National Environmental Policy Act Implementing Regulations Revisions Phase 2

Citation88 FR 49924
Published date31 July 2023
Record Number2023-15405
CourtCouncil On Environmental Quality
SectionProposed rules
49924
Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules
1
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.
1
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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2
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).
3
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).
4
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.
5
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.
6
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.
7
E.O. 12898, Federal Actions To Address
Environmental Justice in Minority Populations and
Low-Income Populations, 59 FR 7629 (Feb. 16,
1994).
8
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.
9
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
2
to the
sustainability of Federal operations.
3
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,’’
4
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.
5
For example, in 1997, CEQ
issued guidance documents on the
consideration of environmental justice
in the NEPA context
6
under Executive
Order (E.O.) 12898, Federal Actions to
Address Environmental Justice in
Minority Populations and Low-Income
Populations,
7
and on analysis of
cumulative effects in NEPA reviews,
8
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.
9
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.
10
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.
11
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.
12
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).
13
E.O. 14008, supra note 2.
14
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.
15
CEQ, Explore the Map, Climate and Economic
Justice Screening Tool, https://
screeningtool.geoplatform.gov/.
16
E.O. 14008, supra note 2, sec. 223.
17
E.O. 14057, supra note 3.
18
E.O. 14008, supra note 2.
19
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’’).
20
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.
10
Finally, CEQ has provided guidance to
ensure efficient and effective
environmental reviews, particularly for
infrastructure projects.
11
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.
12
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.
13
CEQ is
leading the President’s efforts to secure
environmental justice consistent with
sections 219 through 223 of the E.O.
14
For example, CEQ has developed the
Climate and Economic Justice Screening
Tool
15
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.
16
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,
17
to
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.
18
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.
19
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.
20
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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.
21
E.O. 14096, supra note 20, sec. 3.
22
Id. at sec. 4.
23
E.O. 11514, Protection and Enhancement of
Environmental Quality, 35 FR 4247 (Mar. 7, 1970),
sec. 3(h).
24
See Statements on Proposed Federal Actions
Affecting the Environment, 35 FR 7390 (May 12,
1970) (interim guidelines).
25
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).
26
E.O. 11991, Relating to Protection and
Enhancement of Environmental Quality, 42 FR
26967 (May 25, 1977).
27
Implementation of Procedural Provisions, 43
FR 55978 (Nov. 29, 1978).
28
Implementation of Procedural Provisions;
Corrections, 44 FR 873 (Jan. 3, 1979).
29
National Environmental Policy Act
Regulations; Incomplete or Unavailable
Information, 51 FR 15618 (Apr. 25, 1986)
(amending 40 CFR 1502.22).
30
E.O. 13807, supra note 12.
31
Id., sec. 5(e)(iii).
32
Update to the Regulations for Implementing the
Procedural Provisions of the National
Environmental Policy Act, 83 FR 28591 (June 20,
2018).
33
Update to the Regulations Implementing the
Procedural Provisions of the National
Environmental Policy Act, 85 FR 1684 (Jan. 10,
2020).
34
See Docket No. CEQ–2018–0001, https://
www.regulations.gov/document/CEQ-2018-0001-
0001.
35
See Docket No. CEQ–2019–0003, https://
www.regulations.gov/document/CEQ-2019-0003-
0001.
36
Update to the Regulations Implementing the
Procedural Provisions of the National
Environmental Policy Act, 85 FR 43304 (July 16,
2020) (‘‘2020 Final Rule’’).
37
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.
38
Wild Va. v. Council on Env’t Quality, 544 F.
Supp. 3d 620 (W.D. Va. 2021).
39
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,
21
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.
22
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.
23
In
response, CEQ in April 1970 issued
interim guidelines, which addressed the
provisions of section 102(2)(C) of the
Act regarding EIS requirements.
24
CEQ
revised the guidelines in 1971 and 1973
to address public involvement and
introduce the concepts of EAs and draft
and final EISs.
25
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.
26
CEQ
promulgated its NEPA regulations in
1978.
27
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
28
and amended one provision in
1986 (CEQ refers to these regulations, as
amended, as the ‘‘1978 regulations’’ in
this preamble).
29
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,
30
which directed CEQ to establish and
lead an interagency working group to
identify and propose changes to the
NEPA regulations.
31
In response, CEQ
issued an advance notice of proposed
rulemaking (ANPRM) on June 20,
2018,
32
and a notice of proposed
rulemaking (NPRM) on January 10,
2020, proposing broad revisions to the
1978 regulations.
33
A wide range of
stakeholders submitted more than
12,500 comments on the ANPRM
34
and
1.1 million comments on the proposed
rule,
35
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.
36
In the months that followed the
issuance of the 2020 regulations, five
lawsuits were filed challenging the 2020
rule.
37
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.
38
The Fourth Circuit affirmed that
dismissal on December 22, 2022.
39
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86 FR 7037 (Jan. 25, 2021).
41
Id. at sec. 1.
42
Id.
43
Id. at sec. 7.
44
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/.
45
Deadline for Agencies to Propose Updates to
National Environmental Policy Act Procedures, 86
FR 34154 (June 29, 2021).
46
National Environmental Policy Act
Implementing Regulations Provisions, 86 FR 55757
(Oct. 7, 2021).
47
National Environmental Policy Act
Implementing Regulations Revisions, 87 FR 23453
(Apr. 20, 2022) (‘‘Phase 1 Final Rule’’).
48
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,
40
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.
41
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.
42
The Executive
Order also revokes E.O. 13807 and
directs agencies to take steps to rescind
any rules or regulations implementing
it.
43
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.
44
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.
45
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.
46
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,
47
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.
48
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.
50
Phase 1 Response to Comments, supra note 48,
at 120–21.
51
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
49
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.
50
The
proposed change also aligns with the
proposed definition of ‘‘significant
effects’’ in § 1508.1(jj),
51
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.
53
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).
52
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.
53
CEQ invites comment on whether
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54
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’’).
55
2020 Final Rule, supra note 36 at 43317.
56
2020 Final Rule, supra note 36, at 43317–18.
57
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.
54
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.
55
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.
56
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,
57
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.’’
58
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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2020 Final Rule, supra note 36, at 43322.
60
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.
59
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,
60
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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2020 Final Rule, supra note 36, at 43322.
based on the proposition that effects are
not required to be intense or severe to
be considered significant.
61
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.
63
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,’’
62
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,
63
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 document