On December 17, 2020, Fred Wagner was quoted in Bloomberg Law on Brenda Mallory, President-elect Joe Biden’s presumptive nominee to lead the White House’s Council on Environmental Quality (CEQ).
According to the article, Mallory served as general counsel for CEQ during the Obama administration. If confirmed by the Senate, she will take the helm of CEQ at a time when judges have increasingly faulted federal officials under both the Obama and Trump administrations for failing to fully consider greenhouse gas emissions in their National Environmental Policy Act reviews.
While Mallory was CEQ’s top lawyer, the council crafted guidance for agencies on how to study greenhouse gas emissions in their NEPA reviews. The goal was to ensure consistency across the executive branch and make NEPA reviews more defensible in court, said Wagner. Trump officials later scrapped the memo.
CEQ is likely to revive the guidance under Mallory’s leadership, directing agencies to conduct robust analysis of the greenhouse gas emissions linked to federal actions and use available tools—including a metric called the social cost of carbon—to study the significance of those emissions.
Wagner called the Obama-era directive “rather modest” because it gave agencies flexibility in their climate analyses, and it wasn’t binding. The Biden administration will likely opt for a similar approach, he said, because “the understanding has long been that the analysis of greenhouse gases is not a one-size-fits-all.”