). Accordingly, FERC's position on these matters could prove influential in review of other types of projects.

These two concurrent efforts at FERC and CEQ raise a number of questions about how the White House will coordinate these activities. Interested parties will want to track responses to FERC's Notice of Inquiry in the weeks ahead for insights into the forthcoming debates as the Biden-Harris Administration pursues its climate change and infrastructure agendas.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.