National Environmental Policy Act Implementing Regulations Revisions Phase 2

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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 documents. Additionally,

agencies may want to incorporate CEs

established through these mechanisms

into their agency NEPA procedures

during a subsequent revision. CEQ

encourages agencies to list all agency

CEs in one location, regardless of how

the agency established the CE, so that

the public can easily access the full list

of an agency’s CEs.

Proposed § 1501.4(d) would identify a

list of examples of features agencies may

want to consider including when

establishing CEs, regardless of what

mechanism they use to do so. Paragraph

(d)(1) would note that CEs may cover

specific geographic areas or areas that

share common characteristics, such as a

specific habitat type for a given species.

To promote experimentation and

evaluation, paragraph (d)(2) would

indicate that agencies may establish CEs

for a limited duration. Doing so would

enable agencies to narrow the scope of

analysis necessary to substantiate that a

class of activities normally will not have

a significant environmental effect where

uncertainty exists about changes to the

environment that may occur later in

time that could affect the analysis. As

with all CEs, agencies should review

their continued validity periodically,

consistent with CEQ’s proposed review

timeframe in § 1507.3(c)(9). Once the

limited duration threshold is met,

agencies could either consider the CE

expired, conduct additional analysis to

create a permanent CE, or reissue the CE

for a new period.

Paragraph (d)(3) provides that a CE

may include mitigation measures to

address potential significant effects. A

CE that includes mitigation is different

than an agency modifying an action to

avoid an extraordinary circumstance

that would otherwise require

preparation of an EA or EIS. Paragraph

(d)(3) makes clear that an agency may

establish a CE for a class of activities

that include mitigation requirements as

part of the CE application. Agencies

would implement the activities covered

by the CE as well as the mitigation

incorporated into those activities as part

of the CE. As an illustrative example, an

agency could conclude that, as a

category, a type of activity that degrades

five acres of habitat will not ordinarily

have significant effects where five acres

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of equivalent habitat are effectively

restored or conserved elsewhere. As

another example, a CE could allow for

vegetation management activities but

require specific mitigation if a certain

habitat type is disturbed, such as

implementing vegetation activities on

10 acres of sage grouse habitat and

requiring restoration or compensatory

mitigation for an equivalent 10 acres of

sage grouse habitat. Where an agency

establishes a CE with a mitigation

requirement, the agency would need to

include such mitigation in their

proposed actions in order for the CE to

apply.

Paragraph (d)(4) would provide that

agencies can include criteria for when a

CE might expire, such that, if such

criteria were present, the agency could

no longer apply that CE. For example,

an agency could establish a CE for

certain activities up to a threshold, such

as a specified number of acres or

occurrences. Once the agency applied

that CE up to the threshold number of

proposed actions, the agency could no

longer use the CE. An agency might set

an expiration date or threshold where

their record indicates a potential for

significant effects after a certain number

of applications of the CE to proposed

actions; where there is uncertainty

beyond that threshold; or where it is

unclear how widely the agency would

apply the CE. In other situations, an

agency may want to make a CE time

limited because its authority over the

actions is likewise time limited.

Finally, CEQ proposes to strike the

provision that would allow an agency to

establish a process in its agency NEPA

procedures to apply a CE listed in

another agency’s NEPA procedures in

40 CFR 1507.3(f)(5) and replace it with

a provision in § 1501.4(e) that is

consistent with the process for adoption

established by section 109 of NEPA.

While section 109 uses the term ‘‘adopt’’

CEQ is proposing to use ‘‘apply’’ to

distinguish this provision from the

longstanding use of ‘‘adoption’’ in the

CEQ regulations to refer to an agency’s

reliance on another agency’s previously

completed analysis, including the

determination that a CE applies to a

proposed action.

First, paragraph (e)(1) would require

the borrowing agency to identify the

proposed action or category of proposed

actions that falls within the CE. In

instances where an agency would like to

use the CE on a long-term basis, CEQ

encourages agencies to establish the CE

either in their own procedures or

through the process set forth in

§ 1501.4(c). However, this provision

would serve as an important bridge

when agencies are implementing new

programs where they have not yet

established relevant CEs or when

existing programs begin to undertake

new categories of actions but where

other agencies have experience with

similar actions and have established a

CE for those actions. In these

circumstances, the agency could

immediately begin to implement the

new programs and new activities based

on another agencies CE for similar

actions without the need to first develop

a CE to cover them. CEQ also notes that,

consistent with the requirement of

section 109(2) that an agency consult

with ‘‘the agency that established the

categorical exclusion,’’ this provision

would only apply to CEs established

administratively by the agency,

including those that Congress directs

agencies to establish administratively,

but not those CEs created by statute.

While CEQ encourages agencies to

include legislative CEs established by

statute in their NEPA procedures to

provide transparency, they are not

‘‘established’’ by the agency, but rather

by Congress. CEQ invites comment on

this approach.

Second, under paragraph (e)(2), the

borrowing agency would consult with

the agency that has the listed CE to

ensure application of the CE is

appropriate. Third, under paragraph

(e)(3), the borrowing agency would

evaluate for extraordinary

circumstances, consistent with

§ 1501.3(b) to incorporate the process

for documenting use of the CE when

extraordinary circumstances are present,

but application of the CE is still

appropriate. Finally, under paragraphs

(e)(4) and (e)(5), the borrowing agency

would document application of the CE,

provide public notice of the CE that the

agency plans to use, and publish the

documentation of the application of the

CE. Neither the statute or the proposed

regulation requires the agency to accept

comment on the public notice of the CE

that the agency plans to use. In cases

where an agency is applying CEs to a

category of actions, the agency could

conduct a single consultation and

publish a consolidated notice, for

example. CEQ invites comment on its

proposed process. CEQ invites comment

on whether the regulations

implementing section 109 should

include additional provisions to

facilitate the use of CEs while ensuring

CEs are not used improperly to

authorize actions that have reasonably

foreseeable significant effect.

CEQ notes that there has been some

confusion regarding the difference

between the use or borrowing of another

agency’s CE proposed in § 1501.4(e),

which section 109 of NEPA refers to as

adoption and is currently provided by

40 CFR 1507.3(f)(5) and adoption of a

CE determination under § 1506.3(d). In

the latter case of adoption of a CE

determination, an agency with a CE has

applied the CE to its own proposed

action. A second agency then adopts

that determination for the second

agency’s action that is substantially the

same. Under § 1501.4(e), an agency may

use a CE from another agency that has

not itself determined that the CE applies

to an action. In such circumstances, an

agency would be borrowing the CE of

another agency and applying it to a new,

separate action, rather than adopting a

CE determination for an action that is

substantially the same.

4. Environmental Assessments

(§ 1501.5)

CEQ proposes to revise § 1501.5 for

consistency with sections 106(b)(2) and

107(e)(2) of NEPA, and to provide

greater clarity to agencies on the

requirements that apply to the

preparation of EAs and to codify agency

practice. CEQ proposes edits to address

what agencies must discuss in an EA,

how agencies should consider public

comments they receive on draft EAs,

what page limits apply to EAs, and what

other requirements in the CEQ

regulations agencies should apply to

EAs.

Regarding the contents of an EA, CEQ

proposes to split 40 CFR 1501.5(c)(2),

which requires an EA to briefly discuss

the purpose and need for the proposed

action, alternatives, and effects, into

paragraphs (c)(2)(i) through (iii) to

improve readability and provide a

clearly defined list of requirements.

This formatting change would make it

easier for the public and the agencies to

ascertain whether an EA includes the

necessary contents. For example, when

an agency develops an EA for a proposal

involving unresolved conflicts

concerning alternative uses of available

resources, section 102(2)(H) requires an

analysis of alternatives, which will

generally require analysis of one or

more reasonable alternatives, in

addition to a proposed action and no

action alternative. 42 U.S.C. 4332(2)(H).

CEQ proposes to move from 40 CFR

1501.5(c)(2) into its own paragraph at

§ 1501.5(c)(3) the requirement for EAs to

list the agencies and persons consulted

in the development of the EA. CEQ also

proposes to clarify in this paragraph that

agencies include Federal agencies as

well as State, Tribal, and local

governments and agencies. CEQ also

proposes to add in paragraph (c)(4) a

requirement that the EA include a

unique identification number that can

be used for tracking purposes that

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64

CEQ, Appropriate Use of Mitigation and

Monitoring and Clarifying the Appropriate Use 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.

would then be carried forward to all

other documents related to the

environmental review of the action,

including the FONSI. Identification

numbers can help the public and

agencies track the progress of an EA for

a specific action as it moves through the

NEPA process and may allow for more

efficient and effective use of technology

such as databases. CEQ also is

proposing a similar requirement for EISs

in § 1502.4(e)(9).

To reflect current agency practice and

provide the public with a clearer

understanding about potential public

participation opportunities with respect

to EAs, CEQ proposes to add a new

paragraph (e) that provides that if an

agency chooses to publish a draft EA, it

must invite public comment on the draft

and consider those comments when

preparing a final EA. This provision

reflects the fact that one of the primary

purposes for which agencies choose to

prepare draft EAs is to enable public

participation. Codifying this practice

will enhance the public’s understanding

of the NEPA process and meaningful

public engagement and does not restrict

agency discretion over whether to

choose to prepare a draft EA for public

comment. CEQ would redesignate the

current 40 CFR 1501.5(e) and (f) to

§ 1501.5(f) and (g) respectively.

CEQ also proposes to revise

§ 1501.5(g) to dispense with the

requirement for senior agency official

approval to exceed 75 pages, not

including any citations or appendices,

for consistency with section 107(e)(2) of

NEPA.

CEQ proposes to add paragraph (h) to

clarify that agencies may reevaluate or

supplement an EA if a major Federal

action remains to occur and the agency

considers it appropriate to do so.

Paragraph (h) also would provide that

agencies may reevaluate an

environmental assessment or otherwise

document a finding that changes to the

proposed action or new circumstances

or information relevant to

environmental concerns are not

substantial, or the underlying

assumptions of the analysis remain

valid. CEQ adds this to clarify that an

agency may apply the provisions at

§ 1502.9 regarding supplemental EISs to

a supplemental EA to improve

efficiency and effectiveness.

Finally, CEQ proposes to clarify the

provisions that agencies should or may

apply to EAs. In a new paragraph (i),

CEQ proposes to clarify that agencies

generally should apply the provisions of

§ 1502.21 regarding incomplete or

unavailable information and § 1502.23

regarding scientific accuracy. The 2020

regulations added these as provisions

agencies ‘‘may apply;’’ however, on

reflection, CEQ considers it important to

disclose where information is

incomplete or unavailable, and ensure

scientific accuracy for all levels of

NEPA review, not just EISs. Then, CEQ

proposes to provide in paragraph (j) that

agencies may apply the other provisions

of parts 1502 and 1503 where they

consider it appropriate to improve

efficiency and effectiveness of EAs. This

provision includes a list of example

provisions where this might be the

case—scoping (§ 1502.4), cost-benefit

analysis (§ 1502.22), environmental

review and consultation requirements

(§ 1502.24), and response to comments

(§ 1503.4).

5. Findings of No Significant Impact

(§ 1501.6)

CEQ proposes two revisions to

§ 1501.6 on findings of no significant

impact (FONSIs) to clarify the 2020

rule’s codification of the longstanding

agency practice of relying on mitigated

FONSIs in circumstances where the

agency incorporates mitigation into the

proposed action to reduce its effects

below significance. This is an important

efficiency tool for NEPA compliance

because it expands the circumstances in

which an agency may prepare an EA

and reach a FONSI, rather than

preparing an EIS, consistent with the

requirements of NEPA.

Paragraph (a) currently describes that

an agency prepares a FONSI when it

determines, as a result of an EA, not to

prepare an EIS because the proposed

action will not have significant effects.

At the end of paragraph (a), CEQ

proposes to clarify that agencies can

prepare a mitigated FONSI if the action

will include mitigation to avoid the

significant effects that would otherwise

occur or minimize or compensate for

them to the point that the effects are not

significant. So long as the agency can

conclude that effects will be

insignificant in light of mitigation, the

agency can issue a mitigated FONSI.

CEQ considers this an important

clarification for consistency with the

language in § 1501.6(c). Codification of

these best practices also aligns with

guidance CEQ has issued on appropriate

use of mitigation, monitoring, and

mitigated FONSIs.

64

Paragraph (c) currently addresses

what an agency must include in a

FONSI regarding mitigation. The text

provides that when an agency relies on

mitigation to reach a FONSI, the

mitigated FONSI must state the

enforceable mitigation requirements or

commitments that avoid the potentially

significant effects. CEQ proposes to

clarify in the second sentence that the

FONSI must state the enforceable

mitigation requirements or

commitments, as well as the authorities

for them, since they must be enforceable

for agencies to reach a mitigated FONSI.

CEQ proposes this change because,

where a proposed action evaluated in an

EA may have significant effects, and an

agency is not preparing an EIS, the

FONSI must include mitigation of the

significant effects. At the end of

paragraph (c), CEQ proposes additional

language to provide additional details

on what is needed to demonstrate that

mitigation requirements or

commitments are enforceable.

Specifically, the proposed language

would direct agencies to identify the

authority that is being exercised to make

the mitigation enforceable.

Finally, as discussed in section II.G.2,

CEQ proposes to add a new sentence at

the end of paragraph (c) to require a

monitoring and compliance plan when

the EA relies on mitigation as a

component of the proposed action and

incorporates the mitigation into the

FONSI, consistent with proposed

§ 1505.3(c). These changes will help

effectuate NEPA’s purpose as articulated

in section 101, including to ‘‘attain the

widest range of beneficial uses of the

environment without degradation, risk

to health or safety, or other undesirable

and unintended consequences’’ and to

‘‘preserve important historic, cultural,

and natural aspects of our national

heritage . . . .’’ 42 U.S.C. 4331(b).

6. Lead Agency; Cooperating Agencies

(§§ 1501.7 and 1501.8)

CEQ proposes to eliminate the

reference to ‘‘complex’’ environmental

assessments. The 2020 rule added this

term without definition. CEQ invites

comment on whether it should retain a

complex EA in the regulations, and if

so, how CEQ should define a complex

EA.

CEQ proposes to retitle § 1501.7

‘‘Lead Agency’’ to align with section

107(a) of NEPA. CEQ proposes to revise

paragraph (b) regarding joint lead

agencies for consistency with section

107(a)(1)(B) of NEPA to clarify that the

participating Federal agencies may

designate a Federal, State, Tribal, or

local agency as a joint lead agency upon

invitation to and acceptance by such

agency. CEQ includes Federal agencies

in the list of potential joint lead

agencies because there are

circumstances in which having another

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65

Office of Science and Technology Policy and

CEQ, Guidance for Federal Departments and

Agencies on Indigenous Knowledge (Nov. 30, 2022),

https://www.whitehouse.gov/wp-content/uploads/

2022/12/OSTP-CEQ-IK-Guidance.pdf.

66

E.O. 13175, supra note 53.

agency serving as a joint lead agency

will enhance efficiency. CEQ does not

read the text in section 107(a)(1)(B) of

NEPA as precluding this approach, but

rather Congress specified that State,

Tribal, and local agencies may serve as

joint lead agencies because they are

ineligible to serve as the lead agency.

CEQ invites comment on whether it

should make additional changes to this

paragraph.

CEQ proposes to revise paragraph (c)

for consistency with section 107(a)(1) of

NEPA to clarify that the participating

Federal agencies determine the agency

that will be lead and any joint lead

agencies, and that the lead agency

determines any cooperating agencies.

This change also would make this

paragraph consistent with the text in

§ 1506.2(c) on joint EISs. In §1501.7(d),

CEQ proposes to revise the text for

consistency with section 107(a)(5)(B) of

NEPA and make a non-substantive

change to replace the phrase ‘‘private

person’’ with the word ‘‘individual’’ for

consistency with this term’s use in other

sections of the regulations. In paragraph

(e), CEQ proposes to revise the text for

consistency with section 107(a)(4) of

NEPA, clarify that the 45 days is

calculated from the date of the written

request to the senior agency officials as

set forth in § 1501.7(d), and replace

‘‘persons’’ with ‘‘individuals’’ for

consistency with the rest of regulations.

In paragraph (f), CEQ proposes to

revise the text for consistency with

section 107(a)(5)(D) of NEPA, to change

‘‘within 20 days’’ to ‘‘no later than 20

days’’ in the first sentence, and ‘‘20

days’’ to ‘‘40 days’’ and ‘‘determine’’ to

‘‘designate’’ in the second sentence.

Currently, 40 CFR 1501.7(g),

addressing combined documents, is

consistent with the text of section 107(b)

of NEPA with respect to EISs, EAs, and

FONSIs. The statute does not address

joint RODs. CEQ proposes to revise

§ 1501.7 to add a caveat that agencies

must issue joint RODs except where it

is inappropriate or inefficient to do so,

such as when an agency has a separate

statutory directive, or it would take

significantly longer to issue a joint ROD

than separate ones. CEQ recognizes that,

in some cases, requiring a joint ROD

could inadvertently slow the NEPA

process down because, for example,

agencies may have different procedures

for issuing authorizations under their

applicable legal authorities or may need

to consider different factors. But in

other cases, it could improve efficiency

by avoiding duplication of effort or

analysis. Additionally, for consistency

with § 1501.5, CEQ proposes to add that

agencies can jointly determine to

prepare an EIS if a FONSI is

inappropriate.

In § 1501.7(h)(2), CEQ proposes to add

a clause consistent with section

107(a)(2)(C) of NEPA requiring the lead

agency to give consideration to a

cooperating agency’s analyses and

proposals. In the existing clause, CEQ

proposes to move the qualifier, ‘‘to the

extent practicable’’ to clarify that it only

modifies the second clause, and change

‘‘proposals’’ to ‘‘information’’ to make

the text consistent with § 1501.8(b)(3).

Further, the use of ‘‘proposal’’ here is

inconsistent with the definition of

‘‘proposal’’ provided in § 1508.1(cc).

CEQ also proposes to remove the

reference to jurisdiction by law or

special expertise as unnecessarily

redundant given that the definition of

‘‘cooperating agencies’’ in § 1508.1(e)

incorporates those phrases.

As discussed further in section II.C.8,

CEQ proposes to move the requirements

for schedules and milestones currently

in 40 CFR 1501.7(i) and (j) to proposed

§ 1501.10(c) in order to consolidate

provisions related to deadlines,

schedules, and milestones in one

section.

CEQ proposes an addition to § 1501.8

to clarify the meaning of the phrase

‘‘special expertise.’’ Paragraph (a)

provides that a lead agency may request

an agency with special expertise to

serve as a cooperating agency. CEQ

proposes to clarify in paragraph (a) that

special expertise can include

Indigenous Knowledge. This proposed

change helps ensure that Federal

agencies respect and benefit from

unique knowledge that Tribal

governments may bring to the

environmental review process. CEQ

notes that the Office of Science and

Technology Policy and CEQ have issued

a Guidance Memorandum for Federal

Departments and Agencies on

Indigenous Knowledge,

65

but does not

define Indigenous Knowledge. CEQ

invites comment on whether it should

include such a definition in the

regulations. Finally, CEQ notes that

even where a federally recognized Tribe

participates as a cooperating agency, the

agency also may have an obligation to

engage in government-to-government

consultation on the proposed action

consistent with the agency’s obligations

under E.O. 13175, Consultation and

Coordination with Indian Tribal

Governments.

66

In paragraph (b)(7), CEQ proposes to

strike the second clause requiring

cooperating agencies to limit their

comments to align this paragraph with

section 107(a)(3) of NEPA. Finally, CEQ

invites comment on whether it should

make any additional changes to these

sections to promote or improve lead and

cooperating agency engagement on the

preparation of NEPA documents or

increase the efficiency of the

preparation process.

7. Public and Governmental Engagement

(§ 1501.9)

CEQ proposes to address public and

governmental engagement in a revised

§ 1501.9 by moving and updating 40

CFR 1506.6, ‘‘Public involvement,’’ to

§ 1501.9, and moving provisions

specific to the EIS scoping process to

§ 1502.4. CEQ proposes these updates to

continue to provide agencies with

flexibility to tailor their engagement

specific to their programs and actions

while also maintaining the requirements

to engage the public and affected parties

in the NEPA process. CEQ proposes

revisions to § 1501.9 to emphasize the

importance of creating an accessible and

transparent NEPA process. CEQ also

proposes many of these changes in

response to feedback on the Phase 1

proposed rule, the 2020 proposed rule,

and input received from stakeholders

and agencies during development of this

proposed rule. Much of that feedback

requested increased opportunities for

public engagement and increased

transparency about agency decision

making, along with general requests that

CEQ elevate the importance of public

engagement in the NEPA process.

Finally, CEQ proposes to move the

requirements related to public

engagement to part 1501 to emphasize

that it is a core component of the NEPA

process and agency planning, regardless

of the level of NEPA analysis being

undertaken.

To accomplish this goal, CEQ is

proposing changes to multiple sections

of the regulations. First, CEQ is

proposing to move the existing

provisions of 40 CFR 1501.9 on scoping,

specifically paragraphs (a), (b), (c), (d),

(d)(1) through (8), (f), and (f)(1) through

(5) to proposed § 1502.4, ‘‘Scoping.’’ As

discussed in sections II.C.2 and II.C.9,

CEQ proposes to move the existing

provisions in 40 CFR 1502.4 on ‘‘Major

Federal actions requiring the

preparation of environmental impact

statements’’ to §§ 1501.3 and 1501.11.

Also, as discussed in section II.C.2, CEQ

proposes to move the remaining text of

existing 40 CFR 1501.9(e) and (e)(1)

through (3) on the determination of

scope to proposed § 1501.3 because

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See Fed. Permitting Improvement Steering

Council, Permitting Dashboard for Federal

Infrastructure Projects, https://

www.permits.performance.gov/.

determining the scope of actions applies

to all levels of NEPA review.

CEQ proposes to retitle § 1501.9 to

‘‘Public and governmental engagement’’

and accordingly update references to

‘‘public involvement’’ within this

section and throughout the CEQ

regulations to ‘‘public engagement.’’

CEQ is proposing this change because

the word ‘‘engagement’’ better reflects

how Federal agencies should be

interacting with the public. The word

‘‘engagement’’ reflects a process that is

more interactive and collaborative

compared to simply including or

notifying the public of an action.

Engagement is also a common term for

Federal agencies with experience

developing public engagement strategies

or that work with public engagement

specialists. CEQ proposes to add

‘‘governmental’’ to the title to better

reflect the description of the provisions

proposed to be included in the section,

which relate to both public and

governmental entities.

Next, CEQ proposes to add paragraphs

(a) and (b) to articulate the purposes of

public and governmental engagement

and to identify the responsibility of

agencies to determine the appropriate

methods of public and governmental

engagement and conduct scoping

consistent with § 1502.4 for EISs. CEQ

proposes to use the phrase

‘‘meaningful’’ engagement to better

describe the purpose of this process

because public and governmental

engagement should not be a mere check-

the-box exercise, and agencies should

conduct engagement with appropriate

planning and active dialogue or other

interaction with stakeholders in which

all parties can contribute. For example,

such engagement can inform the

potential for significant effects or

identify alternatives that avoid or

reduce effects. Agencies should

determine the appropriate level of

outreach needed to engage meaningfully

and effectively with affected

communities.

Paragraph (c) would list what actions

the lead agency should take when

conducting outreach for public and

governmental engagement. Proposed

paragraph (c)(1) would recommend

agencies invite likely affected agencies

and governments, and paragraph (c)(2)

would recommend agencies conduct

early engagement with likely affected or

interested members of the public. CEQ

modeled these provisions on the

existing approaches in 40 CFR

1501.7(a)(1) (2019) and 40 CFR

1501.9(b) (2020) to invite early

participation of likely affected parties.

Paragraph (c)(3) would provide

flexibility to agencies to tailor

engagement strategies, considering the

scope, scale, and complexity of the

proposed action and alternatives, the

degree of public interest, and other

relevant factors. CEQ proposes to move

from 40 CFR 1506.6(c) to § 1501.9(c)(3)

the requirement that agencies consider

the ability of affected parties to access

electronic media when selecting the

appropriate methods of notification.

CEQ also proposes to add a clause to the

end of paragraph (c)(3) to require

agencies to consider the primary

language of affected persons when

determining the appropriate notification

methods to use.

CEQ then proposes to move and

modify the rest of 40 CFR 1506.6 to

proposed §§ 1501.9(d), (e), and (f).

Specifically, CEQ proposes to move the

introductory clause of 40 CFR 1506.6

and 40 CFR 1506.6(b), including its

paragraphs, to § 1501.9(d) and (d)(2),

respectively, and make minor revisions

to improve readability and consistency

with the rest of § 1501.9, including

adding the paragraph heading

‘‘notification.’’ CEQ also proposes in

(d)(2) to clarify that agencies should

make environmental documents

available, as appropriate, to help inform

the public engagement process. CEQ

proposes here and throughout the CEQ

regulations to replace the word ‘‘notice’’

with ‘‘Notification,’’ except where

‘‘notice’’ is used in reference to a

Federal Register notice. This proposed

change is intended to clearly

differentiate between those

requirements to publish a notice in the

Federal Register and other requirements

to provide notification of an activity,

which may include a notice in the

Federal Register or use of other

mechanisms.

CEQ proposes a new paragraph (d)(1)

to require agencies to publish

notification of proposed actions they are

analyzing through an EIS. CEQ proposes

this requirement in response to feedback

from multiple stakeholders and

members of the public requesting more

transparency about agency proposed

actions. Agencies may publish

notification through websites, email

notifications, or other mechanisms such

as the Permitting Dashboard,

67

so long

as the notification method or methods

are designed to adequately inform the

persons and agencies who may be

interested or affected, consistent with

the definition of ‘‘publish’’ in

§ 1508.1(ee). A notice of intent in the

Federal Register, consistent with

§ 1502.4(e), can fulfill the notification

requirement, but agencies also may elect

to use additional notification methods.

CEQ proposes to combine the provisions

from 40 CFR 1506.6(b)(3)(i) and (ii) on

notice to State, Tribal, and local

governments and agencies in proposed

§ 1501.9(d)(2)(iii)(A) to consolidate

similar provisions. CEQ also proposes to

recommend in paragraph (d)(2)(iii)(I)

that agencies establish email

notification lists or similar methods for

the public to easily request electronic

notifications for proposed actions.

As discussed in section II.I.3, CEQ

proposes to move the requirement for

agencies to explain in their NEPA

procedures where interested persons

can get information on EISs and the

NEPA process from 40 CFR 1506.6(e) to

§ 1507.3(c)(11) since this is a

requirement for NEPA procedures, not

public engagement. CEQ proposes to

move the requirements to make EISs

available under FOIA from 40 CFR

1506.6(f) to § 1501.9(d)(3).

CEQ proposes to delete 40 CFR

1506.6(d) on soliciting information from

the public because CEQ proposes to

include that concept in the purpose and

language of § 1501.9. CEQ proposes to

move 40 CFR 1506.6(c) on public

meetings and hearings to § 1501.9(e),

with modification, including adding the

heading ‘‘Public meetings and hearings’’

to the paragraph, making minor

revisions for clarity, consistency, and

readability, and adding a phrase to

clarify that when an agency accepts

comments for electronic or virtual

meetings, agencies must allow the

public to submit them electronically or

via regular mail. CEQ also proposes to

add in paragraph (e) a sentence

encouraging agencies to consider the

needs of affected communities when

determining what format to use for a

public hearing or public meeting

because the best option for the

communities involved may vary.

Finally, CEQ proposes to move 40

CFR 1506.6(a) on public involvement

for NEPA procedures to new paragraph

§ 1501.9(f), adding a paragraph heading

‘‘Agency procedures’’ and changing the

word ‘‘involve’’ to ‘‘engage.’’ CEQ is

proposing to move this provision to its

own paragraph because engagement in

the development of agency NEPA

procedures does not align with the new

title added for paragraph (d) and its

paragraphs on notification

requirements.

CEQ invites comment on whether and

how it can make any additional changes

to this or other provisions in the

regulations to enhance community

engagement. This could include adding

provisions to the NEPA regulations to

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further address the responsibilities of

the Chief Public Engagement Officers

proposed in § 1507.2(a) to facilitate

community engagement across the

agency and technical assistance to

communities. CEQ welcomes other

ideas.

8. Deadlines and Schedule for the NEPA

Process (§ 1501.10)

CEQ proposes to retitle § 1501.10 to

‘‘Deadlines and schedule for the NEPA

process’’ and revise the section to direct

agencies to set deadlines and schedules

for NEPA reviews to achieve efficient

and informed NEPA analyses consistent

with section 107 of NEPA. The

proposed changes in this section would

improve transparency and predictability

for stakeholders and the public

regarding NEPA reviews.

In paragraph (a), CEQ proposes edits

to emphasize that while NEPA reviews

should be efficient and expeditious,

they also must include sound analysis.

The proposal would direct agencies to

set deadlines and schedules tailored to

individual or types of proposed actions

to facilitate meeting the deadlines

proposed in § 1501.10(b). Consistent

with section 107(a)(2)(D) of NEPA, CEQ

also proposes in this paragraph to

require, where applicable, the lead

agency to consult with and seek

concurrence of joint lead, cooperating,

and participating agencies and consult

with project sponsors and applicants

when establishing and updating

schedules.

CEQ proposes to update paragraph (b)

for consistency with section 107(h) of

NEPA. Paragraph (b)(1) would require

agencies to complete an EA within one

year and paragraph (b)(2) would require

EIS completion in two years unless the

lead agency extends the deadline in

consultation with any applicant or

project sponsor and sets a new deadline.

In circumstances where there is no

applicant or project sponsor, the

consultation requirement is inapplicable

to extension of deadlines. Paragraph

(b)(3) would identify the starting points

from which the deadline is measured

and require agencies to measure from

the soonest of the three dates identified

in section 107(g) of NEPA, as applicable.

CEQ notes that section 107(g)(3) of

NEPA provides a mechanism for project

sponsors to petition the courts for relief

if an agency fails to meet the deadlines.

Finally, paragraph (b)(4) would require

agencies to submit the report to

Congress on any missed deadlines

required by section 107(h) of NEPA.

To enhance predictability, CEQ

proposes to add a new paragraph (c),

which would contain text moved from

40 CFR 1501.7(i) and modified for

consistency with section 107(a)(2)(D)

and (E) of NEPA requiring the lead

agency to develop schedules for EISs

and EAs. The schedule would include

key milestones for the environmental

review process, including reviews,

permits, and authorizations, and the

lead agency would develop it in

consultation with the applicant or

project sponsor and in consultation with

and seek the concurrence of any joint

lead, cooperating, and participating

agencies. CEQ proposes to allow

schedules to be tailored to proposed

actions and to highlight factors that may

help agencies set specific schedules to

meet the deadlines. Finally, CEQ

proposes to move to the end of this

paragraph text from 40 CFR 1501.7(j)

with modifications, including for

consistency with section 107(a)(2)(E) of

NEPA, and provide clarification to

enhance interagency communication

and issue resolution. The proposed

changes would require that, when the

lead agency or any participating agency

anticipates a missed milestone, that

agency notifies the responsible agency

(and the lead agency if identified by

another agency) and request that they

take action to comply with the schedule.

To emphasize the importance of

informed and efficient decision making,

CEQ proposes to require agencies to

elevate any unresolved disputes

contributing to the missed milestone to

the appropriate officials for resolution

within the deadlines for the individual

action.

CEQ proposes to redesignate 40 CFR

1501.10(c) as paragraph (d), which

addresses factors in setting deadlines,

and make changes to the text for

consistency with the proposed changes

to paragraph (b). Specifically, CEQ

proposes to change the reference to

‘‘deadlines’’ to add a reference to ‘‘the

schedule’’ and add a reference to the

‘‘lead agency,’’ to consider the listed

factors in setting schedules. CEQ

proposes to add an additional factor to

(d)(7), redesignating 40 CFR

1501.10(c)(7) to be paragraph (d)(8), to

add the degree to which a substantial

dispute exists on the proposed action

and its effects. This would restore and

clarify a factor included in the 1978

regulations at 40 CFR 1501.8(a)(vii)

(2019) regarding the degree to which the

action is controversial. While the 2020

regulations removed this factor because

it overlapped with other factors, CEQ is

proposing to restore and clarify it in the

list of factors, focusing on substantial

disputes over the size, location, nature,

or consequences of the proposed action

and its effects. CEQ considers this an

important factor that could have

implications for establishing schedules

and milestones. In such instances,

agencies should seek ways to resolve

disputes early in the process, including

using conflict resolution and other tools,

to achieve efficient outcomes and avoid

costly and time-consuming litigation

later in the process.

CEQ proposes to redesignate 40 CFR

1501.10(d) as paragraph (e) and require

a schedule to include a list of specific

milestones. Proposed paragraphs (e)(1)

through (e)(5) would require EIS

schedules to include proposed dates for

publication of the NOI, issuance of the

draft EIS, the public comment period,

issuance of the final EIS, and issuance

of the ROD. CEQ proposes to remove

paragraphs 40 CFR 1501.10(d)(2), (d)(6),

and (d)(7) because they are either

covered by proposed (e)(1) through

(e)(3) or unnecessary. CEQ proposes in

paragraph (f) and (f)(1) through (f)(4) to

identify the milestones that agencies

must include in schedules for EAs.

CEQ proposes to redesignate 40 CFR

1501.10(e) as paragraph (g). Finally, to

increase predictability and enhance

agency accountability, CEQ proposes to

strike 40 CFR 1501.10(f) and add a new

paragraph (h) to require agencies to

make schedules for EISs publicly

available and to publish revisions to the

schedule. It also would require agencies

to publish revisions to the schedule and

include an explanation for substantial

revisions to increase transparency and

public understanding of decision

making and to encourage agencies to

avoid unnecessary delays.

9. Programmatic Environmental

Document and Tiering (§ 1501.11)

CEQ proposes to revise and retitle

§ 1501.11, ‘‘Programmatic

environmental document and tiering,’’

for consistency with section 108 of

NEPA, to consolidate relevant

provisions, and to add new language to

codify best practices for developing

programmatic NEPA reviews and

tiering, which are important tools to

facilitate more efficient environmental

reviews and project approvals. The

revisions to this section propose to

move portions of 40 CFR 1502.4 on EISs

for broad Federal actions to proposed

§ 1501.11 because agencies can review

actions at a programmatic level in both

EAs and EISs. CEQ has encouraged

agencies to engage in environmental

reviews for broad Federal actions

through the NEPA process since CEQ’s

initial guidelines. This continues to be

a best practice for addressing broad

actions, such as programs, policies,

rulemakings, series of projects, and

larger or multi-phase projects. CEQ

developed guidance in 2014 on Effective

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Programmatic Guidance, supra note 11.

Use of Programmatic NEPA Reviews,

68

compiling best practices across the

Federal Government on the

development of programmatic

environmental reviews. In this proposed

rule, CEQ would codify some of these

principles.

CEQ proposes to first address

programmatic environmental

documents and then tiering in

§ 1501.11. Accordingly, CEQ proposes

to redesignate existing 40 CFR

1501.11(a), (b), and (c), which address

tiering, to be proposed paragraphs (b),

(b)(1), and (b)(2), respectively, with

some modifications. CEQ proposes to

add a new paragraph (a) to address

programmatic environmental

documents. Proposed paragraph (a)

would encourage the use of

programmatic environmental

documents through an EIS or EA that

evaluates the environmental effects of

policies, programs, plans, or groups of

related activities. CEQ proposes to move

text from 40 CFR 1502.4(b) to

§ 1501.11(a) and revise it to include

EAs, providing that programmatic

environmental documents should be

relevant to the agency decisions and

timed to coincide with meaningful

points in agency planning and decision

making. Finally, paragraph (a) would

clarify that agencies can use

programmatic environmental

documents in a variety of ways,

highlighting some examples for agencies

to consider to facilitate better and more

efficient environmental reviews.

CEQ proposes to move the list of ways

agencies may find it useful to evaluate

a proposal when preparing

programmatic documents from 40 CFR

1502.4(b)(1) and (b)(1)(i) through

(b)(1)(iii) to § 1501.11(a)(1) and (a)(1)(i)

through (a)(1)(iii), respectively, and

expand the list to apply to

environmental documents rather than

just EISs to encompass EAs. CEQ

proposes to modify paragraph (a)(1)(ii)

to clarify ‘‘[g]enerically’’ to mean

‘‘[t]hematically or by sector,’’ and add

technology as an example action type.

CEQ proposes to add paragraph (a)(2)

to provide examples of the types of

agency actions that may be appropriate

for programmatic environmental

documents, including programs,

policies, or plans; regulations; national

or regional actions; or actions with

multiple stages and are part of an

overall plan or program. CEQ proposes

to move 40 CFR 1502.4(b)(2) to

§ 1501.11(a)(3) and recommend that

agencies employ scoping and other tools

to describe the relationship between

programmatic environmental document

and related actions to reduce

duplication. CEQ proposes to strike the

last sentence of 40 CFR 1502.4(b)(2)

stating that agencies may tier their

analyses because tiering and

programmatic environmental

documents would now be addressed

together in this section rendering the

language unnecessary.

As referenced earlier in this section,

CEQ proposes to redesignate the

existing paragraphs on tiering to

paragraphs (b), (b)(1) and (b)(2). CEQ

proposes to title paragraph (b) ‘‘Tiering’’

and add new language to describe when

agencies may employ tiering. CEQ

proposes to strike as redundant the

reference to issues not yet ripe for

decision as well as the last sentence on

applying tiering to different stages of

actions.

In § 1501.11(b)(1) CEQ proposes to

add programmatic environmental

document to the list of documents from

which agencies may tier. This paragraph

also would clarify that agencies need to

discuss the relationship between the

tiered analysis and the previous review;

evaluate site-, phase-, or stage-specific

conditions and effects; and allow for

public engagement opportunities that

are appropriate for the location, phase,

or stage.

Programmatic documents can most

effectively address later activities when

they provide a description of planned

activities that would implement the

program and consider the effects of the

program as specifically and

comprehensively as possible. A

sufficiently detailed programmatic

analysis with such project descriptions

can allow agencies to rely upon

programmatic environmental

documents for further actions with no or

little additional environmental review

necessary. When conducting

programmatic analyses, agencies should

engage the public throughout the NEPA

process and consider when it is

appropriate to re-engage the public prior

to implementation of the action.

In paragraph (c), CEQ proposes to

include the provisions in section 108 of

NEPA, which address when an agency

may rely on a programmatic document

in subsequent environmental

documents. CEQ notes that it interprets

the reference to ‘‘judicial review’’ in

paragraph (c)(1) to mean an opportunity

for a party to challenge the

programmatic document, including an

administrative proceeding or challenge

under the Administrative Procedure

Act. CEQ invites comment on whether

to provide additional information in the

regulations to clarify this provision.

CEQ proposes in paragraph (c)(2) to

require agencies to briefly document

their reevaluations when relying on

programmatic environmental

documents older than 5 years. CEQ

invites comment on whether and how to

more closely align this provision with

the reevaluation and supplementation

provisions in §§ 1501.5(h) and

1502.9(d).

CEQ invites comment on any

additional changes that would promote

effective use of programmatic

environmental reviews to facilitate

efficient and non-duplicative

subsequent review of project-specific

actions, including through tiering.

10. Incorporation by Reference Into

Environmental Documents (§ 1501.12)

CEQ proposes minor modifications to

§ 1501.12 to emphasize the importance

of transparency and accessibility of

material that agencies incorporate by

reference. CEQ proposes to add a

specific requirement for agencies to

briefly explain the relevance of any

material incorporated into the

environmental document to clarify that

agencies must do this. CEQ proposes

this addition because explaining the

relevance of incorporated material in

addition to summarizing it will better

inform the decision maker and the

public. CEQ encourages agencies to

integrate the description of relevance

into the summary of the material. CEQ

also proposes to change ‘‘may not’’ to

‘‘shall not’’ to eliminate a potential

ambiguity over whether agencies must

make material they incorporate by

reference reasonably available for public

inspection. CEQ also proposes to add a

reference to ‘‘publicly accessible

website’’ as an example of a mechanism

for making material incorporated by

reference available to the public, and

clarify that an agency may meet this

obligation by posting documents on a

website. Finally, CEQ proposes to add

language encouraging agencies to

provide digital references, such as

hyperlinks, to incorporated material or

otherwise indicate how the public can

access the material for inspection.

D. Proposed Revisions To Update Part

1502, Environmental Impact Statements

CEQ is proposing revisions to many

sections of part 1502. CEQ is not

proposing any substantive changes to

§ 1502.3, but is revising the section title

to read ‘‘Statutory requirements for

environmental impact statements.’’ CEQ

is not proposing substantive changes to

§ 1502.6, Interdisciplinary preparation;

§ 1502.13, Purpose and need; §1502.18,

List of preparers; § 1502.19, Appendix;

§ 1502.20, Publication of the

environmental impact statement;

§ 1502.22, Cost-benefit analysis; or

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See 2023 GHG Guidance, supra note 9.

§ 1502.24, Environmental review and

consultation requirements. CEQ invites

comment on whether it should make

any changes to these sections or other

changes to part 1502.

CEQ particularly invites comment on

whether it should codify any or all of its

2023 GHG guidance, and, if so, which

provisions of part 1502 or other

provisions of the regulations CEQ

should amend. CEQ proposes to

incorporate some or all of the 2023 GHG

guidance, which would require making

additional changes in the final rule to

codify the guidance in whole or part, as

is or with changes, based on the

comments CEQ receives on this

proposed rule.

69

1. Purpose (§ 1502.1)

CEQ proposes to divide § 1502.1 into

paragraphs (a), (b), and (c) to enhance

readability and amend the text in the

section to restore the approach taken in

the 1978 regulations regarding the

purpose of EISs as they relate to NEPA.

In paragraph (a), CEQ proposes to

restore language from the 1978

regulations clarifying that one purpose

of an EIS is to serve as an action-forcing

device for implementing the policies set

out in section 101 of NEPA by ensuring

agencies consider the environmental

effects of their action in decision

making. Congress did not enact NEPA to

create procedure for procedure’s sake;

NEPA’s procedures serve the

substantive policies and goals Congress

established and restoring the action-

forcing language would clarify how EISs

serve this broader function. This

proposed change is consistent with the

proposed edits in § 1500.1. See section

II.B.1.

In paragraph (b), CEQ proposes minor

edits for clarity and consistency with

other changes proposed throughout the

regulations. CEQ proposes to change

‘‘It’’ to ‘‘Environmental impact

statements’’ to improve readability in

light of the proposal to add paragraphs

to the section. CEQ also proposes to

change ‘‘significant’’ to ‘‘important’’

before ‘‘environmental issues’’ and

insert ‘‘reasonable’’ before

‘‘alternatives’’ for consistency with

similar phrasing throughout the

regulations. In paragraph (c), CEQ

proposes to restore the 1978 language

clarifying that an EIS is more than a

disclosure document and that agencies

must use EISs concurrently with other

relevant information to make informed

decisions. CEQ considers this language

to provide important direction to

agencies to ensure that EISs inform

planning and decision making and do

not serve as a perfunctory check-the-box

exercise.

2. Implementation (§ 1502.2)

CEQ proposes minor modifications in

§ 1502.2. First, CEQ proposes to restore

from the 1978 regulations the

introductory paragraph directing

agencies to prepare EISs to meet the

purpose established in § 1502.1. Upon

reconsideration, CEQ is proposing to

restore this language that was removed

as unnecessary by the 2020 rule to

provide clarity on the purpose of this

section and improve readability.

Next, in paragraph (b) CEQ proposes

to replace the word ‘‘significant’’ with

‘‘important’’ and add reference to an

environmental assessment for clarity

and consistency. In paragraph (c), CEQ

proposes to change ‘‘analytic’’ to

‘‘analytical,’’ and ‘‘project size’’ to ‘‘the

scope and complexity of the action’’

since this provision is applicable to

more than projects, and the length of an

EIS should be proportional to the scope

and complexity of the action analyzed

in the document.

CEQ proposes to delete ‘‘as

interpreted in’’ before ‘‘the regulations

in this subchapter’’ in paragraph (d), for

the reasons discussed above for making

a similar change in section II.B.5. CEQ

is concerned that this phrase may

inappropriately constrain agencies

whose agency NEPA procedures go

beyond the CEQ regulations. Under the

proposal, EISs must state how

alternatives and decisions will or will

not achieve the requirements of NEPA,

the CEQ regulations, and other

environmental laws and policies.

Finally, CEQ proposes to delete the

word ‘‘final’’ in paragraph (f) because

there is no distinction between a

decision and final decision and for

consistency with use of ‘‘decision’’

elsewhere in the regulations.

3. Scoping (§ 1502.4)

As discussed in section II.C.7 on

§ 1501.9, ‘‘Public and governmental

engagement,’’ and § 1501.11,

‘‘Programmatic review and tiering,’’

CEQ proposes to revise § 1502.4 by

retitling it ‘‘Scoping’’ and moving

provisions from the current 40 CFR

1501.9 to this section. This proposal

would move the requirements of

scoping for EISs to part 1502, which

addresses the requirements of EISs,

while moving requirements for

determining the appropriate level of

NEPA review applicable to all

environmental reviews to § 1501.3(b).

CEQ also proposes to revise the

provisions moved from the current 40

CFR 1501.9 to align scoping with related

changes made on public engagement in

§ 1501.9 and to add requirements

focused on increasing efficiency in the

EIS scoping process.

CEQ has heard from multiple Federal

agencies that there is uncertainty over

the differences between the scoping

process required for EISs and other

public involvement or engagement

requirements for NEPA reviews more

generally. By proposing the

revised§ 1501.9 on public and

governmental engagement and moving

the scoping provisions to § 1502.4, CEQ

is emphasizing the importance of public

engagement in the NEPA process

generally, clarifying what requirements

are unique to EISs, and clarifying what

requirements and best practices

agencies should consider regardless of

the level of NEPA review.

As noted in sections II.C.2 and II.C.9,

with the revision of this section to

address scoping, CEQ proposes to move

the existing provisions of 40 CFR

1502.4, ‘‘Major Federal actions requiring

the preparation of environmental impact

statements’’ to §§ 1501.3 and 1501.11.

CEQ proposes to move 40 CFR

1501.9(a), outlining the general purpose

of scoping, to § 1502.4(a) and proposes

to change the words ‘‘significant’’ and

‘‘non-significant’’ to ‘‘important’’ and

‘‘unimportant,’’ respectively, to align

with CEQ’s proposed change to only use

the word ‘‘significant’’ when describing

effects. CEQ intends this to be a

clarifying, non-substantive change. CEQ

proposes to move 40 CFR 1501.9(c) on

scoping outreach to paragraph (b) and

add a sentence requiring agencies to

facilitate notification to persons and

agencies who may be interested or

affected by an agency’s proposed action,

consistent with the public engagement

requirements in proposed § 1501.9. CEQ

proposes to move 40 CFR 1501.9(b) on

cooperating and participating agencies

to paragraph (c) and retitle it ‘‘Inviting

participation’’ to better reflect that the

paragraph covers cooperating and

participating agencies as well as

proponents of the action and other

likely affected or interested persons.

CEQ notes that agencies invited to serve

as cooperating or participating agencies

should respond in a timely manner to

facilitate the inclusion in the NOI any

information that these agencies may

need as part of the scoping process.

CEQ proposes to move 40 CFR

1501.9(f) and (f)(1) through (f)(5) on

additional scoping responsibilities to

paragraph (d) and (d)(1) though (d)(5),

respectively. Within this list, CEQ

proposes modifications to paragraph

(d)(1) to change ‘‘significant’’ to

‘‘important’’ to align with changes in

paragraph (a) and the use of

‘‘significant’’ throughout the

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Examples of NOI Withdrawals: Powell Ranger

District; Utah; Powell Travel Management Project;

Withdrawal of Notice of Intent to Prepare an

Environmental Impact Statement, 87 FR 1109 (Jan.

10, 2022); Withdrawal of the Notice of Intent to

Prepare an Environmental Impact Statement for the

Carpinteria Shoreline, a Feasibility Study in the

City of Carpinteria, Santa Barbara County, CA, 86

FR 41028 (July 30, 2021).

regulations, which CEQ intends to be a

clarifying, non-substantive change.

CEQ proposes to move the

requirements for an NOI from 40 CFR

1501.9(d) and (d)(1) through (d)(8) to

§ 1502.4(e) and (e)(1) through (e)(8),

respectively. CEQ proposes to delete the

reference to 40 CFR 1507.3(f)(3) because

CEQ is proposing to remove that

provision from the regulations, as

discussed in section II.I.2. CEQ proposes

to revise the language in paragraph

(e)(7) for consistency with section 107(c)

requiring the NOI to include a request

for public comment on alternatives or

impacts and on relevant information,

studies, or analyses, delete the cross

reference to § 1502.17 because CEQ

proposes to broaden the language in

§ 1502.17. Further, this cross reference

would no longer be necessary since CEQ

proposes to remove the exhaustion

process in 40 CFR 1500.3, which relies,

in part, on this provision as the first step

in that process. Additionally, the

purpose of scoping is to receive input

from the public on the proposed action

and alternatives as well as other

information relevant to consideration of

the proposed action. CEQ considers the

language in this paragraph to be

redundant to the other required

information in paragraph (e).

To this list of NOI requirements, CEQ

proposes to add paragraph (e)(9) to

require the lead agency to list any

cooperating and participating agencies

that have been identified at the time of

the NOI, as well as any information

those agencies require to facilitate their

decisions or authorizations related to

the EIS. CEQ proposes to add this

requirement to ensure that lead and

cooperating agencies are communicating

about any unique statutory or regulatory

requirements of each agency so that the

necessary information is included in the

initial NOI and does not require re-

issuance of a second NOI by the

cooperating or participating agency. For

example, the U.S. Forest Service’s

regulations regarding administrative

review require the responsible official to

disclose during the NEPA scoping

process that a proposed project or

activity or proposed plan, plan

amendment, or plan revision is subject

to one of its administrative review

regulations. 36 CFR 218.7(a), 219.52(a).

When the Forest Service acts as a

cooperating agency and the lead agency

does not include the necessary

information in the NOI, the Forest

Service then must issue its own NOI,

which can add additional time in the

NEPA process.

CEQ also proposes to add paragraph

(e)(10) to require that the NOI include

a unique identification number for

tracking purposes that would be carried

forward to all other documents related

to the action such as the draft and final

EISs and ROD. Identification numbers

can help both the public and agencies

track the progress of an EIS for a specific

action as it moves through the NEPA

process. CEQ has similarly proposed to

require agencies to use tracking

numbers for environmental assessments

in § 1501.5. See section II.C.4.

CEQ proposes to move and edit the

second sentence regarding supplemental

notices in 40 CFR 1507.3(f)(3) to

paragraph (f), ‘‘Notices of withdrawal or

cancellation,’’ to require that an agency

publish in the Federal Register a notice

of withdrawal of the NOI or a

supplemental notice to inform the

public that it is no longer considering a

proposed action and, therefore,

discontinuing preparation of an EIS.

Agencies should publish such notices if

they withdraw, cancel, or otherwise

cease the consideration of a proposed

action before completing a final EIS.

CEQ proposes this requirement to codify

common agency practice and to increase

transparency to the public. Such a

notice does not need to be lengthy, but

should clearly reference the original

NOI, name of the project in the original

notice, unique identification number,

and who to contact for additional

information.

70

Finally, CEQ proposes to

move 40 CFR 1501.9(g) on NOI revisions

to § 1502.4(g), updating the paragraph

references and changing ‘‘significant’’ to

‘‘important’’ and ‘‘impacts’’ to ‘‘effects,’’

which CEQ intends to be a clarifying,

non-substantive edit. These edits would

align the text with the proposed changes

to § 1502.9(d)(1)(ii).

4. Timing (§ 1502.5)

CEQ proposes to make three clarifying

amendments to § 1502.5. First, in

paragraph (a), CEQ proposes to add

‘‘e.g.,’’ in the parenthetical ‘‘(go/no-go).’’

CEQ proposes this amendment in

response to agency feedback during the

development of the proposed rule to

clarify that the feasibility analysis and

the ‘‘go/no-go’’ stage may not occur at

the same point in time and may differ

depending on what is included in the

feasibility analysis and how the agency

has structured that analysis. This

change would be consistent with the

longstanding practice that agencies have

discretion to decide the appropriate

time to begin the NEPA analysis, but

also that agencies should integrate the

NEPA process and other planning or

authorization processes early. See

§ 1501.2(a).

Second, CEQ proposes to add

‘‘complete’’ in the first sentence of

paragraph (b) to clarify that agencies

must begin preparing an EIS after

receiving a complete application,

though agencies can elect to begin the

process earlier if they choose to do so.

CEQ also proposes to add ‘‘together

and’’ in the second sentence of

paragraph (b) to clarify further that

agencies should work ‘‘together and

with’’ potential applicants and other

entities before receiving the application.

Based on CEQ’s experience, early

conversations and coordination among

Federal agencies, the applicant, and

other interested entities can improve

efficiencies in the NEPA process and

ultimately lead to better environmental

outcomes. Additionally, similar to the

proposed change to paragraph (a), this

proposed change is consistent with

other directions in the regulations to

integrate the NEPA process and other

processes early. See §§ 1500.5(h), (i),

1501.2(a).

5. Page Limits (§ 1502.7)

CEQ proposes to amend § 1502.7, to

align the text with section 107(e) of

NEPA, which sets page limits for EISs

at 150 pages or 300 pages for proposals

of extraordinary complexity, not

including citations or appendices. CEQ

proposes to remove the requirement for

the senior agency official of the lead

agency to approve longer documents for

consistency with the statute, which does

not provide a mechanism to approve

longer documents.

CEQ strongly encourages agencies to

prepare concise EISs that are both

comprehensive and understandable to

the decision maker and the public.

Agencies should consider establishing

within their procedures mechanisms to

do so that will be most effective for their

programs and activities. Such

mechanisms might include placing

technical analyses in appendices and

summarizing them in plain language in

the EIS; making use of visual aids,

which are excluded from the definition

of ‘‘page,’’ including sample images,

maps, drawings, charts, graphs, and

tables; and using insets, colors, and

highlights to create visually interesting

ways to draw attention to key

information and conclusions. Agencies

should consider making EISs and

technical appendices machine readable,

where possible and feasible, to facilitate

data sharing and reuse in future

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See 2020 Final Rule, supra note 36.

72

Id.

analyses. CEQ invites comment on

whether CEQ should modify the

regulations to appropriately encourage

agencies to do so.

6. Writing; and Draft, Final, and

Supplemental Statements (§§ 1502.8

and 1502.9)

CEQ proposes minor edits to § 1502.8

to make the text consistent with

modifications proposed in § 1502.12

regarding visual aids or charts.

CEQ proposes to delete ‘‘as

interpreted’’ before ‘‘in the regulations

in this subchapter’’ in § 1502.9(b), as

section II.B.5 explains. CEQ also

proposes to clarify that it is the agency

preparing a draft EIS that determines a

draft statement requires

supplementation to inform its decision-

making process.

In § 1502.9(c), CEQ proposes to clarify

that a final EIS should ‘‘consider and

respond’’ to comments rather than just

‘‘address’’ them, restoring language from

the 1978 regulations and aligning the

language with text at § 1503.4(a)

regarding consideration of comments.

The 2020 rule did not explain the

change to ‘‘address,’’

71

and CEQ is

concerned that it could be read as

weakening the standard for responding

to comments within § 1502.9 and in

§ 1503.4. In paragraphs (d)(1)(ii) and

(d)(4), CEQ proposes to replace the word

‘‘significant’’ with ‘‘important’’ and

‘‘impacts’’ with ‘‘effects’’ (except where

‘‘impact’’ is used as part of the term

FONSI) for consistency, as discussed in

section II.A. In paragraph (d)(1)(ii), CEQ

also proposes to add ‘‘substantial or’’

before ‘‘important new circumstances or

information,’’ for consistency with its

use section 108(1) of NEPA, which

confirms that an agency may rely on the

analysis in an existing programmatic

environmental document for five years

without having to supplement or

reevaluate the analysis, provided no

substantial new circumstances or

information exist. CEQ invites comment

on whether it should revise the language

in paragraphs (d)(1)(i) and (d)(1)(ii) to

more specifically identify situations

where supplementation is required.

CEQ proposes to redesignate 40 CFR

1502.9(d)(4) as § 1502.9(e), title it

‘‘Reevaluation,’’ making this a

standalone paragraph rather than a

paragraph of supplemental EISs to

clarify that reevaluation is a separate

tool to document when

supplementation is not required. CEQ

proposes to add in paragraph (e) that

agencies may ‘‘reevaluate’’ an EIS in

part to determine ‘‘that the underlying

assumptions of the analysis remains

valid.’’ That language is generally

consistent with section 108(2) of

NEPA’s rule that an agency may rely on

programmatic documents that are more

than five years old if it reevaluates the

underlying analysis. However, while

section 108(2) requires reevaluation for

programmatic documents more than five

years old, CEQ proposes to leave

agencies discretion over whether and

when to reevaluate non-programmatic

documents.

7. Recommended Format and Cover

(§§ 1502.10 and 1502.11)

CEQ proposes to revise the

recommended format of an EIS. CEQ

proposes to include the summary of

scoping information required by

§ 1502.17 and the list of preparers

required by § 1502.18 in appendices,

rather than the main body of the EIS.

Therefore, CEQ proposes to remove 40

CFR 1502.10(a)(7) through (9), and add

a new paragraph (a)(7) requiring

appendices including the scoping

summary and list of preparers.

CEQ proposes to clarify in

§ 1502.11(a) that the list of ‘‘responsible

agencies’’ on an EIS cover are the lead,

joint lead, and any cooperating agencies.

Consistent with the proposed change in

§ 1502.4(e)(10), CEQ proposes to amend

paragraph (g) to require the cover to

include the identification number

identified in the NOI to make clear the

relationships of documents to one

another and help the public and

decision makers easily track the

progress of the EIS as it moves through

the NEPA process and to facilitate

digitization and analysis.

CEQ proposes to strike the existing

requirement in 40 CFR 1502.11(g) to

include on the cover of the final EIS the

estimated preparation cost, a change

that multiple Federal agencies requested

during development of this proposed

rule. The 2020 rule stated that including

estimated total costs would be helpful

for tracking such costs, and that

agencies could develop their own

methodologies for tracking EIS

preparation costs in their agency NEPA

procedures.

72

However, Federal agency

commenters stated that agencies

typically do not estimate total costs, that

they are difficult to monitor especially

when project sponsors and contractors

are bearing some of the cost, that the

methodology for estimating costs is

inconsistent across agencies, and that

providing these estimates would be

burdensome. At least one agency

commenter noted that agencies

inconsistently implemented a similar

requirement in E.O. 13807, which

undermined the utility of the estimates,

that tracking costs added a significant

new burden on staff, and that it was not

clear whether tracking such costs

provided useful information for

agencies or the public.

CEQ does not consider EIS costs to be

germane to the purpose of an EIS.

Requiring that they be included on the

cover could incorrectly lead the public

and decision makers to believe that

those costs relate to the proposed action

addressed in the EIS. In general, the

purpose of the cover is to indicate the

subject matter of the document and

provide the public with an agency point

of contact, provide a short abstract of

the EIS, and indicate the date by which

the public must submit comments.

Further, CEQ is concerned that

requiring agencies to calculate the costs

may unnecessarily add time to the EIS

preparation process, particularly where

aspects of an environmental review

serve multiple purposes and allocating

costs to NEPA compliance and other

obligations may be complicated.

CEQ recognizes the value in gathering

information on overall costs, trends in

costs, and approaches that can reduce

costs, as this can provide a full picture

of how and whether agencies are

effectively using their resources,

including to conduct environmental

reviews. Each agency should track and

monitor these costs through their own

procedures and mechanisms and

consult with CEQ about any lessons

learned to inform CEQ’s ongoing

evaluation of the efficiency and

effectiveness of the NEPA process. CEQ

does not consider requiring in the NEPA

regulations that agencies publish costs

on the cover of EISs to be the

appropriate mechanism to develop that

information.

8. Summary (§ 1502.12)

CEQ proposes modifications to

§ 1502.12 to clarify the purpose of the

summary and update what elements

agencies should include in the summary

with a goal of creating summaries that

are more useful to the public and

agencies. The summary serves to

provide the public and decision makers

with a clear, high-level overview of the

proposed action and alternatives, the

significant effects, and other critical

information in the EIS.

CEQ proposes a few changes to the

second sentence in § 1502.12. First, CEQ

proposes to replace the word ‘‘stress’’

with ‘‘include’’ in describing the

contents of the summary to clarify that

an adequate and accurate summary may

include more than what is listed in

§ 1502.12. Next, CEQ proposes to clarify

that the summary should summarize

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See Phase 1 Response to Comments, supra note

48, at 162.

74

2020 Final Rule, supra note 36, at 43330.

75

See, e.g., 2020 Response to Comments, supra

note 63, at 274; Phase 1 Response to Comments,

supra note 48, at 55.

76

Forty Questions, supra note 4.

77

See, e.g., Fed. R.R. Admin., Final Program

Environmental Impact Report/Environmental

Impact Statement (EIR/EIS) for the proposed

California High-Speed Train System (2005), https://

hsr.ca.gov/programs/environmental-planning/

program-eir-eis-documents-for-the-statewide-high-

speed-rail-system-tier-1/final-program-

environmental-impact-report-environmental-

impact-statement-eir-eis-for-the-proposed-

california-high-speed-train-system-2005/.

78

See, e.g., U.S. Army Corps of Eng’rs, Final

Environmental Impact Statement for Savannah

Harbor Expansion Project (rev. July 2012), https://

www.sas.usace.army.mil/Missions/Civil-Works/

Savannah-Harbor-Expansion/Final-Environmental-

Impact-Statement/.

79

2020 Final Rule, supra note 36, at 43330–31;

2020 Response to Comments, supra note 63, at 45,

57.

disputed issues, any issues to be

resolved, and key differences among

alternatives. CEQ proposes this change

to provide the public and decision

makers with a more complete picture of

the disputed issues rather than focusing

on ‘‘areas of’’ disputed issues and to

facilitate informed decision making and

transparency. These edits are also

consistent with § 1502.14(b), which

requires agencies to discuss alternatives

in detail. Summarizing the key

differences of alternatives could

enhance the public’s and decision

makers’ understandings of the relative

trade-offs of the alternatives considered

in detail.

CEQ also proposes to add language to

the second sentence to require that the

summary identify the environmentally

preferable alternative or alternatives.

Adding the environmentally preferable

alternative to the summary would

enhance the public’s and decision

makers’ understandings of the

alternative or alternatives that will best

promote the national environmental

policy as expressed in section 101 of

NEPA by providing a summary of that

alternative early on in the document.

CEQ proposes to add a fourth

sentence to § 1502.12 to make

summaries easier to read and

understand by requiring agencies to

write the summary in plain language

and encouraging use of visual aids and

charts. Existing regulatory text already

requires agencies to write

environmental documents in plain

language as a means to preparing

readable, concise, and informative

documents. See, e.g., §§ 1500.4 and

1502.8. Agencies commonly use visual

aids, such as graphics, maps, and

pictures, throughout their

environmental documents.

Finally, similar to other changes

proposed regarding page limits, CEQ

proposes to allow agencies flexibility in

the length of a summary. In the existing

text, summaries are limited to 15 pages.

CEQ proposes instead to encourage

summaries to not exceed 15 pages.

Although summaries should be brief,

CEQ acknowledges with this proposed

change that some proposed actions are

more complex and may require

additional pages.

9. Purpose and Need; Alternatives

Including the Proposed Action

(§§ 1502.13 and 1502.14)

CEQ proposes to revise § 1502.13 to

align the language with the text of

section 107(d) of NEPA requiring an EIS

to include statement that briefly

summarizes the underlying purpose and

need for the proposed agency action.

CEQ proposes revisions to § 1502.14

to promote the rigorous analysis and

consideration of alternatives, consistent

with the longstanding principle that

agencies take a ‘‘hard look’’ at their

actions. To that end, CEQ proposes to

reintroduce much of the 1978 text to

§ 1502.14 that the 2020 rule removed

and modernize it to ensure agency

decision makers are well-informed.

Many commenters on the Phase 1 rule

requested CEQ revise this provision to

revert to the 1978 language or revise it

to ensure agencies fully explore the

reasonable alternatives to their proposed

actions.

73

CEQ proposes to revise the

introductory paragraph of § 1502.14 to

reinstate the language from the 1978

regulations that the alternatives analysis

‘‘is the heart of the environmental

impact statement.’’ While the 2020 rule

described this clause as ‘‘colloquial

language’’ to justify its removal,

74

CEQ

now considers this to be an integral

policy statement necessary to emphasize

the importance of the alternatives

analyses to allow decision makers to

assess a reasonable range of possible

approaches to the matters before them

and notes that numerous court decisions

quoted this language from the 1978

regulations in stressing the importance

of the alternatives analysis. See, e.g.,

Wyoming v. U.S. Dep’t of Agric., 661

F.3d 1209, 1243 (10th Cir. 2011).

Numerous commenters on the 2020 rule

and the 2022 Phase 1 rule supported

inclusion of this language.

75

CEQ proposes a clarifying edit in the

introductory paragraph, replacing

‘‘present’’ the environmental effects

with ‘‘identify’’ the ‘‘reasonably

foreseeable’’ environmental effects

consistent with § 1500.2(e) and section

102(2)(C)(i) of NEPA. Finally, in the

introductory paragraph, CEQ proposes

to state that the alternatives analysis

should sharply define issues for the

decision maker and the public and

provide a clear basis for choice in the

options. CEQ proposes reintroducing

this language from the 1978 regulations

because it provides an important policy

statement, concisely explaining the end

goals for the alternatives analysis.

CEQ proposes in paragraph (a) to

restore the clause that agencies must

‘‘rigorously explore and objectively’’

evaluate reasonable alternatives at the

beginning of the first sentence. CEQ

proposes to reinsert this language

because it provides a standard for how

agencies should analyze alternatives.

CEQ proposes to add two additional

sentences to paragraph (a). One

statement would clarify that agencies

need not consider every conceivable

alternative to a proposed action but

rather must consider a reasonable range

of alternatives that fosters informed

decision making. CEQ proposes to add

this sentence to replace the statement in

the current 40 CFR 1502.14(f) requiring

agencies to limit their consideration to

a reasonable number of alternatives,

which CEQ proposes to strike. This

proposed language is consistent with

longstanding CEQ guidance

76

and

would reinforce that the alternative

analysis is not boundless; the key is to

provide the decision maker with

reasonable options to ensure informed

decision making. To that end, CEQ also

proposes in paragraph (a) to clarify that

agencies have the discretion to consider

reasonable alternatives not within their

jurisdiction, but NEPA and the CEQ

regulations generally do not require

them to do so. Such alternatives may be

relevant, for instance, when agencies are

considering program-level decisions

77

or anticipate funding for a project not

yet authorized by Congress.

78

CEQ

anticipates that such consideration

would be a relatively infrequent

occurrence and notes that such

alternatives would still need to be

technically and economically feasible

and meet the purpose and need for the

proposed action, consistent with the

definition of ‘‘reasonable alternatives.’’

CEQ considers adding this language to

paragraph (a) to improve the

consistency of the regulations with the

‘‘hard look’’ principle of NEPA.

Some commenters—both on the 2020

rule and the Phase 1 rule—supported

the removal of the 1978 regulations’

requirement to consider alternatives

outside the jurisdiction of the lead

agency, contending that such

alternatives are inherently infeasible.

79

However, many commenters on the

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Phase 1 Response to Comments, supra note 48,

at 162.

Phase 1 rule supported the

reintroduction of this language.

80

CEQ’s

proposal is intended to strike a balance;

the proposal would not require agencies

to consider alternatives outside their

jurisdiction or preclude agencies from

doing so. Further, it would retain the

direction that the agency need only

consider reasonable alternatives.

CEQ proposes to replace paragraph (f)

with a requirement to identify the

environmentally preferable alternative.

In addition to the proposed definition of

environmentally preferable alternative

in § 1508.1(l), this provision would

describe elements that the

environmentally preferable alternative

may generally include. The list uses

‘‘or’’ to make clear that the

environmentally preferable alternative

need not include each delineated

element and recognizes that identifying

the environmentally preferable

alternative may entail making tradeoffs

in some cases. This approach would

provide agencies flexibility to rely on

their discretion and expertise to strike

an appropriate balance in identifying

the environmentally preferable

alternative. Finally, paragraph (f) would

clarify that the environmentally

preferable alternative may be the

proposed action, no action alternative,

or a reasonable alternative. Agencies

may identify more than one

environmentally preferable alternative

as they deem appropriate.

The CEQ regulations, at 40 CFR

1505.2, always have required agencies

to identify the environmentally

preferable alternative in a ROD. CEQ’s

proposal would provide more context

for what this alternative entails,

improving consistency and furthering

NEPA’s goal of ensuring that agencies

make informed decisions regarding

actions that impact the environment.

Additionally, requiring that the draft

and final EIS identify the

environmentally preferable alternative

would provide more transparency to the

public as to the agency’s decision-

making process at an earlier stage, as

well as an opportunity to comment on

it before the agency makes its decision.

10. Affected Environment (§ 1502.15)

CEQ proposes revisions to § 1502.15

to emphasize the use of high-quality

information, including best available

science and data; clarify considerations

of reasonably foreseeable environmental

trends; and emphasize efficiency and

concise documents. CEQ also proposes

to divide § 1502.15 into paragraphs (a),

(b), and (c) to improve readability.

CEQ proposes to discuss data in a

new paragraph (b), which would

encourage agencies to use high-quality

information, including best available

science and data, in recognition that

these should inform all agency

decisions. This paragraph would

articulate clearly NEPA’s statutory

mandate that science inform agencies’

decisions as part of a systematic,

interdisciplinary approach. See 42

U.S.C. 4332(2)(A). In addition, the

paragraph would clarify that this

information should inform agencies’

consideration of ‘‘reasonably foreseeable

environmental trends,’’ noting explicitly

that this includes anticipated climate-

related changes to the environment.

CEQ proposes this language to clarify

that agencies should consider

reasonably foreseeable future climate

conditions on affected areas rather than

merely describing general climate

change trends at the global or national

level. In line with scientific projections,

accurate baseline assessment of the

affected environment over an action’s

lifetime should incorporate forward-

looking climate projections rather than

relying on historical data alone. CEQ

also proposes language in paragraph (b)

to connect the description of baseline

environmental conditions and

reasonably foreseeable trends to an

agency’s analysis of environmental

consequences and mitigation measures.

CEQ proposes to move the second and

third through fifth sentences of 40 CFR

1502.15 to new paragraph (c). CEQ also

proposes minor revisions to the

relocated language and a new sentence

to provide that agencies may combine

the affected environment and

environmental consequences sections in

an EIS, which should be no longer than

necessary to understand the relevant

affected environment and the effects of

the alternatives.

11. Environmental Consequences

(§ 1502.16)

CEQ proposes several changes to

§ 1502.16 to clarify priorities and

methods of analysis and make updates

to ensure that agencies integrate climate

change and environmental justice

considerations into the analysis of

environmental effects.

CEQ proposes in paragraph (a)(1) to

modify the sentence requiring agencies

to base the comparison of the proposed

action and reasonable alternatives on

the discussion of effects to add

‘‘reasonably foreseeable’’ before

‘‘environmental effects’’ for consistency

with the text of section 102(2)(C)(i) of

NEPA and to focus the comparison of

the proposed action and reasonable

alternatives on the ‘‘significant or

important effects’’ to emphasize that

agencies’ analyses of effects should be

proportional to the significance of the

effects. The FRA’s amendments to

NEPA codified the longstanding

principle from the 1978 regulations and

long recognized by the courts that

effects must be reasonably foreseeable.

Consistent with this provision, agencies

should identify the effects they deem

significant whenever possible to inform

the public and decision makers. Finally,

CEQ proposes adding a new sentence to

the end of paragraph (a)(1) clarifying the

proper role of the no action alternative

to ensure that the comparative analysis

is not distorted by selecting a different

alternative (for example, the preferred

alternative) as the baseline against

which all other alternatives are

measured. In formulating the no action

alternative, agencies should make

reasonable assumptions. CEQ invites

comment on whether it should include

additional direction or guidance

regarding the no action alternative in

the final rule.

Next, CEQ proposes to add

‘‘reasonably foreseeable’’ in paragraph

(a)(1) before ‘‘environmental effects’’ for

consistency with section 102(2)(C)(i) of

NEPA and in paragraph (a)(2) before

‘‘adverse environmental effects’’ for

consistency with section 102(2)(C)(ii) of

NEPA. CEQ proposes to add a new

paragraph (a)(3) requiring an analysis of

effects of the no action alternative,

including any adverse environmental

effects consistent with section

102(2)(C)(iii) of NEPA, which requires

an analysis of any negative

environmental impacts of not

implementing the proposed action in

the case of a no action alternative. CEQ

interprets ‘‘negative’’ to have the same

meaning as the term ‘‘adverse.’’ For

example, an environmental restoration

project that helps mitigate the effects of

climate change and restores habitat

could have adverse effects if it were not

implemented or the construction of a

commuter transit line could have

adverse effects from persistent traffic

congestion, air pollution, and related

effects to environmental justice

communities if it were not

implemented. To accommodate this

additional paragraph, CEQ proposes to

redesignate 40 CFR 1502.15(a)(3)

through (a)(5) as paragraphs (a)(4)

through (a)(6) accordingly. In paragraph

(a)(5), CEQ proposes to insert ‘‘Federal’’

before ‘‘resources’’ for consistency with

section 102(2)(C)(v) of NEPA.

Then, CEQ proposes to add reference

to two specific elements and revise the

reference to an existing element that

agencies must include in the analysis of

environmental consequences, all related

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81

Such analysis is not new and CEQ has issued

guidance consistent with these proposed provisions

for nearly a decade. See generally CEQ, Final

Guidance for Federal Departments and Agencies on

Consideration of Greenhouse Gas Emissions and the

Effects of Climate Change in National

Environmental Policy Act Reviews, 81 FR 51866

(Aug. 8, 2016), https://ceq.doe.gov/docs/ceq-

regulations-and-guidance/nepa_final_ghg_

guidance.pdf, and 2023 GHG Guidance, supra note

9.

to climate change. First, CEQ proposes

to revise paragraph (a)(6) to broaden it

from land use plans to plans generally

and clarify that this element includes

plans and policies addressing climate

change. Second, CEQ proposes to add a

new paragraph (a)(7) to clarify that the

discussion of environmental

consequences in an EIS must include

any reasonably foreseeable climate

change-related effects, including effects

of climate change on the proposed

action and alternatives (which may in

turn alter the effects of the proposed

action and alternatives). CEQ would

then redesignate the paragraphs at 40

CFR 1502.16(a)(6) and(a)(7) as

paragraphs (a)(8) and (a)(9),

respectively. Third, CEQ proposes to

add a new paragraph (a)(10), which

would require agencies to address any

risk reduction, resiliency, or adaptation

measures included in the proposed

action and alternatives. This would

ensure agencies consider resiliency to

the risks associated with a changing

climate, including wildfire risk, extreme

heat and other extreme weather events,

drought, flood risk, loss of historic and

cultural resources, and food scarcity.

This analysis would further NEPA’s

mandate that agencies use ‘‘the

environmental design arts’’ in decision

making and consider the relationship

between the ‘‘uses’’ of the environment

‘‘and the maintenance and enhancement

of long-term productivity.’’ 42 U.S.C.

4332(2)(A) and (2)(C)(iv). It also would

help achieve NEPA’s goals of protecting

the environment across generations,

preserving important cultural and other

resources, and attaining ‘‘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)(3).

These proposed revisions would

clarify that agencies must address both

effects of the proposed action and

alternatives on climate change, and the

resiliency of the proposed action and

alternatives in light of climate change.

81

These proposed revisions are consistent

with what NEPA has long required:

using science to make informed

decisions. This proposal is also

consistent with NEPA’s specific

requirement to study the effects of the

Federal action because effects on the

Federal action due to climate change

may in turn alter the effects that the

project has on its environment. These

proposed revisions also align well with

the definition of effects to encompass

reasonably foreseeable indirect and

cumulative effects, which are integral to

NEPA analyses.

To accommodate the new paragraph

(a)(10), CEQ proposes to redesignate 40

CFR 1502.16(a)(8) through (a)(10) as

paragraphs (a)(11) through (a)(13),

respectively. Finally, CEQ proposes to

add paragraph (a)(14) to provide that

agencies must discuss the potential for

disproportionate and adverse health and

environmental effects on communities

with environmental justice concerns.

The addition of this paragraph would

clarify that EISs generally must include

an environmental justice analysis to

ensure that agency actions do not

unintentionally impose

disproportionate and adverse effects on

these communities.

Finally, CEQ proposes to strike ‘‘and

give appropriate consideration to’’ from

paragraph (b). CEQ proposes this

revision to remove unnecessary

language that could be read to require

the decision maker to make

consideration of such effects a higher

priority than other effects listed in this

section.

12. Summary of Scoping Information

(§ 1502.17)

CEQ proposes to revise § 1502.17 and

retitle it ‘‘Summary of scoping

information’’ to more accurately reflect

the proposed content of this section and

align it with the common practice of

what many agencies produce via

scoping reports. CEQ proposes other

changes in this section to simplify and

remove unnecessary or redundant text

and clarify requirements.

CEQ proposes to revise paragraph (a)

to require agencies to include a

summary of the information they

receive from commenters during the

scoping process in draft EISs consistent

with the proposed revisions to

§§ 1500.3, 1501.9, and 1502.4. CEQ

proposes to replace ‘‘State, Tribal, and

local governments and other public

commenters’’ with ‘‘commenters’’

because this phrase is all encompassing.

CEQ also proposes to clarify that a draft

EIS should include a summary of

information, including alternative and

analyses, that commenters submitted

during scoping. This change provides

agencies flexibility to develop a broader

summary of information received during

scoping. While agencies should still

summarize alternatives and analyses,

this provision would not require them

to provide a specific summary of every

individual alternative, piece of

information, or analysis commenters

submit during scoping.

CEQ proposes to redesignate

paragraph (a)(1) as paragraph (b) and

modify it to clarify that agencies can

either append to the draft EIS or

otherwise make publicly available

comments received during scoping. This

modification clarifies that the

requirements of this paragraph can be

met through means other than an

appendix, such as a scoping report,

which is common practice for some

Federal agencies. CEQ proposes a

conforming edit in paragraph (d) of

§ 1502.19, ‘‘Appendix,’’ for consistency

with this language.

Finally, CEQ proposes to delete the

current 40 CFR 1502.17(a)(2) and (b)

because the requirements of these

paragraphs are redundant to the

requirements in part 1503 for Federal

agencies to invite comment on draft

EISs in their entirety and review and

respond to public comments.

13. Incomplete or Unavailable

Information (§ 1502.21)

CEQ proposes one revision to

paragraph (b) of § 1502.21 to strike ‘‘but

available,’’ which addresses situations

where an agency encounters incomplete

or unavailable information during its

evaluation of a proposed action’s

reasonably foreseeable significant

adverse effects. CEQ proposes to strike

‘‘but available,’’ a phrase added by the

2020 rule, to clarify that agencies must

obtain information relevant to

reasonably foreseeable significant

adverse effects that is essential to a

reasoned choice between alternatives

where the overall costs of doing so are

not unreasonable, and the means of

obtaining that information are known.

This qualifier, which CEQ proposes to

remove, could be read to significantly

narrow agencies’ obligations to obtain

additional information even when it is

easily attainable and the costs are

reasonable. CEQ has reconsidered this

change and now considers it vital to the

NEPA process for agencies to undertake

studies and analyses where necessary

rather than relying solely on available

information where the costs of obtaining

the relevant information are not

unreasonable.

Agency feedback received during the

development of this proposed rule

supports this change. Agency NEPA

experts indicated that this qualifier

could be read to say that agencies do not

need to collect additional information

that could and should otherwise inform

the public and decision makers.

Removing this phrase also would be

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consistent with other provisions in the

regulations emphasizing the importance

of relying on high-quality and accurate

information in implementing NEPA.

See, e.g., § 1500.1(b).

14. Methodology and Scientific

Accuracy (§ 1502.23)

CEQ proposes changes to § 1502.23 to

promote use of high-quality

information, such as best available

science and data; require agencies to

explain assumptions; and, where

appropriate, incorporate projections,

including climate change-related

projections, in the evaluation of

reasonably foreseeable effects. CEQ

proposes to separate existing 40 CFR

1502.23 into paragraphs (a) and (b), with

some modification, and add a new

paragraph (c). The proposed changes to

this section would provide additional

guidance on how Federal agencies can

meet NEPA’s statutory requirement to

‘‘study, develop, and describe

appropriate alternatives to

recommended courses of action in any

proposal’’ as set forth in section

102(2)(H) of NEPA.

In paragraph (a), CEQ proposes to

reinstate the term high-quality

information, as used in the 1978

regulations, and clarify that such

information includes best available

science and reliable data, models, and

resources. Also, CEQ proposes clarifying

edits, including moving the word

‘‘existing’’ in the second sentence of

paragraph (a) to the end of the sentence

and adding reference to sources and

materials. CEQ proposes these changes

to clarify that while agencies must use

reliable data and resources, which can

include existing data and resources,

they are not limited to use of existing

materials. Public commenters on the

2020 rule and Federal agency experts

who provided input on this proposed

rule raised concerns that the 2020

language could limit agencies to

‘‘existing’’ resources and preclude

agencies from undertaking site surveys,

conducting investigation, and

performing other forms of data

collection, which have long been

standard practice when analyzing an

action’s potential environmental effects

and may be necessary for agencies to

understand particular effects.

For example, in the context of

analyzing historical, cultural, or

biological effects, survey work is often

revisited and reassessed periodically,

and an agency should not be required to

rely on outdated data. While there are

numerous reliable data sources for a

variety of resources analyzed in NEPA

documents, and the CEQ regulations

encourage the use of existing

information wherever possible, see

§ 1501.12, agencies should be permitted

to exercise their good judgment in

determining when new data and

analyses are necessary. Indigenous

Knowledge also can be a source of high-

quality information.

CEQ proposes to add a new sentence

at the end of paragraph (a) encouraging

agencies to explain their assumptions

and any limitations of their models and

methods. CEQ proposes this addition to

support this section’s overall purpose of

ensuring the integrity of the discussions

and analyses in environmental

documents. Additionally, this would

codify typical agency practice to explain

relevant assumptions or limitations of

the information in environmental

documents.

CEQ proposes to strike the statement

that agencies are not required to

undertake new research to inform their

analyses consistent with the changes to

paragraph (a). As noted in this section,

it is common practice for agencies,

when necessary or appropriate, to

engage in additional research and create

new data based on an action’s particular

circumstances (such as the affected

environment) when analyzing proposed

actions under NEPA. Further, by simply

striking the sentence added in 2020,

CEQ is not proposing to add an across-

the-board requirement that agencies

must undertake new research in all

cases.

Finally, CEQ proposes to add a new

paragraph (c), which would require

agencies to use projections when

evaluating reasonably foreseeable

effects, including climate change-related

effects, where appropriate. CEQ also

proposes to clarify that such projections

may employ mathematical or other

models that project a range of possible

future outcomes, so long as agencies

disclose the relevant assumptions or

limitations. This addition is consistent

with the amendments proposed in

paragraphs (a) and (b). Based on existing

agency practice and academic literature

on climate science, agencies can and do

use reliable projections to analyze

reasonably foreseeable climate change-

related effects. Where available and

appropriate, agencies also can use or

rely on projections that are scaled to a

more targeted and localized geographic

scope, such as land use projections, air

emissions, and modeling, or to evaluate

climate effects experienced locally in

relation to the proposed action. When

doing so, agencies should explain the

basis for relying on those projections

and their underlying assumptions.

Climate projections can vary based on

different factors and assumptions such

as geography, location, and existing and

future GHG emissions. For that reason,

agencies can use models that analyze a

range of possible future outcomes, but

agencies must disclose the underlying

relevant assumptions or limitations of

those models.

CEQ expects that modeling

techniques will continue to improve in

the future, resulting in more precise

climate projections. To be consistent

with proposed changes with paragraph

(a) in this section, as climate modeling

techniques advance, agencies should

rely on high-quality information when

evaluating reasonably foreseeable

climate change-related effects.

E. Proposed Revisions To Update Part

1503, Commenting on Environmental

Impact Statements

CEQ is proposing substantive

revisions to all sections of part 1503,

except § 1503.2, Duty to comment. CEQ

invites comments on whether it should

make changes to this section or other

changes to part 1503.

1. Inviting Comments and Requesting

Information and Analyses (§ 1503.1)

CEQ proposes to delete 40 CFR

1503.1(a)(3) requiring agencies to invite

comment specifically on the submitted

alternatives, information, and analyses

and the summary thereof for

consistency with proposed changes to

§§ 1500.3 and 1502.17. This

requirement would be unnecessary with

the removal of the exhaustion provision.

It also is redundant as Federal agencies

invite comment on all sections of draft

EISs and therefore need not invite

comment on one specific section of an

EIS.

2. Specificity of Comments and

Information (§ 1503.3)

CEQ proposes edits to § 1503.3 to

clarify the expected level of detail in

comments submitted by the public and

other agencies to facilitate their

consideration by agencies in the

decision-making process. The proposal

would remove or otherwise modify

provisions that could inappropriately

restrict public comments and place

unnecessary burden on public

commenters.

CEQ proposes to remove language

from § 1503.3(a) added in the 2020 rule

that requires comments to be as detailed

as necessary to meaningfully participate

and fully inform the agency of the

commenter’s position because this

requirement could lead commenters to

provide unnecessarily long comments

that will impede efficiency. Paragraph

(a) already requires comments to be ‘‘as

specific as possible,’’ and the language

CEQ proposes to remove could be read

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2020 Response to Comments, supra note 63, at

326–27.

83

Id. at 327.

84

Id. at 328.

85

See OMB & CEQ, Memorandum on

Environmental Collaboration and Conflict

Resolution (Sept. 7, 2012), https://www.energy.gov/

to require commenters to provide

detailed information that is not

pertinent to the NEPA analysis about

the commenter’s position on the

proposed action, the project proponent,

the Federal agency, or other issues. For

example, the text could be read to

require a commenter to provide a

detailed explanation of a moral

objection to a proposed action or a

personal interest in it if those inform the

commenter’s position on the project.

The text also could imply that

commenters must either be an expert on

the subject matter or hire an expert to

provide the necessary level of detail.

The current text could be read to imply

that commenters are under an obligation

to collect or produce information

necessary for agencies to fully evaluate

issues raised in comments even if the

commenters do not possess that

information or the skills necessary to

produce it. Some commenters on the

2020 rule raised this issue, expressing

concerns that this language could be

read to require the general public to

demonstrate a level of sophistication

and technical expertise not required

historically under the CEQ regulations

or consistent with the NEPA statute.

82

Commenters also expressed concern

that the requirement would discourage

or preclude laypersons or communities

with environmental justice concerns

from commenting.

83

Other commenters

on the 2020 rule expressed concern that

the changes would shift the

responsibility of analysis from the

agencies to the general public.

84

Finally,

CEQ proposes to remove this language

because the requirements that

comments provide as much detail as

necessary to ‘‘meaningfully’’ participate

and ‘‘fully inform’’ the agency are vague

and put the burden on the commenter

to anticipate the appropriate level of

detail to meet those standards.

CEQ also proposes to delete from

paragraph (a) language describing the

types of impacts that a comment should

cover, including the reference to

economic and employment impacts.

CEQ proposes this deletion because this

language imposes an inappropriate

burden on commenters by indicating

that comments need to explain why an

issue matters for economic and

employment purposes. NEPA requires

agencies to analyze the potential effects

on the human environment and does

not require that these effects be

specified in economic terms or related

specifically to employment

considerations. Therefore, it is

inappropriate to single out these

considerations for special treatment and

unduly burdensome to expect

commenters to address economic and

employment impacts. The proposed

revision would not have the effect of

limiting commenters from addressing

these issues but would avoid the

implication that members of the public

are welcome to comment only if they

address those issues. CEQ proposes to

delete the reference to ‘‘other impacts

affecting the quality of the human

environment’’ because it is unnecessary

and duplicative of ‘‘consideration of

potential effects and alternatives.’’

Finally, in paragraph (a), CEQ

proposes changes to the last sentence to

clarify that, only where possible, the

public should include citations or

proposed changes to the EIS or describe

the data, sources, or methodologies that

support the proposed changes in their

comments. While such information is

helpful to the agency whenever it is

readily available, CEQ has concerns that

this could be construed to place an

unreasonable burden on commenters.

CEQ proposes to strike 40 CFR

1503.3(b) and redesignate 40 CFR

1503.3(c) through (d) as § 1503.3(b) and

(c). CEQ proposes the deletion of

paragraph (b) for consistency with

proposed changes to § 1500.3’s

exhaustion requirement and

corresponding changes to § 1502.17. The

paragraph also is unrelated to the

subject addressed in § 1503.3, which

addresses the specificity of comments,

rather than when commenters should

file their comments. Further, agencies

have long had the discretion to consider

special or unique circumstances that

may warrant consideration of comments

outside those time periods. CEQ

proposes to strike ‘‘site-specific’’ in

paragraph (c) to clarify that cooperating

agencies must identify additional

information needed to address

significant effects generally. This

proposed change would enhance

efficiency because it would ensure that

cooperating agencies have the

information they need to fully comment

on EISs averting potential delay in the

environmental review process.

Finally, CEQ proposes in paragraph

(d) to strike the requirement for

cooperating agencies to cite their

statutory authority for recommending

mitigation. This requirement is

unnecessary since, at this stage, those

agencies with jurisdiction by law have

already established their legal authority

to participate as cooperating agencies.

CEQ also proposes in paragraph (d) to

replace the reference to ‘‘permit, license,

or related requirements’’ with

‘‘authorizations’’ because the definition

of ‘‘authorization’’ in § 1508.1(c) is

inclusive of those terms.

3. Response to Comments (§ 1503.4)

CEQ proposes to revise paragraph (a)

to clarify that agencies must respond to

comments but may do so either

individually, in groups, or in some

combination thereof. The current use of

‘‘may,’’ which the 2020 regulations

changed from ‘‘shall,’’ creates ambiguity

that could be read to mean that agencies

have discretion in whether to respond to

comments at all, not just the way they

respond, i.e., individually or in groups.

Some comments on the 2020 proposed

rule construed the change to ‘‘may’’ as

weakening the longstanding

requirement to respond to comments.

The proposed change removes any

ambiguity created by revisions to the

paragraph in the 2020 regulations and is

consistent with the longstanding

requirement and expectation for

agencies to respond to comments

received on an EIS while also clarifying

that agencies have discretion on how to

respond to comments to promote the

efficiency of the NEPA process.

In paragraph (c), CEQ proposes

changes to clarify that when an agency

uses an errata sheet, the agency must

publish the entire final EIS, which

would include the errata sheet, the draft

EIS, and the comments with their

responses. CEQ proposes these edits to

reflect the typical Federal agency

practice and to reflect the current

requirement for electronic submission of

EISs rather than the old practice of

printing EISs for distribution.

F. Proposed Revisions To Update Part

1504, Pre-Decisional Referrals to the

Council of Proposed Federal Actions

Determined To Be Environmentally

Unsatisfactory

1. Purpose (§ 1504.1)

CEQ proposes in § 1504.1(a) to add

language encouraging agencies to engage

early with each other to resolve

interagency disagreements concerning

proposed major Federal actions before

such disputes are referred to CEQ. CEQ

also proposes to add language clarifying

that part 1504 establishes procedures for

agencies to submit requests to CEQ for

informal dispute resolution, expanding

the purpose to reflect changes proposed

in §§ 1504.2 and described in section

II.F.2. This proposal is consistent with

CEQ’s ongoing role in promoting the use

of environmental collaboration and

conflict resolution,

85

and serving as a

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sites/default/files/OMB_CEQ_Env_Collab_Conflict_

Resolution_20120907-2012.pdf; OMB & CEQ,

Memorandum on Environmental Conflict

Resolution (Nov. 28, 2005), https://ceq.doe.gov/

docs/ceq-regulations-and-guidance/regs/OMB_

CEQ_Joint_Statement.pdf.

convener and informal mediator for

interagency disputes. CEQ strongly

encourages agencies to resolve disputes

informally and as early as possible so

that referrals under part 1504 are used

only as a last resort. Early resolution of

disputes is essential to ensuring an

efficient and effective environmental

review process.

In paragraph (b), which addresses

EPA’s role pursuant to section 309 of

the Clean Air Act, CEQ proposes to

strike the parenthetical providing the

term ‘‘environmental referrals,’’ as this

term is not used elsewhere in part 1504.

Further, CEQ notes that EPA’s section

309 authority is distinct from the ability

of an agency to make a referral pursuant

to this part. Finally, CEQ proposes to

revise the second sentence in paragraph

(c) to eliminate the passive voice to

improve clarity.

2. Early Dispute Resolution (§ 1504.2)

As discussed further in section II.F.3,

CEQ proposes to move the provisions in

existing 40 CFR 1504.2 to § 1504.3(a) to

repurpose § 1504.2 for a new section on

early dispute resolution. CEQ proposes

to add this section to codify the current

practice of agencies to engage with one

another and enlist CEQ to help resolve

interagency disputes. The added text

would codify CEQ’s role in convening

discussions, mediating issues, and

recommending resolutions. While the

proposed provisions in § 1504.2 are

non-binding, they would serve to

encourage agencies to use this informal

process to resolve interagency disputes

early in the process and provide

transparency to the public that this

process occurs.

Proposed paragraph (a) would

encourage agencies to engage in

interagency coordination and

collaboration within planning and

decision-making processes and to

identify and resolve interagency

disputes. Further, paragraph (a) would

encourage agencies to elevate issues to

appropriate agency officials or to CEQ in

a timely manner that is consistent with

the schedules for the proposed action

established under § 1501.10.

Paragraph (b) would allow a Federal

agency to request that CEQ engage in

informal dispute resolution. When

making such a request to CEQ, the

agency must provide CEQ with a

summary of the proposed action,

information on the disputed issues, and

agency points of contact. CEQ proposes

this provision to codify the longstanding

practice of CEQ helping to mediate and

resolve interagency disputes outside of

and well before the formal referral

process (§ 1504.3) and to provide

additional direction to agencies on what

information CEQ needs to effectively

mediate.

Paragraph (b) would provide CEQ

with several options to respond to a

request for informal dispute resolution,

including requesting additional

information, convening discussions, and

making recommendations, as well as the

option to decline the request.

3. Criteria and Procedure for Referrals

and Response (§ 1504.3)

As noted in section II.F.2, CEQ

proposes to move the criteria for referral

currently set forth in 40 CFR 1504.2 to

a new § 1504.3(a) and redesignate 40

CFR 1504.3(a) through (h) as § 1504.5(b)

through (i), respectively. As a result of

this consolidation, CEQ would revise

the title of § 1504.3 to ‘‘Criteria and

procedure for referrals and response.’’

The criteria and procedures for agencies

to make a referral apply to agencies that

make a referral under the NEPA

regulations and do not apply to EPA

when exercising its referral authority

under section 309 of the Clean Air Act

(42 U.S.C. 7609).

G. Proposed Revisions to NEPA and

Agency Decision Making (Part 1505)

1. Record of Decision in Cases Requiring

Environmental Impact Statements

(§ 1505.2)

CEQ proposes modifications in

§ 1505.2 to align this section with other

proposed changes to the regulations and

clarify the alternatives agencies must

identify in RODs. CEQ also proposes to

modify the provision on mitigation.

As discussed further in this section,

CEQ proposes to strike 40 CFR

1505.2(b), make 40 CFR 1505.2(a) an

undesignated introductory paragraph in

§ 1505.2, and redesignate 40 CFR

1505.2(a)(1) through (3) as § 1505.2(a)

through (c), respectively. In § 1505.2(b),

CEQ proposes to restructure the first

two sentences to improve readability

and clarify that agencies must identify

one or more environmentally preferable

alternatives in the ROD, consistent with

proposed changes to § 1502.14(f)

requiring agencies to identify them in

the EIS and § 1508.1(l), defining

‘‘environmentally preferable

alternative.’’ Further, in the second

sentence of paragraph (b), CEQ proposes

to add ‘‘environmental’’ to the list of

relevant factors upon which an agency

may base discussion of preferences

among alternatives. In paragraph (c),

CEQ proposes to change ‘‘avoid or

minimize’’ to ‘‘mitigate’’ in the first

sentence for consistency with the

remainder of the paragraph. CEQ also

proposes to clarify that any mitigation

must be enforceable, such as through

permit conditions or grant agreements,

if an agency includes it as a component

of a proposed action and relies on its

implementation to analyze the action’s

reasonably foreseeable environmental

effects. Additionally, CEQ proposes to

require agencies to identify the

authority for enforceable mitigation, and

adopt a mitigation and compliance plan

consistent with § 1505.3(c).

CEQ proposes to strike 40 CFR

1505.2(b), which requires a decision

maker to certify in the ROD that the

agency has considered all of the

alternatives, information, and analyses

submitted under 40 CFR 1502.17(b) and

states that such certification is entitled

to a presumption that the agency has

considered such information in the EIS.

CEQ proposes to strike 40 CFR 1505.2(b)

because it is redundant—the discussion

in the ROD and the decision maker’s

signature on such document has long

served to verify the agency has

considered the EIS’s analysis of the

proposed action, alternatives, and

effects, as well as the public comments

received. Additionally, while CEQ

agrees that agencies are entitled to a

presumption of regularity under the

tenets of generally applicable

administrative law, this presumption

does not arise from NEPA, and

therefore, CEQ considers it

inappropriate to address in the NEPA

regulations.

Finally, CEQ proposes to strike 40

CFR 1505.2(b) consistent with the

proposal to remove the exhaustion

provision in 40 CFR 1500.3, as

discussed in section II.B.2. As CEQ

discussed in that section, CEQ now

considers it more appropriately the

purview of the courts to make

determinations regarding exhaustion.

The certification requirement would no

longer be necessary since it was

intended to trigger the exhaustion

provision in judicial review.

2. Implementing the Decision (§ 1505.3)

CEQ proposes revisions to § 1505.3 to

add provisions for mitigation and

related monitoring and compliance

plans. To accommodate the proposed

changes, CEQ proposes to designate the

undesignated introductory paragraph of

40 CFR 1505.3 as paragraph (a) and

redesignate 40 CFR 1505.3(a) and (b) as

§ 1505.3(a)(1) and (a)(2), respectively.

CEQ proposes to add new § 1505.3(b)

to encourage lead and cooperating

agencies to incorporate, where

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appropriate, mitigation measures

addressing a proposed action’s

significant adverse human health and

environmental effects that

disproportionately and adversely affect

communities with environmental justice

concerns. This addition would highlight

the importance of considering

environmental justice and addressing

disproportionate effects through the

NEPA process and the associated

decision. CEQ proposes this addition

based on public and agency feedback

received during development of this

proposed rule requesting that the

regulations address mitigation of

disproportionate effects. Additionally,

this proposed change would encourage

agencies to incorporate mitigation

measures to address disproportionate

burdens on communities with

environmental justice concerns.

CEQ proposes to strike the text in

paragraph (c) regarding mitigation and

strike existing 40 CFR 1505.3(d)

regarding publication of monitoring,

replacing them with the new language

in § 1505.3(c) regarding the contents of

a monitoring and compliance plan. A

revised paragraph (c) would require

agencies to prepare a monitoring and

compliance plan when the agency relies

on and commits to mitigation in a ROD,

FONSI, or separate document, which

could be issued after the decision. This

provision would require a plan for any

mitigation relied upon and adopted as

the basis for analyzing the reasonably

foreseeable effects of a proposed action,

not just mitigation to address significant

effects. CEQ views this plan as

necessary for an agency to conclude that

it is reasonably foreseeable that a

mitigation measure will be

implemented. Further, the plan is

necessary for the agency to conclude

that the effects of the action without the

mitigation measure are not reasonably

foreseeable and, therefore, do not need

to be analyzed and disclosed. CEQ does

not propose to require a monitoring and

compliance plan where an agency

analyzes and discloses the effects of the

action without the mitigation measure.

In that circumstance, the agency would

not rely on the mitigation measure as

the basis for identifying reasonably

foreseeable effects.

New paragraphs (c)(1) and (c)(1)(i)

through (c)(1)(vi) would describe the

contents of a monitoring and

compliance plan and provide agencies

flexibility to tailor plans to the

complexity of the mitigation that the

agency has incorporated into a ROD,

FONSI, or other documents. Contents

would include a description of the

mitigation measures; the parties

responsible for monitoring and

implementation; how the information

will be made publicly available, as

appropriate; the timeframe for the

mitigation; the standards for

compliance; and how the mitigation

will be funded. Agencies may tailor

monitoring and compliance plans to the

particular action, but they should

contain sufficient detail to inform the

participating and cooperating agencies

and the public about relevant

considerations, such as the magnitude

of the environmental effects that would

be subject to mitigation, the degree to

which the mitigation represents an

innovative approach, the degree of

uncertainty about the efficacy of the

mitigation, and other relevant facts that

support a determination that the

mitigation will be effective. Where a

proposed action involves more than one

agency, the lead and cooperating

agencies should collaboratively develop

a monitoring and compliance plan that

clearly defines agency roles and avoids

duplication of effort.

Requiring agencies to prepare a

monitoring and compliance plan for

mitigation relied upon in a decision is

intended to address concerns that

mitigation measures included in agency

decisions are not always carried out or

monitored for effectiveness. If it is

reasonably foreseeable that a mitigation

measure will not be effective, then the

agency could not appropriately rely on

the mitigation measure in determining

that an effect is not significant. A

monitoring and compliance plan would

address this concern and support an

agency relying on mitigation for

purposes of accurately assessing the

environmental effects of a proposed

action, and, in some circumstances,

concluding that a FONSI is appropriate.

A new paragraph (c)(2) would state

that any new information developed

through the monitoring and compliance

plan would not require an agency to

supplement their environmental

documents solely because of this new

information. This provision is intended

to clarify that the existence of a

monitoring and compliance plan by

itself would not mean that the action to

which it relates is an ongoing action if

it would otherwise be considered

completed; however, if an action

remains to occur notwithstanding the

monitoring and compliance plan, the

agency may need to supplement its

analysis in light of new information if

the criteria for supplementation in

§ 1502.9(d) are met.

The proposed changes to § 1505.3

would be consistent with proposed

revisions to 40 CFR 1505.2(c), which

direct agencies to adopt and summarize

a monitoring and enforcement program

for any enforceable mitigation

requirements or commitments for a

ROD, and changes to § 1501.6(a) to

clarify the use of mitigated FONSIs. The

changes also would provide more

consistency in the content of monitoring

and compliance plans, increase

transparency in the disclosure of

mitigation measures, and provide the

public and decision makers with

relevant information about mitigation

measures and the process to comply

with them.

H. Proposed Revisions to Other

Requirements of NEPA (Part 1506)

CEQ proposes multiple revisions to

part 1506, as described in this section.

As noted in section II.C.7, CEQ proposes

to move 40 CFR 1506.6, ‘‘Public

involvement,’’ to proposed § 1501.9,

‘‘Public and governmental engagement.’’

CEQ is not proposing changes to

§ 1506.2, Elimination of duplication

with State, Tribal, and local procedures;

§ 1506.4, Combining documents; or

§ 1506.8, Proposals for legislation. CEQ

invites comment on whether it should

make changes to these sections or other

changes to part 1506.

1. Limitations on Actions During NEPA

Process (§ 1506.1)

CEQ proposes to edit § 1506.1(b) to

provide further clarity on the limitations

on actions during the NEPA process to

ensure that agencies and applicants do

not take actions that will adversely

affect the environment or limit the

choice of reasonable alternatives until

an agency concludes the NEPA process.

CEQ is proposing to amend the last

sentence in paragraph (b), which

provides that agencies may authorize

certain activities by applicants for

Federal funding while the NEPA

process is ongoing. To better align this

provision with NEPA’s requirements,

CEQ proposes to add a clause to the

sentence clarifying that such activities

cannot limit the choice of reasonable

alternatives, and the Federal agency

must notify the applicant that the

agency retains discretion to select any

reasonable alternative or the no action

alternative regardless of any potential

prior activity taken by the applicant

prior to the conclusion of the NEPA

process. This proposal would provide

additional clarity consistent with 40

CFR 1506.1(a) and the 2020 Response to

Comments, which state that this

provision allows certain activities to

proceed, prior to a ROD or FONSI, so

long as they do not have an adverse

environmental impact or limit the

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2020 Response to Comments, supra note 63, at

356.

87

Id. at 355.

choice of reasonable alternatives.

86

It

also is responsive to comments received

on the 2020 rule expressing concern that

the proposed language could allow pre-

decisional activities to proceed that

would inappropriately narrow the range

of alternatives considered by an agency.

To address this concern, these

commenters requested that the CEQ

clarify in the regulations that these pre-

decisional activities cannot limit the

range of alternatives an agency

considers under NEPA.

87

CEQ’s

proposed amendments to this paragraph

would provide clarity on this issue

within the regulatory text.

CEQ also proposes to strike

‘‘required’’ in paragraph (c). This edit is

consistent with § 1506.11, which

encourages, but does not require, the

use of programmatic environmental

reviews.

2. Adoption (§ 1506.3)

The CEQ regulations have always

allowed agencies to adopt all or part of

an EIS. The 2020 regulations expanded

the adoption provisions to codify

longstanding agency practice of

adopting EAs and explicitly allowed for

adoption of other agencies’ prior CE

determinations. CEQ has heard from

multiple stakeholders, including clean

energy and other stakeholders, that CEQ

should retain these provisions because

they create efficiencies in the NEPA

process. Conversely, other stakeholders,

including environmental organizations,

have raised concerns about potential

abuse of the adoption process,

especially for CE determinations. CEQ

proposes changes to this provision to

facilitate use of these efficiency

mechanisms in an appropriate and

transparent manner. CEQ proposes

modifications to § 1506.3 to improve

clarity, reduce redundancy, and ensure

that when a Federal agency adopts an

EIS, EA, or CE determination, the

agency conducts an independent review

to determine that the EIS, EA, or CE

determination meets certain basic

standards. CEQ also proposes to add

new requirements regarding the

adoption of another agency’s CE

determination to increase public

transparency.

In paragraph (a), CEQ proposes to

strike the language requiring an EIS, EA,

or CE determination to meet relevant

standards and instead capture the

standards in paragraphs (b) through (d)

addressing adoption of EISs, EAs, and

CE determinations, respectively. CEQ

proposes to replace this clause with a

statement that requires adoption to be

done ‘‘consistent with this section.’’

CEQ proposes to remove ‘‘Federal’’ as

unnecessary and to make clear that

agencies can adopt NEPA documents

prepared by non-Federal entities that

are doing so pursuant to delegated

authority from a Federal agency. See,

e.g., 23 U.S.C. 327.

Accordingly, in paragraph (b), CEQ

proposes to add introductory text

clarifying the standard for adopting an

EIS. The language would provide that

an agency may adopt a draft or final EIS,

or a portion of a draft or final EIS, if the

adopting agency independently reviews

the statement and concludes it meets

the standards for an adequate statement

pursuant to the CEQ regulations and the

agency’s NEPA procedures. In

paragraph (b)(1), which addresses

adoption of an EIS for actions that are

substantially the same, CEQ proposes to

insert ‘‘and file’’ after ‘‘republish’’ to

improve consistency with § 1506.9 and

because agencies must both publish the

EIS and file it with EPA. Further in

paragraph (b)(1), CEQ proposes to add

text to clarify that agencies should

supplement or reevaluate an EIS if the

agency determines that the EIS requires

additional analysis. For example, this

may be necessary if an agency is

adopting an EIS for an action that was

evaluated 5 years earlier, and there is

more recent data or updated information

available on one of the categories of

effects. In such instances, the agency

would adopt the EIS, prepare a

supplemental analysis reevaluating the

particular category of effects for which

updated information is available, and

issue both for public comment.

Similarly, if an action is not

substantially the same and the adopting

agency determines that the EIS requires

supplemental analysis, the agency

would treat the EIS as a draft, prepare

the additional analysis, and publish the

new draft EIS for notice and comment.

Where a proposed action is not

substantially the same, an agency must,

at minimum, supplement the adopted

EIS to ensure it covers its proposed

action.

Additionally, in paragraph (b)(2),

which addresses adoption of an EIS by

a cooperating agency, CEQ proposes to

clarify that this provision is triggered

when a cooperating agency does not

issue a joint or concurrent ROD

consistent with § 1505.2. For example,

this provision covers instances when a

cooperating agency adopts an EIS for an

action the cooperating agency did not

anticipate at the time the EIS was

issued, such as a funding action for a

project that was not contemplated at the

time of the EIS. In such instances, the

cooperating agency may issue a ROD

adopting the EIS of the lead agency

without republication. CEQ proposes to

strike the text at the end of paragraph

(b)(2) regarding independent review

because that standard would be

captured in paragraph (b).

In paragraph (c), CEQ proposes to add

introductory language to clarify the

standard for adopting an EA, which

mirrors the standard for adoption of an

EIS. CEQ similarly proposes edits to

align the process with EISs by clarifying

that the adopting agency may adopt the

EA, and supplement or reevaluate it as

necessary, in its FONSI.

For additional clarity, CEQ proposes

to add ‘‘determinations’’ to the title of

paragraph (d). CEQ also proposes to

revise this paragraph to improve

readability and clarify that the adopting

agency is adopting another agency’s

already made determination that a CE

applies to a particular proposed action

where the adopting agency’s proposed

action is substantially the same. This

provision does not allow an agency to

unilaterally use another agency’s CE for

an independent proposed action; rather,

that process is addressed in § 1501.4(e).

To ensure that there is public

transparency for adoption of CE

determinations, like adoption of EAs

and EISs, CEQ proposes to require

agencies to document and publish their

adoption of CE determinations, such as

on their website. Proposed changes to

paragraph (d)(1) would specify that

agencies must document a

determination that the proposed action

is substantially the same as the action

covered by the original CE

determination, and there are no

extraordinary circumstances present

requiring preparation of an EA or EIS.

Because agencies typically already make

such determinations in the course of

adopting CE determinations for actions

that are substantially the same, CEQ

does not view this documentation

requirement as onerous or time

consuming.

Finally, CEQ proposes to add

paragraph (d)(2) requiring agencies to

publicly disclose when they are

adopting a CE determination. This

proposed change is intended to increase

transparency on use of CEs in response

to feedback from stakeholders that they

often do not know when an agency is

proceeding with a CE. This adds a

standard to adoption of CE

determinations that is similar to the

practice for adoption of EAs and EISs.

Agencies, however, would have

flexibility to determine how to make

this information publicly available,

including through posting on an

agency’s website.

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See CEQ, CEQ Guidance Documents, https://

ceq.doe.gov/guidance/guidance.html.

89

2020 Final Rule, supra note 36, at 43338–39.

90

See EPA, Environmental Impact Statement

Filing Guidance, https://www.epa.gov/nepa/

environmental-impact-statement-filing-guidance.

EPA must be notified when a Federal agency adopts

an EIS to commence the appropriate comment or

review period. If a Federal agency chooses to adopt

an EIS written by another agency, and it was not

a cooperating agency in the preparation of the

original EIS, the EIS must be republished and filed

with EPA.

3. Agency Responsibility for

Environmental Documents (§ 1506.5)

CEQ proposes modification and

additions to § 1506.5 to clarify the

requirements related to a Federal

agency’s role in preparing

environmental documents and for

consistency with section 107(f) of

NEPA, which requires agencies to

prescribe procedures to allow project

sponsors to prepare EAs and EISs under

the agencies’ supervision and to

independently evaluate and take

responsibility for such documents. The

2020 rule amended this provision to

allow an applicant to prepare EISs on

behalf of the agency; however, the 2023

amendments to NEPA make clear that

agencies must establish procedures for

project sponsors to prepare

environmental documents, not the CEQ

regulations. CEQ understands the 2023

amendments to NEPA to use the terms

applicant and project sponsor

interchangeably and, therefore, CEQ

proposes to remove references to

applicants from this section other than

to cross-reference the requirement that

agencies establish procedures in their

agency NEPA procedures for project

sponsors to prepare environmental

documents. See section II.I.2. However,

CEQ notes that applicants and project

sponsors may still provide information

to agencies so that they or their

contractors may prepare environmental

documents consistent with § 1506.5(b).

In paragraph (a), CEQ proposes to

clarify that, regardless of who prepares

an environmental document, the agency

must ensure they are prepared with

professional and scientific integrity

using reliable data and resources,

consistent with sections 102(2)(D) and

(2)(E) of NEPA, and exercise its

independent judgment to review, take

responsibility for, and briefly document

its determination that the document

meets all necessary requirements and

standards related to NEPA, the CEQ

regulations, and the agency’s NEPA

procedures. Agencies do not need to

document this determination separately

and, for example, could include a

certification statement in the

environmental document.

Paragraph (b) would provide that

agencies can authorize a contractor to

draft a FONSI or ROD, but the agency

is responsible for its accuracy, scope,

and contents. Because a FONSI or ROD

represents an agency’s conclusions

regarding potential environmental

impacts and other aspects of a proposed

action, CEQ proposes these changes to

exclude applicants from directly

preparing these documents and to

clarify the role of contractors. A lead

agency must prescribe procedures to

allow a project sponsor to prepare an

environmental assessment or an

environmental impact statement,

consistent with section 107(f) of NEPA,

and CEQ proposes to require agencies to

include these procedures as part of their

agency NEPA procedures in

§ 1507.3(c)(12). Finalizing and verifying

the contents of these decision

documents is appropriately the

responsibility of the Federal agency and

is consistent with longstanding agency

practice.

CEQ proposes to revise paragraph

(b)(4) to clarify that the Federal agency

is responsible for preparing a disclosure

statement for the contractor to execute,

specifying that the contractor does not

have any financial or other interest in

the outcome of the proposed action. The

proposed language is generally

consistent with the approach in the

1978 regulations.

Finally, CEQ proposes to remove the

paragraph headings because they do not

accurately or helpfully describe the

contents of the paragraphs.

4. Further Guidance (§ 1506.7)

CEQ proposes to simplify § 1506.7(a)

by deleting references to Executive

Orders that have been revoked. CEQ

will continue to provide guidance

concerning NEPA and its

implementation on an as-needed basis.

Any such guidance will be consistent

with NEPA, the CEQ regulations, and

any other applicable requirements.

Future guidance could include updates

to existing CEQ guidance

88

or new

guidance. CEQ also proposes to update

paragraph (b) to reflect the date upon

which a final rule is effective. If there

is a conflict between existing guidance

and an issued final rule, the final rule

would prevail after the date upon which

it becomes effective.

5. Proposals for Regulations (40 CFR

1506.9)

CEQ proposes to strike 40 CFR 1506.9,

‘‘Proposals for regulations.’’ The 2020

rule added this provision to allow

agencies to substitute processes and

documentation as part of the rulemaking

process for corresponding requirements

in these regulations.

89

Since 1978, the

CEQ regulations have encouraged

agencies to combine environmental

documents with any other agency

document to reduce duplication and

paperwork (40 CFR 1506.4), and

agencies also may combine procedural

steps, for example, to satisfy the public

comment requirements of a rulemaking

process and NEPA. See § 1507.3(c)(5).

As such, CEQ expects that the provision

at 40 CFR 1506.9 is unnecessary to

achieve the desired effect of improved

efficiency. Removing this section would

avoid confusion and controversy over

whether the procedures of a separate

process meet the requirements of CEQ’s

regulations. Further, courts have

questioned whether separate regulatory

processes can be a substitute for NEPA

in some cases. See e.g., Sierra Club v.

Fed. Energy Regul. Comm’n, 867 F.3d

1357, 1375 (D.C. Cir. 2017) (‘‘[T]he

existence of permit requirements

overseen by another [F]ederal agency or

[S]tate permitting authority cannot

substitute for a proper NEPA analysis.’’).

Additionally, CEQ does not consider it

appropriate to single out one particular

type of action—rulemaking—for

aligning or combining procedural steps.

Indeed, one of the key objectives of

agency NEPA procedures is to integrate

the NEPA process into other agency

processes. Therefore, CEQ suggests the

more prudent approach is for agencies

to combine NEPA reviews with other

reviews for rulemaking, similar to

longstanding agency practice to

combine NEPA documents with other

review processes, such as compliance

with section 106 of the National Historic

Preservation Act or section 7 of the

Endangered Species Act, or set out

processes in their NEPA procedures to

comply concurrently with multiple legal

requirements.

6. Filing Requirements (§ 1506.9)

CEQ proposes to redesignate 40 CFR

1506.10 as § 1506.9, which would

restore the same numbering for this and

subsequent sections used in the 1978

regulations. CEQ proposes to replace the

acronym for EPA with the full name

‘‘Environmental Protection Agency’’

here and in § 1506.10, consistent with

the format in the rest of the CEQ

regulations. CEQ also proposes to clarify

that agencies must notify EPA when

they adopt an EIS consistent with

§ 1506.3(b). CEQ proposes this change to

codify common practice and guidance

from EPA.

90

EPA notification ensures

initiation of the appropriate comment or

review period. Such notification, even

where a cooperating agency is adopting

without public comment consistent

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2020 Response to Comments, supra note 63, at

417–19.

92

CEQ, Emergencies and the National

Environmental Policy Act Guidance (Sept. 14,

2020), https://ceq.doe.gov/docs/nepa-practice/

emergencies-and-nepa-guidance-2020.pdf.

with § 1506.3(b)(1), improves

transparency to the public regarding the

status of an EIS and also helps track the

status of EISs across the Federal

Government.

7. Timing of Agency Action (§ 1506.10)

To accommodate the change in

numbering described in section II.H.6,

CEQ proposes to renumber 40 CFR

1506.11 ‘‘Timing of agency action’’ to

§ 1506.10. CEQ proposes in paragraph

(b) to change ‘‘may not’’ to ‘‘shall not’’

to eliminate a potential ambiguity. CEQ

proposes changes to paragraph (c)(1) to

update this provision to reflect current

practices within Federal agencies.

Specifically, CEQ proposes to change

references to ‘‘appeal processes’’ to

‘‘administrative review processes’’ and

add examples, which can include

processes such as appeals, objections,

and protests. CEQ further proposes

updates to align the text to provide

flexibility in timing to agencies that use

these administrative review processes

and clarify that such a process may be

initiated either prior to or after the filing

and publication of a final EIS with EPA

depending on the specifics of the

agency’s authorities. Depending on the

agency involved and their associated

authorities, administrative review

processes generally allow other agencies

or the public to raise issues about a

decision and make their views known.

CEQ proposes to clarify that the period

for administrative review of the decision

and the 30-day review period prescribed

in paragraph (b)(2) for when a ROD can

be issued may run concurrently. CEQ

proposes these changes to reflect

changes in Federal agency regulations

and procedures since this text was

promulgated in 1978 and to allow for

greater efficiency.

For example, the U.S. Department of

Agriculture’s Forest Service has an

objections process outlined at 36 CFR

part 218 where the public can object to

a draft decision; these regulations

replaced the prior appeal process

formerly used by the agency. To initiate

the objections process, Forest Service

regulations require that the final EIS and

a draft ROD be made available to the

public, but the Forest Service does not

have to publish the final EIS with EPA

until the conclusion of the objections

process. See 36 CFR 218.7(b). The

objections process can take 120 to 160

days, during which the agency makes

the final EIS widely available to the

public. Allowing the agency to file the

final EIS with EPA and issue a ROD at

the same time as the conclusion of the

objections process rather than waiting

an additional 30 days following the

official filing will add efficiency to the

process. These proposed changes also

would accommodate similar

administrative review procedures. See

e.g., 43 CFR 1610.5–2 (outlining the

Bureau of Land Management (BLM)

protest procedures).

CEQ also proposes minor edits in

paragraphs (d) and (e) for clarity and

readability.

8. Emergencies (§ 1506.11)

Consistent with changes in the

preceding sections, CEQ proposes to

renumber 40 CFR 1506.12

‘‘Emergencies’’ to § 1506.11. CEQ

proposes to strike the last sentence

stating other actions remain subject to

NEPA review. This erroneously implies

that actions covered by § 1506.11 are not

subject to NEPA review. Instead, CEQ

proposes to replace the sentence with

language clarifying that alternative

arrangements are not a waiver of NEPA;

rather, they establish an alternative

means for NEPA compliance.

This longstanding provision on

emergencies has generated some

confusion

91

as to whether, during

emergencies, agency actions are

exempted from NEPA review. CEQ

proposes these changes to clarify that

the regulations do not create a NEPA

exemption; rather, they provide a

pathway for compliance with NEPA

where the exigencies of emergency

situations do not provide sufficient time

for an agency to complete an EIS for an

action with significant environmental

effects. As has been the long-standing

practice, agencies may continue to

determine how to proceed with actions

to respond to emergencies that do not

have significant environmental effects

and that would ordinarily be analyzed

through an EA. As discussed in section

II.I.2, some agencies include procedures

for addressing such situations in their

agency NEPA procedures.

CEQ does not have the authority to

exempt agency actions from NEPA,

regardless of whether an emergency

exists. The proposed changes to

§ 1506.11 clarify that CEQ does not offer

‘‘alternative arrangements’’ to

circumvent appropriate NEPA analysis

but rather allows Federal agencies to

establish alternative means for NEPA

compliance to ensure that agencies can

act swiftly to address emergencies while

also meeting their statutory obligations

under NEPA. CEQ’s proposal would

clarify that when emergencies arise,

§ 1506.11 allows agencies to adjust the

means by which they achieve NEPA

compliance. This approach is also

consistent with CEQ’s guidance on

NEPA and emergencies, updated in

2020.

92

9. Innovative Approaches to NEPA

Reviews (§ 1506.12)

CEQ proposes to add a new section to

the regulations in § 1506.12 to allow

CEQ to grant a request for modification

to authorize Federal agencies to pursue

innovative approaches to comply with

NEPA and the regulations in order to

address extreme environmental

challenges. CEQ’s intent is for this

section to maximize agency flexibility,

creativity, and efficiency while still

meeting the requirements of NEPA and

providing for sound environmental

review. This is a new concept, distinct

from the emergency provisions in

§ 1506.11, and different considerations

apply for determining the existence of

an extreme environmental challenge

sufficient to trigger the proposed

§ 1506.12 than those for determining the

existence of an emergency requiring

alternative arrangements pursuant to

§ 1506.11. For example, an extreme

environmental challenge might have a

longer time horizon than is typical for

an emergency action. As another

example, it might be appropriate for an

agency to determine that a forest

ecosystem presenting a high risk of

severe wildfire that could threaten water

supplies presents extreme

environmental challenges, even though

restoration activities would take many

years to complete. The intent of this

approach is to allow for agencies to take

innovative approaches when exploring

how to address extreme environmental

challenges, which could include, for

instance, sea level rise or increased

wildfire risk, or bolstering the resilience

of infrastructure to increased disaster

risk from the effects of climate change;

water scarcity; degraded water or air

quality; species loss; disproportionate

and adverse effects on communities

with environmental justice concerns;

imminent or reasonably foreseeable loss

of historic, cultural, or Tribal resources;

and impaired ecosystem health.

Paragraph (a) would provide that the

purpose of this section is to allow

agencies to comply with NEPA using

procedures modified from the

requirements of these regulations to

address extreme environmental

challenges.

Paragraph (b) would require CEQ

approval for any innovative approaches

and make clear that approval does not

waive the requirement to comply with

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2020 Final Rule, supra note 36, at 43340.

the statute. Rather, this section

establishes an alternative means for

NEPA compliance to address extreme

environmental challenges.

Paragraph (c) would outline what an

agency must include in its request for

approval of an innovative approach.

Agencies would have to identify each

provision of the regulations for which

they are requesting modification and

explain how the innovative approach

they propose to ensure NEPA

compliance. Agencies also must explain

the extreme environmental challenge

they are trying to address, why the

alternative means are needed to address

the challenge, and how the innovative

approach would facilitate sound and

efficient environmental review. Finally,

agencies would need to consult with

any potential cooperating agencies and

include a summary of their comments

with the request.

Paragraph (d) would provide CEQ’s

process for reviewing and approving

such requests. Under this provision,

CEQ would evaluate requests within 60

days and may choose whether to

approve the approach, approve it with

revision, or deny the request. Further, as

is stipulated in paragraph (e), CEQ

would post on its website all

modification requests it has approved or

denied.

Examples of innovative approaches

that could be the basis for a request

include new ways to use information

technology; cooperative agreements or

work with local communities; methods

more fully incorporating, while

protecting, Indigenous Knowledge; new

ways to work with project proponents

and communities to advance proposals;

and innovative tools for engaging the

public and providing public comment

opportunities, which could enhance

participation from communities with

environmental justice concerns. CEQ

acknowledges that the proposed

regulations would not include explicit

limits in any of these areas. The intent

of proposed § 1506.12 is to help ensure

that the regulations have the maximum

ability to accommodate ideas not yet put

forward to improve NEPA

implementation. The proposed

regulation would encourage innovation

where needed to address extreme

environmental challenges, consistent

with the purposes and policies

expressed in the NEPA statute including

to ‘‘promote efforts which will prevent

or eliminate damage to the environment

and biosphere and stimulate the health

and welfare of [humans],’’ 42 U.S.C.

4321, 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)(3). CEQ invites public comment

on this proposed provision to determine

if it is necessary. Specifically, CEQ

would like input on whether such a

provision is needed to address extreme

environmental challenges and what

Federal agencies would be able to carry

out under this proposed provision that

they cannot currently accomplish in the

current regulations. CEQ also invites

public comment on whether CEQ

should add additional procedures or

limitations to ensure that innovative

approaches are used appropriately.

10. Effective Date (§ 1506.13)

CEQ proposes to remove the 2020

effective date and replace it with the

date upon which a final rule is effective.

CEQ notes that Federal agencies would

not need to redo or supplement a

completed NEPA review (e.g., where a

CE determination, FONSI, or ROD has

been issued) as a result of the issuance

of this rulemaking.

I. Proposed Revisions to Agency

Compliance (Part 1507)

CEQ proposes substantive revisions to

all sections in part 1507. CEQ invites

comment on whether it should make

other changes to this section.

1. Compliance (§ 1507.1)

CEQ proposes to add a second

sentence to § 1507.1, restoring language

from the 1978 regulations, to state that

agencies have flexibility to adapt their

implementing procedures to the

requirements of other applicable laws.

Restoring this language is consistent

with the changes CEQ made to 40 CFR

1507.3 in its Phase 1 rulemaking to

restore the agency discretion to tailor

their NEPA procedures to their unique

missions and contexts, creating

opportunity for agencies to innovate and

improve efficiency.

2. Agency Capability To Comply

(§ 1507.2)

CEQ proposes edits to § 1507.2 to

emphasize agencies’ responsibilities

under NEPA, including to incorporate

the requirements added to section

102(2) of NEPA by the FRA, and require

agencies to designate a Chief Public

Engagement Officer. First, CEQ proposes

to move the first sentence of 40 CFR

1507.2(a) to a new § 1507.2(b) and

require agencies to identify a Chief

Public Engagement Officer who would

be responsible for facilitating

community engagement across the

agency and, where appropriate, the

provision of technical assistance to

communities. Next, CEQ proposes to

redesignate 40 CFR 1507.2(b) and (c) as

§ 1507.2(c) and (d), respectively. Then,

CEQ proposes to redesignate the

existing 40 CFR 1507.2(d) through (f) as

§ 1507.2(h) through (j) and add a new

paragraph (e) to require agencies to

prepare environmental document with

professional integrity consistent with

section 102(2)(D) of NEPA. In a new

paragraph (f), CEQ proposes to require

agencies to make use of reliable data

and resources, consistent with section

102(2)(E) of NEPA. And in a new

paragraph (g), CEQ proposes to require

agencies to study, develop, and describe

technically and economically feasible

alternatives, consistent with section

102(2)(F) of NEPA. Finally, in

redesignated paragraph (j), CEQ

proposes to delete the reference to E.O.

13807 because E.O. 13990 revoked E.O.

13807.

3. Agency NEPA Procedures (§ 1507.3)

CEQ proposes several updates to

§ 1507.3 to reorganize paragraphs to

improve readability, consolidate related

provisions, restore text from the 1978

regulations, and codify CEQ guidance

on CEs.

In paragraphs (a) and (b), CEQ would

update the effective date to reflect the

effective date of a final rule. In

paragraph (b), CEQ proposes to give

agencies 12 months after the effective

date to develop proposed procedures

and initiate consultation with CEQ to

implement the CEQ regulations. CEQ

also proposes moving, with some

modification, language from paragraph

(c) to paragraph (b) for clarity and to

improve organization since the language

is generally applicable to all agency

NEPA procedures. CEQ would clarify

that proposed procedures should

facilitate efficient decision making and

ensure that agencies make decisions in

accordance with the policies and

requirements of NEPA.

In paragraph (b)(2), CEQ proposes to

change ‘‘adopting’’ to ‘‘issuing’’ to avoid

confusion with adoption under § 1506.3.

CEQ also proposes to restore text from

the 1978 regulations requiring agencies

to continue to review their policies and

procedures and revise them as necessary

to be in full compliance with NEPA.

The 2020 rule deleted this language as

redundant to language added to 40 CFR

1507.3(b) requiring agencies to update

their procedures to implement the final

rule.

93

CEQ is proposing to restore this

language because CEQ views the

requirement for an agency to continue to

review their policies and procedures as

different than the requirement in

paragraph (b) to initially update

procedures consistent with a final rule.

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CE Guidance, supra note 9.

95

Id.

96

Id. at 16.

97

https://www.dhs.gov/sites/default/files/

publications/DHS_Instruction%20Manual%20023-

Continued

Further, restoring this requirement is

consistent with the proposal in

paragraph (c)(9) for agencies to review

CEs at least every 10 years. CEQ

proposes a new paragraph (b)(3) to

explicitly clarify that, consistent with

longstanding practice, the issuance of

new agency procedures or an update to

existing agency procedures is not

subject to NEPA review. To align with

these changes with paragraph (b) and its

paragraphs, CEQ proposes to strike the

first clause in 40 CFR 1507.3(e) because

it is unnecessary and could create

confusion and move the other text in 40

CFR 1507.3(e) into § 1507.3(c) as

discussed below. This provision does

not provide any additional direction

given the regulations’ longstanding

existing requirements that agencies

develop agency NEPA procedures, and

CEQ determinations that they conform

to the NEPA regulations. Further, its

requirement that agency procedures

‘‘comply’’ with the CEQ regulations

could be read to suggest that agencies

must complete a NEPA review when

establishing their procedures.

Paragraphs (c) and (c)(1) through

(c)(10) would list the items that all

agency NEPA procedures must include.

CEQ proposes minor revisions to

paragraphs (c)(1) through (c)(4) to

improve clarity and conciseness. CEQ

proposes to modify paragraph (c)(3) to

clarify that procedures should integrate

environmental review into agency

decision-making processes so decision

makers can make use of them in making

the decision. CEQ proposes to modify

paragraph (c)(5) to emphasize that

combining environmental documents

should be done to facilitate sound and

efficient decision making and avoid

duplication. CEQ proposes to strike the

language from this paragraph allowing

agencies to designate and rely on other

procedures or documents to satisfy

NEPA compliance. As discussed further

in sections II.C.1 and II.C.2, CEQ has

concerns about this language added by

the 2020 rule to substitute other reviews

as functionally equivalent for NEPA

compliance, and therefore proposes to

remove it.

To consolidate into one paragraph the

required aspects of agency NEPA

procedures, CEQ proposes to move 40

CFR 1507.3(e)(1), (e)(2), (e)(2)(i), and

(e)(2)(iii) to paragraphs (c)(6), (c)(7),

(c)(7)(i) and (c)(7)(ii), respectively, with

minor wording modification for

readability. CEQ proposes to move with

modification 40 CFR 1507.3(e)(2)(ii),

requiring agencies to establish CEs and

identify extraordinary circumstances to

paragraph (c)(8). CEQ proposes in

paragraphs (c)(8)(i) through (c)(8)(iii) to

include more specificity about the

process for establishing new or revising

existing CEs consistent with CEQ’s 2010

CE guidance and agency practice.

Paragraph (c)(8)(i) would include the

existing requirement from 40 CFR

1507.3(e)(2)(i) that agencies identify

when documentation is required for a

determination that a CE applies to a

proposed action. Paragraph (c)(8)(ii)

would require agencies to substantiate

new or revised CEs and make the

documentation publicly available. This

is consistent with the 2010 guidance

and CEQ’s longstanding practice

requiring agencies to demonstrate that

agency activities are eligible for CEs.

94

CEQ proposes to add paragraph

(c)(8)(iii) to require agencies to describe

how agencies will consider

extraordinary circumstances; this

requirement is currently addressed in

existing 40 CFR 1507.3(c)(2)(ii).

CEQ proposes to add paragraph (c)(9)

to require agencies to include in their

NEPA procedures a process for

reviewing their CEs every 10 years. This

would codify recommendations in

CEQ’s guidance on establishing CEs,

95

which encourages agencies to review

CEs periodically. While the guidance

recommends every 7 years,

96

CEQ is

proposing for review to occur at least

every 10 years. In CEQ’s experience, it

can take an agency a year or more to

conduct such a review and revision

given the steps involved, including

conducting the review, developing a

proposal to update procedures to reflect

the review, consulting with CEQ,

soliciting public comment, developing

final procedures, and receiving a CEQ

conformity determination. Federal

agencies should review their CEs for

multiple reasons, including to

determine if CEs remain useful, whether

they should modify them, and to

determine if circumstances have

changed resulting in an existing

category raising the potential for

significant effects.

CEQ proposes to move 40 CFR

1507.3(e)(3) to paragraph (c)(10) without

substantive change. Finally, CEQ

proposes to move the requirement for

agencies to explain in their NEPA

procedures where interested persons

can get information on EISs and the

NEPA process from 40 CFR 1506.6(e) to

§ 1507.3(c)(11) and add a reference to

EAs as well.

CEQ proposes to codify section 107(f)

of NEPA in a new paragraph (c)(12)

requiring agencies to include

procedures, where applicable, to allow

a project sponsor to prepare EAs and

EISs consistent with § 1506.5. Since not

all agency actions involve project

sponsors, CEQ proposes to include

‘‘where applicable’’ to qualify this

requirement. CEQ includes ‘‘consistent

with § 1506.5’’ so that such procedures

would ensure environmental documents

prepared by project sponsors (or a

contractor on the project sponsor’s

behalf) are prepared with professional

and scientific integrity, and ensure that

the agency independently evaluates and

takes responsibility for the contents of

such documents. It also would ensure

agencies require project sponsors to

execute a disclosure statement to

address financial or other interests. In

addition to procedures, agencies may

provide project sponsors with guidance

and assist in the preparation of the

documents consistent with

§ 1506.5(b)(1). CEQ invites comment on

whether it should include additional

provisions that agencies should

consider or address in establishing such

procedures.

CEQ proposes to delete the provisions

in 40 CFR 1507.3(d) and its paragraphs,

which recommend agency procedures

identify different classes of activities or

decisions that may not be subject to

NEPA. CEQ proposes to revise

§ 1507.3(d) to provide a list of items that

agencies may include in their

procedures, as appropriate, which

would include, at paragraph (d)(1),

identifying activities or decisions that

are not subject to NEPA. Proposing to

delete the specific categories of such

activities or decisions is consistent with

the proposed changes to § 1501.1. See

section II.C.1 and II.C.2. Paragraph (d)(2)

would allow agencies to include

processes for emergency actions that

would not result in significant

environmental effects. This provision is

similar to CEQ’s own emergency process

for EISs provided in § 1506.11 but

relates to activities that would not

require preparation of an EIS. Some

agencies have programs that focus on

these types of emergency actions and

may need to consider special

arrangements for their environmental

assessments in these circumstances.

These special arrangements could focus

on the format of the documents, special

distribution and public involvement

procedures, and timing considerations.

Some agencies have already established

such processes in their procedures to

ensure efficient NEPA compliance in an

emergency. See, e.g., 36 CFR 220.4(b);

Dep’t of Homeland Sec., Instruction

Manual #023–01–001–01, Section VI.

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Phase 1 Response to Comments, supra note 48,

at 87, 99.

CEQ proposes to move, without

modification, 40 CFR 1507.3(f)(1) and

(f)(2) to paragraphs (d)(3) and (d)(4),

respectively. CEQ proposes to remove

40 CFR 1507.3(f)(4) regarding combining

the agency’s EA process with its scoping

process as unnecessary. Section

1501.5(j) clarifies that agencies can

employ scoping at their discretion when

it will improve the efficiency and

effectiveness of EAs, including

combining scoping with a comment

period on a draft EA. In addition, CEQ

proposes to remove, as superfluous, the

first sentence of 40 CFR 1507.3(f)(3)

regarding lengthy periods between an

agency’s decision to prepare an EIS and

actual preparation, as the regulations do

not prescribe specific timelines for

preparation of environmental

documents. As discussed in section

II.D.3, CEQ proposes to move the second

sentence of 40 CFR 1507.3(f)(3)

regarding supplemental notices when an

agency withdraws, cancels, or otherwise

ceases the consideration of a proposed

action before completing an EIS to

§ 1502.4(f) with modifications.

Finally, as discussed in section II.C.3,

CEQ is proposing to strike 40 CFR

1507.3(f)(5) and replace it with a

provision in § 1501.4(e) that is

consistent with the process established

by section 109 of NEPA for adoption or

use of another agency’s CE.

4. Agency NEPA Program Information

(§ 1507.4)

CEQ proposes revisions to § 1507.4,

which describes the use of agency

websites and other information

technology to promote transparency and

efficiency in the NEPA process. In

paragraph (a), CEQ proposes revisions to

remove ‘‘environmental’’ before

‘‘documents’’ because ‘‘environmental

documents’’ is a defined term, and the

intent of the sentence is to refer to

NEPA-related information and

documents more broadly; CEQ proposes

the same edit in paragraph (a)(1). CEQ

also proposes to require agencies to

provide on their websites or other

information technology tools (to account

for new technologies) their agency

NEPA procedures and a list of EAs and

EISs that are in development and

complete. CEQ proposes to revise

paragraph (a)(2) to encourage agencies

to post their environmental documents

to their websites. CEQ proposes to

encourage rather than simply allow

agencies to include the information

listed in paragraphs (a)(1) through (a)(4).

Finally, CEQ proposes edits to

paragraph (b), which promotes

interagency coordination of

environmental program websites and

shared databases, to provide agencies

with additional flexibility and clarify

that the section is not limited to the

listed technology.

J. Proposed Revisions to Definitions

(Part 1508)

Within part 1508, CEQ proposes

revisions to the definitions of

‘‘cooperating agency,’’ ‘‘effects’’ or

‘‘impacts,’’ ‘‘environmental

assessment,’’ ‘‘environmental

document,’’ ‘‘environmental impact

statement,’’ ‘‘finding of no significant

impact,’’ ‘‘human environment,’’ ‘‘lead

agency,’’ ‘‘major Federal action,’’

‘‘mitigation,’’ ‘‘notice of intent,’’ ‘‘page,’’

‘‘scope,’’ and ‘‘tiering.’’ CEQ proposes to

add definitions for ‘‘environmental

justice,’’ ‘‘environmentally preferable

alternative,’’ ‘‘extraordinary

circumstances,’’ ‘‘joint lead agency,’’

‘‘participating Federal agency,’’

‘‘programmatic environmental

document,’’ and ‘‘significant effects.’’

CEQ does not propose substantive

edits to any other definitions, but would

redesignate the paragraphs to keep the

list of terms in alphabetical order. CEQ

invites comment on whether CEQ

should modify other definitions or add

new definitions. In particular, CEQ

invites comment on whether it should

define any additional terms used in

NEPA, as amended by the FRA,

including ‘‘applicant’’ or ‘‘project

sponsor.’’ CEQ is not proposing to

separately define the phrase

‘‘communities with environmental

justice concerns,’’ but intends that

phrase would mean communities that

do not experience environmental justice

as defined in § 1508.1(k). CEQ is

particularly interested in comment on

whether to provide a separate definition

of ‘‘communities with environmental

justice concerns,’’ and if so, how the

regulations should define that term.

1. Cooperating Agency (§ 1508.1(e))

CEQ proposes to revise the definition

of ‘‘cooperating agency’’ in § 1508.1(e)

for clarity and consistency with the

definition of ‘‘cooperating agency’’ in

section 111(2) of NEPA defining this

term to mean ‘‘any Federal, State,

Tribal, or local agency with jurisdiction

by law or special expertise that has been

designated as a cooperating agency by

the lead agency . . . .’’

2. Effects or Impacts (§ 1508.1(g))

In § 1508.1(g), CEQ proposes to make

clarifying edits and to add and

modernize examples. Paragraph (g)(4)

lists common types of effects that may

arise during NEPA review. CEQ

proposes to update the list to add

disproportionate and adverse effects to

communities with environmental justice

concerns and climate change-related

effects. For climate change effects, CEQ

proposes to clarify that this can include

both the contributions to climate change

from a proposed action and its

alternatives as well as the potential

effects of climate change on the

proposed action and its alternatives.

These changes would update the

definition to include effects that have

been an important part of NEPA

analysis for more than a decade and will

continue to be relevant, consistent with

best available science and NEPA’s

requirements. Also, CEQ proposes these

changes in response to comments

received during the Phase 1 rulemaking

that the definition of ‘‘effects’’ or

‘‘impacts’’ should explicitly address

environmental justice and climate

change.

98

3. Environmental Assessment

(§ 1508.1(h))

CEQ proposes to update the definition

of ‘‘environmental assessment’’ in

§ 1508.1(h) for consistency with sections

106(b)(2) and 111(4) of NEPA, 40 CFR

1501.5, and longstanding agency

practice. CEQ proposes to strike

‘‘prepared by’’ and change it to ‘‘for

which a Federal agency is responsible’’

for consistency with section 107(f) of

NEPA and § 1506.5, which allow a

contractor or project sponsor (following

agency issuance of procedures) to

prepare an EA but requires that the

agency take responsibility for the

accuracy of its contents irrespective of

who prepares it. This change would be

consistent with longstanding agency

practice to allow applicants and

contractors to prepare EAs, so long as

the agency is ultimately responsible for

the contents.

To improve readability, CEQ proposes

edits to add text from § 1501.5 clarifying

that an agency prepares an EA when a

proposed action is not likely to have a

significant effect or the significance of

the effects is unknown. CEQ also

proposes to simplify language in the rest

of the paragraph by deleting superfluous

text. These proposed changes do not

alter the intention that an EA is used to

support an agency’s determination

whether to prepare an EIS (part 1502) or

issue a FONSI (§ 1501.6).

4. Environmental Document (§ 1508.1(i))

CEQ proposes to add ‘‘record of

decision’’ to the definition of

‘‘environmental document’’ in

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E.O. 14096, supra note 20, at 25253.

100

Forty Questions, supra note 4.

101

2020 Final Rule, supra note 36, at 43322,

43342–43.

102

Id. at 43344–45.

§ 1508.1(i) for clarity. CEQ also proposes

to add a documented CE determination

to the definition to reflect the

longstanding agency practice of

documenting some CE determinations.

This change also is consistent with the

change CEQ proposes to §§ 1501.4 and

1507.3 to add references to CE

determinations. Therefore, for clarity

and efficiency, CEQ is proposing to

incorporate documented CE

determinations into the definition of

‘‘environmental document.’’ CEQ notes

that section 111(5) of NEPA defines

‘‘environmental document’’ more

narrowly to only include EISs, EAs, and

FONSIs. However, CEQ is proposing to

retain and expand the regulatory

definition since the term is used more

broadly in the CEQ regulations.

5. Environmental Impact Statement

(§ 1508.1(j))

CEQ proposes to change ‘‘as required’’

to ‘‘that is required’’ in the definition of

EIS in § 1508.1(j) for consistency with

the definition of ‘‘environmental impact

statement’’ in section 111(6) of NEPA.

6. Environmental Justice (§ 1508.1(k))

CEQ proposes to add a new definition

of ‘‘environmental justice’’ at

§ 1508.1(k). This definition would align

with the definition set forth in section

2(b) of E.O. 14096.

99

This provision

would define ‘‘environmental justice’’

as the just treatment and meaningful

involvement of all people so that they

are fully protected from

disproportionate and adverse human

health and environmental effects and

hazards, and have equitable access to a

healthy, sustainable, and resilient

environment. The proposed definition

of environmental justice uses the phrase

‘‘cumulative impacts,’’ rather than the

phrase ‘‘cumulative effects,’’ which are

used elsewhere in the proposed

regulations. That is because the phrase

‘‘cumulative impacts’’ has a meaning in

the context of environmental justice

relating to the aggregate effect of

multiple stressors and exposures on a

person, community, or population. See,

e.g., Environmental Protection Agency,

Cumulative Impacts Research:

Recommendations for EPA’s Office of

Research and Development (2022). CEQ

views the evolving science on

cumulative impacts as sufficiently

distinct from the general meaning of

cumulative effects under the NEPA

regulations that using a different term

could be helpful to agencies and the

public. CEQ invites comment on this

approach.

7. Environmentally Preferable

Alternative (§ 1508.1(l))

CEQ proposes to add a new definition

of ‘‘environmentally preferable

alternative’’ at § 1508.1(l). Since 1978,

the CEQ regulations have required

agencies to identify the environmentally

preferable alternative or alternatives in

the ROD (§ 1505.2(b)). While the

regulations did not define the term,

CEQ’s Forty Questions document

provided an explanation, upon which

CEQ has based the proposed

definition.

100

The environmentally

preferable alternative is the alternative

that will best promote the national

environmental policy as expressed in

section 101 of NEPA. 42 U.S.C. 4331.

Application of the term

‘‘environmentally preferable

alternative’’ is also described in

§ 1502.14(f) and discussed in section

II.D.9.

8. Extraordinary Circumstances

(§ 1508.1(m))

CEQ proposes to add a definition of

‘‘extraordinary circumstances’’ at

§ 1508.1(m). The 1978 regulations

included the meaning of extraordinary

circumstances in the definition of

‘‘categorical exclusion’’ at 40 CFR

1508.4 (2019), which the 2020 rule

moved to 40 CFR 1501.4(b) (describing

how to apply extraordinary

circumstances when considering use of

a CE) and 40 CFR 1507.3(e)(2)(ii)

(requiring agencies to establish

extraordinary circumstances for CEs in

their procedures).

101

CEQ proposes to

create a standalone definition of

‘‘extraordinary circumstances’’ to

improve clarity when this term is used

throughout the rule.

CEQ also proposes to add several

examples of extraordinary

circumstances to help agencies and the

public understand common situations

that agencies may consider in

determining whether application of a CE

is appropriate. The examples would

include impacts on sensitive

environmental resources,

disproportionate and adverse effects on

communities with environmental justice

concerns, effects associated with climate

change, and effects on historic

properties or cultural resources. This

list of examples would not be exclusive,

and agencies would continue to have

the discretion to identify extraordinary

circumstances in their NEPA

implementing procedures that are

specific and appropriate to their

particular actions and CEs consistent

with § 1507.3.

9. Finding of No Significant Impact

(§ 1508.1(o))

In the definition of FONSI in

§ 1508.1(o), CEQ proposes to insert

‘‘agency’s determination that and’’ after

‘‘presenting the’’ for consistency with

the definition of FONSI in section

111(7) of NEPA, which defines the term

to mean ‘‘a determination by a Federal

agency that a proposed agency action

does not require the issuance of an

environmental impact statement.’’

10. Human Environment or

Environment (§ 1508.1(p))

CEQ proposes to clarify that ‘‘human

environment’’ and ‘‘environment’’ are

synonymous in the regulations given

that the latter is the more commonly

used term. CEQ proposes a minor edit

to ‘‘human environment’’ in § 1508.1(p)

to remove ‘‘of Americans’’ after ‘‘present

and future generations.’’ This minor edit

improves consistency with NEPA in

section 101(a), which speaks more

generally about the impact of people’s

‘‘activity on the interrelations of all

components of the natural

environment’’ and the need ‘‘to create

and maintain conditions under which

[humans] and nature can exist in

productive harmony.’’ 42 U.S.C.

4331(a).

In the 2020 rule, CEQ changed

‘‘people’’ to ‘‘of Americans,’’ explaining

that it was done to be consistent with

section 101(a) of NEPA.

102

However,

CEQ now considers this explanation to

overlook the context in which the

phrase ‘‘present and future generations

of Americans’’ is used in section 101(a).

That paragraph of the Act refers to

Americans at the end of the last

sentence after using the broader term

‘‘man’’ three times. A reasonable

interpretation is that human

environment refers broadly to the

interrelationship between people and

the environment. The phrase ‘‘present

and future generations of Americans’’ is

used in a narrower context to ‘‘fulfill the

social, economic, and other

requirements of present and future

generations of Americans.’’ 42 U.S.C.

4331(a).

11. Joint Lead Agency (§ 1508.1(q))

CEQ proposes to add a definition for

‘‘joint lead agency’’ consistent with the

usage of that term in section 107(a)(1)(B)

of NEPA and § 1501.7(b) and (c).

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12. Lead Agency (§ 1508.1(s))

CEQ proposes to revise the definition

of ‘‘lead agency’’ for consistency with

the definition of ‘‘lead agency’’ in

section 111(9) of NEPA and to expand

the definition of ‘‘lead agency’’ in

§ 1508.1(s) to also include EAs,

consistent with longstanding practice.

13. Major Federal Action (§ 1508.1(u))

CEQ proposes to move the definition

of ‘‘major Federal action’’ currently

provided in 40 CFR 1508.1(q) to

§ 1508.1(u), revise it to clarify the list of

example activities or decisions that

meet the definition, and revise the list

of exclusions from the definition

consistent with section 111(10) of

NEPA. CEQ notes that the determination

of whether an activity or decision is a

major Federal action is a fact-specific

analysis that agencies have long engaged

in to determine where they have

substantial control and responsibility to

consider environmental effects in their

decision making.

CEQ proposes to reorder and revise

the definition to list the examples of

activities or decisions that may be

included in the definition of ‘‘major

Federal action’’ in paragraph (u)(1),

redesignating current 40 CFR

1508.1(q)(3)(i) through (q)(3)(iv) as

paragraphs (u)(1)(ii) through (u)(1)(v).

To paragraph (u)(1), CEQ proposes to

revise the current example in 40 CFR

1508.1(q)(2) in paragraph (u)(1)(i) and

add one example of potential major

Federal actions.

First, CEQ proposes to strike 40 CFR

1508.1(q)(2) and replace it with

paragraph (u)(1)(i) to include the

granting of authorizations such as

permits, licenses, and rights-of way.

CEQ proposes to strike the existing

examples since regulated activities

would be addressed in this revised

example, and the others are redundant

to the other examples listed in

paragraphs (u)(1)(ii) through (u)(1)(vi).

Second, CEQ proposes to revise the

phrase ‘‘connected agency decisions’’ to

‘‘related agency decisions’’ in paragraph

(u)(1)(iv) to clarify that the concept in

this paragraph is not meant to refer to

‘‘connected actions’’ as defined in

§ 1501.3. CEQ considers this a non-

substantive, clarifying change to avoid

any confusion with connected actions.

Third, CEQ proposes to revise

paragraph (u)(1)(v) to change ‘‘approval

of’’ to ‘‘carrying out’’ specific projects to

address projects carried out directly by

a Federal agency. CEQ proposes to strike

‘‘located in a defined geographic area’’

from the example of management

activities; while this is merely an

example, CEQ is concerned it could be

read as limiting. CEQ also proposes to

strike the sentence regarding permits

and regulatory decisions as this would

be addressed by the example in

paragraph (u)(1)(i).

Fourth, CEQ proposes to add a new

example at § 1508.1(u)(1)(vi) to explain

when Federal financial assistance is a

major Federal action. Generally, Federal

financial assistance, other than minimal

Federal funding, is a major Federal

action where the Federal agency has

authority and discretion over the

financial assistance in a manner that

could address environmental effects

from the activities receiving the

financial assistance. In such

circumstances, the agency has sufficient

control and responsibility over the use

of the funds or the effects of the action

for the decision to provide financial

assistance to constitute a major Federal

action consistent with the definition in

section 111(10) of NEPA. This includes

circumstances where the agency could

deny the financial assistance, in whole

or in part, due to environmental effects

from the activity receiving the financial

assistance, or could impose conditions

on the financial assistance that could

address the effects of such activity.

To improve clarity and ensure

appropriate application of NEPA, CEQ

proposes this example of what a major

Federal action may include. CEQ

considers that, other than for minimal

Federal Funding, where an agency has

substantial control and responsibility

over a recipient’s environmental effects

or sufficient discretion to consider the

environmental effects when making

decisions, the appropriate approach is

for agencies to identify the

corresponding scope of analysis rather

than excluding an activity or decision

from NEPA review altogether. For

example, if a Federal agency operates a

loan guarantee program, the agency may

have discretion in the types of activities

to which it might issue a loan guarantee.

A NEPA review that analyzes the

environmental effects of potential

project types could help inform how the

agency designs the program. Depending

on the terms of the loan guarantee

program, the agency may have

substantial control and responsibility

over the use of the funds such that an

environmental analysis can inform the

decision making. As noted in section

II.C.2 and earlier in this section, this is

a fact-specific analysis agencies

undertake based on the specifics of their

authority for a particular action.

In § 1508.1(u)(2), CEQ proposes to

replace the exclusions currently in 40

CFR 1508.1(q)(1)(i) through (vi) with the

exclusions from the definition of major

Federal action codified in the definition

in section 111(10)(B) of NEPA.

Paragraph (u)(2)(i)(A) and (B) would

include the exclusion of non-Federal

actions with no or minimal funding; or

with no or minimal Federal

involvement where the agency cannot

control the outcome of the project

consistent with section 111(10)(B)(i) of

NEPA. These exclusions would replace

the current exclusion in 40 CFR

1508.1(q)(1)(vi), which CEQ proposes to

strike. CEQ invites comment on whether

it should add additional provisions to

the regulations to implement the

‘‘minimal Federal funding’’ exclusion in

§ 1508.1(u)(2)(i)(A). Agencies currently

evaluate the provision of minimal

Federal funding based on specific

factual contexts. CEQ is interested in

whether additional procedures,

including thresholds for the amount or

proportion of Federal funding necessary

for an agency action to constitute major

Federal action, could increase

predictability while ensuring that

Federal agencies do not overlook effects

to vital components of the human

environment, including the health of

children and vulnerable populations,

drinking water, communities with

environmental justice concerns, and

similar considerations.

Paragraph (u)(2)(ii) would include the

exclusion of funding assistance solely in

the form of general revenue sharing

funds consistent with section

111(10)(B)(ii) of NEPA. This exclusion

would replace the current, similar

exclusion in 40 CFR 1508.1(q)(1)(v),

which CEQ proposes to strike.

Paragraph (u)(2)(iii) would include

the exclusion of loans, loan guarantees,

or other forms of financial assistance

where a Federal agency does not

exercise sufficient control and

responsibility over the subsequent use

of such financial assistance or the

effects of the action, consistent with

section 111(10)(B)(iii) of NEPA.

Paragraph (u)(2)(iv) would include the

exclusion of certain business loan

guarantees provided by the Small

Business Administration, consistent

with section 111(10)(B)(iv) of NEPA.

These exclusions would replace the

current, similar exclusion in 40 CFR

1508.1(q)(1)(vii), which CEQ proposes

to strike. In particular, CEQ proposes to

strike the example currently in 40 CFR

1508.1(q)(1)(vii) for farm ownership and

operating loan guarantees by the Farm

Service Agency pursuant to 7 U.S.C.

1925 and 1941 through 1949. CEQ

considers it best left to agencies to

identify exclusions from the definition

of major Federal action absent specific

statutory authority like those for the

Small Business Administration loan

guarantees.

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103

CEQ notes that the statutory exclusion of these

activities from the definition of major Federal

action and therefore NEPA review does not change

the scope of environmental effects that agencies

should assess for actions that are subject to NEPA

review.

104

See e.g., U.S. Dep’t of the Interior, A Strategy

for Improving the Mitigation Policies and Practices

of the Department of the Interior 2–3 (Apr. 2014),

https://www.doi.gov/sites/doi.gov/files/migrated/

news/upload/Mitigation-Report-to-the-Secretary_

FINAL_04_08_14.pdf (discussing the development

of a ‘‘mitigation hierarchy’’—which starts with

avoidance—in the implementation of NEPA and the

Clean Water Act); Bureau of Land Mgmt., H–1794–

1, Mitigation Handbook (P) 2–1 (Sept. 22, 2021),

https://www.blm.gov/sites/default/files/docs/2021-

10/IM2021-046_att2.pdf (citing CEQ regulations and

noting that the ‘‘five aspects of mitigation (avoid,

minimize, rectify, reduce/eliminate, compensate)

are referred to as the mitigation hierarchy because

they are generally applied in a hierarchical

manner’’); U.S. Env’t Prot. Agency & U.S. Dep’t of

Def., Memorandums of Agreement (MOA); Clean

Water Act Section 404(b)(1) Guidelines; Correction,

55 FR 9210, 9211 (Mar. 12, 1990) (noting that under

section 404 of the Clean Water Act, the Army Corps

of Engineers evaluates potential mitigation efforts

sequentially, starting with avoidance, minimization,

and then compensation).

105

See, e.g., 10 CFR 900.3 (defining a regional

mitigation approach under NEPA as ‘‘an approach

that applies the mitigation hierarchy (first seeking

to avoid, then minimize impacts, then, when

necessary, compensate for residual impacts)’’);

Presidential Memorandum, Mitigating Impacts on

Natural Resources From Development and

Encouraging Related Private Investment, 80 FR

68743, 68745 (Nov. 6, 2015) (addressing five

agencies and noting that, ‘‘[a]s a practical matter,

[mitigation is] captured in the terms avoidance,

minimization, and compensation. These three

actions are generally applied sequentially . . . .’’);

Fed. Highway Admin., NEPA and Transportation

Decisionmaking: Questions and Answers Regarding

the Consideration of Indirect and Cumulative

Impacts in the NEPA Process Question 9, https://

www.environment.fhwa.dot.gov/nepa/

QAimpact.aspx (describing the importance of

‘‘sequencing,’’ which refers to the process of

prioritizing avoidance and minimization of effects

over replacement or compensation for NEPA

mitigation efforts).

Next, CEQ proposes to move the

existing exclusions, currently in 40 CFR

1508.1(q)(1)(iv), (q)(1)(i), and (q)(1)(ii) to

paragraphs (u)(2)(v) through (u)(2)(vii),

respectively. Section 111(10)(B)(v)

through (vii) of NEPA codified these

exclusions. Paragraph (u)(2)(v) would

exclude bringing judicial or

administrative civil or criminal

enforcement actions. Paragraph

(u)(2)(vi) would exclude extraterritorial

activities or decisions.

103

Paragraph

(u)(2)(vii) would exclude activities or

decisions that are non-discretionary.

CEQ notes that there may be activities

or decisions that are partially non-

discretionary. In such circumstances, an

agency may conclude that the non-

discretionary components of an activity

or decision are not major Federal

actions and exclude the non-

discretionary components from analysis.

In such circumstances, the agency

would consider the discretionary

components of the activity or decision.

For example, if a statute mandated an

agency to make an affirmative decision

once a set of criteria are met, but the

agency has flexibility in how to meet

those criteria, the agency still has some

discretion to consider alternatives and

effects. Similarly, if a statute directs an

agency to take an action, but the agency

has discretion in how it takes that

action, the agency can still comply with

NEPA while carrying out its statutory

mandate.

CEQ proposes to move the exclusion

regarding final agency actions from 40

CFR 1508.1(q)(1)(iii) to

§ 1508.1(u)(2)(viii) and make changes

for consistency with section 106(a)(1).

While section 106(a)(1) of NEPA

includes this as a threshold factor for

not requiring an EIS or EA, it is

consistent with longstanding caselaw to

exclude non-final agency actions from

the definition of major Federal action.

Therefore, CEQ proposes to include this

as a threshold consideration as well as

an exclusion from the definition of

major Federal action.

Finally, CEQ proposes a new

exclusion in § 1508.1(u)(2)(ix) for

activities or decisions for projects

approved by a Tribal Nation that occur

on or involve land held in trust or

restricted status when the activities

involve no Federal funding or other

Federal involvement. Recognizing the

unique circumstances facing Tribal

Nations due to the United States

holding land in trust for them or the

Tribal Nation holding land in restricted

status, CEQ proposes this exclusion to

clarify that activities or decisions for

projects approved by a Tribal Nation on

trust lands are not major Federal actions

where such activities do not involve

Federal funding or other Federal

involvement. Tribal leaders raised this

issue during consultations that CEQ

held on its NEPA regulations and voiced

concerns that the NEPA process placed

Tribal Nations in a disadvantageous

position relative to State and local

governments because of the United

States’ ownership interest in Tribal

lands. Categories of activities on trust

lands that typically will not constitute

major Federal actions include transfer of

existing operation and maintenance

activities of Federal facilities to Tribal

groups, water user organizations, or

other entities; human resources

programs such as social services,

education services, employment

assistance, Tribal operations, law

enforcement, and credit and financing

activities not related to development;

self-governance compacts for Bureau of

Indian Affairs programs; service line

agreements for an individual residence,

building, or well from an existing

facility where installation will involve

no clearance of vegetation from the

right-of-way other than for placement of

poles, signs (including highway signs),

or buried power/cable lines; and

approvals of Tribal regulations or other

documents promulgated in exercise of

Tribal sovereignty, such as Tribal

Energy Resource Agreements,

certification of a Tribal Energy

Development Organization, Helping

Expedite and Advance Responsible

Tribal Homeownership Act Tribal

regulations, Indian Trust Asset Reform

Act Tribal regulations and trust asset

management plans, and Tribal liquor

control ordinances.

14. Mitigation (§ 1508.1(w))

CEQ proposes three edits to the

definition of ‘‘mitigation’’ in

§ 1508.1(w). First, CEQ proposes to

change ‘‘nexus’’ to the more commonly

used word ‘‘connection’’ to describe the

relationship between a proposed action

or alternatives and any associated

environmental effects. Second, CEQ

proposes to delete the sentence that

NEPA ‘‘does not mandate the form or

adoption of any mitigation’’ because this

sentence is unnecessary and could

mislead readers by not acknowledging

that agencies may use other authorities

to require mitigation or may incorporate

mitigation in mitigated FONSIs

(§ 1501.6) and RODs (§1505.2). Third,

CEQ proposes to add the clause ‘‘in

general order of priority’’ to the

sentence, ‘‘Mitigation includes’’ which

introduces the list of mitigation types.

This change would clarify that the types

of mitigation provided in paragraphs

(u)(1) though (u)(5) are listed in general

order of priority, consistent with the

familiar ‘‘mitigation hierarchy.’’

104

This

list was prioritized in the 1978

regulations with avoidance coming

before other types of mitigation and this

proposed addition highlights that intent,

which is consistent with longstanding

agency practice.

105

15. Notice of Intent (§ 1508.1(y))

CEQ proposes to modify the

definition of notice of intent to include

environmental assessments, as

applicable. CEQ proposes this change

for consistency with § 1501.5(j), which

provides that agencies may issue an NOI

for an EA where it is appropriate to

improve efficiency and effectiveness,

and § 1501.10(b)(3)(iii), which sets forth

one of the three potential starting points

from which deadlines are measured for

environmental assessments consistent

with section 107(g)(1)(B)(iii).

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106

Merriam-Webster, https://www.merriam-

webster.com/dictionary/appendix.

107

Regulatory Planning and Review, 58 FR 51735

(Oct. 4, 1993).

108

E.O. 13563, Improving Regulation and

Regulatory Review, 76 FR 3821 (Jan. 21, 2011).

109

See generally Linda Luther, Cong. Rsch. Serv.

R42479, The Role of the Environmental Review

Process in Federally Funded Highway Projects:

Background and Issues for Congress (2012), https://

crsreports.congress.gov/product/pdf/R/R42479.

110

67 FR 53461 (Aug. 16, 2002).

16. Page (§ 1508.1(z))

CEQ proposes to modify the

definition of ‘‘page’’ consistent with

section 107(e) of NEPA to exclude

citations from the page limits for EISs

and EAs. CEQ proposes to retain the

exclusions for maps, diagrams, graphs,

tables, and other means of graphically

displaying quantitative or geospatial

information from the definition of

‘‘page’’ to facilitate better NEPA

documents. While agencies could move

these visual representations of

information to appendices, which could

come at the end of an EIS or the end of

EIS chapters, CEQ is concerned that this

will make the documents less functional

to decision makers and the public.

Further, such graphical displays

themselves could be considered

appendices consistent with the ordinary

definition of appendix—supplementary

material usually attached at the end of

a piece of writing.

106

CEQ invites

comment on its proposed definition of

‘‘page.’’

17. Participating Federal Agency

(§ 1508.1(bb))

CEQ proposes to add a definition of

‘‘participating Federal agency’’ to

§ 1508.1(bb) and define it consistent

with the definition of the same term in

section 111(8) of NEPA.

18. Programmatic Environmental

Document (§ 1508.1(cc))

CEQ proposes to add a definition of

‘‘programmatic environmental

document’’ to § 1508.1(cc) and define it

consistent with the definition of the

same term in section 111(11) of NEPA.

19. Scope (§ 1508.1(ii))

CEQ proposes to expand the

definition of ‘‘scope’’ to include EAs

and revise the definition to include both

the range and breadth of the actions,

alternatives, and effects to be considered

in an EIS or EA, consistent with CEQ’s

proposed relocation of the discussion of

scope in § 1501.3(b). As discussed

further in section II.C.2, agencies have

long examined the scope of their actions

to determine what alternatives and

effects they must analyze. This is a fact-

specific analysis that agencies undertake

informed by their statutory authority

and control and responsibility over the

activity. CEQ also proposes to strike the

last sentence regarding tiering because it

is not definitional language and is

unnecessary because this concept is

more fully addressed in § 1501.11.

20. Significant Effects (§ 1508.1(kk))

CEQ proposes to add a definition for

‘‘significant effects’’ to provide a

definition for those effects that are of

vital importance in the NEPA process in

determining the appropriate level of

review. The proposed definition would

align with the restoration of the context

and intensity factors for determining

significance in § 1501.3(d). CEQ

proposes to define ‘‘significant effects’’

as adverse effects identified by an

agency as significant based on the

criteria set forth in § 1501.3(d). This

would clarify that beneficial effects are

not significant effects as the phrase is

used in NEPA and, therefore, do not

require an agency to prepare an EIS.

CEQ proposes this as an alternative

approach to the proposal in

§ 1501.3(d)(2)(i) where an action ‘‘does

not’’ require an EIS when it would

result only in significant beneficial

effects. If CEQ includes this definition

in the final rule, this approach would

mean that an agency would not need to

prepare an EIS if a proposed action’s

effects are exclusively beneficial.

However, irrespective of the level of

NEPA review, agencies would still need

to analyze both adverse and beneficial

effects in NEPA documents if they are

reasonably foreseeable. CEQ invites

comment on the definition, specifically

on the inclusion of ‘‘adverse’’ in the

definition, and comments on whether

the approach in § 1501.3(d)(2)(i) or

§ 1508.1(kk) is preferred and the reasons

why. Finally, CEQ invites the public to

submit any examples of EAs or EISs

where there were significant effects that

were purely beneficial.

21. Tiering (§ 1508.1(mm))

CEQ proposes to revise the definition

of tiering to cross reference the process

as set forth in § 1501.11. CEQ is

proposing this revision to avoid any

potential inconsistencies between the

definition and the provisions of

§ 1501.11.

III. Rulemaking Analyses and Notices

A. Executive Order 12866, Regulatory

Planning and Review

E.O. 12866 provides that the Office of

Information and Regulatory Affairs will

review all significant rules.

107

E.O.

13563 reaffirms the principles of E.O.

12866, calling for improvements in the

Federal Government’s regulatory system

to promote predictability, reduce

uncertainty, and use the best, most

innovative, and least burdensome tools

for achieving regulatory objectives.

108

This proposed rule is a significant

regulatory action under section 3(f)(1) of

E.O. 12866 that CEQ submitted to OMB

for review. The proposed changes

would improve the CEQ regulations to

benefit agencies and the public.

Furthermore, an effective NEPA process

can save time and reduce overall project

costs by providing a clear process for

evaluating alternatives and effects,

coordinating agencies and relevant

stakeholders including the public, and

identifying and avoiding problems—

including potential significant effects—

that may occur in later stages of project

development.

109

Additionally, if

agencies choose to consider additional

alternatives and conduct clearer or more

robust analyses, such analyses should

improve societal outcomes by

improving agency decision making.

Because individual cases will vary, the

magnitude of potential costs and

benefits resulting from these proposed

changes are difficult to anticipate, but

CEQ has prepared a qualitative analysis

in the accompanying regulatory impact

analysis.

B. Regulatory Flexibility Act and

Executive Order 13272, Proper

Consideration of Small Entities in

Agency Rulemaking

The Regulatory Flexibility Act (RFA),

as amended, 5 U.S.C. 601 et seq., and

E.O. 13272, Proper Consideration of

Small Entities in Agency Rulemaking,

110

require agencies to assess the impacts of

proposed and final rules on small

entities. Under the RFA, small entities

include small businesses, small

organizations, and small governmental

jurisdictions. An agency must prepare

an Initial Regulatory Flexibility

Analysis unless it determines and

certifies that a proposed rule, if

promulgated, would not have a

significant economic impact on a

substantial number of small entities. 5

U.S.C. 605(b). The proposed rule would

not directly regulate small entities.

Rather, the proposed rule would apply

to Federal agencies and set forth the

process for their compliance with

NEPA. Accordingly, CEQ hereby

certifies that the proposed rule, if

promulgated, would not have a

significant economic impact on a

substantial number of small entities.

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111

National Environmental Policy Act—

Regulations: Proposed Implementation of

Procedural Provisions, 43 FR 25230, 25232 (June 9,

1978); see E.O. 11991, supra note 26.

112

National Environmental Policy Act—

Regulations: Proposed Implementation of

Procedural Provisions, supra note 111, at 25232.

113

National Environmental Policy Act

Regulations; Incomplete or Unavailable

Information, supra note 29, at 15619.

114

E.O. 13132, Federalism, 64 FR 43255 (Aug. 10,

1999).

115

Id.

116

E.O. 13175, supra note 53.

117

Id.

118

E.O. 12898, supra note 7.

119

E.O. 13211, Actions Concerning Regulations

That Significantly Affect Energy Supply,

Distribution, or Use, 66 FR 28355 (May 22, 2001).

120

E.O. 12988, Civil Justice Reform, 61 FR 4729,

4731 (Feb. 7, 1996).

121

Id.

C. National Environmental Policy Act

Under the CEQ regulations, major

Federal actions may include regulations.

When CEQ issued regulations in 1978,

it prepared a ‘‘special environmental

assessment’’ for illustrative purposes

pursuant to E.O. 11991.

111

The NPRM

for the 1978 rule stated ‘‘the impacts of

procedural regulations of this kind are

not susceptible to detailed analysis

beyond that set out in the

assessment.’’

112

Similarly, in 1986,

while CEQ stated in the final rule that

there were ‘‘substantial legal questions

as to whether entities within the

Executive Office of the President are

required to prepare environmental

assessments,’’ it also prepared a special

EA.

113

The special EA issued in 1986

supported a FONSI, and there was no

finding made for the assessment of the

1978 final rule. CEQ also prepared a

special EA and reached a FONSI for the

Phase 1 rulemaking.

CEQ continues to take the position

that a NEPA analysis is not required for

establishing or updating NEPA

procedures. See Heartwood v. U.S.

Forest Serv., 230 F.3d 947, 954–55 (7th

Cir. 2000) (finding that neither NEPA or

the CEQ regulations required the Forest

Service to conduct an EA or an EIS prior

to the promulgation of its procedures

creating a CE). Nevertheless, based on

past practice, CEQ has developed a

special EA and has posted it in the

docket. CEQ invites comments on the

special EA.

D. Executive Order 13132, Federalism

E.O. 13132 requires agencies to

develop an accountable process to

ensure meaningful and timely input by

state and local officials in the

development of regulatory policies that

have federalism implications.

114

Policies that have federalism

implications include regulations that

have substantial direct effects on the

States, on the relationship between the

national government and the States, or

on the distribution of power and

responsibilities among the various

levels of government.

115

CEQ does not

anticipate that this proposed rule has

federalism implications because it

applies to Federal agencies, not States.

E. Executive Order 13175, Consultation

and Coordination With Indian Tribal

Governments

E.O. 13175 requires agencies to have

a process to ensure meaningful and

timely input by Tribal officials in the

development of policies that have Tribal

implications.

116

Such policies include

regulations that have substantial direct

effects on one or more Indian Tribes, on

the relationship between the Federal

Government and Indian Tribes, or on

the distribution of power and

responsibilities between the Federal

Government and Indian Tribes.

117

CEQ

has assessed the impact of this proposed

rule on Indian Tribal governments and

has determined preliminarily that the

proposed rule does significantly or

uniquely affect these communities and

seeks comment on this preliminary

determination. CEQ engaged in

government-to-government consultation

with federally recognized Tribes on the

Phase 2 rulemaking. As required by E.O.

13175, CEQ held a Tribal consultation

on this rulemaking on November 12,

2021, and will be holding additional

consultations during the public

comment period.

F. Executive Order 12898, Federal

Actions To Address Environmental

Justice in Minority Populations and

Low-Income Populations and Executive

Order 14096, Revitalizing Our Nation’s

Commitment to Environmental Justice

for All

E.O. 12898 requires agencies to make

achieving environmental justice part of

their missions by identifying and

addressing, as appropriate,

disproportionately high and adverse

human health or environmental effects

of their programs, policies, and

activities on communities of color and

low-income communities.

118

E.O. 14096

charges agencies to make achieving

environmental justice part of its mission

consistent with statutory authority by

identifying, analyzing, and addressing

disproportionate and adverse human

health and environmental effects and

hazards of Federal activities, including

those related to climate change and

cumulative impacts of environmental

and other burdens on communities with

environmental justice concerns.

CEQ has analyzed this proposed rule

and preliminarily determined that it

would not cause disproportionate and

adverse human health or environmental

effects on communities with

environmental justice concerns. This

rule would set forth implementing

regulations for NEPA; it is in the agency

implementation of NEPA when

conducting reviews of proposed agency

actions where consideration of

environmental justice effects typically

occurs. CEQ invites comment on this

preliminary determination.

G. Executive Order 13211, Actions

Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use

Agencies must prepare a Statement of

Energy Effects for significant energy

actions under E.O. 13211.

119

CEQ has

preliminarily determined that this

rulemaking is not a ‘‘significant energy

action’’ because it is not likely to have

a significant adverse effect on the

supply, distribution, or use of energy.

H. Executive Order 12988, Civil Justice

Reform

Under section 3(a) of E.O. 12988,

agencies must review their proposed

regulations to eliminate drafting errors

and ambiguities, draft them to minimize

litigation, and provide a clear legal

standard for affected conduct.

120

Section 3(b) provides a list of specific

issues for review to conduct the reviews

required by section 3(a).

121

CEQ has

conducted this review and determined

that this proposed rule complies with

the requirements of E.O. 12988.

I. Unfunded Mandate Reform Act

Section 201 of the Unfunded

Mandates Reform Act of 1995, 2 U.S.C.

1531, requires Federal agencies to assess

the effects of their regulatory actions on

Tribal, State, and local governments,

and the private sector to the extent that

such regulations incorporate

requirements specifically set forth in

law. Before promulgating a rule that

may result in the expenditure by a

Tribal, State, or local government, in the

aggregate, or by the private sector of

$100 million, adjusted annually for

inflation, in any 1 year, an agency must

prepare a written statement that assesses

the effects on Tribal, State, and local

governments and the private sector. 2

U.S.C. 1532. This proposed rule would

apply to Federal agencies and would not

result in expenditures of $100 million or

more for Tribal, State, and local

governments, in the aggregate, or the

private sector in any 1 year. This

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proposed action also would not impose

any enforceable duty, contain any

unfunded mandate, or otherwise have

any effect on small governments subject

to the requirements of 2 U.S.C. 1531–

1538.

J. Paperwork Reduction Act

This proposed rule would not impose

any new information collection burden

that would require additional review or

approval by OMB under the Paperwork

Reduction Act, 44 U.S.C. 3501 et seq.

List of Subjects in 40 CFR Parts 1500,

1501, 1502, 1503, 1504, 1505, 1506,

1507, and 1508

Administrative practice and

procedure; Environmental impact

statements; Environmental protection;

Natural resources.

Brenda Mallory,

Chair.

For the reasons discussed in the

preamble, the Council on

Environmental Quality proposes to

amend 40 CFR chapter V by revising

subchapter A to read as follows:

■1. Revise subchapter A to read as

follows:

PART 1500—PURPOSE AND POLICY

Sec.

1500.1 Purpose.

1500.2 Policy.

1500.3 NEPA compliance.

1500.4 Concise and informative

environmental documents.

1500.5 Efficient process.

1500.6 Agency authority.

Authority: 42 U.S.C. 4321–4347; 42 U.S.C.

4371–4375; 42 U.S.C. 7609; and E.O. 11514,

35 FR 4247, 3 CFR, 1966–1970, Comp., p.

902, as amended by E.O. 11991, 42 FR 26967,

3 CFR, 1977 Comp., p. 123.

PART 1501—NEPA AND AGENCY

PLANNING

Sec.

1501.1 Purpose.

1501.2 Apply NEPA early in the process.

1501.3 Determine the appropriate level of

NEPA review.

1501.4 Categorical exclusions.

1501.5 Environmental assessments.

1501.6 Findings of no significant impact.

1501.7 Lead agency.

1501.8 Cooperating agencies.

1501.9 Public and governmental

engagement.

1501.10 Deadlines and schedule for the

NEPA process.

1501.11 Programmatic environmental

documents and tiering.

1501.12 Incorporation by reference into

environmental documents.

Authority: 42 U.S.C. 4321–4347; 42 U.S.C.

4371–4375; 42 U.S.C. 7609; and E.O. 11514,

35 FR 4247, 3 CFR, 1966–1970, Comp., p.

902, as amended by E.O. 11991, 42 FR 26967,

3 CFR, 1977 Comp., p. 123.

PART 1502—ENVIRONMENTAL

IMPACT STATEMENT

Sec.

1502.1 Purpose of environmental impact

statement.

1502.2 Implementation.

1502.3 Statutory requirements for

environmental impact statements.

1502.4 Scoping.

1502.5 Timing.

1502.6 Interdisciplinary preparation.

1502.7 Page limits.

1502.8 Writing.

1502.9 Draft, final, and supplemental

statements.

1502.10 Recommended format.

1502.11 Cover.

1502.12 Summary.

1502.13 Purpose and need.

1502.14 Alternatives including the

proposed action.

1502.15 Affected environment.

1502.16 Environmental consequences.

1502.17 Summary of scoping information.

1502.18 List of preparers.

1502.19 Appendix.

1502.20 Publication of the environmental

impact statement.

1502.21 Incomplete or unavailable

information.

1502.22 Cost-benefit analysis.

1502.23 Methodology and scientific

accuracy.

1502.24 Environmental review and

consultation requirements.

Authority: 42 U.S.C. 4321–4347; 42 U.S.C.

4371–4375; 42 U.S.C. 7609; and E.O. 11514,

35 FR 4247, 3 CFR, 1966–1970, Comp., p.

902, as amended by E.O. 11991, 42 FR 26967,

3 CFR, 1977 Comp., p. 123.

PART 1503—COMMENTING ON

ENVIRONMENTAL IMPACT

STATEMENTS

Sec.

1503.1 Inviting comments and requesting

information and analyses.

1503.2 Duty to comment.

1503.3 Specificity of comments and

information.

1503.4 Response to comments.

Authority: 42 U.S.C. 4321–4347; 42 U.S.C.

4371–4375; 42 U.S.C. 7609; and E.O. 11514,

35 FR 4247, 3 CFR, 1966–1970, Comp., p.

902, as amended by E.O. 11991, 42 FR 26967,

3 CFR, 1977 Comp., p. 123.

PART 1504—PRE-DECISIONAL

REFERRALS TO THE COUNCIL OF

PROPOSED FEDERAL ACTIONS

DETERMINED TO BE

ENVIRONMENTALLY

UNSATISFACTORY

Sec.

1504.1 Purpose.

1504.2 Early dispute resolution.

1504.3 Criteria and procedure for referrals

and response.

PART 1505—NEPA AND AGENCY

DECISION MAKING

Sec.

1505.1 [Reserved]

1505.2 Record of decision in cases requiring

environmental impact statements.

1505.3 Implementing the decision.

Authority: 42 U.S.C. 4321–4347; 42 U.S.C.

4371–4375; 42 U.S.C. 7609; and E.O. 11514,

35 FR 4247, 3 CFR, 1966–1970, Comp., p.

902, as amended by E.O. 11991, 42 FR 26967,

3 CFR, 1977 Comp., p. 123.

PART 1506—OTHER REQUIREMENTS

OF NEPA

Sec.

1506.1 Limitations on actions during NEPA

process.

1506.2 Elimination of duplication with

State, Tribal, and local procedures.

1506.3 Adoption.

1506.4 Combining documents.

1506.5 Agency responsibility for

environmental documents.

1506.6 [Reserved]

1506.7 Further guidance.

1506.8 Proposals for legislation.

1506.9 Filing requirements.

1506.10 Timing of agency action.

1506.11 Emergencies.

1506.12 Innovative approaches to NEPA

reviews.

1506.13 Effective date.

Authority: 42 U.S.C. 4321–4347; 42 U.S.C.

4371–4375; 42 U.S.C. 7609; and E.O. 11514,

35 FR 4247, 3 CFR, 1966–1970, Comp., p.

902, as amended by E.O. 11991, 42 FR 26967,

3 CFR, 1977 Comp., p. 123.

PART 1507—AGENCY COMPLIANCE

Sec.

1507.1 Compliance.

1507.2 Agency capability to comply.

1507.3 Agency NEPA procedures.

1507.4 Agency NEPA program information.

Authority: 42 U.S.C. 4321–4347; 42 U.S.C.

4371–4375; 42 U.S.C. 7609; and E.O. 11514,

35 FR 4247, 3 CFR, 1966–1970, Comp., p.

902, as amended by E.O. 11991, 42 FR 26967,

3 CFR, 1977 Comp., p. 123.

PART 1508—DEFINITIONS

Sec.

1508.1 Definitions.

1508.2 [Reserved]

Authority: 42 U.S.C. 4321–4347; 42 U.S.C.

4371–4375; 42 U.S.C. 7609; and E.O. 11514,

35 FR 4247, 3 CFR, 1966–1970, Comp., p.

902, as amended by E.O. 11991, 42 FR 26967,

3 CFR, 1977 Comp., p. 123.

PART 1500—PURPOSE AND POLICY

§ 1500.1 Purpose.

(a) The National Environmental

Policy Act (NEPA) is the basic national

charter for protection of the

environment. It establishes policy, sets

goals (section 101), and provides

direction (section 102) for carrying out

the policy.

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(1) Section 101(a) of NEPA establishes

the national environmental policy of the

Federal Government to use all

practicable means and measures to

foster and promote the general welfare,

create and maintain conditions under

which people and nature can exist in

productive harmony, and fulfill the

social, economic, and other

requirements of present and future

generations. Section 101(b) of NEPA

establishes the continuing responsibility

of the Federal Government to use all

practicable means, consistent with other

essential considerations of national

policy, to help each generation serve as

a trustee of the environment for

succeeding generations; assure for all

people safe, healthful, productive, and

aesthetically and culturally pleasing

surroundings; attain the widest range of

beneficial uses of the environment

without degradation, risk to health or

safety, or other undesirable and

unintended consequences; preserve

important historic, cultural, and natural

aspects of our national heritage, and

maintain, wherever possible, an

environment which supports diversity

and variety of individual choice;

achieve a balance between population

and resource use which will permit high

standards of living and a wide sharing

of life’s amenities; and enhance the

quality of renewable resources and

approach the maximum attainable

recycling of depletable resources.

(2) Section 102(2) of NEPA establishes

procedural requirements to carry out the

policy and responsibilities established

in section 101 of NEPA and contains

‘‘action-forcing’’ procedural provisions

to ensure Federal agencies implement

the letter and spirit of the Act. The

purpose of the regulations in this

subchapter is to set forth what Federal

agencies must and should do to comply

with the procedures and achieve the

goals of the Act. The President, the

Federal agencies, and the courts share

responsibility for enforcing the Act so as

to achieve the policy goals of section

101.

(b) Federal agency NEPA procedures

must ensure that agencies identify,

consider, and disclose to the public

relevant environmental information

early in the process before decisions are

made and before actions are taken. The

information should be of high quality,

science-based, and accessible. Accurate

scientific analysis, expert agency

comments, and public scrutiny are

essential to implementing NEPA. Most

important, environmental documents

must concentrate on the issues that are

truly relevant to the action in question,

rather than amassing needless detail.

The regulations in this subchapter also

are intended to ensure that Federal

agencies conduct environmental

reviews in a coordinated, consistent,

predictable, and timely manner, and to

reduce unnecessary burdens and delays.

Finally, the regulations in this

subchapter promote concurrent

environmental reviews to ensure timely

and efficient decision making.

(c) Ultimately, of course, it is not

better documents but better decisions

that count. NEPA’s purpose is not to

generate paperwork—even excellent

paperwork—but to foster excellent

action. The NEPA process is intended to

help public officials make decisions that

are based on an understanding of

environmental consequences and take

actions that protect, restore, and

enhance the environment. The

regulations in this subchapter provide

the direction to achieve this purpose.

§ 1500.2 Policy.

Federal agencies shall to the fullest

extent possible:

(a) Interpret and administer the

policies, regulations, and public laws of

the United States in accordance with the

policies set forth in the Act and in these

regulations.

(b) Implement procedures to make the

NEPA process more useful to decision

makers and the public; to reduce

paperwork and the accumulation of

extraneous background data; and to

emphasize important environmental

issues and alternatives. Environmental

documents shall be concise, clear, and

supported by evidence that agencies

have conducted the necessary

environmental analyses.

(c) Integrate the requirements of

NEPA with other planning and

environmental review procedures

required by law or by agency practice so

that all such procedures run

concurrently rather than consecutively.

(d) Encourage and facilitate public

engagement in decisions that affect the

quality of the human environment,

including meaningful engagement with

communities with environmental justice

concerns, which often include

communities of color, low-income

communities, indigenous communities,

and Tribal communities.

(e) Use the NEPA process to identify

and assess the reasonable alternatives to

proposed actions that will avoid or

minimize adverse effects of these

actions upon the quality of the human

environment, such as alternatives that

will reduce climate change-related

effects or address adverse health and

environmental effects that

disproportionately affect communities

with environmental justice concerns.

(f) Use all practicable means,

consistent with the requirements of the

Act and other essential considerations

of national policy, to restore and

enhance the quality of the human

environment and avoid or minimize any

possible adverse effects of their actions

upon the quality of the human

environment.

§ 1500.3 NEPA compliance.

(a) Mandate. This subchapter is

applicable to and binding on all Federal

agencies for implementing the

procedural provisions of the National

Environmental Policy Act of 1969, as

amended (Pub. L. 91–190, 42 U.S.C.

4321 et seq.) (NEPA or the Act). The

regulations in this subchapter are issued

pursuant to NEPA; the Environmental

Quality Improvement Act of 1970, as

amended (Pub. L. 91–224, 42 U.S.C.

4371 et seq.); and Executive Order

11514, Protection and Enhancement of

Environmental Quality (March 5, 1970),

as amended by Executive Order 11991,

Relating to the Protection and

Enhancement of Environmental Quality

(May 24, 1977). The regulations in this

subchapter apply to the whole of section

102(2) of NEPA. The provisions of the

Act and the regulations in this

subchapter must be read together as a

whole to comply with the Act.

(b) Review of NEPA compliance. It is

the Council’s intention that judicial

review of agency compliance with the

regulations in this subchapter not occur

before an agency has issued the record

of decision or taken other final agency

action, except with respect to claims

brought by project sponsors related to

deadlines under section 107(g)(3) of

NEPA. It is also the Council’s intention

that minor, non-substantive errors that

have no effect on agency decision

making shall be considered harmless

and shall not invalidate an agency

action.

(c) Severability. The sections of this

subchapter are separate and severable

from one another. If any section or

portion therein is stayed or determined

to be invalid, or the applicability of any

section to any person or entity is held

invalid, it is the Council’s intention that

the validity of the remainder of those

parts shall not be affected, with the

remaining sections to continue in effect.

§ 1500.4 Concise and informative

environmental documents.

Agencies shall prepare analytical,

concise, and informative environmental

documents by:

(a) Meeting appropriate page limits

(§§ 1501.5(g) and 1502.7 of this

subchapter).

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(b) Discussing only briefly issues

other than important ones (e.g.,

§ 1502.2(b) of this subchapter).

(c) Writing environmental documents

in plain language (e.g., § 1502.8 of this

subchapter).

(d) Following a clear format for

environmental impact statements

(§ 1502.10 of this subchapter).

(e) Emphasizing the portions of the

environmental document that are most

useful to decision makers and the public

(e.g., §§ 1502.14, 1502.15, and 1502.16

of this subchapter) and reducing

emphasis on background material (e.g.,

§ 1502.1 of this subchapter).

(f) Using the scoping process to

identify important environmental issues

deserving of study and to deemphasize

unimportant issues, narrowing the

scope of the environmental impact

statement process (or, where an agency

elects to do so, the environmental

assessment process) accordingly

(§§ 1501.9 and 1502.4 of this

subchapter).

(g) Summarizing the environmental

impact statement (§ 1502.12 of this

subchapter).

(h) Using programmatic

environmental documents and tiering

from documents of broad scope to those

of narrower scope, to eliminate

repetitive discussions of the same issues

(§ 1501.11 of this subchapter).

(i) Incorporating by reference

(§ 1501.12 of this subchapter).

(j) Integrating NEPA requirements

with other environmental review and

consultation requirements (§ 1502.24 of

this subchapter).

(k) Requiring that comments be as

specific as possible (§ 1503.3 of this

subchapter).

(l) Attaching and publishing only

changes to the draft environmental

impact statement, rather than rewriting

and publishing the entire statement,

when changes are minor (§ 1503.4(c) of

this subchapter).

(m) Eliminating duplication with

State, Tribal, and local procedures, by

providing for joint preparation of

environmental documents where

practicable (§ 1506.2 of this subchapter),

and with other Federal procedures, by

providing that an agency may adopt

appropriate environmental documents

prepared by another Federal agency

(§ 1506.3 of this subchapter).

(n) Combining environmental

documents with other documents

(§ 1506.4 of this subchapter).

§ 1500.5 Efficient process.

Agencies shall improve efficiency of

their NEPA processes by:

(a) Using categorical exclusions to

define categories of actions that

normally do not have a significant effect

on the human environment (§ 1501.4 of

this subchapter) and therefore do not

require preparation of an environmental

assessment or environmental impact

statement.

(b) Using a finding of no significant

impact when an action not otherwise

excluded will not have a significant

effect on the human environment

(§ 1501.6 of this subchapter) and

therefore does not require preparation of

an environmental impact statement.

(c) Integrating the NEPA process into

early planning (§ 1501.2 of this

subchapter).

(d) Engaging in interagency

cooperation before or during the

preparation of an environmental

assessment or environmental impact

statement, rather than waiting to submit

comments on a completed document

(§§ 1501.7 and 1501.8 of this

subchapter).

(e) Ensuring the swift and fair

resolution of lead agency disputes

(§ 1501.7 of this subchapter).

(f) Using the scoping process for early

identification of the important issues

that require detailed analysis (§ 1502.4

of this subchapter).

(g) Meeting appropriate deadlines for

the environmental assessment and

environmental impact statement

processes (§ 1501.10 of this subchapter).

(h) Preparing environmental

documents early in the process (§ 1502.5

and § 1501.5(d) of this subchapter).

(i) Integrating NEPA requirements

with other environmental review and

consultation requirements (§ 1502.24 of

this subchapter).

(j) Eliminating duplication with State,

Tribal, and local procedures by

providing for joint preparation of

environmental documents where

practicable (§ 1506.2 of this subchapter)

and with other Federal procedures by

providing that agencies may jointly

prepare or adopt appropriate

environmental documents prepared by

another agency (§ 1506.3 of this

subchapter).

(k) Combining environmental

documents with other documents

(§ 1506.4 of this subchapter).

(l) Using accelerated procedures for

proposals for legislation (§ 1506.8 of this

subchapter).

§ 1500.6 Agency authority.

Each agency shall interpret the

provisions of the Act as a supplement to

its existing authority and as a mandate

to view policies and missions in the

light of the Act’s national environmental

objectives, to the extent consistent with

its existing authority. Agencies shall

review their policies, procedures, and

regulations accordingly and revise them

as necessary to ensure full compliance

with the purposes and provisions of the

Act and the regulations in this

subchapter. The phrase ‘‘to the fullest

extent possible’’ in section 102 of NEPA

means that each agency of the Federal

Government shall comply with that

section unless an agency activity,

decision, or action is exempted from

NEPA by law or compliance with NEPA

is impossible.

PART 1501—NEPA AND AGENCY

PLANNING

§ 1501.1 Purpose.

The purposes of this part include:

(a) Integrating the NEPA process into

agency planning at an early stage to

facilitate appropriate consideration of

NEPA’s policies, promote an efficient

process, and reduce delay.

(b) Providing for early engagement in

the environmental review process with

other agencies, State, Tribal, and local

governments, and affected or interested

persons, entities, and communities

before a decision is made.

(c) Providing for the swift and fair

resolution of interagency disputes.

(d) Identifying at an early stage the

important environmental issues

deserving of study, and deemphasizing

unimportant issues, narrowing the

scope of the environmental review and

enhancing efficiency accordingly.

(e) Promoting accountability by

establishing appropriate deadlines and

requiring schedules.

§ 1501.2 Apply NEPA early in the process.

(a) Agencies should integrate the

NEPA process with other planning and

authorization processes at the earliest

reasonable time to ensure that agencies

consider environmental impacts in their

planning and decisions, to avoid delays

later in the process, and to head off

potential conflicts.

(b) Each agency shall:

(1) Comply with the mandate of

section 102(2)(A) of NEPA to utilize a

systematic, interdisciplinary approach,

which will ensure the integrated use of

the natural and social sciences and the

environmental design arts in planning

and in decision making that may have

an impact on the human environment,

as specified by § 1507.2(a) of this

subchapter.

(2) Identify environmental effects and

values in adequate detail so the decision

maker can appropriately consider such

effects and values alongside economic

and technical analyses. Whenever

practicable, agencies shall review and

publish environmental documents and

appropriate analyses at the same time as

other planning documents.

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(3) Study, develop, and describe

appropriate alternatives to

recommended courses of action in any

proposal that involves unresolved

conflicts concerning alternative uses of

available resources, as provided by

section 102(2)(H) of NEPA.

(4) Provide for actions subject to

NEPA that are planned by applicants or

other non-Federal entities before

Federal involvement so that:

(i) Policies or designated staff are

available to advise potential applicants

of studies or other information

foreseeably required for later Federal

action.

(ii) The Federal agency consults early

with appropriate State, Tribal, and local

governments and with interested

individuals and organizations when

their involvement is reasonably

foreseeable.

(iii) The Federal agency commences

its NEPA process at the earliest

reasonable time (§§ 1501.5(d) and

1502.5(b) of this subchapter).

§ 1501.3 Determine the appropriate level of

NEPA review.

(a) Applicability. As a threshold

determination, an agency shall assess

whether NEPA applies to the proposed

activity or decision. In assessing

whether NEPA applies, Federal agencies

should determine:

(1) Whether the proposed activity or

decision is exempted from NEPA by

law;

(2) Whether compliance with NEPA

would clearly and fundamentally

conflict with the requirements of

another provision of law;

(3) Whether statutory provisions

applicable to the agency’s proposed

activity or decision make compliance

with NEPA impossible; and

(4) Whether the proposed activity or

decision is a major Federal action,

including whether:

(i) The proposed activity or decision

is a final agency action within the

meaning of such term in chapter 5 of

title 5, United States Code

(§ 1508.1(u)(2)(viii)); or

(ii) The proposed activity or decision

is a non-discretionary action with

respect to which such agency does not

have authority to take environmental

factors into consideration in

determining whether to take the

proposed action (§ 1508.1(u)(2)(vi)).

(b) Scope of action and analysis. If the

agency determines that NEPA applies,

the agency shall consider the scope of

the proposed action and its potential

effects to inform the agency’s

determination of the appropriate level of

NEPA review. The agency shall

evaluate, in a single review, proposals

or parts of proposals that are related

closely enough to be, in effect, a single

course of action. The agency also shall

consider whether there are connected

actions, which are closely related

Federal activities or decisions that

should be considered in the same NEPA

review that:

(1) Automatically trigger other actions

that may require NEPA review;

(2) Cannot or will not proceed unless

other actions are taken previously or

simultaneously; or

(3) Are interdependent parts of a

larger action and depend on the larger

action for their justification.

(c) Levels of NEPA review. In

assessing the appropriate level of NEPA

review, agencies may make use of any

reliable data source and are not required

to undertake new scientific or technical

research unless it is essential to a

reasoned choice among alternatives, and

the overall costs and timeframe of

obtaining it are not unreasonable.

Agencies should determine whether the

proposed action:

(1) Normally does not have significant

effects and is categorically excluded

(§ 1501.4);

(2) Is not likely to have significant

effects or the significance of the effects

is unknown and is therefore appropriate

for an environmental assessment

(§ 1501.5); or

(3) Is likely to have significant effects

and is therefore appropriate for an

environmental impact statement (part

1502 of this subchapter).

(d) Significance determination—

context and intensity. In considering

whether the effects of the proposed

action are significant, agencies shall

examine both the context of an action

and the intensity of the effects.

(1) Agencies shall analyze the

significance of an action in several

contexts. Agencies should consider the

characteristics of the relevant

geographic area, such as proximity to

unique or sensitive resources or

vulnerable communities. Depending on

the scope of the action, agencies should

consider the potential global, national,

regional, and local contexts as well as

the duration, including short-and long-

term effects.

(2) Agencies shall analyze the

intensity of effects considering the

following factors, as applicable and in

relationship to one another:

(i) Effects may be beneficial or

adverse. However, only actions with

significant adverse effects require an

environmental impact statement. A

significant adverse effect may exist even

if the agency considers that on balance

the effects of the action will be

beneficial. Agencies should consider the

duration of effects; for instance, a

proposed action may have short-term

adverse effects but long-term beneficial

effects.

(ii) The degree to which the proposed

action may adversely affect public

health and safety.

(iii) The degree to which the proposed

action may adversely affect unique

characteristics of the geographic area

such as historic or cultural resources,

park lands, Tribal sacred sites, prime

farmlands, wetlands, wild and scenic

rivers, or ecologically critical areas.

(iv) Whether the action may violate

relevant Federal, State, Tribal, or local

laws or other requirements or be

inconsistent with Federal, State, Tribal,

or local policies designed for the

protection of the environment.

(v) The degree to which the potential

effects on the human environment are

highly uncertain.

(vi) The degree to which the action

may relate to other actions with adverse

environmental effects, including actions

that are individually insignificant but

significant in the aggregate. Significance

cannot be avoided by terming an action

temporary that is not temporary in fact

or by segmenting it into small

component parts.

(vii) The degree to which the action

may adversely affect resources listed or

eligible for listing in the National

Register of Historic Places.

(viii) The degree to which the action

may adversely affect an endangered or

threatened species or its habitat,

including habitat that has been

determined to be critical under the

Endangered Species Act of 1973.

(ix) The degree to which the action

may have disproportionate and adverse

effects on communities with

environmental justice concerns.

(x) The degree to which the action

may adversely affect rights of Tribal

Nations that have been reserved through

treaties, statutes, or Executive Orders.

§ 1501.4 Categorical exclusions.

(a) For efficiency and consistent with

§ 1507.3(c)(8)(ii) of this subchapter,

agencies shall establish categorical

exclusions for categories of actions that

normally do not have a significant effect

on the human environment,

individually or in the aggregate, and

therefore do not require preparation of

an environmental assessment or

environmental impact statement unless

extraordinary circumstances exist that

make application of the categorical

exclusion inappropriate, consistent with

paragraph (b) of this section. Agencies

may establish categorical exclusions

individually or jointly with other

agencies.

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(b) If an agency determines that a

categorical exclusion identified in its

agency NEPA procedures covers a

proposed action, the agency shall

evaluate the action for extraordinary

circumstances in which a normally

excluded action may have a significant

effect.

(1) If an extraordinary circumstance

exists, the agency nevertheless may

apply the categorical exclusion if the

agency conducts an analysis and

determines that the proposed action

does not in fact have the potential to

result in significant effects

notwithstanding the extraordinary

circumstance or the agency modifies the

action to address the extraordinary

circumstance. In such cases, the agency

shall document such determination and

should publish it on the agency’s

website or otherwise make it publicly

available.

(2) If the agency cannot categorically

exclude the proposed action, the agency

shall prepare an environmental

assessment or environmental impact

statement, as appropriate.

(c) In addition to the process for

establishing categorical exclusions

under § 1507.3(c)(8) of this subchapter,

agencies may establish categorical

exclusions through a land use plan, a

decision document supported by a

programmatic environmental impact

statement or programmatic

environmental assessment, or other

equivalent planning or programmatic

decision, so long as the agency:

(1) Provides the Council an

opportunity to review and comment

prior to public comment;

(2) Provides notification and an

opportunity for public comment;

(3) Substantiates its determination

that the category of actions normally

does not have significant effects,

individually or in the aggregate;

(4) Identifies extraordinary

circumstances;

(5) Establishes a process for

determining that a categorical exclusion

applies to a specific action or actions in

the absence of extraordinary

circumstances, or, where extraordinary

circumstances are present, for

determining the agency may apply the

categorical exclusion consistent with

(b)(1) of this section; and

(6) Publishes a list of all categorical

exclusions established through these

mechanisms on its website.

(d) Categorical exclusions established

consistent with paragraph (c) of this

section or § 1507.3(c)(8) may:

(1) Cover specific geographic areas or

areas that share common characteristics,

e.g., habitat type;

(2) Have a limited duration;

(3) Include mitigation measures that,

in the absence of extraordinary

circumstances, will ensure that any

environmental effects are not

significant, so long as a process is

established for monitoring and

enforcing any required mitigation

measures, including through the

suspension or revocation of the relevant

agency action; or

(4) Provide criteria that would cause

the categorical exclusion to expire

because the agency’s determination that

the category of action does not have

significant effects, individually or in the

aggregate, is no longer applicable,

including, as appropriate, because:

(i) The number of individual actions

covered by the categorical exclusion

exceeds a specific threshold;

(ii) Individual actions covered by the

categorical exclusion are too close to

one another in proximity or time; or

(iii) Environmental conditions or

information upon which the agency’s

determination was based have changed.

(e) An agency may apply a categorical

exclusion listed in another agency’s

NEPA procedures to a proposed action

or a category of proposed actions

consistent with this paragraph. The

agency shall:

(1) Identify the categorical exclusion

listed in another agency’s NEPA

procedures that covers its proposed

action or a category of proposed actions;

(2) Consult with the agency that

established the categorical exclusion to

ensure that the proposed application of

the categorical exclusion is appropriate;

(3) Evaluate the proposed action or

category of proposed actions for

extraordinary circumstances, consistent

with paragraph (b) of this section;

(4) Provide public notice of the

categorical exclusion that the agency

plans to use for the proposed action or

category of proposed actions; and

(5) Publish the documentation of the

application of the categorical exclusion.

§ 1501.5 Environmental assessments.

(a) An agency shall prepare an

environmental assessment for a

proposed action that is not likely to

have significant effects or when the

significance of the effects is unknown

unless the agency finds that a

categorical exclusion (§ 1501.4) is

applicable or has decided to prepare an

environmental impact statement.

(b) An agency may prepare an

environmental assessment on any action

to assist agency planning and decision

making.

(c) An environmental assessment

shall:

(1) Briefly provide sufficient evidence

and analysis for determining whether to

prepare an environmental impact

statement or a finding of no significant

impact;

(2) Briefly discuss the:

(i) Purpose and need for the proposed

agency action;

(ii) Alternatives as required by section

102(2)(H) of NEPA; and

(iii) Environmental effects of the

proposed action and alternatives;

(3) List the Federal agencies; State,

Tribal, and local governments and

agencies; or persons consulted; and

(4) Provide a unique identification

number for tracking purposes, which

the agency shall reference on all

associated environmental review

documents prepared for the proposed

action.

(d) For applications to the agency

requiring an environmental assessment,

the agency shall commence the

environmental assessment as soon as

practicable after receiving the

application.

(e) If an agency publishes a draft

environmental assessment, the agency

shall invite public comment and

consider those comments in preparing

the final environmental assessment.

(f) Agencies shall involve the public,

State, Tribal, and local governments,

relevant agencies, and any applicants, to

the extent practicable in preparing

environmental assessments (see

§ 1501.9).

(g) The text of an environmental

assessment shall not exceed 75 pages,

not including any citations or

appendices.

(h) Agencies may supplement

environmental assessments if a major

Federal action remains to occur, and the

agency determines supplementation is

appropriate. Agencies may reevaluate an

environmental assessment or otherwise

document a finding that changes to the

proposed action or new circumstances

or information relevant to

environmental concerns are not

substantial, or the underlying

assumptions of the analysis remain

valid.

(i) Agencies generally should apply

the provisions of §§ 1502.21 and

1502.23 to environmental assessments.

(j) As appropriate to improve

efficiency and effectiveness of

environmental assessments, agencies

may apply the other provisions of part

1502 and 1503 of this subchapter,

including §§ 1502.4, 1502.22, 1502.24,

and 1503.4, to environmental

assessments.

§ 1501.6 Findings of no significant impact.

(a) An agency shall prepare a finding

of no significant impact if the agency

determines, based on the environmental

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assessment, not to prepare an

environmental impact statement

because the proposed action will not

have significant effects, or a mitigated

finding of no significant impact because

the proposed action will not have

significant effects due to mitigation.

(1) The agency shall make the finding

of no significant impact available to the

affected public as specified in

§ 1501.9(d)(2) of this subchapter.

(2) In the following circumstances, the

agency shall make the finding of no

significant impact available for public

review for 30 days before the agency

makes its final determination whether to

prepare an environmental impact

statement and before the action may

begin:

(i) The proposed action is or is closely

similar to one that normally requires the

preparation of an environmental impact

statement under the procedures adopted

by the agency pursuant to § 1507.3 of

this subchapter; or

(ii) The nature of the proposed action

is one without precedent.

(b) The finding of no significant

impact shall include the environmental

assessment or incorporate it by

reference and shall note any other

environmental documents related to it

(§ 1502.4(d)(3)). If the environmental

assessment is included, the finding need

not repeat any of the discussion in the

assessment but may incorporate it by

reference.

(c) The finding of no significant

impact shall state the authority for any

mitigation that the agency has adopted

and any applicable monitoring or

enforcement provisions. If the agency

finds no significant effects based on

mitigation, the mitigated finding of no

significant impact shall state the

enforceable mitigation requirements or

commitments that will be undertaken

and the authority to enforce them, such

as permit conditions, agreements, or

other measures. In addition, the agency

shall prepare a monitoring and

compliance plan for any mitigation the

agency relies on as a component of the

proposed action consistent with

§ 1505.3(c) of this subchapter.

§ 1501.7 Lead agency.

(a) A lead agency shall supervise the

preparation of an environmental impact

statement or environmental assessment

if more than one Federal agency either:

(1) Proposes or is involved in the

same action; or

(2) Is involved in a group of actions

directly related to each other because of

their functional interdependence or

geographical proximity.

(b) Federal, State, Tribal, or local

agencies may serve as a joint lead

agency to prepare an environmental

impact statement or environmental

assessment (§ 1506.2 of this subchapter).

A joint lead agency shall jointly fulfill

the role of a lead agency.

(c) If an action falls within the

provisions of paragraph (a) of this

section, the participating Federal

agencies shall determine, by letter or

memorandum, which agencies will be

lead or joint lead agencies, and the lead

agency shall determine which agencies

will be cooperating agencies. The

agencies shall resolve the lead agency

question so as not to cause delay. If

there is disagreement among the

agencies, the following factors (which

are listed in order of descending

importance) shall determine lead agency

designation:

(1) Magnitude of agency’s

involvement;

(2) Project approval or disapproval

authority;

(3) Expertise concerning the action’s

environmental effects;

(4) Duration of agency’s involvement;

and

(5) Sequence of agency’s involvement.

(d) Any Federal, State, Tribal, or local

agency or individual substantially

affected by the absence of a lead agency

designation, may make a written request

to the senior agency officials of the

potential lead agencies that a lead

agency be designated. An agency that

receives a request under this paragraph

shall transmit such request to each

participating Federal agency and to the

Council.

(e) If Federal agencies are unable to

agree on which agency will be the lead

agency or if the procedure described in

paragraph (c) of this section has not

resulted in a lead agency designation

within 45 days of the written request to

the senior agency officials, any of the

agencies or individuals concerned may

file a request with the Council asking it

to determine which Federal agency shall

be the lead agency. The Council shall

transmit a copy of the request to each

potential lead agency. The request shall

consist of:

(1) A precise description of the nature

and extent of the proposed action; and

(2) A detailed statement of why each

potential lead agency should or should

not be the lead agency under the criteria

specified in paragraph (c) of this

section.

(f) Any potential lead agency may file

a response no later than 20 days after a

request is filed with the Council. As

soon as possible, but not later than 40

days after receiving the request and all

responses to it, the Council shall

designate which Federal agency will be

the lead agency and which other Federal

agencies will be cooperating agencies.

(g) To the extent practicable, if a

proposal will require action by more

than one Federal agency and the lead

agency determines that it requires

preparation of an environmental impact

statement, the lead and cooperating

agencies shall evaluate the proposal in

a single environmental impact statement

and shall issue, except where

inappropriate or inefficient, a joint

record of decision. To the extent

practicable, if a proposal will require

action by more than one Federal agency

and the lead agency determines that it

requires preparation of an

environmental assessment, the lead and

cooperating agencies shall evaluate the

proposal in a single environmental

assessment and issue a joint finding of

no significant impact or jointly

determine to prepare an environmental

impact statement.

(h) With respect to cooperating

agencies, the lead agency shall:

(1) Request the participation of each

cooperating agency in the NEPA process

at the earliest practicable time;

(2) Consider any analysis or proposal

created by a cooperating agency and, to

the maximum extent practicable, use the

environmental analysis and information

provided by cooperating agencies;

(3) Meet with a cooperating agency at

the latter’s request; and

(4) Determine the purpose and need,

and alternatives in consultation with

any cooperating agency.

§ 1501.8 Cooperating agencies.

(a) The purpose of this section is to

emphasize agency cooperation early in

the NEPA process. Upon request of the

lead agency, any Federal agency with

jurisdiction by law shall be a

cooperating agency. In addition, upon

request of the lead agency, any other

Federal agency with special expertise

with respect to any environmental issue

may be a cooperating agency. A State,

Tribal, or local agency of similar

qualifications may become a

cooperating agency by agreement with

the lead agency. Relevant special

expertise may include Indigenous

Knowledge. An agency may request that

the lead agency designate it a

cooperating agency, and a Federal

agency may appeal a denial of its

request to the Council, in accordance

with § 1501.7(e).

(b) Each cooperating agency shall:

(1) Participate in the NEPA process at

the earliest practicable time.

(2) Participate in the scoping process

(described in § 1502.4).

(3) On request of the lead agency,

assume responsibility for developing

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information and preparing

environmental analyses, including

portions of the environmental impact

statement or environmental assessment

concerning which the cooperating

agency has special expertise.

(4) On request of the lead agency,

make available staff support to enhance

the lead agency’s interdisciplinary

capability.

(5) Normally use its own funds. To

the extent available funds permit, the

lead agency shall fund those major

activities or analyses it requests from

cooperating agencies. Potential lead

agencies shall include such funding

requirements in their budget requests.

(6) Consult with the lead agency in

developing the schedule (§ 1501.10),

meet the schedule, and elevate, as soon

as practicable, to the senior agency

official of the lead agency any issues

relating to purpose and need,

alternatives, or other issues that may

affect any agencies’ ability to meet the

schedule.

(7) Meet the lead agency’s schedule

for providing comments.

(8) To the maximum extent

practicable, jointly issue environmental

documents with the lead agency.

(c) In response to a lead agency’s

request for assistance in preparing the

environmental documents (described in

paragraph (b)(3), (4), or (5) of this

section), a cooperating agency may reply

that other program commitments

preclude any involvement or the degree

of involvement requested in the action

that is the subject of the environmental

impact statement or environmental

assessment. The cooperating agency

shall submit a copy of this reply to the

Council and the senior agency official of

the lead agency.

§ 1501.9 Public and governmental

engagement.

(a) Purpose. Agencies conduct public

engagement to inform the public of an

agency’s proposed action, allow for

meaningful engagement during the

NEPA process, and ensure decision

makers are informed by the views of the

public. Agencies conduct governmental

engagement to identify the potentially

affected Federal, State, Tribal, and local

governments, invite them to serve as

cooperating agencies, as appropriate,

and ensure that participating agencies

have opportunities to engage in the

environmental review process, as

appropriate.

(b) Responsibility. Agencies shall

determine the appropriate methods of

public and governmental engagement.

For environmental impact statements, in

addition to the requirements of this

section, agencies also shall comply with

the requirements for scoping set forth in

§ 1502.4 of this subchapter.

(c) Outreach. The lead agency should:

(1) Invite the participation of likely

affected Federal, State, Tribal, and local

agencies and governments, as early as

practicable, including, as appropriate, as

cooperating agencies under § 1501.8 of

this subchapter;

(2) Conduct early engagement with

likely affected or interested members of

the public (including those who might

not be in accord with the action), unless

there is a limited exception under

§ 1507.3(d)(3) of this subchapter; and

(3) Consider what methods of

outreach and notification are necessary

and appropriate based on the likely

affected entities; the scope, scale, and

complexity of the proposed action and

alternatives; the degree of public

interest; and other relevant factors.

When selecting appropriate methods for

providing public notification, agencies

shall consider the ability of affected

persons and agencies to access

electronic media and the primary

language of affected persons.

(d) Notification. Agencies shall:

(1) Publish notification of proposed

actions they are analyzing through an

environmental impact statement.

(2) Provide public notification of

NEPA-related hearings, public meetings,

and other opportunities for public

engagement, and, as appropriate, the

availability of environmental documents

to inform those persons and agencies

who may be interested or affected by

their proposed actions.

(i) In all cases, the agency shall notify

those who have requested notification

on an individual action.

(ii) In the case of an action with

effects of national concern, notice shall

include publication in the Federal

Register. An agency also may notify

entities and persons who have requested

regular notification.

(iii) In the case of an action with

effects primarily of local concern, the

notification may include distribution to

or through:

(A) State, Tribal, and local

governments and agencies that may be

interested or affected by the proposed

action.

(B) Following the affected State or

Tribe’s public notification procedures

for comparable actions.

(C) Publication in local newspapers

having general circulation.

(D) Other local media.

(E) Potentially interested community

organizations including small business

associations.

(F) Publication in newsletters that

may be expected to reach potentially

interested persons.

(G) Direct mailing to owners and

occupants of nearby or affected

property.

(H) Posting of notification on- and off-

site in the area where the action is to be

located.

(I) Electronic media (e.g., a project or

agency website, dashboard, email list, or

social media). Agencies should establish

email notification lists or similar

methods for the public to easily request

electronic notifications for a proposed

action.

(3) Make environmental impact

statements, the comments received, and

any underlying documents available to

the public pursuant to the provisions of

the Freedom of Information Act, as

amended (5 U.S.C. 552).

(e) Public meetings and hearings.

Agencies may hold or sponsor public

hearings, public meetings, or other

opportunities for public engagement

whenever appropriate or in accordance

with statutory or regulatory

requirements or applicable agency

NEPA procedures. Agencies may

conduct public hearings and public

meetings by means of electronic

communication except where another

format is required by law. When

determining the format for a public

hearing or public meeting, agencies

should consider the needs of affected

communities. When accepting

comments for electronic or virtual

public hearings or meetings, agencies

shall allow the public to submit

comments electronically, by regular

mail, or by other appropriate methods.

(f) Agency procedures. Agencies shall

make diligent efforts to engage the

public in preparing and implementing

their NEPA procedures (§ 1507.3 of this

subchapter).

§ 1501.10 Deadlines and schedule for the

NEPA process.

(a) To ensure that agencies conduct

sound NEPA reviews as efficiently and

expeditiously as practicable, Federal

agencies shall set deadlines and

schedules appropriate to individual

actions or types of actions consistent

with this section and the time intervals

required by § 1506.10 of this subchapter.

Where applicable, the lead agency shall

establish the schedule and make any

necessary updates to the schedule in

consultation with and seek the

concurrence of joint lead, cooperating,

and participating agencies, and in

consultation with project sponsors or

applicants.

(b) To ensure timely decision making,

agencies shall complete:

(1) Environmental assessments within

1 year, unless the lead agency extends

the deadline in writing and in

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consultation with any applicant or

project sponsor, and establishes a new

deadline that provides only so much

additional time as is necessary to

complete the environmental assessment.

(2) Environmental impact statements

within 2 years, unless the lead agency

extends the deadline in writing and in

consultation with any applicant or

project sponsor and establishes a new

deadline that provides only so much

additional time as is necessary to

complete the environmental impact

statement.

(3) The deadlines in paragraphs (b)(1)

and (b)(2) of this section are measured

from the sooner of, as applicable:

(i) the date on which the agency

determines that NEPA requires an

environmental impact statement or

environmental assessment for the

proposed action;

(ii) the date on which the agency

notifies an applicant that the

application to establish a right-of-way

for the proposed action is complete; and

(iii) the date on which the agency

issues a notice of intent for the proposed

action.

(4) The lead agency shall annually

submit the report to Congress on missed

deadlines for environmental

assessments and environmental impact

statements required by section 107(h) of

NEPA.

(c) To facilitate predictability, the lead

agency shall develop a schedule for

completion of environmental impact

statements and environmental

assessments as well as any

authorizations required to carry out the

action. The lead agency shall set

milestones for all environmental

reviews, permits, and authorizations

required for implementation of the

action, in consultation with any project

sponsor or applicant and in consultation

with and seek the concurrence of all

joint lead, cooperating, and

participating agencies, as soon as

practicable. Schedules may vary

depending on the type of action and in

consideration of other factors in

paragraph (d). The lead agency should

develop a schedule that is based on its

expertise reviewing similar types of

actions under NEPA. If the lead agency

or any participating agency anticipates

that a milestone, including those for a

review, permit, or authorization, will

not be completed, it shall notify the

agency responsible for the milestone or

issuance of the review, permit, or

authorization and the lead agency, as

applicable, and request that they take

appropriate measures to comply with

the schedule. As soon as practicable, the

lead and any other agency affected by a

potentially missed milestone shall

elevate any unresolved disputes

contributing to the missed milestone to

the appropriate officials of the agencies

responsible for the missed milestone, to

ensure timely resolution within the

deadlines for the individual action.

(d) The lead agency may consider the

following factors in determining the

schedule and deadlines:

(1) Potential for environmental harm.

(2) Size of the proposed action.

(3) State of the art of analytic

techniques.

(4) Degree of public need for the

proposed action, including the

consequences of delay.

(5) Number of persons and agencies

affected.

(6) Availability of relevant

information.

(7) Degree to which a substantial

dispute exists as to the size, location,

nature, or consequences of the proposed

action and its effects.

(8) Time limits imposed on the agency

by law, regulation, or Executive Order.

(e) The schedule for environmental

impact statements shall include the

following milestones:

(1) The publication of the notice of

intent;

(2) The issuance of the draft

environmental impact statement;

(3) The public comment period on the

draft environmental impact statement,

consistent with § 1506.10 of this

subchapter;

(4) The issuance of the final

environmental impact statement; and

(5) The issuance of the record of

decision.

(f) The schedule for environmental

assessments shall include the following

milestones:

(1) Decision to prepare an

environmental assessment;

(2) Issuance of the draft

environmental assessment, where

applicable;

(3) The public comment period on the

draft environmental assessment,

consistent with § 1501.5 of this

subchapter, where applicable; and

(4) Issuance of the final

environmental assessment and decision

on whether to issue a finding of no

significant impact or issue a notice of

intent to prepare an environmental

impact statement.

(g) An agency may designate a person

(such as the project manager or a person

in the agency’s office with NEPA

responsibilities) to expedite the NEPA

process.

(h) For environmental impact

statements, agencies shall make

schedules for completing the NEPA

process publicly available, such as on

their website or another publicly

accessible platform. If agencies make

subsequent changes to the schedule,

agencies shall publish revisions to the

schedule and explain the basis for

substantial changes.

§ 1501.11 Programmatic environmental

documents and tiering.

(a) Programmatic environmental

document. Agencies may prepare

programmatic environmental

documents, which may be either

environmental impact statements or

environmental assessments, to evaluate

the environmental effects of policies,

programs, plans, or groups of related

activities. When agencies prepare such

documents, they should be relevant to

the agency decisions and timed to

coincide with meaningful points in

agency planning and decision making.

Agencies may use programmatic

environmental documents to conduct a

broad or holistic evaluation of effects or

policy alternatives; evaluate widely

applicable measures; or avoid

duplicative analysis for individual

actions by first considering relevant

issues at a broad or programmatic level.

(1) When preparing programmatic

environmental documents (including

proposals by more than one agency),

agencies may find it useful to evaluate

the proposal(s) in one of the following

ways:

(i) Geographically, including actions

occurring in the same general location,

such as body of water, region, or

metropolitan area.

(ii) Thematically or by sector,

including actions that have relevant

similarities, such as common timing,

impacts, alternatives, methods of

implementation, technology, media, or

subject matter.

(iii) By stage of technological

development, including Federal or

federally assisted research,

development, or demonstration

programs for new technologies that, if

applied, could significantly affect the

quality of the human environment.

Documents on such programs should be

completed before the program has

reached a stage of investment or

commitment to implementation likely to

determine subsequent development or

restrict later alternatives.

(2) Agency actions that may be

appropriate for programmatic

documents include:

(i) Programs, policies, or plans,

including land use or resource

management plans;

(ii) Regulations;

(iii) National or regional actions;

(iv) Actions that have multiple stages

or phases, and are part of an overall

plan or program; or

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(v) A group of projects or related types

of projects.

(3) Agencies should, as appropriate,

employ scoping (§ 1502.4 of this

subchapter), tiering (paragraph (b) of

this section), and other methods listed

in §§ 1500.4 and 1500.5 of this

subchapter, to describe the relationship

between the programmatic document

and related individual actions and to

avoid duplication and delay.

(b) Tiering. Where an existing

environmental impact statement,

environmental assessment, or

programmatic environmental document

is relevant to a later proposed action,

agencies may employ tiering. Tiering

allows subsequent tiered environmental

analysis to avoid duplication and focus

on issues, effects, or alternatives not

fully addressed in a programmatic

document, environmental impact

statement, or environmental assessment

prepared at an earlier phase or stage.

Agencies generally should tier their

environmental impact statements and

environmental assessments when it

would eliminate repetitive discussions

of the same issues, focus on the actual

issues ripe for decision, and exclude

from consideration issues already

decided.

(1) When an agency has prepared a

programmatic environmental review or

other environmental impact statement

or environmental assessment for a

program or policy and then prepares a

subsequent statement or assessment on

an action included within the program

or policy (such as a project- or site-

specific action), the tiered document

shall discuss the relationship between

the tiered document and the previous

review, and summarize and incorporate

by reference the issues discussed in the

broader document. The tiered document

shall concentrate on the issues specific

to the subsequent action, analyzing

site-, phase-, or stage-specific conditions

and reasonably foreseeable effects. The

agency shall provide for public

engagement opportunities consistent

with the type of environmental

document prepared and appropriate for

the location, phase, or stage. The tiered

document shall state where the earlier

document is publicly available.

(2) Tiering is appropriate when the

sequence from an environmental impact

statement or environmental assessment

is:

(i) From a programmatic, plan, or

policy environmental impact statement

or environmental assessment to a

program, plan, or policy statement or

assessment of lesser or narrower scope

or to a site-specific statement or

assessment.

(ii) From an environmental impact

statement or environmental assessment

on a specific action at an early stage

(such as need and site selection) to a

supplement (which is preferred) or a

subsequent statement or assessment at a

later stage (such as environmental

mitigation). Tiering in such cases is

appropriate when it helps the agency to

focus on the issues that are ripe for

decision and exclude from

consideration issues already decided or

not yet ripe.

(c) When an agency prepares a

programmatic environmental document

for which judicial review was available,

the agency may rely on the analysis

included in the programmatic

environmental document in a

subsequent environmental document for

related actions as follows:

(1) Within 5 years and without

additional review of the analysis in the

programmatic environmental document,

unless there are substantial new

circumstances or information about the

significance of adverse effects that bear

on the analysis; or

(2) After 5 years, so long as the agency

reevaluates the analysis in the

programmatic environmental document

and any underlying assumption to

ensure reliance on the analysis remains

valid. The agency shall briefly

document its reevaluation and explain

why the analysis remains valid

considering any new and substantial

information or circumstances.

§ 1501.12 Incorporation by reference into

environmental documents.

Agencies shall incorporate material,

such as planning studies, analyses, or

other relevant information, into

environmental documents by reference

when the effect will be to cut down on

bulk without impeding agency and

public review of the action. Agencies

shall cite the incorporated material in

the document, briefly describe its

content, and briefly explain the

relevance of the incorporated material to

the environmental document. Agencies

shall not incorporate material by

reference unless it is reasonably

available for inspection, such as on a

publicly accessible website, by

potentially interested persons within

the time allowed for comment. Agencies

should provide digital references, such

as hyperlinks, to the incorporated

material or otherwise indicate how the

public can access the material for

inspection. Agencies shall not

incorporate by reference material based

on proprietary data that is not available

for review and comment.

PART 1502—ENVIRONMENTAL

IMPACT STATEMENT

§ 1502.1 Purpose of environmental impact

statement.

(a) The primary purpose of an

environmental impact statement

prepared pursuant to section 102(2)(C)

of NEPA is to serve as an action-forcing

device by ensuring agencies consider

the environmental effects of their action

in decision making, so that the policies

and goals defined in the Act are infused

into the ongoing programs and actions

of the Federal Government.

(b) Environmental impact statements

shall provide full and fair discussion of

significant effects and shall inform

decision makers and the public of

reasonable alternatives that would avoid

or minimize adverse effects or enhance

the quality of the human environment.

Agencies shall focus on important

environmental issues and reasonable

alternatives and shall reduce paperwork

and the accumulation of extraneous

background data.

(c) Environmental impact statements

shall be concise, clear, and to the point,

and shall be supported by evidence that

the agency has made the necessary

environmental analyses. An

environmental impact statement is more

than a disclosure document. Federal

agencies shall use environmental impact

statements in conjunction with other

relevant material to plan actions and

make decisions.

§ 1502.2 Implementation.

To achieve the purposes set forth in

§ 1502.1 agencies shall prepare

environmental impact statements in the

following manner:

(a) Environmental impact statements

shall not be encyclopedic.

(b) Environmental impact statements

shall discuss effects in proportion to

their significance. There shall be only

brief discussion of other than important

issues. As in an environmental

assessment and finding of no significant

impact, there should be only enough

discussion to show why more study is

not warranted.

(c) Environmental impact statements

shall be analytical, concise, and no

longer than necessary to comply with

NEPA and with the regulations in this

subchapter. Length should be

proportional to potential environmental

effects and the scope and complexity of

the action.

(d) Environmental impact statements

shall state how alternatives considered

in them and decisions based on them

will or will not achieve the

requirements of sections 101 and 102(1)

of NEPA, the regulations in this

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subchapter, and other environmental

laws and policies.

(e) The range of alternatives discussed

in environmental impact statements

shall encompass those to be considered

by the decision maker.

(f) Agencies shall not commit

resources prejudicing the selection of

alternatives before making a decision

(see also § 1506.1 of this subchapter).

(g) Environmental impact statements

shall serve as the means of assessing the

environmental impact of proposed

agency actions, rather than justifying

decisions already made.

§ 1502.3 Statutory requirements for

environmental impact statements.

As required by section 102(2)(C) of

NEPA, environmental impact statements

are to be included in every Federal

agency recommendation or report on

proposals for legislation and other major

Federal actions significantly affecting

the quality of the human environment.

§ 1502.4 Scoping.

(a) Generally. Agencies shall use an

early and open process, consistent with

§ 1501.9 of this subchapter, to determine

the scope of issues for analysis in an

environmental impact statement,

including identifying the important

issues and eliminating from further

study unimportant issues. Scoping may

begin as soon as practicable after the

proposal for action is sufficiently

developed for agency consideration.

Scoping may include appropriate pre-

application procedures or work

conducted prior to publication of the

notice of intent (see §§ 1501.3 and

1501.9 of this subchapter).

(b) Scoping outreach. When preparing

an environmental impact statement,

agencies shall facilitate notification to

persons and agencies who may be

interested or affected by an agency’s

proposed action, consistent with

§ 1501.9 of this subchapter. As part of

the scoping process, the lead agency

may hold a scoping meeting or

meetings, publish scoping information,

or use other means to communicate

with those persons or agencies who may

be interested or affected, which the

agency may integrate with any other

early planning meeting.

(c) Inviting participation. As part of

the scoping process, and consistent with

§ 1501.9 of this subchapter, the lead

agency shall invite the participation of

likely affected Federal, State, Tribal, and

local agencies and governments, the

proponent of the action, and other likely

affected or interested persons (including

those who might not be in accord with

the action), unless there is a limited

exception under § 1507.3(d)(3) of this

subchapter.

(d) Additional scoping

responsibilities. As part of the scoping

process, the lead agency shall:

(1) Identify and eliminate from

detailed study the issues that are not

important or have been covered by prior

environmental review(s) (§§ 1501.12

and 1506.3 of this subchapter),

narrowing the discussion of these issues

in the environmental impact statement

to a brief presentation of why they will

not be important or providing a

reference to their coverage elsewhere.

(2) Allocate assignments for

preparation of the environmental impact

statement among the lead and

cooperating agencies, with the lead

agency retaining responsibility for the

statement.

(3) Indicate any public environmental

assessments and other environmental

impact statements that are being or will

be prepared and are related to but are

not part of the scope of the

environmental impact statement under

consideration.

(4) Identify other environmental

review, authorization, and consultation

requirements so the lead and

cooperating agencies may prepare other

required analyses and studies

concurrently and integrated with the

environmental impact statement, as

provided in § 1502.24 of this

subchapter.

(5) Indicate the relationship between

the timing of the preparation of

environmental analyses and the

agencies’ tentative planning and

decision-making schedule.

(e) Notice of intent. As soon as

practicable after determining that a

proposal is sufficiently developed to

allow for meaningful public comment

and requires an environmental impact

statement, the lead agency shall publish

a notice of intent to prepare an

environmental impact statement in the

Federal Register. In addition to the

Federal Register notice, an agency also

may publish notification in accordance

with § 1501.9 of this subchapter. The

notice shall include, as appropriate:

(1) The purpose and need for the

proposed action;

(2) A preliminary description of the

proposed action and alternatives the

environmental impact statement will

consider;

(3) A brief summary of expected

effects;

(4) Anticipated permits and other

authorizations;

(5) A schedule for the decision-

making process;

(6) A description of the public

scoping process, including any scoping

meeting(s);

(7) A request for comment on

alternatives and effects, as well as on

relevant information, studies, or

analyses with respect to the proposed

action;

(8) Contact information for a person

within the agency who can answer

questions about the proposed action and

the environmental impact statement;

(9) Identification of any cooperating

and participating agencies, and any

information that such agencies require

in the notice to facilitate their decisions

or authorizations that will rely upon the

resulting environmental impact

statement; and

(10) A unique identification number

for tracking purposes, which the agency

shall reference on all environmental

documents prepared for the proposed

action.

(f) Notices of withdrawal or

cancellation. If an agency withdraws,

cancels, or otherwise ceases the

consideration of a proposed action

before completing a final environmental

impact statement, the agency shall

publish a notice in the Federal Register.

(g) Revisions. An agency shall revise

the determinations made under

paragraphs (b), (c), and (d) of this

section if substantial changes are made

later in the proposed action, or if

important new circumstances or

information arise that bear on the

proposal or its effects.

§ 1502.5 Timing.

An agency should commence

preparation of an environmental impact

statement as close as practicable to the

time the agency is developing or

receives a proposal so that preparation

can be completed in time for the final

statement to be included in any

recommendation or report on the

proposal. The statement shall be

prepared early enough so that it can

serve as an important practical

contribution to the decision-making

process and will not be used to

rationalize or justify decisions already

made (§§ 1501.2 of this subchapter and

1502.2). For instance:

(a) For projects directly undertaken by

Federal agencies, the agency shall

prepare the environmental impact

statement at the feasibility analysis (e.g.,

go/no-go) stage and may supplement it

at a later stage, if necessary.

(b) For applications to the agency

requiring an environmental impact

statement, the agency shall commence

the statement as soon as practicable

after receiving the complete application.

Federal agencies should work together

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and with potential applicants and

applicable State, Tribal, and local

agencies and governments prior to

receipt of the application.

(c) For adjudication, the final

environmental impact statement shall

normally precede the final staff

recommendation and that portion of the

public hearing related to the impact

study. In appropriate circumstances, the

statement may follow preliminary

hearings designed to gather information

for use in the statement.

(d) For informal rulemaking, the draft

environmental impact statement shall

normally accompany the proposed rule.

§ 1502.6 Interdisciplinary preparation.

Agencies shall prepare environmental

impact statements using an

interdisciplinary approach that will

ensure the integrated use of the natural

and social sciences and the

environmental design arts (section

102(2)(A) of NEPA). The disciplines of

the preparers shall be appropriate to the

scope and issues identified in the

scoping process (§ 1502.4 of this

subchapter).

§ 1502.7 Page limits.

The text of final environmental

impact statements, not including

citations or appendices, shall not exceed

150 pages except for proposals of

extraordinary complexity, which shall

not exceed 300 pages.

§ 1502.8 Writing.

Agencies shall write environmental

impact statements in plain language and

should use, as relevant, appropriate

visual aids or charts so that decision

makers and the public can readily

understand such statements. Agencies

should employ writers of clear prose or

editors to write, review, or edit

statements, which shall be based upon

the analysis and supporting data from

the natural and social sciences and the

environmental design arts.

§ 1502.9 Draft, final, and supplemental

statements.

(a) Generally. Except for proposals for

legislation as provided in § 1506.8 of

this subchapter, agencies shall prepare

environmental impact statements in two

stages and, where necessary,

supplement them as provided in

paragraph (d)(1) of this section.

(b) Draft environmental impact

statements. Agencies shall prepare draft

environmental impact statements in

accordance with the scope decided

upon in the scoping process (§ 1502.4 of

this subchapter). The lead agency shall

work with the cooperating agencies and

shall obtain comments as required in

part 1503 of this subchapter. To the

fullest extent practicable, the draft

statement must meet the requirements

established for final statements in

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

regulations in this subchapter. If the

agency determines that a draft statement

is so inadequate as to preclude

meaningful analysis, the agency shall

prepare and publish a supplemental

draft of the appropriate portion. At

appropriate points in the draft

statement, the agency shall discuss all

major points of view on the

environmental effects of the

alternatives, including the proposed

action.

(c) Final environmental impact

statements. Final environmental impact

statements shall consider and respond

to comments as required in part 1503 of

this subchapter. At appropriate points

in the final statement, the agency shall

discuss any responsible opposing view

that was not adequately discussed in the

draft statement and shall indicate the

agency’s response to the issues raised.

(d) Supplemental environmental

impact statements. Agencies:

(1) Shall prepare supplements to

either draft or final environmental

impact statements if a major Federal

action remains to occur, and:

(i) The agency makes substantial

changes to the proposed action that are

relevant to environmental concerns; or

(ii) There are substantial or important

new circumstances or information

relevant to environmental concerns and

bearing on the proposed action or its

effects.

(2) May also prepare supplements

when the agency determines that the

purposes of the Act will be furthered by

doing so.

(3) Shall prepare, publish, and file a

supplement to a statement (exclusive of

scoping (§ 1502.4 of this subchapter)) as

a draft and final statement, as is

appropriate to the stage of the statement

involved, unless the Council approves

alternative procedures (§ 1506.12 of this

subchapter).

(e) Reevaluation. An agency may

reevaluate an environmental impact

statement and find that changes to the

proposed action or new circumstances

or information relevant to

environmental concerns are not

substantial or that the underlying

assumptions of the analysis remains

valid, and therefore do not require a

supplement under paragraph (d) of this

section. The agency should document

the finding consistent with its agency

NEPA procedures (§ 1507.3 of this

subchapter), or, if necessary, in a

finding of no significant impact

supported by an environmental

assessment.

§ 1502.10 Recommended format.

(a) Agencies shall use a format for

environmental impact statements that

will encourage good analysis and clear

presentation of the alternatives,

including the proposed action. Agencies

should use the following standard

format for environmental impact

statements unless the agency determines

that there is a more effective format for

communication:

(1) Cover (§ 1501.11);

(2) Summary (§ 1502.12);

(3) Table of contents;

(4) Purpose of and need for action

(§ 1502.13);

(5) Alternatives including the

proposed action (sections 102(2)(C)(iii)

and 102(2)(H) of NEPA) (§ 1502.14);

(6) Affected environment and

environmental consequences (especially

sections 102(2)(C)(i), (ii), (iv), and (v) of

NEPA) (§§ 1502.15 and 1502.16); and

(7) Appendices (§ 1502.19), including

the summary of scoping information

(§ 1502.17) and the list of preparers

(§ 1502.18).

(b) If an agency uses a different

format, it shall include paragraph (a) of

this section, as further described in

§§ 1502.11 through 1502.19, in any

appropriate format.

§ 1502.11 Cover.

The environmental impact statement

cover shall not exceed one page and

shall include:

(a) A list of the lead, joint lead and

any cooperating agencies;

(b) The title of the proposed action

that is the subject of the statement (and,

if appropriate, the titles of related

cooperating agency actions), together

with the State(s) and county(ies) (or

other jurisdiction(s), if applicable)

where the action is located;

(c) The name, address, and telephone

number of the person at the agency who

can supply further information;

(d) A designation of the statement as

a draft, final, or draft or final

supplement;

(e) A one-paragraph abstract of the

statement;

(f) The date by which the agency must

receive comments (computed in

cooperation with the Environmental

Protection Agency under § 1506.10 of

this subchapter); and

(g) The identification number

included in the notice of intent

(§ 1502.4(e)(10)).

§ 1502.12 Summary.

Each environmental impact statement

shall contain a summary that adequately

and accurately summarizes the

statement. The summary shall include

the major conclusions and summarize

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any disputed issues raised by agencies

and the public, any issues to be

resolved, and key differences among

alternatives, and identify the

environmentally preferable alternative

or alternatives. Agencies shall write the

summary in plain language and should

use, as relevant, appropriate visual aids

and charts. The summary normally

should not exceed 15 pages.

§ 1502.13 Purpose and need.

The environmental impact statement

shall include a statement that briefly

summarizes the underlying purpose and

need for the proposed agency action.

§ 1502.14 Alternatives including the

proposed action.

The alternatives section is the heart of

the environmental impact statement.

The alternatives section should identify

the reasonably foreseeable

environmental effects of the proposed

action and the alternatives in

comparative form based on the

information and analysis presented in

the sections on the affected environment

(§ 1502.15) and the environmental

consequences (§ 1502.16). In doing so,

the analysis should sharply define the

issues for the decision maker and the

public and provide a clear basis for

choice among options. In this section,

agencies shall:

(a) Rigorously explore and objectively

evaluate reasonable alternatives to the

proposed action, and, for alternatives

that the agency eliminated from detailed

study, briefly discuss the reasons for

their elimination. The agency need not

consider every conceivable alternative

to a proposed action; rather, it shall

consider a reasonable range of

alternatives that will foster informed

decision making. Agencies also may

include reasonable alternatives not

within the jurisdiction of the lead

agency.

(b) Discuss each alternative

considered in detail, including the

proposed action, so that reviewers may

evaluate their comparative merits.

(c) Include the no action alternative.

(d) Identify the agency’s preferred

alternative or alternatives, if one or

more exists, in the draft statement and

identify such alternative in the final

statement unless another law prohibits

the expression of such a preference.

(e) Include appropriate mitigation

measures not already included in the

proposed action or alternatives.

(f) Identify the environmentally

preferable alternative or alternatives.

The environmentally preferable

alternative will best promote the

national environmental policy

expressed in section 101 of NEPA by

maximizing environmental benefits,

such as addressing climate change-

related effects or disproportionate and

adverse effects on communities with

environmental justice concerns;

protecting, preserving, or enhancing

historic, cultural, Tribal, and natural

resources, including rights of Tribal

Nations that have been reserved through

treaties, statutes, or Executive Orders; or

causing the least damage to the

biological and physical environment.

The environmentally preferable

alternative may be the proposed action,

the no action alternative, or a reasonable

alternative.

§ 1502.15 Affected environment.

(a) The environmental impact

statement shall succinctly describe the

environment of the area(s) to be affected

or created by the alternatives under

consideration, including the reasonably

foreseeable environmental trends and

planned actions in the area(s).

(b) Agencies should use high-quality

information, including the best available

science and data, to describe reasonably

foreseeable environmental trends,

including anticipated climate-related

changes to the environment, and when

such information is lacking, provide

relevant information consistent with

§ 1502.21. This description of baseline

environmental conditions and

reasonably foreseeable trends should

inform the agency’s analysis of

environmental consequences and

mitigation measures (§ 1502.16).

(c) The environmental impact

statement may combine the description

of the affected environment with

evaluation of the environmental

consequences (§ 1502.16). The

description should be no longer than

necessary to understand the relevant

affected environment and the effects of

the alternatives. Data and analyses in a

statement shall be commensurate with

the importance of the effect, with less

important material summarized,

consolidated, or simply referenced.

Agencies shall avoid useless bulk in

statements and shall concentrate effort

and attention on important issues.

Verbose descriptions of the affected

environment are themselves no measure

of the adequacy of an environmental

impact statement.

§ 1502.16 Environmental consequences.

(a) The environmental consequences

section forms the scientific and analytic

basis for the comparisons under

§ 1502.14. It shall consolidate the

discussions of those elements required

by sections 102(2)(C)(i), (ii), (iv), and (v)

of NEPA that are within the scope of the

environmental impact statement and as

much of section 102(2)(C)(iii) of NEPA

as is necessary to support the

comparisons. This section should not

duplicate discussions in § 1502.14. The

discussion shall include:

(1) The reasonably foreseeable

environmental effects of the proposed

action and reasonable alternatives to the

proposed action and the significance of

those effects (§ 1501.3 of this

subchapter). The comparison of the

proposed action and reasonable

alternatives shall be based on the

discussion of the effects, focusing on the

significant or important effects. The no

action alternative should serve as the

baseline against which the proposed

action and other alternatives are

compared.

(2) Any reasonably foreseeable

adverse environmental effects that

cannot be avoided should the proposal

be implemented.

(3) An analysis of the effects of the no

action alternative, including any

adverse environmental effects.

(4) The relationship between short-

term uses of the human environment

and the maintenance and enhancement

of long-term productivity.

(5) Any irreversible or irretrievable

commitments of Federal resources that

would be involved in the proposal

should it be implemented.

(6) Possible conflicts between the

proposed action and the objectives of

Federal, regional, State, Tribal, and local

plans, policies, and controls for the area

concerned, including those addressing

climate change (§ 1506.2(d) of this

subchapter).

(7) Any reasonably foreseeable

climate change-related effects, including

the effects of climate change on the

proposed action and alternatives.

(8) Energy requirements and

conservation potential of various

alternatives and mitigation measures.

(9) Natural or depletable resource

requirements and conservation potential

of various alternatives and mitigation

measures.

(10) Any relevant risk reduction,

resiliency, or adaptation measures

incorporated into the proposed action or

alternatives, informed by relevant

science and data on the affected

environment and expected future

conditions.

(11) Urban quality, historic and

cultural resources, and the design of the

built environment, including the reuse

and conservation potential of various

alternatives and mitigation measures.

(12) Means to mitigate adverse

environmental impacts (if not fully

covered under § 1502.14(e)).

(13) Where applicable, economic and

technical considerations, including the

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economic benefits of the proposed

action.

(14) The potential for

disproportionate and adverse human

health and environmental effects on

communities with environmental justice

concerns.

(b) Economic or social effects by

themselves do not require preparation of

an environmental impact statement.

However, when the agency determines

that economic or social and natural or

physical environmental effects are

interrelated, the environmental impact

statement shall discuss these effects on

the human environment.

§ 1502.17 Summary of scoping

information.

(a) The draft environmental impact

statement shall include a summary of

information, including alternatives and

analyses, submitted by commenters

during the scoping process for

consideration by the lead and

cooperating agencies in their

development of the draft environmental

impact statement.

(b) The agency shall append to the

draft environmental impact statement or

otherwise make publicly available all

comments (or summaries thereof where

the response has been exceptionally

voluminous) received during the

scoping process.

§ 1502.18 List of preparers.

The environmental impact statement

shall list the names, together with their

qualifications (expertise, experience,

professional disciplines), of the persons

who were primarily responsible for

preparing the environmental impact

statement or important background

papers, including basic components of

the statement. Where possible, the

environmental impact statement shall

identify the persons who are responsible

for a particular analysis, including

analyses in background papers.

Normally the list will not exceed two

pages.

§ 1502.19 Appendix.

If an agency prepares an appendix,

the agency shall publish it with the

environmental impact statement, and it

shall consist of, as appropriate:

(a) Material prepared in connection

with an environmental impact statement

(as distinct from material that is not so

prepared and is incorporated by

reference (§ 1501.12 of this subchapter)).

(b) Material substantiating any

analysis fundamental to the impact

statement.

(c) Material relevant to the decision to

be made.

(d) For draft environmental impact

statements, all comments (or summaries

thereof where the response has been

exceptionally voluminous) received

during the scoping process that

identified information for the agency’s

consideration.

(e) For final environmental impact

statements, the comment summaries

and responses consistent with § 1503.4

of this chapter.

§ 1502.20 Publication of the environmental

impact statement.

Agencies shall publish the entire draft

and final environmental impact

statements and unchanged statements as

provided in § 1503.4(c) of this

subchapter. The agency shall transmit

the entire statement electronically (or in

paper copy, if requested due to

economic or other hardship) to:

(a) Any Federal agency that has

jurisdiction by law or special expertise

with respect to any environmental

impact involved and any appropriate

Federal, State, Tribal, or local agency

authorized to develop and enforce

environmental standards.

(b) The applicant, if any.

(c) Any person, organization, or

agency requesting the entire

environmental impact statement.

(d) In the case of a final

environmental impact statement, any

person, organization, or agency that

submitted substantive comments on the

draft.

§ 1502.21 Incomplete or unavailable

information.

(a) When an agency is evaluating

reasonably foreseeable significant

adverse effects on the human

environment in an environmental

impact statement, and there is

incomplete or unavailable information,

the agency shall make clear that such

information is lacking.

(b) If the incomplete information

relevant to reasonably foreseeable

significant adverse effects is essential to

a reasoned choice among alternatives,

and the overall costs of obtaining it are

not unreasonable, the agency shall

include the information in the

environmental impact statement.

(c) If the information relevant to

reasonably foreseeable significant

adverse effects cannot be obtained

because the overall costs of obtaining it

are unreasonable or the means to obtain

it are not known, the agency shall

include within the environmental

impact statement:

(1) A statement that such information

is incomplete or unavailable;

(2) A statement of the relevance of the

incomplete or unavailable information

to evaluating reasonably foreseeable

significant adverse effects on the human

environment;

(3) A summary of existing credible

scientific evidence that is relevant to

evaluating the reasonably foreseeable

significant adverse effects on the human

environment; and

(4) The agency’s evaluation of such

effects based upon theoretical

approaches or research methods

generally accepted in the scientific

community.

(d) For the purposes of this section,

‘‘reasonably foreseeable’’ includes

effects that have catastrophic

consequences, even if their probability

of occurrence is low, provided that the

analysis of the effects is supported by

credible scientific evidence, is not based

on pure conjecture, and is within the

rule of reason.

§ 1502.22 Cost-benefit analysis.

If an agency is considering a cost-

benefit analysis for the proposed action

relevant to the choice among

alternatives with different

environmental effects, the agency shall

incorporate the cost-benefit analysis by

reference or append it to the statement

as an aid in evaluating the

environmental consequences. In such

cases, to assess the adequacy of

compliance with section 102(2)(B) of

NEPA (ensuring appropriate

consideration of unquantified

environmental amenities and values in

decision making, along with economical

and technical considerations), the

statement shall discuss the relationship

between that analysis and any analyses

of unquantified environmental impacts,

values, and amenities. For purposes of

complying with the Act, agencies need

not display the weighing of the merits

and drawbacks of the various

alternatives in a monetary cost-benefit

analysis and should not do so when

there are important qualitative

considerations. However, an

environmental impact statement should

at least indicate those considerations,

including factors not related to

environmental quality, that are likely to

be relevant and important to a decision.

§ 1502.23 Methodology and scientific

accuracy.

(a) Agencies shall ensure the

professional integrity, including

scientific integrity, of the discussions

and analyses in environmental

documents. Agencies shall use high-

quality information, such as best

available science and reliable data,

models, and resources, including

existing sources and materials, to

analyze effects resulting from a

proposed action and alternatives.

Agencies may use any reliable data

sources, such as remotely gathered

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information or statistical models.

Agencies should explain any relevant

assumptions or limitations of the

information or the particular model or

methodology selected for use.

(b) Agencies shall identify any

methodologies used and shall make

explicit reference to the scientific and

other sources relied upon for

conclusions in the statement. Agencies

may place discussion of methodology in

an appendix. Nothing in this section is

intended to prohibit agencies from

compliance with the requirements of

other statutes pertaining to scientific

and technical research.

(c) Where appropriate, agencies shall

use projections when evaluating the

reasonably foreseeable effects, including

climate change-related effects. Such

projections may employ mathematical

or other models that project a range of

possible future outcomes, so long as

agencies disclose the relevant

assumptions or limitations.

§ 1502.24 Environmental review and

consultation requirements.

(a) To the fullest extent possible,

agencies shall prepare draft

environmental impact statements

concurrent and integrated with

environmental impact analyses and

related surveys and studies required by

all other Federal environmental review

laws and Executive orders applicable to

the proposed action, including the Fish

and Wildlife Coordination Act (16

U.S.C. 661 et seq.), the National Historic

Preservation Act of 1966 (54 U.S.C.

300101 et seq.), and the Endangered

Species Act of 1973 (16 U.S.C. 1531 et

seq.).

(b) The draft environmental impact

statement shall list all Federal permits,

licenses, and other authorizations that

must be obtained in implementing the

proposal. If it is uncertain whether a

Federal permit, license, or other

authorization is necessary, the draft

environmental impact statement shall so

indicate.

PART 1503—COMMENTING ON

ENVIRONMENTAL IMPACT

STATEMENTS

§ 1503.1 Inviting comments and

requesting information and analyses.

(a) After preparing a draft

environmental impact statement and

before preparing a final environmental

impact statement the agency shall:

(1) Obtain the comments of any

Federal agency that has jurisdiction by

law or special expertise with respect to

any environmental impact involved or

is authorized to develop and enforce

environmental standards; and

(2) Request the comments of:

(i) Appropriate State, Tribal, and local

agencies that are authorized to develop

and enforce environmental standards;

(ii) State, Tribal, or local governments

that may be affected by the proposed

action;

(iii) Any agency that has requested it

receive statements on actions of the

kind proposed;

(iv) The applicant, if any; and

(v) The public, affirmatively soliciting

comments in a manner designed to

inform those persons or organizations

who may be interested in or affected by

the proposed action.

(b) An agency may request comments

on a final environmental impact

statement before the final decision and

set a deadline for providing such

comments. Other agencies or persons

may make comments consistent with

the time periods under § 1506.10 of this

subchapter.

(c) An agency shall provide for

electronic submission of public

comments, with reasonable measures to

ensure the comment process is

accessible to affected persons.

§ 1503.2 Duty to comment.

Cooperating agencies and agencies

that are authorized to develop and

enforce environmental standards shall

comment on environmental impact

statements within their jurisdiction,

expertise, or authority within the time

period specified for comment in

§ 1506.10 of this subchapter. A Federal

agency may reply that it has no

comment. If a cooperating agency is

satisfied that the environmental impact

statement adequately reflects its views,

it should reply that it has no comment.

§ 1503.3 Specificity of comments and

information.

(a) To promote informed decision

making, comments on an environmental

impact statement or on a proposed

action shall be as specific as possible,

and may address either the adequacy of

the statement or the merits of the

alternatives discussed or both.

Comments should explain why the

issues raised are important to the

consideration of potential

environmental effects and alternatives

to the proposed action. Where possible,

comments should reference the

corresponding section or page number

of the draft environmental impact

statement, propose specific changes to

those parts of the statement, and

describe any data, sources, or

methodologies that support the

proposed changes.

(b) When a participating agency

criticizes a lead agency’s predictive

methodology, the participating agency

should describe the alternative

methodology that it prefers and why.

(c) A cooperating agency shall specify

in its comments whether it needs

additional information to fulfill other

applicable environmental review or

consultation requirements and what

information it needs. In particular, it

shall specify any additional information

it needs to comment adequately on the

draft statement’s analysis of significant

effects associated with the granting or

approving by that cooperating agency of

necessary Federal permits, licenses, or

authorizations.

(d) A cooperating agency with

jurisdiction by law shall specify

mitigation measures it considers

necessary to allow the agency to grant

or approve applicable authorizations or

concurrences.

§ 1503.4 Response to comments.

(a) An agency preparing a final

environmental impact statement shall

consider substantive comments timely

submitted during the public comment

period. The agency shall respond to

individual comments or groups of

comments. In the final environmental

impact statement, the agency may

respond by:

(1) Modifying alternatives including

the proposed action;

(2) Developing and evaluating

alternatives not previously given serious

consideration by the agency;

(3) Supplementing, improving, or

modifying its analyses;

(4) Making factual corrections; or

(5) Explaining why the comments do

not warrant further agency response,

recognizing that agencies are not

required to respond to each comment.

(b) An agency shall append or

otherwise publish all substantive

comments received on the draft

statement (or summaries thereof where

the response has been exceptionally

voluminous).

(c) If changes in response to

comments are minor and are confined to

the responses described in paragraphs

(a)(4) and (5) of this section, an agency

may write any changes on errata sheets

and attach the responses to the

statement instead of rewriting the draft

statement. In such cases, the agency

shall publish the final statement

(§ 1502.20 of this subchapter), which

includes the draft statement, the

comments, responses to those

comments, and errata sheets. The

agency shall file the final statement with

the Environmental Protection Agency

(§ 1506.10 of this subchapter).

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PART 1504—PRE–DECISIONAL

REFERRALS TO THE COUNCIL OF

PROPOSED FEDERAL ACTIONS

DETERMINED TO BE

ENVIRONMENTALLY

UNSATISFACTORY

§ 1504.1 Purpose.

(a) This part establishes procedures

for referring to the Council Federal

interagency disagreements concerning

proposed major Federal actions that

might cause unsatisfactory

environmental effects. It provides means

for early resolution of such

disagreements, and encourages Federal

agencies to engage with each other as

early as practicable to resolve

interagency disagreements concerning

proposed major Federal actions before

referring disputes to the Council. This

part also establishes procedures for

Federal agencies to submit a request to

the Council to provide informal dispute

resolution on NEPA issues before

formally referring disputes to the

Council.

(b) Section 309 of the Clean Air Act

(42 U.S.C. 7609) directs the

Administrator of the Environmental

Protection Agency to review and

comment publicly on the environmental

impacts of Federal activities, including

actions for which agencies prepare

environmental impact statements. If,

after this review, the Administrator

determines that the matter is

‘‘unsatisfactory from the standpoint of

public health or welfare or

environmental quality,’’ section 309

directs that the matter be referred to the

Council.

(c) Under section 102(2)(C) of NEPA

(42 U.S.C. 4332(2)(C)), other Federal

agencies may prepare similar reviews of

environmental impact statements,

including judgments on the

acceptability of anticipated

environmental impacts. These agencies

must make these reviews available to

the President, the Council, and the

public.

§ 1504.2 Early dispute resolution.

(a) Federal agencies should engage in

interagency coordination and

collaboration in their planning and

decision-making processes and should

identify and resolve disputes

concerning proposed major Federal

actions early in the NEPA process. To

the extent practicable, agencies should

elevate issues to appropriate agency

officials or the Council in a timely

manner that will accommodate

schedules consistent with § 1501.10 of

this subchapter.

(b) A Federal agency may request that

the Council engage in informal dispute

resolution to provide recommendations

on how to resolve an interagency

dispute concerning an environmental

review. In making the request, the

agency shall provide the Council with a

summary of the proposed action,

information on the disputed issues, and

agency points of contact.

(c) In response to a request for

informal dispute resolution, the Council

may request additional information,

provide non-binding recommendations,

convene meetings of those agency

decision makers necessary to resolve

disputes, or determine that informal

dispute resolution is unhelpful or

inappropriate.

§ 1504.3 Criteria and procedure for

referrals and response.

(a) Federal agencies should make

environmental referrals to the Council

only after concerted, timely (as early as

practicable in the process), but

unsuccessful attempts to resolve

differences with the lead agency. In

determining what environmental

objections to the matter are appropriate

to refer to the Council, an agency should

weigh potential adverse environmental

effects, considering:

(1) Possible violation of national

environmental standards or policies;

(2) Severity;

(3) Geographical scope;

(4) Duration;

(5) Importance as precedents;

(6) Availability of environmentally

preferable alternatives; and

(7) Economic and technical

considerations, including the economic

costs of delaying or impeding the

decision making of the agencies

involved in the action.

(b) A Federal agency making the

referral to the Council shall:

(1) Notify the lead agency at the

earliest possible time that it intends to

refer a matter to the Council unless a

satisfactory agreement is reached;

(2) Include such a notification

whenever practicable in the referring

agency’s comments on the

environmental assessment or draft

environmental impact statement;

(3) Identify any essential information

that is lacking and request that the lead

agency make it available at the earliest

possible time; and

(4) Send copies of the referring

agency’s views to the Council.

(c) The referring agency shall deliver

its referral to the Council no later than

25 days after the lead agency has made

the final environmental impact

statement available to the

Environmental Protection Agency,

participating agencies, and the public,

and in the case of an environmental

assessment, no later than 25 days after

the lead agency makes it available.

Except when the lead agency grants an

extension of this period, the Council

will not accept a referral after that date.

(d) The referral shall consist of:

(1) A copy of the letter signed by the

head of the referring agency and

delivered to the lead agency informing

the lead agency of the referral and the

reasons for it; and

(2) A statement supported by factual

evidence leading to the conclusion that

the matter is unsatisfactory from the

standpoint of public health or welfare or

environmental quality. The statement

shall:

(i) Identify any disputed material facts

and incorporate (by reference if

appropriate) agreed upon facts;

(ii) Identify any existing

environmental requirements or policies

that would be violated by the matter;

(iii) Present the reasons for the

referral;

(iv) Contain a finding by the agency

whether the issue raised is of national

importance because of the threat to

national environmental resources or

policies or for some other reason;

(v) Review the steps taken by the

referring agency to bring its concerns to

the attention of the lead agency at the

earliest possible time; and

(vi) Give the referring agency’s

recommendations as to what mitigation

alternative, further study, or other

course of action (including

abandonment of the matter) are

necessary to remedy the situation.

(e) No later than 25 days after the

referral to the Council, the lead agency

may deliver a response to the Council

and the referring agency. If the lead

agency requests more time and gives

assurance that the matter will not go

forward in the interim, the Council may

grant an extension. The response shall:

(1) Address fully the issues raised in

the referral;

(2) Be supported by evidence and

explanations, as appropriate; and

(3) Give the lead agency’s response to

the referring agency’s recommendations.

(f) Applicants may provide views in

writing to the Council no later than the

response.

(g) No later than 25 days after receipt

of both the referral and any response or

upon being informed that there will be

no response (unless the lead agency

agrees to a longer time), the Council

may take one or more of the following

actions:

(1) Conclude that the process of

referral and response has successfully

resolved the problem.

(2) Initiate discussions with the

agencies with the objective of mediation

with referring and lead agencies.

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(3) Obtain additional views and

information.

(4) Determine that the issue is not one

of national importance and request the

referring and lead agencies to pursue

their decision process.

(5) Determine that the referring and

lead agencies should further negotiate

the issue, and the issue is not

appropriate for Council consideration

until one or more heads of agencies

report to the Council that the agencies’

disagreements are irreconcilable.

(6) Publish its findings and

recommendations (including, where

appropriate, a finding that the submitted

evidence does not support the position

of an agency).

(7) When appropriate, submit the

referral and the response together with

the Council’s recommendation to the

President for action.

(h) The Council shall take no longer

than 60 days to complete the actions

specified in paragraph (g)(2), (3), or (5)

of this section.

(i) The referral process is not intended

to create any private rights of action or

to be judicially reviewable because any

voluntary resolutions by the agency

parties do not represent final agency

action and instead are only provisional

and dependent on later consistent

action by the action agencies.

PART 1505—NEPA AND AGENCY

DECISION MAKING

§ 1505.1 [Reserved]

§ 1505.2 Record of decision in cases

requiring environmental impact statements.

At the time of its decision (§ 1506.10

of this subchapter) or, if appropriate, its

recommendation to Congress, each

agency shall prepare and timely publish

a concise public record of decision or

joint record of decision. The record,

which each agency may integrate into

any other record it prepares, shall:

(a) State the decision.

(b) Identify alternatives considered by

the agency in reaching its decision. The

agency also shall specify the

environmentally preferable alternative

or alternatives (§ 1502.14(f) of this

subchapter). The agency may discuss

preferences among alternatives based on

relevant factors, including

environmental, economic, and technical

considerations and agency statutory

missions. The agency shall identify and

discuss all such factors, including any

essential considerations of national

policy, that the agency balanced in

making its decision and state how those

considerations entered into its decision.

(c) State whether the agency has

adopted all practicable means to

mitigate environmental harm from the

alternative selected, and if not, why the

agency did not. When an agency

includes mitigation as a component of

the proposed action and relies on

implementation of that mitigation to

analyze the reasonably foreseeable

environmental effects, the mitigation

shall be enforceable, such as through

permit conditions, agreements, or other

measures. The agency shall identify the

authority for enforceable mitigation, and

adopt a monitoring and compliance

plan consistent with § 1505.3(c).

§ 1505.3 Implementing the decision.

(a) Agencies may provide for

monitoring to assure that their decisions

are carried out and should do so in

important cases. Mitigation (§ 1505.2(c))

and other conditions established in the

environmental impact statement or

during its review and committed as part

of the decision shall be implemented by

the lead agency or other appropriate

consenting agency. The lead agency

shall:

(1) Include appropriate conditions in

grants, permits, or other approvals; and

(2) Condition funding of actions on

mitigation.

(b) The lead or cooperating agency

should, where relevant and appropriate,

incorporate mitigation measures that

address or ameliorate significant

adverse human health and

environmental effects of proposed

Federal actions that disproportionately

and adversely affect communities with

environmental justice concerns.

(c) The lead or cooperating agency

shall prepare a monitoring and

compliance plan when the

environmental assessment or

environmental impact statement relies

on mitigation as a component of the

proposed action to analyze the

reasonably foreseeable environmental

effects, including to determine the

significance of those effects, and the

agency incorporates the mitigation into

a record of decision, finding of no

significant impact, or separate

document, consistent with the

following:

(1) Contents. The agency should tailor

the plan to the complexity of the

mitigation committed to and include:

(i) A basic description of the

mitigation measure or measures;

(ii) The parties responsible for

monitoring and implementing the

mitigation;

(iii) If appropriate, how monitoring

information will be made publicly

available;

(iv) The anticipated timeframe for

implementing and completing

mitigation;

(v) The standards for determining

compliance with the mitigation and the

consequences of non-compliance; and

(vi) How the mitigation will be

funded.

(2) No ongoing Federal action. An

agency does not need to supplement its

environmental impact statement or

environmental assessment or revise its

record of decision or finding of no

significant impact or separate decision

document based solely on new

information developed through the

monitoring and compliance plan.

PART 1506—OTHER REQUIREMENTS

OF NEPA

§ 1506.1 Limitations on actions during

NEPA process.

(a) Except as provided in paragraphs

(b) and (c) of this section, until an

agency issues a finding of no significant

impact, as provided in § 1501.6 of this

subchapter, or record of decision, as

provided in § 1505.2 of this subchapter,

no action concerning the proposal may

be taken that would:

(1) Have an adverse environmental

effect; or

(2) Limit the choice of reasonable

alternatives.

(b) If an agency is considering an

application from a non-Federal entity

and is aware that the applicant is about

to take an action within the agency’s

jurisdiction that would meet either of

the criteria in paragraph (a) of this

section, then the agency shall promptly

notify the applicant that the agency will

take appropriate action to ensure that

the objectives and procedures of NEPA

are achieved. This section does not

preclude development by applicants of

plans or designs or performance of other

activities necessary to support an

application for Federal, State, Tribal, or

local permits or assistance. An agency

considering a proposed action for

Federal funding may authorize such

activities, including, but not limited to,

acquisition of interests in land (e.g., fee

simple, rights-of-way, and conservation

easements), purchase of long lead-time

equipment, and purchase options made

by applicants, if the agency determines

that such activities would not limit the

choice of reasonable alternatives and

notifies the applicant that the agency

retains discretion to select any

reasonable alternative or the no action

alternative regardless of any potential

prior activity taken by the applicant

prior to the conclusion of the NEPA

process.

(c) While work on a programmatic

environmental review is in progress and

the action is not covered by an existing

programmatic review, agencies shall not

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undertake in the interim any major

Federal action covered by the program

that may significantly affect the quality

of the human environment unless such

action:

(1) Is justified independently of the

program;

(2) Is itself accompanied by an

adequate environmental review; and

(3) Will not prejudice the ultimate

decision on the program. Interim action

prejudices the ultimate decision on the

program when it tends to determine

subsequent development or limit

alternatives.

§ 1506.2 Elimination of duplication with

State, Tribal, and local procedures.

(a) Federal agencies are authorized to

cooperate with State, Tribal, and local

agencies that are responsible for

preparing environmental documents,

including those prepared pursuant to

section 102(2)(G) of NEPA.

(b) To the fullest extent practicable

unless specifically prohibited by law,

agencies shall cooperate with State,

Tribal, and local agencies to reduce

duplication between NEPA and State,

Tribal, and local requirements,

including through use of studies,

analysis, and decisions developed by

State, Tribal, or local agencies. Except

for cases covered by paragraph (a) of

this section, such cooperation shall

include, to the fullest extent practicable:

(1) Joint planning processes.

(2) Joint environmental research and

studies.

(3) Joint public hearings (except

where otherwise provided by statute).

(4) Joint environmental assessments.

(c) To the fullest extent practicable

unless specifically prohibited by law,

agencies shall cooperate with State,

Tribal, and local agencies to reduce

duplication between NEPA and

comparable State, Tribal, and local

requirements. Such cooperation shall

include, to the fullest extent practicable,

joint environmental impact statements.

In such cases, one or more Federal

agencies and one or more State, Tribal,

or local agencies shall be joint lead

agencies. Where State or Tribal laws or

local ordinances have environmental

impact statement or similar

requirements in addition to but not in

conflict with those in NEPA, Federal

agencies may cooperate in fulfilling

these requirements, as well as those of

Federal laws, so that one document will

comply with all applicable laws.

(d) To better integrate environmental

impact statements into State, Tribal, or

local planning processes, environmental

impact statements shall discuss any

inconsistency of a proposed action with

any approved State, Tribal, or local plan

or law (whether or not federally

sanctioned). Where an inconsistency

exists, the statement should describe the

extent to which the agency would

reconcile its proposed action with the

plan or law. While the statement should

discuss any inconsistencies, NEPA does

not require reconciliation.

§ 1506.3 Adoption.

(a) Generally. An agency may adopt a

draft or final environmental impact

statement, environmental assessment, or

portion thereof, or categorical exclusion

determination, consistent with this

section.

(b) Environmental impact statements.

An agency may adopt a draft or final

environmental impact statement, or

portion thereof, provided that the

adopting agency conducts an

independent review of the statement

and concludes that it meets the

standards for an adequate statement,

pursuant to the regulations in this

subchapter and the adopting agency’s

NEPA procedures.

(1) If the actions covered by the

original environmental impact

statement and the proposed action are

substantially the same, the adopting

agency shall republish and file it as a

final statement consistent with § 1506.9

of this subchapter. If the actions are not

substantially the same or the adopting

agency determines that the statement

requires supplementation, the adopting

agency shall treat the statement as a

draft, supplement or reevaluate it as

necessary, and republish and file it,

consistent with § 1506.9 of this

subchapter.

(2) Notwithstanding paragraph (b)(1)

of this section, if a cooperating agency

does not issue a record of decision

jointly or concurrently consistent with

§ 1505.2 of this subchapter, a

cooperating agency may issue a record

of decision adopting the environmental

impact statement of a lead agency

without republication.

(c) Environmental assessments. An

agency may adopt an environmental

assessment, or portion thereof, if the

actions covered by the original

environmental assessment and the

proposed action are substantially the

same, and the assessment meets the

standards for an adequate

environmental assessment under the

regulations in this subchapter and the

adopting agency’s NEPA procedures. If

the actions are not substantially the

same or the adopting agency determines

that the environmental assessment

requires supplementation, the adopting

agency may adopt the environmental

assessment, and supplement or

reevaluate it as necessary, in its finding

of no significant impact and provide

notice consistent with § 1501.6 of this

subchapter.

(d) Categorical exclusion

determinations. An agency may adopt

another agency’s determination that a

categorical exclusion applies to a

particular proposed action if the action

covered by that determination and the

adopting agency’s proposed action are

substantially the same.

(1) The adopting agency shall

document its adoption, including the

determination that its proposed action is

substantially the same as the action

covered by the original categorical

exclusion determination and that there

are no extraordinary circumstances

present that require the preparation of

an environmental assessment or

environmental impact statement.

(2) The adopting agency shall publish

its adoption determination on an agency

website or otherwise make it publicly

available.

(e) Identification of certain

circumstances. The adopting agency

shall specify if one of the following

circumstances is present:

(1) The agency is adopting an

environmental assessment or

environmental impact statement that is

not final within the agency that

prepared it.

(2) The action assessed in the

environmental assessment or

environmental impact statement is the

subject of a referral under part 1504 of

this subchapter.

(3) The environmental assessment or

environmental impact statement’s

adequacy is the subject of a judicial

action that is not final.

§ 1506.4 Combining documents.

Agencies should combine, to the

fullest extent practicable, any

environmental document with any other

agency document to reduce duplication

and paperwork.

§ 1506.5 Agency responsibility for

environmental documents.

(a) The agency is responsible for the

accuracy, scope (§ 1501.3(b) of this

subchapter), and content of

environmental documents and shall

ensure they are prepared with

professional and scientific integrity,

using reliable data and resources,

regardless of whether they are prepared

by the agency or a contractor under the

supervision of the agency or by the

applicant or project sponsor under

procedures the agency adopts pursuant

to section 107(f) of NEPA and

§ 1507.3(c)(1) of this subchapter. The

agency shall exercise its independent

judgment and briefly document its

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determination that an environmental

document meets the standards under

NEPA, the regulations in this

subchapter, and the agency’s NEPA

procedures.

(b) An agency may require an

applicant to submit environmental

information for possible use by the

agency in preparing an environmental

document. An agency also may

authorize a contractor to prepare an

environmental assessment or

environmental impact statement under

the supervision of the agency and may

authorize a contractor to draft a finding

of no significant impact or record of

decision, but the agency is responsible

for its accuracy, scope, and contents.

(1) The agency should assist the

applicant by outlining the types of

information required for the preparation

of environmental documents. The

agency shall provide guidance to the

contractor and participate in and

supervise the document’s preparation.

(2) The agency shall independently

evaluate the information submitted and

the environmental document and shall

be responsible for their accuracy, scope,

and contents, and document its

evaluation in the environmental

document.

(3) The agency shall include in the

environmental document the names and

qualifications of the persons preparing

environmental documents, and

conducting the independent evaluation

of any information submitted or

environmental documents prepared by a

contractor, such as in the list of

preparers for environmental impact

statements (§ 1502.18 of this

subchapter). It is the intent of this

paragraph (b)(3) that acceptable work

not be redone, but that it be verified by

the agency.

(4) The lead agency or cooperating

agency, where appropriate, shall

prepare a disclosure statement for the

contractor’s execution specifying that

the contractor has no financial or other

interest in the outcome of the action.

Such statement need not include

privileged or confidential trade secrets

or other confidential business

information.

(5) Nothing in this section is intended

to prohibit an agency from requesting

any person, including the applicant, to

submit information to it or to prohibit

any person from submitting information

to an agency for use in preparing

environmental documents.

§ 1506.6 [Reserved]

§ 1506.7 Further guidance.

(a) The Council may provide further

guidance concerning NEPA and its

procedures.

(b) To the extent that Council

guidance issued prior to [EFFECTIVE

DATE OF THE FINAL RULE] is in

conflict with this subchapter, the

provisions of this subchapter apply.

§ 1506.8 Proposals for legislation.

(a) When developing legislation,

agencies shall integrate the NEPA

process for proposals for legislation

significantly affecting the quality of the

human environment with the legislative

process of the Congress. Technical

drafting assistance does not by itself

constitute a legislative proposal. Only

the agency that has primary

responsibility for the subject matter

involved will prepare a legislative

environmental impact statement.

(b) A legislative environmental impact

statement is the detailed statement

required by law to be included in an

agency’s recommendation or report on a

legislative proposal to Congress. A

legislative environmental impact

statement shall be considered part of the

formal transmittal of a legislative

proposal to Congress; however, it may

be transmitted to Congress up to 30 days

later to allow time for completion of an

accurate statement that can serve as the

basis for public and Congressional

debate. The statement must be available

in time for Congressional hearings and

deliberations.

(c) Preparation of a legislative

environmental impact statement shall

conform to the requirements of the

regulations in this subchapter, except as

follows:

(1) There need not be a scoping

process.

(2) Agencies shall prepare the

legislative statement in the same

manner as a draft environmental impact

statement and need not prepare a final

statement unless any of the following

conditions exist. In such cases, the

agency shall prepare and publish the

statements consistent with §§ 1503.1 of

this subchapter and 1506.11:

(i) A Congressional committee with

jurisdiction over the proposal has a rule

requiring both draft and final

environmental impact statements.

(ii) The proposal results from a study

process required by statute (such as

those required by the Wild and Scenic

Rivers Act (16 U.S.C. 1271 et seq.)).

(iii) Legislative approval is sought for

Federal or federally assisted

construction or other projects that the

agency recommends be located at

specific geographic locations. For

proposals requiring an environmental

impact statement for the acquisition of

space by the General Services

Administration, a draft statement shall

accompany the Prospectus or the 11(b)

Report of Building Project Surveys to

the Congress, and a final statement shall

be completed before site acquisition.

(iv) The agency decides to prepare

draft and final statements.

(d) Comments on the legislative

statement shall be given to the lead

agency, which shall forward them along

with its own responses to the

Congressional committees with

jurisdiction.

§ 1506.9 Filing requirements.

(a) Agencies shall file environmental

impact statements together with

comments and responses with the

Environmental Protection Agency,

Office of Federal Activities, consistent

with the Environmental Protection

Agency’s procedures.

(b) Agencies shall file statements with

the Environmental Protection Agency

no earlier than they are also transmitted

to participating agencies and made

available to the public. The

Environmental Protection Agency may

issue guidelines to agencies to

implement its responsibilities under

this section and § 1506.10.

(c) Agencies shall notify the

Environmental Protection Agency when

they adopt an environmental impact

statement consistent with § 1506.3(b).

§ 1506.10 Timing of agency action.

(a) The Environmental Protection

Agency shall publish a notice in the

Federal Register each week of the

environmental impact statements filed

since its prior notice. The minimum

time periods set forth in this section are

calculated from the date of publication

of this notice.

(b) Unless otherwise provided by law,

including statutory provisions for

combining a final environmental impact

statement and record of decision,

Federal agencies shall not make or issue

a record of decision under § 1505.2 of

this subchapter for the proposed action

until the later of the following dates:

(1) 90 days after publication of the

notice described in paragraph (a) of this

section for a draft environmental impact

statement.

(2) 30 days after publication of the

notice described in paragraph (a) of this

section for a final environmental impact

statement.

(c) An agency may make an exception

to the rule on timing set forth in

paragraph (b) of this section for a

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proposed action in the following

circumstances:

(1) Some agencies have formally

established administrative review

processes (e.g., appeals, objections,

protests), which may be initiated prior

to or after filing and publication of the

final environmental impact statement

with the Environmental Protection

Agency, that allow other agencies or the

public to raise issues about a decision

and make their views known. In such

cases where a real opportunity exists to

alter the decision, the agency may make

and record the decision at the same time

it publishes the environmental impact

statement. This means that the period

for administrative review of the decision

and the 30-day period set forth in

paragraph (b)(2) of this section may run

concurrently. In such cases, the

environmental impact statement shall

explain the timing and the public’s right

of administrative review and provide

notification consistent with § 1506.9; or

(2) An agency engaged in rulemaking

under the Administrative Procedure Act

or other statute for the purpose of

protecting the public health or safety

may waive the time period in paragraph

(b)(2) of this section, publish a decision

on the final rule simultaneously with

publication of the notice of the

availability of the final environmental

impact statement, and provide

notification consistent with § 1506.10,

as described in paragraph (a) of this

section.

(d) If an agency files the final

environmental impact statement within

90 days of the filing of the draft

environmental impact statement with

the Environmental Protection Agency,

the minimum 30-day and 90-day

periods may run concurrently. However,

subject to paragraph (e) of this section,

agencies shall allow at least 45 days for

comments on draft statements.

(e) The lead agency may extend the

minimum periods in paragraph (b) of

this section and provide notification

consistent with § 1506.10. Upon a

showing by the lead agency of

compelling reasons of national policy,

the Environmental Protection Agency

may reduce the minimum periods and,

upon a showing by any other Federal

agency of compelling reasons of

national policy, also may extend the

minimum periods, but only after

consultation with the lead agency. The

lead agency may modify the minimum

periods when necessary to comply with

other specific statutory requirements

(§ 1507.3(d)(4) of this subchapter).

Failure to file timely comments shall

not be a sufficient reason for extending

a period. If the lead agency does not

concur with the extension of time, the

Environmental Protection Agency may

not extend it for more than 30 days.

When the Environmental Protection

Agency reduces or extends any period it

shall notify the Council.

§ 1506.11 Emergencies.

Where emergency circumstances

make it necessary to take an action with

significant effects without observing the

provisions of the regulations in this

subchapter, the Federal agency taking

the action should consult with the

Council about alternative arrangements

for compliance with section 102(2)(C) of

NEPA. Agencies and the Council will

limit such arrangements to actions

necessary to control the immediate

impacts of the emergency. Alternative

arrangements do not waive the

requirement to comply with the statute,

but establish an alternative means for

NEPA compliance.

§ 1506.12 Innovative approaches to NEPA

reviews.

(a) The Council may authorize an

innovative approach to NEPA

compliance that allows an agency to

comply with the Act following

procedures modified from the

requirements of the regulations in this

subchapter, to facilitate sound and

efficient environmental review for

actions to address extreme

environmental challenges consistent

with section 101 of NEPA. Examples of

extreme environmental challenges may

relate to sea level rise, increased

wildfire risk, or bolstering the resilience

of infrastructure to increased disaster

risk due to climate change; water

scarcity; degraded water or air quality;

disproportionate and adverse effects on

communities with environmental justice

concerns; imminent or reasonably

foreseeable loss of historic, cultural, or

Tribal resources; species loss; and

impaired ecosystem health.

(b) The Council may approve an

innovative approach if it is consistent

with this section, and such approval

does not waive the requirement to

comply with the statute, but establishes

an alternative means for NEPA

compliance.

(c) An agency request for an

innovative approach shall:

(1) Identify each provision of this

subchapter from which the agency seeks

a modification and how the innovative

approach the agency proposes to ensure

compliance with NEPA;

(2) Explain the extreme

environmental challenge the approach

would address, why the alternative

means are needed to address the

challenge, and how the alternative

means would facilitate the sound and

efficient environmental review; and

(3) Consult with any potential

cooperating agencies and include a

summary of their comments.

(d) The Council shall evaluate the

agency’s request within 60 days to

determine if it meets the requirements

in this section. The Council may:

(1) Approve the request for

modification;

(2) Approve the request for

modification with revisions; or

(3) Deny the request for modification.

(e) The Council shall publish on its

website any request for modification

that it has approved, approved with

revisions, or denied.

§ 1506.13 Effective date.

The regulations in this subchapter

apply to any NEPA process begun after

[EFFECTIVE DATE OF THE FINAL

RULE]. An agency may apply the

regulations in this subchapter to

ongoing activities and environmental

documents begun before [EFFECTIVE

DATE OF THE FINAL RULE].

PART 1507—AGENCY COMPLIANCE

§ 1507.1 Compliance.

All agencies of the Federal

Government shall comply with the

regulations in this subchapter. It is the

intent of these regulations to allow each

agency flexibility in adapting its

implementing procedures authorized by

§ 1507.3 to the requirements of other

applicable laws.

§ 1507.2 Agency capability to comply.

Each agency shall be capable (in terms

of personnel and other resources) of

complying with the requirements of

NEPA and the regulations in this

subchapter. Such compliance may

include use of the resources of other

agencies, applicants, and other

participants in the NEPA process, but

the agency using the resources shall

itself have sufficient capability to

evaluate what others do for it and

account for the contributions of others.

Agencies shall:

(a) Agencies shall designate a senior

agency official to be responsible for

overall review of agency NEPA

compliance, including resolving

implementation issues, and a Chief

Public Engagement Officer to be

responsible for facilitating community

engagement across the agency and,

where appropriate, the provision of

technical assistance to communities.

(b) Fulfill the requirements of section

102(2)(A) of NEPA to utilize a

systematic, interdisciplinary approach

that will ensure the integrated use of the

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natural and social sciences and the

environmental design arts in planning

and in decision making that may have

an impact on the human environment.

(c) Identify methods and procedures

required by section 102(2)(B) of NEPA

to ensure that presently unquantified

environmental amenities and values

may be given appropriate consideration.

(d) Prepare adequate environmental

impact statements pursuant to section

102(2)(C) of NEPA and cooperate on the

development of statements in the areas

where the agency has jurisdiction by

law or special expertise or is authorized

to develop and enforce environmental

standards.

(e) Ensure environmental documents

are prepared with professional integrity,

including scientific integrity, consistent

with section 102(2)(D) of NEPA.

(f) Make use of reliable data and

resources in carrying out their

responsibilities under NEPA, consistent

with section 102(2)(E) of NEPA.

(g) Study, develop, and describe

technically and economically feasible

alternatives, consistent with section

102(2)(F) of NEPA.

(h) Study, develop, and describe

alternatives to recommended courses of

action in any proposal that involves

unresolved conflicts concerning

alternative uses of available resources,

consistent with section 102(2)(H) of

NEPA.

(i) Comply with the requirement of

section 102(2)(K) of NEPA that the

agency initiate and utilize ecological

information in the planning and

development of resource-oriented

projects.

(j) Fulfill the requirements of sections

102(2)(I), 102(2)(J), and 102(2)(L), of

NEPA, and Executive Order 11514,

Protection and Enhancement of

Environmental Quality, section 2, as

amended by Executive Order 11991,

Relating to Protection and Enhancement

of Environmental Quality.

§ 1507.3 Agency NEPA procedures.

(a) The Council has determined that

the categorical exclusions contained in

agency NEPA procedures as of

[EFFECTIVE DATE OF THE FINAL

RULE] are consistent with this

subchapter.

(b) No more than 12 months after

[EFFECTIVE DATE OF THE FINAL

RULE], or 9 months after the

establishment of an agency, whichever

comes later, each agency shall develop

or revise, as necessary, proposed

procedures to implement the regulations

in this subchapter, facilitate efficient

decision making, and ensure that

agencies make decisions in accordance

with the policies and requirements of

the Act. When the agency is a

department, it may be efficient for major

subunits (with the consent of the

department) to adopt their own

procedures.

(1) Each agency shall consult with the

Council while developing or revising its

proposed procedures and before

publishing them in the Federal Register

for comment. Agencies with similar

programs should consult with each

other and the Council to coordinate

their procedures, especially for

programs requesting similar information

from applicants.

(2) Agencies shall provide an

opportunity for public review and

review by the Council for conformity

with the Act and the regulations in this

subchapter before issuing their final

procedures. The Council shall complete

its review within 30 days of the receipt

of the proposed final procedures. Once

in effect, agencies shall publish their

NEPA procedures and ensure that they

are readily available to the public.

Agencies shall continue to review their

policies and procedures, in consultation

with the Council, to revise them as

necessary to ensure full compliance

with the purposes and provisions of the

Act.

(3) The issuance or update of agency

procedures is not subject to NEPA

review under this subchapter.

(c) Agency procedures shall:

(1) Designate the major decision

points for the agency’s programs and

actions subject to NEPA, ensuring that

the NEPA process begins at the earliest

reasonable time, consistent with

§ 1501.2 of this subchapter, and aligns

with the corresponding decision points;

(2) Require that relevant

environmental documents, comments,

and responses be part of the record in

rulemaking and adjudicatory

proceedings;

(3) Integrate the environmental review

into the decision-making process by

requiring that relevant environmental

documents, comments, and responses

accompany the proposal through

existing agency review processes so that

decision makers use them in making

decisions;

(4) Require that the alternatives

considered by the decision maker are

encompassed by the range of

alternatives discussed in the relevant

environmental documents and that the

decision maker consider the alternatives

described in the environmental

documents. If another decision

document accompanies the relevant

environmental documents to the

decision maker, agencies are encouraged

to make available to the public before

the decision is made any part of that

document that relates to the comparison

of alternatives;

(5) Require the combination of

environmental documents with other

agency documents to facilitate sound

and efficient decision making and avoid

duplication, where consistent with

applicable statutory requirements;

(6) Include those procedures required

by §§ 1501.2(b)(4) (assistance to

applicants);

(7) Include specific criteria for and

identification of those typical classes of

action that normally:

(i) Require environmental impact

statements; and

(ii) Require environmental

assessments but not necessarily

environmental impact statements;

(8) Establish categorical exclusions

and identify extraordinary

circumstances. When establishing new

or revising existing categorical

exclusions, agencies shall:

(i) Identify when documentation of a

determination that a categorical

exclusion applies to a proposed action

is required;

(ii) Substantiate the proposed new or

revised categorical exclusion with

sufficient information to conclude that

the category of actions does not have a

significant effect, individually or in the

aggregate, on the human environment

and provide this substantiation in a

written record that is made publicly

available as part of the notice and

comment process (§ 1507.3(b)(1) and

(2)); and

(iii) Describe how the agency will

consider extraordinary circumstances in

determining whether additional analysis

in an environmental assessment or

environmental impact statement is

required;

(9) Include a process for reviewing the

agency’s categorical exclusions at least

every 10 years;

(10) Include a process for introducing

a supplement to an environmental

assessment or environmental impact

statement into its formal administrative

record, if such a record exists;

(11) Explain where interested persons

can get information or status reports on

environmental impact statements,

environmental assessments, and other

elements of the NEPA process; and

(12) Where applicable, include

procedures to allow a project sponsor to

prepare environmental assessments and

environmental impact statements under

the agency’s supervision consistent with

§ 1506.5 of this subchapter.

(d) Agency procedures also may:

(1) Identify activities or decisions that

are not subject to NEPA;

(2) Include processes for

consideration of emergency actions that

would not result in significant effects;

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(3) Include specific criteria for

providing limited exceptions to the

provisions of the regulations in this

subchapter for classified proposals.

These are proposed actions that are

specifically authorized under criteria

established by an Executive order or

statute to be kept secret in the interest

of national defense or foreign policy and

are in fact properly classified pursuant

to such Executive order or statute.

Agencies may safeguard and restrict

from public dissemination

environmental assessments and

environmental impact statements that

address classified proposals in

accordance with agencies’ own

regulations applicable to classified

information. Agencies should organize

these documents so that classified

portions are included as annexes, so

that the agencies can make the

unclassified portions available to the

public; and

(4) Provide for periods of time other

than those presented in § 1506.10 of this

subchapter when necessary to comply

with other specific statutory

requirements, including requirements of

lead or cooperating agencies.

§ 1507.4 Agency NEPA program

information.

(a) To allow agencies and the public

to efficiently and effectively access

information about NEPA reviews,

agencies shall provide for agency

websites or other information

technology tools to make available

documents, relevant notices, and other

relevant information for use by agencies,

applicants, and interested persons. The

website or other such means of

publication shall include the agency’s

NEPA procedures, including those of

subunits, and a list of environmental

assessments and environmental impact

statements that are in development and

complete. As appropriate, agencies also

should include:

(1) Agency planning and other

documents that guide agency

management and provide for public

involvement in agency planning

processes;

(2) Environmental documents;

(3) Agency policy documents, orders,

terminology, and explanatory materials

regarding agency decision-making

processes;

(4) Agency planning program

information, plans, and planning tools;

and

(5) A database searchable by

geographic information, document

status, document type, and project type.

(b) Agencies shall provide for efficient

and effective interagency coordination

of their environmental program websites

and other information technology tools,

such as use of shared databases or

application programming interfaces, in

their implementation of NEPA and

related authorities.

PART 1508—DEFINITIONS

§ 1508.1 Definitions.

The following definitions apply to the

regulations in this subchapter. Federal

agencies shall use these terms uniformly

throughout the Federal Government.

(a) Act or NEPA means the National

Environmental Policy Act, as amended

(42 U.S.C. 4321, et seq.).

(b) Affecting means will or may have

an effect on.

(c) Authorization means any license,

permit, approval, finding,

determination, or other administrative

decision issued by an agency that is

required or authorized under Federal

law in order to implement a proposed

action.

(d) Categorical exclusion means a

category of actions that an agency has

determined, in its agency NEPA

procedures (§ 1507.3 of this subchapter)

or pursuant to § 1501.4(c) of this

subchapter, normally does not have a

significant effect on the human

environment.

(e) Cooperating agency means any

Federal, State, Tribal, or local agency

with jurisdiction by law or special

expertise with respect to any

environmental impact involved in a

proposal that has been designated by the

lead agency.

(f) Council means the Council on

Environmental Quality established by

title II of the Act.

(g) Effects or impacts means changes

to the human environment from the

proposed action or alternatives that are

reasonably foreseeable and include the

following:

(1) Direct effects, which are caused by

the action and occur at the same time

and place.

(2) Indirect effects, which are caused

by the action and are later in time or

farther removed in distance, but are still

reasonably foreseeable. Indirect effects

may include growth-inducing effects

and other effects related to induced

changes in the pattern of land use,

population density or growth rate, and

related effects on air and water and

other natural systems, including

ecosystems.

(3) Cumulative effects, which are

effects on the environment that result

from the incremental effects of the

action when added to the effects of

other past, present, and reasonably

foreseeable actions regardless of what

agency (Federal or non-Federal) or

person undertakes such other actions.

Cumulative effects can result from

actions with individually minor but

collectively significant effects taking

place over a period of time.

(4) Effects include ecological (such as

the effects on natural resources and on

the components, structures, and

functioning of affected ecosystems),

aesthetic, historic, cultural, economic,

social, or health, such as

disproportionate and adverse effects on

communities with environmental justice

concerns, whether direct, indirect, or

cumulative. Effects also include climate

change-related effects, including the

contribution of a proposed action and

its alternatives to climate change, and

the reasonably foreseeable effects of

climate change on the proposed action

and its alternatives. Effects may also

include those resulting from actions

which may have both beneficial and

detrimental effects, even if on balance

the agency believes that the effects will

be beneficial.

(h) Environmental assessment means

a concise public document, for which a

Federal agency is responsible, for an

action that is not likely to have a

significant effect or for which the

significance of the effects is unknown

(§ 1501.5 of this subchapter), that is

used to support an agency’s

determination of whether to prepare an

environmental impact statement (part

1502 of this subchapter) or a finding of

no significant impact (§ 1501.6 of this

subchapter).

(i) Environmental document means an

environmental assessment,

environmental impact statement,

documented categorical exclusion

determination, finding of no significant

impact, record of decision, or notice of

intent.

(j) Environmental impact statement

means a detailed written statement that

is required by section 102(2)(C) of

NEPA.

(k) Environmental justice means the

just treatment and meaningful

involvement of all people, regardless of

income, race, color, national origin,

Tribal affiliation, or disability, in agency

decision making and other Federal

activities that affect human health and

the environment so that people:

(1) Are fully protected from

disproportionate and adverse human

health and environmental effects

(including risks) and hazards, including

those related to climate change, the

cumulative impacts of environmental

and other burdens, and the legacy of

racism or other structural or systemic

barriers; and

(2) Have equitable access to a healthy,

sustainable, and resilient environment

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in which to live, play, work, learn,

grow, worship, and engage in cultural

and subsistence practices.

(l) Environmentally preferable

alternative means the alternative or

alternatives that will best promote the

national environmental policy as

expressed in section 101 of NEPA.

(m) Extraordinary circumstances are

factors or circumstances that indicate a

normally categorically excluded action

may have a significant environmental

effect. Examples of extraordinary

circumstances include potential

substantial effects on sensitive

environmental resources, potential

disproportionate and adverse effects on

communities with environmental justice

concerns, potential substantial effects

associated with climate change, and

potential adverse effects on historic

properties or cultural resources.

(n) Federal agency means all agencies

of the Federal Government. It does not

mean the Congress, the Judiciary, or the

President, including the performance of

staff functions for the President in his

Executive Office. For the purposes of

the regulations in this subchapter,

Federal agency also includes States,

units of general local government, and

Tribal governments assuming NEPA

responsibilities from a Federal agency

pursuant to statute.

(o) Finding of no significant impact

means a document by a Federal agency

briefly presenting the agency’s

determination that and reasons why an

action, not otherwise categorically

excluded (§ 1501.4 of this subchapter),

will not have a significant effect on the

human environment and for which an

environmental impact statement

therefore will not be prepared.

(p) Human environment or

environment means comprehensively

the natural and physical environment

and the relationship of present and

future generations with that

environment. (See also the definition of

‘‘effects’’ in paragraph (g) of this

section.)

(q) Joint lead agency means a Federal,

State, Tribal, or local agency designated

pursuant to § 1501.7(c) that shares the

responsibilities of the lead agency for

preparing the environmental impact

statement or environmental assessment.

(r) Jurisdiction by law means agency

authority to approve, veto, or finance all

or part of the proposal.

(s) Lead agency means the Federal

agency that proposes the agency action

or is designated pursuant to § 1501.7(c)

for preparing or having primary

responsibility for preparing the

environmental impact statement or

environmental assessment.

(t) Legislation means a bill or

legislative proposal to Congress

developed by a Federal agency, but does

not include requests for appropriations

or legislation recommended by the

President.

(u) Major Federal action or action

means an action that the agency

carrying out such action determines is

subject to substantial Federal control

and responsibility.

(1) Major Federal actions generally

include:

(i) Granting authorizations, including

permits, licenses, rights-of-way, or other

authorizations.

(ii) Adoption of official policy, such

as rules, regulations, and interpretations

adopted under the Administrative

Procedure Act, 5 U.S.C. 551 et seq., or

other statutes; implementation of

treaties and international conventions or

agreements, including those

implemented pursuant to statute or

regulation; formal documents

establishing an agency’s policies that

will result in or substantially alter

agency programs.

(iii) Adoption of formal plans, such as

official documents prepared or

approved by Federal agencies, which

prescribe alternative uses of Federal

resources, upon which future agency

actions will be based.

(iv) Adoption of programs, such as a

group of concerted actions to implement

a specific policy or plan; systematic and

related agency decisions allocating

agency resources to implement a

specific statutory program or executive

directive.

(v) Carrying out specific projects, such

as construction or management

activities.

(vi) Providing financial assistance,

including through grants, cooperative

agreements, loans, loan guarantees, or

other forms of financial assistance,

where the agency has the authority to

deny in whole or in part the assistance

due environmental effects, impose

conditions on the receipt of the

financial assistance to address

environmental effects, or otherwise has

sufficient control and responsibility

over the subsequent use of the financial

assistance or the effects of the activity

for which the agency is providing the

financial assistance.

(2) Major Federal actions do not

include the following:

(i) Non-Federal actions:

(A) With no or minimal Federal

funding; or

(B) With no or minimal Federal

involvement where the Federal agency

cannot control the outcome of the

project;

(ii) Funding assistance solely in the

form of general revenue sharing funds

that do not provide Federal agency

compliance or enforcement

responsibility over the subsequent use

of such funds;

(iii) Loans, loan guarantees, or other

forms of financial assistance where a

Federal agency does not exercise

sufficient control and responsibility

over the subsequent use of such

financial assistance or the effects of the

action;

(iv) Business loan guarantees

provided by the Small Business

Administration pursuant to section 7(a)

or (b) and of the Small Business Act (15

U.S.C. 636(a) and (b)), or title V of the

Small Business Investment Act of 1958

(15 U.S.C. 695 through 697g);

(v) Judicial or administrative civil or

criminal enforcement actions;

(vi) Extraterritorial activities or

decisions, which means agency

activities or decisions with effects

located entirely outside of the

jurisdiction of the United States;

(vii) Activities or decisions that are

non-discretionary and made in

accordance with the agency’s statutory

authority;

(viii) Activities or decisions that are

not a final agency action within the

meaning of such term under the

Administrative Procedure Act; and

(ix) Activities or decisions for projects

approved by a Tribal Nation that occur

on or involve land held in trust or

restricted status by the United States for

the benefit of that Tribal Nation or by

the Tribal Nation when such activities

or decisions involve no Federal funding

or other Federal involvement.

(v) Matter includes for purposes of

part 1504 of this subchapter:

(1) With respect to the Environmental

Protection Agency, any proposed

legislation, project, action, or regulation

as those terms are used in section 309(a)

of the Clean Air Act (42 U.S.C. 7609).

(2) With respect to all other agencies,

any proposed major Federal action to

which section 102(2)(C) of NEPA

applies.

(w) Mitigation means measures that

avoid, minimize, or compensate for

effects caused by a proposed action or

alternatives as described in an

environmental document or record of

decision and that have a connection to

those effects. Mitigation includes, in

general order of priority:

(1) Avoiding the effect altogether by

not taking a certain action or parts of an

action.

(2) Minimizing effects by limiting the

degree or magnitude of the action and

its implementation.

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(3) Rectifying the effect by repairing,

rehabilitating, or restoring the affected

environment.

(4) Reducing or eliminating the effect

over time by preservation and

maintenance operations during the life

of the action.

(5) Compensating for the effect by

replacing or providing substitute

resources or environments.

(x) NEPA process means all measures

necessary for compliance with the

requirements of section 2 and title I of

NEPA.

(y) Notice of intent means a public

notice that an agency will prepare and

consider an environmental impact

statement or environmental assessment,

as applicable.

(z) Page means 500 words and does

not include citations, explanatory maps,

diagrams, graphs, tables, and other

means of graphically displaying

quantitative or geospatial information.

(aa) Participating agency means a

Federal, State, Tribal, or local agency

participating in an environmental

review or authorization of an action.

(bb) Participating Federal agency

means a Federal agency participating in

an environmental review or

authorization of an action.

(cc) Programmatic environmental

document means an environmental

impact statement or environmental

assessment analyzing all or some of the

environmental effects of a policy,

program, plan, or group of related

actions.

(dd) Proposal means a proposed

action at a stage when an agency has a

goal, is actively preparing to make a

decision on one or more alternative

means of accomplishing that goal, and

can meaningfully evaluate its effects. A

proposal may exist in fact as well as by

agency declaration that one exists.

(ee) Publish and publication mean

methods found by the agency to

efficiently and effectively make

environmental documents and

information available for review by

interested persons, including electronic

publication, and adopted by agency

NEPA procedures pursuant to § 1507.3

of this subchapter.

(ff) Reasonable alternatives means a

reasonable range of alternatives that are

technically and economically feasible,

and meet the purpose and need for the

proposed action.

(gg) Reasonably foreseeable means

sufficiently likely to occur such that a

person of ordinary prudence would take

it into account in reaching a decision.

(hh) Referring agency means the

Federal agency that has referred any

matter to the Council after a

determination that the matter is

unsatisfactory from the standpoint of

public health or welfare or

environmental quality.

(ii) Scope consists of the range and

breadth of actions, alternatives, and

effects to be considered in an

environmental impact statement or

environmental assessment.

(jj) Senior agency official means an

official of assistant secretary rank or

higher (or equivalent) that is designated

for overall agency NEPA compliance,

including resolving implementation

issues.

(kk) Significant effects means adverse

effects that an agency has identified as

significant based on the criteria in

§ 1501.3(d) of this subchapter.

(ll) Special expertise means statutory

responsibility, agency mission, or

related program experience.

(mm) Tiering refers to the process

described in § 1501.11 of this

subchapter.

§ 1508.2 [Reserved]

[FR Doc. 2023–15405 Filed 7–28–23; 8:45 am]

BILLING CODE 3325–F3–P

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

National Environmental Policy Act Implementing Regulations Revisions Phase 2

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