Department of Ecology Responds to Comments on Draft Guidance on Climate Change and SEPA

On Aug. 9, 2010, the Washington Department of Ecology (Ecology) sent a response letter to stakeholders who commented on the draft Guidance regarding the analysis of climate change impacts under Washington’s State Environmental Policy Act (SEPA). The draft Guidance, which was issued on May 27, proposed extensive analysis of both direct and indirect greenhouse gas (GHG) emissions potentially resulting from government actions covered under SEPA. Davis Wright Tremaine previously commented on the Guidance in a client advisory, which may be found here.

Commenters question use of SEPA to address GHG emissions

Several business associations, companies, and organizations commented on the draft Guidance. Several stakeholders expressed that SEPA should not be used to address GHG emissions. Some comments also stated that reducing GHG emissions would be best addressed at the federal level, rather than by states. A list of comments received by Ecology, as well as links to the comments themselves, may be found here.

Ecology responds and seeks further input from businesses and consumers

Ecology, in its response letter, reaffirmed its position that SEPA is an appropriate tool for regulating GHG emissions. Ecology also denied that GHG emissions are best addressed at the federal level. SEPA, Ecology wrote, is based upon a “strong environmental public policy” that is “even stronger than the policy that underlies [the federal National Environmental Policy Act].”

In Ecology’s view, Washington has a distinct state interest in reviewing GHG emissions under SEPA, and “programs and polices that will reduce greenhouse gas emissions fall within historical state and local authorities.” Ecology further commented that of all the policies reviewed and discussed in earlier reports relating to GHG emissions, “only a cap-and-trade program has been identified as more appropriately implemented at the federal level.”

With the outlook for federal cap-and-trade legislation darkening, the Guidance is one more indication that states are likely to play an increasingly important role in the regulation of GHG emissions in the coming years.

In addition to stating that it was proceeding with work on the Guidance, Ecology solicited further comments on a specific set of questions, which may be found here. These include questions on how “Scope Three” emissions should be considered, how lead agencies should consider energy efficiency measures in a SEPA analysis, and questions regarding the inclusion of a statewide “significance threshold” for GHG emissions in the next draft Guidance.

Ecology is accepting comments on these specific questions until Sept. 7. Ecology will also accept supplemental comments from parties that previously commented on the Guidance by that date.

Recommended action

Ecology’s final Guidance on GHG emissions will be a statement on how the agency interprets the law, and will therefore provide some amount of direction to lead agencies on how to evaluate GHG emissions through SEPA. Given the potential impact that the Guidance may have on future development in Washington state, developers, property owners, and other interested parties within the greater business community may want to review the supplemental questions proposed by Ecology, and provide their comments by the Sept. 7 deadline.