National Environmental Policy Act Implementing Regulations Revisions Phase 2

As Enacted

Cited in

Court	Council On Environmental Quality
Citation	88 FR 49924
Published date	31 July 2023
Record Number	2023-15405

49924

Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules

See Linda Luther, Cong. Rsch. Serv., RL33152,

The National Environmental Policy Act:

Background and Implementation, 4 (2008), https://

crsreports.congress.gov/product/

details?prodcode=RL33152.

COUNCIL ON ENVIRONMENTAL

QUALITY

40 CFR Parts 1500, 1501, 1502, 1503,

1504, 1505, 1506, 1507, and 1508

[CEQ–2023–0003]

RIN 0331–AA07

National Environmental Policy Act

Implementing Regulations Revisions

Phase 2

AGENCY

: Council on Environmental

Quality.

ACTION

: Notice of proposed rulemaking.

SUMMARY

: The Council on

Environmental Quality (CEQ) is

proposing this ‘‘Bipartisan Permitting

Reform Implementation Rule’’ to revise

its regulations for implementing the

procedural provisions of the National

Environmental Policy Act (NEPA),

including to implement the Fiscal

Responsibility Act’s amendments to

NEPA. CEQ proposes the revisions to

provide for an effective environmental

review process that promotes better

decision making; ensure full and fair

public involvement; provide for an

efficient process and regulatory

certainty; and provide for sound

decision making grounded in science,

including consideration of relevant

environmental, climate change, and

environmental justice effects. CEQ

proposes these changes to better align

the provisions with CEQ’s extensive

experience implementing NEPA; CEQ’s

perspective on how NEPA can best

inform agency decision making;

longstanding Federal agency experience

and practice; NEPA’s statutory text and

purpose, including making decisions

informed by science; and case law

interpreting NEPA’s requirements. CEQ

invites comments on the proposed

revisions.

DATES

Comments: CEQ must receive

comments by September 29, 2023.

Public meetings: CEQ will conduct

four virtual public meetings for the

proposed rule on Saturday, August 26,

2023, from 1 p.m. to 4 p.m. EDT;

Wednesday, August 30, 2023, from 5

p.m. to 8 p.m. EDT; Monday, September

11, 2023, from 1 p.m. to 4 p.m. EDT; and

Thursday, September 21, 2023, from 2

p.m. to 5 p.m. EDT. For additional

information and to register for the

meetings, please visit CEQ’s website at

www.nepa.gov.

ADDRESSES

: You may submit comments,

identified by docket number CEQ–

2023–0003, by any of the following

methods:

•Federal eRulemaking Portal:

https://www.regulations.gov. Follow the

instructions for submitting comments.

•Fax: 202–456–6546.

•Mail: Council on Environmental

Quality, 730 Jackson Place NW,

Washington, DC 20503.

Instructions: All submissions received

must include the agency name,

‘‘Council on Environmental Quality,’’

and docket number, CEQ–2023–0003,

for this rulemaking. All comments

received will be posted without change

to https://www.regulations.gov,

including any personal information

provided. Please do not submit

electronically any information you

consider private, Confidential Business

Information (CBI), or other information,

the disclosure of which is restricted by

statute.

Docket: For access to the docket to

read background documents or

comments received, go to https://

www.regulations.gov.

FOR FURTHER INFORMATION CONTACT

Amy B. Coyle, Deputy General Counsel,

202–395–5750, Amy.B.Coyle@

ceq.eop.gov.

SUPPLEMENTARY INFORMATION

I. Background

A. NEPA Statute

Congress enacted NEPA in 1969 by a

unanimous vote in the Senate and a

nearly unanimous vote in the House to

declare an ambitious and visionary

national policy to promote

environmental protection for present

and future generations.

President

Nixon signed NEPA into law on January

1, 1970. NEPA seeks to ‘‘encourage

productive and enjoyable harmony’’

between humans and the environment,

recognizing the ‘‘profound impact’’ of

human activity and the ‘‘critical

importance of restoring and maintaining

environmental quality’’ to the overall

welfare of humankind. 42 U.S.C. 4321,

4331.

Furthermore, NEPA seeks to promote

efforts that will prevent or eliminate

damage to the environment and

biosphere and stimulate the health and

welfare of people, making it the

continuing policy of the Federal

Government to use all practicable means

and measures to create and maintain

conditions under which humans and

nature can exist in productive harmony

and fulfill the social, economic, and

other requirements of present and future

generations of Americans. 42 U.S.C.

4331(a). It also recognizes that each

person should have the opportunity to

enjoy a healthy environment and has a

responsibility to contribute to the

preservation and enhancement of the

environment. 42 U.S.C. 4331(c).

NEPA requires Federal agencies to

interpret and administer Federal

policies, regulations, and laws in

accordance with NEPA’s policies and to

consider environmental values in their

decision making. 42 U.S.C. 4332. To

that end, section 102(2)(C) of NEPA

requires Federal agencies to prepare

‘‘detailed statements,’’ referred to as

environmental impact statements (EISs),

for ‘‘every recommendation or report on

proposals for legislation and other major

Federal actions significantly affecting

the quality of the human environment’’

and, in doing so, provide opportunities

for public participation to help inform

agency decision making. 42 U.S.C.

4332(2)(C). The EIS process embodies

the understanding that informed

decisions are better decisions and lead

to better environmental outcomes when

decision makers understand, consider,

and publicly disclose environmental

effects of their decisions. The EIS

process also enriches understanding of

the ecological systems and natural

resources important to the Nation and

helps guide sound decision making,

such as decisions on infrastructure and

energy development, in line with high-

quality information, including the best

available science, information and data,

as well as the environmental design arts.

In many respects, NEPA was a statute

ahead of its time and remains relevant

and vital today. It codifies the common-

sense idea of ‘‘look before you leap’’ to

guide agency decision making,

particularly in complex and

consequential areas, because conducting

sound environmental analysis before

agencies take actions reduces conflict

and waste in the long run by avoiding

unnecessary harm and uninformed

decisions. See, e.g., 42 U.S.C. 4332. It

establishes a framework for agencies to

ground decisions in sound science and

recognizes that the public may have

important ideas and information on how

Federal actions can occur in a manner

that reduces potential harms and

enhances ecological, social, and

economic well-being. See, e.g., id.

On June 3, 2023, President Biden

signed the Fiscal Responsibility Act of

2023 (FRA) into law, which included

amendments to NEPA. Specifically, the

FRA amended section 102(2)(C) and

added sections 102(2)(D) through (F)

and sections 106 through 111. The

amendments in section 102(2)(C) largely

codify longstanding principles that EISs

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See, e.g., E.O. 14008, Tackling the Climate Crisis

at Home and Abroad, 86 FR 7619 (Feb. 1, 2021);

E.O. 13604, Improving Performance of Federal

Permitting and Review of Infrastructure Projects, 77

FR 18885 (Mar. 28, 2012); E.O. 13274,

Environmental Stewardship and Transportation

Infrastructure Project Reviews, 67 FR 59449 (Sept.

23, 2002); see also Modernizing Federal

Infrastructure Review and Permitting Regulations,

Policies, and Procedures, 78 FR 30733 (May 22,

2013).

See, e.g., E.O. 14057, Catalyzing Clean Energy

Industries and Jobs Through Federal Sustainability,

86 FR 70935 (Dec. 13, 2021); E.O. 13834, Efficient

Federal Operations, 83 FR 23771 (May 22, 2018);

E.O. 13693, Planning for Federal Sustainability in

the Next Decade, 80 FR 15869 (Mar. 25, 2015); E.O.

13514, Federal Leadership in Environmental,

Energy, and Economic Performance, 74 FR 52117

(Oct. 8, 2009); E.O. 13423, Strengthening Federal

Environmental, Energy, and Transportation

Management, 72 FR 3919 (Jan. 26, 2007); E.O.

13101, Greening the Government Through Waste

Prevention, Recycling, and Federal Acquisition, 63

FR 49643 (Sept. 16, 1998). For Presidential

directives pertaining to other environmental

initiatives, see E.O. 13432, Cooperation Among

Agencies in Protecting the Environment With

Respect to Greenhouse Gas Emissions From Motor

Vehicles, Nonroad Vehicles, and Nonroad Engines,

72 FR 27717 (May 16, 2007) (requiring CEQ and

OMB to implement the E.O. and facilitate Federal

agency cooperation to reduce greenhouse gas

emissions); E.O. 13141, Environmental Review of

Trade Agreements, 64 FR 63169 (Nov. 18, 1999)

(requiring CEQ and the U.S. Trade Representative

to implement the E.O., which has the purpose of

promoting Trade agreements that contribute to

sustainable development); E.O. 13061, Federal

Support of Community Efforts Along American

Heritage Rivers, 62 FR 48445 (Sept. 15, 1997)

(charging CEQ with implementing the American

Heritage Rivers initiative); E.O. 13547, Stewardship

of the Ocean, Our Coasts, and the Great Lakes, 75

FR 43023 (Jul. 22, 2010) (directing CEQ to lead the

National Ocean Council); E.O. 13112, Invasive

Species, 64 FR 6183 (Feb. 8, 1999) (requiring the

Invasive Species Council to consult with CEQ to

develop guidance to Federal agencies under NEPA

on prevention and control of invasive species).

CEQ, Forty Most Asked Questions Concerning

CEQ’s National Environmental Policy Act

Regulations, 46 FR 18026 (Mar. 23, 1981) (‘‘Forty

Questions’’), https://www.energy.gov/nepa/

downloads/forty-most-asked-questions-concerning-

ceqs-national-environmental-policy-act.

See, e.g., CEQ, Memorandum for General

Counsels, NEPA Liaisons and Participants in

Scoping (Apr. 30, 1981), https://www.energy.gov/

nepa/downloads/scoping-guidance-memorandum-

general-counsels-nepa-liaisons-and-participants-

scoping; CEQ, Incorporating Biodiversity

Considerations Into Environmental Impact Analysis

Under the National Environmental Policy Act (Jan.

1993), https://ceq.doe.gov/publications/

incorporating_biodiversity.html; CEQ, Council on

Environmental Quality Guidance on NEPA

Analyses for Transboundary Impacts (July 1, 1997),

https://ceq.doe.gov/docs/ceq-regulations-and-

guidance/memorandum-transboundary-impacts-

070197.pdf; CEQ, Designation of Non-Federal

Agencies to be Cooperating Agencies in

Implementing the Procedural Requirements of the

National Environmental Policy Act (July 28, 1999),

https://ceq.doe.gov/docs/ceq-regulations-and-

guidance/regs/ceqcoop.pdf; CEQ, Identifying Non-

Federal Cooperating Agencies in Implementing the

Procedural Requirements of the National

Environmental Policy Act (Sept. 25, 2000), https://

ceq.doe.gov/docs/ceq-regulations-and-guidance/

memo-non-federal-cooperating-agencies-

09252000.pdf; CEQ & DOT Letters on Lead and

Cooperating Agency Purpose and Need (May 12,

2003), https://ceq.doe.gov/docs/ceq-regulations-

and-guidance/CEQ-DOT_PurposeNeed_May-

2013.pdf.

CEQ, Environmental Justice: Guidance under

the National Environmental Policy Act (Dec. 10,

1997) (‘‘Environmental Justice Guidance’’), https://

ceq.doe.gov/docs/ceq-regulations-and-guidance/

regs/ej/justice.pdf.

E.O. 12898, Federal Actions To Address

Environmental Justice in Minority Populations and

Low-Income Populations, 59 FR 7629 (Feb. 16,

1994).

CEQ, Considering Cumulative Effects Under the

National Environmental Policy Act (Jan. 1997),

https://ceq.doe.gov/publications/cumulative_

effects.html; see also CEQ, Guidance on the

Consideration of Past Actions in Cumulative Effects

Analysis (June 24, 2005), https://www.energy.gov/

sites/default/files/nepapub/nepa_documents/

RedDont/G-CEQ-PastActsCumulEffects.pdf.

CEQ, Establishing, Applying, and Revising

Categorical Exclusions Under the National

Environmental Policy Act (Nov. 23, 2010) (‘‘CE

Guidance’’), https://ceq.doe.gov/docs/ceq-

regulations-and-guidance/NEPA_CE_Guidance_

Nov232010.pdf; CEQ, Appropriate Use of Mitigation

and Monitoring and Clarifying the Appropriate Use

Continued

should include discussion of reasonably

foreseeable environmental effects of the

proposed action, reasonably foreseeable

adverse environmental effects that

cannot be avoided, and a reasonable

range of alternatives to the proposed

action. Section 102(2)(D) requires

Federal agencies to ensure the

professional integrity of the discussion

and analysis in an environmental

document; section 102(2)(E) requires

use of reliable data and resources when

carrying out NEPA; and section

102(2)(F) requires agencies to study,

develop, and describe technically and

economically feasible alternatives.

Section 106 adds provisions for

determining the appropriate level of

NEPA review. It clarifies that an agency

is only required to prepare an

environmental document when

proposing to take an action that would

constitute a final agency action and

codifies existing regulations and

caselaw that an agency is not required

to prepare an environmental document

when doing so would clearly and

fundamentally conflict with the

requirements of another law or a

proposed action is non-discretionary.

Section 106 also largely codifies the

current CEQ regulations and

longstanding practice with respect to

the use of categorical exclusions (CEs),

environmental assessments (EAs), and

EISs, as modified by the new provision

expressly permitting agencies to adopt

CEs from other agencies established in

section 109 of NEPA.

Section 107 addresses timely and

unified Federal reviews, codifying

existing practice with a few minor

adjustments, including provisions

clarifying lead, joint-lead, and

cooperating agency designation,

generally requiring development of a

single environmental document,

directing agencies to develop

procedures for project sponsors to

prepare EAs and EISs, and prescribing

page limits and deadlines similar to

current requirements. Section 108

codifies time lengths and circumstances

for when agencies can rely on

programmatic environmental

documents without additional review,

and section 109 allows a Federal agency

to use another agency’s CE. Section 111

adds a variety of definitions. This

proposed rule would update the

regulations to address how agencies

should implement NEPA consistent

with the amendments made by the FRA.

B. The Council on Environmental

Quality

NEPA established the Council on

Environmental Quality (CEQ) in the

Executive Office of the President. 42

U.S.C. 4342. For more than 50 years,

CEQ has advised presidents on national

environmental policy, assisted Federal

agencies in their implementation of

NEPA, and overseen implementation of

a variety of other environmental

initiatives from the expeditious and

thorough environmental review of

infrastructure projects

to the

sustainability of Federal operations.

NEPA charges CEQ with overseeing

and guiding NEPA implementation

across the Federal Government. In

addition to issuing the regulations for

implementing NEPA, 40 CFR parts 1500

through 1508 (referred to throughout as

‘‘the CEQ regulations’’), CEQ has issued

guidance on numerous topics related to

NEPA review. In 1981, CEQ issued the

‘‘Forty Most Asked Questions

Concerning CEQ’s National

Environmental Policy Act

Regulations,’’

which CEQ has routinely

identified as an invaluable tool for

Federal, Tribal, State, and local

governments and officials, and members

of the public, who have questions about

NEPA implementation.

CEQ also has issued guidance on a

variety of other topics, from scoping to

cooperating agencies to consideration of

effects.

For example, in 1997, CEQ

issued guidance documents on the

consideration of environmental justice

in the NEPA context

under Executive

Order (E.O.) 12898, Federal Actions to

Address Environmental Justice in

Minority Populations and Low-Income

Populations,

and on analysis of

cumulative effects in NEPA reviews,

two documents that agencies continue

to use today. From 2010 to the present,

CEQ developed additional guidance on

CEs, mitigation, programmatic reviews,

and consideration of greenhouse gas

(GHG) emissions in NEPA.

To ensure

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of Mitigated Findings of No Significant Impact (Jan.

14, 2011), https://ceq.doe.gov/docs/ceq-regulations-

and-guidance/Mitigation_and_Monitoring_

Guidance_14Jan2011.pdf; CEQ, National

Environmental Policy Act Guidance on

Consideration of Greenhouse Gas Emissions and

Climate Change, 88 FR 1196 (Jan. 9, 2023) (‘‘2023

GHG Guidance’’), https://ceq.doe.gov/guidance/

ceq_guidance_nepa-ghg.html.

CEQ, Implementation of Executive Order 11988

on Floodplain Management and Executive Order

11990 on Protection of Wetlands (Mar. 21, 1978),

https://ceq.doe.gov/docs/ceq-regulations-and-

guidance/Memorandum-Implementation-of-EO-

11988-and-EO-11990-032178.pdf; CEQ & Advisory

Council on Historic Preservation, NEPA and NHPA:

A Handbook for Integrating NEPA and Section 106

(Mar. 2013), https://ceq.doe.gov/docs/ceq-

publications/NEPA_NHPA_Section_106_

Handbook_Mar2013.pdf.

See, e.g., CEQ, Improving the Process for

Preparing Efficient and Timely Environmental

Reviews Under the National Environmental Policy

Act (Mar. 6, 2012), https://ceq.doe.gov/docs/ceq-

regulations-and-guidance/Improving_NEPA_

Efficiencies_06Mar2012.pdf; CEQ, Effective Use of

Programmatic NEPA Reviews (Dec. 18, 2014)

(‘‘Programmatic Guidance’’), https://

www.energy.gov/sites/default/files/2016/05/f31/

effective_use_of_programmatic_nepa_reviews_

18dec2014.pdf; OMB & CEQ, M–15–20, Guidance

Establishing Metrics for the Permitting and

Environmental Review of Infrastructure Projects

(Sept. 22, 2015), https://www.whitehouse.gov/wp-

content/uploads/legacy_drupal_files/omb/

memoranda/2015/m-15-20.pdf; OMB & CEQ, M–

17–14, Guidance to Federal Agencies Regarding the

Environmental Review and Authorization Process

for Infrastructure Projects (Jan. 13, 2017), https://

www.whitehouse.gov/wp-content/uploads/legacy_

drupal_files/omb/memoranda/2017/m-17-14.pdf.

See, e.g., Memorandum from President Barack

Obama to the Heads of Executive Departments and

Agencies, Speeding Infrastructure Development

through More Efficient and Effective Permitting and

Environmental Review (Aug. 31, 2011), https://

obamawhitehouse.archives.gov/the-press-office/

2011/08/31/presidential-memorandum-speeding-

infrastructure-development-through-more; E.O.

13807, Establishing Discipline and Accountability

in the Environmental Review and Permitting

Process for Infrastructure Projects, 82 FR 40463

(Aug. 24, 2017).

E.O. 14008, supra note 2.

E.O. 14008’s direction to advance

environmental justice reinforces and reflects

longstanding policy established in E.O. 12898 and

advances the related though distinct policy defined

more broadly in E.O. 13985, Advancing Racial

Equity and Support for Underserved Communities

Through the Federal Government, that the Federal

Government ‘‘pursue a comprehensive approach to

advancing equity for all, including people of color

and others who have been historically underserved,

marginalized, and adversely affected by persistent

poverty and inequality.’’ 86 FR 7009 (Jan. 25, 2021),

sec. 1.

CEQ, Explore the Map, Climate and Economic

Justice Screening Tool, https://

screeningtool.geoplatform.gov/.

E.O. 14008, supra note 2, sec. 223.

E.O. 14057, supra note 3.

E.O. 14008, supra note 2.

Id. at sec. 213(a); see also id., sec. 219

(directing agencies to ‘‘make achieving

environmental justice part of their missions by

developing programs, policies, and activities to

address the disproportionately high and adverse

human health, environmental, climate-related and

other cumulative impacts on disadvantaged

communities’’).

E.O. 14096, Revitalizing Our Nation’s

Commitment to Environmental Justice for All, 88 FR

25251 (Apr. 26, 2023). E.O. 14096 builds upon

efforts to advance environmental justice and equity

coordinated environmental review, CEQ

has issued guidance to integrate NEPA

reviews with other environmental

review requirements such as the

National Historic Preservation Act, E.O.

11988, Floodplain Management, and

E.O. 11990, Protection of Wetlands.

Finally, CEQ has provided guidance to

ensure efficient and effective

environmental reviews, particularly for

infrastructure projects.

In addition to guidance, CEQ engages

frequently with Federal agencies on

their implementation of NEPA. First,

CEQ is responsible for consulting with

all agencies on the development of their

NEPA implementing procedures and

determining that those procedures

conform with NEPA and the CEQ

regulations. Through this process, CEQ

engages with agencies to understand

their specific authorities and programs

to ensure agencies integrate

consideration of environmental effects

into their decision-making processes.

Additionally, CEQ provides feedback

and recommendations on how agencies

may effectively implement NEPA

through their procedures.

Second, CEQ consults with agencies

on the efficacy and effectiveness of

NEPA implementation. Where necessary

or appropriate, CEQ engages with

agencies on NEPA reviews for specific

projects or project types to provide

advice and identify any emerging or

cross-cutting issues that would benefit

from CEQ issuing formal guidance or

assisting with coordination. This

includes establishing alternative

arrangements for compliance with

NEPA when agencies encounter

emergency situations where they need

to act swiftly while also ensuring they

meet their NEPA obligations. CEQ also

advises on NEPA compliance when

agencies are establishing new programs

or implementing new statutory

authorities. Finally, CEQ helps advance

the environmental review process for

projects or initiatives deemed important

to an administration such as nationally

and regionally significant projects,

major infrastructure projects, and

consideration of climate change-related

effects and effects on communities with

environmental justice concerns.

Third, CEQ meets regularly with

external stakeholders to understand

their perspectives on the NEPA process.

These meetings can help inform CEQ’s

development of guidance or other

initiatives and engagement with Federal

agencies. Finally, CEQ coordinates with

other Federal agencies and components

of the White House on a wide array of

environmental issues and reviews that

intersect with the NEPA process, such

as Endangered Species Act consultation

or effects to Federal lands and waters

from federally authorized activities.

In addition to its NEPA

responsibilities, CEQ is currently

charged with implementing several of

the administration’s key environmental

priorities. On January 27, 2021, the

President signed E.O. 14008, Tackling

the Climate Crisis at Home and Abroad,

to establish a government-wide

approach to the climate crisis by

reducing GHG emissions across the

economy; increasing resilience to

climate change-related effects;

conserving land, water, and

biodiversity; transitioning to a clean-

energy economy; advancing

environmental justice; and investing in

disadvantaged communities.

CEQ is

leading the President’s efforts to secure

environmental justice consistent with

sections 219 through 223 of the E.O.

For example, CEQ has developed the

Climate and Economic Justice Screening

Tool

and collaborates with the Office

of Management and Budget (OMB) and

the National Climate Advisor on

implementing the Justice40 initiative,

which sets a goal that 40 percent of the

overall benefits of certain Federal

investments flow to disadvantaged

communities.

Section 205 of the E.O. also charged

CEQ with developing the Federal

Sustainability Plan, a directive that was

augmented by E.O. 14057, Catalyzing

Clean Energy Industries and Jobs

Through Federal Sustainability,

achieve a carbon pollution-free

electricity sector and clean and zero-

emission vehicle fleets. CEQ also is

collaborating with the Departments of

the Interior, Agriculture, and Commerce

on the implementation of the America

the Beautiful Initiative.

Additionally,

E.O. 14008 requires the Chair of CEQ

and the Director of OMB to ensure that

Federal permitting decisions consider

the effects of GHG emissions and

climate change.

CEQ is also instrumental to the

President’s efforts to institute a

government-wide approach to

advancing environmental justice. On

April 21, 2023, the President signed

E.O. 14096, Revitalizing Our Nation’s

Commitment to Environmental Justice

for All, to further embed environmental

justice into the work of Federal agencies

and ensure that all people can benefit

from the vital safeguards enshrined in

the Nation’s foundational

environmental and civil rights laws.

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consistent with the policy advanced in documents

including E.O. 13985, E.O. 14008, and E.O. 12898.

See, e.g., note 14, supra.

E.O. 14096, supra note 20, sec. 3.

Id. at sec. 4.

E.O. 11514, Protection and Enhancement of

Environmental Quality, 35 FR 4247 (Mar. 7, 1970),

sec. 3(h).

See Statements on Proposed Federal Actions

Affecting the Environment, 35 FR 7390 (May 12,

1970) (interim guidelines).

Statements on Proposed Federal Actions

Affecting the Environment, 36 FR 7724 (Apr. 23,

1971) (final guidelines); Preparation of

Environmental Impact Statements, 38 FR 10856

(May 2, 1973) (proposed revisions to the

guidelines); Preparation of Environmental Impact

Statements: Guidelines, 38 FR 20550 (Aug. 1, 1973)

(revised guidelines).

E.O. 11991, Relating to Protection and

Enhancement of Environmental Quality, 42 FR

26967 (May 25, 1977).

Implementation of Procedural Provisions, 43

FR 55978 (Nov. 29, 1978).

Implementation of Procedural Provisions;

Corrections, 44 FR 873 (Jan. 3, 1979).

National Environmental Policy Act

Regulations; Incomplete or Unavailable

Information, 51 FR 15618 (Apr. 25, 1986)

(amending 40 CFR 1502.22).

E.O. 13807, supra note 12.

Id., sec. 5(e)(iii).

Update to the Regulations for Implementing the

Procedural Provisions of the National

Environmental Policy Act, 83 FR 28591 (June 20,

2018).

Update to the Regulations Implementing the

Procedural Provisions of the National

Environmental Policy Act, 85 FR 1684 (Jan. 10,

2020).

See Docket No. CEQ–2018–0001, https://

www.regulations.gov/document/CEQ-2018-0001-

0001.

See Docket No. CEQ–2019–0003, https://

www.regulations.gov/document/CEQ-2019-0003-

0001.

Update to the Regulations Implementing the

Procedural Provisions of the National

Environmental Policy Act, 85 FR 43304 (July 16,

2020) (‘‘2020 Final Rule’’).

Wild Va. v. Council on Env’t Quality, No.

3:20cv45 (W.D. Va. 2020); Env’t Justice Health All.

v. Council on Env’t Quality, No. 1:20cv06143

(S.D.N.Y. 2020); Alaska Cmty. Action on Toxics v.

Council on Env’t Quality, No. 3:20cv5199 (N.D. Cal.

2020); California v. Council on Env’t Quality, No.

3:20cv06057 (N.D. Cal. 2020); Iowa Citizens for

Cmty. Improvement v. Council on Env’t Quality, No.

1:20cv02715 (D.D.C. 2020). Additionally, in The

Clinch Coalition v. U.S. Forest Serv., No.

2:21cv00003 (W.D. Va. 2020), plaintiffs challenged

the U.S. Forest Service’s NEPA implementing

procedures, which established new categorical

exclusions, and, relatedly, the 2020 rule’s

provisions on categorical exclusions.

Wild Va. v. Council on Env’t Quality, 544 F.

Supp. 3d 620 (W.D. Va. 2021).

Wild Va. v. Council on Env’t Quality, 56 F.4th

281 (4th Cir. 2022).

The E.O. charges each agency with

making achieving environmental justice

part of its mission consistent with

statutory authority,

and requires each

agency to submit to the Chair of CEQ

and make publicly available an

Environmental Strategic Plan setting

forth the agency’s goals and plans for

advancing environmental justice.

Further, section 8 of the E.O. establishes

a White House Office of Environmental

Justice within CEQ.

Finally, CEQ is staffed with experts

with decades of NEPA experience.

CEQ’s diverse array of responsibilities

and expertise has long influenced the

implementation of NEPA, and CEQ

relied extensively on this experience in

developing this rulemaking.

C. NEPA Implementation 1970–2019

Following shortly after the enactment

of NEPA, President Nixon issued E.O.

11514, Protection and Enhancement of

Environmental Quality, directing CEQ to

issue guidelines for implementation of

section 102(2)(C) of NEPA.

response, CEQ in April 1970 issued

interim guidelines, which addressed the

provisions of section 102(2)(C) of the

Act regarding EIS requirements.

CEQ

revised the guidelines in 1971 and 1973

to address public involvement and

introduce the concepts of EAs and draft

and final EISs.

In 1977, President Carter issued E.O.

11991, Relating to Protection and

Enhancement of Environmental Quality,

amending E.O. 11514 and directing CEQ

to issue regulations for implementation

of section 102(2)(C) of NEPA and

requiring that Federal agencies comply

with those regulations.

CEQ

promulgated its NEPA regulations in

1978.

Issued 8 years after NEPA’s

enactment, the NEPA regulations

reflected CEQ’s interpretation of the

statutory text and Congressional intent,

expertise developed through issuing and

revising the CEQ guidelines and

advising Federal agencies on their

implementation of NEPA, initial

interpretations of the courts, and

Federal agency experience

implementing NEPA. The 1978

regulations reflected the fundamental

principles of informed and science-

based decision making, transparency,

and public engagement Congress

established in NEPA. The regulations

further required agency-level

implementation, directing Federal

agencies to issue and update

periodically agency-specific

implementing procedures to

supplement CEQ’s procedures and

integrate the NEPA process into the

agencies’ specific programs and

processes. Consistent with 42 U.S.C.

4332(2)(B), the regulations also required

agencies to consult with CEQ in the

development or update of these agency-

specific procedures to ensure

consistency with CEQ’s regulations.

CEQ made typographical amendments

to the 1978 implementing regulations in

1979

and amended one provision in

1986 (CEQ refers to these regulations, as

amended, as the ‘‘1978 regulations’’ in

this preamble).

Otherwise, CEQ left

the regulations unchanged for over 40

years. As a result, CEQ and Federal

agencies developed extensive

experience implementing the 1978

regulations, and a large body of agency

practice and case law developed based

on them.

D. 2020 Amendments to the CEQ

Regulations

On August 15, 2017, President Trump

issued E.O. 13807, Establishing

Discipline and Accountability in the

Environmental Review and Permitting

Process for Infrastructure Projects,

which directed CEQ to establish and

lead an interagency working group to

identify and propose changes to the

NEPA regulations.

In response, CEQ

issued an advance notice of proposed

rulemaking (ANPRM) on June 20,

2018,

and a notice of proposed

rulemaking (NPRM) on January 10,

2020, proposing broad revisions to the

1978 regulations.

A wide range of

stakeholders submitted more than

12,500 comments on the ANPRM

and

1.1 million comments on the proposed

rule,

including from state and local

governments, Tribes, environmental

advocacy organizations, professional

and industry associations, other

advocacy or non-profit organizations,

businesses, and private citizens. Many

commenters provided detailed feedback

on the legality, policy wisdom, and

potential consequences of the proposed

amendments. In keeping with the

proposed rule, the final rule,

promulgated on July 16, 2020 (‘‘2020

regulations’’ or ‘‘2020 rule’’), made

wholesale revisions to the regulations; it

took effect on September 14, 2020.

In the months that followed the

issuance of the 2020 regulations, five

lawsuits were filed challenging the 2020

rule.

These cases challenge the 2020

rule on a variety of grounds, including

under the Administrative Procedure Act

(APA), NEPA, and the Endangered

Species Act, contending that the rule

exceeded CEQ’s authority and that the

related rulemaking process was

procedurally and substantively

defective. In response to CEQ’s motions

and joint motions, the district courts

issued temporary stays in each of these

cases, except for Wild Virginia v.

Council on Environmental Quality,

which the district court dismissed

without prejudice on June 21, 2021.

The Fourth Circuit affirmed that

dismissal on December 22, 2022.

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86 FR 7037 (Jan. 25, 2021).

Id. at sec. 1.

Id.

Id. at sec. 7.

The White House, Fact Sheet: List of Agency

Actions for Review (Jan. 20, 2021), https://

www.whitehouse.gov/briefing-room/statements-

releases/2021/01/20/fact-sheet-list-of-agency-

actions-for-review/.

Deadline for Agencies to Propose Updates to

National Environmental Policy Act Procedures, 86

FR 34154 (June 29, 2021).

National Environmental Policy Act

Implementing Regulations Provisions, 86 FR 55757

(Oct. 7, 2021).

National Environmental Policy Act

Implementing Regulations Revisions, 87 FR 23453

(Apr. 20, 2022) (‘‘Phase 1 Final Rule’’).

See CEQ, National Environmental Policy Act

Implementing Regulations Revision Phase 1

Response to Comments (Apr. 2022) (‘‘Phase 1

Response to Comments’’), https://

www.regulations.gov/document/CEQ-2021-0002-

39427.

E. CEQ’s Review of the 2020 Regulations

On January 20, 2021, President Biden

issued E.O. 13990, Protecting Public

Health and the Environment and

Restoring Science to Tackle the Climate

Crisis,

to establish an administration

policy to listen to the science; improve

public health and protect our

environment; ensure access to clean air

and water; limit exposure to dangerous

chemicals and pesticides; hold polluters

accountable, including those who

disproportionately harm communities of

color and low-income communities;

reduce GHG emissions; bolster

resilience to the impacts of climate

change; restore and expand the Nation’s

treasures and monuments; and prioritize

both environmental justice and the

creation of well-paying union jobs

necessary to achieve these goals.

The

Executive Order calls for Federal

agencies to review existing regulations

issued between January 20, 2017, and

January 20, 2021, for consistency with

the policy it articulates and to take

appropriate action.

The Executive

Order also revokes E.O. 13807 and

directs agencies to take steps to rescind

any rules or regulations implementing

it.

An accompanying White House fact

sheet, published on January 20, 2021,

specifically identified the 2020

regulations for CEQ’s review for

consistency with E.O. 13990’s policy.

Consistent with E.O. 13990 and E.O.

14008, CEQ has reviewed the 2020

regulations and engaged in a multi-

phase rulemaking process to ensure that

the NEPA implementing regulations

provide for sound and efficient

environmental review of Federal

actions, including those actions integral

to tackling the climate crisis, in a

manner that enables meaningful public

participation, provides for an

expeditious process, discloses climate

change-related effects, advances

environmental justice, respects Tribal

sovereignty, protects our Nation’s

resources, and promotes better and more

equitable environmental and

community outcomes.

First, CEQ issued an interim final rule

on June 29, 2021, amending the

requirement in 40 CFR 1507.3(b) for

agencies to propose changes to existing

agency-specific NEPA procedures by

September 14, 2021, to make those

procedures consistent with the 2020

regulations.

CEQ extended the date by

2 years to avoid agencies proposing

changes to agency-specific

implementing procedures on a tight

deadline to conform to regulations that

are undergoing extensive review and

would likely change in the near future.

Next, on October 7, 2021, CEQ issued

a ‘‘Phase 1’’ proposed rule to focus on

a discrete set of provisions designed to

restore three elements of the 1978

regulations.

CEQ proposed changes to

the provisions it considered most

critical to address, revise, and clarify

while completing the comprehensive

review. First, CEQ proposed to revise 40

CFR 1502.13 to clarify that agencies

have discretion to consider a variety of

factors when assessing an application

for authorization by removing a

requirement that an agency base the

purpose and need on the goals of an

applicant and the agency’s statutory

authority. CEQ also proposed a

conforming edit to the definition of

‘‘reasonable alternatives’’ in 40 CFR

1508.1(z). Second, CEQ proposed to

remove language in 40 CFR 1507.3 that

could be construed to limit agencies’

flexibility to develop or revise

procedures to implement NEPA specific

to their programs and functions that

may go beyond CEQ’s regulatory

requirements. Finally, CEQ proposed to

revise the definition of ‘‘effects’’ in 40

CFR 1508.1(g) to restore the substance of

the definitions of ‘‘effects’’ and

‘‘cumulative impacts’’ contained in the

1978 regulations. CEQ received 94,458

written comments in response to the

proposed rule. CEQ issued a Phase 1

final rule on April 20, 2022,

which

finalized the proposed revisions.

CEQ received a variety of comments

on the Phase 1 proposed rule suggesting

additional provisions or changes that

CEQ should consider as part of the

Phase 2 rulemaking.

For example,

commenters requested that CEQ

strengthen public participation

requirements and encourage more

robust public engagement; better

incorporate environmental justice and

climate change considerations into the

regulations; further address the climate

and biodiversity crises; modernize

environmental review of renewable

energy projects; and further refine

definitions, including human

environment, major Federal action, and

effects. In addition, commenters

suggested that CEQ address page and

time limits; mitigation; tiering; CEs; and

improved coordination among Federal,

Tribal, State, and local agencies and

governments. Additionally, many of the

comments on the Phase 1 proposed

rule’s changes to 40 CFR 1502.13 on

purpose and need also included

suggestions for changes to 40 CFR

1502.14 and the discussion of

alternatives. Where appropriate, CEQ

summarizes these Phase 1 comments as

they relate to specific subsections of

Section II of the preamble.

Here, in this Phase 2 notice of

proposed rulemaking (NPRM), CEQ

initiates a broader rulemaking to revise,

update, and modernize the NEPA

implementing regulations. Informed by

CEQ’s extensive experience

implementing NEPA, CEQ proposes

further revisions to ensure the NEPA

process provides for efficient and

effective environmental reviews that are

guided by science and are consistent

with the statute’s text and purpose;

enhance clarity and certainty for Federal

agencies, project proponents, and the

public; inform the public about the

potential environmental effects of

Federal Government actions and enable

full and fair public participation; and

ultimately promote better informed

Federal decisions that protect and

enhance the quality of the human

environment, including by ensuring

climate change, environmental justice,

and other environmental issues are fully

accounted for in agencies’ decision-

making processes.

As part of CEQ’s review, CEQ engaged

in extensive outreach with a wide

variety of interested and experienced

parties to solicit their feedback and

recommendations on what new

elements CEQ should consider adding;

what elements from the 1978

regulations CEQ should consider

restoring; what existing elements of the

NEPA regulations CEQ should consider

clarifying, revising, or removing; and

what existing elements CEQ should

retain in their current form. CEQ

convened a Federal interagency working

group made up of NEPA practitioners,

attorneys, and other experts to hear and

discuss their recommendations on a

wide variety of issues in the NEPA

regulations and more generally with the

environmental review process. The

Federal agency participants represented

the broad array of NEPA practice and

environmental expertise across the

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CEQ prepared a redline of this proposed rule’s

changes to the current CEQ regulations and

provided it in the docket as a tool to facilitate

public review of this NPRM.

Phase 1 Response to Comments, supra note 48,

at 120–21.

In the preamble, CEQ uses the section symbol

(§) to refer to the proposed regulations as set forth

in this NPRM and 40 CFR to refer to the current

CEQ regulations as set forth in 40 CFR parts 1500–

1508. When referencing specific regulatory sections

in place prior to the 2020 final rule, CEQ uses 40

CFR but adds ‘‘(2019).’’

Federal Government, including land

management, infrastructure, resource

conservation, climate, and

environmental justice experts.

CEQ also hosted or participated in

over 60 meetings with external parties,

such as environmental organizations,

business and industry organizations

(including timber, energy, air, grazing,

mining, and transportation

organizations), Tribal Nations, State

governments, environmental justice

organizations, academics, and labor

organizations. Additionally, CEQ held a

Tribal consultation specifically on the

Phase 2 regulations and the updates to

CEQ’s GHG guidance on November 12,

2021. CEQ considered the feedback

received during these engagements in

the development of this proposed rule

and has included summaries of the

external engagements in the docket.

Finally, as discussed in Section I.B,

CEQ relies on its extensive experience

overseeing and implementing NEPA in

the development of this rule. CEQ has

over 50 years of experience advising

Federal agencies on the implementation

of NEPA. CEQ collaborates daily with

Federal agencies on specific NEPA

reviews, provides government-wide

guidance on NEPA implementation,

consults with agencies on the

development of agency-specific NEPA

implementing procedures and

determines they conform with NEPA

and the CEQ regulations, and advises

the President on a vast array of

environmental issues. This experience

also enables CEQ to clarify the

patchwork of fact-specific judicial

decisions that have evolved under

NEPA. This rulemaking seeks to bring

clarity and predictability to Federal

agencies and outside parties whose

activities require Federal action and

therefore trigger NEPA review, while

also facilitating better environmental

and social outcomes due to informed

decision making.

II. Summary of Proposed Rule

This section summarizes CEQ’s

proposed revisions to its NEPA

implementing regulations and the

rationale for the changes. CEQ’s

proposed changes fall into five general

categories. First, CEQ proposes revisions

to implement the amendments to NEPA

made by the FRA. Second, where CEQ

determined it made sense to do so, CEQ

proposes to amend provisions, which

the 2020 regulations revised, to revert to

the language from the 1978 regulations

that was in effect for more than 40 years,

subject to minor revisions for clarity.

Third, CEQ proposes to remove certain

provisions added by the 2020 rule that

CEQ considers imprudent or legally

unsettled. Fourth, CEQ proposes to

amend certain provisions to enhance

consistency and provide clarity to

improve the efficiency and effectiveness

of the environmental review process.

Fifth, CEQ proposes revisions to the

regulations to implement decades of

CEQ and agency experience

implementing and complying with

NEPA, foster science-based decision

making—including decisions that

account for climate change and

environmental justice—improve the

efficiency and effectiveness of the

environmental review process, and

better effectuate NEPA’s statutory

purposes. CEQ is retaining many of the

changes made in the 2020 rulemaking

particularly where those changes

codified longstanding practice or

guidance or enhanced the efficiency and

effectiveness of the NEPA process.

In response to the Phase 1 proposed

rule, CEQ received many comments on

provisions not addressed in Phase 1.

CEQ indicated in the Phase 1 final rule

that it would consider such comments

during the development of this Phase 2

rulemaking. CEQ has done so, and

where applicable, this NPRM provides a

high-level summary of the important

issues raised in those public comments.

While some comments have

advocated for a straight return to the

1978 regulations, CEQ does not consider

this to be the appropriate approach. As

part of its review, CEQ evaluated the

provisions of the 2020 regulations and

sought feedback from NEPA experts and

interested stakeholders to identify

provisions that, as written, add value to

the NEPA process or that require

amendments to enhance clarity or

improve efficiency and effectiveness.

For example, CEQ identified for

retention the inclusion of Tribal

interests throughout the regulations, the

integration of mechanisms to facilitate

better interagency cooperation, and the

reorganization and modernization of

provisions addressing certain elements

of the process to make the regulations

easier to understand and follow. CEQ

considers it important that the

regulations meet current goals and

objectives, including to promote the

development of NEPA documents that

are concise but also include the

information needed to inform decision

makers and reflect public input. CEQ’s

proposed revisions to the regulations

emphasize the importance of

transparency and public engagement,

reflecting modern practices and

changing needs, while also recognizing

the discretion and flexibility that

Federal agencies need to respond and

move efficiently and effectively through

the NEPA process.

A. Proposed Changes Throughout Parts

1500–1508

CEQ proposes several revisions

throughout parts 1500–1508 to provide

consistency, improve clarity, and

correct grammatical errors. Improved

clarity reduces confusion and results in

more consistent implementation,

thereby improving the efficiency of the

NEPA process and reducing the risk of

litigation.

For greater consistency and clarity,

CEQ proposes to change the word

‘‘impact’’ to ‘‘effect’’ where this term is

used as a noun because these two words

are synonymous. Throughout the

regulations, to improve clarity, CEQ

proposes to use the word ‘‘significant’’

only to modify the term ‘‘effects.’’

Accordingly, throughout the

regulations, where ‘‘significant’’

modifies a word other than ‘‘effects,’’

CEQ proposes to replace ‘‘significant’’

with another accurate adjective,

typically ‘‘important’’ or ‘‘substantial,’’

which have been used throughout the

CEQ regulations since 1978. In doing so,

CEQ seeks to avoid confusion about

what ‘‘significant’’ means in these other

contexts by limiting its use to describing

‘‘significant effects.’’ The one exception

to this change would be that CEQ

proposes for the regulations to continue

to refer to a finding of no significant

impact (FONSI), which CEQ would

leave intact because the concept of a

FONSI is entrenched in practice and

case law. CEQ heard from public

comments and agency feedback on the

Phase 1 rulemaking that use of the word

‘‘significant’’ in phrases such as

‘‘significant issues’’ or ‘‘significant

actions’’ creates confusion on what the

word ‘‘significant’’ means.

The

proposed change also aligns with the

proposed definition of ‘‘significant

effects’’ in § 1508.1(jj),

as discussed in

section II.J.13. CEQ does not intend

these proposed changes to substantively

change the meaning of the provisions.

For clarity, CEQ proposes to change

‘‘statement’’ to ‘‘environmental impact

statement’’ and ‘‘assessment’’ to

‘‘environmental assessment’’ where the

regulations only use the short form in

the paragraph. See, e.g., §§ 1502.3 and

1506.3(e)(1) through (e)(3).

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2020 Final Rule, supra note 36, at 43316–17.

See E.O. 13175, Consultation and Coordination

with Indian Tribal Governments, 65 FR 67249 (Nov.

9, 2000); Presidential Memorandum, Tribal

Consultation and Strengthening Nation-to-Nation

Relationships, 86 FR 7491 (Jan. 29, 2021), https://

www.federalregister.gov/d/2021-02075.

CEQ also proposes to make

grammatical corrections or other edits

throughout the regulations where CEQ

considers the changes necessary for the

reader to understand fully the meaning

of the sentences. Finally, CEQ proposes

to update the authorities for each part,

update the references to NEPA as

amended by the FRA, and fix internal

cross references to other sections of the

regulations throughout to follow the

correct Federal Register format.

B. Proposed Revisions To Update Part

1500, Purpose and Policy

1. Purpose (§ 1500.1) and Policy

(§ 1500.2)

Consistent with the approach taken in

the 1978 regulations, CEQ proposes to

address the purpose of the CEQ

regulations in § 1500.1, ‘‘Purpose,’’ and

reinstate § 1500.2, ‘‘Policy.’’ In §1500.1,

CEQ proposes to restore much of the

language from the 1978 regulations and

further incorporate the policies

Congress established in the NEPA

statute. CEQ is proposing these changes

to restore text regarding NEPA’s purpose

and goals, placing the regulations into

their broader context. CEQ also finds

value in restating the policies of the Act

within the regulations, which would

improve readability by avoiding the

need for cross references to material

outside the four corners of the

regulations.

Specifically, CEQ proposes to revise

40 CFR 1500.1(a) by subdividing it into

§ 1500.1(a), (a)(1), and (a)(2), and

restoring language from the 1978

regulations that states the principles and

policies Congress established in sections

101 and 102 of NEPA. CEQ is proposing

to remove the language that describes

NEPA as a purely procedural statute

because, while correct, CEQ considers

that language to be an inappropriately

narrow view of NEPA’s purpose that

minimizes some of the broader goals of

NEPA described in section I.A. While

CEQ agrees that a NEPA analysis does

not dictate a particular outcome by the

decision maker, Congress established

the NEPA process to provide for better

informed Federal decision making and

improve environmental outcomes, and

those goals are not fulfilled if the NEPA

analysis is treated merely as a check-

the-box exercise. In short, CEQ does not

consider it necessary to repeatedly

emphasize the procedural nature of

NEPA, which may suggest that NEPA

mandates a rote paperwork exercise and

de-emphasizes the Act’s larger goals and

purposes. Instead, CEQ remains

cognizant of the goals Congress

intended to achieve through the NEPA

process in developing its implementing

regulations, and agencies should carry

out NEPA’s procedural requirements in

a manner faithful to the purposes of the

statute.

In § 1500.1(a)(1), CEQ proposes to

retain the sentence summarizing section

101(a) of NEPA and add a second

sentence summarizing section 101(b) to

clarify that agencies also should

accomplish the purposes described in

section 101(b) through NEPA reviews.

Including this language in § 1500.1(a)(1)

would help agencies understand what

the regulations refer to when the

regulations direct or encourage agencies

to act in a manner consistent with the

purposes or policies of the Act. See, e.g.,

§§ 1500.2(a), 1500.6, 1501.1(a),

1502.1(a), and 1507.3(b).

In § 1500.1(a)(2), CEQ proposes to

restore generally the language of the

1978 regulations stating that the

purpose of the regulations is to convey

what agencies should and must do to

comply with NEPA to achieve its

purpose. CEQ proposes to strike the

language added by the 2020 rule that

NEPA requires Federal agencies to

provide a detailed statement for major

Federal actions, that the purpose and

function of NEPA is satisfied if agencies

have considered environmental

information and informed the public,

and that NEPA does not mandate

particular results. While it is true that

NEPA does not mandate particular

results in specific decision-making

processes, this language unduly

minimizes Congress’s understanding

that procedures ensuring that agencies

analyze, consider, and disclose

environmental effects will lead to better

substantive outcomes, and is

inconsistent with Congress’s statements

of policy in the NEPA statute.

In § 1500.1(b), CEQ proposes to strike

the first two sentences added by the

2020 rule and restore language from the

1978 regulations emphasizing the

importance of the early identification of

high-quality information that is relevant

to a decision. Early identification and

consideration of issues using high-

quality information have long been

fundamental to the NEPA process,

particularly because this facilitates

comprehensive analysis of alternatives

and timely and efficient decision

making, and CEQ considers it important

to emphasize these considerations in

this section. The proposed changes also

emphasize that the environmental

information that agencies use in the

NEPA process should be high-quality,

science-based, and accessible. CEQ

proposes to strike the first two sentences

of this paragraph, which the 2020 rule

added, because they also provide an

unnecessarily narrow view of the

purposes of NEPA and its implementing

regulations.

Finally, CEQ proposes in a new

§ 1500.1(c) to restore text from the 1978

regulations, most of which the 2020 rule

deleted, emphasizing the importance of

NEPA reviews for informed decision

making. The proposed changes to

§ 1500.1 recognize that the procedural

provisions of NEPA are intended to

further the purpose and goals of the Act.

One of those goals is to make improved

and sound government decisions.

The 2020 rule struck 40 CFR 1500.2

(2019) and integrated policy language

into 40 CFR 1500.1 (2020).

CEQ is

proposing to once again provide for two

sections, renaming § 1500.1 to

‘‘Purpose’’ and restoring § 1500.2 as

‘‘Policy.’’ CEQ is proposing to restore

with some updates the language of the

1978 regulations to § 1500.2.

In § 1500.2(a), CEQ proposes to

restore the 1978 language directing

agencies to interpret their authorities

consistent with the policies of NEPA

and the CEQ regulations to the fullest

extent possible. Paragraph (b) would

restore with clarifying edits the 1978

language directing agencies to

implement procedures that facilitate a

meaningful NEPA process to the fullest

extent possible and emphasize that

environmental documents should be

concise and clear. Paragraph (c) would

direct agencies to integrate NEPA with

other planning and environmental

review requirements to the fullest extent

possible, which promotes efficient

processes. CEQ proposes to modernize

language from the 1978 regulations in

paragraph (d) to emphasize public

engagement, including with

communities with environmental justice

concerns, which often include

communities of color, low-income

communities, and indigenous

communities, and Tribal communities.

CEQ views an emphasis on engagement

with such communities to be important

because agencies have not always

meaningfully engaged with them and

such communities have been

disproportionately and adversely

affected by certain Federal activities.

In proposing to make this change to

emphasize public engagement, CEQ

notes that the obligation to consult with

Tribal Nations on a nation-to-nation

basis is distinct from the public

engagement requirements of NEPA.

CEQ invites comment on whether

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Consideration of environmental justice and

climate change-related effects has long been part of

NEPA analysis. See, e.g., Environmental Justice

Guidance, supra note 6, and Ctr. For Biological

Diversity v. Nat’l Highway Traffic Safety Admin.,

538 F.3d 1172 (9th Cir. 2008). See also 42 U.S.C.

4331(b) (‘‘[I]t is the continuing responsibility of the

Federal Government to . . . assure for all

Americans safe, healthful, productive, and

esthetically and culturally pleasing surroundings

. . . [and to] maintain, wherever possible, an

environment which supports diversity and variety

of individual choice’’ (emphasis added); 42 U.S.C.

4332(2)(F) (‘‘all agencies of the Federal Government

shall . . . recognize the worldwide and long-range

character of environmental problems’’).

2020 Final Rule, supra note 36 at 43317.

2020 Final Rule, supra note 36, at 43317–18.

Id. (citing Dep’t of Transp. v. Pub. Citizen, 541

U.S. 752 (2004); Karst Env’t. Educ. & Prot., Inc. v.

Fed. Highway Admin., 559 F. App’x 421 (6th Cir.

2014); Friends of the Norbeck v. U.S. Forest Serv.,

661 F.3d 969 (8th Cir. 2011); Exxon Mobil Corp. v.

U.S. EPA, 217 F.3d 1246 (9th Cir. 2000); Nat’l Ass’n

of Mfrs. v. U.S. Dep’t of the Interior, 134 F.3d 1095

(D.C. Cir. 1998)).

additional changes to the NEPA

regulations would be appropriate in

light of the obligation for Tribal

consultation.

In paragraph (e), CEQ proposes to

restore language from the 1978

regulations regarding the identification

of alternatives that avoid or minimize

adverse effects. CEQ is proposing to add

examples of such alternatives, including

those that will reduce climate change-

related effects or address effects that

disproportionately affect communities

with environmental justice concerns

consistent with E.O. 12898 and E.O.

14096, to highlight the importance of

considering such effects in

environmental documents, consistent

with NEPA’s requirements, including

the consideration of high-quality

information, such as best available

science and data.

Finally, in paragraph (f), CEQ

proposes to restore the direction from

the 1978 regulations to use all

practicable means to restore and

enhance the environment, consistent

with the policies of NEPA. These

proposed restorations and additions to

§ 1500.2(d), (e), and (f) reflect

longstanding practice among Federal

agencies and align with NEPA’s

statutory policies, including to avoid

environmental degradation, preserve

historic, cultural, and natural resources,

and ‘‘attain the widest range of

beneficial uses of the environment

without degradation, risk to health or

safety, or other undesirable and

unintended consequences.’’ 42 U.S.C.

4331(b).

The 2020 rule removed the Policy

section stating that it was duplicative of

other sections.

However, CEQ

proposes to restore and update this

section because a robust articulation of

the Act’s policy principles is

fundamental to the NEPA process. CEQ

also considers it helpful to agency

practitioners and the public to have a

consolidated listing of policy objectives

regardless of whether other sections of

the regulations address those objectives.

2. NEPA Compliance (§ 1500.3)

CEQ proposes to remove from

§ 1500.3 provisions added by the 2020

rule regarding exhaustion and remedies,

restore some language from the 1978

regulations removed by the 2020 rule,

and make other conforming edits.

Specifically, in § 1500.3(a), CEQ

proposes to remove the phrase ‘‘except

where compliance would be

inconsistent with other statutory

requirements’’ because this is addressed

by § 1500.6. CEQ also proposes to

remove the reference to E.O. 13807,

which E.O. 13990 revoked, as well as

the reference to section 309 of the Clean

Air Act because this provision is

implemented by EPA.

CEQ proposes to delete 40 CFR

1500.3(b), including its paragraphs. The

process established by the 2020 rule

provides that first, an agency must

request in its notice of intent (NOI)

comments on all relevant information,

studies, and analyses on potential

alternatives and effects. 40 CFR

1500.3(b)(1). Second, the agency must

summarize all the information it

receives in the draft EIS and specifically

seek comment on it. 40 CFR

1500.3(b)(2), 1502.17, 1503.1(a)(3).

Third, decision makers must certify in

the record of decision (ROD) that they

considered all the alternatives,

information, and analyses submitted by

public commenters. 40 CFR

1500.3(b)(4), 1505.2(b). Fourth, any

comments not submitted within the

comment period are considered

forfeited as unexhausted. 40 CFR

1500.3(b)(3), 1505.2(b). By adding this

exhaustion process, the 2020 rule aimed

to limit legal challenges and judicial

remedies.

CEQ proposes to remove this process

because it establishes an inappropriately

stringent exhaustion requirement for

public commenters and agencies. It is

unsettled whether CEQ has the

authority under NEPA to set out an

exhaustion requirement that bars parties

from bringing claims on the grounds

that an agency’s compliance with NEPA

violated the APA, pursuant to 5 U.S.C.

702. While the 2020 rule correctly

identifies instances in which courts

have ruled that parties may not raise

legal claims based on issues that they

themselves did not raise during the

comment period,

other courts have

sometimes ruled that a plaintiff can

bring claims where another party raised

an issue in comments or where the

agency should have identified an issue

on its own. Pac. Coast Fed’n of

Fishermen’s Ass’ns v. U.S. Dep’t of

Interior, 929 F. Supp. 2d 1039, 1045–46

(E.D. Cal. 2013); Wyo. Lodging and Rest.

Ass’n v. U.S. Dep’t of Interior, 398 F.

Supp. 2d 1197, 1210 (D. Wyo. 2005); see

Pub. Citizen, 541 U.S. at 765 (noting that

‘‘[T]he agency bears the primary

responsibility to ensure that it complies

with NEPA . . . and an EA’s or an EIS’

flaws might be so obvious that there is

no need for a commentator to point

them out specifically in order to

preserve its ability to challenge a

proposed action’’). Because the

fundamental question raised by these

cases is the availability of a cause of

action under the APA, and not a

question of interpreting NEPA, CEQ

considers this question more

appropriate for the courts to determine.

Further, nothing in this revision would

limit the positions the Federal

Government may take regarding

whether, based on the facts of a

particular case, a particular issue has

been forfeited by a party’s failure to

raise it before the agency, and removing

this provision does not suggest that a

party should not be held to have

forfeited an issue by failing to raise it.

By deleting the exhaustion

requirements, CEQ does not take the

position that plaintiffs may raise new

and previously unraised issues in

litigation. Rather, CEQ considers this to

be a question of general administrative

law and therefore the courts to be the

proper venue to determine whether any

particular claim can proceed.

Moreover, the exhaustion requirement

established in the 2020 rule is at odds

with longstanding agency practice.

While courts have ruled that agencies

are not required to do so, see, e.g., Pub.

Citizen, 541 U.S. at 764–65 (finding that

where a party does not raise an

objection in their comments on an EA,

the party forfeits any objection to the EA

on that ground), agencies have

discretion to consider and respond to

comments submitted after a comment

period ends. The exhaustion

requirement established in the 2020

regulations could encourage agencies to

disregard important information

presented to the agency shortly after a

comment period closes, and such a

formalistic approach would not advance

NEPA’s goal of informed decision

making.

To be clear, this change does not

relieve parties interested in

participating in, commenting on, or

ultimately challenging a NEPA analysis

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of the obligation to ‘‘structure their

participation so that it is meaningful.’’

Vt. Yankee Nuclear Power Corp. v. Nat.

Res. Def. Council, Inc., 435 U.S. 519,

553 (1978). As CEQ’s regulations have

made clear since 1978, parties must

provide comments that are as specific as

possible to enable agencies to consider

and address information during the

decision-making processes. See 40 CFR

1503.3(a). While commenters should

follow the appropriate procedures and

time limits, the revisions would provide

agencies flexibility to address unusual

circumstances.

CEQ proposes to redesignate 40 CFR

1500.3(c), ‘‘Review of NEPA

compliance,’’ as paragraph (b) and move

to paragraph (b) the sentence from 40

CFR 1500.3(d) regarding harmless error

for minor, non-substantive errors, which

is a concept that has been in place since

the 1978 regulations. CEQ proposes to

delete the remaining text of 40 CFR

1500.3(c), removing language that

noncompliance with NEPA and the CEQ

regulations should be resolved as

expeditiously as possible. While CEQ

agrees with expeditious resolution of

issues, CEQ considers this inappropriate

for regulatory text as these regulations

cannot compel members of the public or

courts to resolve NEPA disputes. Rather,

the regulations promote public

engagement, appropriate analysis, and

informed decision making to facilitate

NEPA compliance and avoid such

disputes from the outset. CEQ also

proposes to strike the last sentence in

this paragraph regarding bonding and

other security requirements, which

relates to litigation over an agency

action and not the NEPA process itself.

It is unsettled whether NEPA provides

agencies with authority to promulgate

procedures that require plaintiffs to post

bonds in litigation brought under the

APA. In any case, CEQ does not

consider it appropriate to address this

issue in the NEPA implementing

regulations.

With the exception of the last

sentence in 40 CFR 1500.3(d) regarding

remedies, which CEQ proposes to move,

as discussed earlier in this section, CEQ

proposes to delete the remainder of the

paragraph. It is questionable whether

CEQ has the authority to direct courts

about what remedies are available in

litigation brought under the APA to

challenge NEPA compliance and, in any

case, CEQ considers the 2020 rule’s

addition of this paragraph to be

inappropriate. CEQ considers courts to

be in the best position to determine the

appropriate remedies when a plaintiff

successfully challenges an agency’s

NEPA compliance.

Finally, CEQ proposes to redesignate

40 CFR 1500.3(e), ‘‘Severability,’’ as

paragraph (c), without change. CEQ

intends these regulations to be

severable. The proposed rule would

amend existing regulations and the

NEPA regulations could be functionally

implemented if each revision proposed

in this rule occurred on its own or in

combination with any other subset of

proposed revisions. As a result, if a

court were to invalidate any particular

provision of this rule, allowing the

remainder of the rule to remain in effect

would still result in a functional NEPA

review process. This approach to

severability is the same as the approach

that CEQ took when it promulgated the

2020 regulations, because those

amendments similarly could be layered

onto the 1978 regulations individually

without disrupting the overarching

NEPA review process.

3. Concise and Informative

Environmental Documents (§ 1500.4)

CEQ proposes to revise § 1500.4 to

emphasize the important values served

by concise and informative NEPA

documents beyond merely reducing

paperwork, such as promoting informed

and efficient decision making and

facilitating meaningful public

participation. Section 1500.4 lists

examples of provisions in the CEQ

regulations that provide mechanisms by

which agencies may prepare concise

and informative environmental

documents. Each paragraph listed in

§ 1500.4 includes cross references to

regulatory provisions that further the

goal of preparing concise and

informative documents.

To that end, CEQ proposes to retitle

§ 1500.4 from ‘‘Reducing paperwork’’ to

‘‘Concise and informative

environmental documents’’ and revise

the introductory text to clarify that the

paragraphs in this section provide

examples of the mechanisms in the

regulations that agencies can use to

prepare concise and informative

environmental documents. CEQ

proposes to remove paragraphs (a) and

(b) from 40 CFR 1500.4 because they are

redundant with § 1500.5(a) and (b) and

are more appropriately addressed in the

section on reducing delay, as well as

paragraph (d) because it is addressed in

the revised introductory text. CEQ

proposes to redesignate 40 CFR

1500.4(c) and (e) through (q) as § 1500.4

(a) and (b) through (n), respectively.

CEQ proposes to add ‘‘e.g.,’’ to the

cross references listed in § 1500.4(b), (c),

and (e) to clarify that they are non-

exclusive examples of how agencies can

briefly discuss unimportant issues,

write in plain language, and reduce

emphasis on background material. CEQ

would update the cross references to

other sections of the subchapter to

reflect proposed changes elsewhere in

the regulations. In paragraphs (c) and

(e), CEQ proposes to expand the

reference from EISs to all environmental

documents, as the concepts discussed

are more broadly applicable.

Additionally, in paragraph (e), CEQ

proposes to insert ‘‘most’’ before

‘‘useful’’ to clarify that the

environmental documents should not

contain portions that are useless.

In § 1500.4(f), CEQ proposes to

replace ‘‘significant’’ with ‘‘important’’

and insert ‘‘unimportant’’ to modify

‘‘issues’’ consistent with our proposal to

only use ‘‘significant’’ to modify

‘‘effects.’’ CEQ also proposes to clarify

in paragraph (f) that scoping may apply

to EAs. Finally, CEQ proposes to expand

paragraph (h), regarding programmatic

review and tiering, to include EAs to

align with the proposed changes to

§ 1501.11. Finally, in paragraph (m),

CEQ proposes to insert ‘‘Federal’’ before

‘‘agency’’ consistent with § 1506.3,

which allows adoption of NEPA

documents prepared by other Federal

agencies.

Concise and informational documents

make the NEPA process more accessible

and transparent to the public, allowing

the public an opportunity to contribute

to the NEPA process. The changes

proposed in § 1500.4 align the

regulations with the intent of NEPA to

allow the public to provide input, as

well as CEQ’s stated goal of increasing

transparency, while providing agencies

flexibility on how to achieve concise

and informative documents. These

proposed changes aim to encourage the

preparation of documents that can be

easily read and understood, which in

turn promote informed and efficient

decision making.

4. Efficient Process (§ 1500.5)

CEQ proposes minor changes to

§ 1500.5 to provide clarity and

flexibility regarding mechanisms by

which agencies can apply the CEQ

regulations to improve efficiency in the

environmental review process. CEQ

proposes these changes to acknowledge

that unanticipated events and

circumstances beyond agency control

may delay the environmental review

process, and to recognize that, while

these approaches may improve

efficiency for many NEPA reviews, they

could be inefficient for others. To that

end, CEQ proposes to retitle § 1500.5

from ‘‘Reducing delay’’ to ‘‘Efficient

process’’ and revise the introductory

text to reflect the new title. The other

proposed changes include adding EAs

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2020 Final Rule, supra note 36, at 43319.

to paragraph (a) to make the provision

consistent with the definition of

‘‘categorical exclusion;’’ changing ‘‘real

issues’’ to ‘‘important issues that

required detailed analysis’’ in paragraph

(f) for consistency with § 1502.4; and

expanding the scope of paragraph (h)

from EISs to environmental documents

to make clear that, regardless of the

level of NEPA review, agencies should

prepare environmental documents early

in the process. Proposed § 1500.5

recognizes the importance of timely

information for decision making and

encourages agencies to implement the

12 listed mechanisms to achieve timely

and efficient NEPA processes.

5. Agency Authority (§ 1500.6)

In § 1500.6, CEQ proposes to revise

the second sentence to remove the

qualification added in the 2020 rule that

agencies must ensure full compliance

with the Act ‘‘as interpreted by’’ these

regulations and instead state that

agencies must review and revise their

procedures to ensure compliance with

NEPA and the CEQ regulations. The

phrase added in 2020 could be read to

indicate that agencies have no

freestanding requirement to comply

with NEPA itself, which would be

untrue. CEQ also considers the

proposed change necessary for

consistency with § 1507.3(b), which

CEQ revised in the Phase 1 rulemaking

to make clear that, while agency

procedures must be consistent with the

CEQ regulations, agencies have

discretion and flexibility to develop

procedures beyond the CEQ regulatory

requirements, enabling agencies to

address their specific programs,

statutory mandates, and the contexts in

which they operate. CEQ proposes to

make conforming edits in §§ 1502.2(d)

and 1502.9(b) to remove this phrase.

In the third sentence, CEQ proposes to

remove the cross-reference to § 1501.1

for consistency with the proposed

modifications to § 1501.1 and restore the

intent of language from the 1978

regulations, with modification,

explaining that the phrase ‘‘to the fullest

extent possible’’ means that each agency

must comply with section 102 of NEPA

unless an agency activity, decision, or

action is exempted by law or

compliance with NEPA is impossible.

Finally, CEQ proposes to strike the last

sentence stating that the CEQ

regulations do not limit an agency’s

other authorities or legal

responsibilities, which the 2020 rule

added to acknowledge the possibility of

different statutory authorities with

different requirements. While the 2020

regulations contended that this sentence

was added for consistency with E.O.

11514, as amended by section 2(g) of

E.O. 11991, CEQ considers the sentence

superfluous and unnecessarily vague.

As stated in the new proposed text,

agencies must comply with NEPA in

carrying out an activity, decision, or

action unless exempted by law or

compliance with NEPA is impossible.

That description would reflect

accurately the directive that Federal

agencies comply with the CEQ

regulations ‘‘except where such

compliance would be inconsistent with

statutory requirements.’’

CEQ’s proposed revisions to § 1500.6

would clarify that agencies have an

independent responsibility to ensure

compliance with NEPA and a duty to

harmonize NEPA with their other

statutory requirements and authorities

to the maximum extent possible. This is

true as a general matter of statutory

construction as well as under the

specific statutory mandate of section

102 of NEPA, which requires that ‘‘the

policies, regulations, and public laws of

the United States shall be interpreted

and administered in accordance with

the policies set forth in this [Act].’’ 42

U.S.C. 4332(1).

Therefore, compliance with NEPA is

only impossible within the meaning of

this subsection when the conflict

between another statute and the

requirements of NEPA are clear,

unavoidable, and irreconcilable. Absent

exemption by Congress or a court, an

irreconcilable conflict exists only if the

agency’s authorizing statute grants it no

discretion to comply with NEPA while

also satisfying the statutory mandate.

C. Proposed Revisions To Update Part

1501, NEPA and Agency Planning

CEQ is proposing substantive

revisions to all sections in part 1501

except § 1501.2, ‘‘Apply NEPA early in

the process,’’ to which CEQ proposes

minor edits for readability that CEQ

considers clarifying and non-

substantive. CEQ invites comment on

whether it should make any substantive

changes to that section or other changes

to part 1501.

1. Purpose (§ 1501.1)

CEQ proposes to revert and retitle

§ 1501.1 to ‘‘Purpose,’’ to emphasize the

goals of part 1501 consistent with the

approach in the 1978 regulations. As

discussed further below, CEQ proposes

to move some of the NEPA thresholds

language in 40 CFR 1501.1 to

§ 1503.1(a), strike the remaining text,

and replace it with new provisions

similar to those in the 1978 regulations.

In § 1501.1(a), CEQ proposes to

highlight the importance of integrating

NEPA early in agency planning

processes by generally restoring the

language from the 1978 regulations,

while also emphasizing that this

promotes an efficient process and

reduces delay. Restoring this language is

consistent with section 102(2)(C) of

NEPA and the objective to build into

agency decision making, beginning at

the earliest point, an appropriate

consideration of the environmental

aspects of a proposed action. 42 U.S.C.

4332(2)(C). CEQ proposes in paragraph

(b) to emphasize early engagement in

the environmental review process

consistent with other changes proposed

throughout the regulations to elevate the

importance of early coordination and

engagement throughout the NEPA

process to identify and address potential

issues early in a decision-making

process, thereby helping to reduce the

overall time required to approve a

project and improving outcomes. In new

paragraph (c), CEQ proposes to restore

text from the 1978 regulations regarding

expeditious resolution of interagency

disputes as promoted in §§ 1501.7 and

1501.8. Paragraph (d) also would restore

the direction to identify the scope of the

proposed action and important

environmental issues consistent with

§ 1501.3, thereby enhancing efficiency.

Finally, paragraph (e) would highlight

the importance of schedules consistent

with § 1501.10, which includes

provisions requiring agencies to develop

a schedule for all environmental

reviews and authorizations, as well as

§§ 1501.7 and 1501.8, which promote

interagency coordination including with

respect to schedules.

As discussed further in section II.C.2,

CEQ proposes to combine the threshold

considerations provision with the

process to determine the appropriate

level of NEPA review in § 1501.3 by

moving 40 CFR 1501.1(a)(1), (2), (4), and

(5) to proposed § 1501.3(a)(1), (2), (4),

and (4)(ii), respectively, and striking the

remaining paragraphs. The 2020

regulations replaced the purpose section

in 40 CFR 1501.1 with a list of factors

agencies should consider in assessing

whether NEPA applies or is otherwise

fulfilled for a proposed activity or

decision, and allows agencies to make

these threshold considerations pursuant

to their agency NEPA procedures or on

an individual basis.

CEQ proposes to delete two of the

threshold factors currently in 40 CFR

1501.1(a). First, CEQ proposes to delete

the factor currently listed in 40 CFR

1501.1(a)(3), inconsistency with

Congressional intent expressed in

another statute. Upon further

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consideration, this factor may

inadequately account for agencies’

responsibility to harmonize NEPA with

other statutes, as discussed further in

section II.C.2. As discussed in section

II.B.5, the regulations provide that an

agency should determine if a statute or

court exempts an action from NEPA or

if compliance with NEPA and another

statute would be impossible; if not, the

agency must comply with NEPA. To the

extent the factor suggests that Congress’s

intent regarding NEPA compliance

involves considerations other than those

two determinations, the factor is

incorrect.

Second, CEQ proposes to strike the

factor in 40 CFR 1501.1(a)(6) regarding

functional equivalence. While certain

Environmental Protection Agency (EPA)

actions are explicitly exempted from

NEPA’s environmental review

requirements, and courts have found

other EPA-administered statutes to be

functionally equivalent or otherwise

exempt, CEQ considers this language

added to the 2020 rule to go beyond the

scope of the NEPA statute and case law

because the language can be construed

to expand functional equivalence

beyond the narrow contexts in which it

has been recognized. See, e.g., 15 U.S.C.

793(c)(1) (exempting EPA actions under

the Clean Air Act); 33 U.S.C. 1371(c)(1)

(exempting most EPA actions under the

Clean Water Act); Env’t Def. Fund, Inc.

v. EPA, 489 F.2d 1247, 1256–57 (D.C.

Cir. 1973) (exempting agency actions

under FIFRA); W. Neb. Res. Council v.

U.S. Env’t Prot. Agency, 943 F.2d 867,

871–72 (8th Cir. 1991) (noting

exemptions under the Safe Drinking

Water Act). CEQ considers the more

appropriate and prudent approach is for

agencies to establish mechanisms in

their agency NEPA procedures to align

processes and requirements from other

environmental laws with the NEPA

process.

CEQ proposes to eliminate the current

language in 40 CFR 1501.1(b) allowing

agencies to make threshold

determinations individually or in their

NEPA procedures because CEQ

proposes to move the consideration of

thresholds into § 1501.3 to consolidate

the steps agencies should take to

determine whether NEPA applies and, if

so, what level of NEPA review is

appropriate. The language in 40 CFR

1501.1(b) is also redundant to language

in § 1507.3(d)(1), which would provide

that agency NEPA procedures may

identify activities or decisions that are

not subject to NEPA. CEQ proposes to

remove as unnecessary 40 CFR

1501.1(b)(1) because agencies have

discretion to consult with CEQ and have

done so for decades on a wide variety

of matters, including on determining

NEPA applicability, without such

specific language in the CEQ

regulations. Finally, CEQ proposes to

eliminate 40 CFR 1501.1(b)(2) directing

agencies to consult with another agency

when they jointly administer a statute if

they are making a threshold

applicability determination. While CEQ

agrees that consultation is a good

practice in such circumstances, it does

not consider such a requirement

necessary for these regulations because

consultation is best determined by the

agencies involved.

2. Determine the Appropriate Level of

NEPA Review (§ 1501.3)

CEQ proposes substantive revisions to

§ 1501.3 to provide a more robust and

consolidated description of the process

agencies should use to determine the

appropriate level of NEPA review,

including addressing the threshold

question of whether NEPA applies. CEQ

also proposes clarifying edits, including

adding paragraph headings to

paragraphs (a) through (d). This revised

provision would clarify the steps for

assessing the appropriate level of NEPA

review, facilitating a more efficient and

predictable review process.

First, as noted in section II.C.1, CEQ

proposes to move 40 CFR 1501.1(a)(1) to

a new § 1501.3(a), ‘‘Applicability,’’ and

add a sentence requiring agencies to

determine whether NEPA applies to a

proposed activity or decision as a

threshold matter. CEQ proposes this

move because the inquiry into whether

NEPA applies is central to determining

the level of NEPA review and

consolidating the steps in this process

in one regulatory section would

improve the clarity of the regulations. It

is also consistent with the approach in

section 106 of NEPA, which addresses

threshold considerations. CEQ proposes

to strike ‘‘or is otherwise fulfilled’’ in

the moved text because, as discussed in

section II.C.1, CEQ is proposing to

remove the functional equivalence

factor from the regulation.

Second, CEQ proposes to move the

threshold determination factors agencies

should consider when determining

whether NEPA applies, currently at 40

CFR 1501.1(a)(1) and (2), to

§ 1501.3(a)(1) and (2) respectively. CEQ

proposes to align the text in paragraph

(a)(1) with the language in § 1500.6,

‘‘exempted from NEPA by law,’’ and

align the text in paragraph (a)(2) with

the language in section 106(a)(3) of

NEPA, changing ‘‘another statute’’ to

‘‘another provision of law’’ for

consistency with the statutory text.

Third, CEQ proposes a new factor in

paragraph (a)(3) to address

circumstances other than those in which

Congress or case law have exempted an

activity from NEPA, to clarify that there

must be an irreconcilable and

fundamental conflict between

complying with a statutory provision

and complying with NEPA—i.e., the

other statutory provision must make

NEPA compliance impossible. This

factor would be consistent with case law

and longstanding principles of statutory

construction that require statutes to be

read in harmony when it is possible to

do so. This approach also reflects the

statutory requirement of section 102 of

NEPA that agencies interpret and

administer ‘‘the policies, regulations,

and public laws of the United States’’ in

accordance with NEPA’s policies and is

consistent with CEQ’s proposed

revisions to § 1500.6, ‘‘Agency

Authority.’’ 42 U.S.C. 4332; see section

II.B.5.

Fourth, consistent with section

106(a)(1) and (4) of NEPA, CEQ

proposes to move the threshold

determination factors regarding whether

the activity or decision is a major

Federal action from 40 CFR 1501.1(a)(4)

and (5), to § 1501.3(a)(4) and (a)(4)(ii),

respectively. Consistent with section

106(a)(1) and (4) of NEPA, CEQ

proposes to include whether an activity

or decision is a final agency action or

non-discretionary as subfactors of

whether an activity or decision is a

major Federal action in § 1501.3(a)(4)

because these are also exclusions from

the definition of a major Federal action.

When agencies assess whether an

activity or decision meets the definition

of a major Federal action, agencies

determine whether they have discretion

to consider environmental effects

consistent with § 1508.1(u). CEQ invites

comment on whether it should make

additional changes to § 1501.3(a) in light

of the recently enacted provisions in

section 106(a) regarding threshold

determinations.

Fifth, CEQ proposes to move, with

clarifying edits, 40 CFR 1501.9(e),

‘‘Determination of scope,’’ to a new

proposed § 1501.3(b), ‘‘Scope of action

and analysis,’’ to provide the next step

in determining the appropriate level of

NEPA review—the scope of the

proposed action and its potential effects.

In addition, CEQ proposes moving into

§ 1501.3(b) one sentence from 40 CFR

1502.4(a) directing agencies to evaluate

in a single NEPA review proposals

sufficiently closely related to be

considered a single action, as well as

text from 40 CFR 1501.9(e)(1) regarding

connected actions, which are closely

related Federal activities or decisions

that agencies should consider in a single

NEPA document. CEQ proposes to move

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40 CFR 1501.3(b)(1) (‘‘For instance, in the case

of a site-specific action, significance would usually

depend only upon the effects in the local area.’’)

(emphasis added).

40 CFR 1501.9(e)(1)(i) through (e)(1)(iii)

providing the types of connected actions

into § 1501.3(b)(1)(i) through (b)(1)(iii),

respectively. This longstanding

principle from the 1978 regulations that

agencies should not improperly segment

their actions is relevant not only when

agencies are preparing EISs; rather, it is

critical for agencies to consider this as

part of the determination whether to

prepare an EA or apply a CE. CEQ

proposes to consolidate this text into

§ 1501.3(b) because the determination of

the scope of the action, including any

connected actions, necessarily informs

the appropriate level of NEPA review.

While 40 CFR 1501.9(e) currently

applies to the scope of EISs, CEQ’s

proposed consolidation would clarify

that this analysis is applicable not only

to the scope of the environmental

document itself but also to the

determination of the level of NEPA

document the agency must prepare.

Because including this provision in

§ 1501.3 would make it applicable to

environmental reviews other than EISs,

CEQ proposes to strike the sentence that

accompanied the text in 40 CFR

1502.4(a) directing the lead agency to

determine the scope and significant

issues for analysis in the EIS as part of

the scoping process. CEQ would retain

in § 1502.4(a), ‘‘Scoping,’’ the

requirement that agencies determine the

scope and significant issues for analysis

in an EIS using an early and open

process. CEQ proposes in

§ 1501.3(b)(1)(i) to likewise change

‘‘environmental impact statements’’ to

‘‘NEPA review.’’

In bringing the text from 40 CFR

1501.9(e) to § 1501.3(b), CEQ is

proposing to strike 40 CFR 1501.9(e)(2)

and (3) relating to alternatives and

impacts, respectively. The current CEQ

regulations and the proposed revisions

in this NPRM address the analyses of

alternatives and effects regarding both

EISs (§§ 1502.14, 1502.15) and EAs

(§ 1501.5(c)(2)(ii) and (c)(2)(iii)). It

would be premature in the process,

unnecessary, and unhelpful to address

alternatives as part of determining the

level of NEPA review.

Sixth, CEQ proposes to redesignate 40

CFR 1501.3(a) as paragraph (c), title it

‘‘Levels of NEPA review,’’ and retain the

existing paragraphs (1) through (3)

without change. In paragraph (c), CEQ

proposes to incorporate section

106(b)(3) of NEPA addressing the

sources of information agencies may

rely on when determining the

appropriate level of NEPA review.

While section 106(b)(3) only directly

applies to an agency’s determination

whether to prepare an EA or an EIS,

CEQ views the approach to reliable data

and producing new research as

consistent with longstanding practice

and caselaw and appropriate to apply

broadly to an agency’s determination of

the appropriate level of NEPA review,

including a determination that no

review is required. This approach

avoids creating an implication that an

agency could be required to conduct

new research in a broader range of

circumstances when making threshold

determinations outside of whether to

prepare an EA or EIS, for example in

considering whether a CE applies. CEQ

invites comment on this approach.

Seventh, CEQ proposes to redesignate

40 CFR 1501.3(b) as § 1501.3(d), title it

‘‘Significance determination—context

and intensity,’’ and address factors

agencies must consider in determining

significance by restoring with some

modifications the consideration of

‘‘context’’ and ‘‘intensity’’ from the 1978

regulations, which appeared in the

definition of ‘‘significantly.’’ See 40 CFR

1508.27 (2019). Because this text

provides direction on how agencies

determine the significance of an effect,

rather than a definition, this is a more

appropriate location for this provision

than § 1508.1.

CEQ proposes to modify the

introductory language in § 1501.3(d) by

requiring agencies to consider the

context of an action and the intensity of

the effects when considering whether

the proposed action’s effects are

significant. CEQ proposes to strike the

sentence requiring agencies to consider

connected actions because this concept

would be included in proposed

paragraph (c).

Paragraph (d)(1) would restore the

consideration of the context of the

proposed action as a standalone

consideration. Specifically, CEQ

proposes to restore language from the

1978 regulations requiring agencies to

analyze the significance of an action in

several contexts. The proposed

provision also provides some examples

of contexts for consideration. First, the

provision proposes agencies should

consider the characteristics of the

relevant geographic area such as

proximity to unique or sensitive

resources or vulnerable communities.

Such resources may include historic or

cultural resources, Tribal sacred sites,

and various types of ecologically

sensitive areas. This proposal relates to

the intensity factor proposed in

(d)(2)(iii), which CEQ is proposing to

restore from the 1978 regulations. CEQ

is proposing to include it as a context

factor as well since it relates to the

setting of the proposed action. It also

would encourage agencies to consider

proximity to communities with

environmental justice concerns.

Second, CEQ proposes that agencies

should consider the potential global,

national, regional, and local contexts,

which may be relevant depending on

the scope of the action, consistent with

the current regulations as well as the

1978 regulations. Third, agencies should

consider the duration of the potential

effects and whether they are anticipated

to be short- or long-term. To that end,

CEQ proposes to move and revise text

providing that the consideration of

short- and long-term effects is relevant

to the context of a proposed action from

current 40 CFR 1501.3(b)(2)(i) to

paragraph (d)(1).

The 2020 rule narrowed the ‘‘context’’

consideration to the potentially affected

environment in determining

significance, stating that this reframing

relates more closely to physical,

ecological, and socio-economic aspects

of the environment.

CEQ has

reconsidered this approach and now

finds it to be overly limiting. Agencies

have decades of experience analyzing

their actions within this broader framing

of ‘‘context.’’ Moreover, this use of

‘‘context’’ is consistent with CEQ’s 2022

reinstatement of the concepts of indirect

and cumulative effects. Additionally,

the 2020 rule’s tying of significance to

the affected environment, ‘‘usually’’

only in the local area,

could be read

as deemphasizing reasonably

foreseeable effects beyond the

immediate area of the action. The

appropriate environment is the one that

the agency has identified as the affected

environment in § 1502.15, which can

include the global, national, regional,

and local environment. For example,

leases for oil and gas extraction or

natural gas pipelines have local effects,

but also have reasonably foreseeable

global indirect and cumulative effects

related to GHG emissions.

CEQ also proposes to reinstate

‘‘intensity’’ as a consideration in

determining significance, which CEQ

reframed in the 2020 rule as the

‘‘degree’’ of the action’s effects. In

§ 1501.3(d)(2), CEQ proposes to require

agencies to assess the intensity of effects

from an action and to provide a list of

factors, some or all of which may apply

to any given action, for agencies to

consider in relation to one another,

returning to the approach from 1978. In

2020, CEQ justified the removal of

intensity as a consideration in part

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based on the proposition that effects are

not required to be intense or severe to

be considered significant.

However,

the intensity factors that CEQ proposes

to reinstate with modifications have

long provided agencies with guidance in

how the intensity of an action’s effects

may inform the significance

determination. CEQ does not consider

‘‘intense’’ to be a synonym for

‘‘significant;’’ rather, it points to factors

to inform the determination of

significance that are part of

longstanding agency practice. CEQ also

proposes to clarify that agencies should

focus on adverse impacts in

determinations of significance. This is

consistent with NEPA’s policies and

goals as set forth in section 101 of the

statute. 42 U.S.C. 4331.

Paragraph (d)(2)(i) would mirror the

1978 rule’s reference to beneficial

effects with clarifying additions. CEQ

proposes to state that only actions with

significant adverse effects require an

EIS. This is distinct from weighing

beneficial effects against adverse effects

to determine that an action’s effects on

the whole are not significant. Rather,

this statement reflects the fact that an

action with only beneficial effects and

no significant adverse effects does not

require an EIS, consistent with CEQ’s

proposed revisions to § 1501.3(d)(2),

regarding the meaning of intensity.

CEQ proposes to add to paragraph

(d)(2)(i) clarification that agencies

should consider the duration of effects

and provide an example of an action

with short-term adverse effects but long-

term beneficial effects. While significant

adverse effects may exist even if the

agency considers that on balance the

effects of the action will be beneficial,

the agency should consider any related

short- and long-term effects in the same

effect category together in evaluating

intensity. For example, an agency

should consider short-term

construction-related GHG emissions

from a renewable energy project in light

of long-term reductions in GHG

emissions when determining the overall

intensity of effects. In this situation, the

agency could reasonably determine that

the climate effects of the proposed

action would not be significantly

adverse, and therefore an EIS would not

be required. As another example, a

forest restoration project may have a

short-term adverse effect to a species by

displacing it from the area while the

project is carried out but have long-term

beneficial effects to the species by

reducing the risk that a severe wildfire

will destroy the habitat altogether. An

agency should consider both of these

effects in assessing whether the action

significantly affects the species, and

may determine that the overall effects

on the species would not be

significantly adverse and therefore

would not require an EIS.

In paragraph (d)(2)(ii), CEQ proposes

to make a clarifying edit to the factor

relating to the action’s effects on health

and safety by adding language

indicating that the relevant

consideration is ‘‘the degree to which’’

the proposed action may ‘‘adversely’’

affect public health and safety.

CEQ proposes to add in paragraph

(d)(2)(iii) a factor to consider the degree

to which the proposed action may

adversely affect unique characteristics

of the geographic area such as historic

or cultural resources, Tribal sacred sites,

parkland, and various types of

ecologically sensitive areas. This would

reinstate a factor from the 1978

regulations, with clarifying edits, which

agencies have considered for decades.

As noted earlier in this section, CEQ

proposes to use the wording from the

1978 factor on unique characteristics

because it is a context consideration.

Consideration of this factor is consistent

with both the definition of effects

(§ 1508.1(g)) and the policies and goals

of NEPA. 42 U.S.C. 4331.

In paragraph (d)(2)(iv), CEQ proposes

to make a clarifying edit to the factor in

40 CFR 1501.3(b)(2)(iv) relating to

actions that may violate Federal, State,

Tribal, or local law by adding reference

to ‘‘other requirements.’’ CEQ also

proposes to include inconsistencies

with policies designed for protection of

the environment because agencies

should not necessarily limit their

inquiry to statutory requirements. Of

course, it may be appropriate to give

relatively more weight to whether the

action threatens a law imposed for

environmental protection as opposed to

a policy, but policies imposed for the

protection of clean air, clean water, or

species conservation, for example, may

nonetheless be relevant in evaluating

intensity. CEQ invites comment on the

inclusion of policies in this provision

and whether the regulations should

reference specific categories of policies.

Next, CEQ proposes to add paragraph

(d)(2)(v) to consider the degree to which

effects are highly uncertain. The 1978

regulations included factors for

‘‘controversial’’ effects and those that

are ‘‘highly uncertain or involve unique

or unknown risks.’’ CEQ proposes to

restore a modified version of this

concept that makes clear that the

uncertainty of an effect is the

appropriate consideration, and not

whether an action is controversial.

While a legitimate disagreement on

technical grounds may relate to

uncertainty, this approach would make

clear that public controversy over an

activity or effect is not a factor for

determining significance.

CEQ proposes to add a factor to

paragraph (d)(2)(vi) regarding the

action’s relationship with other actions.

This would reinstate a factor from the

1978 regulations and reinforce the

consideration of the scope of the action

that agencies should consider in a NEPA

document—that an agency cannot avoid

significance by terming an action

temporary when it is in fact a part of a

repeating or ongoing action or

segmenting it into smaller parts. This

longstanding NEPA principle is

consistent with decades of case law

prohibiting the segmentation of actions.

See, e.g., Sierra Club v. Marsh, 769 F.2d

868 (1st Cir. 1985); Kern v. U.S. Bureau

of Land Mgmt., 284 F.3d 1062 (9th Cir.

2002).

CEQ proposes to add a factor to

paragraph (d)(2)(vii) relating to actions

that would affect historic resources

listed or eligible for listing in the

National Register of Historic Places.

This would generally reinstate a factor

from the 1978 regulations, which

agencies have decades of experience

considering. Consideration of this factor

furthers the policies and goals of NEPA,

including to ‘‘preserve important

historic, cultural, and natural aspects of

our national heritage . . . .’’ 42 U.S.C.

4331.

CEQ proposes to add paragraph

(d)(2)(viii) to include effects on an

endangered or threatened species or its

habitat, including critical habitat under

the Endangered Species Act. 16 U.S.C.

1532(5). This would be an expansion of

an intensity factor from the 1978

regulations, which only addressed

critical habitat. CEQ’s proposed revision

would clarify that agencies should

consider effects to the habitat of

endangered or threatened species even

if it has not been designated as critical

habitat.

CEQ proposes to add paragraph

(d)(2)(ix) to include consideration of the

degree to which the action may have

disproportionate and adverse effects on

communities with environmental justice

concerns. Evidence continues to

accumulate that communities with

environmental justice concerns often

experience disproportionate

environmental burdens such as

pollution or urban heat stress, and often

experience disproportionate health and

other socio-economic burdens that make

them more susceptible to adverse

effects.

Finally, CEQ proposes to add

paragraph (d)(2)(x) to include effects

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Phase 1 Final Rule, supra note 47, at 23469.

CEQ, Update to the Regulations Implementing

the Procedural Provisions of the National

Environmental Policy Act Final Rule Response to

Comments 130 (June 30, 2020) (‘‘2020 Response to

Comments’’), https://www.regulations.gov/

document/CEQ-2019-0003-720629.

upon the rights of Tribal Nations

reserved through treaties, statutes, or

Executive Orders. This proposed

addition would clarify that agencies

should consider how an action may

impact the reserved rights of Tribal

Nations. Tribes’ ability to exercise these

rights often depends on protection of

the resources that support the rights,

and agencies should consider impacts to

such resources. CEQ specifically seeks

comments from Tribes on this proposed

addition.

CEQ invites comments on whether

there are other considerations that

should be added to the regulations to

guide agency evaluation of the context

and intensity of an effect as part of a

determination of significance.

3. Categorical Exclusions (§ 1501.4)

CEQ proposes revisions to § 1501.4 to

clarify this provision, which the 2020

rule added, and provide agencies new

flexibility to establish CEs using

additional mechanisms and flexibilities

outside of their NEPA procedures to

promote more efficient and transparent

development of CEs that may be tailored

to specific environmental contexts or

project types.

First, CEQ proposes to edit § 1501.4(a)

for consistency with and add a cross

reference to § 1507.3(c)(8), which

currently requires agencies to establish

CEs in their NEPA procedures. This

revision would more fully and

accurately reflect the purposes of and

requirements for CEs. As is reflected in

the regulations, CEQ views CEs to be an

important mechanism to promote

efficiency in the NEPA process where

agencies have long exercised their

expertise to identify and substantiate

categories of actions that normally do

not have a significant effect on the

human environment.

CEQ also proposes to add the clause

‘‘individually or in the aggregate’’ to

§ 1501.4(a)’s description of CEs. This

proposal would clarify that when

establishing a CE in its procedures, an

agency must determine that the

application of the CE to a single action

and the repeated collective application

to multiple actions would not have

significant effects on the human

environment. This clarification

recognizes that agencies often use CEs

multiple times over many years. This

change is consistent with the definition

of ‘‘categorical exclusion’’ provided by

section 111(1) as a ‘‘category of actions,’’

which highlights the manner in which

CEs consider an aggregation of

individual actions. This change is

similar to the 1978 regulations’

definition of CEs as categories of actions

that do not ‘‘individually or

cumulatively’’ have significant effects,

which the 2020 rule removed consistent

with its removal of the term

‘‘cumulative impacts’’ from the

regulations. The Phase 1 rulemaking

reinstated cumulative effects to the

definition of ‘‘effects,’’

so the 2020

rule’s justification for removing the

phrase no longer has a basis. However,

CEQ proposes to use the phrase ‘‘in the

aggregate’’ rather than ‘‘cumulatively’’

to avoid potential confusion.

Cumulative effects refer to the

incremental effects of an agency action

added to the effects of other past,

present, and reasonably foreseeable

actions. In the context of establishing

CEs, agencies must consider both the

effects of a single action as well as the

aggregation of effects from anticipated

multiple actions covered by the CE such

that the aggregate sum of actions

covered by the CE does not normally

have a significant effect on the human

environment. As part of this analysis,

agencies consider the effects—direct,

indirect, and cumulative—of the

individual and aggregated actions.

Because the definition of effects

includes cumulative effects, CEQ

considers the phrase ‘‘in the aggregate’’

to more clearly define what agencies

must consider in establishing a CE—the

full scope of direct, indirect, and

cumulative effects of the category of

action covered by the CE. Agencies have

flexibility on how to evaluate whether

the ‘‘aggregate’’ of actions covered by a

CE will not ordinarily have significant

effects and may consider the manner in

which the agency’s extraordinary

circumstances may avoid multiple

potential actions having reasonably

foreseeable significant effects in the

aggregate. As discussed further in

section II.I.2 CEQ notes that agencies do

not need to evaluate the environmental

effects of establishing the CE itself, but

rather define the category of action and

demonstrate in its substantiation that

the CE does not normally have

significant effects in the absence of

extraordinary circumstances. CEQ

proposes to add a qualifying clause at

the end of the sentence to reference

extraordinary circumstances consistent

with § 1501.4(b), and add a definition of

‘‘extraordinary circumstances’’ at

§ 1508.1(m). These provisions are

consistent with longstanding practice

and recognize that, as the definition

provided by section 111(1) indicates,

CEs are a mechanism to identify

categories of actions that normally do

not have significant environmental

effects. Extraordinary circumstances

serve to identify actions within a

category of actions the effects of which

exceed those normally associated with

that category of action and therefore, do

not fall within the bounds of the CE.

Finally, CEQ also proposes to add at

the end of paragraph (a) language

clarifying that agencies may establish

CEs individually or jointly with other

agencies. In such cases, agencies may

use a shared substantiation document

and list the CEs in both agencies’ NEPA

procedures or identify them through

another joint document as provided for

by proposed § 1501.4(c). CEQ proposes

this addition to provide an additional

mechanism for establishing CEs

transparently and with appropriate

public process. Agencies may find value

in establishing a CE jointly for activities

that they routinely work on together

where having a CE would create

efficiency in project implementation.

Agencies also may save administrative

time by establishing CEs jointly.

CEQ proposes edits to § 1501.4(b)(1)

to clarify the standard for applying a CE

to a proposed action where

extraordinary circumstances exist: an

agency may apply a CE if the agency

determines that a proposed action does

not have the potential to result in

significant effects, or the agency

modifies the proposed action to address

the extraordinary circumstance. This

standard is consistent with agency

practice and has been upheld in case

law. As currently drafted, 40 CFR

1501.4(b)(1) could be construed to mean

that agencies may mitigate extraordinary

circumstances that would otherwise

have the potential for significant effects

and thereby apply a CE with no

opportunity for public review or

engagement on such actions. While the

2020 Response to Comments sought to

distinguish ‘‘circumstances that lessen

the impacts’’ from required mitigation to

address significant effects,

based on

CEQ’s discussions with agency

representatives and stakeholders, the

potential for confusion remains. CEQ’s

proposed standard makes clear that if an

extraordinary circumstance exists, an

agency must make an affirmative

determination that there is no potential

for significant effects in order to apply

a CE. If it finds such potential it must

either: (1) modify its proposed action in

a way that will address the

extraordinary circumstance, or (2)

prepare an EA or EIS.

CEQ also proposes to add a

documentation requirement in these

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instances where an agency is applying

a CE notwithstanding extraordinary

circumstances. CEQ also proposes to

add language encouraging agencies to

publish such documentation. While not

required, CEQ encourages agencies to

publish documentation of instances

where an agency is applying a CE

notwithstanding extraordinary

circumstances to provide transparency

to the public of an agency determination

that there is no potential for significant

effects. The proposed language responds

to feedback from the public requesting

such transparency. CEQ invites

comment on whether it should require

agencies to publish such

documentation.

In addition, CEQ proposes to add a

new § 1501.4(c) to provide agencies

more flexibility to establish CEs outside

of their NEPA procedures. This

provision would allow agencies to

establish CEs through a land use plan,

a decision document supported by a

programmatic EIS or EA, or other

equivalent planning or programmatic

decisions. Once established, agencies

could apply CEs to future actions

addressed in the program or plan,

including site-specific or project-level

actions. CEQ anticipates that expanding

the mechanisms through which agencies

may establish CEs will encourage

agencies to conduct programmatic and

planning reviews, increase the speed

with which agencies can establish CEs

while ensuring public participation and

adequate substantiation, promote the

development of CEs that are tailored to

specific contexts, geographies, or

project-types, and allow decision

makers to consider the cumulative

effects of related actions on a geographic

area over a longer time frame than

agencies generally consider in a review

of a single action. This provision would

not require agencies to establish CEs

through the mechanism added in

§ 1501.4(c) but rather would provide

new options for agencies to consider.

CEQ also notes that this mechanism

does not preclude agencies from

conducting and relying on

programmatic analyses in making

project-level decisions consistent with

§ 1501.11. Additionally, it does not

require agencies to conduct a NEPA

analysis to establish CEs generally,

consistent with § 1507.3(c)(8).

Establishing a CE through this

alternative approach could be beneficial

by providing agencies with more

flexibility on how to identify categories

of actions that normally will not have

significant effects and establishing a CE

for them. A programmatic EIS

supporting a program decision or land

use plan could, for example, provide the

analysis necessary to substantiate a new

CE established by the associated

decision document that makes sense in

the context of the overall program

decision or land use plan. For example,

a land management agency could

consider establishing a CE for zero or

minimal impact resilience-related

activities. Enabling an agency to

establish a CE through this mechanism

would reduce duplication of effort by

obviating the need for the agency to

revise their NEPA procedures consistent

with § 1507.3 after completing the

programmatic EIS. Agencies also may

find it efficient to establish a CE through

a land use planning process rather than

undertaking a separate process to

establish the CE via agency procedures

after completion of the land use

planning process.

Paragraphs (c)(1) through (c)(6) would

set forth the requirements for the

establishment of CEs through

mechanisms other than an agency’s

NEPA procedures. Paragraphs (c)(1) and

(c)(2) would require agencies to provide

CEQ an opportunity to review and

comment and provide opportunities for

public comment. Agencies may satisfy

the requirement for notification and

comment under paragraph (c)(2) by

incorporating the proposed CEs into any

interagency and public review process

that involves notice and comment

opportunities applicable to the relevant

programmatic or planning document.

Proposed paragraphs (c)(3) and (c)(4)

would include the same requirements

for agencies to substantiate CEs and

provide for extraordinary circumstances

when they establish CEs under this

section as when they establish CEs

through their agency NEPA procedures

pursuant to § 1507.3. Specifically, first,

agencies would have to substantiate

their determinations that the category of

actions covered by a CE normally will

not result in significant effects,

individually or in the aggregate. Second,

agencies would need to identify

extraordinary circumstances. This could

be the same list set forth in the agency’s

NEPA procedures, a list specific to this

set of CEs, or a combination of both.

While agencies would need to satisfy

these requirements in a manner

consistent with the establishment of CEs

under § 1507.3, agencies could

document their compliance with these

requirements in the relevant

programmatic or planning documents.

Proposed paragraph (c)(5) would

direct agencies to establish a process for

determining that a CE applies to a

specific action in the absence of

extraordinary circumstance, or

determine the CE still applies

notwithstanding the presence of

extraordinary circumstances. Finally,

paragraph (c)(6) would direct agencies

to maintain a list of all such CEs on

their websites, similar to the

requirement for agencies to publish CEs

established in their agency NEPA

procedures consistent with

§§ 1507.3(b)(2) and 1507.4(a). Agency

websites should clearly link the CEs to

their underlying programmatic or

planning documents. Additionally,

agencies may want to incorporate CEs

established through these mechanisms

into their agency NEPA procedures

during a subsequent revision. CEQ

encourages agencies to list all agency

CEs in one location, regardless of how

the agency established the CE, so that

the public can easily access the full list

of an agency’s CEs.