On February 18, 2010, the Council on Environmental Quality (“CEQ”) issued draft guidance regarding the evaluation of climate change and greenhouse gas emissions in National Environmental Policy Act (“NEPA”) analyses.  In the draft guidance, the CEQ identified 25,000 tons per year as a possible threshold for additional quantitative and qualitative review of climate issues.  The CEQ proposed that such analysis include assessment of “aspects of climate change that may lead to changes in the impacts, sustainability, vulnerability and design of the proposed action and alternative courses of action.”  Comments will be due on the draft guidance 90 days from the publication of the draft in the Federal Register in late February or early March. 

Also on February 18, 2010, the CEQ issued another draft guidance document relating to mitigation and monitoring under NEPA.  The CEQ guidance recommends bolstering the role of mitigation and monitoring in the NEPA process, including steps to assure that mitigation steps are both implemented and effective in reducing impacts.  Comments on the mitigation and monitoring guidance document will also be due 90 days from the publication of the draft in the Federal Register in late February or early March.

On February 8, 2010, the U.S. Court of Appeals for the Tenth Circuit affirmed the District Court's refusal to enjoin full-plane deicing near passenger loading gates at Denver International Airport.  Plaintiffs sought injunctive relief under the Resource Conservation and Recovery Act of 1976; however, the District Count found, and the Court of Appeals affirmed, that plaintiff's had not established that full-plane deicing near DIA's Concourse B presents an imminent and substantial endangerment to health.  The City and County of Denver presented evidence that full-plane deicing near Concourse B had been suspended at that it had initiated measures to address contamination by aircraft deicing fluid.  Click on the link below to view and download a copy of the Court of Appeals' opinion.