Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act
| Court | Council On Environmental Quality |
| Citation | 85 FR 1684 |
| Published date | 10 January 2020 |
| Record Number | 2019-28106 |
Federal Register, Volume 85 Issue 7 (Friday, January 10, 2020)
[Federal Register Volume 85, Number 7 (Friday, January 10, 2020)]
[Proposed Rules]
[Pages 1684-1730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28106]
[[Page 1683]]
Vol. 85
Friday,
No. 7
January 10, 2020
Part IIICouncil on Environmental Quality-----------------------------------------------------------------------40 CFR Parts 1500, 1501, 1502, et al.Update to the Regulations Implementing the Procedural Provisions of the
National Environmental Policy Act; Proposed Rule
Federal Register / Vol. 85, No. 7 / Friday, January 10, 2020 /
Proposed Rules
[[Page 1684]]
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COUNCIL ON ENVIRONMENTAL QUALITY
40 CFR Parts 1500, 1501, 1502, 1503, 1504, 1505, 1507, and 1508
[CEQ-2019-0003]
RIN 0331-AA03
Update to the Regulations Implementing the Procedural Provisions
of the National Environmental Policy Act
AGENCY: Council on Environmental Quality.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In this action, the Council on Environmental Quality (CEQ) is
proposing to update its regulations for implementing the procedural
provisions of the National Environmental Policy Act (NEPA). CEQ has not
comprehensively updated its regulations since their promulgation in
1978, more than four decades ago. This proposed rule would modernize
and clarify the regulations to facilitate more efficient, effective,
and timely NEPA reviews by Federal agencies in connection with
proposals for agency action. The proposed amendments would advance the
original goals of the CEQ regulations to reduce paperwork and delays,
and promote better decisions consistent with the national environmental
policy set forth in section 101 of NEPA. If finalized, the proposed
rule would comprehensively update and substantially revise the 1978
regulations. CEQ invites comments on the proposed revisions.
DATES: CEQ must receive comments by March 10, 2020. CEQ will hold
public hearings on the following dates:
1. February 11, 2020, U.S. Environmental Protection Agency Region
8, 1595 Wynkoop Street, Denver, CO.
2. February 25, 2020, U.S. Department of the Interior, Yates
Auditorium, 1849 C Street NW, Washington, DC.
All attendees or speakers must register in advance. Details
concerning the hearings and information on additional outreach may be
found at www.nepa.gov and www.whitehouse.gov/ceq.
ADDRESSES: You may submit comments, identified by docket number CEQ-
2019-0003, by any of the following methods:
[ssquf] Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
[ssquf] Fax: 202-456-6546.
[ssquf] Mail: Council on Environmental Quality, 730 Jackson Place
NW, Washington, DC 20503.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. All comments received will be
posted without change to https://www.regulations.gov, including any
personal information provided. Do not submit electronically any
information you consider to be private, Confidential Business
Information (CBI), or other information whose disclosure 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: Edward A. Boling, Associate Director
for the National Environmental Policy Act, or Viktoria Z. Seale, Chief
of Staff and General Counsel, 202-395-5750, [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. National Environmental Policy Act (NEPA)
B. Council on Environmental Quality (CEQ) Regulations, Guidance,
and Reports
1. Regulatory History
2. CEQ Guidance and Reports
3. Environmental Impact Statement (EIS) Timelines and Page Count
Reports
C. Judicial Review of Agency NEPA Compliance
D. Statutory Developments
E. Presidential Directives
F. 2018 Advance Notice of Proposed Rulemaking Requesting Public
Comment on CEQ's NEPA Regulations
II. Summary of Proposed Rule
A. Proposed Changes Throughout Parts 1500-1508
B. Proposed Revisions To Update the Purpose, Policy, and Mandate
(Part 1500)
C. Proposed Revisions to NEPA and Agency Planning (Part 1501)
1. NEPA Threshold Applicability Analysis (Sec. 1501.1)
2. Apply NEPA Early in the Process (Sec. 1501.2)
3. Determine the Appropriate Level of NEPA Review (Sec. 1501.3)
4. Categorical Exclusions (CEs) (Sec. 1501.4)
5. Environmental Assessments (EAs) (Sec. 1501.5)
6. Findings of No Significant Impact (FONSIs) (Sec. 1501.6)
7. Lead and Cooperating Agencies (Sec. Sec. 1501.7 and 1501.8)
8. Scoping (Sec. 1501.9)
9. Time Limits (Sec. 1501.10)
10. Tiering and Incorporation by Reference (Sec. Sec. 1501.11
and 1501.12)
D. Proposed Revisions to Environmental Impact Statements (EISs)
(Part 1502)
1. Page Limits (Sec. 1502.7)
2. Draft, Final and Supplemental Statements (Sec. 1502.9)
3. EIS Format (Sec. Sec. 1502.10 and 1502.11)
4. Purpose and Need (Sec. 1502.13)
5. Alternatives (Sec. 1502.14)
6. Affected Environment and Environmental Consequences
(Sec. Sec. 1502.15 and 1502.16)
7. Submitted Alternatives, Information, and Analyses (Sec. Sec.
1502.17 and 1502.18)
8. Other Proposed Changes to Part 1502
E. Proposed Revisions To Commenting on Environmental Impact
Statements (Part 1503)
F. Proposed Revisions to Pre-Decisional Referrals to the Council
of Proposed Federal Actions Determined To Be Environmentally
Unsatisfactory (Part 1504)
G. Proposed Revisions to NEPA and Agency Decision Making (Part
1505)
H. Proposed Revisions to Other Requirements of NEPA (Part 1506)
I. Proposed Revisions to Agency Compliance (Part 1507)
J. Proposed Revisions to Definitions (Part 1508)
K. CEQ Guidance Documents
L. Additional Issues on Which CEQ Invites Comment
III. Rulemaking Analyses and Notices
A. Executive Order 12866, Regulatory Planning and Review;
Executive Order 13563, Improving Regulation and Regulatory Review;
and Executive Order 13771, Reducing Regulation and Controlling
Regulatory Costs
B. Regulatory Flexibility Act and Executive Order 13272, Proper
Consideration of Small Entities in Agency Rulemaking
C. National Environmental Policy Act
D. Executive Order 13132, Federalism
E. Executive Order 13175, Consultation and Coordination With
Indian Tribal Governments
F. Executive Order 12898, Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
G. Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
H. Executive Order 12988, Civil Justice Reform
I. Unfunded Mandate Reform Act
J. Paperwork Reduction Act
I. Background
The National Environmental Policy Act of 1969, 42 U.S.C. 4321 et
seq., (NEPA) was signed into law by President Nixon on January 1, 1970.
The Council on Environmental Quality (CEQ) initially issued guidelines
for implementing NEPA in 1970, revised those guidelines in 1973, and
subsequently promulgated its NEPA implementing regulations in 1978. The
original goals of those regulations were to reduce paperwork and
delays, and promote better decisions consistent with the national
environmental policy established by the Act.
Since their promulgation, however, there has been a need for
clarification of the regulations, and CEQ has issued over 30 guidance
documents to assist
[[Page 1685]]
Federal agencies in complying with NEPA and the CEQ regulations. Courts
also have issued numerous decisions addressing appropriate
implementation and interpretation of NEPA and the CEQ regulations,
resulting in a large body of case law. Additionally, Presidential
directives have been issued and legislation has been enacted to reduce
delays and expedite the implementation of NEPA and the CEQ regulations,
including for certain types of infrastructure projects. Notwithstanding
the issuance of guidance, Presidential directives, and legislation,
implementation of NEPA and the CEQ regulations can be challenging, and
the process can be lengthy, costly, and complex. In some cases, the
NEPA process and related litigation has slowed or prevented the
development of new infrastructure and other projects that required
Federal permits or approvals.
The background section below summarizes NEPA, the CEQ regulations,
and developments since CEQ issued those regulations. Specifically,
section I.A provides a brief summary of the NEPA statute. Section I.B
describes the history of CEQ's regulations implementing NEPA and
provides an overview of CEQ's numerous guidance documents and reports
issued subsequent to the regulations. Section I.C discusses the role of
the courts in interpreting NEPA. Section I.D provides a brief overview
of Congress's efforts, and section I.E describes the initiatives of
multiple administrations to reduce delays and improve implementation of
NEPA. Finally, section I.F provides the background on this rulemaking,
including the advance notice of proposed rulemaking (ANPRM).
In section II, CEQ provides a summary of the proposed rule, which,
if finalized, would comprehensively update and substantially revise
CEQ's current regulations. This proposed rule would modernize and
clarify the CEQ regulations to facilitate more efficient, effective,
and timely NEPA reviews by Federal agencies by simplifying regulatory
requirements, codifying certain guidance and case law relevant to these
proposed regulations, revising the regulations to reflect current
technologies and agency practices, eliminating obsolete provisions, and
improving the format and readability of the regulations. CEQ's proposed
revisions include provisions intended to promote timely submission of
relevant information to ensure consideration of such information by
agencies. CEQ's proposed revisions also are intended to provide greater
clarity for Federal agencies, States, Tribes, localities, and the
public, and to advance the original goals of the CEQ regulations to
reduce paperwork and delays and to promote better decisions consistent
with the national environmental policy set forth in section 101 of
NEPA.
A. National Environmental Policy Act (NEPA)
Congress enacted NEPA to establish a national policy for the
environment, provide for the establishment of CEQ, and for other
purposes. Section 101 of NEPA sets forth a national policy ``to use all
practicable means and measures, including financial and technical
assistance, in a manner calculated to foster and promote the general
welfare, to create and maintain conditions under which man 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). Section 102 of NEPA establishes procedural
requirements, applying that national policy to proposals for major
Federal actions significantly affecting the quality of the human
environment by requiring Federal agencies to prepare a detailed
statement on: (1) The environmental impact of the proposed action; (2)
any adverse effects that cannot be avoided; (3) alternatives to the
proposed action; (4) the relationship between local short-term uses of
man's environment and the maintenance and enhancement of long-term
productivity; and (5) any irreversible and irretrievable commitments of
resources that would be involved in the proposed action. 42 U.S.C.
4332(2)(C). NEPA also established CEQ as an agency within the Executive
Office of the President to administer Federal agency implementation of
NEPA. 42 U.S.C. 4342, 4344; see also Dep't of Transp. v. Pub. Citizen,
541 U.S. 752, 757 (2004).
NEPA does not mandate particular results or substantive outcomes.
Rather, NEPA requires Federal agencies to consider environmental
impacts of proposed actions as part of agencies' decision-making
processes. Additionally, NEPA does not include a private right of
action and specifies no remedies. Challenges to agency action alleging
non-compliance with NEPA procedures are brought under the
Administrative Procedure Act (APA). 5 U.S.C. 551 et seq. Accordingly,
NEPA cases proceed as APA cases.
B. Council on Environmental Quality (CEQ) Regulations, Guidance, and
Reports
1. Regulatory History
In 1970, President Nixon issued Executive Order (E.O.) 11514,
titled ``Protection and Enhancement of Environmental Quality,'' which
directed CEQ to ``[i]ssue guidelines to Federal agencies for the
preparation of detailed statements on proposals for legislation and
other Federal actions affecting the environment, as required by section
102(2)(C) of the Act.'' \1\ CEQ issued these guidelines in April of
1970 and revised them in 1973.\2\
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\1\ 35 FR 4247 (Mar. 7, 1970), Sec. 3(h).
\2\ See 35 FR 7391 (May 12, 1970) (interim guidelines); 36 FR
7724 (Apr. 23, 1971) (final guidelines); 38 FR 10856 (May 2, 1973)
(proposed revisions to guidelines); 38 FR 20550 (Aug. 1, 1973)
(revised guidelines).
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In 1977, President Carter issued E.O. 11991, titled ``Relating to
Protection and Enhancement of Environmental Quality.'' \3\ E.O. 11991
amended section 3(h) of E.O. 11514, directing CEQ to ``[i]ssue
regulations to Federal agencies for the implementation of the
procedural provisions of [NEPA] . . . to make the environmental impact
statement process more useful to decision[ ]makers and the public; and
to reduce paperwork and the accumulation of extraneous background data,
in order to emphasize the need to focus on real environmental issues
and alternatives,'' and to ``require [environmental] impact statements
to be concise, clear, and to the point, and supported by evidence that
agencies have made the necessary environmental analyses.'' E.O. 11991
also amended section 2 of E.O. 11514, requiring agency compliance with
the regulations issued by CEQ.
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\3\ 42 FR 26967 (May 25, 1977).
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In 1978, CEQ promulgated its ``Regulations for Implementing the
Procedural Provisions of the National Environmental Policy Act,'' 40
CFR parts 1500-1508 (``CEQ regulations'' or ``NEPA regulations''),
``[t]o reduce paperwork, to reduce delays, and at the same time to
produce better decisions [that] further the national policy to protect
and enhance the quality of the human environment.'' \4\ The Supreme
Court has afforded the CEQ regulations ``substantial deference.''
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 374 (1989)
(citing Andrus v. Sierra Club, 442 U.S. 347, 358 (1979)); see also Pub.
Citizen, 541 U.S. at 757 (``The [CEQ], established by NEPA with
authority to issue regulations
[[Page 1686]]
interpreting it, has promulgated regulations to guide [F]ederal
agencies in determining what actions are subject to that statutory
requirement.'' (citing 40 CFR 1500.3)); United States v. Mead Corp.,
533 U.S. 218, 227-30 (2001) (properly promulgated agency interpretative
regulations addressing ambiguities or gaps in a statute qualify for
Chevron deference); Nat'l Cable & Telecomm. Ass'n v. Brand X Internet
Servs., 545 U.S. 967, 980-81 (2005) (applying Chevron deference to
Federal Communications Commission regulations).
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\4\ 43 FR 55978 (Nov. 29, 1978); see also 44 FR 873 (Jan. 3,
1979) (technical corrections), and 43 FR 25230 (June 9, 1978)
(proposed rule).
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The Supreme Court has held that NEPA is a procedural statute that
serves the twin aims of ensuring that agencies consider the significant
environmental consequences of their proposed actions and inform the
public about their decision making. Balt. Gas & Elec. Co. v. Nat. Res.
Def. Council, Inc., 462 U.S. 87, 97 (1983) (citing Vt. Yankee Nuclear
Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 553 (1978);
Weinberger v. Catholic Action of Haw./Peace Educ. Project, 454 U.S.
139, 143 (1981)). Furthermore, in describing the role of NEPA in
agencies' decision-making processes, the Supreme Court has stated,
``Congress in enacting NEPA, however, did not require agencies to
elevate environmental concerns over other appropriate considerations.''
\5\ Balt. Gas & Elec. Co., 462 U.S. at 97 (citing Strycker's Bay
Neighborhood Council v. Karlen, 444 U.S. 223, 227 (1980) (per curiam)).
Instead, NEPA requires agencies to analyze the environmental
consequences before taking a major Federal action. Id. (citing Kleppe
v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)). The Supreme Court has
recognized that agencies have limited time and resources and that
``[t]he scope of the agency's inquiries must remain manageable if
NEPA's goal of `[insuring] a fully informed and well-considered
decision,' . . . is to be accomplished.'' Metro. Edison Co. v. People
Against Nuclear Energy, 460 U.S. 766, 776 (1983) (quoting Vt. Yankee,
435 U.S. at 558).
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\5\ Section 101 of NEPA provides that it is the Federal
Government's policy ``to use all practicable means and measures . .
. to create and maintain conditions under which man and natures 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) (emphasis added).
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CEQ has substantively amended its NEPA regulations only once, at 40
CFR 1502.22, to replace the ``worst case'' analysis requirement with a
provision for the consideration of incomplete or unavailable
information regarding reasonably foreseeable significant adverse
effects.\6\ CEQ found that the new 40 CFR 1502.22 ``will generate
information and discussion on those consequences of greatest concern to
the public and of greatest relevance to the agency's decision,'' \7\
rather than distorting the decision-making process by overemphasizing
highly speculative harms.\8\ The Supreme Court found this reasoning to
be a well-considered basis for the change, and that the new regulation
was entitled to substantial deference. Methow Valley, 490 U.S. at 356.
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\6\ 51 FR 15618 (Apr. 25, 1986).
\7\ 50 FR 32234, 32237 (Aug. 9, 1985).
\8\ 51 FR 15618, 15620 (Apr. 25, 1986).
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The CEQ regulations direct Federal agencies to adopt their own
implementing procedures to supplement the NEPA regulations. 40 CFR
1507.3. Under this regulation, agencies across the Federal Government
have developed such procedures.\9\
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\9\ A list of agency NEPA procedures is available at https://ceq.doe.gov/laws-regulations/agency_implementing_procedures.html.
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2. CEQ Guidance and Reports
Over the past four decades, numerous questions have been raised
regarding appropriate implementation of NEPA and the CEQ regulations.
Soon after the issuance of the CEQ regulations and in response to CEQ's
review of NEPA implementation and feedback from Federal, State, and
local officials, including NEPA practitioners, CEQ issued the ``Forty
Most Asked Questions Concerning CEQ's National Environmental Policy Act
Regulations'' \10\ in 1981 (``Forty Questions''). This guidance covered
a wide range of topics including alternatives, coordination among
applicants, lead and cooperating agencies, and integration of NEPA
documents with analysis for other environmental statutes. In addition,
CEQ has periodically examined the effectiveness of the NEPA process and
issued a number of reports on NEPA implementation. In some instances,
these reports led to additional guidance. These documents have been
intended to provide guidance and clarifications with respect to various
aspects of the implementation of NEPA and the definitions in the CEQ
regulations, and to increase the efficiency and effectiveness of the
environmental review process.\11\
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\10\ 46 FR 18026 (Mar. 23, 1981), https://www.energy.gov/nepa/downloads/forty-most-asked-questions-concerning-ceqs-national-environmental-policy-act.
\11\ See https://ceq.doe.gov/guidance/guidance.html.
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In January 1997, CEQ issued ``The National Environmental Policy
Act: A Study of Its Effectiveness After Twenty-five Years.'' \12\ In
that report, CEQ acknowledged that NEPA has ensured that agencies
adequately analyze the potential environmental consequences of their
actions and bring the public into the decision-making processes of
Federal agencies. However, CEQ also identified matters of concern to
participants in the study, including concerns with overly lengthy
documents that may not enhance or improve decision making,\13\ and
concerns that agencies may seek to `` `litigation-proof' documents,
increasing costs and time but not necessarily quality.'' \14\ The
report further stated that ``[o]ther matters of concern to participants
in the Study were the length of NEPA processes, the extensive detail of
NEPA analyses, and the sometimes confusing overlay of other laws and
regulations.'' \15\ The participants in the study identified five
elements of the NEPA process' collaborative framework (strategic
planning, public information and input, interagency coordination,
interdisciplinary place-based decision making, and science-based
flexible management) as critical to effective and efficient NEPA
implementation.
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\12\ https://ceq.doe.gov/docs/ceq-publications/nepa25fn.pdf.
\13\ Id. at iii.
\14\ Id.
\15\ Id. In the 50 years since the passage of NEPA, Congress has
amended or enacted a number of other environmental laws that may
also apply to proposed Federal agency actions, such as the
Endangered Species Act, the Clean Water Act, the Clean Air Act, and
other substantive statutes. See discussion infra section I.D.
Consistent with 40 CFR 1502.25, longstanding agency practice has
been to use the NEPA process as the umbrella procedural statute,
integrating compliance with these laws into the NEPA review and
discussing them in the NEPA document. However, this practice
sometimes leads to confusion as to whether analysis is done to
comply with NEPA or another, potentially substantive, environmental
law.
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In 2002, the Chairman of CEQ established a NEPA task force,
composed of Federal agency officials, to examine NEPA implementation by
focusing on (1) technology and information management and security; (2)
Federal and intergovernmental collaboration; (3) programmatic analyses
and tiering; (4) adaptive management and monitoring; (5) categorical
exclusions (CEs); and (6) environmental assessments (EAs). In 2003, the
task force issued a report \16\ recommending actions to improve and
modernize the
[[Page 1687]]
NEPA process, leading to additional guidance documents and handbooks.
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\16\ See The NEPA Task Force Report to the Council on
Environmental Quality, Modernizing NEPA Implementation (Sept. 2003)
(``NEPA Task Force Report''), https://ceq.doe.gov/docs/ceq-publications/report/finalreport.pdf.
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Over the past 4 decades, CEQ has issued over 30 documents to
provide guidance and clarifications to assist Federal agencies to more
efficiently and effectively implement NEPA. CEQ has issued guidance on
such topics as CEs,\17\ EAs, mitigation, and findings of no significant
impact (FONSIs),\18\ emergencies,\19\ programmatic NEPA reviews,\20\
timely environmental reviews,\21\ collaboration and conflict
resolution,\22\ purpose and need,\23\ effects,\24\ lead and cooperating
agencies, environmental justice,\25\ and other topics.\26\
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\17\ See Council on Environmental Quality, Final Guidance for
Federal Departments and Agencies on Establishing, Applying, and
Revising Categorical Exclusions under the National Environmental
Policy Act, 75 FR 75628 (Dec. 6, 2010) (``CE Guidance''), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf (clarifies the rules for
establishing, applying, and revising CEs, including methods for
substantiating CEs and the process to establish new CEs in agency
NEPA procedures).
\18\ See Final Guidance for Federal Departments and Agencies on
the Appropriate Use of Mitigation and Monitoring and Clarifying
Appropriate Use of Mitigated Findings of No Significant Impact, 76
FR 3843 (Jan. 21, 2011) (``Mitigation Guidance''), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf (explains the
requirements of NEPA and the NEPA regulations on establishing,
implementing, and monitoring mitigation commitments identified and
analyzed in EAs, environmental impact statements (EISs), and adopted
in decision documents).
\19\ See Emergencies and the National Environmental Policy Act
(``Emergencies Guidance''), https://ceq.doe.gov/docs/nepa-practice/Emergencies_and_NEPA.pdf.
\20\ See Effective Use of Programmatic NEPA Reviews (Dec. 18,
2014) (``Programmatics Guidance''), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Effective_Use_of_Programmatic_NEPA_Reviews_Final_Dec2014_searchable.pdf.
\21\ See Final Guidance on Improving the Process for Preparing
Efficient and Timely Environmental Reviews Under the National
Environmental Policy Act, 77 FR 14473 (Mar. 12, 2012) (``Timely
Environmental Reviews Guidance''), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Improving_NEPA_Efficiencies_06Mar2012.pdf
(clarifies and emphasizes tools in the NEPA regulations for
preparing efficient and timely environmental reviews for both EAs
and EISs).
\22\ See Memorandum on Environmental Conflict Resolution (Nov.
28, 2005), as expanded by Memorandum on Environmental Collaboration
and Conflict Resolution (Sept. 7, 2012), https://ceq.doe.gov/nepa-practice/environmental-collaboration-and-conflict-resolution.html
(supports constructive and timely approaches to resolve conflicts
over the use, conservation, and restoration of the environment,
natural resources, and public lands, including under NEPA).
\23\ See Letter from the Hon. James L. Connaughton, Chairman,
Council on Environmental Quality, to the Hon. Norman Y. Mineta,
Secretary, Department of Transportation (May 12, 2003)
(``Connaughton Letter''), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/CEQ-DOT_PurposeNeed_May-2013.pdf.
\24\ See Considering Cumulative Effects Under the National
Environmental Policy Act (Jan. 1997), https://ceq.doe.gov/publications/cumulative_effects.html.
\25\ See Environmental Justice: Guidance under the National
Environmental Policy Act (Dec. 10, 1997), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ej/justice.pdf.
\26\ See, e.g., Forty Questions, supra note 10; NEPA and NHPA:
Handbook for Integrating NEPA and Section 106 Reviews, https://ceq.doe.gov/publications/nepa-handbooks.html (clarifies and
emphasizes tools in the NEPA regulations for preparing efficient and
timely environmental reviews for both EAs and EISs); A Citizen's
Guide to the NEPA: Having Your Voice Heard, https://ceq.doe.gov/get-involved/citizens_guide_to_nepa.html.
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Despite CEQ guidance and regulations providing for concise, timely
documents, the documentation and timelines for completing environmental
reviews can be very lengthy, and the process can be complex and costly.
In 2018, CEQ and the Office of Management and Budget (OMB) issued a
memorandum titled ``One Federal Decision Framework for the
Environmental Review and Authorization Process for Major Infrastructure
Projects under E.O. 13807'' (``OFD Framework Guidance'').\27\ CEQ and
OMB issued this guidance pursuant to E.O. 13807, titled ``Establishing
Discipline and Accountability in the Environmental Review and
Permitting Process for Infrastructure Projects,'' \28\ to improve
agency coordination for infrastructure projects requiring an
environmental impact statement (EIS) and permits or other
authorizations from multiple agencies and to improve the timeliness of
the environmental review process. See E.O. 13807, infra I.D. Consistent
with the OFD Framework Guidance, supra note 27, Federal agencies signed
a memorandum of understanding committing to implement the One Federal
Decision (OFD) policy for major infrastructure projects, including by
committing to establishing a joint schedule for such projects,
preparation of a single EIS and joint record of decision (ROD),
elevation of delays and dispute resolution, and setting a goal of
completing environmental reviews for such projects within 2 years.\29\
Subsequently, CEQ and OMB issued guidance for the Secretary of
Transportation regarding the applicability of the OFD policy to States
under the Surface Transportation Project Delivery Program,\30\ and for
the Secretary of Housing and Urban Development (HUD) regarding the
applicability of the OFD policy to entities assuming HUD environmental
review responsibilities.\31\
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\27\ M-18-13 (Mar. 20, 2018), https://www.whitehouse.gov/wp-content/uploads/2018/04/M-18-13.pdf.
\28\ 82 FR 40463 (Aug. 24, 2017).
\29\ See Memorandum of Understanding Implementing One Federal
Decision under Executive Order 13807 (2018), https://www.whitehouse.gov/wp-content/uploads/2018/04/MOU-One-Federal-Decision-m-18-13-Part-2-1.pdf.
\30\ Guidance on the Applicability of E.O. 13807 to States with
NEPA Assignment Authority Under the Surface Transportation Project
Delivery Program (Feb. 26, 2019), https://www.whitehouse.gov/wp-content/uploads/2017/11/20190226OMB-CEQ327.pdf.
\31\ Guidance on the Applicability of E.O. 13807 to Responsible
Entities Assuming Department of Housing and Urban Development
Environmental Review Responsibilities, M-19-20 (June 28, 2019),
https://www.whitehouse.gov/wp-content/uploads/2019/06/M-19-20.pdf.
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3. Environmental Impact Statement (EIS) Timelines and Page Count
Reports
CEQ also has conducted reviews and prepared reports on the length
of time it takes for agencies to prepare EISs and the length of these
documents. These reviews found that the process for preparing EISs is
taking much longer than CEQ advised, and that the documents are far
longer than the CEQ regulations and guidance recommended. In December
2018, CEQ issued a report compiling information relating to the
timelines for preparing EISs during the period of 2010-2017. While
CEQ's Forty Questions states that the time for an EIS, even for a
complex project, should not exceed 1 year,\32\ CEQ found that, across
the Federal Government, the average time for completion of an EIS and
issuance of a ROD was over 4.5 years and the median was 3.6 years.\33\
One quarter of the EISs took less than 2.2 years, and one quarter of
the EISs took more than 6 years.
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\32\ Question 35, Forty Questions, supra note 10.
\33\ See Council on Environmental Quality, Environmental Impact
Statement Timelines (2010-2017), (Dec. 14, 2018), https://ceq.doe.gov/nepa-practice/eis-timelines.html.
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As reflected in that report, the period from publication of a
notice of intent (NOI) to prepare an EIS to the notice of availability
of the draft EIS took, on average, 58 percent of the total time, while
preparing the final EIS, including addressing comments received on the
draft EIS, took, on average, 32 percent of the total time. The period
from the final EIS to publication of the ROD took, on average, 10
percent of the total time. This report recognized that EIS timelines
vary widely, and many factors may influence the timing of the document,
including variations in the scope and complexity of the actions,
variations in the extent of work done prior to issuance of the NOI, and
suspension of EIS activities due to external factors.
Additionally, in July 2019, CEQ issued a report on the length, by
page
[[Page 1688]]
count, of EISs (excluding appendices) finalized during the period of
2013-2017. While the CEQ regulations include recommended page limits
for the text of final EISs of normally less than 150 pages, or normally
less than 300 pages for proposals of ``unusual scope or complexity,''
40 CFR 1502.7, CEQ found that many EISs are significantly longer. In
particular, CEQ found that across all Federal agencies, draft EISs
averaged 586 pages in total, with a median document length of 403
pages.\34\ One quarter of the draft EISs were 288 pages or shorter, and
one quarter were 630 pages or longer. For final EISs, the mean document
length was 669 pages, and the median document length was 445 pages. One
quarter of the final EISs were 299 pages or shorter, and one quarter
were 729 pages or longer. On average, the change in document length
from draft EIS to final EIS was an additional 83 pages or a 14 percent
increase.
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\34\ See Council on Environmental Quality, Length of
Environmental Impact Statements (2013-2017), (July 22, 2019),
https://ceq.doe.gov/nepa-practice/eis-length.html.
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With respect to final EISs, CEQ found that approximately 7 percent
were 150 pages or shorter, and 25 percent were 300 pages or shorter.
Similar to the conclusions of its EIS timelines study, CEQ noted that a
number of factors may influence the length of EISs, including variation
in scope and complexity of the decisions that the EIS is designed to
inform, the degree to which NEPA documentation is used to document
compliance with other statutes, and considerations relating to
potential legal challenges. Moreover, variation in EIS length may
reflect differences in management, oversight, and contracting practices
among agencies that could result in longer documents.
While there can be many factors affecting the timelines and length
of EISs, CEQ has concluded that revisions to the CEQ regulations to
advance more timely reviews and reduce unnecessary paperwork are
warranted. CEQ has determined that improvements to agency processes,
such as improved coordination in the development of EISs, can achieve
more useful and timely documents to support agency decision making.
C. Judicial Review of Agency NEPA Compliance
Over the past 50 years, Federal courts have issued an extensive
body of case law interpreting NEPA and the CEQ regulations. The Supreme
Court has directly addressed NEPA in 17 decisions, and the U.S.
district and appellate courts issue approximately 100 to 140 decisions
each year interpreting NEPA. The Supreme Court has construed NEPA and
the CEQ regulations in light of a ``rule of reason,'' which ensures
that agencies determine whether and to what extent to prepare an EIS
based on the usefulness of information to the decision-making process.
See Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 373-74 (1989).
``Although [NEPA] procedures are almost certain to affect the agency's
substantive decision, it is now well settled that NEPA itself does not
mandate particular results, but simply prescribes the necessary
process.'' Methow Valley, 490 U.S. at 350; Pub. Citizen, 541 U.S. at
756-57 (``NEPA imposes only procedural requirements on [F]ederal
agencies with a particular focus on requiring agencies to undertake
analyses of the environmental impact of their proposals and actions.''
(citing Methow Valley, 490 U.S. at 349-50)). The extensive body of case
law interpreting NEPA and the current CEQ regulations drives much of
agencies' modern day practice. A challenge for agencies is that courts
have interpreted key terms and requirements differently, adding to the
complexity of environmental reviews. As discussed below, the proposed
regulations would codify longstanding case law in some instances, and,
in other instances, clarify the meaning of the regulations where there
is a lack of uniformity in judicial interpretation of NEPA and the CEQ
regulations.
D. Statutory Developments
Following enactment of NEPA in 1970 and over the past four decades,
Congress has amended or enacted a large number of substantive
environmental statutes. These have included significant amendments to
the Clean Water Act and Clean Air Act, establishment of new Federal
land management standards and planning processes for National forests,
public lands, and coastal zones, and statutory requirements to conserve
fish, wildlife, and plant species.\35\ Additionally, the consideration
of the effects on historic properties under the National Historic
Preservation Act is typically integrated into the NEPA review.\36\ NEPA
has served as the umbrella procedural statute, integrating these laws
into NEPA reviews and discussing them in NEPA documents.
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\35\ See, e.g., the Clean Air Act, 42 U.S.C. 7401-7671q; Clean
Water Act, 33 U.S.C. 1251-1388; Coastal Zone Management Act, 16
U.S.C. 1451-1466; Federal Land Policy and Management Act, 43 U.S.C.
1701-1787; Forest and Rangeland Renewable Resources Planning Act of
1974, 16 U.S.C. 1600-1614; Magnuson-Stevens Fishery Conservation and
Management Act, 16 U.S.C. 1801-1884; Endangered Species Act, 16
U.S.C. 1531-1544; Oil Pollution Act of 1990, 33 U.S.C. 2701-2762;
Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1201,
1202, and 1211; and Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. 9601-9675.
\36\ Similar to NEPA, section 106 (54 U.S.C. 306108) of the
National Historic Preservation Act is a procedural statute.
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Over the past two decades and multiple administrations, Congress
has also undertaken efforts to facilitate more efficient environmental
reviews by Federal agencies, and has enacted a number of statutes aimed
at improving the implementation of NEPA, including in the context of
infrastructure projects. In particular, Congress enacted legislation to
improve coordination among agencies, integrate NEPA with other
environmental reviews, and bring more transparency to the NEPA process.
In 2005, Congress enacted 23 U.S.C. 139, ``Efficient environmental
reviews for project decisionmaking,'' a streamlined environmental
review process for highway, transit, and multimodal transportation
projects (the ``section 139 process''), in the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users
(SAFETEA-LU), Public Law 109-59, section 6002(a), 119 Stat. 1144, 1857.
Congress amended section 139 with additional provisions designed to
improve the NEPA process in the 2012 Moving Ahead for Progress in the
21st Century Act (MAP-21), Public Law 112-141, sections 1305-1309, 126
Stat. 405, and the 2015 Fixing America's Surface Transportation (FAST)
Act, Public Law 114-94, section 1304, 129 Stat. 1312, 1378. Section 139
provides for an environmental review process that is based on the NEPA
regulations and codifies many aspects of the regulations, including
provisions relating to lead and cooperating agencies, concurrent
environmental reviews in a single NEPA document, coordination on the
development of the purpose and need statement and reasonable
alternatives, and adoption of environmental documents. Further, section
139 provides for referral to CEQ for issue resolution, similar to part
1504 of the NEPA regulations, and allows for the use of errata sheets,
consistent with 40 CFR 1503.4(c).\37\
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\37\ To facilitate the NEPA process for transportation projects
subject to section 139, the statute specifically calls for
development of a coordination plan, including development of a
schedule, and publicly tracking the implementation of that schedule
through use of the Permitting Dashboard. In addition, the section
139 process provides for ``participating'' agencies, which are any
agencies invited to participate in the environmental review process.
Section 139 also requires, to the maximum extent practicable,
issuance of a combined final EIS and ROD.
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[[Page 1689]]
When Congress enacted section 2045 of the Water Resources
Development Act of 2007, Public Law 110-114, 121 Stat. 1041, 1103, it
created a similar environmental review provision for water resources
development projects by the U.S. Army Corps of Engineers. 33 U.S.C.
2348.\38\ This project acceleration provision also requires a
coordinated environmental review process, provides for dispute
resolution, and codifies aspects of the NEPA regulations such as lead
and cooperating agencies, concurrent environmental reviews, and the
establishment of CEs. Section 2348(o) also directs the Corps to consult
with CEQ on the development of guidance for implementing this
provision.
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\38\ Congress significantly revised this provision in the Water
Resources Reform and Development Act of 2014, Public Law 113-121,
1005(a)(1), 128 Stat. 1193, 1199.
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Most recently, in 2015 Congress enacted Title 41 of the FAST Act
(FAST-41), to provide for a more efficient environmental review and
permitting process for ``covered projects.'' See Public Law 114-94,
Sec. 41001-41014, 129 Stat. 1312, 1741 (42 U.S.C. 4370m--4370m-12).
These are projects that require Federal environmental review under
NEPA, are expected to exceed $200 million, and involve the construction
of infrastructure for certain energy production, electricity
transmission, water resource projects, broadband, pipelines,
manufacturing, and other sectors. Id. FAST-41 codified certain roles
and responsibilities required by the NEPA regulations. In particular,
FAST-41 imports the concepts of lead and cooperating agencies, and the
different levels of NEPA analysis--EISs, EAs, and CEs. Consistent with
40 CFR 1501.5(e) through (f), CEQ is required to resolve any dispute
over designation of a facilitating or lead agency for a covered
project. 42 U.S.C. 4370m-2(a)(6)(B). Section 4370m-4 codified several
requirements from the CEQ regulations, including the requirement for
concurrent environmental reviews, which is consistent with 40 CFR
1500.2(c), 1501.7(a)(6) and 1502.25(a), and the tools of adoption,
incorporation by reference, supplementation, and use of State
documents, consistent with 40 CFR 1506.3, 1502.21, 1502.9(c) and
1506.2.\39\ Finally, 42 U.S.C. 4370m-4 addresses interagency
coordination on key aspects of the NEPA process including scoping (40
CFR 1501.7), identification of the range of reasonable alternatives for
study in an EIS (40 CFR 1502.14), and the public comment process (40
CFR part 1503).
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\39\ For covered projects, section 4370m-4 authorizes lead
agencies to adopt or incorporate by reference existing environmental
analyses and documentation prepared under State laws and procedures
if the analyses and documentation meet certain requirements. 42
U.S.C. 4370m-4(b)(1)(A)(i). This provision also requires that the
lead agency, in consultation with CEQ, determine that the analyses
and documentation were prepared using a process that permitted
public participation and consideration of environmental
consequences, alternatives, and other required analyses that are
substantially equivalent to what a Federal agency would have
prepared pursuant to NEPA. Id.
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To ensure a timely NEPA process so that important infrastructure
projects can move forward, Congress has also established shorter
statutes of limitations for challenges to certain types of projects.
SAFETEA-LU created a 180-day statute of limitations for highway or
public transportation capital projects, which MAP-21 later reduced to
150 days. 23 U.S.C. 139(l). The Water Resources Reform and Development
Act of 2014 established a three-year statute of limitations for
judicial review of any permits, licenses, or other approvals for water
resources development project studies. 33 U.S.C. 2348(k). Most recently
in FAST-41, Congress established a two-year statute of limitations for
covered projects. 42 U.S.C. 4370m-6.
There are a number of additional instances where Congress has
enacted legislation to facilitate more timely environmental reviews.
For example, similar to the provisions described above, there are other
statutes where Congress has called for a coordinated and concurrent
environmental review. See, e.g., 33 U.S.C. 408(b) (concurrent review
for river and harbor permits); 49 U.S.C. 40128 (coordination on
environmental reviews for air tour management plans for national
parks); 49 U.S.C. 47171 (expedited and coordinated environmental review
process for airport capacity enhancement projects).
Additionally, Congress has established or directed agencies to
establish CEs to facilitate NEPA compliance. See, e.g., 16 U.S.C.
6554(d) (applied silvicultural assessment and research treatments); 16
U.S.C. 6591d (hazardous fuels reduction projects to carry out forest
restoration treatments); 16 U.S.C. 6591e (vegetation management
activity in greater sage-grouse or mule deer habitat); 33 U.S.C. 2349
(actions to repair, reconstruct, or rehabilitate water resources
projects in response to emergencies); 42 U.S.C. 15942 (certain
activities for the purpose of exploration or development of oil or
gas); 43 U.S.C. 1772(c)(5) (development and approval of vegetation
management, facility inspection, and operation and maintenance plans);
MAP-21, Public Law 112-141, Sec. 1315 (actions to repair or
reconstruct roads, highways, or bridges damaged by emergencies), 1316
(projects within the operational right-of-way), and 1317 (projects with
limited Federal assistance); FAA Modernization and Reform Act of 2012,
Public Law 112-95, 213(c), 126 Stat. 11, 46 (navigation performance and
area navigation procedures); and Omnibus Appropriations Act, 2009,
Public Law 111-8, 423, 123 Stat. 524, 748 (Lake Tahoe Basin Management
Unit hazardous fuel reduction projects).
Further, in the context of emergency response, Congress has
directed the use or development of alternative arrangements in
accordance with 40 CFR 1506.11 for reconstruction of transportation
facilities damaged in an emergency (FAST Act, Pub. L. 114-94, 1432, 129
Stat. 1429) and for projects by the Departments of the Interior and
Commerce to address invasive species (Water Infrastructure Improvements
for the Nation Act, Pub. L. 114-322, 4010(e)(3), 130 Stat. 1628, 1877).
In 2013, Congress also enacted section 429 of the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (``Stafford Act''), 42
U.S.C. 5189g, which directed the President, in consultation with CEQ
and the Advisory Council on Historic Preservation, to ``establish an
expedited and unified interagency review process to ensure compliance
with environmental and historic requirements under Federal law relating
to disaster recovery projects, in order to expedite the recovery
process, consistent with applicable law.'' Sandy Recovery Improvement
Act of 2013, Public Law 113-2, 1106, 127 Stat. 4, 45. This unified
Federal environmental and historic preservation review (UFR) process is
a framework for coordinating Federal agency environmental and historic
preservation reviews for disaster recovery projects associated with
Presidentially declared disasters under the Stafford Act. The goal of
the UFR process is to enhance the ability of the Federal environmental
review and authorization processes to inform and expedite disaster
recovery decisions for grant applicants and other potential
beneficiaries of disaster assistance by improving coordination and
consistency across Federal agencies, and assisting agencies in better
leveraging their resources and tools.\40\
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\40\ See generally Memorandum of Understanding Establishing the
Unified Federal Environmental and Historic Preservation Review
Process for Disaster Recovery Projects (July 29, 2014), https://www.fema.gov/unified-federal-environmental-and-historic-preservation-review-presidentially-declared-disasters.
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These statutes demonstrate that Congress has recognized that the
[[Page 1690]]
environmental review process can be made more efficient and effective,
including for infrastructure projects. Congress also has identified
specific process improvements that can accelerate environmental
reviews, including improved interagency coordination, concurrent
reviews, and increased transparency.
E. Presidential Directives
Over the past two decades and multiple administrations, Presidents
also have recognized the need to improve the environmental review
process to make it more timely and efficient, and have directed
agencies, through Executive Orders and Presidential memoranda, to
undertake various initiatives to address these issues. In 2002,
President Bush issued E.O. 13274, titled ``Environmental Stewardship
and Transportation Infrastructure Project Reviews,'' \41\ which stated
that the development and implementation of transportation
infrastructure projects in an efficient and environmentally sound
manner is essential, and directed agencies to conduct environmental
reviews for transportation projects in a timely manner.
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\41\ 67 FR 59449 (Sept. 23, 2002).
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In 2011, President Obama's memorandum titled ``Speeding
Infrastructure Development through More Efficient and Effective
Permitting and Environmental Review'' \42\ directed certain agencies to
identify up to three high-priority infrastructure projects for
expedited environmental review and permitting decisions to be tracked
publicly on a ``centralized, online tool.'' This requirement led to the
creation of what is now the Permitting Dashboard,
www.permits.performance.gov.
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\42\ https://www.govinfo.gov/content/pkg/DCPD-201100601/pdf/DCPD-201100601.pdf.
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In 2012, E.O. 13604, titled ``Improving Performance of Federal
Permitting and Review of Infrastructure Projects,'' \43\ established an
interagency Steering Committee on Federal Infrastructure Permitting and
Review Process Improvement (``Steering Committee'') to facilitate
improvements in Federal permitting and review processes for
infrastructure projects. The E.O. directed the Steering Committee to
develop a plan ``to significantly reduce the aggregate time required to
make Federal permitting and review decisions on infrastructure projects
while improving outcomes for communities and the environment.''
Similarly, E.O. 13616, titled ``Accelerating Broadband Infrastructure
Deployment,'' \44\ established an interagency working group to, among
other things, avoid duplicative reviews and coordinate review processes
to advance broadband deployment.
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\43\ 77 FR 18887 (Mar. 28, 2012).
\44\ 77 FR 36903 (June 20, 2012).
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A 2013 Presidential Memorandum titled ``Modernizing Federal
Infrastructure Review and Permitting Regulations, Policies, and
Procedures'' \45\ directed the Steering Committee established by E.O.
13604 to work with agencies, OMB, and CEQ to ``modernize Federal
infrastructure review and permitting regulations, policies, and
procedures to significantly reduce the aggregate time required by the
Federal Government to make decisions in the review and permitting of
infrastructure projects, while improving environmental and community
outcomes'' and develop a plan to achieve this goal. Among other things,
the memorandum directed that the plan create process efficiencies,
including additional use of concurrent and integrated reviews; expand
coordination with State, Tribal, and local governments; and expand the
use of information technology tools. CEQ and OMB led the effort to
develop a comprehensive plan to modernize the environmental review and
permitting process while improving environmental and community
outcomes, including budget proposals for funding and new authorities.
Following the development of the plan, CEQ continued to work with
agencies to improve the permitting process, including through expanded
collection of timeframe metrics on the Permitting Dashboard. In late
2015, these ongoing efforts were superseded by the enactment of FAST-
41, which codified the use of the Permitting Dashboard, established the
Federal Permitting Improvement Steering Council (Permitting Council),
and established other requirements for managing the environmental
review and permitting process for covered infrastructure projects.
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\45\ 78 FR 30733 (May 22, 2013).
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On August 15, 2017, President Trump issued E.O. 13807 titled,
``Establishing Discipline and Accountability in the Environmental
Review and Permitting Process for Infrastructure.'' \46\ Section
5(e)(i) directed CEQ to develop an initial list of actions to enhance
and modernize the Federal environmental review and authorization
process, including issuing such regulations as CEQ deems necessary to:
(1) Ensure optimal interagency coordination of environmental review and
authorization decisions; (2) ensure that multi-agency environmental
reviews and authorization decisions are conducted in a manner that is
concurrent, synchronized, timely, and efficient; (3) provide for use of
prior Federal, State, Tribal, and local environmental studies,
analysis, and decisions; and (4) ensure that agencies apply NEPA in a
manner that reduces unnecessary burdens and delays, including by using
CEQ's authority to interpret NEPA to simplify and accelerate the NEPA
review process. In response to E.O. 13807, CEQ published an initial
list of actions and stated its intent to review its existing NEPA
regulations in order to identify potential revisions to update and
clarify these regulations.\47\
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\46\ 82 FR 40463 (Aug. 24, 2017).
\47\ 82 FR 43226 (Sept. 14, 2017).
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F. 2018 Advance Notice of Proposed Rulemaking Requesting Public Comment
on CEQ's NEPA Regulations
Consistent with E.O. 13807 and CEQ's initial list of actions, and
given the length of time since CEQ issued its regulations, on June 20,
2018, CEQ published an advance notice of proposed rulemaking (ANPRM)
titled ``Update to the Regulations for Implementing the Procedural
Provisions of the National Environmental Policy Act.'' \48\ The ANPRM
requested public comments on how CEQ could ensure a more efficient,
timely, and effective NEPA process consistent with the Act's national
environmental policy and provided for a 30-day comment period. In
response to comments, CEQ extended the comment period 31 additional
days to August 20, 2018.\49\
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\48\ 83 FR 28591 (June 20, 2018).
\49\ 83 FR 32071 (July 11, 2018).
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The ANPRM requested comment on potential revisions to update and
clarify the NEPA regulations, and included a list of questions on
specific aspects of the regulations. For example, with respect to the
NEPA process, the ANPRM asked whether there are provisions that CEQ
could revise to ensure more efficient environmental reviews and
authorization decisions, such as facilitating agency use of existing
environmental studies, analyses and decisions, as well as improving
interagency coordination. The ANPRM also requested comments on the
scope of NEPA reviews, including whether CEQ should revise, clarify, or
add definitions. The ANPRM also asked whether additional revisions
relating to environmental documentation issued pursuant to NEPA,
including CEs, EAs, EISs, and other documents, would be appropriate.
Finally, the ANPRM requested general comments, including
[[Page 1691]]
whether there were obsolete provisions that CEQ could update to reflect
new technologies or make the process more efficient, or that CEQ could
revise to reduce unnecessary burdens or delays.
In response to the ANPRM, CEQ received over 12,500 comments, which
are available for public review.\50\ These included comments from a
wide range of stakeholders, including States, Tribes, localities,
environmental organizations, trade associations, NEPA practitioners,
and interested members of the public. While some commenters opposed any
updates to the current regulations, other commenters urged CEQ to
consider potential revisions. While the approaches to the update of the
NEPA regulations varied, most of the substantive comments supported
some degree of updating of the current regulations. Many noted that
overly lengthy documents and the time required for the NEPA process
remain real and legitimate concerns despite the NEPA regulations'
explicit direction with respect to reducing paperwork and delays. In
general, numerous commenters requested that CEQ consider revisions to
modernize its regulations, reduce unnecessary burdens and costs, and
make the NEPA process more efficient, effective, and timely. Discussion
of comments is provided in more detail in section II below.
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\50\ See https://www.regulations.gov, docket no. CEQ-2018-0001.
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II. Summary of Proposed Rule
In this proposed rule, CEQ would revise and modernize its NEPA
regulations to facilitate more efficient, effective, and timely NEPA
reviews by Federal agencies. The proposed updates and clarifications to
its regulations are based on CEQ's record evaluating the implementation
of its NEPA regulations and on comments provided in response to the
ANPRM. The proposed updates and clarifications seek to advance the
stated objectives of the current regulations, as adopted in 1978,
``[t]o reduce paperwork, to reduce delays, and at the same time to
produce better decisions [that] further the national policy to protect
and enhance the quality of the human environment.'' \51\
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\51\ 43 FR 55978 (Nov. 29, 1978).
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CEQ specifically proposes various revisions to align the
regulations with the text of the NEPA statute, including revisions to
reflect the procedural nature of section 102(2) of NEPA. CEQ also
proposes revisions to ensure that environmental documents prepared
pursuant to NEPA are concise and serve their purpose of informing
decision makers regarding the significant potential environmental
effects of proposed major Federal actions and the public of the
environmental issues in the pending decision-making process. CEQ also
proposes revisions to ensure that the regulations reflect changes in
technology, increase public participation in the process, and
facilitate the use of existing studies, analyses and environmental
documents prepared by States, Tribes, and local governments.
CEQ also proposes revisions to its regulations consistent with the
One Federal Decision policy (``OFD policy'') established by E.O. 13807
for multi-agency review and related permitting and other authorization
decisions. The E.O. specifically instructed CEQ to take steps to ensure
optimal interagency coordination, including through a concurrent,
synchronized, timely, and efficient process for environmental reviews
and authorization decisions. In response to the ANPRM, CEQ received
many suggestions to codify key aspects of the OFD policy in the NEPA
regulations, including by providing greater specificity on the roles
and responsibilities of lead and cooperating agencies. Commenters also
suggested that the regulations require agencies to establish and adhere
to timetables for the completion of reviews, another key element of the
OFD policy. In response to these comments and to promote interagency
coordination and more timely and efficient reviews, CEQ proposes to
codify and make generally applicable a number of key elements from
expedited procedures and the OFD policy, including development by the
lead agency of a joint schedule, procedures to elevate delays or
disputes, preparation of a single EIS and joint ROD to the extent
practicable, and a two-year goal for completion of environmental
reviews. Consistent with section 104 of NEPA (42 U.S.C. 4334),
codification of these policies will not limit or affect the authority
or legal responsibilities of agencies under other statutory mandates
that may be covered by joint schedules, and CEQ proposes language to
that effect in Sec. 1500.6.\52\
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\52\ In the preamble, CEQ uses the section symbol (Sec. ) 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.
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CEQ also proposes revisions to clarify the process and
documentation required for complying with NEPA by amending part 1501 to
add sections on threshold considerations and determining the
appropriate level of review; add a section on CEs; and revise sections
on EAs, FONSIs, and EISs in part 1502. CEQ further proposes a number of
revisions to promote more efficient and timely environmental reviews,
including revisions to promote interagency coordination by amending
sections of parts 1501, 1506, and 1507 relating to lead, cooperating
agencies, timing of agency action, scoping, and agency NEPA procedures.
CEQ proposes additional revisions to promote a more efficient and
timely NEPA process by amending parts 1501, 1506, and 1507 relating to
applying NEPA early in the process, scoping, tiering, adoption, use of
current technologies, and avoiding duplication of State, Tribal, and
local environmental reviews; revisions to parts 1501 and 1502 to
provide for presumptive time and page limits; and revisions to clarify
the definitions by amending part 1508.
CEQ also includes provisions to promote informed decision making
and to inform the public about the decision-making process. In parts
1500, 1501, 1502, and 1503, CEQ proposes amendments to ensure agencies
solicit and consider relevant information early in the development of
the draft EIS. In particular, CEQ proposes to direct agencies in the
notice of intent (NOI) to request public comment on potential
alternatives and impacts, and identification of any relevant
information and analyses concerning impacts affecting the quality of
the human environment. Additionally, CEQ proposes to direct agencies to
include a new section in the draft and final EIS summarizing all
alternatives, information, and analyses submitted by the public and to
request comment on the completeness of the summary included in the
draft EIS.
CEQ further proposes to make revisions to part 1503 to ensure that
comments are timely submitted on the draft EIS and on the completeness
of the summary of information submitted by the public, and that
comments are as specific as possible. Additionally, CEQ proposes a
provision in Sec. 1502.18 to require that, based on the summary of the
alternatives, information, and analyses section, the decision maker for
the lead agency certify that the agency has considered such
information. This will advance the purposes of the directive in E.O.
11991 to ensure that EISs are supported by evidence that agencies have
made the necessary environmental analyses. See E.O. 11991, Sec. 1
amending E.O. 11514, Sec. 3(h). Upon certification, the proposed
provisions in Sec. Sec. 1500.3 and 1502.18 would establish a
conclusive presumption that the agency has considered such information.
In conjunction with the certification requirement, this presumption is
[[Page 1692]]
consistent with the longstanding presumption of regularity that
government officials have properly discharged their official duties.
See U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001) (``[W]e note
that a presumption of regularity attaches to the actions of government
agencies.'' (citing United States v. Chem. Found., Inc., 272 U.S. 1,
14-15 (1926)). This is also consistent with case law upholding
regulatory presumptions. See, e.g., Allentown Mack Sales & Serv. v.
Nat'l Labor Relations Bd., 522 U.S. 359 (1998); Fed. Commc'ns Comm'n v.
Schreiber, 381 U.S. 279 (1965).
Finally, CEQ proposes changes to make the regulations easier to
understand and apply. This includes proposed revisions to simplify and
clarify key definitions in Sec. 1508.1. CEQ also proposes certain
changes to move and consolidate operative language from the definitions
to the relevant regulatory provisions, while leaving the definitional
language in the definitions section. In the existing regulations,
provisions on certain topics are scattered throughout, making it
unnecessarily difficult to navigate the requirements. In some cases,
the NEPA regulations address topics in multiple sections and sometimes
multiple parts. CEQ proposes to revise the regulations to consolidate
provisions and reduce duplication. Such consolidation, reordering, or
reorganizing also would promote greater clarity and ease of use.
A. Proposed Changes Throughout Parts 1500-1508
CEQ proposes several revisions throughout parts 1500-1508 to
provide consistency, improve clarity, and correct grammatical errors.
CEQ proposes to make certain grammatical corrections in the regulations
where it proposes other changes to the regulations to achieve the goals
of this rulemaking, or where CEQ determined the changes are necessary
for the reader to understand fully the meaning of the sentence. CEQ
proposes to revise sentences from passive voice to active voice where
it is helpful to identify the responsible parties. CEQ also proposes to
replace the word ``insure'' with ``ensure,'' consistent with modern
usage. Finally, CEQ proposes to add paragraph letters or numbers to
certain introductory paragraphs where it would improve clarity. CEQ
invites comment on whether it should make these types of changes
throughout the rule or if there are additional specific instances where
CEQ should make these types of changes.
CEQ proposes to add ``Tribal'' to the phrase ``State and local''
throughout the rule to ensure consultation with Tribal entities and to
reflect existing NEPA practice to coordinate or consult with affected
Tribal governments and agencies, as necessary and appropriate for a
proposed action. This proposed change is also in response to comments
on the ANPRM supporting expansion of the recognition of the sovereign
rights, interests, and expertise of Tribes. CEQ proposes to eliminate
the provisions in the current regulations that limit Tribal interest to
reservations. See proposed Sec. Sec. 1501.8(a), 1502.16(a)(5),
1503.1(a)(2)(ii), and 1506.6(b)(3)(ii). The proposed changes are
consistent with and in support of government-to-government consultation
pursuant to E.O. 13175, titled ``Consultation and Coordination With
Indian Tribal Governments.'' \53\
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\53\ 65 FR 67249 (Nov. 9, 2000).
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CEQ proposes several changes for consistent use of certain terms.
In particular, CEQ proposes to change ``entitlements'' to the defined
term ``authorizations'' throughout the proposed regulation and added
``authorizations'' where appropriate to reflect the mandate in E.O.
13807 for better integration and coordination of authorization
decisions and related environmental reviews. CEQ proposes conforming
edits to add or change ``entitlements'' to ``authorizations'' in
proposed Sec. Sec. 1501.2(a), 1501.7(i), 1501.9(d)(4) and (f)(4),
1502.13, 1502.25(b), 1503.3(d), 1506.2, and the definitions of
authorization and participating agency in Sec. 1508.1(c) and (w).
CEQ proposes to use the term ``decision maker'' to refer to an
individual responsible for making decisions on agency actions and to
define the term ``senior agency official'' to refer to an individual
with responsibilities for NEPA compliance. Under the proposed rule, the
senior agency official would be an official of assistant secretary rank
or higher who is responsible for agency compliance. The
responsibilities of this position in the proposed regulations would be
consistent with the responsibilities of senior agency officials in E.O.
13807 to whom anticipated missed or extended permitting timetable
milestones are elevated. The proposed regulations would set forth a
variety of responsibilities for senior agency officials, such as
approval to exceed page or time limits. See proposed Sec. Sec.
1501.5(e), 1501.7(d), 1501.8(b)(6) and (c), 1501.10, 1502.7, and
1507.2.
CEQ proposes to replace ``circulate'' or ``circulation'' with
``publish'' or ``publication'' throughout the rule and make ``publish''
a defined term that provides agencies with the flexibility to make
environmental review and information available to the public by
electronic means not available at the time of promulgation of the CEQ
regulations in 1978. Historically, the practice of circulation included
mailing of hard copies or providing electronic copies on disks or CDs.
While it may be necessary to provide a hard copy or copy on physical
media in limited circumstances, agencies now provide most documents in
an electronic format by posting them online and using email or other
electronic forms of communication to notify interested or affected
parties. This change would help reduce paperwork and delays, and
modernize the NEPA process to be more accessible to the public. CEQ
proposes these changes in proposed Sec. Sec. 1500.4(o), 1501.2(b)(2),
1502.9, 1502.20, 1502.21, 1503.4(c), 1506.3, and 1506.8(c)(2).
CEQ proposes to change the term ``possible'' to ``practicable'' in
proposed Sec. Sec. 1501.7(h)(1) and (2), 1501.9(b)(1), 1502.5,
1502.9(b), 1504.2, and 1506.2(b) and (c). ``Practicable'' is the more
commonly used term in regulations to convey the ability for something
to be done, considering the cost, including time required, technical
and economic feasibility, and the purpose and need for agency action.
Similarly, CEQ proposes to change ``no later than immediately'' to ``as
soon as practicable'' in Sec. 1502.5(b). Finally, CEQ proposes to
refer to the procedures required in Sec. 1507.3 using the term
``agency NEPA procedures'' throughout.
CEQ proposes to eliminate obsolete references and provisions in
several sections of the CEQ regulations. In particular, CEQ proposes to
remove references to the 102 Monitor in 40 CFR 1506.6(b)(2) and
1506.7(c) because the publication no longer exists, and OMB Circular A-
95, which was revoked pursuant to section 7 of E.O. 12372 (47 FR 30959,
July 16, 1982), including the requirement to use State and area-wide
clearinghouses in 40 CFR 1501.4(e)(2), 1503.1(a)(2)(iii), 1505.2, and
1506.6(b)(3)(i).
Finally, CEQ proposes changes to citations and authorities. CEQ
would update the authorities sections for each part to correct the
format. CEQ also proposes to remove cross-references to the sections of
part 1508, ``Definitions,'' and to update or insert new cross-
references throughout the rule to reflect revised or new sections.
[[Page 1693]]
B. Proposed Revisions To Update the Purpose, Policy, and Mandate (Part
1500)
In part 1500, CEQ proposes several revisions to update the policy
and mandate sections of the regulations to reflect statutory, judicial,
policy, and other developments since the CEQ regulations were issued in
1978.
CEQ specifically proposes to retitle and revise Sec. 1500.1,
``Purpose and Policy'' to align this section with the statutory text of
NEPA and certain case law and reflect the procedural requirements of
section 102(2) (42 U.S.C. 4332(2)). In particular, the proposed
revisions would provide that NEPA is a procedural statute intended to
ensure Federal agencies consider the environmental impacts of their
actions in the decision-making process. The Supreme Court has made
clear that NEPA is a procedural statute that does not mandate
particular results; ``[r]ather, NEPA imposes only procedural
requirements on [F]ederal agencies with a particular focus on requiring
agencies to undertake analyses of the environmental impact of their
proposals and actions.'' Pub. Citizen, 541 U.S. at 756-57 (citing
Methow Valley, 490 U.S. at 349-50); see also Vt. Yankee, 435 U.S. at
558 (``NEPA does set forth significant substantive goals for the
Nation, but its mandate to the agencies is essentially procedural.'').
CEQ proposes to revise Sec. 1500.1(a) to summarize section 101 of
the Act (42 U.S.C. 4331). CEQ further proposes to revise Sec.
1500.1(a) to reflect that section 102(2) establishes the procedural
requirements to carry out the policy stated in section 101.
Additionally, CEQ proposes to revise Sec. 1500.1(a) to reflect,
consistent with the case law, that the purpose and function of NEPA is
satisfied if Federal agencies have considered relevant environmental
information, that the public has been informed regarding the decision-
making process, and that NEPA does not mandate particular results or
substantive outcomes. These proposed revisions would revise paragraph
(a) in Sec. 1500.1 to replace the vague reference to ``action-
forcing'' provisions ensuring that Federal agencies act ``according to
the letter and spirit of the Act'' with a more specific reference to
the consideration of environmental impacts of their actions in agency
decisions. These changes would codify the Supreme Court's
interpretation of section 102 as serving NEPA's ``action-forcing''
purpose in two important respects: Section 102 ``ensures that the
agency, in reaching its decision, will have available, and will
carefully consider, detailed information concerning significant
environmental impacts; it also guarantees that the relevant information
will be made available to the larger audience that may also play a role
in both the decision[-]making process and the implementation of that
decision.'' Methow Valley, 490 U.S. at 349 (citing Balt. Gas & Elec.
Co., 462 U.S. at 97; Weinberger, 454 U.S. at 143); see also Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 23 (2008); Pub. Citizen, 541
U.S. at 756-58.
CEQ proposes to revise Sec. 1500.1(b) to describe the regulations
that follow consistent with the proposed revisions. In particular, CEQ
proposes to revise this paragraph to reflect that the regulations
include direction to Federal agencies to determine what actions are
subject to NEPA's procedural requirements and the level of NEPA review,
where applicable. The proposed revisions also reflect that the
regulations are intended to ensure that relevant environmental
information is identified and considered early in the process in order
to ensure informed decision making by Federal agencies. The proposed
revisions reflect that, consistent with E.O. 13807 and the purposes of
the regulations as originally promulgated in 1978, the regulations are
intended to reduce unnecessary burdens and delays. These proposed
revisions are supported by many comments submitted in response to the
ANPRM requesting revisions to promote more efficient and timely reviews
under NEPA. These proposed amendments emphasize that the policy of
integrating NEPA with other environmental reviews is to promote
concurrent and timely reviews and decision making consistent with
statutes, Executive Orders, and CEQ guidance. See, e.g., 42 U.S.C.
5189g; 23 U.S.C. 139; 42 U.S.C. 4370m et seq.; E.O. 13604; E.O. 13807;
Mitigation Guidance, supra note 18, and Timely Environmental Reviews
Guidance, supra note 21. Finally, CEQ proposes to strike Sec. 1500.2,
``Policy,'' which is duplicative of subsequent sections of the
regulations, in order to simplify the regulations and eliminate
redundancy and repetition.
CEQ proposes to make a number of revisions and additions, to Sec.
1500.3, ``NEPA compliance,'' and to provide paragraph headings to
improve readability. CEQ proposes to amend the discussion of paragraph
(a), ``Mandate,'' to clarify that agency NEPA procedures to implement
the CEQ regulations, as provided for in Sec. 1507.3, shall not impose
additional procedures or requirements beyond those set forth in the CEQ
regulations except as otherwise provided by law or for agency
efficiency. CEQ intends that this provision will prevent agencies from
designing additional procedures that will result in increased costs or
delays.
CEQ proposes to add a new Sec. 1500.3(b), ``Exhaustion,'' which
would provide that agencies must request comments on potential
alternatives and impacts and identification of any relevant
information, studies, or analyses of any kind concerning impacts
affecting the quality of the human environment in the notice of intent
to prepare an EIS. It would provide that comments on draft EISs and any
information on environmental impacts or alternatives to a proposed
action must be timely submitted to ensure informed decision making by
Federal agencies. CEQ further proposes to provide that comments not
timely raised and information not provided shall be deemed unexhausted
and forfeited. This reinforces that parties may not raise claims based
on issues they did not raise during the public comment period.
It also would provide that agencies must include in the EIS a
summary of comments received, and any objections to that summary must
be submitted within 30 days of the publication of the notice of
availability of the final EIS. Based on the summary, the decision maker
must certify in the record of decision that the agency has considered
all of the alternatives, information, and analyses submitted by public
commenters.
In addition, CEQ proposes to add a new Sec. 1500.3(c), ``Actions
regarding NEPA compliance,'' to reflect the development of case law
since the promulgation of the CEQ regulations. Specifically, CEQ
proposes to revise the sentence regarding timing of judicial review to
strike references to the filing of an EIS or FONSI and replace it with
the issuance of a signed ROD or the taking of another final agency
action. Under the APA, judicial review does not occur until an agency
has taken final agency action. Bennett v. Spear, 520 U.S. 154, 177-78
(1997) (the action must mark the consummation of the agency's decision-
making process--it must not be of a merely tentative or interlocutory
nature--and the action must be one by which rights or obligations have
been determined or from which legal consequences will flow (citations
omitted)). Because NEPA's procedural requirements apply to proposals
for agency action, judicial review should not occur until the agency
has completed its decision-making process. Final agency action for
judicial review purposes is not necessarily when the agency publishes
the final EIS, issues a
[[Page 1694]]
FONSI, or makes the determination to categorically exclude an action;
however, an agency may designate any of these as its final agency
action. CEQ also proposes to strike vague language and to clarify that
an agency can remedy harm from the failure to comply with NEPA by
complying with the Act as interpreted in these regulations.
The CEQ regulations create no presumption that violation of NEPA is
a basis for injunctive relief or for a finding of irreparable harm. As
the Supreme Court has held, the irreparable harm requirement, as a
prerequisite to the issuance of preliminary or permanent injunctive
relief, is neither eliminated nor diminished in NEPA cases. A showing
of a NEPA violation alone does not warrant injunctive relief and does
not satisfy the irreparable harm requirement. See Monsanto Co. v.
Geertson Seed Farms, 561 U.S. 139, 157 (2010) (``[T]he statements
quoted above [from prior Ninth Circuit cases] appear to presume that an
injunction is the proper remedy for a NEPA violation except in unusual
circumstances. No such thumb on the scales is warranted.''); Winter,
555 U.S. at 21-22, 31-33; see also Amoco Prod. Co. v. Vill. of Gambell,
480 U.S. 531, 544-545 (1987) (rejecting proposition that irreparable
damage is presumed when an agency fails to evaluate thoroughly the
environmental impact of a proposed action). Moreover, a showing of
irreparable harm in a NEPA case does not entitle a litigant to an
injunction or a stay. See Winter, 555 U.S. at 20 (``A plaintiff seeking
a preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor,
and that an injunction is in the public interest.'') (emphasis added);
Geertson Seed Farms, 561 U.S. at 157 (``The traditional four-factor
test applies when a plaintiff seeks a permanent injunction to remedy a
NEPA violation. . . . An injunction should issue only if the
traditional four-factor test is satisfied.'').
CEQ proposes to clarify that NEPA and the APA allow agencies the
flexibility to structure their decision-making processes to allow
opportunities for affected parties to seek a stay of an agency's final
decision from the agency pending judicial review of the decision. Such
stays are authorized by the APA, are expressly contemplated by Fed. R.
App. P. 18, and are analogous in key respects to stays of district
court judgments available under Fed. R. Civ. P. 62(b) and (d). See 5
U.S.C. 705; see also Fed. R. App. P. 18(a)(1) and 18(a)(2)(A). In
appropriate circumstances, agencies may impose bond and security
requirements or other conditions. See, e.g., 5 U.S.C. 301,\54\ as a
prerequisite to staying their decisions, as courts do under Fed. R.
App. P. 18 and other rules.\55\ See Fed. R. App. P. 18(b); Fed. R. App.
P. 8(a)(2)(E); Fed. R. Civ. P. 65(c); Fed. R. Civ. P. 62(b); Fed. R.
Civ. P. 62(d). CEQ invites comment on whether there are disclosure or
other transparency requirements that should be required when agencies
establish bond or security requirements or other conditions.
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\54\ 5 U.S.C. 301, titled ``Department regulations,'' is known
as the housekeeping statute and permits the head of a Department to
promulgate regulations ``for the government of his department, the
conduct of its employees, the distribution and performance of its
business, and the custody, use, and preservation of its records,
papers, and property.'' The purpose of this statute is ``simply a
grant of authority to [an] agency to regulate its own affairs''
through ``what the APA terms `rules of agency organization,
procedure or practice' as opposed to `substantive rules.' ''
Chrysler Corp. v. Brown, 441 U.S. 281, 309-10 (1979).
\55\ CEQ notes that there is no ``NEPA exception'' that exempts
litigants bringing NEPA claims from otherwise applicable bond or
security requirements or other appropriate conditions, and that some
courts have imposed substantial bond requirements in NEPA cases.
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In addition to the authority provided by 5 U.S.C. 705 and by
agencies' various organic statutes, agency stays of their decisions and
appropriate conditions on such stays may further the purposes of NEPA,
which provides that all Federal agencies shall identify and develop
methods and procedures, in consultation with CEQ, to ensure that
environmental amenities and values are given appropriate consideration
in decision making along with economic and technical considerations. 42
U.S.C. 4332(B). Agency procedures that allow for agencies to stay their
decisions, including appropriate conditions on stays, can contribute to
an orderly process whereby judicial review of agency decisions may
occur, furthering NEPA's mandate to agencies to develop methods and
procedures to ensure the appropriate consideration of environmental,
economic, and technical factors in agency decision making. CEQ invites
comment on how agencies can structure their processes to ensure
appropriate consideration of these factors.
CEQ proposes to add a new Sec. 1500.3(d), ``Remedies.'' CEQ
proposes to state explicitly that harm from the failure to comply with
NEPA can be remedied by compliance with NEPA's procedural requirements,
and that CEQ's regulations do not create a cause of action for
violation of NEPA. The statute does not create any such cause of
action, and agencies may not create private rights of action by
regulation; ``[l]ike substantive [F]ederal law itself, private rights
of action to enforce [F]ederal law must be created by Congress.''
Alexander v. Sandoval, 532 U.S. 275, 286 (2001). CEQ also proposes to
state that any actions to review, enjoin, stay, or alter an agency
decision on the basis of an alleged NEPA violation be raised as soon as
practicable to avoid or minimize any costs to agencies, applicants, or
any affected third parties. As reflected in comments received in
response to the ANPRM, delays have the potential to result in
substantial costs.
CEQ also proposes to state that minor, non-substantive errors that
have no effect on agency decision making shall be considered harmless
and shall not invalidate an agency action. This would replace and
update 40 CFR 1500.3, which provides that trivial violations should not
give rise to an independent cause of action. Invalidating actions due
to minor errors does not advance the goals of the statute and adds
delays and costs.
Finally, CEQ proposes to add a new Sec. 1500.3(e),
``Severability,'' to address the possibility that this rule, or
portions of this rule, may be challenged in litigation. It is CEQ's
intent that the individual sections of this rule be severable from each
other, and that if any sections or portions of the regulations are
stayed or invalidated, the validity of the remainder of the sections
shall not be affected and shall continue to be operative.
CEQ proposes to reorder the paragraphs in Sec. 1500.4, ``Reducing
paperwork,'' and Sec. 1500.5, ``Reducing delay,'' for a more logical
ordering, consistent with the three levels of NEPA review. Finally, CEQ
proposes edits to Sec. 1500.4 and Sec. 1500.5 for consistency with
proposed edits to the cross-referenced sections.
Finally, as noted above, CEQ proposes to add a savings clause to
Sec. 1500.6, ``Agency authority,'' to clarify that the CEQ regulations
do not limit an agency's other authorities or legal responsibilities.
This clarification is consistent with section 104 of NEPA (42 U.S.C.
4334) and the current regulations, but acknowledges the possibility of
different statutory authorities that may set forth different
requirements, such as timeframes.
CEQ invites comment on the proposed changes to part 1500,
particularly proposed Sec. 1500.3 and whether CEQ should include any
additional changes or provisions to advance timely resolution of
disputes related to NEPA compliance to ensure a
[[Page 1695]]
timely and predictable process, and avoidance of litigation.
C. Proposed Revisions to NEPA and Agency Planning (Part 1501)
CEQ proposes significant changes to part 1501. CEQ proposes to
replace the current 40 CFR 1501.1, ``Purpose,'' because it is
unnecessary and duplicative, with a new section to address threshold
considerations. CEQ proposes to add additional sections to address the
level of NEPA review and CEs. CEQ further proposes to consolidate and
clarify provisions on EAs and FONSIs, and relocate from part 1502 the
provisions on tiering and incorporation by reference. CEQ also proposes
to set presumptive time limits for the completion of NEPA reviews, and
clarify the roles of lead and cooperating agencies to further the OFD
policy and encourage more efficient and timely NEPA reviews.
1. NEPA Threshold Applicability Analysis (Sec. 1501.1)
Since the enactment of NEPA, courts have examined the applicability
of NEPA based on a variety of considerations. For example, courts have
found that NEPA is inapplicable where an agency is carrying out a non-
discretionary duty or obligation, where an agency's statutory
obligations clearly or fundamentally conflict with NEPA compliance,
where Congress has established requirements under another statute that
displaces NEPA compliance, and where environmental review and public
participation procedures under another statute are functionally
equivalent to those required by NEPA.
CEQ proposes a new Sec. 1501.1, ``NEPA threshold applicability
analysis,'' to provide a series of considerations to assist agencies in
a threshold analysis for determining whether NEPA applies. CEQ also
proposes related changes in Sec. 1507.3(c) to provide that agencies
may identify actions that are not subject to NEPA in their agency NEPA
procedures. Paragraph (b) of Sec. 1501.1 would clarify that agencies
can also make this determination on a case-by-case basis.
2. Apply NEPA Early in the Process (Sec. 1501.2)
CEQ proposes to amend the introductory paragraph of Sec. 1501.2,
``Apply NEPA early in the process,'' to change ``shall'' to ``should''
and ``possible'' to ``reasonable.'' Agencies need the discretion to
structure the timing of their NEPA processes to align with their
decision-making processes, consistent with their statutory authorities.
Agencies need flexibility to determine the appropriate time to start
the NEPA process, based on the context of the particular proposed
action and governed by the rule of reason, so that the NEPA analysis
meaningfully informs the agency's decision. The appropriate time to
begin the NEPA process is dependent on when the agency has sufficient
information and how it can most effectively integrate the NEPA review
into the agency's decision-making process. Further, some have viewed
this provision as a legally enforceable standard, rather than an
opportunity for agencies to integrate NEPA into their decision-making
programs and processes. CEQ's view is that agencies should have
discretion with respect to timing, consistent with its regulatory
provisions for deferring NEPA analysis to appropriate points in the
decision-making process. See 40 CFR 1508.28. This proposed amendment is
consistent with CEQ guidance that agencies should ``concentrate on
relevant environmental analysis'' in their EISs rather than
``produc[ing] an encyclopedia of all applicable information.'' Timely
Environmental Reviews Guidance, supra note 21; see also 40 CFR
1500.4(b) and 1502.2(a). Therefore, CEQ proposes these changes to
clarify that agencies have discretion to structure their NEPA processes
in accordance with the rule of reason. CEQ also proposes to change
``possible'' to ``reasonable'' in paragraph (b)(4)(iii) and ``shall''
to ``should'' in the introductory paragraph of Sec. 1502.5 for
consistency.
CEQ also proposes to amend Sec. 1501.2(b)(2) to clarify that
agencies should consider economic and technical analyses along with
environmental effects. Finally, CEQ proposes to amend paragraph
(b)(4)(ii) to change ``agencies'' to ``governments'' consistent with
and in support of government-to-government consultation pursuant to
E.O. 13175 \56\ and E.O. 13132, ``Federalism.'' \57\ For consistency,
CEQ also proposes revisions to Sec. Sec. 1501.9(b) and
1503.1(a)(2)(ii).
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\56\ Supra note 53.
\57\ 64 FR 43255 (Aug. 10, 1999).
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3. Determine the Appropriate Level of NEPA Review (Sec. 1501.3)
NEPA requires a ``detailed statement'' for ``major Federal actions
significantly affecting the quality of the human environment.'' 42
U.S.C. 4332(2)(C). To determine whether an action requires such a
detailed statement, the CEQ regulations provide three levels of review
for Federal agencies to assess proposals for agency action.
Specifically, the CEQ regulations allow agencies to review
expeditiously those actions that normally do not have significant
effects by using CEs or, for actions that are not likely to have
significant effects, by preparing an EA. Through the use of CEs and
EAs, agencies then can focus their limited resources on those actions
that are likely to have significant effects and require the ``detailed
statement,'' or EIS, required by NEPA.
While the existing CEQ regulations provide for these three levels
of NEPA review, they do not clearly set out the decisional framework by
which agencies should assess their proposed actions and select the
appropriate level of review. To provide this direction and clarity, the
proposed rule would add two additional sections to part 1501, renumber
the remaining sections, and retitle two sections. The proposed Sec.
1501.3, ``Determine the appropriate level of NEPA review,'' would
describe the three levels of NEPA review and the basis upon which an
agency makes a determination regarding the appropriate level of review
for a proposed action. While this section would supplement the existing
regulations, these concepts exist in the current 40 CFR 1501.4 (whether
to prepare an EIS), 1508.4 (CEs), and 1508.9 (EAs).
Additionally, paragraph (b) would address the consideration of
significance, which is central to determining the appropriate level of
review. CEQ proposes to move and simplify the operative language from
40 CFR 1508.27, ``Significantly.'' CEQ proposes to change ``context''
to ``potentially affected environment'' and ``intensity'' to ``degree''
to provide greater clarity as to what agencies should consider in
assessing potential significant effects. CEQ did not include a
consideration regarding controversy (40 CFR 1508.27(b)(4)) because this
has been interpreted to mean scientific controversy. Additionally, CEQ
did not include a consideration regarding the reference in 40 CFR
1508.27(b)(7) to ``[s]ignificance cannot be avoided by terming an
action temporary or by breaking it down into small component parts''
because this is addressed in the criteria for scope in Sec. 1501.9(e)
and Sec. 1502.4(a), which would provide that agencies evaluate in a
single EIS proposals or parts of proposals that are related closely
enough to be, in effect, a single course of action.
4. Categorical Exclusions (CEs) (Sec. 1501.4)
Under the CEQ regulations, agencies can categorically exclude
actions from detailed review where the agency has found in its agency
NEPA procedures that the action normally would not have
[[Page 1696]]
significant effects. Over the past 4 decades, Federal agencies have
developed and documented more than 2,000 CEs.\58\ CEQ estimates that
each year, Federal agencies apply CEs to approximately 100,000 Federal
agency actions that typically require little or no documentation.\59\
While CEs are the most common level of NEPA review, CEQ has only
addressed CE development and implementation in one comprehensive
guidance document, see CE Guidance, supra note 17, and does not address
CEs in detail in its current regulations.
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\58\ See Council on Environmental Quality, List of Federal
Agency Categorical Exclusions (Dec. 14, 2018), https://ceq.doe.gov/nepa-practice/categorical-exclusions.html.
\59\ See, e.g., Council on Environmental Quality, The Eleventh
and Final Report on the National Environmental Policy Act Status and
Progress for American Recovery and Reinvestment Act of 2009
Activities and Projects (Nov. 2, 2011), https://ceq.doe.gov/docs/ceq-reports/nov2011/CEQ_ARRA_NEPA_Report_Nov_2011.pdf.
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In response to the ANPRM, many commenters requested that CEQ update
the NEPA regulations to provide more detailed direction on the
application of CEs. To provide greater clarity, CEQ proposes to add a
new section on CEs. The proposed Sec. 1501.4, ``Categorical
exclusions,'' would address in more detail the process by which an
agency considers whether a proposed action is categorically excluded
under NEPA. This proposed provision is consistent with the definition
of categorical exclusion in 40 CFR 1508.4, which is a category of
actions that the agency has found normally do not have a significant
effect and listed in its agency NEPA procedures.
The proposed CE section would provide additional clarity on the
process that agencies follow in applying a CE. In particular, paragraph
(a) would provide that agencies identify CEs in their NEPA procedures,
consistent with the requirement to establish CEs in agency NEPA
procedures currently set forth in 40 CFR 1507.3(b)(2)(ii). The proposed
regulations would move the requirement that agency NEPA procedures
provide for extraordinary circumstances from the current 40 CFR 1508.4
to the proposed Sec. 1507.3(d)(2)(ii) to consolidate all the
requirements for establishing CEs in that regulation, while providing
in the proposed Sec. 1501.4 the procedure for evaluation of a proposed
action for extraordinary circumstances. The definition of categorical
exclusion only applies to those CEs created by an administrative
determination in its agency NEPA procedures and does not apply to
``legislative categorical exclusions'' created by Congress, which are
governed by the terms of the specific statute and statutory
interpretation of the agency charged with the implementation of the
statute.
Paragraph (b) of proposed Sec. 1501.4 would set forth the
requirement for consideration of extraordinary circumstances once an
agency determines that a CE covers a proposed action, consistent with
the current requirement in 40 CFR 1508.4. Finally, paragraph (b)(1)
would provide that, when extraordinary circumstances are present,
agencies may consider whether mitigating circumstances, such as the
design of the proposed action to avoid effects that create
extraordinary circumstances, are sufficient to allow the proposed
action to be categorically excluded. The change would clarify that the
mere presence of extraordinary circumstances does not preclude the
application of a CE. Rather, the agency may consider whether there is a
close causal relationship between a proposed action and the potential
effect on the conditions identified as extraordinary circumstances, and
if such a relationship exists, the potential effect of a proposed
action on these conditions. Accordingly, the agency could modify the
proposed action to avoid the extraordinary circumstances so that the
action fits in the categorical exclusion. While this reflects current
practice for some agencies,\60\ this revision would assist agencies as
they consider whether to categorically exclude an action that would
otherwise be considered in an EA and FONSI.
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\60\ See, e.g., Forest Service categorical exclusions, 36 CFR
220.6(b)(2) and surface transportation categorical exclusions, 23
CFR 771.116-771.118.
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CEQ invites comment on these proposed revisions and on whether
there are any other aspects of CEs that CEQ should address in its
regulations. Specifically, CEQ invites comment on whether it should
establish government-wide CEs in its regulations to address routine
administrative activities, for example, internal orders or directives
regarding agency operations, procurement of office supplies and travel,
and rulemakings to establish administrative processes such as those
established under the Freedom of Information Act or Privacy Act.
Alternatively, CEQ invites comment on whether and how CEQ should revise
the definition of major Federal action to exclude these categories from
the definition, and if so, suggestions on how it should be addressed.
5. Environmental Assessments (EAs) (Sec. 1501.5)
Under the current CEQ regulations, when an agency has not
categorically excluded a proposed action, the agency can prepare an EA
to document its effects analysis. If the analysis in the EA
demonstrates that the action's effects would not be significant, the
agency documents its reasoning in a FONSI, which completes the NEPA
process; otherwise, the agency uses the EA to help prepare an EIS. See
40 CFR 1508.9 and 1508.13. CEQ estimates that Federal agencies prepare
approximately 10,000 EAs each year.\61\
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\61\ See, e.g., Council on Environmental Quality, Fourth Report
on Cooperating Agencies in Implementing the Procedural Requirements
of the National Environmental Policy Act, Attachment A (Oct. 4,
2016), https://ceq.doe.gov/docs/ceq-reports/Attachment-A-Fourth-Cooperating-Agency-Report_Oct2016.pdf.
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The current CEQ regulations address the requirements for EAs in a
few provisions, and, in response to the ANPRM, some commenters
requested that the regulations provide more detailed direction related
to EAs. Currently, 40 CFR 1508.9 defines an EA as a ``concise public
document'' that agencies may use to comply with NEPA and determine
whether to prepare an EIS or a FONSI. This section also sets forth the
basic requirements for an EA's contents. Current 40 CFR 1501.4(b)
provides the public involvement requirements for EAs. These essential
requirements of an EA would remain under the proposed regulations, but
CEQ proposes to consolidate them into a single section to improve
readability.
Under the current regulations, the format for an EA is flexible and
responsive to agency decision-making needs and the circumstances of the
particular proposal for agency action. The proposed CEQ regulations
would continue to provide that an EA may be prepared by and with other
agencies, applicants, and the public. Modern information technology can
help facilitate this collaborative EA preparation, allowing the agency
to make a coordinated but independent evaluation of the environmental
issues and assume responsibility for the scope and content of the EA.
CEQ proposes to revise paragraph (a) of proposed Sec. 1501.5
(current 40 CFR 1501.3) to clarify that an agency must prepare an EA
when necessary to determine whether a proposed action would have a
significant effect or the significance of the effects is unknown,
unless a CE applies to the proposed action or the agency decides to
prepare an EIS. CEQ proposes to move the operative language relating to
an EA
[[Page 1697]]
from the definition of EAs currently in 40 CFR 1508.9 to a new
paragraph (c).
Under the proposed CEQ regulations, requirements for documenting
the proposed action and alternatives in an EA would continue to be more
limited than EIS requirements. Under the existing and proposed
regulations, an agency must briefly describe the need for the proposed
action. Agencies can do this by briefly describing the existing
conditions, projected future conditions, and statutory obligations and
authorities that may relate to the proposed agency action with cross-
references to supporting documents. The proposed CEQ regulations would
continue to require agencies to describe briefly the proposed action
and any alternatives it is considering that would meet the need of the
proposed agency action. For actions to protect or restore the
environment, without unresolved conflicts concerning alternative uses
of available resources, CEQ expects agencies to examine a narrower
range of alternatives to the proposed action. When the project may have
significant impacts, the agency should consider reasonable alternatives
that would avoid those impacts or otherwise mitigate those impacts to
less than significant levels.
An agency does not need to include a detailed discussion of each
alternative in an EA, nor does it need to include any detailed
discussion of alternatives that it eliminated from study. While
agencies have discretion to include more information in their EAs than
is required to determine whether to prepare an EIS or a FONSI, they
should carefully consider their reasons and have a clear rationale for
doing so. Agencies should focus on analyzing material effects and
alternatives, rather than marginal details that may unnecessarily delay
the environmental review process.
Under both the current and proposed regulations, an agency must
describe the environmental impacts of its proposed action and
alternatives, providing enough information to support a determination
to prepare either a FONSI or an EIS. The EA should focus on whether the
proposed action (including mitigation) would ``significantly'' affect
the quality of the human environment and tailor the length of the
discussion to the relevant effects. The agency may contrast the impacts
of the proposed action and alternatives with the current and expected
future conditions of the affected environment in the absence of the
action, which constitutes consideration of a no-action alternative.
Under both the current and proposed regulations, an agency should
list the ``agencies, applicants, and the public'' involved in preparing
the EA to document agency compliance with the requirement to ``involve
environmental agencies, applicants, and the public, to the extent
practicable, in preparing assessments.'' 40 CFR 1501.4(b); see also
1508.9(b). This may include incorporation by reference to the records
related to compliance with other environmental laws such as the
National Historic Preservation Act, Clean Water Act, Endangered Species
Act, or Clean Air Act.
CEQ proposes to move the public involvement requirements for EAs
from the current 40 CFR 1501.4(b) to proposed Sec. 1501.5(d) and
change ``environmental'' to ``relevant'' agencies to include all
agencies that may contribute information that is relevant to the
development of an EA. Consistent with the current CEQ regulations, the
proposed rule would not specifically require publication of a draft EA
for public review and comment. The proposed CEQ regulations would
continue to require that agencies reasonably involve relevant agencies,
the applicant, and the public prior to completion of the EA, so that
they may provide meaningful input on those subject areas that the
agency must consider in preparing the EA. See also 40 CFR 1506.6(b) and
1508.9(a). Depending on the circumstances, the agency could provide
adequate information through public meetings or by a detailed scoping
notice, for example. There is no single correct approach for public
involvement. Rather, agencies should consider the circumstances and
have discretion to conduct public involvement tailored to the
interested public, to available means of communications to reach the
interested and affected parties, and to the particular circumstances of
each proposed action.
Paragraph (e) would establish a presumptive 75-page limit for EAs,
but allow a senior agency official to approve a longer length and
establish a new page limit in writing. While CEQ has stated in Question
36a of the Forty Questions, supra note 10, that EAs should be
approximately 10 to 15 pages, in practice, such assessments are often
longer to address compliance with other applicable laws, and to
document the effects of mitigation to support a FONSI. To achieve the
presumptive 75-page limit, agencies should write all NEPA environmental
documents in plain language, follow a clear format, and emphasize
important impact analyses and relevant information necessary for those
analyses, rather than providing extensive background material. An EA
should have clear and concise conclusions and may incorporate by
reference data, survey results, inventories, and other information that
support these conclusions, so long as this information is reasonably
available to the public.
The proposed presumptive page limit for EAs will promote more
readable documents, but also provide agencies flexibility to prepare
longer documents, where necessary, to support the agency's analysis.
The proposed presumptive page limit is consistent with CEQ's guidance
on EAs, which advises agencies to avoid preparing lengthy EAs except in
unusual cases where a proposal is so complex that a concise document
cannot meet the goals of an EA and where it is extremely difficult to
determine whether the proposal could cause significant effects.
Question 36a and 36b, Forty Questions, supra note 10.
CEQ believes that page limits will encourage agencies to identify
the relevant issues, focus on significant environmental impacts, and
prepare concise readable documents that will inform decision makers as
well as the public. Voluminous, unfocused environmental documents do
not advance the goals of informed decision making or protection of the
environment.
CEQ proposes conforming edits to Sec. 1500.4(c) to broaden the
paragraph to include EAs by changing ``environmental impact
statements'' to ``environmental documents'' and changing ``setting'' to
``meeting'' since page limits would be required for both EAs and EISs.
CEQ invites comment on the appropriate presumptive page limit for EAs,
the means of managing their level of detail, and their role in agency
decision making.
CEQ proposes a new paragraph (f) to clarify that agencies may also
apply certain provisions in part 1502 regarding incomplete or
unavailable information, methodology and scientific accuracy, and
coordination of environmental review and consultation requirements to
EAs. CEQ also proposes to add EAs to Sec. 1501.11, ``Tiering,'' to
codify current agency practice of using EAs where the effects of a
proposed agency action are not likely to be significant. These include
program decisions that may facilitate later site-specific EISs as well
as the typical use of EAs as a second-tier document tiered from an EIS.
In addition to the new Sec. 1501.5, CEQ proposes to add EAs to
other sections of the regulations to codify existing agency practice
where it would make the NEPA process more efficient and effective. As
[[Page 1698]]
discussed in section II.C.9, CEQ also proposes to make a presumptive
time limit applicable to EAs in Sec. 1501.10. Further, for some
agencies, it is a common practice to have lead and cooperating agencies
coordinate in the preparation of EAs where more than one agency may
have an action on a proposal; therefore, CEQ also proposes to add EAs
to Sec. Sec. 1501.7 and 1501.8.
CEQ invites comment on these proposed revisions and on whether
there are any other aspects of EAs that CEQ should address in its
regulations.
6. Findings of No Significant Impact (FONSIs) (Sec. 1501.6)
When an agency determines in its EA that an EIS is not required, it
typically prepares a FONSI. The FONSI reflects that the agency has
engaged in the necessary review of environmental impacts under NEPA.
The FONSI shows that the agency examined the relevant data and
explained the agency findings by providing a rational connection
between the facts presented in the EA and the conclusions drawn in the
finding. Any finding should clearly identify the facts found and the
conclusions drawn by the agency based on those facts.
In response to the ANPRM, CEQ received comments requesting that CEQ
update its regulations to consolidate and provide more detailed
direction relating to FONSIs. CEQ proposes to consolidate the operative
language of 40 CFR 1508.13, ``Finding of no significant impact,'' with
40 CFR 1501.4, ``Whether to prepare an environmental impact
statement,'' in the proposed Sec. 1501.6, ``Findings of no significant
impact.'' CEQ proposes to strike paragraph (a) as these requirements
are addressed in Sec. 1507.3(d)(2). As noted above, paragraph (b)
would move to the proposed Sec. 1501.5, ``Environmental assessments.''
This proposed EA section also addresses paragraph (c), so CEQ proposes
to strike it from the proposed FONSI section. Similarly, CEQ proposes
to strike paragraph (d) because this requirement is addressed in Sec.
1501.9, ``Scoping'' (current 40 CFR 1501.7).
CEQ proposes to make the current 40 CFR 1501.4(e) the new Sec.
1501.6(a), and revise the language to clarify that an agency must
prepare a FONSI when it determines that a proposed action will not have
significant effects based on the analysis in the EA. CEQ would revise
proposed paragraph (a)(2) to clarify that the circumstances listed in
paragraph (i) and (ii) are the situations where the agency must make a
FONSI available for public review.
CEQ proposes to move the substantive requirement that a FONSI
include the EA or a summary from the definition of FONSI (currently 40
CFR 1508.13) to a new paragraph (b). Additionally, CEQ proposes the
addition of a new paragraph (c) to address mitigation. Specifically,
where mitigation is required under another statute or where an agency
is issuing a mitigated FONSI, it would require the agency to include
the legal basis for any mitigation adopted.\62\ Additionally, it would
codify the practice of mitigated FONSIs, consistent with CEQ's
Mitigation Guidance, by requiring agencies to document mitigation,
including enforceable mitigation requirements or commitments that will
be undertaken to avoid significant impacts.\63\ When preparing an EA,
many agencies develop, consider, and commit to mitigation measures to
avoid, minimize, rectify, reduce, or compensate for potentially
significant adverse environmental impacts that would otherwise require
preparation of an EIS. An agency can commit to mitigation measures for
a mitigated FONSI when it can ensure that the mitigation will be
performed, when the agency expects that resources will be available,
and when the agency has sufficient legal authorities to ensure
implementation of the proposed mitigation measures. This codification
of CEQ guidance is not intended to create a different standard for
analysis of mitigation for a ``mitigated FONSI,'' but to provide
clarity regarding the use of FONSIs.
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\62\ As discussed in sections I.B.1 and II.B, NEPA is a
procedural statute and does not require adoption of mitigation.
However, agencies may consider mitigation measures that would avoid,
minimize, rectify, reduce, or compensate for potentially significant
adverse environmental impacts and may require mitigation pursuant to
substantive statutes.
\63\ The Mitigation Guidance, supra note 18, amended and
supplemented the Forty Questions, supra note 10, specifically
withdrawing Question 39 insofar as it suggests that mitigation
measures developed during scoping or in an EA ``[do] not obviate the
need for an EIS.''
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7. Lead and Cooperating Agencies (Sec. Sec. 1501.7 and 1501.8)
In response to the ANPRM, CEQ received comments requesting that CEQ
update its regulations to clarify the roles of lead and cooperating
agencies. The 1978 CEQ regulations created the roles of lead agency and
cooperating agencies for NEPA reviews, which are critical for actions,
such as non-Federal projects, requiring the approval or authorization
of multiple agencies. Agencies need to coordinate and synchronize their
NEPA processes to ensure an efficient environmental review that does
not cause delays. In recent years, Congress and several administrations
have worked to establish a more synchronized procedure for multi-agency
NEPA reviews and related authorizations, including through the
development of expedited procedures such as the section 139 process and
FAST-41.
CEQ proposes a number of modifications to Sec. 1501.7, ``Lead
agencies,'' (current 40 CFR 1501.5), and Sec. 1501.8, ``Cooperating
agencies,'' (current 40 CFR 1501.6), to improve interagency
coordination, make development of NEPA documents more efficient, and
facilitate implementation of the OFD policy. CEQ intends these
modifications to improve the efficiency and outcomes of the NEPA
process--including cost reduction, improved relationships, and better
outcomes that avoid litigation--by promoting environmental
collaboration.\64\ These modifications are consistent with Questions
14a and 14c of the Forty Questions, supra note 10. CEQ proposes to
apply Sec. Sec. 1501.7 and 1501.8 to EAs as well as EISs consistent
with agency practice. Consistent with the OFD policy to ensure
coordinated and timely reviews, CEQ also proposes to add a Sec.
1501.7(g) to require that Federal agencies evaluate proposals involving
multiple Federal agencies in a single EIS and issue a joint ROD \65\ or
single EA and joint FONSI when practicable. CEQ further proposes to
move language from the current cooperating agency provision, 40 CFR
1501.6(a), that addresses the lead agency's responsibilities with
respect to cooperating agencies to proposed paragraph (h) in Sec.
1501.7 so that all of the lead agency's responsibilities are in a
single section. CEQ also proposes to clarify in paragraph (h)(4) that
the lead agency is responsible for determining the purpose and need and
alternatives in consultation with any cooperating agencies.\66\
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\64\ See, e.g., Federal Forum on Environmental Collaboration and
Conflict Resolution, Environmental Collaboration and Conflict
Resolution (ECCR): Enhancing Agency Efficiency and Making Government
Accountable to the People (May 2, 2018), https://ceq.doe.gov/docs/nepa-practice/ECCR_Benefits_Recommendations_Report_%205-02-018.pdf.
\65\ A ``single ROD,'' as used in E.O. 13807, is the same as a
``joint ROD,'' which is a ROD addressing all Federal agency actions
covered in the single EIS and necessary for a proposed project. 40
CFR 1508.25(a)(3). The regulations would provide flexibility for
circumstances where a joint ROD is impracticable. Examples include
the statutory directive to issue a combined final EIS and ROD for
transportation actions and the Federal Energy Regulatory
Commission's adjudicatory process.
\66\ See OFD Framework Guidance, supra note 27, Sec. VIII.A.5
(``The lead agency is responsible for developing the Purpose and
Need, identifying the range of alternatives to be analyzed,
identifying the preferred alternative and determining whether to
develop the preferred alternative to a higher level of detail.'');
Connaughton Letter, supra note 23 (``[J]oint lead or cooperating
agencies should afford substantial deference to the [ ] agency's
articulation of purpose and need.'')
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[[Page 1699]]
Proposed Sec. 1501.7(i) and (j) and Sec. 1501.8(b)(6) and (7)
also would require development and adherence to a schedule for the
environmental review and any authorizations required for a proposed
action, and resolution of disputes and other issues that may cause
delays in the schedule. These proposed provisions are consistent with
current practices at agencies that have adopted elevation procedures
pursuant to various statutes and guidance, including 23 U.S.C. 139,
FAST-41, and E.O. 13807.
Proposed paragraph (a) of Sec. 1501.8 would clarify that lead
agencies may invite State, Tribal, and local agencies to serve as
cooperating agencies by changing ``Federal agency'' to ``agency,'' and
moving the operative language from the definition of cooperating agency
(40 CFR 1508.5). Non-Federal agencies should participate in the
environmental review process to ensure early collaboration on proposed
actions where such entities have jurisdiction by law or special
expertise. Paragraph (a) would also codify current practice to allow a
Federal agency to appeal to CEQ a lead agency's denial of a request to
serve as cooperating agency. Resolving disputes among agencies early in
the process furthers the OFD policy and the goal of more efficient and
timely NEPA reviews. Finally, CEQ proposes edits throughout Sec.
1501.8 to provide further clarity.
8. Scoping (Sec. 1501.9)
In response to the ANPRM, CEQ received comments requesting that CEQ
update its regulations related to scoping, including comments
requesting that agencies have greater flexibility in how to conduct
scoping. Rather than requiring publication of a NOI as a precondition
to the scoping process, CEQ proposes to modify the current 40 CFR
1501.7, ``Scoping,'' in the proposed Sec. 1501.9 so that agencies can
begin the scoping process as soon as the proposed action is
sufficiently developed for meaningful agency consideration. Some
agencies refer to this as pre-scoping under the existing regulations to
capture scoping work done before publication of the NOI. Rather than
tying the start of scoping to the agency's decision to publish an NOI
to prepare an EIS, the timing and content of the NOI would instead
become an important step in the scoping process itself, thereby
obviating the artificial distinction between scoping and pre-scoping.
However, agencies should not unduly delay publication of the NOI.
CEQ also proposes to consolidate all the requirements for the NOI
and the scoping process into the same section, reorganize it to discuss
the scoping process in chronological order, and add paragraph headings
to improve clarity. CEQ proposes to add ``likely'' to proposed
paragraph (b) to capture the reality that at the scoping stage,
agencies may not know the identities of all affected parties and that
one of the purposes of scoping is to identify affected parties.
Paragraph (c) would provide agencies additional flexibility in how to
reach interested or affected parties in the scoping process. Paragraph
(d) would provide a list of what agencies must include in an NOI to
standardize NOI format and achieve greater consistency across agencies.
This will provide the public with more transparency and ensure that
agencies conduct the scoping process in a manner that facilitates
implementation of the OFD policy for multi-agency actions, including by
proactively soliciting comments on alternatives, impacts, and relevant
information to better inform agency decision making. CEQ proposes to
move the criteria for determining scope from the definition of scope,
40 CFR 1508.25, to paragraph (e) and to strike the paragraph on
``cumulative actions'' for consistency with the proposed revisions to
the definition of ``effects'' discussed below. CEQ also proposes to use
the term ``most effective'' rather than ``best'' in Sec.
1501.9(e)(1)(ii) for clarity.
9. Time Limits (Sec. 1501.10)
In response to the ANPRM, CEQ received many comments on the lengthy
timelines and costs of environmental reviews, and many suggestions for
more meaningful time limits for the completion of the NEPA process.
Accordingly, and to promote timely reviews, CEQ proposes to establish
presumptive time limits for EAs and EISs consistent with E.O. 13807 and
prior CEQ guidance. In Question 35 of the Forty Questions, supra note
10, CEQ stated its expectation that ``even large complex energy
projects would require only about 12 months for the completion of the
entire EIS process'' and that, for most major actions, ``this period is
well within the planning time that is needed in any event, apart from
NEPA.'' CEQ also recognized that ``some projects will entail difficult
long-term planning and/or the acquisition of certain data which of
necessity will require more time for the preparation of the EIS.'' Id.
Finally, Question 35 stated that an EA ``should take no more than 3
months, and in many cases substantially less as part of the normal
analysis and approval process for the action.''
Based on agency experience with the implementation of the
regulations, CEQ is proposing in Sec. 1501.10, ``Time limits,''
(current 40 CFR 1501.8) to add a new paragraph (b) to establish a
presumptive time limit for EAs of 1 year and a presumptive time limit
for EISs of 2 years. CEQ further proposes to provide that a senior
agency official may approve in writing a longer time period. These
paragraphs would also define the start and end dates of the time period
consistent with E.O. 13807. Consistent with CEQ and OMB guidance,
agencies should begin scoping and development of a schedule for timely
completion of an EIS prior to issuing an NOI and commit to cooperate,
communicate, share information, and resolve conflicts that could
prevent meeting milestones.\67\ CEQ recognizes that agency capacity,
including those of cooperating and participating agencies, may affect
timing, and that agencies should schedule and prioritize their
resources accordingly to ensure effective environmental analyses and
public involvement. Further, agencies have flexibility in the
management of their internal processes to set shorter time limits and
to define the precise start and end times for measuring the completion
time of an EA. Therefore, CEQ proposes to retain paragraph (c)
regarding factors in determining time limits, but revise paragraph
(c)(6) for clarity and strike paragraph (c)(7) because it overlaps with
numerous other factors.
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\67\ See OFD Framework Guidance, supra note 27 (``[w]hile the
actual schedule for any given project may vary based upon the
circumstances of the project and applicable law, agencies should
endeavor to meet the two-year goal . . . .'').
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CEQ also proposes conforming edits to Sec. 1500.5(g) to change
``setting'' to ``meeting'' time limits and add ``environmental
assessment.'' CEQ invites comment on these sections, including on the
proposed presumptive timeframes for EAs and EISs, the provisions for
management of time limits, and whether the regulations should specify
shorter timeframes.
10. Tiering and Incorporation by Reference (Sec. Sec. 1501.11 and
1501.12)
CEQ proposes to move 40 CFR 1502.21, ``Tiering,'' and 40 CFR
1502.22, ``Incorporation by reference,'' to proposed new Sec. Sec.
1501.11 and 1501.12, respectively, because these provisions are
generally applicable. Specifically, CEQ proposes a number of revisions
in Sec. 1501.11 and other paragraphs to clarify when agencies can use
existing
[[Page 1700]]
studies and environmental analyses in the NEPA process and when
agencies would need to supplement such studies and analyses. These
revisions include updates to the provisions on programmatic reviews
(Sec. 1502.4(d)) and tiering (Sec. 1501.11) to make clear, among
other things, that site-specific analyses need not be conducted prior
to an irretrievable commitment of resources, which in most cases will
not be until the decision at the site-specific stage. CEQ also proposes
to move the operative language from the definition of tiering in 40 CFR
1508.28 to Sec. 1501.11(b).
In addition, CEQ proposes consistency edits to change ``broad'' and
``program'' to ``programmatic'' in Sec. Sec. 1500.4(k), 1502.4(b),
(c), and (d), and 1506.1(c). Further revisions to Sec. 1502.4(b),
including eliminating reference to programmatic EISs that ``are
sometimes required,'' are intended to focus the provision on the
discretionary use of programmatic EISs in support of clearly defined
decision-making purposes. As CEQ stated in its 2014 guidance,
programmatic NEPA reviews ``should result in clearer and more
transparent decision[ ]making, as well as provide a better defined and
more expeditious path toward decisions on proposed actions.'' \68\
Other statutes or regulations define circumstances under which a
programmatic EIS is required. See, e.g., National Forest Management
Act, 16 U.S.C. 1604(g). Finally, CEQ proposes a consistency edit in
Sec. 1502.4(c)(3) to revise the mandatory language to be discretionary
since the regulations do not require programmatic EISs.
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\68\ Programmatics Guidance, supra note 20, at 7.
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D. Proposed Revisions to Environmental Impact Statements (EISs) (Part
1502)
The most extensive level of NEPA analysis is an EIS, which is the
``detailed statement'' required under section 102(2)(C) of NEPA. When
an agency prepares an EIS, it typically issues a ROD at the conclusion
of the NEPA review. 40 CFR 1505.2. Based on the Environmental
Protection Agency (EPA) weekly Notices of Availability published in the
Federal Register between 2010 and 2018, Federal agencies published
approximately 170 final EISs per year. CEQ proposes to update the
format, page length, and timeline to complete EISs to better achieve
the purposes of NEPA. CEQ also proposes several changes to streamline,
provide flexibility, and improve the preparation of EISs. CEQ includes
provisions in part 1502 to promote informed decision making by agencies
and to inform the public about the decision-making process. The
proposed regulations continue to encourage application of NEPA early in
the process and early engagement with applicants for non-Federal
projects (proposed Sec. 1502.5(b)).
1. Page Limits (Sec. 1502.7)
In response to the ANPRM, CEQ received many comments on the length,
complexity, and readability of environmental documents, and many
suggestions for more meaningful page limits. The core purpose of page
limits from the original regulations remains--documents must be a
reasonable length in a readable format so that it is practicable for
the decision maker to read and understand the document in a reasonable
period of time. Therefore, CEQ proposes to reinforce the page limits
for EISs set forth in Sec. 1502.7, while allowing a senior agency
official to approve a statement exceeding 300 pages when it is useful
to the decision-making process. As captured in CEQ's report on the
length of final EISs, these documents average over 600 pages. See
Length of Environmental Impact Statements, supra note 34. While the
length of an EIS will vary based on the complexity and significance of
the proposed action and environmental effects the EIS considers, every
EIS must be bounded by the practical limits of the decision maker's
ability to consider detailed information. CEQ proposes this change to
ensure that agencies develop EISs focused on significant effects and on
the information useful to the decision makers and the public to more
successfully implement NEPA.
CEQ intends for senior agency officials to take responsibility for
the quantity, quality, and timelines of environmental analyses
developed in support of the decisions of their agencies. Therefore, the
senior agency official approving an EA or EIS in excess of the page
limits should ensure that the final environmental document meets the
informational needs of the agency's decision maker. For example, the
agency decision makers may have varying levels of capacity to consider
the information presented in the environmental document. In ensuring
that the agency provides the resources necessary to implement NEPA, in
accordance with 40 CFR 1507.2, senior agency officials should ensure
that agency staff have the resources and competencies necessary to
produce timely, concise, and effective environmental documents.
2. Draft, Final and Supplemental Statements (Sec. 1502.9)
CEQ proposes to include sub-headings in Sec. 1502.9, ``Draft,
final, and supplemental statements,'' to improve readability. CEQ
proposes edits to paragraph (b) for clarity, replacing ``revised
draft'' with ``supplemental draft.''
CEQ also received many comments requesting clarification regarding
when supplemental statements are required. CEQ proposes revisions to
Sec. 1502.9(d)(1) to clarify that agencies need to update
environmental documents when there is new information or a change in
the proposed action only if a major Federal action remains to occur and
other requirements are met. This proposed revision is consistent with
Supreme Court case law holding that a supplemental EIS is required only
``[i]f there remains `major Federal actio[n]' to occur, and if the new
information is sufficient to show that the remaining action will
`affec[t] the quality of the human environment' in a significant manner
or to a significant extent not already considered . . . .'' Marsh, 490
U.S. at 374 (quoting 42 U.S.C. 4332(2)(C)); see also Norton v. S. Utah
Wilderness All., 542 U.S. 55, 73 (2004). For example, supplementation
might be triggered after an agency executes a grant agreement but
before construction is complete because the agency has yet to provide
all of the funds under that grant agreement. On the other hand, when an
agency issues a final rule establishing a regulatory scheme, there is
no remaining action to occur, and therefore supplementation is not
required. If there is no further agency action after the agency's
decision, supplementation does not apply because the Federal agency
action is complete. S. Utah Wilderness All., 542 U.S. at 73 (``although
the `[a]pproval of a [land use plan]' is a `major Federal action'
requiring an EIS . . . that action is completed when the plan is
approved. . . . There is no ongoing `major Federal action' that could
require supplementation (though BLM is required to perform additional
NEPA analyses if a plan is amended or revised . . . .)'') (emphasis in
original).
In order to determine whether a supplemental analysis is required,
a new paragraph (c)(4) would provide that an agency may document its
determination of whether a supplemental analysis is required consistent
with its agency NEPA procedures or may, although it is not required, do
so in an EA. This provision would codify the existing practice of
several Federal agencies, such as the
[[Page 1701]]
Department of Transportation's reevaluation provided for highway,
transit, and railroad projects (23 CFR 771.129); the Bureau of Land
Management's Determination of NEPA Adequacy (Department of the Interior
Departmental Manual, Part 516, Chapter 11, Sec. 11.6); and the U.S.
Army Corps of Engineers' Supplemental Information Report (section 13(d)
of Engineering Regulation 200-2-2).
3. EIS Format (Sec. Sec. 1502.10 and 1502.11)
CEQ proposes to revise Sec. 1502.10, ``Recommended format,'' to
provide agencies with more flexibility in formatting an EIS given that
most EISs are prepared and distributed electronically. Specifically,
CEQ proposes to eliminate the requirement to have a list of agencies,
organizations and persons to whom copies of the EIS are sent since EISs
are published online, and an index, as this is no longer necessary when
most documents are produced in an electronically searchable format.
This section would also allow agencies to use a different format so
that they may customize EISs to address the particular proposed action
and better integrate environmental considerations into agency decision-
making processes.
CEQ proposes to amend Sec. 1502.11, ``Cover,'' to remove the
reference to a ``sheet'' since agencies prepare EISs electronically.
CEQ also proposes to add a requirement to include the estimated cost of
preparing the EIS to the cover in new paragraph (g) to provide
transparency to the public on the costs of EIS-level NEPA reviews. To
track costs, agencies must prepare an estimate of environmental review
costs, including costs of the agency's full-time equivalent (FTE)
personnel hours, contractor costs, and other direct costs related to
the environmental review of the proposed action.\69\ For integrated
documents where an agency is preparing a document pursuant to multiple
environmental statutory requirements, it may indicate that the estimate
reflects costs associated with NEPA compliance as well as compliance
with other environmental review and authorization requirements.
Agencies can develop methodologies for preparing these cost estimates
in their implementing procedures.
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\69\ See, e.g., U.S. Department of the Interior, Reporting Costs
Associated with Developing Environmental Impact Statements (July 23,
2018), https://www.doi.gov/sites/doi.gov/files/uploads/dep_sec_memo_07232018_-_reporting_costs_associated_w_developing_environmental_impact_statements.pdf.
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This amendment will address the concerns raised by the U.S.
Government Accountability Office that agencies are not tracking the
costs of NEPA analyses, as well as the many comments CEQ received from
stakeholders regarding the costs associated with development of NEPA
analyses.\70\ Including such costs on the cover sheet would also be
consistent with current OMB direction to Federal agencies to track
costs of environmental reviews and authorizations for major
infrastructure projects pursuant to E.O. 13807 and would provide the
public with additional information regarding EIS-level NEPA documents.
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\70\ In a 2014 report, the U.S. Government Accountability Office
found that Federal agencies do not routinely track data on the cost
of completing NEPA analyses, and that the cost can vary
considerably, depending on the complexity and scope of the project.
U.S. Gov't Accountability Office, GAO-14-370, NATIONAL ENVIRONMENTAL
POLICY ACT: Little Information Exists on NEPA Analyses (Apr. 15,
2014), https://www.gao.gov/products/GAO-14-370. The report
referenced the 2003 CEQ task force analysis referenced above which
estimated that a typical EIS costs from $250,000 to $2 million. See
NEPA Task Force Report, supra note 16, at p. 65.
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4. Purpose and Need (Sec. 1502.13)
CEQ received a number of comments in response to the ANPRM
recommending that CEQ better define the requirements for purpose and
need statements. The current CEQ regulations require that an EIS
``briefly specify the underlying purpose and need to which the agency
is responding in proposing the alternatives including the proposed
action.'' 40 CFR 1502.13.
The focus of the purpose and need statement is the purpose and need
for the proposed action, and agencies should develop it based on
consideration of the relevant statutory authority for the proposed
action. The purpose and need statement also provides the framework in
which ``reasonable alternatives'' to the proposed action will be
identified. CEQ has advised that this discussion of purpose and need
should be concise (typically one or two paragraphs long) and that the
lead agency is responsible for its definition. See Connaughton Letter,
supra note 23 (``Thoughtful resolution of the purpose and need
statement at the beginning of the process will contribute to a rational
environmental review process and save considerable delay and
frustration later in the decision[-]making process.''). ``In situations
involving two or more agencies that have a decision to make for the
same proposed action and responsibility to comply with NEPA or a
similar statute, it is prudent to jointly develop a purpose and need
statement that can be utilized by both agencies. An agreed-upon purpose
and need statement at this stage can prevent problems later that may
delay completion of the NEPA process.'' Id. The lead agency is
responsible for developing the purpose and need, and cooperating
agencies should give deference to the lead agency and identify any
substantive concerns early in the process to ensure swift resolution.
See OFD Framework Guidance, Sec. VIII.A.5 and XII, supra note 27, and
Connaughton Letter, supra note 23.
Consistent with CEQ guidance and in response to comments, CEQ
proposes to revise Sec. 1502.13, ``Purpose and need,'' to clarify that
the statement should focus on the purpose and need for the proposed
action. In particular, CEQ proposes to strike ``to which the agency is
responding in proposing the alternatives including'' to focus on the
proposed action. CEQ further proposes, as discussed below, to address
the relationship between the proposed action and alternatives in the
definition of reasonable alternatives and other sections that refer to
alternatives. Additionally, CEQ proposes to add a sentence to clarify
that when an agency is responsible for reviewing applications for
authorizations, the agency shall base the purpose and need on the
applicant's goals and the agency's statutory authority. This addition
is consistent with the proposed definition of reasonable alternatives,
which must meet the goals of the applicant, where applicable.
5. Alternatives (Sec. 1502.14)
CEQ also received many comments requesting clarification regarding
``alternatives'' under the regulations. This section of an EIS should
describe the proposed action and alternatives in comparative form,
including their environmental impacts, such that the decision maker and
the public can understand the basis for choice. However, as explained
in Sec. 1502.16 and reinforced by Question 7 of the Forty Questions,
supra note 10, this section of the EIS should not duplicate the
affected environment and environmental consequences sections, and
agencies have flexibility to combine these three sections in a manner
that clearly sets forth the basis for decision making. CEQ proposes a
few changes to Sec. 1502.14, ``Alternatives including the proposed
action,'' to provide further clarity on the scope of the alternatives
analysis in an EIS. CEQ proposes changes to Sec. 1502.14 to simplify
and clarify the language, and align it with the format of the related
provisions of part 1502.
In paragraph (a), CEQ proposes to delete ``all'' before
``reasonable
[[Page 1702]]
alternatives'' and insert afterward ``to the proposed action.'' NEPA
itself provides no specific guidance concerning the range of
alternatives an agency must consider for each proposal. Section
102(2)(C), provides only that an agency should prepare a detailed
statement addressing, among other things, ``alternatives to the
proposed action.'' 42 U.S.C. 4332(2)(C). Section 102(2)(E) requires
only that agencies ``study, develop, and describe appropriate
alternatives to recommended courses of action.'' 42 U.S.C. 4332(2)(E)
Implementing this limited statutory direction, CEQ has advised that
``[w]hen there are potentially a very large number of alternatives,
only a reasonable number of examples, covering the full spectrum of
alternatives, must be analyzed and compared in the EIS.'' Question 1b,
Forty Questions, supra note 10.
It is CEQ's view that NEPA's policy goals are satisfied when an
agency analyzes reasonable alternatives, and that an EIS need not
include every available alternative where the consideration of a
spectrum of alternatives allows for the selection of any alternative
within that spectrum. The reasonableness of the analysis of
alternatives in a final EIS is resolved not by any particular number of
alternatives considered, but by the nature of the underlying agency
action. The discussion of environmental effects of alternatives need
not be exhaustive, but must provide information sufficient to permit a
reasoned choice of alternatives for the agency to evaluate available
reasonable alternatives, 40 CFR 1502.14(a), including significant
alternatives that are called to its attention by other agencies,
organizations, communities, or a member of the public. Analysis of
alternatives also may serve purposes other than NEPA compliance, such
as evaluation of the least environmentally damaging practicable
alternative for the discharge of dredged or fill material under section
404(b)(1) of the Clean Water Act, 33 U.S.C. 1344(b)(1).
The number of alternatives that is appropriate for an agency to
consider will vary. For some actions, such as where the Federal
agency's authority to consider alternatives is limited by statute, the
range of alternatives may be limited to the proposed action and the no
action alternative. For actions where the Federal authority to consider
a range of alternatives is broad, the final EIS itself should consider
a broader range of reasonable alternatives. However, a process of
narrowing alternatives is in accord with NEPA's ``rule of reason'' and
common sense--agencies need not reanalyze alternatives previously
rejected, particularly when an earlier analysis of numerous reasonable
alternatives was incorporated into the final analysis and the agency
has considered and responded to public comment favoring other
alternatives.
For consistency with this change, CEQ proposes to strike ``the''
before ``reasonable alternatives'' in Sec. 1502.1, and amend Sec.
1502.16, ``Environmental consequences,'' to clarify in proposed
paragraph (a)(1) that the discussion must include the environmental
impacts of the ``proposed action and reasonable alternatives.''
In response to CEQ's ANPRM, some commenters urged that the
regulations should not require agencies to account for impacts over
which the agency has no control, including those resulting from
alternatives outside its jurisdiction. CEQ proposes to strike paragraph
(c) of 40 CFR 1502.14 as a requirement for all EISs because it is not
efficient or reasonable to require agencies to develop detailed
analyses relating to alternatives outside the jurisdiction of the lead
agency. This change is consistent with proposed Sec. 1501.1(a)(2).
Further, the proposed definition of ``reasonable alternatives'' would
preclude alternatives outside the agency's jurisdiction because they
would not be technically feasible due to the agency's lack of statutory
authority to implement that alternative. However, an agency may discuss
reasonable alternatives not within their jurisdiction when necessary
for the agency's decision-making process such as when preparing an EIS
to address legislative EIS requirements pursuant to Sec. 1506.8 and to
specific Congressional directives. See section II.H, infra, for further
discussion.
A concern raised by many commenters is that agencies have limited
resources and that it is important that agencies use those resources
effectively. Analyzing a large number of alternatives, particularly
where it is clear that only a few alternatives would be economically
and technically feasible and realistically implemented by the
applicant, can divert limited agency resources. CEQ invites comment on
whether the regulations should establish a presumptive maximum number
of alternatives for evaluation of a proposed action, or alternatively
for certain categories of proposed actions. CEQ seeks comment on (1)
specific categories of actions, if any, that should be identified for
the presumption or for exceptions to the presumption; and (2) what the
presumptive number of alternatives should be (e.g., a maximum of three
alternatives including the no action alternative).
6. Affected Environment and Environmental Consequences (Sec. Sec.
1502.15 and 1502.16)
CEQ proposes in Sec. 1502.15, ``Affected environment,'' to
explicitly allow for combining of affected environment and
environmental consequences sections to adopt what has become a common
practice in some agencies. This revision would ensure that the
description of the affected environment is focused on those aspects of
the environment that are affected by the proposed action. In proposed
paragraph (a)(1) of Sec. 1502.16, ``Environmental consequences,'' CEQ
proposes to consolidate into one paragraph the requirement to include a
discussion of the effects of the proposed action and reasonable
alternatives. The combined discussion should focus on those effects
that are reasonably foreseeable and have a close causal relationship to
the proposed action, consistent with the proposed revised definition of
effects addressed in Sec. 1508.1(g). To align with the statute, CEQ
also proposes to add a new Sec. 1502.16(a)(10) to provide that
discussion of environmental consequences should include, where
applicable, economic and technical considerations consistent with
section 102(2)(B) of NEPA.
Further, CEQ proposes to move the operative language that addresses
when agencies need to consider economic and social effects in EISs from
the definition of human environment in 40 CFR 1508.14 to proposed Sec.
1502.16(b). CEQ also proposes to amend the language for clarity,
explain that the agency makes the determination of when consideration
of economic and social effects are interrelated with natural or
physical environmental effects at which point the agency should give
appropriate consideration to those effects, and strike ``all of'' as
unnecessary.
7. Submitted Alternatives, Information, and Analyses (Sec. Sec.
1502.17 and 1502.18)
To ensure agencies have considered all alternatives, information,
and analyses submitted by the public, including State, Tribal, and
local governments as well as individuals and organizations, CEQ is
proposing to add a requirement in Sec. 1502.17 to include a new
section in draft and final EISs. This section, called the ``Submitted
alternatives, information and analyses'' section, would include a
summary of all alternatives, information, and analyses submitted by the
public for consideration by the lead and
[[Page 1703]]
cooperating agencies in both the draft and final EISs. In developing
the summary, agencies may refer to other relevant sections of the draft
or final EIS, or to appendices.
To improve the scoping process, CEQ proposes revisions to ensure
agencies solicit and consider relevant information early in the
development of the draft EIS. As discussed above, CEQ proposes to
direct agencies to include a request for identification of
alternatives, information, and analyses in the notice of intent (Sec.
1501.9(d)(7)) and require agencies to summarize all relevant
alternatives, information, and analyses submitted by public commenters
in the draft and final EIS. CEQ also proposes in Sec. 1502.18,
``Certification of alternatives, information, and analyses section,''
that, based on the alternatives, information, and analyses section
required under Sec. 1502.17, the decision maker for the lead agency
certify that the agency has considered such information and include the
certification in the ROD under Sec. 1505.2(d). In addition, CEQ
proposes a conclusive presumption that the agency has considered
information summarized in that section because, where agencies have
followed the process outlined above, and identified and described
information submitted by the public, it is reasonable to presume the
agency has considered such information.
8. Other Proposed Changes to Part 1502
CEQ proposes to eliminate the option to circulate the summary of an
EIS in Sec. 1502.21, ``Publication of the environmental impact
statement,'' given the change from circulation to publication and the
reality that most EISs are produced electronically. CEQ proposes to
strike the word ``always'' from Sec. 1502.22(a) as unnecessarily
limiting and eliminate 40 CFR 1502.22(c) addressing the applicability
of the 1986 amendments to 40 CFR 1502.22, ``Incomplete or unavailable
information,'' because this paragraph is obsolete. CEQ reiterates, as
it stated in the promulgation of this regulation, that the term
``overall cost'' as used in Sec. 1502.22 includes ``financial costs
and other costs such as costs in terms of time (delay) and personnel.''
\71\ CEQ also proposes in paragraphs (b) and (c) to replace the term
``exorbitant'' with ``unreasonable'' because ``unreasonable'' is more
consistent with CEQ's original description of ``overall cost''
considerations, the common understanding of the term, and how the
terminology has been interpreted in practice. CEQ invites comment on
whether the ``overall costs'' of obtaining incomplete of unavailable
information warrants further definition to address whether certain
costs are or are not ``unreasonable.''
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\71\ 51 FR at 15622 (Apr. 25, 1986).
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A proposed revision to Sec. 1502.24, ``Methodology and scientific
accuracy,'' would clarify that agencies should use reliable existing
information and resources and are not required to undertake new
scientific and technical research to inform their analyses. The phrase
``new scientific and technical research'' is intended to distinguish
separate and additional research that extends beyond existing
scientific and technical information available in the public record or
in publicly available academic or professional sources. This phrase is
consistent with the requirement in Sec. 1502.22 to obtain incomplete
or unavailable information regarding significant adverse effects if the
means of obtaining the information is known and the cost to the
decision-making process is not unreasonable. Agencies should use their
experience and expertise to determine what scientific and technical
information is needed to inform their analyses and decision making. CEQ
also proposes to revise Sec. 1502.24 to allow agencies to draw on any
source of information (such as remote sensing and statistical modeling)
that the agency finds reliable and useful to the decision-making
process. These changes would promote the use of reliable data,
including information gathered using current technologies. Finally, CEQ
proposes to revise Sec. 1502.25, ``Environmental review and
consultation requirements,'' to clarify that agencies must, to the
fullest extent possible, integrate their NEPA analysis with all other
applicable Federal environmental review laws and Executive Orders in
furtherance of the OFD policy and to make the environmental review
process more efficient.\72\
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\72\ The Permitting Council has compiled a list of environmental
laws and Executive Orders that may apply to a proposed action. See
Federal Environmental Review and Authorization Inventory, https://www.permits.performance.gov/tools/federal-environmental-review-and-authorization-inventory.
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E. Proposed Revisions To Commenting on Environmental Impact Statements
(Part 1503)
CEQ proposes to modernize part 1503 given the existence of current
technologies not available at the time of the 1978 regulations. In
particular, the proposed regulations would encourage agencies to use
the current methods of electronic communication both to publish
important environmental information and to structure public
participation for greater efficiency and inclusion of interested
persons. CEQ proposes to revise Sec. 1503.1, ``Inviting comments and
requesting information and analyses,'' in proposed paragraph (a)(2)(v)
to give agencies flexibility in the public involvement process to
solicit comments ``in a manner designed to inform'' parties interested
or affected ``by the proposed action.'' CEQ also proposes a new
paragraph (a)(3) that requires agencies to specifically invite comment
on the completeness of the submitted alternatives, information and
analyses section (Sec. 1502.17). Because interested parties have an
affirmative duty to comment during the public review period in order
for the agency to consider their positions, see Vt. Yankee, 435 U.S. at
553, proposed paragraph (c) would require agencies to provide for
commenting using electronic means while ensuring accessibility to those
who may not have such access to ensure adequate notice and opportunity
to comment.
CEQ also proposes a revision to Sec. 1503.2, ``Duty to comment,''
to clarify that when a cooperating agency with jurisdiction by law
specifies measures it considers necessary for a regulatory approval, it
should cite its applicable statutory authority to ensure this
information is made known to the lead agency.
Further, CEQ proposes to revise paragraph (a) of Sec. 1503.3,
``Specificity of comments and information,'' to explain that the
purposes of comments is to promote informed decision making and further
clarify that comments should provide sufficient detail for the agency
to consider the comment in its decision-making process. See Pub.
Citizen, 541 U.S. at 764; Vt. Yankee, 435 U.S. at 553 (while ``NEPA
places upon an agency the obligation to consider every significant
aspect of the environmental impact of a proposed action, it is still
incumbent upon [parties] who wish to participate to structure their
participation so that it is meaningful, so that it alerts the agency to
the [parties'] position . . . .''). CEQ also proposes that comments
should explain why the issue raised is significant to the consideration
of potential environmental impacts and alternatives to the proposed
action, as well as economic and employment impacts, and other impacts
affecting the quality of the environment. See Vt. Yankee, 435 U.S. at
553 (``[Comments] must be significant enough to step over a threshold
requirement of materiality before any lack of agency response or
consideration becomes a concern. The comment cannot merely state that a
particular
[[Page 1704]]
mistake was made . . . ; it must show why the mistake was of possible
significance in the results . . . .'' (quoting Portland Cement Assn. v.
Ruckelshaus, 486 F.2d 375, 394 (1973), cert. denied sub nom. Portland
Cement Corp. v. Administrator, EPA, 417 U.S. 921 (1974))). CEQ also
proposes a new Sec. 1503.3(b) to emphasize that comments on the
submitted alternatives, information and analyses section should
identify any additional alternatives, information or analyses not
included in the draft EIS, and should be as specific as possible.
Finally, section 102(2)(C) of NEPA requires that agencies obtain
views of Federal agencies with jurisdiction by law or expertise with
respect to any environmental impact, and also directs that agencies
make copies of the environmental impact statement and the comments and
views of appropriate Federal, State, and local agencies available to
the President, CEQ and the public. 42 U.S.C. 4332(2)(C). Part 1503 of
the CEQ regulations include provisions relating to inviting and
responding to comments. In practice, the processing of comments can
require substantial time and resources. CEQ proposes to amend Sec.
1503.4, ``Response to comments,'' to simplify and clarify in paragraph
(a) that agencies are required to consider substantive comments timely
submitted during the public comment period. CEQ also proposes to
clarify that an agency may respond to comments individually or
collectively. Consistent with this revision, CEQ proposes additionally
to clarify that in the final EIS, agencies may respond by a variety of
means, and to strike the detailed language in paragraph (a)(5) relating
to comments that do not warrant further agency response.
CEQ also proposes to clarify in paragraph (b) that agencies must
append comment responses to EISs rather than including them in the body
of the EIS, or otherwise publish them. Under current practice, some
agencies include these comment responses in the EISs themselves, which
can contribute to excessive length. See Length of Environmental Impact
Statements, supra note 34. These changes would not preclude an agency
from summarizing or discussing specific comments in the EIS as well.
F. Proposed Revisions to Pre-Decisional Referrals to the Council of
Proposed Federal Actions Determined To Be Environmentally
Unsatisfactory (Part 1504)
Section 309 of the Clean Air Act (42 U.S.C. 7609) requires the
Environmental Protection Agency (EPA) to review and comment on certain
proposed actions of other Federal agencies and to make those comments
public. Where appropriate, EPA may exercise its authority under section
309(b) of the Clean Air Act and refer the matter to CEQ. CEQ's
regulations addressing this referral process are set forth in part
1504.
CEQ proposes edits to part 1504, ``Pre-decisional Referrals to the
Council of Proposed Federal Actions Determined to be Environmentally
Unsatisfactory,'' to improve clarity and to add EAs. Though infrequent,
CEQ has received referrals on EAs and proposes to capture this practice
in the regulations.
CEQ proposes additional revisions to ensure a more timely and
efficient process. Consistent with the statute, CEQ proposes to add
economic and technical considerations to paragraph (g) of Sec. 1504.2,
``Criteria for referrals.'' In Sec. 1504.3, ``Procedure for referrals
and response,'' CEQ proposes changes to simplify and modernize the
process. CEQ also proposes a minor revision to the title of part 1504,
striking ``Predecision'' and inserting ``Pre-decisional.''
G. Proposed Revisions to NEPA and Agency Decision Making (Part 1505)
CEQ proposes minor edits to part 1505 for clarity. CEQ proposes to
move 40 CFR 1505.1, ``Agency decisionmaking procedures,'' to Sec.
1507.3(b), as discussed further below. CEQ proposes to clarify in the
introductory paragraph of Sec. 1505.2, ``Record of decision in cases
requiring environmental impact statements,'' in cases requiring EISs,
that agencies must ``timely publish'' their RODs. This paragraph also
would clarify that ``joint'' RODs by two or more Federal agencies are
permitted; this change is also consistent with the OFD policy and E.O.
13807. Finally, CEQ proposes edits in paragraph (c) to change from
passive to active voice for clarity.
H. Proposed Revisions to Other Requirements of NEPA (Part 1506)
CEQ proposes a number of edits to part 1506 to improve the NEPA
process to make it more efficient and flexible, especially where
actions involve third-party applicants. CEQ also proposes several edits
for clarity.
In particular, CEQ proposes to add FONSIs to paragraph (a) of Sec.
1506.1, ``Limitations on actions during NEPA process,'' to clarify
existing practice and judicial determinations that the limitation on
actions applies when an agency is preparing an EA as well as an EIS.
CEQ proposes to consolidate paragraph (d) with paragraph (b) and revise
the language to provide additional clarity on what activities are
allowable during the NEPA process. Specifically, CEQ proposes to
eliminate reference to a specific agency in paragraph (d), and provide
in paragraph (b) that this section does not preclude certain activities
by an applicant to support an application of Federal, State, Tribal or
local permits or assistance. As an example of activities an applicant
may undertake, CEQ proposes to add ``acquisition of interests in
land,'' which would include acquisitions of rights-of-way and
conservation easements. CEQ invites comment on whether it should make
any additional changes to Sec. 1506.1, including whether there are
circumstances under which an agency may authorize irreversible and
irretrievable commitments of resources.
A revision to Sec. 1506.2, ``Elimination of duplication with
State, Tribal, and local procedures,'' would acknowledge the increasing
number of State, Tribal, and local governments conducting NEPA reviews
pursuant to assignment from Federal agencies. See, e.g., 23 U.S.C. 327,
25 U.S.C. 4115 and 5389(a). The revision in paragraph (a) would clarify
that Federal agencies are authorized to cooperate with such State,
Tribal, and local agencies and must do so to reduce duplication under
paragraph (b). CEQ proposes to add examples to paragraph (b) to
encourage use of prior reviews and decisions. CEQ proposes to modify
paragraph (c) to give agencies flexibility to determine whether to
cooperate in fulfilling State, Tribal, or local EIS or similar
requirements. Finally, CEQ proposes to clarify in paragraph (d) that
NEPA does not require reconciliation of inconsistencies between the
proposed action and State, Tribal or local plans or laws, although the
EIS should discuss the inconsistencies. These revisions would promote
efficiency and reduce duplication between Federal and State, Tribal,
and local requirements. Other commenters noted that this provision
continues to serve an important role given the increased numbers of
non-Federal agencies assuming NEPA responsibilities from a Federal
agency.
Consistent with current practice by many agencies, the proposed
regulations would expand Sec. 1506.3, ``Adoption,'' to expressly cover
EAs as well as EISs. CEQ also proposes edits throughout to clarify the
process for documenting adoption and the subsequent decision. Finally,
paragraph (f) would allow an agency to adopt another agency's
determination to apply a CE to a proposed action if the adopting
agency's proposed action is substantially the same action. To allow
agencies to use
[[Page 1705]]
one another's CEs more generally, CEQ also proposes revisions to Sec.
1507.3(e)(5), which would allow agencies to establish a process in
their NEPA procedures to adopt another agency's CE.
CEQ also proposes to amend Sec. 1506.4, ``Combining documents,''
to encourage agencies ``to the fullest extent practicable'' to combine
their environmental documents with other agency documents to reduce
duplication and paperwork. For example, the U.S. Forest Service
routinely combines EISs with forest management plans, and agencies may
use their NEPA documents to satisfy compliance with section 106 of the
National Historic Preservation Act under 36 CFR 800.8.
In response to the ANPRM, commenters urged CEQ to allow greater
flexibility for the project sponsor (including private entities) to
participate in the preparation of the NEPA documents under the
supervision of the lead agency. An update to Sec. 1506.5, ``Agency
responsibility for environmental documents,'' would give agencies more
flexibility with respect to the preparation of environmental documents
while continuing to require agencies to independently evaluate and take
responsibility for those documents. Applicants and contractors would be
able to assume a greater role in contributing information and material
to the preparation of environmental documents, subject to the
supervision of the agency. However, agencies would remain responsible
for taking reasonable steps to ensure the accuracy of information
prepared by applicants and contractors. If a contractor or applicant
prepares the document, paragraph (c)(1) would require the decision-
making agency official to provide guidance, participate in the
preparation, independently evaluate the statement, and take
responsibility for its content. These changes are intended to improve
communication between proponents of a proposal for agency action and
the officials tasked with evaluating the effects of the action and
reasonable alternatives, to improve the quality of NEPA documents and
efficiency of the NEPA process.
CEQ also proposes to update Sec. 1506.6, ``Public involvement,''
to give agencies greater flexibility to design and customize public
involvement to best meet the specific circumstances of their proposed
actions. Proposed revisions to paragraph (b)(2) would clarify that
agencies may notify any organizations that have requested regular
notice. Proposed paragraph (b)(3)(x) would provide for notice through
electronic media, but clarify that agencies may not limit public
notification to solely electronic methods for actions occurring in
whole or in part in areas without high-speed internet access, such as
rural locations. CEQ also proposes to amend paragraph (f), which
requires that EISs, comments received, and any underlying documents be
made available to the public pursuant to the Freedom of Information Act
(FOIA) by updating the reference to FOIA, which has been amended
numerous times since the enactment of NEPA, mostly recently by the FOIA
Improvement Act of 2016, Public Law 114-185. Further, CEQ proposes to
strike the remaining text to align paragraph (f) with the text of
section 102(2)(C) of NEPA, including with regard to fees. CEQ also
proposes to update and modernize Sec. 1506.7, ``Further guidance,'' to
state that CEQ may provide further guidance concerning NEPA and its
procedures consistent with applicable Executive Orders.
CEQ proposes to consolidate the legislative EIS requirements from
the definition of legislation in the current 40 CFR 1508.17 into Sec.
1506.8, ``Proposals for legislation,'' and revise the provision for
clarity. Agencies prepare legislative EISs for Congress when they are
proposing specific actions such as a legislative proposal for the
withdrawal of public lands for military use. See, e.g., Nevada Test and
Training Range Military Land Withdrawal Legislative Environmental
Impact Statement, Environmental Impact Statements; Notice of
Availability, 83 FR 54105 (Oct. 26, 2018).
CEQ also invites comment on whether the legislative EIS requirement
should be eliminated or modified because the President proposes
legislation, and therefore it is inconsistent with the Recommendations
Clause of the U.S. Constitution, which provides the President shall
recommend for Congress' consideration ``such [m]easures as he shall
judge necessary and expedient . . . .'' U.S. Constitution, Art. II,
Sec. 3. The President is not a Federal agency, 40 CFR 1508.12, and the
proposal of legislation by the President is not an agency action.
Franklin v. Mass., 505 U.S. 788, 800-01 (1992).
CEQ also proposes to add a new Sec. 1506.9, ``Proposals for
regulations,'' to address the analyses required for rulemakings. This
section would clarify that analyses prepared pursuant to other
statutory or Executive Order requirements may serve as the functional
equivalent of the EIS and be sufficient to comply with NEPA. CEQ
proposes in Sec. 1507.3(b)(6) to allow agencies to identify in their
agency NEPA procedures documents prepared pursuant to other statutory
requirements or Executive Orders that meet the requirements of NEPA.
For some rulemakings, agencies conduct a regulatory impact analysis
(RIA), pursuant to E.O. 12866, ``Regulatory Planning and Review,'' \73\
that assesses regulatory impacts to air and water quality, ecosystems,
and animal habitat, among other environmental factors. E.O. 12866,
Sec. 6(a)(3)(C)(i)-(ii). An RIA, alone or in combination with other
documents, may serve the purposes of the EIS if (1) there are
substantive and procedural standards that ensure full and adequate
consideration of environmental issues; (2) there is public
participation before a final alternative is selected; and (3) a purpose
of the review that the agency is conducting is to examine environmental
issues. CEQ proposes Sec. 1506.9 to promote efficiency and reduce
duplication in the assessment of regulatory proposals.
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\73\ 58 FR 51735 (Oct. 4, 1993).
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The analyses must address the detailed statement requirements
specified in section 102(2)(C) of NEPA. More specifically, when those
analyses address environmental effects, alternatives, the relationship
between short-term uses and long-term productivity, and any
irreversible commitments of resources, these analyses may serve as
functional equivalents for an EIS. Further, these analyses must balance
a clear and express environmental protection purpose with any other
variables under consideration, such as economic needs. Finally, that
balance must anticipate the advantages and disadvantages of the
preparation of a separate EIS.
CEQ invites comments on additional analyses agencies are already
conducting that, in whole or when aggregated, can serve as the
functional equivalent of the EIS. Aspects of the E.O. 12866 cost
benefit analysis may naturally overlap with aspects of the EIS.
CEQ also proposes to update Sec. 1506.10, ``Filing requirements,''
to remove the obsolete process for filing paper copies of EISs with EPA
and EPA's delivery of a copy to CEQ, and instead provide for electronic
filing, consistent with EPA's procedures. This proposed change would
provide flexibility to adapt as EPA changes its processes.
A proposed clause in paragraph (b) would acknowledge the statutory
requirement of some agencies to issue a combined final EIS and ROD. See
23 U.S.C. 139(n)(2) and 49 U.S.C. 304a(b). Proposed paragraph (c)
addresses when
[[Page 1706]]
agencies may make an exception to the current rules set forth in
paragraph (b) on timing for issuing a ROD.
Over the last 40 years, CEQ has developed significant experience
with NEPA in the context of emergencies and disaster recoveries.
Actions following Hurricanes Katrina, Harvey, and Michael, as well as
catastrophic wildfires, have given CEQ the opportunity to explore a
variety of circumstances where alternative arrangements for complying
with NEPA are necessary. CEQ proposes to amend Sec. 1506.12,
``Emergencies,'' to clarify that alternative arrangements are still
meant to comply with section 102(2)(C)'s requirement for a ``detailed
statement.'' This amendment is consistent with CEQ's longstanding
position that it has no authority to exempt Federal agencies from
compliance with NEPA, but that CEQ can appropriately provide for
exceptions to specific requirements of CEQ's regulations implementing
the procedural provisions of NEPA to address extraordinary
circumstances that are not addressed by agency implementing procedures
previously approved by CEQ. See Emergencies Guidance, supra note 19.
CEQ maintains a public description of all pending and completed
alternative arrangements on its website.\74\
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\74\ https://ceq.doe.gov/nepa-practice/alternative_arrangements.html.
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Finally, CEQ proposes to modify Sec. 1506.13, ``Effective date,''
to clarify that this regulation would apply to all NEPA processes begun
after the effective date, but agencies have the discretion to apply it
to ongoing reviews. CEQ also proposes to remove the 1979 effective date
of the current regulations and the reference to the 1973 guidance in
the current paragraph (a) and strike the current paragraph (b)
regarding actions begun before January 1, 1970 because they are
obsolete.
I. Proposed Revisions to Agency Compliance (Part 1507)
CEQ proposes modifications to part 1507, which addresses agency
compliance with NEPA. The proposed changes would consolidate provisions
relating to agency procedures from elsewhere in the CEQ regulations,
and add a new section to address the dissemination of information about
agency NEPA programs. A proposed change to Sec. 1507.1,
``Compliance,'' would strike the second sentence for consistency with
changes to the provisions for agency NEPA procedures at Sec. 1507.3. A
proposed change to paragraph (a) of Sec. 1507.2, ``Agency capability
to comply,'' would make the senior agency official responsible for
coordination, communication, and compliance with NEPA, including
resolving implementation issues and representing the agency analysis of
the effects of agency actions on the human environment in agency
decision-making processes. The proposed Sec. 1507.2(a) would make the
senior agency official responsible for addressing disputes among lead
and cooperating agencies and enforcing page and time limits. The senior
agency official would be responsible for ensuring all environmental
documents--even exceptionally lengthy ones--are provided to Federal
agency decision makers in a timely, readable, and useful format. CEQ
also proposes to clarify in the introductory paragraph that in NEPA
compliance an agency may use the ``the resources of other agencies,
applicants, and other participants in the NEPA process,'' for which the
agency should account. CEQ proposes to amend paragraph (c) to emphasize
agency cooperation, which would include commenting. Finally, CEQ
proposes to add references to E.O. 11991, which amended E.O. 11514, and
E.O. 13807 in paragraph (f) to codify agencies' responsibility to
comply with the Order.
In developing their procedures, agencies should strive to identify
and apply efficiencies, such as use of applicable CEs, adoption of
prior NEPA analyses, and incorporation by reference to prior relevant
Federal, State, Tribal, and local analyses, wherever practicable. To
facilitate effective and efficient procedures, CEQ proposes to
consolidate all of the requirements for agency NEPA procedures in Sec.
1507.3 and add a new Sec. 1507.4 to provide the means of publishing
information on ongoing NEPA reviews and agency records relating to NEPA
reviews. This includes moving the provisions in Sec. 1505.1, ``Agency
decision making procedures,'' to proposed Sec. 1507.3(b); moving the
requirement to provide for extraordinary circumstances currently in 40
CFR 1508.4 to proposed Sec. 1507.3(d)(2)(ii); moving the requirement
to adopt procedures for introducing a supplement into the agency's
administrative record from 40 CFR 1502.9(d)(3) to proposed Sec.
1507.3(d)(3); and moving the allowance to combine the agency's EA
process with its scoping process from 40 CFR 1501.7(b)(3) to proposed
Sec. 1507.3(e)(4).
CEQ also proposes several revisions to Sec. 1507.3. Revised
paragraph (a) would provide agencies the later of 1 year after
publication of the final rule or 9 months after the establishment of an
agency to develop or revise proposed agency NEPA procedures, as
necessary, to implement the CEQ regulations. CEQ also proposes to
eliminate the limitations on paraphrasing the CEQ regulations. Agency
NEPA procedures should set forth the process by which agencies will
comply with NEPA and the CEQ regulations in the context of their
particular programs and processes. In addition, CEQ proposes to clarify
that except as otherwise provided by law or for agency efficiency,
agency NEPA procedures shall not impose additional procedures or
requirements beyond those set forth in the CEQ regulations.
CEQ proposes to subdivide paragraph (a) into subparagraphs (1) and
(2) for additional clarity because each of these is an independent
requirement. CEQ proposes to eliminate the recommendation to agencies
to issue explanatory guidance and the requirement to review their
policies and procedures because the responsibility to revise procedures
would be addressed in paragraph (a).
Consistent with the proposed edits to Sec. 1500.1, CEQ proposes to
revise paragraph (b) to clarify that agencies should ensure decisions
are made in accordance with the Act's procedural requirements and
policy of integrating NEPA with other environmental reviews to promote
efficient and timely decision making. CEQ proposes a new paragraph
(b)(6) to encourage agencies to set forth in their NEPA procedures
requirements to combine their NEPA documents with other agency
documents, especially where the same or similar analyses are required
for compliance with other requirements. Many agencies implement
statutes that call for consideration of alternatives to the agency
proposal, including the no action alternative, the effects of the
agencies' proposal and alternatives, and public involvement. Agencies
can use their NEPA procedures to align compliance with NEPA and these
other statutory authorities, including provisions for page and time
limits that integrate NEPA's goals for informed decision making with
agencies' specific statutory requirements. This approach is consistent
with some agency practice, but more agencies could use it to achieve
greater efficiency and reduce unnecessary duplication. See, e.g., 36
CFR part 220 (U.S. Forest Service NEPA procedures).
Under the proposed Sec. 1507.3(b)(6), agencies may document any
agency determination that compliance with the environmental review
requirements of other statutes or Executive Orders serves as the
functional equivalent of NEPA compliance by identifying that (1) there
are substantive and procedural
[[Page 1707]]
standards that ensure full and adequate consideration of environmental
issues; (2) there is public participation before a final alternative is
selected; and (3) a purpose of the review that the agency is conducting
is to examine environmental issues. While the courts have found that
EPA need not conduct NEPA analyses under a number of statutes that are
``functionally equivalent,'' including the Clean Air Act, the Ocean
Dumping Act, the Federal Insecticide, Fungicide, and Rodenticide Act,
the Resource Conservation and Recovery Act, and the Comprehensive
Environmental Response, Compensation, and Liability Act, CEQ proposes
that the concept of functional equivalency be extended to other
agencies that conduct analyses to examine environmental issues.
Furthermore, CEQ proposes to add a new paragraph (c), which would
provide that agencies may identify actions that are not subject to NEPA
in their agency NEPA procedures, including (1) non-major Federal
actions; (2) non-discretionary actions, in whole or in part; (3)
actions expressly exempt from NEPA under another statute; (4) actions
for which compliance with NEPA would clearly and fundamentally conflict
with the requirements of another statute; and (5) actions for which
compliance with NEPA would be inconsistent with Congressional intent
due to the requirements of another statute. These changes would conform
to the new Sec. 1501.1, ``NEPA threshold applicability analysis,''
section, which provides five considerations in determining whether NEPA
applies to a proposed action.
CEQ proposes to amend paragraph (d)(2)(ii) to require agencies to
identify in their procedures when documentation of a CE determination
is required. CEQ proposes to add language to paragraph (e)(3) to codify
existing agency practice to publish notices when it pauses an EIS or
withdraws an NOI. Finally, CEQ proposes to add a new paragraph (e)(5)
that would allow agencies to establish a process in their agency NEPA
procedures whereby the agency may apply a CE listed in another agency's
NEPA procedures. Such procedure would set forth the process by which
the agency would consult with the agency that listed the CE in its NEPA
procedures to ensure that the application of the CE is consistent with
the originating agency's intent and practice.
CEQ invites comment on whether it should specifically allow an
agency to apply a categorical exclusion established in another agency's
NEPA procedures to its proposed action. CEQ invites comment on any
process its regulations should include to ensure the appropriate
application of an agency's CE to another agency's action.
Finally, the proposed Sec. 1507.4, ``Agency NEPA program
information,'' would require agencies in their NEPA implementing
procedures to provide for a website or other means of publishing
certain information on ongoing NEPA reviews and maintaining and
permitting public access to agency records relating to NEPA reviews.
This provision would promote transparency and efficiency in the NEPA
process, and improve interagency coordination by ensuring that
information is more readily available to other agencies and the public.
Opportunities exist for agencies to combine existing geospatial
data, including remotely sensed images, and analyses to streamline
environmental review and better coordinate development of environmental
documents for multi-agency projects, consistent with the OFD policy.
One option involves creating a single NEPA application that facilitates
consolidation of existing datasets and can run several relevant
geographic information system (GIS) analyses to help standardize the
production of robust analytical results. This application could have a
public-facing component modeled along the lines of EPA's NEPAssist,\75\
which would aid prospective project sponsors with site selection and
project design and increase public transparency. The application could
link to the Permitting Dashboard to help facilitate project tracking
and flexibilities under Sec. Sec. 1506.5 and 1506.6. CEQ invites
comment on this proposal, including comment on whether additional
regulatory changes could help facilitate streamlined GIS analysis to
help agencies comply with NEPA.
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\75\ https://nepassisttool.epa.gov/nepassist/nepamap.aspx. See
also the Marine Cadastre, which provides consolidated GIS
information for offshore actions, https://marinecadastre.gov/.
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J. Proposed Revisions to Definitions (Part 1508)
CEQ proposes significant revisions to part 1508. CEQ proposes to
clarify the definitions of a number of key NEPA terms in order to
reduce ambiguity, both through modification of existing definitions and
the addition of new definitions. CEQ also proposes to eliminate
individual section numbers for each term in favor of an alphabetical
list of defined terms in the revised Sec. 1508.1. CEQ proposes
conforming edits to remove citations to the specific definition
sections throughout the proposed rule. Finally, CEQ proposes to move
the operative language included throughout the definitions sections to
the relevant substantive sections of the regulations.
New definition of ``authorization.'' CEQ proposes to define the
term ``authorization'' to refer to the types of activities that might
be required for permitting a proposed action, in particular
infrastructure projects. This definition is consistent with the
definition included in FAST-41 and E.O. 13807.
Clarifying the meaning of ``categorical exclusion.'' CEQ proposes
to revise the definition of categorical exclusion by inserting
``normally'' to clarify that there may be situations where an action
may have significant effects on account of extraordinary circumstances.
CEQ also proposes to strike ``individually or cumulatively'' for
consistency with the proposed revisions to the definition of
``effects'' discussed below. CEQ proposes conforming edits in
Sec. Sec. 1500.4(a) and 1500.5(a). As noted in section II.I, CEQ
proposes to move the requirement to provide for extraordinary
circumstances in agency procedures to Sec. 1507.3(d)(2)(ii).
Clarifying the meaning of ``cooperating agency.'' CEQ proposes to
amend the definition of cooperating agency to make clear that a State,
Tribal, or local agency may be a cooperating agency when the lead
agency agrees, and to move the corresponding operative language to
proposed Sec. 1501.8(a).
Clarifying the meaning of ``effects.'' Many commenters have urged
CEQ to refine the definition of effects. Commenters raised concerns
that the current definition creates confusion, and that the terms
``indirect'' and ``cumulative'' have been interpreted expansively
resulting in excessive documentation about speculative effects and
leading to frequent litigation. Commenters also have raised concerns
that this has expanded the scope of NEPA analysis without serving
NEPA's purpose of informed decision making. Commenters stressed that
the focus of the effects analysis should be on those effects that are
reasonably foreseeable, related to the proposed action under
consideration, and subject to the agency's jurisdiction and control.
Commenters also noted that NEPA practitioners often struggle with
describing cumulative impacts despite numerous publications on the
topic.
While NEPA refers to environmental impacts and environmental
effects, it does not subdivide the terms into direct, indirect, or
cumulative. To address commenters' concerns and reduce confusion and
unnecessary litigation,
[[Page 1708]]
CEQ proposes to make amendments to simplify the definition of effects
by consolidating the definition into a single paragraph and striking
the specific references to direct, indirect, and cumulative effects.
In particular, CEQ proposes to amend the definition of effects to
provide clarity on the bounds of effects consistent with the Supreme
Court's holding in Department of Transportation v. Public Citizen, 541
U.S. at 767-68. Under the proposed definition, effects must be
reasonably foreseeable and have a reasonably close causal relationship
to the proposed action or alternatives; a ``but for'' causal
relationship is insufficient to make an agency responsible for a
particular effect under NEPA. This close causal relationship is
analogous to proximate cause in tort law. Id. at 767; see also Metro.
Edison Co., 460 U.S. at 774 (interpreting section 102 of NEPA to
require ``a reasonably close causal relationship between a change in
the physical environment and the effect at issue'' and stating that
``[t]his requirement is like the familiar doctrine of proximate cause
from tort law.''). CEQ seeks comment on whether to include in the
definition of effects the concept that the close causal relationship is
``analogous to proximate cause in tort law,'' and if so, how CEQ could
provide additional clarity regarding the meaning of this phrase.
CEQ proposes to strike the definition of cumulative impacts and
strike the terms ``direct'' and ``indirect'' in order to focus agency
time and resources on considering whether an effect is caused by the
proposed action rather than on categorizing the type of effect. CEQ's
proposed revisions to simplify the definition are intended to focus
agencies on consideration of effects that are reasonably foreseeable
and have a reasonably close causal relationship to the proposed action.
In practice, substantial resources have been devoted to categorizing
effects as direct, indirect, and cumulative, which, as noted above, are
not terms referenced in the NEPA statute.
In addition, CEQ proposes a change in position to state that
analysis of cumulative effects, as defined in CEQ's current
regulations, is not required under NEPA. While CEQ has issued detailed
guidance on considering cumulative effects, categorizing and
determining the geographic and temporal scope of such effects has been
difficult and can divert agencies from focusing their time and
resources on the most significant effects. Excessively lengthy
documentation that does not focus on the most meaningful issues for the
decision maker's consideration can lead to encyclopedic documents that
include information that is irrelevant or inconsequential to the
decision-making process. Instead, agencies should focus their efforts
on analyzing effects that are most likely to be potentially significant
and be effects that would occur as a result of the agency's decision.
Agencies are not expected to conduct exhaustive research on identifying
and categorizing actions beyond the agency's control. With this
proposed change and the proposed elimination of the definition of
cumulative impacts, it is CEQ's intent to focus agencies on analysis of
effects that are reasonably foreseeable and have a reasonably close
causal relationship to the proposed action.
To further assist agencies in their assessment of significant
effects, CEQ also proposes to clarify that effects should not be
considered significant if they are remote in time, geographically
remote, or the result of a lengthy causal chain. See, e.g., Pub.
Citizen, 541 U.S. at 767-68 (``In particular, `courts must look to the
underlying policies or legislative intent in order to draw a manageable
line between those causal changes that may make an actor responsible
for an effect and those that do not.' '' (quoting Metro. Edison Co.,
460 U.S. at 774 n.7)); Metro. Edison Co., 460 U.S. at 774 (noting
effects may not fall within section 102 of NEPA because ``the causal
chain is too attenuated''). To reinforce CEQ's proposed simplified
definition of effects, CEQ proposes to consolidate paragraphs (a), (b),
and (d) of 40 CFR 1502.16, ``Environmental consequences,'' into a new
Sec. 1502.16(a)(1).
Further, CEQ proposes to codify a key holding of Public Citizen
relating to the definition of effects to make clear that effects do not
include effects that the agency has no authority to prevent or would
happen even without the agency action, because they would not have a
sufficiently close causal connection to the proposed action. This
clarification will help agencies better understand what effects they
need to analyze and discuss, helping to reduce delays and paperwork
with unnecessary analyses.
CEQ invites comment on the proposed revisions to the definition of
effects, including whether CEQ should affirmatively state that
consideration of indirect effects is not required.
Clarifying the meaning of ``environmental assessment.'' CEQ
proposes to revise the definition of environmental assessment,
describing the purpose for the document and moving all of the operative
language from the definition to proposed Sec. 1501.5.
Clarifying the meaning of ``Federal agency.'' CEQ proposes to amend
the definition of ``Federal agency'' to broaden it to include States,
Tribes, and units of local government to the extent that they have
assumed NEPA responsibilities from a Federal agency pursuant to
statute. Since the issuance of the CEQ regulations, Congress has
authorized assumption of NEPA responsibilities in other contexts
besides the Housing and Community Development Act of 1974. See, e.g.,
Surface Transportation Project Delivery Program, 23 U.S.C. 327. This
change would acknowledge these programs and help clarify roles and
responsibilities.
Clarifying the meaning of ``human environment.'' CEQ proposes to
change ``people'' to ``present and future generations of Americans''
consistent with section 101(a) of NEPA.
Clarifying the meaning of ``lead agency.'' CEQ proposes to amend
the definition of lead agency to clarify that this term includes joint
lead agencies, which are an acceptable practice.
Clarifying the meaning of ``legislation.'' CEQ proposes to move the
operative language to Sec. 1506.8 and strike the example of treaties,
because, as noted in section II.H, the President is not a Federal
agency, and therefore a request for ratification of a treaty would not
be subject to NEPA.
Clarifying the meaning of ``major Federal action.'' CEQ received
many comments requesting clarification of the definition of major
Federal action. For example, CEQ received comments proposing that non-
Federal projects should not be considered major Federal actions based
on a very minor Federal role. Commenters also recommended that CEQ
clarify the definition to exclude decisions where agencies do not have
discretion to consider and potentially modify their actions based on
the environmental review.
CEQ proposes to amend the first sentence of the definition to
clarify that an action meets the definition if it is subject to Federal
control and responsibility, and it has effects that may be significant.
CEQ proposes to replace ``major'' effects with ``significant'' in this
sentence to align with the NEPA statute.
CEQ proposes to strike the second sentence of the definition, which
provides ``Major reinforces but does not have a meaning independent of
significantly.'' This is a change in position as compared to CEQ's
earlier interpretation of NEPA. In the statute, Congress refers to
``major Federal actions significantly affecting the quality of the
human environment.'' 42 U.S.C. 4332(2)(C). Under the current
[[Page 1709]]
interpretation, however, the word ``major'' is rendered virtually
meaningless.
CEQ proposes to strike the sentence because all words of a statute
must be given meaning consistent with longstanding principles of
statutory interpretation. See, e.g., Bennett, 520 U.S. at 173 (``It is
the ` ``cardinal principle of statutory construction'' . . . [that] it
is our duty ``to give effect, if possible, to every clause and word of
a statute'' . . . rather than to emasculate an entire section.' ''
(quoting United States v. Menasche, 348 U.S. 528, 538 (1955))). The
legislative history of NEPA also reflects that Congress used the term
``major'' independently of ``significantly,'' and provided that, for
major actions, agencies should make a determination as to whether the
proposal would have a significant environmental impact. Specifically,
the Senate Report for the National Environmental Policy Act of 1969
states, ``Each agency which proposes any major actions, such as project
proposals, proposals for new legislation, regulations, policy
statements, or expansion or revision of ongoing programs, shall make a
determination as to whether the proposal would have a significant
effect upon the quality of the human environment.'' S. Rep. No. 91-296,
at 20 (1969) (emphasis added).\76\ Moreover, over the past four
decades, in a number of cases, courts have determined that NEPA does
not require the preparation of an EIS for actions with minimal Federal
involvement or funding. Under this proposed definition, these would be
non-major Federal actions.
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\76\ https://ceq.doe.gov/docs/laws-regulations/Senate-Report-on-NEPA.pdf.
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To clarify that these activities are non-major Federal actions, CEQ
proposes to add two sentences to the definition to make clear that this
term does not include non-Federal projects with minimal Federal funding
or minimal Federal involvement such that the agency cannot control the
outcome on the project. In such circumstances, there is no practical
reason for an agency to conduct a NEPA analysis because the agency
could not influence the outcome of its action to address the effects of
the project. For example, this might include a very small percentage of
Federal funding provided only to help design an infrastructure project
that is otherwise funded through private or local funds. This change
would help to reduce costs and delays by more clearly defining the
kinds of actions that are appropriately within the scope of NEPA.
CEQ also proposes to strike the third sentence of the definition,
which includes a failure to act in the definition of a major Federal
action, and exclude activities that do not result in final agency
action under the APA. NEPA applies when agencies are considering a
proposal for decision. In the circumstance described in this sentence,
there is no proposed action and therefore no alternatives that the
agency may consider. S. Utah Wilderness All., 542 U.S. at 70-73.
CEQ also proposes to strike the specific reference to the State and
Local Fiscal Assistance Act of 1972 from paragraph (a). The proposed
revisions to the definition clarify that general revenue sharing funds
would not meet the definition of major Federal action. In particular,
CEQ proposes to exclude as non-major Federal actions the farm ownership
and operating loan guarantees provided by the Farm Service Agency (FSA)
of the U.S. Department of Agriculture pursuant to 7 U.S.C. 1925 and
1941 through 1949, and the business loan guarantee programs of the
Small Business Administration (SBA), 15 U.S.C. 636(a), 636(m), and 695
through 697f. Under the farm ownership and operating loan programs, FSA
does not control the bank, or the borrower; the agency does not control
the subsequent use of such funds and does not operate any facilities.
In the event of a default, properties are sold, and FSA never takes
physical possession of, operates, or manages any facility. SBA's
business loan programs operate in similar fashion. Further, under those
programs no Federal funds are expended unless there is a default by the
borrower paying the loan.
CEQ invites comment on whether it should make any further changes
to this paragraph, including changing ``partly'' to ``predominantly''
for consistency with the edits to the introductory paragraph regarding
``minimal Federal funding.'' CEQ also invites comment whether there
should be a threshold (percentage or dollar figure) for ``minimal
Federal funding,'' and if so, what would be an appropriate threshold
and the basis for such a threshold. CEQ also invites comment on whether
any types of financial instruments, including loans and loan
guarantees, should be considered non-major Federal actions and the
basis for such exclusion.
Additionally, as a general matter, CEQ invites comment on whether
the definition of ``major Federal action'' should be further revised to
exclude other per se categories of activities or to further address
what NEPA analysts have called ``the small handle problem.'' \77\
Commenters should provide any relevant data that may assist in
identifying such categories of activities. Finally, as noted in the
discussion of Sec. 1501.4, CEQ invites comment on whether and how to
exclude certain categories of actions common to all Federal agencies
from the definition.
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\77\ See Daniel R. Mandelker et al., NEPA Law and Litigation,
Sec. 8:20 (2d ed. 2019) (``This problem is sometimes called the
`small handle' problem because [F]ederal action may be only be a
`small handle' on a non[-F]ederal project.'').
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CEQ also proposes to insert ``implementation of'' before
``treaties'' in paragraph (b)(1) to clarify that the major Federal
action is not the treaty itself, but rather an agency's action to
implement that treaty. Further, CEQ proposes to strike ``guide'' from
paragraph (b)(2) because guidance is non-binding.
CEQ also invites comment on whether the regulations should clarify
that NEPA does not apply extraterritorially, consistent with Kiobel v.
Royal Dutch Petroleum Co., 569 U.S. 108, 115-16 (2013), in light of the
ordinary presumption against extraterritorial application when a
statute does not clearly indicate that extraterritorial application is
intended by Congress.
Clarifying the meaning of ``mitigation.'' CEQ proposes to amend the
definition of ``mitigation'' to define the term and clarify that NEPA
does not require adoption of any particular mitigation measure,
consistent with Methow Valley, 490 U.S. at 352-53. In Methow Valley,
the Supreme Court held that NEPA and the CEQ regulations require ``that
mitigation be discussed in sufficient detail to ensure that
environmental consequences have been fairly evaluated,'' but do not
establish ``a substantive requirement that a complete mitigation plan
be actually formulated and adopted'' before the agency can make its
decision. Id. at 352.
CEQ also proposes to amend the definition of ``mitigation'' to make
clear that mitigation must have a nexus to the effects of the proposed
action, is limited to those actions that have an effect on the
environment, and does not include actions that do not have an effect on
the environment. This would make the NEPA process more effective by
clarifying that mitigation measures must actually be designed to
mitigate the effects of the proposed action. This amended definition is
consistent with CEQ's Mitigation Guidance, supra note 18.
Under that guidance, if an agency believes that the proposed action
will provide net environmental benefits through use of compensatory
mitigation, the agency should incorporate by
[[Page 1710]]
reference the documents that demonstrate that the proposed mitigation
will be new or in addition to actions that would occur under the no-
action alternative, and the financial, legal, and management
commitments for the mitigation. Use of well-established mitigation
banks and similar compensatory mitigation legal structures should
provide the necessary substantiation for the agency's findings on the
effectiveness (nexus to effects of the action, proportionality, and
durability) of the mitigation. Other actions may be effectively
mitigated through use of environmental management systems that provide
a structure of procedures and policies to systematically identify,
evaluate, and manage environmental impacts of an action during its
implementation.\78\
---------------------------------------------------------------------------
\78\ See Council on Environmental Quality, Aligning National
Environmental Policy Act Processes with Environmental Management
Systems (April 2007), https://ceq.doe.gov/docs/ceq-publications/NEPA_EMS_Guide_final_Apr2007.pdf.
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Clarifying the meaning of ``notice of intent.'' CEQ proposes to
revise the definition of ``notice of intent'' to remove the operative
requirements for the NOI and add the word ``public'' to clarify that
the NOI is a public notice.
New definition of ``page.'' A new definition of ``page'' would
provide a word count (500 words) for a more standard functional
definition of ``page'' for page count and other NEPA purposes. This
would update NEPA for modern electronic publishing and internet
formatting, in which the number of words per page can vary widely
depending on format. It would also ensure some uniformity in document
length while allowing unrestricted use of the graphic display of
quantitative information, tables, photos, maps, and other geographic
information that can provide a much more effective means of conveying
information about environmental effects. This change supports the
original CEQ page limits as a means of ensuring that environmental
documents are readable and useful to decision makers.
New definition of ``participating agency.'' As discussed above, CEQ
proposes to add the concept of a participating agency to the CEQ
regulations. CEQ proposes to define participating agency consistent
with the definition in FAST-41 and 23 U.S.C. 139. CEQ proposes to add
participating agencies to Sec. 1501.7(i) regarding the schedule and
replace the term ``commenting'' agencies with ``participating''
agencies throughout.
Clarifying the meaning of ``proposal.'' CEQ proposes clarifying
edits and to strike the operative language regarding timing of an EIS
because it is already addressed in Sec. 1502.5.
New definition of ``publish/publication.'' CEQ proposes to define
this term to provide agencies with the flexibility to make
environmental reviews and information available to the public by
electronic means. The 1978 regulations predate personal computers and a
wide range of technologies now used by agencies such as GIS mapping
tools and social media. To address environmental justice concerns and
ensure that the affected public is not excluded from the NEPA process
due to a lack of resources (often referred to as the ``digital
divide''), the definition retains a provision for printed environmental
documents where necessary for effective public participation.
New definition of ``reasonable alternative.'' Several commenters
asked CEQ to include a new definition of ``reasonable alternatives'' in
the regulations with emphasis on how technical and economic feasibility
should be evaluated. CEQ proposes a new definition of ``reasonable
alternative'' that would provide that reasonable alternatives must be
technically and economically feasible and meet the purpose and need of
the proposed action. See, e.g., Vt. Yankee, 435 U.S. at 551
(``alternatives must be bounded by some notion of feasibility''). CEQ
also proposes to define reasonable alternatives as ``a reasonable range
of alternatives'' to codify Questions 1a and 1b in the Forty Questions,
supra note 10. Agencies are not required to give detailed consideration
to alternatives that are unlikely to be implemented because they are
infeasible, ineffective, or inconsistent with the purpose and need for
agency action.
Finally, CEQ proposes to clarify that a reasonable alternative must
also consider the goals of the applicant when the agency's action
involves a non-Federal entity. These changes would help reduce
paperwork and delays by helping to clarify the range of alternatives
that agencies must consider. Where the agency action is in response to
an application for permit or other authorization, the agency should
consider the applicant's goals based on the agency's statutory
authorization to act, as well as in other congressional directives, in
defining the proposed action's purpose and need.
New definition of ``reasonably foreseeable.'' CEQ received comment
requesting that the regulations provide a definition of ``reasonably
foreseeable.'' CEQ proposes to define ``reasonably foreseeable''
consistent with the ordinary person standard--that is what a person of
ordinary prudence would consider in reaching a decision.
New definition of ``senior agency official.'' As discussed in
section II.A, the proposed definition of ``senior agency official''
would provide for agency officials that are responsible for the
agency's NEPA compliance.
Striking the definition of ``significantly.'' Because the entire
definition of significantly is operative language, CEQ proposes to
strike this definition and discuss significance in Sec. 1501.4(b), as
described above.
Clarifying the meaning of ``tiering.'' CEQ would amend the
definition of ``tiering'' to make clear that agencies may use EAs at
the programmatic stage as well as the subsequent stages. This would
clarify that agencies have flexibility in structuring programmatic NEPA
reviews and associated tiering. CEQ would move the operative language
regarding tiering from 40 CFR 1508.28 to proposed Sec. 1501.11(b).
K. CEQ Guidance Documents
This proposed rule, if adopted as a final rule, would supersede any
previous CEQ NEPA guidance. If CEQ finalizes the proposed rule, CEQ
anticipates withdrawing all of the CEQ NEPA guidance that is currently
in effect and issuing new guidance as consistent with Presidential
directives.
L. Additional Issues on Which CEQ Invites Comment
Based on comments received and CEQ's experience in implementing
NEPA, the final rule may include amendments to any provisions in parts
1500 to 1508 of the CEQ regulations. CEQ invites comments recommending,
opposing, or providing feedback on specific changes to any provisions
in parts 1500 to 1508 of the CEQ regulations, including revising or
adopting as regulations existing CEQ guidance or handbooks.
Further, CEQ received comments requesting that the regulations
address analysis of greenhouse gas emissions and potential climate
change impacts. CEQ has proposed guidance titled ``Draft National
Environmental Policy Act Guidance on Consideration of Greenhouse Gas
Emissions'' \79\ to address how NEPA analyses should address greenhouse
gas (GHG) emissions. CEQ does not consider it appropriate to address a
single category of impacts in the regulations. If CEQ finalizes this
proposal, CEQ would review the draft GHG guidance for potential
revisions consistent with the
[[Page 1711]]
regulations. However, CEQ invites comments on whether it should codify
any aspects of its proposed GHG guidance in the regulation, and if so,
how CEQ should address them in the regulations.
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\79\ 84 FR 30097 (June 26, 2019).
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If proposed changes to the CEQ regulations provided in comments on
the ANPRM, or on the proposed GHG guidance, are not reflected in this
proposal, and the commenter would like to advance those proposals in
comments to the NPRM, CEQ requests that the commenter specifically
identify and reference to the prior comment.
Finally, CEQ invites comment on whether to update references to
``Council'' in the regulation to ``CEQ'' throughout the rule.
III. Rulemaking Analyses and Notices
A. Executive Order 12866, Regulatory Planning and Review; Executive
Order 13563, Improving Regulation and Regulatory Review; and Executive
Order 13771, Reducing Regulation and Controlling Regulatory Costs
This proposed rule is a significant regulatory action that was
submitted to the Office of Management and Budget (OMB) for review. The
docket for this rulemaking documents any changes made in response to
OMB recommendations as required by section 6 of E.O. 12866.
B. Regulatory Flexibility Act and Executive Order 13272, Proper
Consideration of Small Entities in Agency Rulemaking
The Regulatory Flexibility Act, as amended, (RFA), 5 U.S.C. 601 et
seq., and E.O. 13272 \80\ 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 (IRFA) 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.
The proposed rule would not directly regulate small entities. Rather,
the proposed rule applies to Federal agencies and sets forth the
process for their compliance with NEPA. Accordingly, CEQ hereby
certifies that the proposed rule, if promulgated, will not have a
significant economic impact on a substantial number of small entities.
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\80\ 67 FR 53461 (Aug. 16, 2002).
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C. National Environmental Policy Act
This proposed rule, if finalized, would assist agencies in
fulfilling their responsibilities under NEPA, but would not make any
final determination of what level of NEPA analysis is required for
particular actions. The CEQ regulations do not require agencies to
prepare a NEPA analysis before establishing or updating agency
procedures for implementing NEPA. While CEQ prepared environmental
assessments for its promulgation of the CEQ regulations in 1978 and its
amendments to 40 CFR 1502.22 in 1986, in the development of this
proposed rule, CEQ has determined that the proposed rule would not have
a significant effect on the environment because it would not authorize
any activity or commit resources to a project that may affect the
environment. Therefore, CEQ does not intend to conduct a NEPA analysis
of this proposed rule for the same reason that CEQ does not require any
Federal agency to conduct NEPA analysis for the development of agency
procedures for the implementation of NEPA and the CEQ regulations.
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.\81\ 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. CEQ does not anticipate that this proposed rule has
federalism implications because it applies to Federal agencies, not
States.
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\81\ 64 FR 43255 (Aug. 10, 1999).
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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.\82\ 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. While the proposed rule is not a
regulatory policy that has Tribal implications, the proposal does, in
part, respond to Tribal government comments supporting expansion of the
recognition of the sovereign rights, interests, and expertise of Tribes
in the NEPA process and CEQ regulations implementing NEPA.
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\82\ 65 FR 67249 (Nov. 9, 2000).
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In its ANPRM, CEQ included a specific question regarding the
representation of Tribal governments in the NEPA process. See ANPRM
Question 18 (``Are there ways in which the role of [T]ribal governments
in the NEPA process should be clarified in CEQ's NEPA regulations, and
if so, how?''). More generally, CEQ's ANPRM sought the views of Tribal
governments and others on regulatory revisions that CEQ could propose
to improve Tribal participation in Federal NEPA processes. See ANPRM
Question 2 (``Should CEQ's NEPA regulations be revised to make the NEPA
process more efficient by better facilitating agency use of
environmental studies, analysis, and decisions conducted in earlier
Federal, State, Tribal or local environmental reviews or authorization
decisions, and if so, how?''). As discussed section II.A, CEQ now
proposes to amend its regulations to further support coordination with
Tribal governments and agencies and analysis of a proposed action's
potential effects on Tribal lands, resources, or areas of historic
significance as an important part of Federal agency decision making. In
addition to these proposed revisions of the CEQ Regulations, CEQ is
inviting comment on other CEQ guidance that warrants codification. See,
e.g., CEQ Memorandum titled ``Designation of Non-Federal Agencies to be
Cooperating Agencies in Implementing the Procedural Requirements of the
National Environmental Policy Act'' \83\ (July 28, 1999) encouraging
more active solicitation of Tribal entities for participation as
cooperating agencies in NEPA documents.
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\83\ https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ceqcoop.pdf.
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F. Executive Order 12898, Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
E.O. 12898 requires agencies to make achieving environmental
justice part of its mission by identifying and addressing, as
appropriate, disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities on
minority populations and low-income populations.\84\ CEQ has
[[Page 1712]]
analyzed this proposed rule and determined that it would not cause
disproportionately high and adverse human health or environmental
effects on minority populations and low-income populations. 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.
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\84\ 59 FR 7629 (Feb. 16, 1994).
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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.\85\ This proposed rule 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.
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\85\ 66 FR 28355 (May 22, 2001).
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H. Executive Order 12988, Civil Justice Reform
Under section 3(a) E.O. 12988,\86\ 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. Section 3(b) provides a list of specific issues
for review to conduct the reviews required by section 3(a). CEQ has
conducted this review and determined that this proposed rule complies
with the requirements of E.O. 12988.
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\86\ 61 FR 4729 (Feb. 7, 1996).
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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 State, local, and Tribal 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 State, local, or Tribal
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 State, local, and
Tribal governments and the private sector. 2 U.S.C. 1532. This proposed
rule applies to Federal agencies and would not result in expenditures
of $100 million or more for State, local, and Tribal governments, in
the aggregate, or the private sector in any 1 year. This action also
does 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 does not impose any new information collection
burden that would require additional review or approval by OMB under
the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.
List of Subjects in 40 CFR Parts 1500 Through 1508
Administrative practice and procedure; Environmental impact
statements; Environmental protection; Natural resources.
Dated: December 23, 2019.
Mary B. Neumayr,
Chairman.
For the reasons discussed in the preamble, the Council on
Environmental Quality proposes to amend parts 1500 through 1508 in
title 40 of the Code of Federal Regulations to read as follows:
0
1. Revise part 1500 to read as follows:
PART 1500--PURPOSE AND POLICY
Sec.
1500.1 Purpose and policy.
1500.2 [Reserved]
1500.3 NEPA compliance.
1500.4 Reducing paperwork.
1500.5 Reducing delay.
1500.6 Agency authority.
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; E.O. 11514, 35 FR 4247, Mar. 7, 1970, as amended by E.O.
11991, 42 FR 26967, May 25, 1977; and E.O. 13807, 82 FR 40463, Aug.
24, 2017.
Sec. 1500.1 Purpose and policy.
(a) The National Environmental Policy Act (NEPA) is a procedural
statute intended to ensure Federal agencies consider the environmental
impacts of their actions in the decision-making process. Section 101 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
man and nature can exist in productive harmony, and fulfill the social,
economic, and other requirements of present and future generations of
Americans. Section 102(2) of NEPA establishes the procedural
requirements to carry out the policy stated in section 101 of NEPA. In
particular, it requires Federal agencies to provide a detailed
statement on proposals for major Federal actions significantly
affecting the quality of the human environment. The purpose and
function of NEPA is satisfied if Federal agencies have considered
relevant environmental information and the public has been informed
regarding the decision making process. NEPA does not mandate particular
results or substantive outcomes. NEPA's purpose is not to generate
paperwork or litigation, but to provide for informed decision making
and foster excellent action.
(b) The regulations in parts 1500 through 1508 implement section
102(2) of NEPA. They provide direction to Federal agencies to determine
what actions are subject to NEPA's procedural requirements and the
level of NEPA review where applicable. These regulations are intended
to ensure that relevant environmental information is identified and
considered early in the process in order to ensure informed decision
making by Federal agencies. The regulations are also 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 promote concurrent
environmental reviews to ensure timely and efficient decision making.
Sec. 1500.2 [Reserved]
Sec. 1500.3 NEPA compliance.
(a) Mandate. Parts 1500 through 1508 of this title are 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), except
where compliance would be inconsistent with other statutory
requirements. These regulations 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.); section 309 of the Clean Air Act, as
amended (42 U.S.C. 7609); 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); and Executive Order 13807,
Establishing Discipline and Accountability in the Environmental Review
and Permitting Process for Infrastructure Projects (August 15, 2017).
These regulations apply to the whole of section 102(2) of NEPA. The
provisions of the Act and of these regulations must be read together as
a whole to comply with the law. Agency NEPA procedures to implement
[[Page 1713]]
these regulations shall not impose additional procedures or
requirements beyond those set forth in these regulations, except as
otherwise provided by law or for agency efficiency.
(b) Exhaustion. (1) To ensure informed decision making and reduce
delays, agencies shall include a request for comments on potential
alternatives and impacts, and identification of any relevant
information, studies, or analyses of any kind concerning impacts
affecting the quality of the human environment in the notice of intent
to prepare an environmental impact statement (Sec. 1501.9).
(2) The environmental impact statement shall include a summary of
the comments received, including all alternatives, information, and
analyses submitted by public commenters for consideration by the lead
and cooperating agencies in developing the environmental impact
statement (Sec. 1502.17).
(3) For consideration by the lead and cooperating agencies,
comments must be submitted within the comment periods provided and
shall be as specific as possible (Sec. Sec. 1503.1 and 1503.3).
Comments or objections not submitted shall be deemed unexhausted and
forfeited. Any objections to the submitted alternatives, information,
and analyses section (Sec. 1502.17) shall be submitted within 30 days
of the notice of availability of the final environmental impact
statement.
(4) Based on the summary of the submitted alternatives,
information, and analyses section, the decision maker for the lead
agency shall certify in the record of decision that the agency
considered all of the alternatives, information, and analyses submitted
by public commenters for consideration by the lead and cooperating
agencies in developing the environmental impact statement (Sec.
1502.18).
(c) Actions regarding NEPA compliance. It is the Council's
intention that judicial review of agency compliance with the
regulations in parts 1500 through 1508 not occur before an agency has
issued the record of decision or taken other final agency action. Any
allegation of noncompliance with NEPA and these regulations should be
resolved as expeditiously as possible. Agencies may structure their
decision making to allow private parties to seek agency stays of final
agency decisions pending administrative or judicial review of those
decisions. Consistent with their organic statutes, agencies may
structure their procedures to provide for efficient mechanisms for
seeking, granting and imposing conditions on such stays, consistent
with 5 U.S.C. 705. Such mechanisms may include the imposition of an
appropriate bond requirement or other security requirement as a
condition for a stay.
(d) Remedies. Harm from the failure to comply with NEPA can be
remedied by compliance with NEPA's procedural requirements as
interpreted in the regulations in parts 1500 through 1508. These
regulations create no presumption that violation of NEPA is a basis for
injunctive relief or for a finding of irreparable harm. These
regulations do not create a cause of action or right of action for
violation of NEPA, which contains no such cause of action or right of
action. It is the Council's intention that any actions to review,
enjoin, stay, or alter an agency decision on the basis of an alleged
NEPA violation be raised as soon as practicable to avoid or minimize
any costs to agencies, applicants, or any affected third parties. 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.
(e) Severability. The sections of parts 1501 through 1508 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.
Sec. 1500.4 Reducing paperwork.
Agencies shall reduce excessive paperwork by:
(a) Using categorical exclusions to define categories of actions
which do not have a significant effect on the human environment and
which are therefore exempt from requirements to prepare an
environmental impact statement (Sec. 1501.4).
(b) Using a finding of no significant impact when an action not
otherwise excluded will not have a significant effect on the human
environment and is therefore exempt from requirements to prepare an
environmental impact statement (Sec. 1501.6).
(c) Reducing the length of environmental documents by means such as
meeting appropriate page limits (Sec. Sec. 1501.5(e) and 1502.7).
(d) Preparing analytic and concise environmental impact statements
(Sec. 1502.2).
(e) Discussing only briefly issues other than significant ones
(Sec. 1502.2(b)).
(f) Writing environmental impact statements in plain language
(Sec. 1502.8).
(g) Following a clear format for environmental impact statements
(Sec. 1502.10).
(h) Emphasizing the portions of the environmental impact statement
that are useful to decision makers and the public (Sec. Sec. 1502.14
and 1502.15) and reducing emphasis on background material (Sec.
1502.16).
(i) Using the scoping process, not only to identify significant
environmental issues deserving of study, but also to deemphasize
insignificant issues, narrowing the scope of the environmental impact
statement process accordingly (Sec. 1501.9).
(j) Summarizing the environmental impact statement (Sec. 1502.12).
(k) Using programmatic, policy, or plan environmental impact
statements and tiering from statements of broad scope to those of
narrower scope, to eliminate repetitive discussions of the same issues
(Sec. Sec. 1502.4 and 1501.11).
(l) Incorporating by reference (Sec. 1501.12).
(m) Integrating NEPA requirements with other environmental review
and consultation requirements (Sec. 1502.25).
(n) Requiring comments to be as specific as possible (Sec.
1503.3).
(o) Attaching and publishing only changes to the draft
environmental impact statement, rather than rewriting and publishing
the entire statement when changes are minor (Sec. 1503.4(c)).
(p) Eliminating duplication with State, Tribal, and local
procedures, by providing for joint preparation of environmental
documents where practicable (Sec. 1506.2), and with other Federal
procedures, by providing that an agency may adopt appropriate
environmental documents prepared by another agency (Sec. 1506.3).
(q) Combining environmental documents with other documents (Sec.
1506.4).
Sec. 1500.5 Reducing delay.
Agencies shall reduce delay by:
(a) Using categorical exclusions to define categories of actions
which do not have a significant effect on the human environment (Sec.
1501.4) and which are therefore exempt from requirements to prepare an
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 (Sec. 1501.6) and is therefore exempt from requirements to
prepare an environmental impact statement.
(c) Integrating the NEPA process into early planning (Sec.
1501.2).
[[Page 1714]]
(d) Engaging in interagency cooperation before the environmental
assessment or environmental impact statement is prepared, rather than
submission of comments on a completed document (Sec. 1501.8).
(e) Ensuring the swift and fair resolution of lead agency disputes
(Sec. 1501.7).
(f) Using the scoping process for an early identification of what
are and what are not the real issues (Sec. 1501.9).
(g) Meeting appropriate time limits for the environmental
assessment and environmental impact statement processes (Sec.
1501.10).
(h) Preparing environmental impact statements early in the process
(Sec. 1502.5).
(i) Integrating NEPA requirements with other environmental review
and consultation requirements (Sec. 1502.25).
(j) Eliminating duplication with State, Tribal, and local
procedures by providing for joint preparation of environmental
documents where practicable (Sec. 1506.2) and with other Federal
procedures by providing that agencies may jointly prepare or adopt
appropriate environmental documents prepared by another agency (Sec.
1506.3).
(k) Combining environmental documents with other documents (Sec.
1506.4).
(l) Using accelerated procedures for proposals for legislation
(Sec. 1506.8).
Sec. 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. 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 as interpreted
by the regulations in parts 1500 through 1508. 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
existing law applicable to the agency's operations expressly prohibits
or makes compliance impossible. Nothing contained in the regulations in
parts 1500 through 1508 is intended or should be construed to limit an
agency's other authorities or legal responsibilities.
0
2. Revise part 1501 to read as follows:
PART 1501--NEPA AND AGENCY PLANNING
Sec.
1501.1 NEPA threshold applicability analysis.
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 agencies.
1501.8 Cooperating agencies.
1501.9 Scoping.
1501.10 Time limits.
1501.11 Tiering.
1501.12 Incorporation by reference.
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; E.O. 11514, 35 FR 4247, Mar. 7, 1970, as amended by E.O.
11991, 42 FR 26967, May 25, 1977; and E.O. 13807, 82 FR 40463, Aug.
24, 2017.
Sec. 1501.1 NEPA threshold applicability analysis.
(a) In assessing whether NEPA applies, Federal agencies should
determine:
(1) Whether the proposed action is a major Federal action.
(2) Whether the proposed action, in whole or in part, is a non-
discretionary action for which the agency lacks authority to consider
environmental effects as part of its decision-making process.
(3) Whether the proposed action is an action for which compliance
with NEPA would clearly and fundamentally conflict with the
requirements of another statute.
(4) Whether the proposed action is an action for which compliance
with NEPA would be inconsistent with Congressional intent due to the
requirements of another statute.
(5) Whether the proposed action is an action for which the agency
has determined that other analyses or processes under other statutes
serve the function of agency compliance with NEPA.
(b) Federal agencies may make these determinations in their agency
NEPA procedures (Sec. 1507.3(c)) or on an individual basis.
Sec. 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 [e]nsure
the integrated use of the natural and social sciences and the
environmental design arts in planning and in decision making which may
have an impact on man's environment,'' as specified by Sec. 1507.2.
(2) Identify environmental effects and values in adequate detail so
they can be appropriately considered along with economic and technical
analyses. Agencies shall review and publish environmental documents and
appropriate analyses at the same time as other planning documents.
(3) Study, develop, and describe appropriate alternatives to
recommended courses of action in any proposal which involves unresolved
conflicts concerning alternative uses of available resources as
provided by section 102(2)(E) of NEPA.
(4) Provide for cases where actions that are subject to NEPA are
planned by private 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 private persons and
organizations when its own involvement is reasonably foreseeable.
(iii) The Federal agency commences its NEPA process at the earliest
reasonable time.
Sec. 1501.3 Determine the appropriate level of NEPA review.
(a) In assessing the appropriate level of NEPA review, Federal
agencies should determine whether the proposed action:
(1) Normally does not have significant effects and is categorically
excluded (Sec. 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 (Sec. 1501.5); or
(3) Is likely to have significant effects and is therefore
appropriate for an environmental impact statement (part 1502).
(b) In considering whether the effects of the proposed action are
significant, agencies shall analyze the potentially affected
environment and degree of the effects of the action.
(1) In considering the potentially affected environment, agencies
may consider, as appropriate, the affected area (national, regional, or
local). Significance varies with the setting of the proposed action.
For instance, in the case of a site-specific action, significance would
usually depend upon the effects in the locale rather than in the Nation
as a whole. Both short- and long-term effects are relevant.
(2) In considering the degree of the effects, agencies should
consider the
[[Page 1715]]
following, as appropriate to the specific action:
(i) Effects may be both beneficial and adverse.
(ii) Effects on public health and safety.
(iii) Effects that would violate Federal, State, Tribal, or local
law protecting the environment.
Sec. 1501.4 Categorical exclusions.
(a) For efficiency, agencies identify in their agency NEPA
procedures (Sec. 1507.3(d)(2)(ii)) categories of actions that normally
do not have a significant effect on the human environment, and
therefore do not require preparation of an environmental assessment or
environmental impact statement.
(b) If an agency determines that a proposed action is covered by a
categorical exclusion identified in its agency NEPA procedures, the
agency shall evaluate the action for extraordinary circumstances in
which a normally excluded action may have a significant effect.
(1) If extraordinary circumstances are present for a proposed
action, the agency should consider whether mitigating circumstances or
other conditions are sufficient to avoid significant effects and
therefore categorically exclude the proposed action.
(2) If the proposed action cannot be categorically excluded, the
agency shall prepare an environmental assessment or environmental
impact statement.
Sec. 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 (Sec. 1501.4) is applicable or has decided to
prepare an environmental impact statement.
(b) An agency may prepare an environmental assessment on any action
in order 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; and
(2) Briefly discuss the purpose and need for the proposed action,
alternatives as required by section 102(2)(E) of NEPA, the
environmental impacts of the proposed action and alternatives, and a
listing of agencies and persons consulted.
(d) Agencies shall involve relevant agencies, applicants, and the
public, to the extent practicable in preparing environmental
assessments.
(e) The text of an environmental assessment shall be no more than
75 pages, not including appendices, unless a senior agency official
approves in writing an assessment to exceed 75 pages and establishes a
new page limit.
(f) Agencies may apply the following provisions to environmental
assessments:
(1) Section 1502.22 Incomplete or unavailable information;
(2) Section 1502.24 Methodology and scientific accuracy; and
(3) Section 1502.25 Environmental review and consultation
requirements.
Sec. 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 assessment, not to
prepare an environmental impact statement because the proposed action
is not likely to have significant effects.
(1) The agency shall make the finding of no significant impact
available to the affected public as specified in Sec. 1506.6.
(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 which
normally requires the preparation of an environmental impact statement
under the procedures adopted by the agency pursuant to Sec. 1507.3, 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 (Sec. 1501.9(f)(3)).
If the 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 means of
and authority for any mitigation that the agency has adopted, and any
applicable monitoring or enforcement provisions. If the agency finds no
significant impacts based on mitigation, the mitigated finding of no
significant impact shall state any enforceable mitigation requirements
or commitments that will be undertaken to avoid significant impacts.
Sec. 1501.7 Lead agencies.
(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, including at least
one Federal agency, may act as joint lead agencies to prepare an
environmental impact statement or environmental assessment (Sec.
1506.2).
(c) If an action falls within the provisions of paragraph (a) of
this section, the potential lead agencies shall determine, by letter or
memorandum, which agency shall be the lead agency and which shall 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/disapproval authority.
(3) Expertise concerning the action's environmental effects.
(4) Duration of agency's involvement.
(5) Sequence of agency's involvement.
(d) Any Federal agency, or any State, Tribal, or local agency or
private person substantially affected by the absence of lead agency
designation, may make a written request to the senior agency officials
of the potential lead agencies that a lead agency be designated.
(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 within 45 days in a lead agency designation,
any of the agencies or persons concerned may file a request with the
Council asking it to determine which Federal agency shall be the lead
agency. A copy of the request shall be transmitted to each potential
lead agency. The request shall consist of:
(1) A precise description of the nature and extent of the proposed
action.
(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) A response may be filed by any potential lead agency concerned
within 20 days after a request is filed with the Council. The Council
shall determine as soon as possible but not later than 20 days after
receiving the request and all responses to it which Federal agency
shall be the lead agency and which
[[Page 1716]]
other Federal agencies shall 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 issue a joint record of decision. To
the extent practicable, if the lead agency determines that the proposed
action should be evaluated in an environmental assessment, the lead and
cooperating agencies should evaluate the proposal in a single
environmental assessment and, where appropriate, issue a joint finding
of no significant impact.
(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) Use the environmental analysis and proposals of cooperating
agencies with jurisdiction by law or special expertise, to the maximum
extent practicable, consistent with its responsibility as lead agency.
(3) Meet with a cooperating agency at the latter's request.
(4) Determine the purpose and need, and alternatives in
consultation with any cooperating agency.
(i) The lead agency shall develop a schedule, setting milestones
for all environmental reviews and authorizations required for
implementation of the action, in consultation with any applicant and
all joint lead, cooperating, and participating agencies, as soon as
practicable.
(j) If the lead agency anticipates that a milestone will be missed,
it shall notify appropriate officials at the responsible agencies. The
responsible agencies shall elevate, as soon as practicable, to the
appropriate officials of the responsible agencies, the issue for timely
resolution.
Sec. 1501.8 Cooperating agencies.
(a) The purpose of this section is to emphasize agency cooperation
early in the NEPA process. Any Federal agency with jurisdiction by law
shall be a cooperating agency upon request of the lead agency. In
addition, any other Federal agency with special expertise with respect
to any environmental issue may be a cooperating agency upon request of
the lead agency. A State, Tribal, or local agency of similar
qualifications may, by agreement with the lead agency, become a
cooperating agency. An agency may request the lead agency to designate
it a cooperating agency, and a Federal agency may appeal a denial of
its request to the Council, in accordance with Sec. 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 Sec. 1501.9).
(3) Assume, on request of the lead agency, responsibility for
developing information and preparing environmental analyses, including
portions of the environmental impact statement or environmental
assessment concerning which the cooperating agency has special
expertise.
(4) Make available staff support at the lead agency's request to
enhance the latter'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 (Sec.
1501.7(i)), meet the schedule, and elevate, as soon as practicable, to
the senior agency official of the lead agency relating to purpose and
need, alternatives or any other issues any issues that may affect that
agency's ability to meet the schedule.
(7) Meet the lead agency's schedule for providing comments and
limit its comments to those matters for which it has jurisdiction by
law or special expertise with respect to any environmental issue
consistent with Sec. 1503.2.
(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.
Sec. 1501.9 Scoping.
(a) Generally. Agencies shall use an early and open process to
determine the scope of issues for analysis in an environmental impact
statement, including identifying the significant issues and eliminating
from further study non-significant 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.
(b) Invite cooperating and participating agencies. As part of the
scoping process, 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 on environmental grounds), unless there is a limited exception
under Sec. 1507.3(e).
(c) Scoping outreach. 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. Such a scoping meeting
will often be appropriate when the impacts of a particular action are
confined to specific sites.
(d) 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, except as provided in Sec.
1507.3(e)(3). An agency may publish notice in accordance with Sec.
1506.6. 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 to be considered;
(3) A brief summary of expected impacts;
(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 comments on potential alternatives and impacts,
and identification of any relevant information, studies, or analyses of
any kind concerning impacts affecting the quality of the human
environment (Sec. Sec. 1503.1 and 1503.3); and
(8) Contact information for a person within the agency who can
answer questions about the proposed action and the environmental impact
statement.
(e) Determination of scope. As part of the scoping process, the
lead agency shall determine the scope and the significant issues to be
analyzed in depth in the environmental impact
[[Page 1717]]
statement. To determine the scope of environmental impact statements,
agencies shall consider:
(1) Actions (other than unconnected single actions) that may be:
(i) Connected actions, which means that they are closely related
and therefore should be discussed in the same impact statement. Actions
are connected if they:
(A) Automatically trigger other actions that may require
environmental impact statements;
(B) Cannot or will not proceed unless other actions are taken
previously or simultaneously; or
(C) Are interdependent parts of a larger action and depend on the
larger action for their justification.
(ii) Similar actions, which when viewed with other reasonably
foreseeable or proposed agency actions, have similarities that provide
a basis for evaluating their environmental consequences together, such
as common timing or geography. An agency may wish to analyze these
actions in the same impact statement. It should do so when the most
effective way to assess adequately the combined impacts of similar
actions or reasonable alternatives to such actions is to treat them in
a single impact statement.
(2) Alternatives, which include the no action alternative; other
reasonable courses of action; and mitigation measures (not in the
proposed action).
(3) Impacts.
(f) Additional scoping responsibilities. As part of the scoping
process, the lead agency shall:
(1) Identify and eliminate from detailed study the issues which are
not significant or which have been covered by prior environmental
review (Sec. 1506.3), narrowing the discussion of these issues in the
statement to a brief presentation of why they will not have a
significant effect on the human environment 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 which are being or will be prepared
that are related to but are not part of the scope of the 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 with, and
integrated with, the environmental impact statement as provided in
Sec. 1502.25.
(5) Indicate the relationship between the timing of the preparation
of environmental analyses and the agencies' tentative planning and
decision-making schedule.
(g) Revisions. An agency shall revise the determinations made under
paragraphs (b), (c), (e), and (f) of this section if substantial
changes are made later in the proposed action, or if significant new
circumstances or information arise which bear on the proposal or its
impacts.
Sec. 1501.10 Time limits.
(a) To ensure that agencies conduct NEPA reviews as efficiently and
expeditiously as practicable, Federal agencies should set time limits
appropriate to individual actions or types of actions (consistent with
the time intervals required by Sec. 1506.11). When multiple agencies
are involved the reference to agency below means lead agency.
(b) To ensure timely decision making, agencies shall complete:
(1) Environmental assessments within 1 year unless a senior agency
official of the lead agency approves a longer period in writing and
establishes a new time limit. One year is measured from the date of
decision to prepare an environmental assessment to the publication of a
final environmental assessment.
(2) Environmental impact statements within 2 years unless a senior
agency official of the lead agency approves a longer period in writing
and establishes a new time limit. Two years is measured from the date
of the issuance of the notice of intent to the date a record of
decision is signed.
(c) The senior agency official may consider the following factors
in determining time limits:
(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) Other time limits imposed on the agency by law, regulations, or
Executive order.
(d) The senior agency official may set overall time limits or
limits for each constituent part of the NEPA process, which may
include:
(1) Decision on whether to prepare an environmental impact
statement (if not already decided).
(2) Determination of the scope of the environmental impact
statement.
(3) Preparation of the draft environmental impact statement.
(4) Review of any comments on the draft environmental impact
statement from the public and agencies.
(5) Preparation of the final environmental impact statement.
(6) Review of any comments on the final environmental impact
statement.
(7) Decision on the action based in part on the environmental
impact statement.
(e) The 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.
(f) State, Tribal, or local agencies or members of the public may
request a Federal agency to set time limits.
Sec. 1501.11 Tiering.
(a) Agencies are encouraged to tier their environmental impact
statements and environmental assessments where it would eliminate
repetitive discussions of the same issues, focus on the actual issues
ripe for decision, and exclude from consideration issues already
decided or not yet ripe at each level of environmental review. Whenever
an agency has prepared an environmental impact statement or
environmental assessment for a program or policy and then prepares a
subsequent statement or environmental assessment on an action included
within the entire program or policy (such as a project- or site-
specific action), the subsequent statement or environmental assessment
need only summarize the issues discussed in the broader statement and
incorporate discussions from the broader statement by reference and
shall concentrate on the issues specific to the subsequent action. The
subsequent document shall state where the earlier document is
available. Tiering may also be appropriate for different stages of
actions.
(b) Tiering is appropriate when the sequence from an environmental
impact statement or environmental assessment is:
(1) 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.
(2) 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
[[Page 1718]]
later stage (such as environmental mitigation). Tiering in such cases
is appropriate when it helps the lead agency to focus on the issues
that are ripe for decision and exclude from consideration issues
already decided or not yet ripe.
Sec. 1501.12 Incorporation by reference.
Agencies shall incorporate material into environmental documents by
reference when the effect will be to cut down on bulk without impeding
agency and public review of the action. The incorporated material shall
be cited in the document and its content briefly described. No material
may be incorporated by reference unless it is reasonably available for
inspection by potentially interested persons within the time allowed
for comment. Material based on proprietary data which is itself not
available for review and comment shall not be incorporated by
reference.
0
3. Revise part 1502 to read as follows:
PART 1502--ENVIRONMENTAL IMPACT STATEMENT
Sec.
1502.1 Environmental impact statement purpose.
1502.2 Implementation.
1502.3 Statutory requirements for statements.
1502.4 Major Federal actions requiring the preparation of
environmental impact statements.
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 submitted alternatives, information, and
analyses.
1502.18 Certification of submitted alternatives, information, and
analyses section.
1502.19 List of preparers.
1502.20 Appendix.
1502.21 Publication of the environmental impact statement.
1502.22 Incomplete or unavailable information.
1502.23 Cost-benefit analysis.
1502.24 Methodology and scientific accuracy.
1502.25 Environmental review and consultation requirements.
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; E.O. 11514, 35 FR 4247, Mar. 7, 1970, as amended by E.O.
11991, 42 FR 26967, May 25, 1977; and E.O. 13807, 82 FR 40463, Aug.
24, 2017.
Sec. 1502.1 Environmental impact statement purpose.
The primary purpose of an environmental impact statement prepared
pursuant to 102(2)(c) is to ensure agencies consider the environmental
impacts of their actions in decision making. It shall provide full and
fair discussion of significant environmental impacts and shall inform
decision makers and the public of reasonable alternatives which would
avoid or minimize adverse impacts or enhance the quality of the human
environment. Agencies shall focus on significant environmental issues
and alternatives and shall reduce paperwork and the accumulation of
extraneous background data. 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 a document that informs. Federal agency decision making.
Sec. 1502.2 Implementation.
(a) Environmental impact statements shall not be encyclopedic.
(b) Impacts shall be discussed in proportion to their significance.
There shall be only brief discussion of other than significant issues.
As in a 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 analytic, concise, and
no longer than necessary to comply with NEPA and with the regulations
in parts 1500 through 1508. Length should be proportional to potential
environmental effects and project size.
(d) Environmental impact statements shall state how alternatives
considered in it and decisions based on it will or will not achieve the
requirements of sections 101 and 102(1) of NEPA and other environmental
laws and policies.
(e) The range of alternatives discussed in environmental impact
statements shall encompass those to be considered by the ultimate
agency decision maker.
(f) Agencies shall not commit resources prejudicing selection of
alternatives before making a final decision (Sec. 1506.1).
(g) Environmental impact statements shall serve as the means of
assessing the environmental impact of proposed agency actions, rather
than justifying decisions already made.
Sec. 1502.3 Statutory requirements for 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.
Sec. 1502.4 Major Federal actions requiring the preparation of
environmental impact statements.
(a) Agencies shall define the proposal that is the subject of an
environmental impact statement based on the statutory authorities for
the proposed action. Agencies shall use the criteria for scope (Sec.
1501.9) to determine which proposal(s) shall be the subject of a
particular statement. Agencies shall evaluate in a single environmental
impact statement proposals or parts of proposals that are related to
each other closely enough to be, in effect, a single course of action.
(b) Environmental impact statements may be prepared for
programmatic Federal actions such as the adoption of new agency
programs. Agencies shall prepare statements on programmatic actions so
that they are relevant to the program decision and time them to
coincide with meaningful points in agency planning and decision making.
(c) When preparing statements on programmatic actions (including
proposals by more than one agency), agencies may find it useful to
evaluate the proposal(s) in one of the following ways:
(1) Geographically, including actions occurring in the same general
location, such as body of water, region, or metropolitan area.
(2) Generically, including actions which have relevant
similarities, such as common timing, impacts, alternatives, methods of
implementation, media, or subject matter.
(3) By stage of technological development including Federal or
federally assisted research, development or demonstration programs for
new technologies which, if applied, could significantly affect the
quality of the human environment. Statements on such programs should be
available before the program has reached a stage of investment or
commitment to implementation likely to determine subsequent development
or restrict later alternatives.
(d) Agencies shall as appropriate employ scoping (Sec. 1501.9),
tiering (Sec. 1501.11), and other methods listed in Sec. Sec. 1500.4
and 1500.5 to relate programmatic and narrow actions and to avoid
duplication and delay. Agencies may tier their environmental analyses
to defer detailed analysis of environmental impacts of specific program
elements until such program elements are ripe for
[[Page 1719]]
decisions that would involve an irreversible or irretrievable
commitment of resources.
Sec. 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 is presented with 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 practically as an important contribution to the
decision-making process and will not be used to rationalize or justify
decisions already made (Sec. Sec. 1501.2 and 1502.2). For instance:
(a) For projects directly undertaken by Federal agencies the
environmental impact statement shall be prepared at the feasibility
analysis (go-no go) stage and may be supplemented at a later stage if
necessary.
(b) For applications to the agency, appropriate environmental
assessments or statements shall be commenced as soon as practicable
after the application is received. Federal agencies should work with
potential applicants and applicable State, Tribal, and local agencies
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 statements.
(d) For informal rulemaking the draft environmental impact
statement shall normally accompany the proposed rule.
Sec. 1502.6 Interdisciplinary preparation.
Environmental impact statements shall be prepared using an
interdisciplinary approach which 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
(Sec. 1501.9).
Sec. 1502.7 Page limits.
The text of final environmental impact statements (e.g., paragraphs
(a)(4) through (6) of Sec. 1502.10) shall be 150 pages or fewer and,
for proposals of unusual scope or complexity, shall be 300 pages or
fewer unless a senior agency official of the lead agency approves in
writing a statement to exceed 300 pages and establishes a new page
limit.
Sec. 1502.8 Writing.
Environmental impact statements shall be written in plain language
and may use appropriate graphics so that decision makers and the public
can readily understand them. Agencies should employ writers of clear
prose or editors to write, review, or edit statements, which will be
based upon the analysis and supporting data from the natural and social
sciences and the environmental design arts.
Sec. 1502.9 Draft, final, and supplemental statements.
(a) Generally. Except for proposals for legislation as provided in
Sec. 1506.8 environmental impact statements shall be prepared in two
stages and, where necessary, shall be supplemented as provided in
paragraph (d)(1) of this section.
(b) Draft environmental impact statements. Draft environmental
impact statements shall be prepared in accordance with the scope
decided upon in the scoping process. The lead agency shall work with
the cooperating agencies and shall obtain comments as required in part
1503 of this chapter. The draft statement must meet, to the fullest
extent practicable, the requirements established for final statements
in section 102(2)(C) of NEPA. If a draft statement is so inadequate as
to preclude meaningful analysis, the agency shall prepare and publish a
supplemental draft of the appropriate portion. The agency shall discuss
at appropriate points in the draft statement all major points of view
on the environmental impacts of the alternatives including the proposed
action.
(c) Final environmental impact statements. Final environmental
impact statements shall address comments as required in part 1503 of
this chapter. The agency shall discuss at appropriate points in the
final statement any responsible opposing view which 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 in the proposed action
that are relevant to environmental concerns; or
(ii) There are significant new circumstances or information
relevant to environmental concerns and bearing on the proposed action
or its impacts.
(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 in
the same fashion (exclusive of scoping) as a draft and final statement
unless alternative procedures are approved by the Council.
(4) May find that changes to the proposed action or new
circumstances or information relevant to environmental concerns are not
significant and therefore do not require a supplement. The agency
should document the finding consistent with its agency NEPA procedures
(Sec. 1507.3), or, if necessary, in a finding of no significant impact
supported by an environmental assessment.
Sec. 1502.10 Recommended format.
(a) Agencies shall use a format for environmental impact statements
which 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.
(2) Summary.
(3) Table of contents.
(4) Purpose of and need for action.
(5) Alternatives including proposed action (sections 102(2)(C)(iii)
and 102(2)(E) of NEPA).
(6) Affected environment and environmental consequences (especially
sections 102(2)(C)(i), (ii), (iv), and (v) of NEPA).
(7) Submitted, alternatives, information, and analyses.
(8) List of preparers.
(9) Appendices (if any).
(b) If an agency uses a different format, it shall include
paragraphs (a), (b), (c), (d), (e), (f), (g) and (h) of this section,
as further described in Sec. Sec. 1502.11 through 1502.20, in any
appropriate format.
Sec. 1502.11 Cover.
The cover shall not exceed one page and include:
(a) A list of the responsible agencies, including the lead agency
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, if applicable) where the action is located.
[[Page 1720]]
(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 comments must be received (computed in
cooperation with EPA under Sec. 1506.11).
(g) The estimated total cost of preparing the environmental impact
statement, including the costs of agency full-time equivalent (FTE)
personnel hours, contractor costs, and other direct costs.
Sec. 1502.12 Summary.
Each environmental impact statement shall contain a summary which
adequately and accurately summarizes the statement. The summary shall
stress the major conclusions, areas of disputed issues raised by
agencies and the public), and the issues to be resolved (including the
choice among alternatives). The summary will normally not exceed 15
pages.
Sec. 1502.13 Purpose and need.
The statement shall briefly specify the underlying purpose and need
for the proposed action. When an agency's statutory duty is to review
an application for authorization, the agency shall base the purpose and
need on the goals of the applicant and the agency's authority.
Sec. 1502.14 Alternatives including the proposed action.
This section should present the environmental impacts of the
proposed action and the alternatives in comparative form based on the
information and analysis presented in the sections on the Affected
Environment (Sec. 1502.15) and the Environmental Consequences (Sec.
1502.16). In this section, agencies shall:
(a) Evaluate reasonable alternatives to the proposed action, and
for alternatives which were eliminated from detailed study, briefly
discuss the reasons for their having been eliminated.
(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.
Sec. 1502.15 Affected environment.
The environmental impact statement shall succinctly describe the
environment of the area(s) to be affected or created by the
alternatives under consideration. The description may be combined with
evaluation of the environmental consequences (Sec. 1502.16) and shall
be no longer than is necessary to understand the effects of the
alternatives. Data and analyses in a statement shall be commensurate
with the importance of the impact, 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.
Sec. 1502.16 Environmental consequences.
(a) This section forms the scientific and analytic basis for the
comparisons under Sec. 1502.14. It shall consolidate the discussions
of those elements required by sections 102(2)(C)(i), (ii), (iv), and
(v) of NEPA which are within the scope of the 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 Sec.
1502.14. The discussion shall include:
(1) The environmental impacts of the proposed action and reasonable
alternatives to the proposed action and their significance. The
comparison of the proposed action and reasonable alternatives shall be
based on this discussion of the impacts.
(2) Any adverse environmental effects which cannot be avoided
should the proposal be implemented.
(3) The relationship between short-term uses of man's environment
and the maintenance and enhancement of long-term productivity.
(4) Any irreversible or irretrievable commitments of resources
which would be involved in the proposal should it be implemented.
(5) Possible conflicts between the proposed action and the
objectives of Federal, regional, State, Tribal, and local land use
plans, policies and controls for the area concerned. (Sec. 1506.2(d))
(6) Energy requirements and conservation potential of various
alternatives and mitigation measures.
(7) Natural or depletable resource requirements and conservation
potential of various alternatives and mitigation measures.
(8) 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.
(9) Means to mitigate adverse environmental impacts (if not fully
covered under Sec. 1502.14(e)).
(10) Where applicable, economic and technical considerations,
including the economic benefits of the proposed action.
(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, then the environmental impact
statement will discuss and give appropriate consideration to these
effects on the human environment.
Sec. 1502.17 Summary of submitted alternatives, information, and
analyses.
The environmental impact statement shall include a summary of all
alternatives, information, and analyses submitted by public commenters
for consideration by the lead and cooperating agencies in developing
the environmental impact statement. Consistent with Sec. 1503.1(a)(3),
the lead agency shall invite comment on the completeness of the summary
in the draft environmental impact statement.
Sec. 1502.18 Certification of submitted alternatives, information,
and analyses section.
Based on the summary of the submitted alternatives, information,
and analyses section, the decision maker for the lead agency shall
certify in the record of decision that the agency has considered all of
the alternatives, information, and analyses submitted by public
commenters for consideration by the lead and cooperating agencies in
developing the environmental impact statement. Agency environmental
impact statements certified in accordance with this section are
entitled to a conclusive presumption that the agency has considered the
information included in the submitted alternatives, information, and
analyses section.
Sec. 1502.19 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 significant background
papers, including basic components of the statement (Sec. Sec. 1502.6
and 1502.8). Where possible the persons who are responsible for a
particular analysis,
[[Page 1721]]
including analyses in background papers, shall be identified. Normally
the list will not exceed two pages.
Sec. 1502.20 Appendix.
If an agency prepares an appendix, it shall be published with the
environmental impact statement and shall consist of material:
(a) Prepared in connection with an environmental impact statement
(as distinct from material which is not so prepared and which is
incorporated by reference (Sec. 1501.12)).
(b) Substantiating any analysis fundamental to the impact
statement.
(c) Relevant to the decision to be made.
Sec. 1502.21 Publication of the environmental impact statement.
Agencies shall publish the entire draft and final environmental
impact statements and unchanged statements as provided in Sec.
1503.4(c). The agency shall transmit the entire statement
electronically (or in paper copy, if so requested due to economic or
other hardship) to:
(a) Any Federal agency which 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 which submitted substantive comments on
the draft.
Sec. 1502.22 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 impacts 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 impacts 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
impacts on the human environment;
(3) A summary of existing credible scientific evidence which is
relevant to evaluating the reasonably foreseeable significant adverse
impacts on the human environment; and
(4) The agency's evaluation of such impacts based upon theoretical
approaches or research methods generally accepted in the scientific
community.
(d) For the purposes of this section, ``reasonably foreseeable''
includes impacts which have catastrophic consequences, even if their
probability of occurrence is low, provided that the analysis of the
impacts is supported by credible scientific evidence, is not based on
pure conjecture, and is within the rule of reason.
Sec. 1502.23 Cost-benefit analysis.
If a cost-benefit analysis relevant to the choice among
environmentally different alternatives is being considered for the
proposed action, it shall be incorporated by reference or appended to
the statement as an aid in evaluating the environmental consequences.
To assess the adequacy of compliance with section 102(2)(B) of NEPA the
statement shall, when a cost-benefit analysis is prepared, discuss the
relationship between that analysis and any analyses of unquantified
environmental impacts, values, and amenities. For purposes of complying
with the Act, the weighing of the merits and drawbacks of the various
alternatives need not be displayed in a monetary cost-benefit analysis
and should not be when there are important qualitative considerations.
In any event, an environmental impact statement should at least
indicate those considerations, including factors not related to
environmental quality, which are likely to be relevant and important to
a decision.
Sec. 1502.24 Methodology and scientific accuracy.
Agencies shall ensure the professional integrity, including
scientific integrity, of the discussions and analyses in environmental
documents. Agencies shall make use of reliable existing data and
resources and are not required to undertake new scientific and
technical research to inform their analyses. Agencies may make use of
any reliable data sources, such as remotely gathered information or
statistical models. They shall identify any methodologies used and
shall make explicit reference to the scientific and other sources
relied upon for conclusions in the statement. An agency may place
discussion of methodology in an appendix.
Sec. 1502.25 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 (16 U.S.C. 470 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 which 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.
0
4. Revise part 1503 to read as follows:
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, Mar. 7, 1970, as amended by E.O.
11991, 42 FR 26967, May 25, 1977.
Sec. 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 which has
jurisdiction by law or special expertise with respect to any
environmental impact involved or which is authorized to develop and
enforce environmental standards.
(2) Request the comments of:
(i) Appropriate State, Tribal, and local agencies which are
authorized to develop and enforce environmental standards;
[[Page 1722]]
(ii) State, Tribal, or local governments that may be affected by
the proposed action;
(iii) Any agency which has requested that 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.
(3) Invite comment specifically on the completeness of the
submitted alternatives, information, and analyses section (Sec.
1502.17).
(b) An agency may request comments on a final environmental impact
statement before the final decision. An agency shall request comments
and provide a 30-day comment period on the final environmental impact
statement's submitted alternatives, information, and analyses section
(Sec. 1502.17). Other agencies or persons may make comments consistent
with the time periods provided for under Sec. 1506.11.
(c) An agency shall provide for electronic submission of public
comments, with reasonable measures to ensure the comment process is
accessible to affected persons.
Sec. 1503.2 Duty to comment.
Cooperating agencies and agencies that are authorized to develop
and enforce environmental standards shall comment on statements within
their jurisdiction, expertise, or authority within the time period
specified for comment in Sec. 1506.11. A Federal agency may reply that
it has no comment. If a cooperating agency is satisfied that its views
are adequately reflected in the environmental impact statement, it
should reply that it has no comment.
Sec. 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, may address either the adequacy of the statement
or the merits of the alternatives discussed or both, and shall provide
as much detail as necessary to meaningfully participate and fully
inform the agency of the commenter's position. Comments should explain
why the issue raised is significant to the consideration of potential
environmental impacts and alternatives to the proposed action, as well
as economic and employment impacts, and other impacts affecting the
quality of the human environment. Comments should reference the
corresponding section or page number of the draft environmental impact
statement, propose specific changes to those parts of the statement,
where possible, and include or describe the data sources and
methodologies supporting the proposed changes.
(b) Comments on the submitted alternatives, information, and
analyses section (Sec. 1502.17) should identify any additional
alternatives, information, or analyses not included in the draft
environmental impact statement, and shall be as specific as possible.
Comments on and objections to this section shall be raised within 30
days of the publication of the notice of availability of the final
environmental impact statement. Comments not provided within 30 days
shall be considered exhausted and forfeited, consistent with Sec.
1500.3(b).
(c) When a participating agency criticizes a lead agency's
predictive methodology, the participating agency should describe the
alternative methodology which it prefers and why.
(d) A cooperating agency shall specify in its comments whether it
needs additional information to fulfill other applicable environmental
reviews 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
site-specific effects associated with the granting or approving by that
cooperating agency of necessary Federal permits, licenses, or
authorizations.
(e) When a cooperating agency with jurisdiction by law specifies
mitigation measures it considers necessary to allow the agency to grant
or approve applicable permit, license, or related requirements or
concurrences, the cooperating agency shall cite to its applicable
statutory authority.
Sec. 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 and may respond individually and collectively. In the
final environmental impact statement, the agency may:
(1) Modify alternatives including the proposed action.
(2) Develop and evaluate alternatives not previously given serious
consideration by the agency.
(3) Supplement, improve, or modify its analyses.
(4) Make factual corrections.
(5) Explain why the comments do not warrant further agency
response.
(b) All substantive comments received on the draft statement (or
summaries thereof where the response has been exceptionally
voluminous), shall be appended to the final statement or otherwise
published.
(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, agencies may write the changes on errata sheets and attach the
responses to the statement instead of rewriting the draft statement. In
such cases only the comments, the responses, and the changes and not
the final statement need be published (Sec. 1502.20). The entire
document with a new cover sheet shall be filed with the Environmental
Protection Agency as the final statement (Sec. 1506.10).
0
5. Revise part 1504 to read as follows:
PART 1504--PRE-DECISIONAL REFERRALS TO THE COUNCIL OF PROPOSED
FEDERAL ACTIONS DETERMINED TO BE ENVIRONMENTALLY UNSATISFACTORY
Sec.
1504.1 Purpose.
1504.2 Criteria for referral.
1504.3 Procedure for referrals and response.
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, Mar. 7, 1970, as amended by E.O.
11991, 42 FR 26967, May 25, 1977.
Sec. 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.
(b) Under section 309 of the Clean Air Act (42 U.S.C. 7609), the
Administrator of the Environmental Protection Agency is directed to
review and comment publicly on the environmental impacts of Federal
activities, including actions for which environmental impact statements
are prepared. 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 (hereafter ``environmental referrals'').
(c) Under section 102(2)(C) of NEPA (42 U.S.C. 4332(2)(C)), other
Federal agencies may produce similar reviews of environmental impact
statements, including judgments on the acceptability of anticipated
environmental impacts. These reviews must be made available to the
President, the Council and the public.
[[Page 1723]]
Sec. 1504.2 Criteria for referral.
Environmental referrals should be made 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 impacts, considering:
(a) Possible violation of national environmental standards or
policies.
(b) Severity.
(c) Geographical scope.
(d) Duration.
(e) Importance as precedents.
(f) Availability of environmentally preferable alternatives.
(g) Economic and technical considerations, including the economic
costs of delaying or impeding the decision making of the agencies
involved in the action.
Sec. 1504.3 Procedure for referrals and response.
(a) A Federal agency making the referral to the Council shall:
(1) Advise 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 advice 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.
(4) Send copies of such advice to the Council.
(b) 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.
(c) 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.
(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
which would be violated by the matter;
(iii) Present the reasons for the referral;
(ii) 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;
(iii) 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
(iv) 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.
(d) 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.
(3) Give the lead agency's response to the referring agency's
recommendations.
(e) Applicants may provide views in writing to the Council no later
than the response.
(f) 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.
(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 issue should be further negotiated by the
referring and lead agencies and 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.
(g) The Council shall take no longer than 60 days to complete the
actions specified in paragraph (f)(2), (3), or (5) of this section.
(h) 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.
0
6. Revise part 1505 to read as follows:
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; E.O. 11514, 35 FR 4247, Mar. 7, 1970, as amended by E.O.
11991, 42 FR 26967, May 25, 1977; and E.O. 13807, 82 FR 40463, Aug.
24, 2017.
Sec. 1505.1 [Reserved]
Sec. 1505.2 Record of decision in cases requiring environmental
impact statements.
At the time of its decision (Sec. 1506.11) 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 all alternatives considered by the agency in reaching
its decision, specifying the alternative or alternatives which were
considered to be environmentally preferable. An agency may discuss
preferences among alternatives based on relevant factors including
economic and technical considerations and agency statutory missions. An
agency shall identify and discuss all such factors, including any
essential considerations of national policy which were balanced by the
agency in making its decision and state how those considerations
entered into its decision.
(c) State whether the agency has adopted all practicable means to
avoid or minimize environmental harm from the alternative selected, and
if not, why the agency did not. The agency shall adopt and summarize,
where applicable, a monitoring and enforcement program
[[Page 1724]]
for any enforceable mitigation requirements or commitments.
(d) Address any comments or objections received on the final
environmental impact statement's submitted alternatives, information,
and analyses section.
(e) Include the decision maker's certification regarding the
agency's consideration of the submitted alternatives, information, and
analyses submitted by public commenters (Sec. Sec. 1502.17 and
1502.18).
Sec. 1505.3 Implementing the decision.
Agencies may provide for monitoring to assure that their decisions
are carried out and should do so in important cases. Mitigation (Sec.
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:
(a) Include appropriate conditions in grants, permits or other
approvals.
(b) Condition funding of actions on mitigation.
(c) Upon request, inform cooperating or participating agencies on
progress in carrying out mitigation measures which they have proposed
and which were adopted by the agency making the decision.
(d) Upon request, publish the results of relevant monitoring.
0
7. Revise part 1506 to read as follows:
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 Public involvement.
1506.7 Further guidance.
1506.8 Proposals for legislation.
1506.9 Proposals for regulations.
1506.10 Filing requirements.
1506.11 Timing of agency action.
1506.12 Emergencies.
1506.13 Effective date.
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; E.O. 11514, 35 FR 4247, Mar. 7, 1970, as amended by E.O.
11991, 42 FR 26967, May 25, 1977; and E.O. 13807, 82 FR 40463, Aug.
24, 2017.
Sec. 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 Sec. 1501.6, or record of decision, as provided in Sec. 1505.2, no
action concerning the proposal may be taken which would:
(1) Have an adverse environmental impact; or
(2) Limit the choice of reasonable alternatives.
(b) If any 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.
(c) While work on a required programmatic environmental impact
statement or environmental assessment is in progress and the action is
not covered by an existing programmatic statement, agencies shall not
undertake in the interim any major Federal action covered by the
program which 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 impact
statement; 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.
Sec. 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)(D) of NEPA.
(b) Agencies shall cooperate with State, Tribal, and local agencies
to the fullest extent practicable to reduce duplication between NEPA
and State, Tribal, and local requirements, including through use of
environmental studies, analysis, and decisions conducted in support of
Federal, State, Tribal, or local environmental reviews or authorization
decisions, unless the agencies are specifically barred from doing so by
some other law. Except for cases covered by paragraph (a) of this
section, such cooperation shall to the fullest extent practicable
include:
(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) Agencies shall cooperate with State, Tribal, and local agencies
to the fullest extent practicable to reduce duplication between NEPA
and comparable State, Tribal, and local requirements, unless the
agencies are specifically barred from doing so by some other law.
Except for cases covered by paragraph (a) of this section, 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.
Sec. 1506.3 Adoption.
(a) An agency may adopt a Federal environmental assessment, draft
or final environmental impact statement, or portion thereof, provided
that the assessment, statement, or portion thereof meets the standards
for an adequate assessment or statement under the regulations in parts
1500 through 1508.
(b) If the actions covered by the original environmental impact
statement and the proposed action are substantially the same, the
agency adopting another agency's statement shall republish it as a
final statement.
[[Page 1725]]
Otherwise, the adopting agency shall treat the statement as a draft and
republish it (except as provided in paragraph (c) of this section),
consistent with Sec. 1506.10.
(c) A cooperating agency may adopt in its record of decision
without republishing the environmental impact statement of a lead
agency when, after an independent review of the statement, the
cooperating agency concludes that its comments and suggestions have
been satisfied.
(d) If the actions covered by the original environmental assessment
and the proposed action are substantially the same, an agency may adopt
another agency's environmental assessment in its finding of no
significant impact and provide notice consistent with Sec. 1501.6.
(e) The adopting agency shall specify if one of the following
circumstances are present:
(1) The agency is adopting an assessment or statement that is not
final within the agency that prepared it.
(2) The action assessed in the assessment or statement is the
subject of a referral under part 1504.
(3) The assessment or statement's adequacy is the subject of a
judicial action that is not final.
(f) An agency may adopt another agency's determination that a
categorical exclusion applies to a proposed action if the adopting
agency's proposed action is substantially the same.
Sec. 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.
Sec. 1506.5 Agency responsibility for environmental documents.
(a) Information. If an agency requires an applicant to submit
environmental information for possible use by the agency in preparing
an environmental document, then the agency should assist the applicant
by outlining the types of information required. The agency shall
independently evaluate the information submitted and shall be
responsible for its accuracy. If the agency chooses to use the
information submitted by the applicant in the environmental document,
either directly or by reference, then the names of the persons
responsible for the independent evaluation shall be included in the
list of preparers (Sec. 1502.19). It is the intent of this paragraph
that acceptable work not be redone, but that it be verified by the
agency.
(b) Environmental assessments. If an agency permits an applicant to
prepare an environmental assessment, the agency, besides fulfilling the
requirements of paragraph (a) of this section, shall make its own
evaluation of the environmental issues and take responsibility for the
scope and content of the environmental assessment.
(c) Environmental impact statements. Except as provided in
Sec. Sec. 1506.2 and 1506.3, the lead agency, a contractor or
applicant under the direction of the lead agency, or a cooperating
agency, where appropriate (Sec. 1501.8(b)), may prepare an
environmental impact statement pursuant to the requirements of NEPA.
(1) If a contractor or applicant prepares the document, the
responsible Federal official shall provide guidance, participate in its
preparation, independently evaluate it prior to its approval, and take
responsibility for its scope and contents.
(2) Nothing in this section is intended to prohibit any agency from
requesting any person, including the applicant, to submit information
to it or to prohibit any person from submitting information to any
agency for use in preparing environmental documents.
Sec. 1506.6 Public involvement.
Agencies shall:
(a) Make diligent efforts to involve the public in preparing and
implementing their NEPA procedures (Sec. 1507.3).
(b) Provide public notice of NEPA-related hearings, public
meetings, and other opportunities for public engagement, and the
availability of environmental documents so as to inform those persons
and agencies who may be interested or affected by their proposed
actions.
(1) In all cases, the agency shall notify those who have requested
notice on an individual action.
(2) In the case of an action with effects of national concern,
notice shall include publication in the Federal Register. An agency may
notify organizations that have requested regular notice. Agencies shall
maintain a list of such organizations.
(3) In the case of an action with effects primarily of local
concern, the notice may include:
(i) Notice to State and local agencies that may be interested or
affected by the proposed action.
(ii) Notice to affected Tribal governments.
(iii) Following the affected State or Tribe's public notice
procedures for comparable actions.
(iv) Publication in local newspapers (in papers of general
circulation rather than legal papers).
(v) Notice through other local media.
(vi) Notice to potentially interested community organizations
including small business associations.
(vii) Publication in newsletters that may be expected to reach
potentially interested persons.
(viii) Direct mailing to owners and occupants of nearby or affected
property.
(ix) Posting of notice on and off site in the area where the action
is to be located.
(x) Notice through electronic media (e.g., a project or agency
website, email, or social media). For actions occurring in whole or
part in an area with limited access to high-speed internet, public
notification may not be limited to solely electronic methods.
(c) Hold or sponsor public hearings, public meetings, or other
opportunities for public engagement whenever appropriate or in
accordance with statutory requirements applicable to the agency.
Agencies may conduct public hearings and public meetings by means of
electronic communication except where another format is required by
law.
(d) Solicit appropriate information from the public.
(e) Explain in its procedures where interested persons can get
information or status reports on environmental impact statements and
other elements of the NEPA process.
(f) 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).
Sec. 1506.7 Further guidance.
The Council may provide further guidance concerning NEPA and its
procedures consistent with Executive Order 13807, Establishing
Discipline and Accountability in the Environmental Review and
Permitting Process for Infrastructure Projects (August 5, 2017),
Executive Order 13891, Promoting the Rule of Law Through Improved
Agency Guidance Documents (October 9, 2019), and any other applicable
Executive orders.
Sec. 1506.8 Proposals for legislation.
(a) When developing or providing significant cooperation and
support in the development of 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. The test for significant cooperation is whether the proposal
is in fact predominantly that of the agency rather than another source.
Drafting
[[Page 1726]]
does not by itself constitute significant cooperation. Only the agency
which 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 a 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 in order 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 parts 1500
through 1508, 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 Sec. Sec. 1503.1 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.) and the Wilderness Act (16 U.S.C. 1131 et seq.)).
(iii) Legislative approval is sought for Federal or federally
assisted construction or other projects which 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.
Sec. 1506.9 Proposals for regulations.
(a) Where the proposal for major Federal action is the promulgation
of a rule or regulation, analyses prepared pursuant to other statutory
or Executive order requirements may serve as the functional equivalent
of the EIS and be sufficient to comply with NEPA.
(b) To determine that an analysis serves as the functional
equivalent of an EIS, an agency shall find that:
(1) There are substantive and procedural standards that ensure full
and adequate consideration of environmental issues;
(2) There is public participation before a final alternative is
selected; and
(3) A purpose of the analysis that the agency is conducting is to
examine environmental issues.
Sec. 1506.10 Filing requirements.
(a) Environmental impact statements together with comments and
responses shall be filed with the Environmental Protection Agency,
Office of Federal Activities, consistent with EPA's procedures.
(b) Statements shall be filed with the EPA no earlier than they are
also transmitted to participating agencies and made available to the
public. EPA may issue guidelines to agencies to implement its
responsibilities under this section and Sec. 1506.11.
Sec. 1506.11 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 shall be 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 may not make or issue a record of
decision under Sec. 1505.2 for the proposed action until the later of
the following dates:
(1) 90 days after publication of the notice described above in
paragraph (a) of this section for a draft environmental impact
statement.
(2) 30 days after publication of the notice described above 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 proposed action in the following
circumstances.
(1) Some agencies have a formally established appeal process which
allows other agencies or the public to take appeals on a decision and
make their views known, after publication of the final environmental
impact statement. In such cases, where a real opportunity exists to
alter the decision, the decision may be made and recorded at the same
time the environmental impact statement is published. This means that
the period for appeal 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 appeal and provide notification consistent with
Sec. 1506.10.
(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
Sec. 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 decision-making
period and the 90-day period 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 Sec. 1506.10.
The Environmental Protection Agency may upon a showing by the lead
agency of compelling reasons of national policy reduce the minimum
periods and may upon a showing by any other Federal agency of
compelling reasons of national policy also 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. (Sec. 1507.3(e)(2)) 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, EPA may not
extend it for more than 30 days. When the Environmental Protection
Agency reduces or extends any period of time it shall notify the
Council.
[[Page 1727]]
Sec. 1506.12 Emergencies.
Where emergency circumstances make it necessary to take an action
with significant environmental impact without observing the provisions
of the regulations in parts 1500 through 1508, 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. Other actions remain
subject to NEPA review.
Sec. 1506.13 Effective date.
The regulations in parts 1500 through 1508 apply to any NEPA
process begun after [EFFECTIVE DATE OF FINAL RULE]. An agency may apply
these regulations to ongoing activities and environmental documents
begun before [EFFECTIVE DATE OF FINAL RULE].
0
8. Revise part 1507 to read as follows:
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; E.O. 11514, 35 FR 4247, Mar. 7, 1970, as amended by E.O.
11991, 42 FR 26967, May 25, 1977; and E.O. 13807, 82 FR 40463, Aug.
24, 2017.
Sec. 1507.1 Compliance.
All agencies of the Federal Government shall comply with the
regulations in parts 1500 through 1508.
Sec. 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 parts 1500 through 1508. Such compliance may include use
of the resources of other agencies, applicants, and other participants
in the NEPA process, but the using agency shall itself have sufficient
capability to evaluate what others do for it and account for the
contributions of others. Agencies shall:
(a) Fulfill the requirements 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 which may have an impact
on the human environment. Agencies shall designate a senior agency
official to be responsible for overall review of agency NEPA
compliance.
(b) 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.
(c) 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.
(d) Study, develop, and describe alternatives to recommended
courses of action in any proposal which involves unresolved conflicts
concerning alternative uses of available resources. This requirement of
section 102(2)(E) of NEPA extends to all such proposals, not just the
more limited scope of section 102(2)(C)(iii) of NEPA where the
discussion of alternatives is confined to impact statements.
(e) Comply with the requirements of section 102(2)(H) of NEPA that
the agency initiate and utilize ecological information in the planning
and development of resource-oriented projects.
(f) Fulfill the requirements of sections 102(2)(F), 102(2)(G), and
102(2)(I), of NEPA, 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,
and Executive Order 13807, Establishing Discipline and Accountability
in the Environmental Review and Permitting for Infrastructure Projects.
Sec. 1507.3 Agency NEPA procedures.
(a) No more than 12 months after [PUBLICATION DATE OF FINAL RULE]
in the Federal Register, 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 parts
1500 through 1508, including to eliminate any inconsistencies with
these regulations. When the agency is a department, major subunits are
encouraged (with the consent of the department) to adopt their own
procedures. Except as otherwise provided by law or for agency
efficiency, agency NEPA procedures shall not impose additional
procedures or requirements beyond those set forth in these regulations.
(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 parts 1500 through 1508 before adopting their final procedures. The
Council shall complete its review within 30 days of the receipt of the
proposed final procedures. Once in effect, the agency shall publish its
NEPA procedures and ensure that they are readily available to the
public.
(b) Agencies shall adopt, as necessary, agency NEPA procedures to
improve agency efficiency and ensure that decisions are made in
accordance with the Act's procedural requirements. Such procedures
shall include, but not be limited to:
(1) Implementing procedures under section 102(2) of NEPA to achieve
the requirements of sections 101 and 102(1).
(2) Designating the major decision points for the agency's
principal programs likely to have a significant effect on the human
environment and assuring that the NEPA process corresponds with them.
(3) Requiring that relevant environmental documents, comments, and
responses be part of the record in formal rulemaking or adjudicatory
proceedings.
(4) Requiring that relevant environmental documents, comments, and
responses accompany the proposal through existing agency review
processes so that decision makers use the statement in making
decisions.
(5) Requiring 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 impact statement. 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.
(6) Requiring the combination of environmental documents with other
agency documents, and may include designation of analyses or processes
that shall serve the function of agency compliance with NEPA and the
regulations in parts 1500 through 1508. To determine that an analysis
individually or analyses in the aggregate serve as the functional
equivalent of an EIS, an agency shall find that:
[[Page 1728]]
(i) There are substantive and procedural standards that ensure full
and adequate consideration of environmental issues;
(ii) There is public participation before a final alternative is
selected; and
(iii) A purpose of the analysis that the agency is conducting is to
examine environmental issues.
(c) Agency procedures may include identification of actions that
are not subject to NEPA, including:
(1) Non-major Federal actions;
(2) Actions that are non-discretionary actions, in whole or in
part;
(3) Actions expressly exempt from NEPA under another statute;
(4) Actions for which compliance with NEPA would clearly and
fundamentally conflict with the requirements of another statute; and
(5) Actions for which compliance with NEPA would be inconsistent
with Congressional intent due to the requirements of another statute.
(d) Agency procedures shall comply with the regulations in parts
1500 through 1508 except where compliance would be inconsistent with
statutory requirements and shall include:
(1) Those procedures required by Sec. Sec. 1501.2(b)(4)
(assistance to applicants), and 1506.6(e) (status information).
(2) Specific criteria for and identification of those typical
classes of action:
(i) Which normally do require environmental impact statements.
(ii) Which normally do not require either an environmental impact
statement or an environmental assessment and do not have a significant
effect on the human environment (categorical exclusions (Sec.
1501.4)). Any procedures under this section shall provide for
extraordinary circumstances in which a normally excluded action may
have a significant environmental effect. Agency NEPA procedures shall
identify where documentation of a categorical exclusion determination
is required.
(iii) Which normally require environmental assessments but not
necessarily environmental impact statements.
(3) Procedures for introducing a supplement to an environmental
assessment or environmental impact statement into its formal
administrative record, if such a record exists.
(e) Agency procedures may:
(1) Include specific criteria for providing limited exceptions to
the provisions of the regulations in parts 1500 through 1508 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.
(2) Provide for periods of time other than those presented in Sec.
1506.11 when necessary to comply with other specific statutory
requirements.
(3) Provide that where there is a lengthy period between the
agency's decision to prepare an environmental impact statement and the
time of actual preparation, the agency may publish the notice of intent
required by Sec. 1501.9 at a reasonable time in advance of preparation
of the draft statement. Agency procedures shall provide for publication
of supplemental notices to inform the public of a pause in its
preparation of an environmental impact statement and for any agency
decision to withdraw its notice of intent to prepare an environmental
impact statement.
(4) Adopt procedures to combine its environmental assessment
process with its scoping process.
(5) Provide for a process where the agency may consult with and
apply a categorical exclusion listed in another agency's NEPA
procedures to its proposed action by establishing a process that
ensures application of the categorical exclusion is appropriate.
Sec. 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 means to make available environmental
documents, relevant notices, and other relevant information for use by
agencies, applicants, and interested persons. Such means of publication
may include:
(1) Agency planning and environmental documents that guide agency
management and provide for public involvement in agency planning
processes;
(2) A directory of pending and final 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, including use of
shared databases or application programming interface, in their
implementation of NEPA and related authorities.
0
9. Revise part 1508 to read as follows:
PART 1508--DEFINITIONS
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; E.O. 11514, 35 FR 4247, Mar. 7, 1970, as amended by E.O.
11991, 42 FR 26967, May 25, 1977; and E.O. 13807, 82 FR 40463, Aug.
24, 2017.
Sec. 1508.1 Definitions.
The following definitions apply to the regulations in parts 1500
through 1508. 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 which the
agency has determined in its agency NEPA procedures (Sec. 1507.3)
normally do not have a significant effect on the human environment.
(e) Cooperating agency means any Federal agency (and a State,
Tribal, or local agency with agreement of the lead agency) other than a
lead agency which has jurisdiction by law or special expertise with
respect to any environmental impact involved in a proposal (or a
reasonable alternative) for legislation or other major Federal action
significantly affecting the quality of the human environment.
(f) Council means the Council on Environmental Quality established
by title II of the Act.
(g) Effects or impacts means effects of the proposed action or
alternatives that are reasonably foreseeable and have a reasonably
close causal relationship to
[[Page 1729]]
the proposed action or alternatives. Effects include reasonably
foreseeable effects that occur at the same time and place and may
include reasonably foreseeable effects that are later in time or
farther removed in distance.
(1) Effects include ecological (such as the effects on natural
resources and on the components, structures, and functioning of
affected ecosystems), aesthetic, historic, cultural, economic (such as
the effects on employment), social, or health effects. Effects may also
include those resulting from actions that may have both beneficial and
detrimental effects, even if on balance the agency believes that the
effect will be beneficial.
(2) A ``but for'' causal relationship is insufficient to make an
agency responsible for a particular effect under NEPA. Effects should
not be considered significant if they are remote in time,
geographically remote, or the product of a lengthy causal chain.
Effects do not include effects that the agency has no ability to
prevent due to its limited statutory authority or would occur
regardless of the proposed action. Analysis of cumulative effects is
not required.
(h) Environmental assessment means a concise public document
prepared by a Federal agency to aid an agency's compliance with the Act
and support its determination of whether to prepare an environmental
impact statement or finding of no significant impact, as provided in
Sec. 1501.6.
(i) Environmental document means an environmental assessment,
environmental impact statement, finding of no significant impact, or
notice of intent.
(j) Environmental impact statement means a detailed written
statement as required by section 102(2)(C) of NEPA.
(k) 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. It also includes, for purposes of the regulations in parts 1500
through 1508, States, units of general local government, and Tribal
governments assuming NEPA responsibilities from a Federal agency
pursuant to statute.
(l) Finding of no significant impact means a document by a Federal
agency briefly presenting the reasons why an action, not otherwise
categorically excluded (Sec. 1501.4), will not have a significant
effect on the human environment and for which an environmental impact
statement therefore will not be prepared.
(m) Human environment means comprehensively the natural and
physical environment and the relationship of present and future
generations of Americans with that environment. (See the definition of
``effects.'')
(n) Jurisdiction by law means agency authority to approve, veto, or
finance all or part of the proposal.
(o) Lead agency means the agency or agencies, in the case of joint
lead agencies, preparing or having taken primary responsibility for
preparing the environmental impact statement.
(p) Legislation means a bill or legislative proposal to Congress
developed by or with the significant cooperation and support of a
Federal agency, but does not include requests for appropriations or
legislation recommended by the President.
(q) Major Federal action or action means an action subject to
Federal control and responsibility with effects that may be
significant. Major Federal action does not include non-discretionary
decisions made in accordance with the agency's statutory authority or
activities that do not result in final agency action under the
Administrative Procedure Act. Major Federal action also does not
include non-Federal projects with minimal Federal funding or minimal
Federal involvement where the agency cannot control the outcome of the
project.
(1) Major Federal actions may include new and continuing
activities, including projects and programs entirely or partly
financed, assisted, conducted, regulated, or approved by Federal
agencies; new or revised agency rules, regulations, plans, policies, or
procedures; and legislative proposals (Sec. 1506.8). Actions do not
include funding assistance solely in the form of general revenue
sharing funds with no Federal agency control over the subsequent use of
such funds. Actions do not include loans, loan guarantees, or other
forms of financial assistance where the Federal agency does not
exercise sufficient control and responsibility over the effects of the
action. Actions do not include farm ownership and operating loan
guarantees by the Farm Service Agency pursuant to 7 U.S.C. 1925 and
1941 through 1949 and business loan guarantees by the Small Business
Administration pursuant to 15 U.S.C. 636(a), 636(m), and 695 through
697f. Actions do not include bringing judicial or administrative civil
or criminal enforcement actions.
(2) Major Federal actions tend to fall within one of the following
categories:
(i) Adoption of official policy, such as rules, regulations, and
interpretations adopted pursuant to the Administrative Procedure Act, 5
U.S.C. 551 et seq.; implementation of treaties and international
conventions or agreements; formal documents establishing an agency's
policies which will result in or substantially alter agency programs.
(ii) 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.
(iii) Adoption of programs, such as a group of concerted actions to
implement a specific policy or plan; systematic and connected agency
decisions allocating agency resources to implement a specific statutory
program or executive directive.
(iv) Approval of specific projects, such as construction or
management activities located in a defined geographic area. Projects
include actions approved by permit or other regulatory decision as well
as Federal and federally assisted activities.
(r) Matter includes for purposes of part 1504:
(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.
(s) Mitigation means measures that avoid, minimize, or compensate
for reasonably foreseeable impacts to the human environment caused by a
proposed action as described in an environmental document or record of
decision and that have a nexus to the effects of a proposed action.
While NEPA requires consideration of mitigation, it does not mandate
the form or adoption of any mitigation. Mitigation includes:
(1) Avoiding the impact altogether by not taking a certain action
or parts of an action.
(2) Minimizing impacts by limiting the degree or magnitude of the
action and its implementation.
(3) Rectifying the impact by repairing, rehabilitating, or
restoring the affected environment.
(4) Reducing or eliminating the impact over time by preservation
and maintenance operations during the life of the action.
(5) Compensating for the impact by replacing or providing
substitute resources or environments.
(t) NEPA process means all measures necessary for compliance with
the
[[Page 1730]]
requirements of section 2 and title I of NEPA.
(u) Notice of intent means a public notice that an agency will
prepare and consider an environmental impact statement.
(v) Page means 500 words and does not include explanatory maps,
diagrams, graphs, tables, and other means of graphically displaying
quantitative or geospatial information.
(w) Participating agency means a Federal, State, Tribal, or local
agency participating in an environmental review or authorization of an
action.
(x) 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.
(y) 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 Sec. 1507.3.
(z) Reasonable alternatives means a reasonable range of
alternatives that are technically and economically feasible, meet the
purpose and need for the proposed action, and, where applicable, meet
the goals of the applicant.
(aa) Reasonably foreseeable means sufficiently likely to occur such
that a person of ordinary prudence would take it into account in
reaching a decision.
(bb) 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.
(cc) Scope consists of the range of actions, alternatives, and
impacts to be considered in an environmental impact statement. The
scope of an individual statement may depend on its relationships to
other statements (Sec. 1501.11).
(dd) Senior agency official means an official of assistant
secretary rank or higher, or equivalent, that is designated for agency
NEPA compliance, including resolving implementation issues and
representing the agency analysis of the effects of agency actions on
the human environment in agency decision-making processes.
(ee) Special expertise means statutory responsibility, agency
mission, or related program experience.
(ff) Tiering refers to the coverage of general matters in broader
environmental impact statements or environmental assessments (such as
national program or policy statements) with subsequent narrower
statements or environmental analyses (such as regional or basin-wide
program statements or ultimately site-specific statements)
incorporating by reference the general discussions and concentrating
solely on the issues specific to the statement subsequently prepared.
[FR Doc. 2019-28106 Filed 1-9-20; 4:15 pm]
BILLING CODE 3225-F0-P
