Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act
| Published date | 16 July 2020 |
| Citation | 85 FR 43304 |
| Record Number | 2020-15179 |
| Section | Rules and Regulations |
| Court | Council On Environmental Quality |
Federal Register, Volume 85 Issue 137 (Thursday, July 16, 2020)
[Federal Register Volume 85, Number 137 (Thursday, July 16, 2020)]
[Rules and Regulations]
[Pages 43304-43376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15179]
[[Page 43303]]
Vol. 85
Thursday,
No. 137
July 16, 2020
Part II
Council on Environmental Quality
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40 CFR Parts 1500, 1501, 1502, et al.
Update to the Regulations Implementing the Procedural Provisions of the
National Environmental Policy Act; Final Rule
Federal Register / Vol. 85, No. 137 / Thursday, July 16, 2020 / Rules
and Regulations
[[Page 43304]]
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COUNCIL ON ENVIRONMENTAL QUALITY
40 CFR Parts 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, 1508,
1515, 1516, 1517, and 1518
[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: Final rule.
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SUMMARY: The Council on Environmental Quality (CEQ) issues this final
rule to update its regulations for Federal agencies to implement the
National Environmental Policy Act (NEPA). CEQ has not comprehensively
updated its regulations since their promulgation in 1978, more than
four decades ago. This final rule comprehensively updates, modernizes,
and clarifies the regulations to facilitate more efficient, effective,
and timely NEPA reviews by Federal agencies in connection with
proposals for agency action. The rule will improve interagency
coordination in the environmental review process, promote earlier
public involvement, increase transparency, and enhance the
participation of States, Tribes, and localities. The amendments will
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.
DATES: This is a major rule subject to congressional review. The
effective date is September 14, 2020. However, if congressional review
has changed the effective date, CEQ will publish a document in the
Federal Register to establish the actual effective date or to terminate
the rule.
ADDRESSES: CEQ has established a docket for this action under docket
number CEQ-2019-0003. All documents in the docket are listed on
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: 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
B. Council on Environmental Quality Regulations, Guidance, and
Reports
1. Regulatory History
2. CEQ Guidance and Reports
3. Environmental Impact Statement Timelines and Page Count
Reports
C. Judicial Review of Agency NEPA Compliance
D. Statutory Developments
E. Presidential Directives
F. Advance Notice of Proposed Rulemaking
G. Notice of Proposed Rulemaking
II. Summary of Final Rule
A. Changes Throughout Parts 1500-1508
B. Revisions To Update the Purpose, Policy, and Mandate (Part
1500)
1. Purpose and Policy (Sec. 1500.1)
2. Remove and Reserve Policy (Sec. 1500.2)
3. NEPA Compliance (Sec. 1500.3)
4. Reducing Paperwork and Delay (Sec. Sec. 1500.4 and 1500.5)
5. Agency Authority (Sec. 1500.6)
C. Revisions to NEPA and Agency Planning (Part 1501)
1. NEPA Thresholds (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 (Sec. 1501.4)
5. Environmental Assessments (Sec. 1501.5)
6. Findings of No Significant Impact (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 (Sec. 1501.11)
11. Incorporation by Reference (Sec. 1501.12)
D. Revisions to Environmental Impact Statements (Part 1502)
1. Purpose of Environmental Impact Statement (Sec. 1502.1)
2. Implementation (Sec. 1502.2)
3. Statutory Requirements for Statements (Sec. 1502.3)
4. Major Federal Actions Requiring the Preparation of
Environmental Impact Statements (Sec. 1502.4)
5. Timing (Sec. 1502.5)
6. Interdisciplinary Preparation (Sec. 1502.6)
7. Page Limits (Sec. 1502.7)
8. Writing (Sec. 1502.8)
9. Draft, Final and Supplemental Statements (Sec. 1502.9)
10. Recommended Format (Sec. 1502.10)
11. Cover (Sec. 1502.11)
12. Summary (Sec. 1502.12)
13. Purpose and Need (Sec. 1502.13)
14. Alternatives Including the Proposed Action (Sec. 1502.14)
15. Affected Environment (Sec. 1502.15)
16. Environmental Consequences (Sec. 1502.16)
17. Submitted Alternatives, Information, and Analyses (Sec.
1502.17)
18. List of Preparers (Sec. 1502.18)
19. Appendix (Sec. 1502.19)
20. Publication of the Environmental Impact Statement (Sec.
1502.20)
21. Incomplete or Unavailable Information (Sec. 1502.21)
22. Cost-Benefit Analysis (Sec. 1502.22)
23. Methodology and Scientific Accuracy (Sec. 1502.23)
24. Environmental Review and Consultation Requirements (Sec.
1502.24)
E. Revisions to Commenting on Environmental Impact Statements
(Part 1503)
1. Inviting Comments and Requesting Information and Analyses
(Sec. 1503.1)
2. Duty To Comment (Sec. 1503.2)
3. Specificity of Comments and Information (Sec. 1503.3)
4. Response to Comments (Sec. 1503.4)
F. Revisions to Pre-Decisional Referrals to the Council of
Proposed Federal Actions Determined To Be Environmentally
Unsatisfactory (Part 1504)
1. Purpose (Sec. 1504.1)
2. Criterial for Referral (Sec. 1504.2)
3. Procedure for Referrals and Response (Sec. 1504.3)
G. Revisions to NEPA and Agency Decision Making (Part 1505)
1. Remove and Reserve Agency Decisionmaking Procedures (Sec.
1505.1)
2. Record of Decision in Cases Requiring Environmental Impact
Statements (Sec. 1505.2)
3. Implementing the Decision (Sec. 1505.3)
H. Revisions to Other Requirements of NEPA (Part 1506)
1. Limitations on Actions During NEPA Process (Sec. 1506.1)
2. Elimination of Duplication With State, Tribal, and Local
Procedures (Sec. 1506.2)
3. Adoption (Sec. 1506.3)
4. Combining Documents (Sec. 1506.4)
5. Agency Responsibility for Environmental Documents (Sec.
1506.5)
6. Public Involvement (Sec. 1506.6)
7. Further Guidance (Sec. 1506.7)
8. Proposals for Legislation (Sec. 1506.8)
9. Proposals for Regulations (Sec. 1506.9)
10. Filing Requirements (Sec. 1506.10)
11. Timing of Agency Action (Sec. 1506.11)
12. Emergencies (Sec. 1506.12)
13. Effective Date (Sec. 1506.13)
I. Revisions to Agency Compliance (Part 1507)
1. Compliance (Sec. 1507.1)
2. Agency Capability To Comply (Sec. 1507.2)
3. Agency NEPA Procedures (Sec. 1507.3)
4. Agency NEPA Program Information (Sec. 1507.4)
J. Revisions to Definitions (Part 1508)
1. Clarifying the Meaning of ``Act''
2. Definition of ``Affecting''
3. New Definition of ``Authorization''
4. Clarifying the Meaning of ``Categorical Exclusion''
5. Clarifying the Meaning of ``Cooperating Agency''
6. Definition of ``Council''
7. Definition of ``Cumulative Impact'' and Clarifying the
Meaning of ``Effects''
8. Clarifying the Meaning of ``Environmental Assessment''
9. Clarifying the Meaning of ``Environmental Document''
10. Clarifying the Meaning of ``Environmental Impact Statement''
11. Clarifying the Meaning of ``Federal Agency''
12. Clarifying the Meaning of ``Finding of No Significant
Impact''
13. Clarifying the Meaning of ``Human Environment''
14. Definition of ``Jurisdiction by Law''
15. Clarifying the Meaning of ``Lead Agency''
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16. Clarifying the Meaning of ``Legislation''
17. Clarifying the Meaning of ``Major Federal Action''
18. Definition of ``Matter''
19. Clarifying the Meaning of ``Mitigation''
20. Definition of ``NEPA Process''
21. Clarifying the Meaning of ``Notice of Intent''
22. New Definition of ``Page''
23. New Definition of ``Participating Agency''
24. Clarifying the Meaning of ``Proposal''
25. New Definition of ``Publish and Publication''
26. New Definition of ``Reasonable Alternatives''
27. New Definition of ``Reasonably Foreseeable''
28. Definition of ``Referring Agency''
29. Definition of ``Scope''
30. New Definition of ``Senior Agency Official''
31. Definition of ``Special Expertise''
32. Striking the Definition of ``Significantly''
33. Clarifying the Meaning of ``Tiering''
K. CEQ Guidance Documents
III. Rulemaking Analyses and Notices
A. Executive Order 12866, Regulatory Planning and Review and
Executive Order 13563, Improving Regulation and Regulatory Review
B. Executive Order 13771, Reducing Regulation and Controlling
Regulatory Costs
C. Regulatory Flexibility Act and Executive Order 13272, Proper
Consideration of Small Entities in Agency Rulemaking
D. Congressional Review Act
E. National Environmental Policy Act
F. Endangered Species Act
G. Executive Order 13132, Federalism
H. Executive Order 13175, Consultation and Coordination With
Indian Tribal Governments
I. Executive Order 12898, Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
J. Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
K. Executive Order 12988, Civil Justice Reform
L. Unfunded Mandates Reform Act
M. Paperwork Reduction Act
I. Background
President Nixon signed the National Environmental Policy Act of
1969, 42 U.S.C. 4321 et seq., (NEPA or the Act) into law on January 1,
1970. The Council on Environmental Quality (CEQ) initially issued
interim guidelines for implementing NEPA in 1970, revised those
guidelines in 1971 and 1973, and subsequently promulgated its
regulations implementing NEPA 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 the promulgation of the 1978 regulations, however, the NEPA
process has become increasingly complicated and can involve excessive
paperwork and lengthy delays. The regulations have been challenging to
navigate with related provisions scattered throughout, and include
definitions and provisions that have led to confusion and generated
extensive litigation. The complexity of the regulations has given rise
to CEQ's issuance of more than 30 guidance documents to assist Federal
agencies in understanding and complying with NEPA. Agencies also have
developed procedures and practices to improve their implementation of
NEPA. Additionally, Presidents have issued directives, and Congress has
enacted legislation to reduce delays and expedite the implementation of
NEPA and the CEQ regulations, including for transportation, water, and
other types of infrastructure projects.
Despite these efforts, the NEPA process continues to slow or
prevent the development of important infrastructure and other projects
that require Federal permits or approvals, as well as rulemakings and
other proposed actions. Agency practice has also continued to evolve
over the past four decades, but many of the most efficient and
effective practices have not been incorporated into the CEQ
regulations. Further, a wide range of judicial decisions, including
those issued by the Supreme Court, evaluating Federal agencies'
compliance with NEPA have construed and interpreted key provisions of
the statute and CEQ's regulations. CEQ's guidance, agency practice,
more recent presidential directives and statutory developments, and the
body of case law related to NEPA implementation have not been
harmonized or codified in CEQ's regulations.
As discussed further below, NEPA implementation and related
litigation can be lengthy and significantly delay major infrastructure
and other projects.\1\ For example, CEQ has found that NEPA reviews for
Federal Highway Administration projects, on average take more than
seven years to proceed from a notice of intent (NOI) to prepare an
environmental impact statement (EIS) to issuance of a record of
decision (ROD). This is a dramatic departure from CEQ's prediction in
1981 that Federal agencies would be able to complete most EISs, the
most intensive review of a project's environmental impacts under NEPA,
in 12 months or less.\2\ In its most recent review, CEQ found that,
across the Federal Government, the average time for completion of an
EIS and issuance of a ROD was 4.5 years and the median was 3.5
years.\3\ CEQ determined that one quarter of EISs took less than 2.2
years, and one quarter of the EISs took more than 6 years. And these
timelines do not necessarily include further delays associated with
litigation over the legal sufficiency of the NEPA process or its
resulting documentation.
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\1\ See infra sec. I.B.3 and I.C.
\2\ Forty Most Asked Questions Concerning CEQ's National
Environmental Policy Act Regulations, 46 FR 18026 (Mar. 23, 1981)
(``Forty Questions''), https://www.energy.gov/nepa/downloads/forty-most-asked-questions-concerning-ceqs-national-environmental-policy-act. ``The Council has advised agencies that under the new NEPA
regulations even large complex energy projects would require only
about 12 months for the completion of the entire EIS process. For
most major actions, this period is well within the planning time
that is needed in any event, apart from NEPA.'' Id. at Question 35.
\3\ See infra sec. I.B.3.
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Although other factors may contribute to project delays, the
frequency and consistency of multi-year review processes for EISs for
projects across the Federal Government leaves no doubt that NEPA
implementation and related litigation is a significant factor.\4\ It is
critical to improve NEPA implementation, not just for major projects,
but because tens of thousands of projects and activities are subject to
NEPA every year, many of which are important to modernizing our
Nation's infrastructure.\5\
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\4\ See also, Philip K. Howard, Common Good, Two Years, Not Ten:
Redesigning Infrastructure Approvals (Sept. 2015) (``Two Years, Not
Ten''), https://www.commongood.org/wp-content/uploads/2017/07/2YearsNot10Years.pdf.
\5\ As discussed in sections II.D and II.C.5, CEQ estimates that
Federal agencies complete 176 EISs and 10,000 environmental
assessments each year. In addition, CEQ estimates that agencies
apply categorical exclusions to 100,000 actions annually. See infra
sec. II.C.4.
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As noted above, an extensive body of case law interpreting NEPA and
CEQ's implementing regulations drives much of agencies' modern day
practice. Though courts have correctly recognized that NEPA requires
agencies to follow certain procedures and not to reach particular
substantive results, the accretion of cases has not necessarily
clarified implementation of the law. In light of the litigation risk
such a situation presents, agencies have responded by generating
voluminous studies analyzing impacts and alternatives well beyond the
point where useful information is being produced and utilized by
decision makers. In its most recent review, CEQ found that final EISs
averaged 661 pages in length, and the median document was 447 pages.\6\
One quarter were 748 pages or longer. The page count and document
length data do not include
[[Page 43306]]
appendices. The average modern EIS is more than 4 times as long as the
150 pages contemplated by the 1978 regulations.
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\6\ See infra sec. I.B.3.
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By adopting these regulations following so many decades of NEPA
practice, implementation, and litigation, CEQ is acting now to enhance
the efficiency of the process based on its decades of experience
overseeing Federal agency practice, and clarifying a number of key NEPA
terms and requirements that have frequently been subject to litigation.
The modifications and refinements reflected in the final rule will
contribute to greater certainty and predictability in NEPA
implementation, and thus eliminate at least in some measure the
unnecessary and burdensome delays that have hampered national
infrastructure and other important projects.
In June 2018, CEQ issued an advance notice of proposed rulemaking
(ANPRM) requesting comment on potential updates and clarifications to
the CEQ regulations.\7\ On January 10, 2020, CEQ published a notice of
proposed rulemaking \8\ (NPRM or proposed rule) in the Federal Register
proposing to update its regulations for implementing the procedural
provisions of NEPA.
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\7\ 83 FR 28591 (June 20, 2018).
\8\ 85 FR 1684 (Jan. 10, 2020).
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Following the publication of the NPRM, CEQ received approximately
1,145,571 comments on the proposed rule.\9\ A majority of the comments
(approximately 1,136,755) were the result of mass mail campaigns, which
are comments with multiple signatories or groups of comments that are
identical or very similar in form and content. CEQ received
approximately 8,587 unique public comments of which 2,359 were
substantive comments raising a variety of issues related to the
rulemaking and contents of the proposed rule, including procedural,
legal, and technical issues. Finally, 229 comments were duplicate or
non-germane submissions, or contained only supporting materials.
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\9\ In the NPRM, CEQ listed several methods for members of the
public to submit written comments, including submittal to the docket
on regulations.gov, by fax, or by mail. In addition, CEQ also
included an email address ([email protected]) in the NPRM for
further information. While the NPRM did not list this email address
among the several methods for the public to provide comments, CEQ
has considered comments received through this email address during
the public comment period and included them in the docket on
regulations.gov.
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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, sections I.F and I.G provides the background on this
rulemaking, including the ANPRM and the NPRM.
In section II, CEQ provides a summary of the final rule, including
changes CEQ made from the proposed rule, which comprehensively updates
and substantially revises CEQ's prior regulations. This final rule
modernizes and clarifies 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 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 revisions include provisions intended to promote
timely submission of relevant information to ensure consideration of
such information by agencies. CEQ's revisions will provide greater
clarity for Federal agencies, States, Tribes, localities, and the
public, and 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.
CEQ provides a summary of the comments received on the proposed
rule and responses in the document titled ``Update to the Regulations
Implementing the Procedural Provisions of the National Environmental
Policy Act Final Rule Response to Comments'' \10\ (``Final Rule
Response to Comments''). This document organizes the comments by the
parts and sections of the proposed rule that the comment addresses, and
includes a subsection on other general or crosscutting topics.
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\10\ The Update to the Regulations Implementing the Procedural
Provisions of the National Environmental Policy Act Final Rule
Response to Comments document is available under ``Supporting
Documents'' in the docket on regulations.gov under docket ID CEQ-
2019-0003.
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Ultimately, the purpose of the NEPA process is to ensure informed
decision making by Federal agencies with regard to the potential
environmental effects of proposed major Federal actions and to make the
public aware of the agency's decision-making process. When effective
and well managed, the NEPA process results in more informative
documentation, enhanced coordination, resolution of conflicts, and
improved environmental outcomes. With this final rule, CEQ codifies
effective agency practice and provides clarity on the requirements of
the NEPA process.
A. National Environmental Policy Act
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 [to] 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 environmental 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. 4332(2)(B), (C), (I),
4342, 4344; see also Dep't of Transp. v. Pub. Citizen, 541 U.S. 752,
757 (2004); Warm Springs Dam Task Force v. Gribble, 417 U.S. 1301,
1309-10 (Douglas, J. Circuit Justice 1974).
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
noncompliance with NEPA procedures are brought under the Administrative
Procedure Act (APA). 5
[[Page 43307]]
U.S.C. 551 et seq. Accordingly, NEPA cases proceed as APA cases.
Limitations on APA cases and remedies thus apply to the adjudication of
NEPA disputes.
B. Council on Environmental Quality 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.'' \11\ CEQ issued interim guidelines in April of
1970 and revised them in 1971 and 1973.\12\
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\11\ 35 FR 4247 (Mar. 7, 1970), sec. 3(h).
\12\ See 35 FR 7390 (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.'' \13\ 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. The Executive order was based on the
President's constitutional and statutory authority, including NEPA, the
Environmental Quality Improvement Act, 42 U.S.C. 4371 et seq., and
section 309 of the Clean Air Act, 42 U.S.C. 7609. The President has a
constitutional duty to ensure that the ``Laws be faithfully executed,''
U.S. Const. art. II, sec. 3, which may be delegated to appropriate
officials. 3 U.S.C. 301. In signing E.O. 11991, the President delegated
this authority to CEQ.\14\
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\13\ 42 FR 26967 (May 25, 1977).
\14\ The Presidential directive was consistent with the
recommendation of the Commission on Federal Paperwork that the
President require the development of consistent regulations and
definitions and ensure coordination among agencies in the
implementation of Environmental Impact Statement preparation. See
The Report of the Commission on Federal Paperwork, Environmental
Impact Statements 16 (Feb. 25, 1977).
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In 1978, CEQ promulgated its ``National Environmental Policy Act,
Regulations, Implementation of Procedural Provisions,'' 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.'' \15\ The Supreme Court has
explained that E.O. 11991 requires all ``heads of [F]ederal agencies to
comply'' with the ``single set of uniform, mandatory regulations'' that
CEQ issued to implement NEPA's provisions. Andrus v. Sierra Club, 442
U.S. 347, 357 (1979).
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\15\ 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 afforded the CEQ regulations ``substantial
deference.'' Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
355 (1989) (citing Andrus, 442 U.S. at 358); Pub. Citizen, 541 U.S. at
757 (``The [CEQ], established by NEPA with authority to issue
regulations 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)). The new regulations
are intended to embody CEQ's interpretation of NEPA for Chevron
purposes and to operate as legislative rules.\16\ See Chevron U.S.A.,
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); see
also Nat'l Cable & Telecomm. Ass'n v. Brand X internet Servs., 545 U.S.
967, 980-86 (2005) (applying Chevron deference to Federal
Communications Commission regulations); United States v. Mead Corp.,
533 U.S. 218, 227-30 (2001) (properly promulgated agency regulations
addressing ambiguities or gaps in a statute qualify for Chevron
deference when agencies possess the authority to issue regulations
interpreting the statute). 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)).
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\16\ Even without expressly invoking Chevron here and noting
that CEQ intends these regulations to operate as legislative rules,
Chevron would still apply. See Guedes v. ATF, 920 F.3d 1, 23 (D.C.
Cir. 2019) (``And for this Rule in particular, another telltale sign
of the agency's belief that it was promulgating a rule entitled to
Chevron deference is the Rule's invocation of Chevron by name. To be
sure, an agency of course need not expressly invoke the Chevron
framework to obtain Chevron deference: `Chevron is a standard of
judicial review, not of agency action.' SoundExchange[, Inc. v.
Copyright Royalty Bd.,] 904 F.3d [41,] 54 [(D.C. Cir. 2018)]. Still,
the Bureau's invocation of Chevron here is powerful evidence of its
intent to engage in an exercise of interpretive authority warranting
Chevron treatment.'') (emphasis in original).
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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.'' \17\ 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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\17\ 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 nature can
exist in productive harmony, and [to] 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.\18\ CEQ found that the amended 40 CFR 1502.22 would ``generate
information and discussion on those consequences of greatest concern to
the public and of greatest relevance to the agency's decision,'' \19\
rather than distorting the decision-making process by overemphasizing
highly speculative harms.\20\ The Supreme Court found this reasoning to
[[Page 43308]]
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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\18\ 51 FR 15618 (Apr. 25, 1986).
\19\ 50 FR 32234, 32237 (Aug. 9, 1985).
\20\ 51 FR 15618, 15620 (Apr. 25, 1986).
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The NEPA regulations direct Federal agencies to adopt their own
implementing procedures, as necessary, in consultation with CEQ. 40 CFR
1507.3. Under this regulation, over 85 Federal agencies and their
subunits have developed such procedures.\21\
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\21\ 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 input from Federal, State, and local
officials, including NEPA practitioners, CEQ issued the ``Forty Most
Asked Questions Concerning CEQ's National Environmental Policy Act
Regulations'' \22\ 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.\23\
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\22\ Forty Questions, supra note 2.
\23\ See https://www.energy.gov/nepa/ceq-guidance-documents.
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In January 1997, CEQ issued ``The National Environmental Policy
Act: A Study of Its Effectiveness After Twenty-five Years.'' \24\ 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,\25\ and
concerns that agencies may seek to `` `litigation-proof' documents,
increasing costs and time but not necessarily quality.'' \26\ 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.'' \27\ 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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\24\ https://ceq.doe.gov/docs/ceq-publications/nepa25fn.pdf.
\25\ Id. at iii.
\26\ Id.
\27\ 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 sec. 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 an agency does an
analysis 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 \28\ recommending actions to improve and
modernize the NEPA process, leading to additional guidance documents
and handbooks.
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\28\ 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 on a wide
variety of topics to provide guidance and clarifications to assist
Federal agencies in more efficiently and effectively implementing the
NEPA regulations.\29\ While CEQ has sought to provide clarity and
direction related to implementation of the regulations and the Act
through the issuance of guidance, agencies continue to face
implementation challenges. Further, the documentation and timelines for
completing environmental reviews can be very lengthy, and the process
can be complex and costly.
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\29\ See, e.g., Emergencies and the National Environmental
Policy Act (Oct. 2016) (``Emergencies Guidance''), https://ceq.doe.gov/docs/nepa-practice/Emergencies_and_NEPA.pdf; Effective
Use of Programmatic NEPA Reviews (Dec. 18, 2014) (``Programmatic
Guidance''), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Effective_Use_of_Programmatic_NEPA_Reviews_Final_Dec2014_searchable.pdf; NEPA and NHPA: A Handbook for Integrating NEPA and Section 106
(Mar. 2013), https://ceq.doe.gov/publications/nepa-handbooks.html;
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; 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; Final Guidance for
Federal Departments and Agencies on the Appropriate Use of
Mitigation and Monitoring and Clarifying the 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; 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; 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; Considering Cumulative Effects Under
the National Environmental Policy Act (Jan. 1997) (``Cumulative
Effects Guidance''), https://ceq.doe.gov/publications/cumulative_effects.html; Environmental Justice: Guidance under the
National Environmental Policy Act (Dec. 10, 1997) (``EJ Guidance''),
https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ej/justice.pdf; Forty Questions, supra note 2. CEQ also issued a
resource for the public, A Citizen's Guide to the NEPA: Having Your
Voice Heard (Dec. 2007), https://ceq.doe.gov/get-involved/citizens_guide_to_nepa.html.
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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'').\30\ 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,'' \31\ to improve
agency coordination for infrastructure
[[Page 43309]]
projects requiring an EIS and permits or other authorizations from
multiple agencies and to improve the timeliness of the environmental
review process. See E.O. 13807, infra sec. I.E. Consistent with the OFD
Framework Guidance, supra note 30, 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 ROD, elevation of delays and dispute resolution,
and setting a goal of completing environmental reviews for such
projects within two years.\32\ 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,\33\ and for the Secretary of
Housing and Urban Development (HUD) regarding the applicability of the
OFD policy to entities assuming HUD environmental review
responsibilities.\34\ CEQ also has provided direction to the Federal
Energy Regulatory Commission (FERC) relating to the requirement for
joint RODs under the OFD policy.\35\
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\30\ M-18-13 (Mar. 20, 2018), https://www.whitehouse.gov/wp-content/uploads/2018/04/M-18-13.pdf.
\31\ 82 FR 40463 (Aug. 24, 2017).
\32\ 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.
\33\ Guidance on the Applicability of E.O. 13807 to States with
NEPA Assignment Authority Under the Surface Transportation Project
Delivery Program, M-19-11 (Feb. 26, 2019), https://www.whitehouse.gov/wp-content/uploads/2017/11/20190226OMB-CEQ327.pdf.
\34\ 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.
\35\ See Letter from the Hon. Mary B. Neumayr, Chairman, Council
on Environmental Quality, to the Hon. Neil Chatterjee, Chairman,
Federal Energy Regulatory Comm'n (Aug. 22, 2019), https://www.whitehouse.gov/wp-content/uploads/2017/11/20190822FERCOFDLetter.pdf.
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3. Environmental Impact Statement 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, and the
NPRM included a summary of the report. CEQ has since updated this
analysis to include EISs completed in 2018, and this section reflects
the updated data.\36\
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\36\ See Council on Environmental Quality, Environmental Impact
Statement Timelines (2010-2018), (June 12, 2020), https://ceq.doe.gov/nepa-practice/eis-timelines.html.
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While CEQ's Forty Questions states that the time for an EIS, even
for a complex project, should not exceed 1 year,\37\ CEQ found that,
across the Federal Government, the average time for completion of an
EIS and issuance of a ROD was 4.5 years and the median was 3.5 years.
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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\37\ Forty Questions, supra note 2, at Question 35.
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As reflected in the timelines report, the period from publication
of a NOI to prepare an EIS to the notice of availability of the draft
EIS took, on average, 58.4 percent of the total time, while preparing
the final EIS, including addressing comments received on the draft EIS,
took, on average, 32.2 percent of the total time. The period from the
final EIS to publication of the ROD took, on average, 9.4 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 count, of EISs (excluding appendices) finalized during the period
of 2013-2017, and the NPRM included a summary of the report. CEQ has
since updated this analysis to include EISs completed in 2018, and this
section reflects the updated data.
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 575 pages in total, with a median document length of 397
pages.\38\ One quarter of the draft EISs were 279 pages or shorter, and
one quarter were 621 pages or longer. For final EISs, the average
document length was 661 pages, and the median document length was 447
pages. One quarter of the final EISs were 286 pages or shorter, and one
quarter were 748 pages or longer. On average, the change in document
length from draft EIS to final EIS was an additional 86 pages or a 15
percent increase.
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\38\ See Council on Environmental Quality, Length of
Environmental Impact Statements (2013-2018), (June 12, 2020) (``CEQ
Length of EISs Report''), 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 27 percent were 300 pages or
shorter.\39\ 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 the 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.
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\39\ The page counts compiled for 2010-2017 include the text of
the EIS as well as supporting content to which the page limit in 40
CFR 1502.7 does not apply. For 2018, CEQ analyzed the data to
determine the length of the text of the EISs and found that 19
percent of the final EISs were 150 pages or shorter and 51 percent
were 300 pages or shorter.
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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 earlier solicitation of information from States, Tribes, and
local governments and the public, and 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
NEPA is the most litigated environmental statute in the United
States.\40\ Over the past 50 years, Federal courts have issued an
extensive body of case law addressing appropriate implementation and
interpretation of NEPA and the CEQ regulations.\41\ The Supreme Court
has directly addressed NEPA in 17 decisions, and the U.S. district and
appellate courts issue approximately 100 to 140 decisions
[[Page 43310]]
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 (citing Strycker's Bay
Neighborhood Council, Inc., 444 U.S. at 227-28; Vt. Yankee, 435 U.S. at
558; see also 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 thousands of decisions interpreting NEPA and the current
CEQ regulations being amended here drive 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. For example, in 2018 and 2019, the U.S. Courts
of Appeals issued 56 substantive decisions on a range of topics,
including assessment of impacts, sufficiency of alternatives, whether
an agency's action qualified as Federal action, and purpose and need
statements.\42\ As discussed below, the final rule codifies
longstanding case law in some instances, and, in other instances,
clarifies the meaning of the regulations where there is a lack of
uniformity in judicial interpretation of NEPA and the CEQ regulations.
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\40\ James E. Salzman and Barton H. Thompson, Jr., Environmental
Law and Policy 340 (5th ed. 2019) (``Perhaps surprisingly, there
have been thousands of NEPA suits. It might seem strange that NEPA's
seemingly innocuous requirement of preparing an EIS has led to more
lawsuits than any other environmental statute.'').
\41\ The 2019 edition of NEPA Law and Litigation includes a 115-
page Table of Cases decisions construing NEPA. See Daniel R.
Mandelker et al., NEPA Law and Litigation, Table of Cases (2d ed.
2019).
\42\ National Association of Environmental Professionals, 2019
Annual NEPA Report of the National Environmental Policy Act (NEPA)
Practice (2020) at 30-31, https://naep.memberclicks.net/assets/annual-report/2019_NEPA_Annual_Report/NEPA_Annual_Report_2019.pdf;
National Association of Environmental Professionals, 2018 Annual
NEPA Report of the National Environmental Policy Act (NEPA) Practice
(2019) at 41-51, https://naep.memberclicks.net/assets/documents/2019/NEPA_Annual_Report_2018.pdf.
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D. Statutory Developments
Since the enactment of NEPA in 1970, 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.\43\ Additionally, the consideration of the effects on historic
properties under the National Historic Preservation Act is typically
integrated into the NEPA review.\44\ NEPA has served as the umbrella
procedural statute, integrating these laws into NEPA reviews and
discussing them in NEPA documents.
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\43\ 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.
\44\ 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 has 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, sec. 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, sec. 1305-1309, 126
Stat. 405, and the 2015 Fixing America's Surface Transportation (FAST)
Act, Public Law 114-94, sec. 1304, 129 Stat. 1312, 1378. Section 139
provides for an environmental review process that is based on and
codifies many aspects of the NEPA 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).\45\
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\45\ 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. See infra sec. I.E. 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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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 (Corps). 33
U.S.C. 2348.\46\ 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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\46\ Congress significantly revised this provision in the Water
Resources Reform and Development Act of 2014, Public Law 113-121,
sec. 1005(a)(1), 128 Stat. 1193 1199.
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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
[[Page 43311]]
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.\47\ 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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\47\ 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 allowed for
public participation and consideration of alternatives,
environmental consequences, 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, sec. 213(c), 126 Stat. 11, 46 (navigation performance and
area navigation procedures); and Omnibus Appropriations Act, 2009,
Public Law 111-8, sec. 423, 123 Stat. 524, 748 (Lake Tahoe Basin
Management Unit hazardous fuel reduction projects).
Further, in the context of emergency response, including economic
crisis, Congress has enacted legislation to facilitate timely NEPA
reviews or to exempt certain actions from NEPA review. 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, sec.
1432, 129 Stat. 1312, 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, sec. 4010(e)(3), 130
Stat. 1628, 1877). Section 1609(c) of the American Recovery and
Reinvestment Act of 2009 directed agencies to complete environmental
reviews under NEPA on an expedited basis using the most efficient
applicable process. Public Law 111-5, sec. 1609, 123 Stat. 115, 304.
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, sec. 1106, 127
Stat. 4, 45-46. 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 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.\48\
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\48\ 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/media-library-data/1414507626204-f156c4795571b85a4f8e1c1f4c4b7de1/Final_Signed_UFR_MOU_9_24_14_508_ST.PDF.
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Finally, in some instances, Congress has exempted actions from
NEPA. In 1996, Congress enacted the Illegal Immigration Reform and
Immigrant Responsibility Act, which authorized the waiver of NEPA for
the construction of the physical barriers and roads between the United
States and Mexico border when necessary to ``ensure expeditious
construction.'' Public Law 104-208, sec. 102(c), 110 Stat. 3009.\49\ In
2013, Congress exempted certain disaster recovery actions or financial
assistance to restore ``a facility substantially to its condition prior
to the disaster or emergency.'' 42 U.S.C. 5159. In 2020, Congress
enacted the Coronavirus Aid, Relief, and Economic Security Act, which
created an exemption from NEPA for the General Services
Administration's acquisition of real property and interests in real
property or improvements in real property in response to coronavirus in
[[Page 43312]]
conjunction with the provision of additional funding to prevent,
prepare for, and respond to the coronavirus. Public Law 116-136, Div.
B.
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\49\ The Homeland Security Act of 2002 transferred
responsibility for the construction of border barriers from the
Attorney General to the Department of Homeland Security. Public Law
107-296, 116 Stat. 2135. In 2005, the REAL ID Act amended the waiver
authority of section 102(c) expanding the Secretary of DHS'
authority to waive ``all legal requirements'' that the Secretary, in
his or her own discretion, determines ``necessary to ensure
expeditious construction'' of certain ``barriers and roads.'' Public
Law 109-13, Div. B, tit. I, sec. 102, 119 Stat. 231, 302, 306. It
also added a judicial review provision that limited the district
court's jurisdiction to hear any causes or claims concerning the
Secretary's waiver authority to solely constitutional claims. Id.
sec. 102(c)(2)(A). Further, the provision directed that any review
of the district court's decision be raised by petition for a writ of
certiorari with the Supreme Court of the United States. Id. sec.
102(c)(2)(C). See In re Border Infrastructure Envtl. Litig., 284 F.
Supp. 3d 1092 (S.D. Cal. 2018).
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These statutes reflect that Congress has recognized that the
environmental review process can be more efficient and effective,
including for infrastructure projects, and that in certain
circumstances, Congress has determined it appropriate to exempt certain
actions from NEPA review. 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,'' \50\ 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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\50\ 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'' \51\ 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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\51\ 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,'' \52\ 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 Executive order 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,'' \53\ established an interagency
working group to, among other things, avoid duplicative reviews and
coordinate review processes to advance broadband deployment.
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\52\ 77 FR 18887 (Mar. 28, 2012).
\53\ 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'' \54\ 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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\54\ 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 Projects.'' \55\
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.\56\
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\55\ 82 FR 40463 (Aug. 24, 2017).
\56\ 82 FR 43226 (Sept. 14, 2017).
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F. Advance Notice of Proposed Rulemaking
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 ANPRM titled ``Update to the Regulations for
Implementing the Procedural Provisions of the National Environmental
Policy Act.'' \57\ 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.\58\
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\57\ 83 FR 28591 (June 20, 2018).
\58\ In response to comments, CEQ extended the comment period 31
additional days to August 20, 2018. 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
[[Page 43313]]
environmental documentation issued pursuant to NEPA, including CEs,
EAs, EISs, and other documents, would be appropriate. Finally, the
ANPRM requested general comments, including 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.\59\ 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 regulations, other commenters urged CEQ to consider
potential revisions. Though the approaches to the update of the NEPA
regulations varied, most of the substantive comments supported some
degree of updating of the 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.
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\59\ See https://www.regulations.gov, docket no. CEQ-2018-0001.
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G. Notice of Proposed Rulemaking
On January 9, 2020, President Trump announced the release of CEQ's
NPRM titled ``Update to the Regulations Implementing the Procedural
Provisions of the National Environmental Policy Act'' and the rule was
published in the Federal Register on January 10, 2020.\60\ The NPRM
provided a 60-day comment period, and the comment period ended on March
10, 2020.
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\60\ Supra note 8.
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CEQ hosted two public hearings in Denver, Colorado on February 11,
2020, and in Washington, DC on February 25, 2020.\61\ CEQ also notified
all federally recognized Tribes and over 400 interested groups,
including State, Tribal, and local officials, environmental
organizations, trade associations, NEPA practitioners, and interested
members of the public representing a broad range of diverse views, that
CEQ had issued the proposed rule for public comment.\62\ Additionally,
CEQ made information to aid the public's review of the proposed rule
available on its websites at www.whitehouse.gov/ceq and www.nepa.gov,
including a redline version of the proposed changes to the regulations
posted on www.regulations.gov, along with a presentation on the
proposed rule and other background information.\63\ CEQ also conducted
additional public outreach to solicit comments, including meetings with
Tribal representatives in Denver, Colorado, Anchorage, Alaska, and
Washington, DC.\64\
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\61\ Transcripts of the two public hearings with copies of
testimony and written comments submitted at the hearings are
available in the docket on www.regulations.gov, docket ID CEQ-2019-
0003.
\62\ Notices are available under ``Supporting Documents'' in the
docket, www.regulations.gov, docket ID CEQ-2019-0003, https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&dct=SR%2BO&D=CEQ-2019-0003.
\63\ Id.
\64\ CEQ also includes meeting summaries under supplemental
materials. Id.
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In response to the NPRM, CEQ received comments from a broad range
of stakeholders on a diversity of issues relating to the proposed rule.
These included comments from members of Congress, State, Tribal, and
local officials, environmental organizations, trade associations, NEPA
practitioners, and interested members of the public. CEQ also received
a large number of campaign comments, including comments with multiple
signatories or groups of comments that were identical or very similar
in form or content. The comments received on the NPRM raised a variety
of issues related to the rulemaking and contents of the proposed rule,
including procedural, legal, and technical issues. The Final Rule
Response to Comments provides a summary of the comments and responses
to those comments.
II. Summary of Final Rule
In this section, CEQ summarizes the NPRM proposed changes and the
final rule, including any changes or additions to what CEQ proposed.
CEQ makes the additions, clarifications, and updates to its regulations
based on its record evaluating the implementation of the NEPA
regulations, suggestions in response to the ANPRM, and comments
provided in response to the NPRM. The revisions finalized in this rule
advance the original objectives of the 1978 regulations \65\ ``[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.'' \66\
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\65\ In this final rule, CEQ uses the term ``1978 regulations''
to refer to the regulations as they exist prior to this final rule's
amendment thereof, which includes the 1986 amendment to 40 CFR
1502.22.
\66\ 43 FR 55978 (Nov. 29, 1978).
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In this final rule, CEQ makes various revisions to align the
regulations with the text of the NEPA statute, including revisions to
reflect the procedural nature of the statute, including under section
102(2). CEQ also revises the regulations to ensure that environmental
documents prepared pursuant to NEPA are concise and serve their purpose
of informing decision makers regarding significant potential
environmental effects of proposed major Federal actions and the public
of the environmental issues in the pending decision-making process. CEQ
makes changes 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 makes its regulations consistent with the OFD policy
established by E.O. 13807 for multi-agency review and related
permitting and other authorization decisions. The Executive order
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 NPRM, CEQ received many comments
supporting revisions 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. To promote improved interagency coordination and
more timely and efficient reviews and in response to these comments,
CEQ codifies and generally applies a number of key elements from the
OFD policy in this final rule. These include 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,
[[Page 43314]]
and CEQ includes language to that effect in Sec. 1500.6.\67\
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\67\ In the preamble, CEQ uses the section symbol (Sec. ) to
refer to the final regulations as set forth in this final rule and
40 CFR to refer to the 1978 CEQ regulations as set forth in 40 CFR
parts 1500-1508.
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CEQ also clarifies the process and documentation required for
complying with NEPA by amending part 1501 to add sections on threshold
considerations, determination of the appropriate level of NEPA review,
and the application of CEs; and revising sections in part 1501 on EAs
and findings of no significant impact (FONSIs), and EISs in part 1502.
CEQ further revises the regulations 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, and participating agencies, timing
of agency action, scoping, and agency NEPA procedures.
To promote a more efficient and timely NEPA process, CEQ amends
provisions in 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; revises parts 1501 and 1502 to provide for
presumptive time and page limits; and amends part 1508 to clarify the
definitions. For example, CEQ includes two new mechanisms to facilitate
the use of CEs when appropriate. Under Sec. 1506.3(d), an agency can
adopt another agency's determination that a CE applies to a proposed
action when the adopting agency's proposed action is substantially the
same. This extends the adoption process and standards from EISs to CE
determinations.\68\ This allows agencies to ``piggyback'' where more
than one agency is taking an action related to the same project or
activity. Alternatively, to apply CEs listed in another agency's
procedures (without that agency already having made a determination
that a CE applies to a substantially similar action), agencies can
establish a process in their agency NEPA procedures to coordinate and
apply CEs listed in other agencies' procedures.
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\68\ The final rule also extends the adoption process and
standards, which only applies to EISs under the 1978 regulations, to
EAs as well.
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Another efficiency included in this final rule is the ability for
agencies to identify other requirements that serve the function of
agency compliance with NEPA. Under Sec. Sec. 1501.1 and 1507.3(d)(6),
agencies may determine that another statute's requirements serve the
function of agency compliance with NEPA. Alternatively, agencies may
designate in their agency NEPA procedures one or more procedures or
documents under other statutes or Executive orders that satisfy one or
more requirements in the NEPA regulations, consistent with Sec.
1507.3(c)(5). Finally, Sec. 1506.9 allows agencies to substitute
processes and documentation developed as part of the rulemaking process
for corresponding requirements in these regulations.
As noted above, NEPA is a procedural statute that has twin aims.
The first is to promote informed decision making, while the second is
to inform the public about the agency's decision making. In this final
rule, CEQ amends parts 1500, 1501, 1502, 1503, 1505, and 1508 to ensure
that agencies solicit and consider relevant information early in the
NEPA process and have the maximum opportunity to take that information
into account in their decision making.
In situations where an EIS is required, this process takes place in
two discrete steps. First, Sec. 1501.9(d) directs agencies to include
information on the proposed action in the NOI, including its expected
impacts and alternatives, and a request for comments from interested
parties on the potential alternatives, information, and analyses
relevant to the proposed action. Second, Sec. 1503.1(a) requires
agencies to request comments on the analysis and conclusions of the
draft EIS. The purpose of these two provisions is to bring relevant
comments, information, and analyses to the agency's attention, as early
in the process as possible, to enable the agency to make maximum use of
this information.
To facilitate this process, Sec. 1503.3 requires comments on the
draft EIS to be submitted on a timely basis and to be as specific as
possible. Similarly, Sec. 1503.1(a)(3) requires agencies to invite
interested parties to comment specifically on the alternatives,
information, and analyses submitted for consideration in the
development of the draft EIS. Finally, Sec. 1503.3(b) provides that
comments, information, and analyses on the draft EIS not timely
received are deemed unexhausted and therefore forfeited. The intent of
these amendments is two-fold: (1) To ensure that comments are timely
received and at a level of specificity where they can be meaningfully
taken into account, where appropriate; and (2) to prevent unnecessary
delay in the decision-making process.
Consistent with this intent, Sec. 1500.3(b)(2) also directs
agencies to include a new section in both the draft and final EIS that
summarizes all alternatives, information, and analyses submitted by
interested parties in response to the agency's requests for comment in
the NOI and on the draft EIS. In addition, Sec. Sec. 1502.17(a)(2) and
1503.1(a)(3) direct agencies to request comment on the summary in the
draft EIS. The purpose of these provisions is to ensure that the
agency, through outreach to the public, has identified all relevant
information submitted by State, Tribal, and local governments and other
public commenters. Although not a substitute for the entire record, the
summary will assist agency decision makers in their consideration of
the record for the proposed action. As the Supreme Court observed in
Metropolitan Edison Co. v. People Against Nuclear Energy, ``[t]he scope
of [an] agency's inquiries must remain manageable if NEPA's goal of
`[insuring] a fully informed and well-considered decision' . . . is to
be accomplished.'' 460 U.S. at 776 (quoting Vt. Yankee, 435 U.S. at
558).
Finally, informed by the summary included in the final EIS pursuant
to Sec. Sec. 1500.3(b)(2) and 1502.17 and the response to comments
pursuant to Sec. 1503.4, together with any other material in the
record that he or she determines to be relevant, the decision maker is
required under Sec. 1505.2(b) to certify in the ROD that the agency
has considered the alternatives, information, analyses, and objections
submitted by State, Tribal, and local governments and public commenters
for consideration in the development of the final EIS. Section
1505.2(b) further provides that a decision certified in this manner is
entitled to a presumption that the agency has adequately considered the
submitted alternatives, information, and analyses, including the
summary thereof, in reaching its decision. This presumption will
advance the purposes of the directive in E.O. 11991 to ensure that EISs
are supported by evidence that agencies have performed the necessary
environmental analyses. See E.O. 11991, sec. 1 amending E.O. 11514,
sec. 3(h). This presumption is also 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)); INS v. Miranda, 459
U.S. 14, 18 (1982) (specific evidence required to overcome presumption
that public officers have executed their responsibilities properly);
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415
(1971) (Although a
[[Page 43315]]
statute prohibited Federal funds for roads through parks absent a
feasible and prudent alternative, and although the Secretary of
Transportation approved funds without formal findings, the Secretary's
decision-making process was nevertheless entitled to a presumption of
regularity.); Fed. Commc'ns Comm'n v. Schreiber, 381 U.S. 279, 296
(1965) (noting ``the presumption to which administrative agencies are
entitled--that they will act properly and according to law''); Phila. &
T. Ry. v. Stimpson, 39 U.S. (14 Pet.) 448, 458 (1840) (Where a statute
imposed certain conditions before a corrected patent could issue, the
signatures of the President and the Secretary of State on a corrected
patent raised a presumption that the conditions were satisfied, despite
absence of recitals to that effect on face of patent.); Martin v. Mott,
25 U.S. (12 Wheat.) 19, 33 (1827) (``Every public officer is presumed
to act in obedience to his duty, until the contrary is shown . . .
.''); Udall v. Wash., Va. & Md. Coach Co., 398 F.2d 765, 769 (D.C. Cir.
1968) (The Secretary of the Interior's determination that limitation of
commercial bus service was required to preserve a parkway's natural
beauty was entitled to presumption of validity, and the burden was on
the challenger to overcome it.).
In light of this precedent and the interactive process established
by these regulations, under which the agency and interested parties
exchange information multiple times, the agency compiles and evaluates
summaries of that information, and a public official is required to
certify the agency's consideration of the record, it is CEQ's intention
that this presumption may be rebutted only by clear and convincing
evidence that the agency has not properly discharged its duties under
the statute.
Finally, CEQ revises the regulations to make them easier to
understand and apply. CEQ reorganizes the regulatory text to move
topics addressed in multiple sections and sometimes multiple parts into
consolidated sections. CEQ simplifies and clarifies part 1508 to focus
on definitions by moving operative requirements to the relevant
regulatory provisions. CEQ revises the regulations to consolidate
provisions and reduce duplication. Such consolidation, reordering, and
reorganization promotes greater clarity and ease of use.
A. Changes Throughout Parts 1500-1508
CEQ proposed several revisions throughout parts 1500-1508 to
provide consistency, improve clarity, and correct grammatical errors.
CEQ proposed to make certain grammatical corrections in the regulations
where it proposed 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
proposed to revise sentences from passive voice to active voice to help
identify the responsible parties. CEQ also proposed to correct the
usage of the term ``insure'' with ``ensure'' consistent with modern
usage. ``Insure'' is typically used in the context of providing or
obtaining insurance, whereas ``ensure'' is used in the context of
making something sure, certain, or safe. While NEPA uses the term
``insure,'' the context in which it is used makes it clear that
Congress meant ``ensure'' consistent with modern usage. Similarly, CEQ
proposed to correct the use of ``which'' and ``that'' throughout the
rule.
CEQ proposed to add paragraph letters to certain introductory
paragraphs where it would improve clarity. Finally, CEQ invited comment
on whether it should make these types of grammatical and editorial
changes throughout the rule or if there are additional specific
instances where CEQ should make these types of changes. In the final
rule, CEQ adopts the proposed revisions to provide consistency and
clarity and to correct grammatical errors and makes these types of
changes throughout.
CEQ proposed 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. CEQ also proposed this change in response to comments
on the ANPRM supporting expansion of the recognition of the sovereign
rights, interests, and expertise of Tribes. CEQ proposed to eliminate
the provisions in the regulations that limit Tribal interest to
reservations. CEQ adopts these proposals in the final rule and makes
these additions and revisions in Sec. Sec. 1500.3(b)(2)-(4),
1500.4(p), 1500.5(j), 1501.2(b)(4)(ii), 1501.3(b)(2)(iv), 1501.5(e),
1501.7(b) and (d), 1501.8(a), 1501.9(b), 1501.10(f), 1502.5(b),
1502.16(a)(5), 1502.17(a) and (b), 1502.20(a), 1503.1(a)(2)(i) and
(ii), 1505.2(b), and 1506.1(b), 1506.2, 1506.6(b)(3)(i)-(iii), and
1508.1(e), (k), and (w). As noted in the NPRM, these 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.'' \69\
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\69\ 65 FR 67249 (Nov. 9, 2000).
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CEQ proposed several changes for consistent use of certain terms.
In particular, CEQ proposed to change ``entitlements'' to the defined
term ``authorizations'' proposed in Sec. 1508.1(c) throughout the
regulations 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 is
adopting these revisions in the final rule in Sec. Sec. 1501.2(a),
1501.7(i), 1501.9(d)(4) and (f)(4), 1502.13, 1502.24(b), 1503.3(d), and
1508.1(w).
CEQ proposed to use the term ``decision maker'' to refer to an
individual responsible for making decisions on agency actions and
``senior agency official'' to refer to the individual who oversees the
agency's overall compliance with NEPA. CEQ adopts these changes in the
final rule. There may be multiple individuals within certain
departments or agencies that have these responsibilities, including
where subunits have developed agency procedures or NEPA compliance
programs.
CEQ proposed to replace ``circulate'' or ``circulation'' with
``publish'' or ``publication'' throughout the rule and make ``publish
or publication'' a defined term in Sec. 1508.1(y), which 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. As
explained in the NPRM, 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 will help reduce paperwork and delays,
and modernize the NEPA process to be more accessible to the public. CEQ
finalizes these changes in Sec. Sec. 1500.4(o), 1501.2(b)(2),
1502.9(b) and (d)(3), 1502.20, 1503.4(b) and (c), 1506.3(b)(1) and (2),
and 1506.8(c)(2).
CEQ proposed to change the term ``possible'' to ``practicable'' in
the NPRM in a number of sections of the regulations. As noted in the
NPRM, ``practicable'' is the more commonly used term in regulations to
convey the ability for something to be done,
[[Page 43316]]
considering the cost, including time required, technical and economic
feasibility, and the purpose and need for agency action. The term
``practicable,'' which is in the statute (42 U.S.C. 4331(a), (b)) and
used many times in the 1978 regulations,\70\ is consistent with notions
of feasibility, which the case law has recognized as part of the NEPA
process. See, e.g., Vt. Yankee, 435 U.S. at 551 (``alternatives must be
bounded by some notion of feasibility''); Kleppe, 427 U.S. at 414
(``[P]ractical considerations of feasibility might well necessitate
restricting the scope'' of an agency's analysis.) CEQ makes these
changes in the final rule in Sec. Sec. 1501.7(h)(1) and (2),
1501.8(b)(1), 1502.5, 1502.9(b), 1504.2, and 1506.2(b) and (c).
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\70\ See 40 CFR 1500.2(f), 1501.4(b), 1501.7, 1505.2(c),
1506.6(f) and 1506.12(a).
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Similarly, CEQ proposed to change ``no later than immediately'' to
``as soon as practicable'' in Sec. 1502.5(b), and CEQ finalizes this
change. Finally, CEQ proposed to refer to the procedures required in
Sec. 1507.3 using the term ``agency NEPA procedures'' throughout. CEQ
makes this change in the final rule.
CEQ proposed to eliminate obsolete references and provisions in
several sections of the CEQ regulations. In particular, CEQ proposed 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). CEQ removes these references in the final rule.
CEQ proposed changes to citations and authorities in parts 1500
through 1508. CEQ is updating the authorities sections for each part to
correct the format. CEQ also is removing cross-references to the
sections of part 1508, ``Definitions,'' and updates or inserts new
cross-references throughout the rule to reflect revised or new
sections. CEQ makes these changes throughout the final rule.
Finally, CEQ is reorganizing chapter V of title 40 of the Code of
Federal Regulations to place the NEPA regulations into a new subchapter
A, ``National Environmental Policy Act Implementing Regulations,'' and
organizing its other regulations into their own new subchapter B,
``Administrative Procedures and Operations.'' References to ``parts
1500 through 1508'' in the proposed rule are referenced to ``this
subchapter'' in the final rule. CEQ notes that the provisions of the
NEPA regulations, which the final rule comprehensively updates, should
be read in their entirety to understand the requirements under the
modernized regulations.\71\
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\71\ While the final rule retains, in large part, the numbering
scheme used in the 1978 regulations, the final rule comprehensively
updates the prior regulations. The new regulations should be
consulted and reviewed to ensure application is consistent with the
modernized provisions. Assumptions should not be made concerning the
degree of change to, similarity to, or any interpretation of the
prior version of the regulations.
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B. Revisions To Update the Purpose, Policy, and Mandate (Part 1500)
In part 1500, CEQ proposed 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 includes the proposed changes with some revisions in the
final rule.
1. Purpose and Policy (Sec. 1500.1)
In the NPRM, CEQ proposed 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)). These changes also are
consistent with the President's directive to CEQ to ``[i]ssue
regulations to Federal agencies for the implementation of the
procedural provisions of the Act (42 U.S.C. 4332(2)).'' E.O. 11514, as
amended by E.O. 11991, sec. 3(h). Many commenters supported these
revisions to promote more efficient and timely reviews under NEPA,
while others opposed the changes and requested that CEQ maintain the
existing language. CEQ revises this section in the final rule
consistent with its proposal.
Section 1500.1 provides 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.'').
As proposed in the NPRM, CEQ revises Sec. 1500.1(a) to summarize
section 101 of the Act (42 U.S.C. 4331) and to reflect that section
102(2) establishes the procedural requirements to carry out the policy
stated in section 101. CEQ revises Sec. 1500.1(a) consistent with the
case law to reflect that 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,
and to reflect that NEPA does not mandate particular results or
substantive outcomes. Marsh, 490 U.S. at 373-74; Vt. Yankee, 435 U.S.
at 558. CEQ replaces the vague reference to ``action-forcing''
provisions ensuring that Federal agencies act ``according to the letter
and spirit of the Act'' (as well as consistently with their organic and
program-specific governing statutes) with a more specific reference to
the consideration of environmental impacts of their actions in agency
decisions. These changes codify the Supreme Court's interpretation of
section 102 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; see also Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 23 (2008); Pub. Citizen, 541 U.S.
at 756-58.
Consistent with CEQ's proposal in the NPRM, CEQ revises Sec.
1500.1(b) to describe the NEPA regulations as revised in this final
rule. In particular, CEQ revises 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 revisions also ensure that Federal
agencies identify and consider relevant environmental information early
in the process in order to promote informed decision making. These
revisions reduce unnecessary burdens and delays consistent with E.O.
13807 and the purposes of the regulations as originally promulgated in
1978. These 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
[[Page 43317]]
Guidance, supra note 29, and Timely Environmental Reviews Guidance,
supra note 29.
2. Remove and Reserve Policy (Sec. 1500.2)
CEQ proposed to remove and reserve 40 CFR 1500.2, ``Policy.'' The
section included language that is identical or similar to language in
E.O. 11514, as amended. That Executive order directed CEQ to develop
regulations that would make the ``[EIS] process more useful to decision
makers and the public; and . . . reduce paperwork and the accumulation
of extraneous background data, in order to emphasize the need to focus
on real environmental issues and alternatives.'' See E.O. 11514, as
amended by E.O. 11991, sec. 3(h). The Executive order also directed CEQ
to require EISs to be ``concise, clear and to the point, and supported
by evidence that agencies have made the necessary environmental
analyses.'' Id. CEQ proposed to remove this section because it is
duplicative of other sections of the regulations, thereby eliminating
redundancy. CEQ is making this change in the final rule.
Specifically, 40 CFR 1500.2(a) restated the statutory text in
section 102 of NEPA (42 U.S.C. 4332) and is duplicative of language in
Sec. 1500.6, ``Agency authority,'' requiring each agency to interpret
the provisions of NEPA as a supplement to its existing authority and as
a mandate to view policies and missions in light of the Act's national
environmental objectives. Paragraph (b) required agencies to implement
procedures to make the NEPA process more useful to decision makers and
the public; reduce paperwork and accumulation of extraneous background
data; emphasize relevant environmental issues and alternatives; and
make EISs concise, clear, and to the point and supported by evidence
that thy have made the necessary analyses. This paragraph is
duplicative of language in Sec. 1502.1, ``Purpose of environmental
impact statement,'' and paragraphs (c) through (i) of Sec. 1500.4,
``Reducing paperwork.''
Paragraph (c) of 40 CFR 1500.2, requiring agencies to integrate
NEPA requirements with other planning and review procedures to run
concurrently rather than consecutively, is duplicative of language in
Sec. 1502.24, ``Environmental review and consultation requirements,''
Sec. 1501.2, ``Apply NEPA early in the process,'' Sec. 1501.9,
``Scoping,'' and Sec. 1500.4, ``Reducing paperwork.'' Paragraph (d)
encouraging public involvement is duplicative of sections that direct
agencies to provide notice and information to and seek comment from the
public regarding proposed actions and environmental documents,
including provisions in Sec. 1506.6, ``Public involvement,'' Sec.
1501.9, ``Scoping,'' and Sec. 1503.1, ``Inviting comments and
requesting information and analyses.'' \72\ Paragraph (e), which
required agencies to use the NEPA process to identify and assess
reasonable alternatives to proposed actions that will avoid or minimize
adverse effects, is duplicative of language in Sec. 1502.1, ``Purpose
of environmental impact statement,'' and paragraph (c) of Sec. 1505.2,
``Record of decision in cases requiring environmental impact
statements.''
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\72\ Section 1506.6 includes detailed provisions directing
agencies to facilitate public involvement, including by providing
the public with notice regarding actions, holding or sponsoring
public hearings, and providing notice of NEPA-related hearings,
public meetings, and other opportunities for public involvement, and
the availability of environmental documents. Section 1501.9 requires
agencies to issue a public notice regarding proposed actions for
which the agencies will be preparing an EIS and to include specific
information for, and to solicit information from the public
regarding such proposed actions. Section 1503 provides direction to
agencies regarding inviting comments from the public and requesting
information and analyses.
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Paragraph (f) of 40 CFR 1500.2 required agencies to use all
practicable means, consistent with the Act and other essential
considerations of national policy, to restore and enhance the quality
of the human environment and avoid or minimize any possible adverse
effects of their actions upon the quality of the human environment. The
rule specifically directs agencies to consider reasonable alternatives
to avoid or minimize adverse environmental impacts in Sec. 1502.1,
``Purpose of environmental impact statement.'' The final rule also
provides direction to agencies about the relevant environmental
information to be considered in the decision-making process, including
potential adverse effects and alternatives, and expressly directs
agencies to identify alternatives considered (Sec. Sec. 1502.14 and
1502.16), and to state in their RODs whether they have adopted all
practicable means to avoid or minimize environmental harm from the
alternative selected (Sec. 1505.2).
3. NEPA Compliance (Sec. 1500.3)
CEQ proposed numerous changes and additions to Sec. 1500.3, ``NEPA
compliance,'' including the addition of paragraph headings to improve
readability. In paragraph (a), ``Mandate,'' CEQ proposed to update the
authorities under which it issues the regulations. CEQ adds these
references, including to E.O. 13807, in the final rule. In the NPRM,
CEQ proposed to add a sentence to this paragraph regarding agency NEPA
procedures not imposing additional procedures or requirements beyond
those set forth in the regulations. To address confusion expressed by
some commenters, CEQ does not include this sentence in the final rule
because it includes this requirement in Sec. 1507.3, ``Agency NEPA
procedures.''
CEQ proposed to add a new paragraph (b), ``Exhaustion,'' to
summarize public comment requirements and an exhaustion requirement.
Specifically, CEQ proposed in paragraph (b)(1) to require that, in a
NOI to prepare an EIS, agencies request comments from interested
parties on the potential effects of and potential alternatives to
proposed actions, and also request that interested parties identify any
relevant information, studies, or analyses of any kind concerning such
effects. CEQ includes this provision in the final rule to ensure that
agencies solicit and consider relevant information early in the
development of an EIS.
In paragraph (b)(2) of Sec. 1500.3, CEQ proposed to require that
the EIS include a summary of all the comments received for
consideration in developing the EIS. CEQ includes this provision in the
final rule with some changes. For consistency with the language in
Sec. 1502.17, the final rule specifies that the draft and final EISs
must include a summary of ``all alternatives, information, and
analyses.'' Also, in response to comments requesting clarification on
the meaning of ``public commenters,'' the final rule changes this
phrase in paragraphs (b)(2) and (3) of Sec. 1500.3 and in Sec.
1502.17 to ``State, Tribal, and local governments and other public
commenters'' for consistency with Sec. Sec. 1501.9 and 1506.6 and to
clarify that public commenters includes governments as well as other
commenters such as organizations, associations, and individuals.
In paragraph (b)(3) of Sec. 1500.3, CEQ proposed to require that
public commenters timely submit comments on draft EISs and any
information on environmental impacts or alternatives to a proposed
action to ensure informed decision making by Federal agencies. CEQ
further proposed to provide that comments not timely raised and
information not provided shall be deemed unexhausted and forfeited.
This reinforces the principle that parties may not raise claims based
on issues they themselves did not raise during the public comment
period. See, e.g., Pub. Citizen, 541 U.S. at 764-65 (finding claims
forfeited because respondents had not raised particular objections to
the EA in their comments); Karst Envtl. Educ. & Prot., Inc. v. Fed.
Highway Admin., 559 Fed. Appx. 421, 426-27
[[Page 43318]]
(6th Cir. 2014) (concluding that comments did not raise issue with
``sufficient clarity'' to alert the Federal Highway Administration to
concerns); Friends of the Norbeck v. U.S. Forest Serv., 661 F.3d 969,
974 (8th Cir. 2011) (concluding that comments were insufficient to give
the Forest Service an opportunity to consider claim and that judicial
review was therefore improper); Exxon Mobil Corp. v. U.S. EPA, 217 F.3d
1246, 1249 (9th Cir. 2000) (arguments not raised in comments are
waived); Ass'n of Mfrs. v. Dep't of the Interior, 134 F.3d 1095, 1111
(D.C. Cir. 1998) (failure to raise argument in rulemaking constitutes
failure to exhaust administrative remedies). Finally, CEQ proposed to
require that the public raise any objections to the submitted
alternatives, information, and analyses section within 30 days of the
notice of availability of the final EIS.
The final rule includes paragraph (b)(3) with some modifications.
The final rule requires State, Tribal, and local governments and other
public commenters to submit comments within the comment periods
provided under Sec. 1503.1 and that comments be as specific as
possible under Sec. 1503.3. The rule specifies that comments or
objections of any kind not submitted ``shall be forfeited as
unexhausted'' to clarify any ambiguity about forfeiture and exhaustion.
CEQ received comments opposing the proposal to require the public to
raise objections to the submitted alternatives, information, and
analyses section within 30 days of the notice of availability of the
final EIS. The final rule does not include the proposed mandatory 30-
day comment period. However, Sec. 1506.11 retains from the 1978
regulations the 30-day waiting period prior to issuance of the ROD,
subject to limited exceptions, and under Sec. 1503.1(b), agencies may
solicit comments on the final EIS if they so choose. Each commenter
should put its own comments into the record as soon as practicable to
ensure that the agency has adequate time to consider the commenter's
input as part of the agency's decision-making process. Finally, to
ensure commenters timely identify issues, CEQ expresses its intention
that commenters rely on their own comments and not those submitted by
other commenters in any subsequent litigation, except where otherwise
provided by law.
CEQ also proposed in paragraph (b)(4) of Sec. 1500.3 to require
that the agency decision maker certify in the ROD that the agency has
considered all of the alternatives, information, and analyses submitted
by public commenters based on the summary in the EIS. CEQ includes this
section in the final rule with some modifications. The final rule
requires the decision maker, informed by the final EIS (including the
public comments, summary thereof, and responses thereto) and other
relevant material in the record, certify that she or he considered the
alternatives, information, and analyses submitted by States, Tribes,
and local governments and other public commenters. Relevant material
includes both the draft and final EIS as well as any supporting
materials incorporated by reference or appended to the document. The
final rule does not specify the decision maker ``for the lead agency''
to account for multiple decision makers, consistent with the OFD
policy.
CEQ proposed to add a new paragraph (c), ``Review of NEPA
compliance,'' to Sec. 1500.3 to reflect the development of case law
since the promulgation of the CEQ regulations. Specifically, CEQ
proposed to revise the sentence regarding timing of judicial review to
strike references to the filing of an EIS or FONSI and replace them
with the issuance of a signed ROD or the taking of another final agency
action. CEQ includes this change in the final rule. Judicial review of
NEPA compliance for agency actions can occur only under the APA, which
requires finality. 5 U.S.C. 704. A private right of action to enforce
NEPA, which is lacking, would be required to review non-final agency
action. In addition, non-final agency action may not be fit for
judicial review as a matter of prudential standing. See Abbott Labs v.
Gardner, 387 U.S. 136, 148-49 (1967). 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) (``[T]he action must mark the
`consummation' of the agency's decision[-]making process--it must not
be of a merely tentative or interlocutory nature. And second, 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, and there are ``direct and
appreciable legal consequences.'' Id. at 178. Final agency action for
judicial review purposes is not necessarily when the agency publishes
the final EIS, issues a FONSI, or makes the determination to
categorically exclude an action.
CEQ also proposed in paragraph (c) to clarify that any allegation
of noncompliance be resolved as expeditiously as possible, and that
agencies may structure their decision making to allow private parties
to seek agency stays or provide for efficient mechanisms, such as
imposition of bonds, for seeking, granting, and imposing conditions on
stays. The final rule clarifies that it is CEQ's intention that any
allegation of noncompliance be resolved as expeditiously as possible.
The final rule also clarifies that agencies may structure their
procedures consistent with their organic statutes, and as part of
implementing the exhaustion provisions in paragraph (b) of Sec.
1500.3, to include an appropriate bond or other security requirement to
protect against harms associated with delays.
Consistent with their statutory authorities, agencies may impose,
as appropriate, bond and security requirements or other conditions as
part of their administrative processes, including administrative
appeals, and a prerequisite to staying their decisions, as courts do
under rule 18 of the Federal Rules of Appellate Procedure and other
rules.\73\ See, e.g., 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 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. See,
e.g., Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1125-26 (9th
Cir. 2005) (concluding that district court's imposition of a $50,000
bond was appropriate and supported by the record); Stockslager v.
Carroll Elec. Co-op Corp., 528 F.2d 949 (8th Cir. 1976) (concluding
that district court's imposition of a $10,000 bond was appropriate).
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\73\ See, e.g., 26 CFR 2.6 (Bureau of Indian Affairs' regulatory
provision that allows a person that believes he or she may suffer a
measurable and substantial financial loss as a result of the delay
caused by an appeal to request that the official require the posting
of a reasonable bond).
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CEQ proposed to add a new paragraph (d), ``Remedies,'' to Sec.
1500.3. CEQ proposed 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 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) (citing Touche Ross
[[Page 43319]]
& Co. v. Redington, 442 U.S. 560, 578 (1979)). This is particularly
relevant where, as here, the counterparty in any action to enforce NEPA
would be a Federal officer or agency. See San Carlos Apache Tribe v.
United States, 417 F.3d 1091, 1096-97 (9th Cir. 2005) (``[C]reating a
direct private action against the federal government makes little sense
in light of the administrative review scheme set out in the APA.'').
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 [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, 544-45 (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.'').
Consistent with the Supreme Court's analysis in Geertson Seed
Farms, agencies (as well as applicants) should give practical
consideration to measures that might serve to anticipate, reduce, or
eliminate possible adverse effects from a project. To the extent such
measures are incorporated into an agency's ROD, they may provide
grounds upon which a court, presented with an alleged violation of
NEPA, might reasonably conclude that injunctive relief is not warranted
because the measures prevent any irreparable harm from occurring. See
Sec. 1505.3. For example, regular inspections or requirements that
applicants obtain third-party insurance, for example, might constitute
such measures in certain circumstances. Inspections can reveal defects
before they cause harm. Third-party insurers, because of their exposure
to risk, have an economic incentive to conduct thorough inspections,
facilitating discovery of defects. Such measures would be relevant to
whether a valid claim of irreparable harm has been established.
CEQ also proposed to state that any actions to review, enjoin,
vacate, 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 proposed to
replace the language providing that trivial violations should not give
rise to an independent cause of action with language that states that
minor, non-substantive errors that have no effect on agency decision
making shall be considered harmless and shall not invalidate an agency
action. Invalidating actions due to minor errors does not advance the
goals of the statute and adds delays and costs. CEQ includes paragraph
(d) in the final rule with a change to clarify that it is CEQ's
intention that the regulations create no presumption that violation of
NEPA is a basis for injunctive relief or for a finding of irreparable
harm. As noted above, NEPA is a procedural statute and any harm is thus
reparable by providing the necessary environmental documentation in
accordance with the Act and these regulations. CEQ also adds ``vacate,
or otherwise'' to the types of actions that may alter a decision to
address situations where there may be a nationwide or other vacatur and
``after final agency action'' to clarify when the actions should be
raised.
Finally, CEQ proposed to add a new paragraph (e), ``Severability,''
to Sec. 1500.3 to address the possibility that this rule, or portions
of this rule, may be challenged in litigation. CEQ finalizes this
paragraph as proposed, correcting the cross reference. As stated in the
NPRM, it is CEQ's intention that the individual sections of this rule
be severable from each other, and that if a court stays or invalidates
any sections or portions of the regulations, this will not affect the
validity of the remainder of the sections, which will continue to be
operative.
4. Reducing Paperwork and Delay (Sec. Sec. 1500.4 and 1500.5)
In the NPRM, CEQ proposed 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. CEQ also proposed edits to Sec. Sec. 1500.4 and 1500.5 for
consistency with proposed edits to the cross-referenced sections. CEQ
makes these proposed changes in the final rule. Additionally, the final
rule revises the language in paragraphs (a) and (b) of Sec. Sec.
1500.4 and 1500.5 to make the references to CEs and FONSIs consistent
with the language in Sec. Sec. 1501.4(a) and 1501.6(a), respectively.
CEQ also proposed 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 makes these changes in the final rule and corrects the cross-
reference. CEQ revises paragraph (h) of Sec. 1500.4 to add ``e.g.'' to
the citations to clarify that these are just examples of the useful
portions of EISs and to correct the cross-reference to background
material from Sec. 1502.16 to Sec. 1502.1. CEQ revises the citations
in paragraph (k) of Sec. 1500.4 to make them sequential. Finally, CEQ
revises paragraph (d) of Sec. 1500.5 for clarity.
5. Agency Authority (Sec. 1500.6)
CEQ proposed 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),
section 2(g) of E.O. 11514, and the 1978 regulations, but acknowledges
the possibility of different statutory authorities that may set forth
different requirements, such as timeframes. In the final rule, CEQ
makes the proposed changes and clarifies further that agencies
interpret the provisions of the Act as a mandate to view the agency's
policies and missions in the light of the Act's national environmental
objectives, to the extent NEPA is consistent with the agency's existing
authority. This is consistent with E.O. 11514, which provides that
Federal agencies shall ``[i]n carrying out their responsibilities under
the Act and this Order, comply with the [CEQ regulations] except where
such compliance would be inconsistent with statutory requirements.''
E.O. 11514, as amended by E.O. 11991, sec. 2(g). CEQ also proposed to
clarify that compliance
[[Page 43320]]
with NEPA means the Act ``as interpreted'' by the CEQ regulations. CEQ
makes this change in the final rule in Sec. 1500.6, as well as in
Sec. Sec. 1502.2(d) and 1502.9(b), to clarify that agencies should
implement the statute through the framework established in these
regulations. Finally, CEQ revises the sentence explaining the meaning
of the phrase ``to the fullest extent possible'' in section 102, to
replace ``unless existing law applicable to the agency's operations
expressly prohibits or makes compliance impossible'' with ``consistent
with Sec. 1501.1.'' As discussed in section II.C.1, Sec. 1501.1 sets
forth threshold considerations for assessing whether NEPA applies or is
otherwise fulfilled, including considerations related to other statutes
with which agencies must comply.
C. Revisions to NEPA and Agency Planning (Part 1501)
CEQ proposed significant changes to modernize and clarify part
1501. CEQ proposed to replace the current 40 CFR 1501.1, ``Purpose,''
because it is unnecessary and duplicative, with a new section, ``NEPA
threshold applicability analysis,'' to address threshold considerations
of NEPA applicability. CEQ proposed to add additional sections to
address the level of NEPA review and CEs. CEQ further proposed to
consolidate and clarify provisions on EAs and FONSIs, and relocate to
part 1501 from part 1502 the provisions on tiering and incorporation by
reference. CEQ also proposed 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. CEQ makes many of these changes in
the final rule with modifications as discussed further in this section.
1. NEPA Thresholds (Sec. 1501.1)
Since the enactment of NEPA, courts have examined the applicability
of NEPA to proposed agency activities and decisions, based on a variety
of considerations. Courts have found that NEPA is inapplicable when an
agency's statutory obligations clearly or fundamentally conflict with
NEPA compliance; when Congress has established requirements under
another statute that displace NEPA compliance in some fashion; when an
agency is carrying out a non-discretionary duty or obligation (in whole
or in part); or when environmental review and public participation
procedures under another statute satisfy the requirements (i.e., are
functionally equivalent) of NEPA.
CEQ proposed a new Sec. 1501.1 to provide a series of
considerations to assist agencies in a threshold analysis for
determining whether NEPA applies to a proposed activity or whether NEPA
is satisfied through another mechanism. CEQ proposed to title this
section ``NEPA threshold applicability analysis'' in the NPRM. CEQ
includes this provision in the final rule at Sec. 1501.1, ``NEPA
thresholds.'' This section recognizes that the application of NEPA by
Congress and the courts has evolved over the last four decades in light
of numerous other statutory requirements implemented by Federal
agencies. CEQ reorders these considerations in the final rule and adds
a new consideration to paragraph (a)(1)--whether another statute
expressly exempts a proposed activity or decision from NEPA. See, e.g.,
15 U.S.C. 793(c)(1) (exempting Environmental Protection Agency (EPA)
actions under the Clean Air Act); 33 U.S.C. 1371(c)(1) (exempting
certain EPA actions under the Clean Water Act); 42 U.S.C. 5159
(exempting certain actions taken or assistance provided within a
Presidentially declared emergency or disaster area); and 16 U.S.C.
3636(a) (exempting regulation of Pacific salmon fishing).
The second consideration in paragraph (a)(2) is whether compliance
with NEPA would clearly and fundamentally conflict with the
requirements of another statute. See, e.g., Flint Ridge Dev. Co. v.
Scenic Rivers Ass'n, 426 U.S. 776, 791 (1976) (concluding that the
Secretary of Housing and Urban Development could not comply with NEPA's
EIS requirement because it conflicted with requirements of the
Interstate Land Sales Full Disclosure Act). The third consideration in
paragraph (a)(3) is whether compliance with NEPA would be inconsistent
with congressional intent expressed in another statute. See, e.g.,
Douglas County v. Babbitt, 48 F.3d 1495, 1503 (9th Cir. 1995) (holding
that NEPA was displaced by the Endangered Species Act's procedural
requirements for designating critical habitat); and Merrell v. Thomas,
807 F.2d 776, 778-80 (9th Cir. 1986) (holding that NEPA did not apply
to the EPA's registration of pesticides under the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA)).
The fourth and fifth considerations in paragraphs (a)(4) and (5)
are whether the proposed activity or decision meets the definition of a
major Federal action generally and whether the proposed activity or
decision does not meet the definition because it is non-discretionary
such that the agency lacks authority to consider environmental effects
as part of its decision-making process. See, e.g., Pub. Citizen, 541
U.S. at 768-70 (concluding that, because the Federal Motor Carrier
Safety Administration lacked discretion to prevent the entry of Mexican
trucks into the United States, the agency did not need to consider
under NEPA the environmental effects of Mexican trucks' cross-border
operations that the President authorized); Nat'l Wildlife Fed'n v.
Sec'y of the U.S. Dep't. of Transp., 2020 U.S. App. LEXIS 17723, at
*15-18 (6th Cir. June 5, 2010) (applying Public Citizen and finding
NEPA not applicable as EPA lacked discretion to reject Clean Water Act
oil spill response plans that satisfied enumerated criteria); Citizens
Against Rails-To-Trails v. Surface Transp. Bd., 267 F.3d 1144, 1152-54
(D.C. Cir. 2001) (concluding that because the Surface Transportation
Board lacked significant discretion regarding issuance of a certificate
of interim trail use under the National Trails System Act, NEPA was not
applicable); South Dakota v. Andrus, 614 F.2d 1190, 1193-95 (8th Cir.
1980) (concluding that the granting of a mineral patent for a mining
claim was a non-discretionary, ministerial act and non-discretionary
acts should be exempt from NEPA). Consistent with Public Citizen, 541
U.S. at 768-70, NEPA applies to the portion of an agency decision that
is discretionary. In Public Citizen, the Supreme Court considered
whether the Federal Motor Carrier Safety Administration was required to
consider the effects of a non-discretionary action in its NEPA document
and concluded that it was not required to do so because it had no
authority to prevent the cross-border entry of Mexican motor carriers,
which was the result of presidential action. Id.
Finally, the sixth consideration in paragraph (a)(6) is whether the
proposed action is an action for which another statute's requirements
serve the function of agency compliance with NEPA. See, e.g., Envtl.
Def. Fund, Inc. v. U.S. EPA, 489 F.2d 1247, 1256-57 (D.C. Cir. 1973)
(concluding that the substantive and procedural standards of FIFRA were
functionally equivalent to NEPA and therefore formal compliance was not
necessary); W. Neb. Res. Council v. U.S. EPA, 943 F.2d 867, 871-72 (8th
Cir. 1991) (finding that the procedures of the Safe Drinking Water Act
were functionally equivalent to those required by NEPA); Cellular Phone
Taskforce v. Fed. Commc'ns Comm'n, 205 F.3d 82, 94-95 (2d Cir. 2000)
(concluding that the procedures followed by the Federal Communications
Commission were
[[Page 43321]]
functionally compliant with EA and FONSI requirements under NEPA).
Paragraph (b) of Sec. 1501.1 clarifies that agencies can make this
determination in their agency NEPA procedures in accordance with Sec.
1507.3(d) or on a case-by-case basis. The final rule adds a new
paragraph (b)(1) to state that agencies may request assistance from CEQ
in making a case-by-case determination under this section, and a new
paragraph (b)(2) to require agencies to consult with other Federal
agencies for their concurrence when making a determination where more
than one Federal agency administers the statute (e.g., the Endangered
Species Act (ESA)). Agencies may document these consultations, as
appropriate. Agencies will only apply the thresholds in this section
after consideration on a case-by-case basis, or after agencies have
determined whether and how to incorporate them into their own agency
NEPA procedures.
Some agencies already include information related to the
applicability of NEPA to their actions in their agency NEPA procedures.
For example, EPA's NEPA procedures include an applicability provision
that explains which EPA actions NEPA does not apply to, including
actions under the Clean Air Act and certain actions under the Clean
Water Act. See 40 CFR 6.101. The final rule codifies the agency
practice of including this information in agency NEPA procedures but
also provides agencies' flexibility to make case-by-case determinations
as needed.
2. Apply NEPA Early in the Process (Sec. 1501.2)
CEQ proposed to amend Sec. 1501.2, ``Apply NEPA early in the
process,'' designating the introductory paragraph as paragraph (a) and
changing ``shall'' to ``should'' and ``possible'' to ``reasonable.''
CEQ makes these changes in the final rule. 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 also 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 on how it can most effectively integrate the NEPA
review into the agency's decision-making process. Further, some courts
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. See, e.g., N.M. ex rel. Richardson v.
Bureau of Land Mgmt., 565 F.3d 683 (10th Cir. 2009); Metcalf v. Daley,
214 F.3d 1135 (9th Cir. 2000). As discussed above, only final agency
action is subject to judicial review under the APA. CEQ's view is that
agencies should have discretion with respect to timing, consistent with
the regulatory provisions in Sec. Sec. 1501.11 and 1502.4 for
deferring NEPA analysis to appropriate points in the decision-making
process. As noted in the NPRM, this change 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 29; see also Sec. Sec. 1500.4(b), 1502.2(a). Therefore, CEQ
makes these changes to clarify that agencies have discretion to
structure their NEPA processes in accordance with the rule of reason.
CEQ also proposed to change ``possible'' to ``reasonable'' in paragraph
(b)(4)(iii) and ``shall'' to ``should'' in the introductory paragraph
of Sec. 1502.5 for consistency with the changes to Sec. 1501.2. CEQ
makes these changes in the final rule.
CEQ also proposed to change ``planning and decisions reflect
environmental values'' to ``agencies consider environmental impacts in
their planning and decisions'' in paragraph (a). CEQ makes this change
in the final rule because ``consider environmental impacts'' provides
more explicit direction to agencies and is more consistent with the Act
and the CEQ regulations.
CEQ proposed to redesignate the remaining paragraphs in Sec.
1501.2 to list out other general requirements for agencies. In
paragraph (b)(1), the final rule removes the direct quote of NEPA
consistent with the Federal Register's requirements for the Code of
Federal Regualtions. In paragraph (b)(2), CEQ proposed to clarify that
agencies should consider economic and technical analyses along with
environmental effects. This change is consistent with section 102(2)(B)
of NEPA, which directs agencies, in consultation with CEQ, to identify
and develop methods and procedures to ensure environmental amenities
and values are considered along with economic and technical
considerations in decision making. CEQ makes this change in the final
rule and revises the second sentence in this paragraph to qualify that
agencies must review and publish environmental documents and
appropriate analyses at the same time as other planning documents
``whenever practicable.'' CEQ recognizes that it is not always
practicable to publish such documents at the same time because it can
delay publication of one or the other. Finally, CEQ proposed 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 \74\ and E.O. 13132, ``Federalism.'' \75\ CEQ
makes these changes in the final rule.
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\74\ Supra note 69.
\75\ 64 FR 43255 (Aug. 10, 1999).
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3. Determine the Appropriate Level of NEPA Review (Sec. 1501.3)
As discussed in the NPRM, 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 1978 regulations
provided 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 EAs. By using CEs and
EAs whenever appropriate, 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 1978 CEQ regulations provided 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
NPRM proposed to add a new section at Sec. 1501.3, ``Determine the
appropriate level of NEPA review.'' The proposal described 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. CEQ includes the proposal in the final rule at paragraph (a) of
Sec. 1501.3.
CEQ proposed to address the consideration of significance in
paragraph (b) since it is central to determining the appropriate level
of review. CEQ proposed to move the language from 40 CFR 1508.27,
``Significantly,'' since it did not contain a definition, but rather
set forth factors for considering whether an effect is significant, to
paragraph (b). CEQ also proposed to eliminate most of the
[[Page 43322]]
factors in favor of a simpler, more flexible approach for agencies to
assess significance. Specifically, CEQ proposed 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. The phrase ``potentially
affected environment'' relates more closely to physical, ecological,
and socio-economic aspects than ``context.'' The final rule reorganizes
several factors formerly categorized under ``intensity'' to clarify
further this distinction. The final rule uses the term ``degree''
because some effects may not necessarily be of an intense or severe
nature, but nonetheless should be considered when determining
significance. While 40 CFR 1508.27 used several different words to
explain what was meant by ``intensity,'' it also used ``degree''
numerous times. Therefore, the consistent use of ``degree'' throughout
is clearer. In the final rule, CEQ includes these proposed changes in
paragraph (b) with some additional revisions in response to comments.
CEQ clarifies in paragraph (b)(1) that agencies ``should'' (rather than
``may'') consider the affected area specific to the proposed action,
consistent with the construction of paragraph (b)(2), and the affected
area's resources. The final rule includes one example, listed species
and designated critical habitat under the Endangered Species Act, but
this could include any type of resource such as historic, cultural, or
park lands. The final rule also modifies the example of significance
varying with the setting, because there was some misunderstanding of
the proposed change from ``world'' to ``Nation.'' This sentence merely
serves as an example. Consistent with the NPRM, paragraph (b)(2)
addresses considerations of the degree of effects. CEQ moves short- and
long-term effects from ``affected environment'' in (b)(1) to ``degree''
in paragraph (b)(2)(i). CEQ proposed to exclude consideration of
controversy (40 CFR 1508.27(b)(4)) because the extent to which effects
may be controversial is subjective and is not dispositive of effects'
significance. Further, courts have interpreted controversy to mean
scientific controversy, which the final rule addresses within the
definition of effects, as the strength of the science informs whether
an effect is reasonably foreseeable. The controversial nature of a
project is not relevant to assessing its significance.
Additionally, CEQ proposed to remove 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. Sec.
1501.9(e) and 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. Commenters noted
that Sec. Sec. 1501.9 and 1502.4 are applicable only to EISs.
Therefore, in the final rule CEQ includes a sentence in paragraph (b)
stating that agencies should consider connected actions when
determining the significance of the effects of the proposed action.
4. Categorical Exclusions (Sec. 1501.4)
Under the 1978 regulations, agencies could categorically exclude
actions from detailed review where the agency has found in its agency
NEPA procedures that the action normally would not have significant
effects. Over the past 4 decades, Federal agencies have developed more
than 2,000 CEs.\76\ CEQ estimates that each year, Federal agencies
apply CEs to approximately 100,000 Federal agency actions that
typically require little or no documentation.\77\ While CEs are the
most commonly used level of NEPA review, CEQ has addressed CE
development and implementation in only one comprehensive guidance
document, see CE Guidance, supra note 29, and the 1978 regulations did
not address CEs in detail.
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\76\ See Council on Environmental Quality, List of Federal
Agency Categorical Exclusions (June 18, 2020), https://ceq.doe.gov/nepa-practice/categorical-exclusions.html.
\77\ 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 proposed to add a
new section on CEs in proposed Sec. 1501.4, ``Categorical
exclusions,'' to address in more detail the process by which an agency
considers whether a proposed action is categorically excluded under
NEPA.
Proposed paragraph (a) stated that agencies identify CEs in their
NEPA procedures. CEQ adds this paragraph to the final rule, reiterating
the requirement in Sec. 1507.3(e)(2)(ii) that agencies establish CEs
in their agency NEPA procedures. The NPRM proposed in paragraph (b) to
set forth the requirement to consider extraordinary circumstances once
an agency determines that a CE covers a proposed action, consistent
with the current requirement in 40 CFR 1508.4. CEQ includes this
provision in the final rule, changing the language from passive to
active voice. CEQ proposed in paragraph (b)(1) to 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. CEQ includes
this paragraph in the final rule, but revises it to address confusion
over whether CEQ is creating a ``mitigated CE.'' In the final rule,
paragraph (b)(1) provides that an agency can categorically exclude a
proposed action when an environmental resource or condition identified
as a potential extraordinary circumstance is present if the agency
determines that there are ``circumstances that lessen the impacts'' or
other conditions sufficient to avoid significant effects. This
paragraph clarifies that agencies' extraordinary circumstances criteria
are not intended to necessarily preclude the application of a CE merely
because a listed factor may be present or implicated. Courts have
rejected a ``mere presence'' test for CEs. Sierra Club v. U.S. Forest
Serv., 828 F.3d 402 (6th Cir. 2016); Sierra Club v. Bosworth, 510 F.3d
1016 (9th Cir. 2007); Utah Envtl. Cong. v. Bosworth, 443 F.3d 732 (10th
Cir. 2006); Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100
F.3d 1443, 1450 (9th Cir. 1996); cf. Rhodes v. Johnson, 153 F.3d 785
(7th Cir. 1998). Instead, the agency may consider in light of the
extraordinary circumstances criteria, whether the proposed action would
take place in such a way that it would not have significant effects, or
whether the agency could modify the proposed action to avoid the
extraordinary circumstances so that the action remains eligible for
categorical exclusion. While this reflects current practice for some
agencies,\78\ 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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\78\ See, e.g., Forest Service categorical exclusions, 36 CFR
220.6(b)(2); surface transportation categorical exclusions, 23 CFR
771.116-771.118.
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Finally, CEQ proposed paragraph (b)(2) to address agencies'
obligation to prepare an EA or EIS, as appropriate, if the agency
cannot categorically exclude
[[Page 43323]]
a proposed action. CEQ includes this provision in the final rule
revising the language to active voice and making it consistent with the
format of paragraph (b).
CEQ invited comment on the proposed revisions and asked whether it
should address any other aspects of CEs in its regulations. CEQ also
invited 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. After considering the comments, as
discussed in the Final Rule Response to Comments, CEQ is not including
any additional provisions on CEs in the final rule.
5. Environmental Assessments (Sec. 1501.5)
Under the 1978 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. CEQ estimates that Federal
agencies prepare over 10,000 EAs each year.\79\
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\79\ 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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CEQ proposed to consolidate the requirements for EAs that are
scattered throughout the 1978 regulations into a new Sec. 1501.5,
``Environmental assessments.'' CEQ proposed to revise paragraph (a) to
state when agencies are required to prepare EAs. CEQ proposed minor
clarifying edits to paragraph (b), which states that agencies may
prepare an EA to assist in agency planning and decision making. The
NPRM proposed to move the operative language regarding the requirements
for an EA from the definition of EA in 40 CFR 1508.9 to paragraph (c).
CEQ makes these proposed changes in the final rule.
Under the final rule, the format for an EA is flexible and
responsive to agency decision-making needs and the circumstances of the
particular proposal for agency action. Requirements for documenting the
proposed action and alternatives in an EA continue to be more limited
than EIS requirements. An agency must briefly describe the need for the
proposed action by 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 final rule continues 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 action 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 the final rule, an agency must describe the environmental
impacts of its proposed action and alternatives, providing enough
information to support a decision 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 the final rule, agencies should continue to list persons,
relevant agencies, and applicants involved in preparing the EA to
document agency compliance with the requirement to involve the public
in preparing EAs to the extent practicable, consistent with paragraph
(e). This may include incorporation by reference of 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 adds a new paragraph (d) to the final rule to move the language
from 40 CFR 1502.5(b) regarding when to begin preparing an EA that is
required for an application to the agency.\80\ Agencies may specify in
their NEPA procedures when an application is complete such that it can
commence the NEPA process. While the NPRM did not propose this change,
the move is consistent with CEQ's proposal to consolidate EA
requirements in Sec. 1501.5.
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\80\ CEQ also retains the statement in Sec. 1502.5(b), as
proposed, with respect to EISs.
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The final rule continues to provide that agencies may prepare EAs
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 proposed to move the public
involvement requirements for EAs from the current 40 CFR 1501.4(b) to
Sec. 1501.5 and change ``environmental'' to ``relevant'' agencies to
include all agencies that may contribute information that is relevant
to the development of an EA. CEQ makes these changes in paragraph (e)
in the final rule. CEQ also adds to and reorders the list to ``the
public, State, Tribal, and local governments, relevant agencies, and
any applicants,'' to address some confusion by public commenters that
interpreted relevant to modify the public and applicants. In addition,
this revision acknowledges that there will not be an applicant in all
instances. Consistent with the 1978 regulations, the final rule does
not specifically require publication of a draft EA for public review
and comment, but continues to require agencies to reasonably involve
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. 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
[[Page 43324]]
the particular circumstances of each proposed action.
The NPRM proposed to 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. CEQ adds this new requirement at
paragraph (f) in the final rule. As noted in the NPRM, while Question
36a of the Forty Questions, supra note 2, stated 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 presumptive EA page limit promotes more readable documents and
provides agencies flexibility to prepare longer documents, where
necessary, to support the agency's analysis. This 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. 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 proposed to add a new paragraph (f) to Sec. 1501.5 to clarify
that agencies also may apply, as appropriate, certain provisions in
part 1502 regarding incomplete or unavailable information, methodology
and scientific accuracy, and environmental review and consultation
requirements to EAs. CEQ includes this new paragraph at Sec. 1501.5(g)
in the final rule.
In addition to the new Sec. 1501.5, CEQ incorporates reference to
EAs in other sections of the regulations to codify existing agency
practice where it would make the NEPA process more efficient and
effective. As discussed in section II.C.9, CEQ makes 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 adds EAs to Sec. Sec.
1501.7 and 1501.8, as discussed in section II.C.7. Finally, as
discussed in section II.C.10, CEQ proposed 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. CEQ makes these changes in the final rule.
6. Findings of No Significant Impact (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 provisions and provide more
detailed requirements for FONSIs. CEQ proposed 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 proposed to strike paragraph (a) as the
requirements in that paragraph are addressed in Sec. 1507.3(d)(2)
(Sec. 1507.3(e)(2) in the final rule). As noted in section II.C.5, CEQ
proposed to move 40 CFR 1501.4(b) to Sec. 1501.5, ``Environmental
assessments.'' Similarly, CEQ proposed to strike 40 CFR 1501.4(d),
because Sec. 1501.9, ``Scoping,'' addresses this requirement. CEQ
makes these changes in the final rule.
CEQ proposed to make 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, consistent with the definition of
FONSI. The proposed rule had erroneously included the standard for
preparing an EA--``is not likely to have significant effects.'' CEQ
proposed to clarify in paragraph (a)(2) that the circumstances listed
in paragraphs (a)(2)(i) and (ii) are the situations where the agency
must make a FONSI available for public review. CEQ makes these changes
in the final rule.
CEQ proposed to move the operative requirement that a FONSI include
the EA or a summary from the definition of FONSI in 40 CFR 1508.13 to a
new paragraph (b). CEQ also proposed to change the requirement that the
FONSI include a summary of the EA to ``incorporate it by reference.''
Consistent with Sec. 1501.12, in order to incorporate the EA by
reference, the agency would need to briefly summarize it. Making this
change ensures that the EA is available to the public. CEQ makes these
changes in the final rule.
Finally, CEQ proposed a new paragraph (c) to address mitigation,
which CEQ includes in the final rule. The first sentence addresses
mitigation generally in a FONSI, requiring agencies to state the
authority for any mitigation adopted and any applicable monitoring or
enforcement provisions. This sentence applies to all FONSIs. CEQ omits
the ``means of'' mitigation from the final rule because it is
unnecessary and many commenters misunderstood its meaning or found it
confusing. The second sentence codifies the practice of mitigated
FONSIs, consistent with CEQ's Mitigation Guidance.\81\ This provision
requires the agency to identify the enforceable mitigation requirements
and commitments, which are those mitigation requirements and
commitments needed to reduce the effects below the level of
significance.\82\ 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
[[Page 43325]]
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. CEQ does not
intend this codification of CEQ guidance 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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\81\ The Mitigation Guidance, supra note 29, amended and
supplemented the Forty Questions, supra note 2, 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.''
\82\ As discussed in sections I.B.1 and II.B, NEPA is a
procedural statute and does not require adoption of a mitigation
plan. 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.
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7. Lead and Cooperating Agencies (Sec. Sec. 1501.7 and 1501.8)
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. In response to the ANPRM, CEQ received comments requesting
that CEQ update its regulations to clarify the roles of lead and
cooperating agencies.
CEQ proposed a number of modifications to Sec. 1501.7, ``Lead
agencies,'' and Sec. 1501.8, ``Cooperating agencies,'' (40 CFR 1501.5
and 1501.6, respectively, in the 1978 regulations) to improve
interagency coordination, make development of NEPA documents more
efficient, and facilitate implementation of the OFD policy. As stated
in the NPRM, 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.\83\ These modifications are consistent
with Questions 14a and 14c of the Forty Questions, supra note 2. CEQ
proposed to apply Sec. Sec. 1501.7 and 1501.8 to EAs as well as EISs
consistent with agency practice. CEQ makes these changes in the final
rule, but clarifies that the provisions apply to ``complex'' EAs and
not routine EAs where involving multiple agencies could slow down an
already efficient and effective process.\84\
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\83\ 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.
\84\ This is consistent with CEQ's reports on cooperating
agencies, which have shown that use of cooperating agencies for EAs
has remained low. Council on Environmental Quality, Attachment A,
The Fourth Report on Cooperating Agencies in Implementing the
Procedural Requirements of the National Environmental Policy Act
(NEPA) 1 (Oct. 2016), https://ceq.doe.gov/docs/ceq-reports/Attachment-A-Fourth-Cooperating-Agency-Report_Oct2016.pdf
(percentage of EAs with cooperating agencies was 6.8 percent for
Fiscal Years 2012 through 2015); see also Council on Environmental
Quality, Attachment A, The Second Report on Cooperating Agencies in
Implementing the Procedural Requirements of the National
Environmental Policy Act (NEPA) 2 (May 2012), https://ceq.doe.gov/docs/ceq-reports/Cooperating_Agency_Report_2005-11_Attachment_23May2012.pdf (percentage of EAs with cooperating
agencies was 5.9 percent for Fiscal Years 2005 through 2011).
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CEQ proposed to clarify in Sec. 1501.7(d) that requests for lead
agency designations should be sent in writing to the senior agency
officials of the potential lead agencies. CEQ makes this change in the
final rule. CEQ did not propose any changes to paragraphs (e) and (f)
of Sec. 1501.7, but makes clarifying edits by reorganizing phrases and
changing the language to active voice in the final rule.
Consistent with the OFD policy to ensure coordinated and timely
reviews, CEQ proposed to add a new paragraph (g) to Sec. 1501.7 to
require that Federal agencies evaluate proposals involving multiple
Federal agencies in a single EIS and issue a joint ROD \85\ or single
EA and joint FONSI when practicable. CEQ adds this paragraph to the
final rule with edits to the EA sentence to make the language
consistent with the EIS sentence.
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\85\ 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 FERC's adjudicatory process.
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CEQ proposed to move language from the 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 proposed 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.\86\ CEQ makes this move and addition in the final
rule. In response to comments, the final rule eliminates the phrase
``consistent with its responsibility as lead agency'' in paragraph
(h)(2) because it is non-specific and could cause agencies to reject
germane and informative scientific research.
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\86\ See OFD Framework Guidance, supra note 30, 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 29 (``[J]oint lead or cooperating
agencies should afford substantial deference to the [ ] agency's
articulation of purpose and need.'')
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CEQ proposed new paragraphs (i) and (j) in Sec. 1501.7, and (b)(6)
and (7) in Sec. 1501.8, to require development of and adherence to a
schedule for the environmental review of and any authorizations
required for a proposed action, and resolution of disputes and other
issues that may cause delays in the schedule. CEQ includes these
provisions in the final rule with minor edits for clarity. These
provisions are consistent with current practices at agencies that have
adopted elevation procedures pursuant to various statutes and
directives, including 23 U.S.C. 139, FAST-41, and E.O. 13807. In
response to comments, CEQ includes a new paragraph (b)(8) in Sec.
1501.8 requiring cooperating agencies to jointly issue environmental
documents with the lead agency, to the maximum extent practicable. This
addition is consistent with the goal of interagency cooperation and
efficiency.
CEQ proposed to move the operative language that State, Tribal, and
local agencies may serve as cooperating agencies from the definition of
cooperating agency (40 CFR 1508.5) to paragraph (a) of Sec. 1501.8.
Upon the request of the lead agency, 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. CEQ also proposed in paragraph (a) to
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. CEQ
makes these changes in the final rule with minor edits for clarity.
Finally, CEQ proposed clarifications and grammatical edits throughout
Sec. 1501.8. CEQ makes these changes in the final rule.
8. Scoping (Sec. 1501.9)
In response to the ANPRM, CEQ received comments requesting that CEQ
update its regulations related to scoping,
[[Page 43326]]
including comments requesting that agencies have greater flexibility in
how to conduct scoping. CEQ proposed to reorganize in more
chronological order, Sec. 1501.9, ``Scoping,'' (40 CFR 1501.7 in the
1978 regulations), consolidate all the requirements for the NOI and the
scoping process into the same section, and add paragraph headings to
improve clarity. CEQ makes these changes in the final rule with minor
edits as described further in this section.
Specifically, CEQ proposed to revise paragraph (a) to state the
general requirement to use scoping for EISs. Rather than requiring
publication of an NOI as a precondition to the scoping process, CEQ
proposed to modify paragraph (a) so that agencies can begin the scoping
process as soon as the proposed action is developed sufficiently 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 and should be transparent about
any work done prior to publication of the NOI. CEQ makes the changes as
proposed in the final rule.
Paragraph (b) addresses the responsibility of the lead agency to
invite cooperating and participating agencies as well as other likely
affected or interested persons. CEQ proposed to add ``likely'' to this
paragraph 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. CEQ makes this
change in the final rule. In the final rule, CEQ strikes ``on
environmental grounds'' from the parenthetical noting that likely
affected or interested persons include those who might not agree with
the action because the clause is unnecessarily limiting. Agencies
should invite the participation of those who do not agree with the
action irrespective of whether it is on environmental grounds.
The NPRM proposed to move the existing (b)(4) to paragraph (c),
``Scoping outreach.'' CEQ proposed to broaden the types of activities
agencies might hold during scoping, including meetings, publishing
information, and other means of communication to provide agencies
additional flexibility in how to reach interested or affected parties
in the scoping process. CEQ finalizes this change as proposed.
Paragraph (d) proposed to address the NOI requirements. CEQ
proposed a list of what agencies must include in an NOI to standardize
NOI format, achieve greater consistency across agencies, provide the
public with more information and 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 makes these changes in the
final rule with minor edits for clarity and edits to paragraph (d)(7)
for consistency with Sec. Sec. 1500.3 and 1502.17 and to correct the
cross-reference.
CEQ proposed 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 makes
this change in the final rule, but does not include the reference to
``similar actions'' in proposed paragraph (e)(1)(ii) because commenters
expressed confusion regarding whether the determination of the scope of
the environmental documentation, as discussed in proposed Sec.
1501.9(e)(1)(i)(C) was directly related to the discussion of the
``effects of the action'' as effects are defined in Sec. 1508.1(g). To
eliminate this confusion, CEQ strikes the language in proposed Sec.
1501.9(e)(1)(i)(C) (40 CFR 1508.25(a)(3)) regarding similar actions.
Further, CEQ notes that, in cases where the question of the
consideration of similar actions to determine the scope of the NEPA
documentation was raised, courts noted the discretionary nature of the
language (use of the word ``may'' and ``should'' in proposed Sec.
1501.9(e)(1)(i)(C) (40 CFR 1508.25(a)(3)) and have held that
determinations as to the scope of a NEPA document based on a
consideration of similar actions was left to the agency's discretion.
See e.g., Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387
F.3d 989, 1000-01 (9th Cir. 2004). CEQ also notes that the reference to
``other reasonable courses of action'' in paragraph (e)(2) are within
the judgement of the agency. Agencies have discretion to address
similar actions through a single analysis, pursuant to revised Sec.
1502.4(b).
Finally, paragraph (f) addresses other scoping responsibilities,
including identifying and eliminating from detailed study non-
significant issues, allocating assignments among lead and cooperating
agencies, indicating other related NEPA documents, identifying other
environmental review requirements, and indicating the relationship
between the environmental review and decision-making schedule. CEQ
retains this paragraph in the final rule as proposed with minor
grammatical edits.
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 proposed 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
2, 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 proposed in Sec. 1501.10, ``Time limits,'' to change
the introductory text to paragraph (a) and add a new paragraph (b) to
establish a presumptive time limit for EAs of one year and a
presumptive time limit for EISs of two years. However, the NPRM also
proposed that a senior agency official could approve in writing a
longer period. CEQ proposed to define the start and end dates of the
period consistent with E.O. 13807. CEQ makes these changes in the final
rule. CEQ eliminates the sentence regarding lead agency from paragraph
(a) because it is no longer needed given the revisions to this section
changing ``agency'' to ``senior agency official.'' In response to
comments, the final rule also adds ``FONSI'' to paragraph (b)(1) to
clarify that the time limit for EAs is measured from the date of
decision to prepare to the publication of an EA or FONSI, since
agencies may not publish
[[Page 43327]]
the EA separately. The final rule also clarifies that the time period
is measured from the date the agency decides to prepare an EA, since
applicants sometimes prepare EAs on behalf of agencies.
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.\87\ 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 proposed to
retain the factors for determining time limits in paragraph (c). CEQ
proposed to revise paragraph (c)(6) for clarity and strike paragraph
(c)(7) regarding controversial actions because it overlaps with
numerous other factors, and because whether or not an action is
controversial is not relevant to the analysis under NEPA. CEQ also
proposed to retain with edits for clarity the list of parts of the NEPA
process for which the senior agency official may set time limits in
paragraph (d). CEQ retains paragraphs (c) and (d) in the final rule
with the changes as proposed.
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\87\ See OFD Framework Guidance, supra note 30 (``[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 proposed conforming edits to Sec. 1500.5(g) to change
``establishing'' to ``meeting'' time limits and add ``environmental
assessment.'' CEQ makes these edits in the final rule.
10. Tiering (Sec. 1501.11)
CEQ proposed to move 40 CFR 1502.20, ``Tiering,'' to a new Sec.
1501.11 and revise it to make clear that this provision is applicable
to both EAs and EISs. CEQ proposed a number of revisions in Sec.
1501.11 to clarify when agencies can use existing studies and
environmental analyses in the NEPA process and when agencies would need
to supplement such studies and analyses. The revisions clarify that
agencies do not need to conduct site-specific analyses prior to an
irretrievable commitment of resources, which in most cases will not be
until the decision at the site-specific stage. CEQ makes these changes
with additional updates in the final rule.
Specifically, the final rule splits proposed paragraph (a) into two
paragraphs. In the new paragraph (a), CEQ changes ``are encouraged to''
to ``should'' and moves to the end of this paragraph the sentence
stating that tiering may also be appropriate for different stages of
actions. The new paragraph (b) addresses the relationship between the
different levels of tiered documents, and CEQ makes additional edits to
this paragraph for clarity.
CEQ also proposed to move the operative language addressing
specific examples of when tiering is appropriate from the definition of
tiering in 40 CFR 1508.28 to proposed paragraph (b). CEQ moves this
language to paragraph (c) in the final rule with the edits as proposed.
11. Incorporation by Reference (Sec. 1501.12)
CEQ proposed to move 40 CFR 1502.21, ``Incorporation by
reference,'' to a new Sec. 1501.12 and change ``environmental impact
statements'' to ``environmental documents'' because this provision is
applicable generally, not just to EISs. CEQ makes this change in the
final rule. CEQ makes additional changes in the final rule to revise
sentences from passive to active voice. In response to comments, CEQ
adds examples to the types of material that agencies may incorporate,
including planning studies and analyses.
D. Revisions to Environmental Impact Statements (Part 1502)
As stated in the NPRM, 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. Based on the Environmental
Protection Agency (EPA) weekly Notices of Availability published in the
Federal Register between 2010 and 2019, Federal agencies published
approximately 176 final EISs per year. CEQ proposed to update the
format, page length, and timeline to complete EISs to better achieve
the purposes of NEPA. CEQ also proposed several changes to streamline,
allow for flexibility in, 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 final rule continues to encourage application of NEPA early in the
process and early engagement with applicants for non-Federal projects.
1. Purpose of Environmental Impact Statement (Sec. 1502.1)
CEQ proposed to revise Sec. 1502.1 for consistency with the
statutory language of NEPA and make other non-substantive revisions for
clarity. CEQ makes these changes in the final rule. The final rule also
retitles this section.
2. Implementation (Sec. 1502.2)
CEQ proposed to strike the introductory text of Sec. 1502.2 as
unnecessary and revise the text in paragraphs (a) and (c) for clarity
and consistency with the language in the rule and regulatory text
generally. CEQ makes these changes in the final rule with minor
clarifying edits. The final rule clarifies in paragraph (d) that, in
preparing an EIS, agencies shall state how the alternatives considered
in it and decisions based on it serve the purposes of the statute as
interpreted in the CEQ regulations. The final rule strikes ``ultimate
agency'' in paragraph (e) because there may be multiple individuals
within certain departments or agencies that have decision-making
responsibilities, including where subunits have developed agency
procedures or NEPA compliance programs.
3. Statutory Requirements for Statements (Sec. 1502.3)
CEQ proposed to revise Sec. 1502.3 to make it a single paragraph,
remove cross-references to the definition, and make minor clarifying
edits. CEQ makes these changes in the final rule.
4. Major Federal Actions Requiring the Preparation of Environmental
Impact Statements (Sec. 1502.4)
CEQ proposed to revise Sec. 1502.4 to clarify in paragraph (a)
that a ``properly defined'' proposal is one that is based on the
statutory authorities for the proposed action. CEQ proposed to change
``broad'' and ``program'' to ``programmatic'' in this section, as well
as Sec. Sec. 1500.4(k) and 1506.1(c), since ``programmatic'' is the
term commonly used by NEPA practitioners. The NPRM proposed further
revisions to paragraph (b), including eliminating reference to
programmatic EISs that ``are sometimes required,'' to focus the
provision on the discretionary use of programmatic EISs in support of
clearly defined decision-making purposes. For consistency, CEQ proposed
to change the mandatory language to be discretionary in proposed
paragraph (c)(3) (paragraph (b)(1)(iii) in the final rule). As CEQ
stated in its 2014 guidance, programmatic NEPA reviews
[[Page 43328]]
``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.'' \88\ Other statutes or regulations may
grant discretion or otherwise identify circumstances for when to
prepare a programmatic EIS. See, e.g., National Forest Management Act,
16 U.S.C. 1604(g); 36 CFR 219.16. CEQ makes these changes in the final
rule, and reorganizes proposed paragraphs (c) and (d) to be paragraphs
(b)(1) and (2) since these paragraphs all address programmatic reviews.
Finally, CEQ proposed to add a new sentence to proposed paragraph (d)
(paragraph (b)(2) in the final rule) to clarify that when conducting
programmatic reviews, agencies may tier their analyses to defer
detailed analysis of specific program elements until they are ripe for
decisions that would involve an irreversible or irretrievable
commitment of resources. The final rule removes this latter clause and
simplifies it to elements ``ripe for final agency action'' because NEPA
review occurs pursuant to the APA and ``final agency action,'' as
construed in Bennett v. Spear, is the test for when judicial review can
commence. See 520 U.S. at 177-78.
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\88\ Programmatic Guidance, supra note 29, at 7.
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5. Timing (Sec. 1502.5)
For the reasons discussed in section II.C.2 and consistent with the
edits to Sec. 1501.2, CEQ proposed to change ``shall'' to ``should''
in the introductory text so that agencies can exercise their best
judgement about when to begin the preparation of an EIS. CEQ also
proposed to revise paragraph (b) to clarify that agencies should work
with potential applicants and applicable agencies before applicants
submit applications. CEQ makes these changes in the final rule. Also,
as noted in section II.C.7, CEQ revises paragraph (b) in the final rule
to only address EISs in this section and move the discussion of EAs to
Sec. 1501.5. Finally, CEQ adds ``and governments'' to ``State, Tribal,
and local agencies'' to be comprehensive and consistent with similar
changes made throughout the rule.
6. Interdisciplinary Preparation (Sec. 1502.6)
CEQ proposed minor edits to Sec. 1502.6 consistent with the global
changes discussed in section II.A. CEQ includes these changes in the
final rule and revises this provision from passive to active voice.
7. 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. As the President Carter
noted in 1977 regarding issuance of E.O. 11991, ``to be more useful to
decision[ ]makers and the public, [EISs] must be concise, readable, and
based upon competent professional analysis. They must reflect a concern
with quality, not quantity. We do not want [EISs] that are measured by
the inch or weighed by the pound.'' \89\ The core purpose of page
limits from the original regulations remains--documents must be a
reasonable length and in a readable format so that it is practicable
for the decision maker to read and understand the document in a
reasonable time period. If documents are unreasonable in their length
or unwieldly, there is a risk that they will not inform the decision
maker, thereby undermining the purposes of the Act. As the Supreme
Court noted in Metropolitan Edison Co. v. People Against Nuclear
Energy, ``[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.'' 460 U.S. at 776 (quoting Vt.
Yankee, 435 U.S. at 558). Therefore, CEQ proposed 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. CEQ makes these changes in the
final rule.
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\89\ The Environment--Message to the Congress, 1977 Pub. Papers
967, 985 (May 23, 1977).
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As captured in CEQ's updated report on the length of final EISs,
these documents average over 600 pages. See CEQ Length of EISs Report,
supra note 38. 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 proposed this change to ensure that agencies develop
EISs focused on significant effects and on the information useful to
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 Sec. 1507.2, senior agency officials should ensure
that agency staff have the resources and competencies necessary to
produce timely, concise, and effective environmental documents.
Decisions as to page length for these documents are therefore closely
related to an agency's decision as to how to structure its decision-
making process, and for that reason must ultimately remain within the
discretion of the agency.
8. Writing (Sec. 1502.8)
CEQ did not propose any changes to Sec. 1502.8. In the final rule,
CEQ revises this provision to correct grammatical errors, including
revising it from passive to active voice.
9. Draft, Final and Supplemental Statements (Sec. 1502.9)
CEQ proposed to include headings for each of the paragraphs in
Sec. 1502.9, ``Draft, final, and supplemental statements,'' to improve
readability. CEQ proposed edits to paragraph (b) for clarity, replacing
``revised draft'' with ``supplemental draft.'' CEQ makes these changes
in the final rule and makes additional clarifying edits in Sec.
1502.9, including to revise the language from passive to active voice.
CEQ also received many comments in response to the ANPRM requesting
clarification regarding when supplemental statements are required. CEQ
proposed revisions to paragraph (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. CEQ makes this change in the
final rule. As noted in the NPRM, this 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
[[Page 43329]]
may 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,
CEQ proposed a new paragraph (d)(4) to 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. CEQ adds this paragraph to the final
rule, codifying the existing practice of several Federal agencies, such
as the 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 Corps' Supplemental Information Report (section 13(d) of
Engineering Regulation 200-2-2).
10. Recommended Format (Sec. 1502.10)
CEQ proposed to revise Sec. 1502.10 to provide agencies with more
flexibility in formatting an EIS given that most EISs are prepared and
distributed electronically. Specifically, CEQ proposed 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. Proposed changes to 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 makes these changes in the final rule.
11. Cover (Sec. 1502.11)
CEQ proposed to retitle and amend Sec. 1502.11 to remove the
reference to a ``sheet'' since agencies prepare EISs electronically.
CEQ also proposed 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, the NPRM proposed that 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.\90\ CEQ also proposed this amendment to 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.\91\ CEQ noted in the NPRM that 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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\90\ 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.
\91\ 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) (``GAO NEPA Report''), 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 28,
at p. 65.
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CEQ adds this new paragraph (g) in the final rule with additional
changes to clarify that agencies should provide the estimate on the
final EIS, and that it should include the costs of preparing both the
draft EIS and the final EIS. The final rule also adds a sentence to
clarify that agencies should include the costs of cooperating and
participating agencies if practicable. If not practicable, agencies
must so indicate. 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 and include them in their implementing
procedures.
12. Summary (Sec. 1502.12)
CEQ proposed to change ``controversy'' to ``disputed'' in Sec.
1502.12. CEQ makes this and grammatical changes in the final rule. This
change will better align the second clause of the sentence, ``areas of
disputed issues raised by agencies and the public,'' with the final
clause of the sentence, ``and the issues to be resolved (including the
choice among alternatives).''
13. 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 focus of a 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 the agency will identify ``reasonable alternatives''
to the proposed action. 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 29 (``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 30;
Connaughton Letter, supra note 29.
[[Page 43330]]
Agencies should tailor the purpose and need statement to meet the
authorization requirements of both the lead and cooperating agencies.
Consistent with CEQ guidance and in response to the ANPRM comments,
CEQ proposed 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 proposed to strike ``to which the
agency is responding in proposing the alternatives including'' to focus
on the proposed action. CEQ further proposed, 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 proposed 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. See, e.g.,
Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C.
Cir. 1991) (agencies must consider the relevant factors including the
needs and goals of the applicants and Congress' views as expressed in
the agency's statutory authorization). This addition is consistent with
the definition of reasonable alternatives, which must meet the goals of
the applicant, where applicable. CEQ revises Sec. 1502.13 in the final
rule consistent with the NPRM proposal.
14. Alternatives Including the Proposed Action (Sec. 1502.14)
CEQ also received many comments on the ANPRM requesting
clarification regarding ``alternatives'' under the regulations. This
section of an EIS describes 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, 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 proposed changes to Sec. 1502.14, ``Alternatives including the
proposed action,'' to simplify and clarify the language and provide
further clarity on the scope of the alternatives analysis in an EIS.
Specifically, CEQ proposed to revise the introductory paragraph to
remove the colloquial language, including ``heart of'' the EIS and
``sharply defining,'' and clarify that the alternatives section of the
EIS should present the environmental impacts in comparative form. CEQ
makes these changes in the final rule.
In paragraph (a), CEQ proposed to delete ``all'' before
``reasonable alternatives'' and add ``to the proposed action''
afterward for clarity because NEPA does not require consideration of
all alternatives and does not provide 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 long 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.''
Forty Questions, supra note 2, at Question 1b. CEQ makes this change in
the final rule and rephrases paragraph (a) from passive to active
voice.
As stated in the NPRM, 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 and by the inherent practical limitations of
the decision-making process. 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 including significant
alternatives that are called to its attention by other agencies,
organizations, communities, or a member of the public.\92\ As discussed
in section II.C.8, to aid agencies in identification of alternatives,
Sec. 1501.9, ``Scoping,'' requires agencies to request identification
of potential alternatives in the NOI. 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).
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\92\ Additionally, by crafting alternatives, agencies can
``bound'' different options and develop information on intermediate
options that occupy the logical space in between different formal
alternatives. See, e.g., H.A. Simon, ``Bounded Rationality,'' in
Utility and Probability (J. Eatwell, M. Milgate, & P. Newman P. eds.
1990).
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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. Furthermore, agencies should limit alternatives to those
available to the decision maker at the time of decision.
For consistency with this change, CEQ proposed 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.'' CEQ
makes these changes in the final rule.
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 proposed to strike 40 CFR
1502.14(c) requiring consideration of reasonable alternatives not
within the jurisdiction of the lead agency 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. CEQ removes this paragraph in the final rule. Further, the new
definition of ``reasonable alternatives'' excludes alternatives outside
the agency's jurisdiction when 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 its jurisdiction when necessary for the agency's decision-making
process such as when preparing an EIS to address
[[Page 43331]]
legislative EIS requirements pursuant to Sec. 1506.8 and to address
specific congressional directives.
A concern raised by many ANPRM commenters is that agencies have
limited resources and that it is important that agencies use those
resources effectively. The provisions inviting commenters to identify
potential alternatives will help to inform agencies as to how many
alternatives are reasonable to consider, and allow agencies to assess
whether any particular submitted alternative is reasonable to consider.
Analyzing a large number of alternatives, particularly where it is
clear that only a few alternatives would be economically and
technically feasible and could be realistically implemented by the
applicant, can divert limited agency resources. CEQ invited 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 sought 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). CEQ did not receive
sufficient information to establish a minimum, but adds a new paragraph
(f) to the final rule to state that agencies shall limit their
consideration to a reasonable number of alternatives. The revisions to
the regulations to promote earlier solicitation of information and
identification of alternatives, and timely submission of comments, will
assist agencies in establishing how many alternatives are reasonable to
consider and assessing whether any particular submitted alternative is
reasonable to consider.
15. Affected Environment (Sec. 1502.15)
CEQ proposed 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 focuses on those aspects of the
environment that the proposed action affects. CEQ makes this change in
the final rule. Additionally, the final rule adds a clause to emphasize
that the affected environment includes reasonably foreseeable
environmental trends and planned actions in the affected areas. This
change responds to comments raising concerns that eliminating the
definition of cumulative impact (40 CFR 1508.7) would result in less
consideration of changes in the environment. To the extent
environmental trends or planned actions in the area(s) are reasonably
foreseeable, the agency should include them in the discussion of the
affected environment. Consistent with current agency practice, this
also may include non-Federal planned activities that are reasonably
foreseeable.
In response to the NPRM, commenters expressed concerns that impacts
of climate change on a proposed project would no longer be taken into
account. Under the final rule, agencies will consider predictable
environmental trends in the area in the baseline analysis of the
affected environment. Trends determined to be a consequence of climate
change would be characterized in the baseline analysis of the affected
environment rather than as an effect of the action. Discussion of the
affected environment should be informative but should not be
speculative.
16. Environmental Consequences (Sec. 1502.16)
CEQ proposed to reorganize Sec. 1502.16, ``Environmental
consequences.'' CEQ proposed to designate the introductory paragraph as
paragraph (a), move up the sentence that it should not duplicate the
alternatives discussion, and create subordinate paragraphs (a)(1)
through (10) for clarity. In paragraph (a)(1), CEQ proposed to
consolidate into one paragraph the requirements regarding effects
scattered throughout 40 CFR 1502.16, including paragraphs (a), (b), and
(d), to include a discussion of the effects of the proposed action and
reasonable alternatives. Also consistent with the definition of
effects, CEQ proposed to strike references to direct, indirect, and
cumulative effects. The combined discussion should focus on those
effects that are reasonably foreseeable and have a reasonably close
causal relationship to the proposed action, consistent with the
proposed revised definition of effects addressed in Sec. 1508.1(g).
CEQ proposed to move 40 CFR 1502.16(c) and (e) through (h) to be
paragraphs (a)(5) through (9). To align with the statute, CEQ also
proposed to add a new paragraph (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.
CEQ makes these changes in the final rule with minor edits to clarify
that ``this section'' in paragraph (a) refers to the ``environmental
consequences'' section; address the dangling modifier, ``their
significance,'' in paragraph (a)(1); correct the usage of ``which'' and
``that'' throughout; and clarify the language in paragraph (b).
Further, CEQ proposed 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 proposed to amend the language for clarity,
explain that the agency makes the determination of when consideration
of economic and social effects is interrelated with consideration of
natural or physical environmental effects at which point the agency
should give appropriate consideration to those effects, and strike
``all of'' as unnecessary. CEQ makes these changes in the final rule.
17. Submitted Alternatives, Information, and Analyses (Sec. 1502.17)
To ensure agencies have considered the alternatives, information,
and analyses submitted by the public, including State, Tribal, and
local governments as well as individuals and organizations, CEQ
proposed to add a new Sec. 1502.17 to require a new ``submitted
alternatives, information, and analyses'' section in draft and final
EISs. CEQ includes this new provision in the final rule with some
modifications to separate the requirements for draft and final EISs, as
discussed in this section.
To ensure agencies receive and consider relevant information as
early in the process as possible, Sec. 1501.9, ``Scoping,'' requires
agencies to specifically solicit such information in their notices of
intent. Under Sec. 1502.17, agencies must include a summary in the EIS
identifying all alternatives, information, and analyses the agency
received from State, Tribal, and local governments and other public
commenters. In developing the summary, agencies may refer to other
relevant sections of the EIS or to appendices. A new paragraph (a)(1)
requires agencies to append to the draft EIS or otherwise publish the
comments received during scoping and, consistent with the proposed
rule, paragraph (a)(2) requires the lead agency to invite comment on
the summary. Finally, paragraph (b) requires agencies to prepare a
summary in the final EIS based on all comments received on the draft
EIS.
CEQ proposed to require in a new Sec. 1502.18, ``Certification of
alternatives, information, and analyses section,'' that, informed by
the alternatives, information, and analyses section
[[Page 43332]]
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 proposed Sec. 1505.2(e). CEQ moves this
provision to Sec. 1505.2(b) in the final rule, as discussed in further
detail in section II.G.2.
18. List of Preparers (Sec. 1502.18)
CEQ proposed to move ``List of preparers'' from Sec. 1502.17 to
Sec. 1502.19 to accommodate the two new sections addressing submitted
alternatives, information, and analyses. The final rule moves this
section to Sec. 1502.18 and makes minor revisions to change the
language from passive to active voice and remove the erroneous cross-
references.
19. Appendix (Sec. 1502.19)
CEQ proposed to move ``Appendix'' from Sec. 1502.18 to Sec.
1502.20 and revise the language for clarity. The final rule moves this
provision to Sec. 1502.19 with additional clarifying revisions. The
final rule also adds a new paragraph (d) to reflect the potential
appendix for scoping comments on alternatives, information, and
analyses pursuant to Sec. 1502.17(a)(1) and a new paragraph (e) for
the potential appendix of draft EIS comments pursuant to Sec. Sec.
1503.1 and 1503.4(b).
20. Publication of the Environmental Impact Statement (Sec. 1502.20)
CEQ proposed to move ``Circulation of the environmental impact
statement'' from Sec. 1502.19 to Sec. 1502.21 and retitle it
``Publication of the environmental impact statement.'' CEQ moves this
to Sec. 1502.20 in the final rule. CEQ proposed to modernize this
provision, changing circulate to publish and eliminating the option to
circulate the summary of an EIS given that agencies electronically
produce most EISs. CEQ proposed to require agencies to transmit the EIS
electronically, but provide for paper copies by request. CEQ makes
these changes in the final rule.
21. Incomplete or Unavailable Information (Sec. 1502.21)
CEQ proposed several revisions to proposed Sec. 1502.22,
``Incomplete or unavailable information,'' which CEQ redesignates as
Sec. 1502.21 in the final rule. Specifically, CEQ proposed to further
subdivide the paragraphs for clarity and strike the word ``always''
from paragraph (a) as unnecessarily limiting and inconsistent with the
rule of reason, and replaced the term ``exorbitant'' with
``unreasonable'' in paragraphs (b) and (c), which is consistent with
CEQ's description of ``overall cost'' considerations in its 1986
promulgation of amendments to this provision.\93\ CEQ reiterates that
the term ``overall cost'' as used in this section includes ``financial
costs and other costs such as costs in terms of time (delay) and
personnel.'' \94\ CEQ invited 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.'' CEQ does not include any definition in the final
rule.
---------------------------------------------------------------------------
\93\ 51 FR at 15622 (Apr. 25, 1986).
\94\ Id.
---------------------------------------------------------------------------
For clarity and in response to comments, the final rule inserts
``but available'' in paragraph (b) to clarify that agencies will
continue to be required to obtain available information essential to a
reasoned choice between alternatives where the overall costs are not
unreasonable and the means of obtaining that information are known.\95\
New scientific or technical research is unavailable information and is
addressed in Sec. 1502.23. Where the overall costs are unreasonable or
means of obtaining the information are not known, agencies will
continue to be required to disclose in the EIS that information is
incomplete or unavailable and provide additional information to assist
in analyzing the reasonably foreseeable significant adverse impacts.
However, Sec. 1502.23 does not require agencies to undertake new
scientific and technical research to inform their analyses.
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\95\ See, e.g. Pub. Citizen, 541 U.S. at 767 (``Also, inherent
in NEPA and its implementing regulations is a `rule of reason,'
which ensures that agencies determine whether and to what extent to
prepare an EIS based on the usefulness of any new potential
information to the decision[-]making process.''); see also Marsh,
490 U.S. at 373-74 (agencies should apply a ``rule of reason'').
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Finally, CEQ proposed to eliminate 40 CFR 1502.22(c) addressing the
applicability of the 1986 amendments to this section because this
paragraph is obsolete. CEQ does not include this provision in the final
rule.
22. Cost-Benefit Analysis (Sec. 1502.22)
CEQ did not propose changes to the cost-benefit analysis section
other than an update to the citation. In the final rule, CEQ moves this
provision from Sec. 1502.23 to Sec. 1502.22 and adds a parenthetical
after ``section 102(2)(B) of NEPA'' that paraphrases the statutory text
relating to considering unquantified environmental amenities and values
along with economic and technical considerations. This is consistent
with the policy established in section 101(a), which also refers to
fulfilling the social, economic, and other requirements of present and
future generations of Americans. Finally, CEQ revises the language for
clarity, including changing from passive to active voice.
23. Methodology and Scientific Accuracy (Sec. 1502.23)
CEQ proposed revisions to update proposed Sec. 1502.24, which CEQ
redesigantes Sec. 1502.23 in the final rule. The NPRM proposed to
broaden this provision to environmental documents and CEQ makes this
change in the final rule. CEQ proposed to clarify that agencies must
make use of reliable existing data and resources when they are
available and appropriate. CEQ also proposed to revise this section 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. As noted in the NPRM, these
changes will promote the use of reliable data, including information
gathered using modern technologies. CEQ makes these changes in the
final rule with minor changes. The final rule revises the sentence
regarding placing the discussion of methodology in an appendix from
singular to plural for consistency with the rest of the language in
this section. In response to comments, CEQ moves the proposed sentence
regarding new scientific and technical research to a new sentence at
the end of the section and adds a sentence clarifying that nothing in
this provision is intended to prohibit agencies from compliance with
the requirements of other statutes pertaining to scientific and
technical research. Agencies must continue to conduct surveys and
collect data where required by other statutes.
24. Environmental Review and Consultation Requirements (Sec. 1502.24)
CEQ proposed to revise this section to clarify that agencies must
integrate, to the fullest extent possible, their NEPA analysis with all
other applicable Federal environmental review laws and Executive orders
in furtherance of the OFD policy established by E.O. 13807 and to make
the environmental review process more efficient.\96\ CEQ redesignates
this section in the final rule to Sec. 1502.24, updates a statutory
[[Page 43333]]
citation, and revises the text as proposed.
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\96\ 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. Revisions to Commenting on Environmental Impact Statements (Part
1503)
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 EIS 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. CEQ proposed to
modernize part 1503 given modern technologies not available at the time
of the 1978 regulations. In particular, the proposed regulations
encouraged 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. Additionally, CEQ proposed changes to encourage
commenters to provide information early and to require comments to be
as specific as possible to ensure agencies can consider them in their
decision-making process. CEQ finalizes many of the proposed changes
with modifications as this section discusses in further detail.
1. Inviting Comments and Requesting Information and Analyses (Sec.
1503.1)
CEQ proposed to retitle and revise Sec. 1503.1, ``Inviting
comments and requesting information and analyses,'' to better reach
interested and affected parties and ensure agencies receive the
relevant information they need to complete their analyses. CEQ proposed
to revise paragraphs (a)(2)(i) and (ii) to include State, Tribal and
local agencies and governments to be comprehensive and consistent with
the addition of ``Tribal'' as discussed in section II.A. CEQ proposed
to eliminate the obsolete reference to OMB Circular A-95 from paragraph
(a)(2)(iii) and move paragraphs (a)(3) and (4) to (a)(2)(iv) and (v),
respectively, since these are additional parties from which agencies
should request comments. CEQ also proposed in paragraph (a)(2)(v) to
give agencies flexibility to tailor their public involvement process to
more effectively reach interested and affected parties by soliciting
comments ``in a manner designed to inform'' parties interested or
affected ``by the proposed action.'' CEQ makes these changes in the
final rule.
CEQ also proposed to add 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). CEQ includes this new paragraph in the final rule with
revisions to clarify that agencies should invite comments on the
submitted alternatives, information, and analyses generally as well as
the summary required under Sec. 1502.17, rather than on the
completeness of the summary, as proposed. Interested parties who may
seek to challenge the agency's decision 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.
In paragraph (b), CEQ proposed to require agencies to provide a 30-
day comment period on the final EIS's submitted alternatives,
information and analyses section. As noted in the discussion of Sec.
1500.3(b) in section II.B.3, CEQ does not include this requirement in
the final rule. However, the final rule adds language that if an agency
requests comments on a final EIS before the final decision, the agency
should set a deadline for such comments. This provides agencies the
flexibility to request comments on a final EIS. Agencies may use this
option where it would be helpful to inform the agency's decision making
process.
Finally, CEQ proposed a new paragraph (c) to 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 includes this proposed paragraph
in the final rule.
2. Duty To Comment (Sec. 1503.2)
Section 1503.2, ``Duty to comment,'' addresses the obligations of
other agencies to comment on an EIS. CEQ proposed to clarify that this
provision applies to cooperating agencies and agencies authorized to
develop and enforce environmental standards. CEQ makes this change in
the final rule and makes additional revisions to change the language
from passive to active voice.
3. Specificity of Comments and Information (Sec. 1503.3)
CEQ proposed to revise paragraph (a) and retitle 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 proposed in this paragraph
that comments should explain why the issues raised are 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. In
addition, CEQ proposed in this paragraph that comments should reference
the section or page of the draft EIS, propose specific changes to those
parts of the statement, where possible, and include or describe the
data sources and methodologies supporting the proposed changes. 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 mistake was made . . . ; it must show
why the mistake was of possible significance in the results . . . .''
(quoting Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 394 (D.C.
Cir. 1973)). CEQ includes these changes in the final rule to ensure
that agencies are alerted to all interested and affected parties'
concerns, but changes ``significant'' to ``important'' issues in the
second sentence to avoid confusion with significant effects. Nothing in
these revisions should be construed to limit public comment to those
members of the public with scientific or technical expertise, and
agencies should continue to solicit comment from all interested and
affected members of the public. Consistent with the goal of promoting a
manageable process and a meaningful focus on pertinent issues, CEQ also
clarifies that commenters should submit information and raise issues as
early in the process as possible, including during scoping to the
extent practicable. Commenters should timely submit all comments and
make their comments as specific as possible to promote informed and
timely decision making.
CEQ also proposed a new paragraph (b) to emphasize that comments on
the submitted alternatives, information, and analyses section should
identify any additional alternatives, information, or
[[Page 43334]]
analyses not included in the draft EIS, and should be as specific as
possible. The proposal required comments and objections to be raised
within 30 days of publication of the notice of availability of the
final EIS and noted that comments and objections not provided within
those 30 days are considered exhausted and forfeited under Sec.
1500.3(b). In the final rule, CEQ includes this paragraph with some
changes. The final rule provides that comments should be on the
submitted alternatives, information, and analyses themselves as well as
the summary that Sec. 1502.17 requires and be as specific as possible.
It further provides that comments and objections on the draft EIS must
be raised within the comment period provided by the agency, consistent
with Sec. 1506.11. The final rule does not include the 30-day comment
period, as discussed in sections II.B.3 and II.E.1; however, it
provides that if the agency requests comments on the final EIS,
comments and objections must be raised within the comment period. The
final rule also provides that comments and objections not provided
within the relevant comment periods are considered unexhausted and
forfeited under Sec. 1500.3(b).
CEQ proposed to change ``commenting'' agency to ``participating''
agency in paragraph (c), and ``entitlements'' to ``authorizations'' in
paragraph (d). CEQ makes these changes in the final rule. Finally, CEQ
proposed to broaden paragraph (e) to require cooperating agencies with
jurisdiction by law to specify the mitigation measures they consider
necessary for permits, licenses, or related requirements, including the
applicable statutory authority. CEQ includes this change in the final
rule because it will provide greater transparency and clarity to the
lead agency and the public when mitigation is required under another
statute.
4. Response to Comments (Sec. 1503.4)
In practice, the processing of comments can require substantial
time and resources. CEQ proposed 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 proposed to clarify that an agency may
respond to comments individually or collectively. Consistent with this
revision, CEQ proposed 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 includes these changes with some modifications in
the final rule. Specifically, CEQ changes ``individually'' to
``individual'' and ``collectively'' to ``groups of comments'' to
clarify that agencies may respond to individual comments or group and
respond once to a group of comments addressing the same issue. CEQ also
modifies paragraph (a) introductory text to make clear that the list in
paragraphs (a)(1) through (5) is how the agency may respond to
comments. Finally, CEQ adds a clause to paragraph (a)(5) to reinforce
that agencies do not have to respond to each comment individually.
Under the 1978 regulations, agencies have had flexibility in how they
structure their responses to comments, and CEQ does not consider this
clarification to be a change in position.
CEQ proposed to clarify in paragraph (b) that agencies must append
comments and 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 CEQ Length of EISs Report,
supra note 38. CEQ makes this change in the final rule. As noted in the
NPRM, these changes do not preclude an agency from summarizing or
discussing specific comments in the EIS as well.
Finally, CEQ proposed to amend paragraph (c) for clarity. CEQ makes
the proposed changes and additional clarifying edits in the final rule.
F. Revisions to Pre-Decisional Referrals to the Council of Proposed
Federal Actions Determined To Be Environmentally Unsatisfactory (Part
1504)
CEQ proposed edits to part 1504, ``Pre-decisional Referrals to the
Council of Proposed Federal Actions Determined to be Environmentally
Unsatisfactory,'' to improve clarity, including grammatical
corrections. CEQ also proposed to reference specifically EAs in this
part. Although infrequent, agencies have made referrals to CEQ on EAs.
CEQ also proposed a minor revision to the title of part 1504, striking
``Predecision'' and inserting ``Pre-decisional.'' CEQ makes these
changes in the final rule.
1. Purpose (Sec. 1504.1)
Section 1504.1, ``Purpose,'' addresses the purpose of part 1504,
including CEQ referrals by the EPA. Section 309 of the Clean Air Act
(42 U.S.C. 7609) requires 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, as stated in
paragraph (b). The final rule revises this paragraph for clarity,
changing it from passive to active voice. Paragraph (c) provides that
other Federal agencies also may prepare such reviews. In the NPRM, CEQ
proposed to change ``may make'' to ``may produce'' in this paragraph.
The final rule changes this phrase to ``may prepare'' since ``prepare''
is the commonly used verb in these regulations.
2. Criterial for Referral (Sec. 1504.2)
CEQ proposed to change ``possible'' to ``practicable'' in the
introductory paragraph of Sec. 1504.2, ``Criteria for referral.'' CEQ
makes this change in the final rule as discussed in section II.A.
Consistent with the NEPA statute, CEQ proposed to add economic and
technical considerations to paragraph (g) of Sec. 1504.2, ``Criteria
for referrals.'' CEQ includes this change in the final rule.
3. Procedure for Referrals and Response (Sec. 1504.3)
In Sec. 1504.3, ``Procedure for referrals and response,'' CEQ
proposed changes to simplify and modernize the referral process to
ensure it is timely and efficient. CEQ proposed to change the language
in this section from passive to active voice and make other clarifying
edits to the language. CEQ includes these changes with some additional
clarifying edits in the final rule. Specifically, in paragraphs (a)(1)
and (2), CEQ changes ``advise'' and ``such advice'' to ``notify'' and
``a notification'' respectively. CEQ proposed to eliminate the
exception in paragraph (a)(2) for statements that do not contain
adequate information to permit an assessment of the matter's
environmental acceptability. CEQ removes this clause in the final rule.
The referring agency should provide the lead agency and CEQ with as
much information as possible, including identification of when the
information is inadequate to permit an assessment. In paragraph (a)(4),
CEQ changes ``such advice'' to ``the referring agency's views'' in the
final rule to clarify what the referring agency is sending to CEQ.
In paragraph (b), CEQ proposed to change ``commenting agencies'' to
``participating agencies,'' a change CEQ proposed throughout the rule,
and to add a timeframe for referrals of EAs. CEQ makes these changes in
the final rule. CEQ proposed to strike from paragraph (c)(1) the clause
requiring the referral request that no action be taken to implement the
matter until CEQ takes
[[Page 43335]]
action. CEQ removes this clause in the final rule because it is
unnecessarily limiting. Agencies should have the flexibility to
determine what they are requesting of the lead agency when making a
referral, which may include a request not to take any action on the
matter.
CEQ proposed to change ``material facts in controversy'' to
``disputed material facts'' in paragraph (c)(2)(i) for clarity and to
simplify paragraph (c)(2)(iii) to focus on the reasons for the
referral, which may include that the matter is environmentally
unsatisfactory. CEQ proposed to revise paragraph (d)(2) to emphasize
that the lead agency's response should include both evidence and
explanations, as appropriate. CEQ proposed to revise paragraph (e) to
simplify the process and to provide direction to applicants regarding
the submittal of their views to the CEQ. CEQ proposed to strike the
reference to public meetings or hearings in paragraph (f)(3) to provide
more flexibility to CEQ in how it obtains additional views and
information, which could include a public meeting or hearing. However,
there may be other, more effective mechanisms to collect such
information, including through use of current technologies. CEQ makes
these changes in the final rule.
Finally, CEQ proposed to modify paragraph (h) to clarify that the
referral process is not a final agency action that is judicially
reviewable and to remove the requirement that referrals be conducted
consistent with the APA where a statute requires that an action be
determined on the record after an opportunity for a hearing. Where
other statutes govern the referral process, those statutes continue to
apply, and these regulations do not need to speculate about what
process might be required. Therefore, CEQ eliminates this language in
the final rule and replaces it with the clarification that the referral
process does not create a private right of action because, among other
considerations, there is no final agency action.
G. Revisions to NEPA and Agency Decision Making (Part 1505)
1. Remove and Reserve Agency Decisionmaking Procedures (Sec. 1505.1)
In the NPRM, CEQ proposed to move the text of 40 CFR 1505.1,
``Agency decisionmaking procedures,'' to Sec. 1507.3(b). As discussed
further in section II.I.3, CEQ makes this change in the final rule and
reserves Sec. 1505.1 for future use.
2. Record of Decision in Cases Requiring Environmental Impact
Statements (Sec. 1505.2)
CEQ proposed to redesignate the introductory paragraph of Sec.
1505.2, ``Record of decision in cases requiring environmental impact
statements,'' as paragraph (a) and revise it to require agencies to
``timely publish'' a ROD. CEQ also proposed to clarify that the CEQ
regulations allow for ``joint'' RODs by two or more Federal agencies;
this change is also consistent with the OFD policy and E.O. 13807.
Finally, CEQ proposed to remove references to OMB Circular A-95 as
noted previously in section II.A.
CEQ proposed clarifying edits to proposed paragraphs (a) and (c)
(paragraphs (a)(1) and (3) in the final rule) to change from passive to
active voice for clarity. The final rule makes these changes in
paragraphs (a)(1), (2), and (3) in the final rule. The final rule also
removes ``all'' before ``alternatives'' in paragraph (a)(2) for
consistency with the same change in Sec. 1502.14(a).
CEQ proposed to include a requirement in proposed paragraph (d) to
require agencies to respond to any comments on the submitted
alternatives, information, and analyses section in the final EIS. As
discussed in sections II.B.3 and II.E.1, CEQ does not include the
proposed 30-day comment period in the final rule; therefore, CEQ is not
including proposed Sec. 1505.2(d) in the final rule.
In the NPRM, proposed paragraph (e) would require the ROD to
include the decision maker's certification regarding consideration of
the submitted alternatives, information, and analyses section, which
proposed Sec. 1502.18 required. The final rule replaces what was
proposed paragraph (e) with the language moved from proposed Sec.
1502.18, ``Certification of alternatives, information, and analyses
section,'' in paragraph (b). In the NPRM, Sec. 1502.18 stated that,
based on the alternatives, information, and analyses section required
under Sec. 1502.17, the decision maker for the lead agency must
certify that the agency has considered such information and include the
certification in the ROD under Sec. 1505.2(d) (as proposed). This
provision also proposed a conclusive presumption that the agency has
considered information summarized in that section because it is
reasonable to presume the agency has considered such information based
on the process to request and summarize public comments on the
submitted alternatives, information, and analyses.
CEQ modifies the proposed text of Sec. 1502.18 in the final rule
and in paragraph (b) of Sec. 1505.2 to clarify that the decision
maker's certification in the ROD is informed by the summary of
submitted alternatives, information, and analyses in the final EIS and
any other material in the record that the decision maker determines to
be relevant. This includes both the draft and final EIS as well as any
supporting materials incorporated by reference or appended to the
document. The final rule also changes ``conclusive presumption'' to a
``presumption'' and clarifies that the agency is entitled to a
presumption that it has considered the submitted alternatives,
information, and analyses, including the summary thereof in the final
EIS. Establishing a rebuttable presumption will give appropriate weight
to the process that culminates in the certification, while also
allowing some flexibility in situations where essential information may
have been inadvertently overlooked. The presumption and associated
exhaustion requirement also will encourage commenters to provide the
agency with all available information prior to the agency's decision,
rather than disclosing information after the decision is made or in
subsequent litigation. This is important for the decision-making
process and efficient management of agency resources.
3. Implementing the Decision (Sec. 1505.3)
CEQ proposed minor edits to Sec. 1505.3, ``Implementing the
decision'' to change ``commenting'' agencies to ``participating'' in
paragraph (c) and ``make available to the public'' to ``publish'' in
paragraph (d). CEQ makes these changes in the final rule.
H. Revisions to Other Requirements of NEPA (Part 1506)
CEQ proposed 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 proposed several edits
for clarity. CEQ finalizes many of these proposed changes in the final
rule with some additional clarifying edits.
1. Limitations on Actions During NEPA Process (Sec. 1506.1)
CEQ proposed 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
proposed to consolidate paragraph (d) with paragraph (b) and revise the
[[Page 43336]]
language to provide additional clarity on what activities are allowable
during the NEPA process. Specifically, CEQ proposed to eliminate
reference to one specific agency, broadening the provision to all
agencies and providing 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 proposed to add ``acquisition of interests
in land,'' which includes acquisitions of rights-of-way and
conservation easements. CEQ invited 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. CEQ finalizes this provision as
proposed with minor grammatical changes, and simplifying the references
in paragraphs (c) introductory text and (c)(2) from programmatic
environmental impact ``statement'' to ``review.''
2. Elimination of Duplication With State, Tribal, and Local Procedures
(Sec. 1506.2)
CEQ proposed revisions to Sec. 1506.2, ``Elimination of
duplication with State, Tribal, and local procedures'' to promote
efficiency and reduce duplication between Federal and State, Tribal,
and local requirements. These changes are consistent with the
President's directive in E.O. 13807 to provide for agency use, to the
maximum extent permitted by law, of environmental studies, analysis,
and decisions in support of earlier Federal, State, Tribal, or local
environmental reviews or authorization decisions. E.O. 13807, sec.
5(e)(i)(C). CEQ proposed to revise paragraph (a) to 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, and 25 U.S.C. 4115 and 5389(a). CEQ makes this change in
the final rule. The revision in paragraph (a) clarifies that Federal
agencies are authorized to cooperate with such State, Tribal, and local
agencies, and paragraph (b) requires cooperation to reduce duplication.
CEQ proposed to add examples to paragraph (b) to encourage use of
prior reviews and decisions and modify paragraph (c) to give agencies
flexibility to determine whether to cooperate in fulfilling State,
Tribal, or local EIS or similar requirements. CEQ includes these
proposed changes in the final rule and reorders the language to provide
additional clarity. Additionally, the final rule makes further changes
to paragraph (b) to remove potential impediments for agency use of
studies, analysis, and decisions developed by State, Tribal, and local
government agencies. Some commenters stated that CEQ proposed to limit
agency use to only environmental studies, analysis, and decisions and
exclude socio-economic and other information. The final rule clarifies
that agencies should make broad use of studies, analysis, and decisions
prepared by State, Tribal, and local agencies, as appropriate based on
other requirements including Sec. 1502.23. Finally, CEQ proposed 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. CEQ
makes these revisions in the final rule.
3. Adoption (Sec. 1506.3)
CEQ proposed to expand adoption to EAs, consistent with current
practice by many agencies, and CE determinations and clarify the
process for documenting the decision to adopt. CEQ includes these
proposed changes in the final rule with additional revisions to align
the language for consistency in each paragraph and better organize
Sec. 1506.3 by grouping the provisions relating to EISs into paragraph
(b), EAs in paragraph (c), and CE determinations in paragraph (d).
Paragraph (a) includes the general requirement for adoption, which
is that any adoption must meet the standard for an adequate EIS, EA, or
CE determination, as appropriate, under the CEQ regulations. CEQ
proposed to reference EAs in this paragraph. The final rule includes CE
determinations as well as EAs and reorders the documents for
consistency with the ordering of paragraphs (b) through (d)--EISs, EAs
(including portions of EISs or EAs), and CE determinations.
CEQ proposed clarifying edits in paragraph (b) and changed
references from recirculation to republication consistent with this
change throughout the rule. In the final rule, CEQ subdivides paragraph
(b) into subordinate paragraphs (b)(1) and (2). Paragraph (b)(1)
addresses EISs where the adopting agency is not a cooperating agency.
CEQ moves the cooperating agency exception to republication to
paragraph (b)(2). Consistent with the proposed rule, this paragraph
also clarifies that the cooperating agency adopts such an EIS by
issuing its own ROD.
In the NPRM, proposed paragraph (f) would allow an agency to adopt
another agency's determination that its CE applies to an action if the
adopting agency's proposed action is substantially the same. CEQ
includes this provision in paragraph (d) of the final rule with
clarifying edits. The final rule provides agencies the flexibility to
adopt another agency's determination that a CE applies to an action
when the actions are substantially the same to address situations where
a proposed action would result in a CE determination by one agency and
an EA and FONSI by another agency. For example, this would be the case
when two agencies are engaging in similar activities in similar areas
like small-scale prescribed burns, ecological restoration, and small-
scale land management practices. Another example is when one agency's
action may be a funding decision for a proposed project, and another
agency's action is to consider a permit for the same project.
To allow agencies to use one another's CEs without the agency that
promulgated the CE having to take an action, CEQ also proposed a new
Sec. 1507.3(e)(5), which would allow agencies to establish a process
in their NEPA procedures to apply another agency's CE. CEQ notes that
there was some confusion among commenters regarding the difference
between the adoption of CEs under Sec. 1506.3 and the provision in
Sec. 1507.3(f)(5) (proposed Sec. 1507.3(e)(5)).\97\ CEQ has made
clarifying edits to address this confusion.
---------------------------------------------------------------------------
\97\ For a discussion of the differences between these two
provisions, see section I.3 of the Final Rule Response to Comments.
---------------------------------------------------------------------------
The adoption process in Sec. 1506.3(d) first requires that an
agency has applied a CE listed in its agency NEPA procedures. Then, the
adopting agency must verify that its proposed action is substantially
the same as the action for which it is adopting the CE determination.
CEQ adds a sentence in Sec. 1507.3(f)(5) of the final rule to clarify
that agencies may establish a separate process for using another
agency's listed CE and applying the CE to its proposed actions. The
final rule also requires the adopting agency to document the adoption.
Agencies may publish, where appropriate, such documentation or other
information relating to the adoption.
4. Combining Documents (Sec. 1506.4)
CEQ proposed to amend Sec. 1506.4, ``Combining documents,'' to
encourage agencies ``to the fullest extent practicable'' to combine
their environmental documents with other
[[Page 43337]]
agency documents to reduce duplication and paperwork. For example, the
Corps routinely combines EISs with feasibility reports, and agencies
may use their NEPA documents to satisfy compliance with section 106 of
the National Historic Preservation Act under 36 CFR 800.8. CEQ includes
the proposed revisions in the final rule with no changes.
5. Agency Responsibility for Environmental Documents (Sec. 1506.5)
As discussed in the NPRM, CEQ proposed to revise Sec. 1506.5,
``Agency responsibility for environmental documents,'' in response to
ANPRM comments urging CEQ to allow greater flexibility for the project
sponsor (including private entities) to participate in the preparation
of NEPA documents under the supervision of the lead agency. CEQ
proposed updates to 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. Under the proposal, 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, proposed 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.
In the final rule, CEQ retains these concepts, but reorganizes
Sec. 1506.5 to better communicate the requirements. Specifically,
paragraph (a) contains a clear statement that the Federal agency is
ultimately responsible for the environmental document irrespective of
who prepares it. While this is consistent with the 1978 regulations,
CEQ provides this direct statement at the beginning of the section to
respond to comments that suggested agencies would be handing over their
responsibilities to project sponsors under the proposed rule.
Paragraph (b) introductory text and its subordinate paragraphs
capture the requirements when a project sponsor or contractor prepares
an environmental document, consolidating requirements for EISs and EAs
into one because there is no longer a distinction between the
requirements for each document in this context. Paragraph (b) allows an
agency to require an applicant to submit environmental information for
the agency's use in preparing an environmental document or to direct an
applicant or authorize a contractor to prepare an environmental
document under the agency's supervision. As noted in the NPRM, CEQ
intends these changes 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.
Paragraph (b)(1) requires agencies to provide guidance to the
applicant or contractor and participate in the preparation of the NEPA
document. Paragraph (b)(2) continues to require the agency to
independently evaluate the information or environmental document and
take responsibility for its accuracy, scope, and contents. Paragraph
(b)(3) requires the agency to include the names and qualifications of
the persons who prepared the environmental document. Adding
``qualifications'' is consistent with Sec. 1502.18 and is important
for transparency. For an EIS, this information would be included in the
list of preparers as required by Sec. 1502.18, but agencies have
flexibility on where to include such information in an EA. Paragraph
(b)(4) requires contractors or applicants preparing EAs or EISs to
submit a disclosure statement to the lead agency specifying any
financial or other interest in the outcome of the action, but it need
not include privileged or confidential trade secrets or other
confidential business information. In the NPRM, CEQ had proposed to
remove the requirement for a disclosure statement. In response to
comments, CEQ is retaining this concept in the final rule, recognizing
that most applicants will have such a financial interest. However, as
discussed above, CEQ finds that it is appropriate to allow applicants
to prepare documents for the sake of efficiency and because agencies
retain responsibility to oversee and take responsibility for the final
environmental document.
6. Public Involvement (Sec. 1506.6)
CEQ proposed 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. The NPRM proposed revisions to paragraphs (b) and (c) to add
``other opportunities for public engagement'' to recognize that there
are other ways to engage with interested and affected parties besides
hearings and meetings. CEQ finalizes these changes in the final rule
but changes ``engagement'' to ``involvement'' consistent with the title
of the section. Additionally, the final rule adds a sentence to these
paragraphs to require agencies to consider interested and affected
parties' access to electronic media, such as in rural locations or
economically distressed areas. CEQ had proposed to state in a new
paragraph (b)(3)(x) that notice may not be limited solely to electronic
methods for actions occurring in an area with limited access to high-
speed internet. However, CEQ is including this more general statement
in paragraph (b) as it is a consideration for notice generally. In
paragraph (b)(1), CEQ proposed to change the requirement to mail notice
in paragraphs (b)(1) and (2) to the more general requirement to
``notify'' to give agencies the flexibility to use email or other
mechanisms to provide such notice. CEQ makes this change in the final
rule. CEQ also eliminates the requirement in paragraph (b)(2) to
maintain a list of organizations reasonably expected to be interested
in actions with effects of national concern because such a requirement
is unnecessarily prescriptive given that agencies may collect and
organize contact information for organizations that have requested
regular notice in another format given advances in technology. In the
proposed rule, CEQ proposed to change paragraph (b)(3)(i) to modify
State clearinghouses to State and local agencies, and change paragraph
(b)(3)(ii) to affected Tribal governments. In the final rule, CEQ
modifies paragraph (b)(3)(i) to include notice to State, Tribal, and
local agencies, and paragraph (b)(3)(ii) to include notice to
interested or affected State, Tribal, and local governments for
consistency with Sec. 1501.9 and part 1503. CEQ proposed a new
paragraph (b)(3)(x) to allow for notice through electronic media. CEQ
includes this provision in the final rule, moving the language
regarding consideration of access to paragraph (b), as noted
previously.
In addition to the changes described above, CEQ proposed to strike
the mandatory criteria in paragraph (c) for consideration of when to
hold or sponsor public hearings or meetings. CEQ is removing this
language in the final rule because such criteria are unnecessarily
limiting. Agencies consider many factors in determining the most
appropriate mechanism for promoting public involvement, including the
particular location of the proposed action (if one exists), the types
of effects it may have, and the needs of interested and affected
parties, and may design their outreach in a manner that
[[Page 43338]]
best engages with those parties. The flexibility to consider relevant
factors is critical especially in light of unexpected circumstances,
such as the COVID-19 pandemic, which may require agencies to adapt
their outreach as required by State, Tribal, and local authorities and
conditions.
Finally, CEQ proposed to simplify paragraph (f) to require agencies
to make EISs, comments and underlying documents available to the public
consistent with the Freedom of Information Act (FOIA), removing the
provisos regarding interagency memoranda and fees. Congress has amended
FOIA numerous times since the enactment of NEPA, mostly recently by the
FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538.
Additionally, the revised paragraph (f) is consistent with the text of
section 102(2)(C) of NEPA, including with regard to fees. CEQ makes
these changes as proposed in the final rule.
7. Further Guidance (Sec. 1506.7)
CEQ proposed to update and modernize Sec. 1506.7, ``Further
guidance,'' to remove the specific references to handbooks, memoranda,
and the 102 monitor, and replace it with a statement that CEQ may
provide further guidance concerning NEPA and its procedures consistent
with E.O. 13807 and E.O. 13891, ``Promoting the Rule of Law Through
Improved Agency Guidance Documents.'' \98\ CEQ makes these changes in
paragraph (a) in the final rule. This rule supersedes preexisting CEQ
guidance and materials in many respects. CEQ intends to publish a
separate notice in the Federal Register listing guidance it is
withdrawing. CEQ will issue new guidance, as needed, consistent with
the final rule and Presidential directives. In the interim, in any
instances where an interpretation of the 1978 regulations is
inconsistent with the new regulations or this preamble's interpretation
of the new regulations, the new regulations and interpretations shall
apply, and CEQ includes a new paragraph (b) in the final rule to
provide this clarification. CEQ notes that guidance does not have the
force and effect of law and is meant to provide clarity regarding
existing law and policy.
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\98\ 84 FR 55235 (Oct. 15, 2019).
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8. Proposals for Legislation (Sec. 1506.8)
CEQ proposed to move the legislative EIS requirements from the
definition of legislation in 40 CFR 1508.17 to paragraph (a) of Sec.
1506.8, ``Proposals for legislation,'' and revise the section for
clarity. As noted in the NPRM, agencies prepare legislative EISs for
Congress when they are proposing specific actions. CEQ also invited
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. Const., 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).
In the final rule, CEQ retains the provision, but removes the
reference to providing ``significant cooperation and support in the
development'' of legislation and the test for significant cooperation
to more closely align this provision with the statute. The final rule
clarifies that technical drafting assistance is not a legislative
proposal under these regulations. Consistent with these edits, CEQ
strikes the reference to the Wilderness Act. The mandate has
expired.\99\ Under the Wilderness Act, a study was required to make a
recommendation to the President. If the President agreed with the
recommendation, the President then provided ``advice'' to Congress
about making a wilderness determination. The President is not subject
to NEPA in his direct recommendations to Congress, but agencies subject
to the APA are subject to NEPA, as appropriate, concerning legislative
proposals they develop. This avoids the constitutional issue. See
Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis,
J., concurring); Rescue Army v. Mun. Court of L.A., 331 U.S. 549, 569
(1947).
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\99\ 16 U.S.C. 1132(b)-(c).
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9. Proposals for Regulations (Sec. 1506.9)
CEQ proposed to add a new Sec. 1506.9, ``Proposals for
regulations,'' to address the analyses required for rulemakings and to
promote efficiency and reduce duplication in the assessment of
regulatory proposals. CEQ proposed criteria for agencies to identify
analyses that could serve as the functional equivalent of the EIS. In
response to comments, CEQ revises this section in the final rule. This
section clarifies that one or more procedures and documentation
prepared pursuant to other statutory or Executive order requirements
may satisfy one or more requirements of the CEQ regulations. When a
procedure or document satisfies one or more requirements of this
subchapter, the agency may substitute it for the corresponding
requirements in this subchapter and need not carry out duplicative
procedures or documentation. Agencies must identify which corresponding
requirements in this subchapter are satisfied and consult with CEQ to
confirm such determinations.
CEQ invited comments on analyses agencies are already conducting
that, in whole or when aggregated, can serve as the functional
equivalent of the EIS. Aspects of the cost-benefit analysis prepared
pursuant to E.O. 12866, ``Regulatory Planning and Review,'' the
Regulatory Flexibility Act, or the Unfunded Mandates Reform Act, may
overlap with aspects of the CEQ regulations. Further, an agency may
rely on the procedures implementing the requirements of a variety of
statutes and Executive orders that could meet some or all of the
requirements of this subchapter. CEQ does not expressly include
specific analyses in the final rule that satisfy the requirements of
the CEQ regulations. In all instances, agencies should clearly identify
how and which specific parts of the analyses serve the purpose of NEPA
compliance, including which requirements in the CEQ regulations are
satisfied.
10. Filing Requirements (Sec. 1506.10)
CEQ proposed 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. CEQ proposed this change to
provide flexibility to adapt as EPA changes its processes. CEQ revises
this section in the final rule, making the proposed changes as well as
phrasing the language in active voice.
11. Timing of Agency Action (Sec. 1506.11)
CEQ proposed to revise paragraph (a) of Sec. 1506.11, ``Timing of
agency action,'' to clarify the timing of EPA's notices of availability
of EISs. In paragraph (b), CEQ proposed to add a clause to acknowledge
statutory authorities that provide for the issuance of a combined final
EIS and ROD. See 23 U.S.C. 139(n)(2); 49 U.S.C. 304a(b). CEQ makes
these changes in the final rule.
In proposed paragraph (c), CEQ proposed to add introductory text
and create subordinate paragraphs to address those situations where
agencies may make an exception to the time provisions in paragraph (b).
Specifically, paragraph (c)(1) addresses agencies with formal appeals
processes. Paragraph (c)(2) provides exceptions for
[[Page 43339]]
rulemaking to protect public health or safety. Paragraph (d) addresses
timing when an agency files the final EIS within 90 days of the draft
EIS. Finally, paragraph (e) addresses when agencies may extend or
reduce the time periods. The proposed rule made edits to clarify the
language in these paragraphs without changing the substance of the
provisions. CEQ includes these changes in the final rule and makes
additional clarifying revisions.
12. Emergencies (Sec. 1506.12)
Section 1506.12, ``Emergencies,'' addresses agency compliance with
NEPA when an agency has to take an action with significant
environmental effects during emergency circumstances. 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, and other natural disasters,
have given CEQ the opportunity to respond to a variety of circumstances
where alternative arrangements for complying with NEPA are necessary.
CEQ has approved alternative arrangements to allow a wide range of
proposed actions in emergency circumstances including catastrophic
wildfires, threats to species and their habitat, economic crisis,
infectious disease outbreaks, potential dam failures, and insect
infestations.\100\ CEQ proposed 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 to address
extraordinary circumstances that are not addressed by agency
implementing procedures previously approved by CEQ. See Emergencies
Guidance, supra note 29. CEQ maintains a public description of all
pending and completed alternative arrangements on its website.\101\ CEQ
makes this change in the final rule.
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\100\ In response to the economic crisis associated with the
coronavirus outbreak, Executive Order 13927, titled ``Accelerating
the Nation's Economic Recovery From the COVID-19 Emergency by
Expediting Infrastructure Investments and Other Activities,'' was
issued on June 4, 2020. 85 FR 35165. This Executive order directs
agencies to identify planned or potential actions to facilitate the
Nation's economic recovery, including identification of actions that
may be subject to emergency treatment as alternative arrangements.
\101\ https://ceq.doe.gov/nepa-practice/alternative_arrangements.html.
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13. Effective Date (Sec. 1506.13)
Finally, CEQ proposed to modify Sec. 1506.13, ``Effective date,''
to clarify that these regulations would apply to all NEPA processes
begun after the effective date, but agencies have the discretion to
apply them to ongoing NEPA processes. CEQ also proposed to remove the
1979 effective date from the introductory paragraph, and strike 40 CFR
1506.13(a) referencing the 1973 guidance and 40 CFR 1506.13(b)
regarding actions begun before January 1, 1970 because they are
obsolete. This final rule makes these changes.
I. Revisions to Agency Compliance (Part 1507)
CEQ proposed modifications to part 1507, which addresses agency
compliance with NEPA, to 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.
CEQ makes these changes in the final rule with some modifications to
the proposed rule as discussed in the following sections.
1. Compliance (Sec. 1507.1)
CEQ proposed a change to Sec. 1507.1, ``Compliance,'' to strike
the second sentence regarding agency flexibility in adapting its
implementing procedures to the requirements of other applicable laws
for consistency with changes to paragraphs (a) and (b) of Sec. 1507.3,
``Agency NEPA procedures.'' This change is also consistent with the
direction of the President to Federal agencies to ``comply with the
regulations issued by the Council except where such compliance would be
inconsistent with statutory requirements.'' E.O. 11514, as amended by
E.O. 11991, sec. 2(g). CEQ makes this change in the final rule. Under
the final rule, Sec. 1507.1 requires all Federal agencies to comply
with the CEQ regulations as set forth in parts 1500 through 1508.
2. Agency Capability To Comply (Sec. 1507.2)
CEQ proposed edits to the introductory paragraph of Sec. 1507.2,
``Agency capability to comply,'' to clarify its meaning, which is to
allow agencies to use the resources (including personnel and financial
resources) of other parties, including agencies and applicants, and to
specifically require agencies to account for the contributions of these
other parties in complying with NEPA. This section also requires
agencies to have their own capacity to comply with NEPA and the
implementing regulations. This includes staff with the expertise to
independently evaluate environmental documents, including those
prepared by applicants and contractors. CEQ makes these clarifying
edits in the final rule.
Additionally, CEQ proposed to revise paragraph (a) to make the
senior agency official responsible for overall agency compliance with
NEPA, including coordination, communication, and resolution of
implementation issues. CEQ is finalizing this change. Under the final
rule, the senior agency official is an official of assistant secretary
rank or higher (or equivalent) with responsibilities consistent with
the responsibilities of senior agency officials in E.O. 13807 to whom
agencies elevate anticipated missed or extended permitting timetable
milestones. The senior agency official is responsible for addressing
disputes among lead and cooperating agencies and enforcing page and
time limits. The senior agency official also is responsible for
ensuring all environmental documents--even exceptionally lengthy ones--
are provided to Federal agency decision makers in a timely, readable,
and useful format. See Sec. Sec. 1501.5(f), 1501.7(d), 1501.8(b)(6)
and (c), 1501.10, 1502.7, 1507.2, 1508.1(dd).
CEQ proposed to amend paragraph (c) to emphasize agency
cooperation, which includes commenting on environmental documents on
which an agency is cooperating. CEQ makes this change in the final
rule. CEQ revises paragraph (d) in response to comments to strike the
second sentence, which created confusion regarding the reach of section
102(2)(E) of NEPA. Finally, CEQ proposed 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 orders. CEQ makes
both of these changes in the final rule.
3. Agency NEPA Procedures (Sec. 1507.3)
Agency NEPA procedures set forth the process by which agencies
comply with NEPA and the CEQ regulations in the context of their
particular programs and processes. 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
[[Page 43340]]
proposed to consolidate all of the requirements for agency NEPA
procedures in Sec. 1507.3, as discussed in detail below.
In the final rule, CEQ adds a new paragraph (a) to clarify the
applicability of these regulations in the interim period between the
effective date of the final rule and when the agencies complete updates
to their agency NEPA procedures for consistency with these regulations.
Consistent with Sec. 1506.13, ``Effective date,'' which makes the
regulations applicable to NEPA reviews begun after the effective date
of the final rule, paragraph (a) of Sec. 1507.3 requires agencies to
apply these regulations to new reviews unless there is a clear and
fundamental conflict with an applicable statute. For NEPA reviews in
process that agencies began before the final rule's effective date,
agencies may choose whether to apply the revised regulations or proceed
under the 1978 regulations and their existing agency NEPA procedures.
Agencies should clearly indicate to interested and affected parties
which procedures it is applying for each proposed action. The final
rule does not require agencies to withdraw their existing agency NEPA
procedures upon the effective date, but agencies should conduct a
consistency review of their procedures in order to proceed
appropriately on new proposed actions.
Paragraph (a) also provides that agencies' existing CEs are
consistent with the subchapter. CEQ adds this language to ensure CEs
remain available for agencies' use to ensure a smooth transition period
while they work to update their existing agency procedures, including
their CEs, as necessary. This change allows agencies to continue to use
their existing CEs for ongoing activities as well as proposed actions
that begin after the effective date of the CEQ final rule, and
clarifies that revisions to existing CEs are not required within 12
months of the publication date of the final rule. Agencies must still
consider whether extraordinary circumstances are present and should
rely upon any extraordinary circumstances listed in their agency NEPA
procedures as an integral part of an agency's process for applying CEs.
In paragraph (b) (proposed paragraph (a)), CEQ proposed to provide
agencies the later of one year after publication of the final rule or
nine months after the establishment of an agency to develop or revise
proposed agency NEPA procedures, as necessary, to implement the CEQ
regulations and eliminate any inconsistencies with the revised
regulations. CEQ includes this sentence in the final rule with a
correction to the deadline--the deadline is calculated from the
effective date, not the publication date. CEQ notes that this provision
references ``proposed procedures,'' and agencies need not finalize them
by this date. The final rule strikes a balance between minimizing the
disruption to ongoing environmental reviews while also requiring
agencies to revise their procedures in a timely manner to ensure future
reviews are consistent with the final rule. Agencies have the
flexibility to address the requirements of the CEQ regulations as they
relate to their programs and need not state them verbatim in their
procedures. In addition, CEQ proposed 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 includes this
language in the final rule, changing the order of the phrases, changing
``provided by law'' to ``required by law'' to enhance clarity, and
adding a cross-reference to paragraph (c), which references
efficiencies. This change is consistent with the direction of the
President to Federal agencies in E.O. 11514 to comply with the CEQ
regulations issued except where such compliance would be inconsistent
with statutory requirements. E.O. 11514, as amended by E.O. 11991, sec.
2(g). Finally, the final rule eliminates the sentence from 40 CFR
1507.3(a) prohibiting agencies from paraphrasing the CEQ regulations
because it is unnecessarily limiting on agencies. Agencies have the
flexibility to address the requirements of the CEQ regulations as they
relate to their programs and need not state them verbatim in their
procedures.
Consistent with its proposal, the final rule requires agencies to
develop or revise, as necessary, proposed procedures to implement these
regulations. In the NPRM, CEQ proposed to subdivide 40 CFR 1507.3(a)
into subordinate paragraphs (a)(1) and (2) for additional clarity
because each of these paragraphs have an independent requirement. CEQ
finalizes this change as paragraphs (b)(1) and (2) in the final rule.
Paragraph (b)(1) addresses the requirement for agencies to consult with
CEQ when developing or revising proposed procedures. Paragraph (b)(2)
requires agencies to publish proposed agency NEPA procedures for public
review and comment. After agencies address these comments, CEQ must
determine that the agency NEPA procedures conform to and are consistent
with NEPA and the CEQ regulations. CEQ proposed to eliminate the
recommendation to agencies to issue explanatory guidance and the
requirement to review their policies and procedures. CEQ makes this
change in the final rule because it is redundant to the proposed
language in paragraph (b) requiring agencies to update their procedures
to implement the final rule.
The NPRM proposed to move the provisions in Sec. 1505.1, ``Agency
decision making procedures,'' to proposed Sec. 1507.3(b). The final
rule moves these provisions to paragraph (c). As stated in the NPRM,
consistent with the proposed edits to Sec. 1500.1, CEQ proposed to
revise this paragraph 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 includes these edits in the
final rule, along with an additional edit to change passive to active
voice. CEQ does not include proposed paragraph (b)(1) (40 CFR
1505.1(a)) in the final rule because the phrase ``[i]mplementing
procedures under section 102(2) of NEPA to achieve the requirements of
section 101 and 102(1)'' could be read to suggest that agencies could
interpret NEPA in a manner that would impose more burdens than the
requirements of the final rule. Including this provision in the final
rule would be inconsistent with the language in paragraph (b) that
limits agency NEPA procedures to the requirements in these regulations
unless otherwise required by law or for agency efficiency. Finally, CEQ
corrects the reference in paragraph (c)(4) to EIS, changing it to
``environmental documents'' consistent with the rest of the paragraph.
CEQ proposed a new paragraph (b)(6) to direct 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. As stated
in the NPRM, 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 to integrate NEPA's goals for informed decision making with
agencies' specific statutory requirements. This approach is consistent
with some agency practice. See, e.g., 36 CFR part 220; Forest Service
Handbook 1909.15 (U.S.
[[Page 43341]]
Department of Agriculture Forest Service NEPA procedures). More
agencies could use it to achieve greater efficiency and reduce
unnecessary duplication. Additionally the NPRM proposed to allow
agencies to designate analyses or processes that serve as the
functional equivalent of NEPA compliance.
CEQ includes this provision in the final rule at paragraph (c)(5)
with revisions to clarify that agencies may designate and rely on one
or more procedures or documents under other statutes or Executive
orders as satisfying some or all of the requirements in the CEQ
regulations. While courts have held that agencies do not need to
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,\102\ the final
rule recognizes that agencies may substitute processes or documentation
prepared pursuant to other statutes or Executive orders to satisfy one
or more requirements in the CEQ regulations to reduce duplication.
Agencies must identify the respective requirements in this subchapter
that are satisfied by other statutes or Executive orders.
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\102\ See Portland Cement Ass'n, 486 F.2d at 387 (finding an
exemption from NEPA for Clean Air Act section 111); see also Envtl.
Def. Fund, Inc, 489 F.2d at 1254-56 (concluding that the standards
of FIFRA provide the functional equivalent of NEPA); Cellular Phone
Taskforce, 205 F.3d at 94-95 (concluding that the procedures
followed by the Federal Communications Commission were functionally
compliant with NEPA's EA and FONSI requirements); W. Neb. Res.
Council, 943 F.2d at 871-72 (concluding that EPA's procedures and
analysis under the Safe Drinking Water Act were functionally
equivalent to NEPA); Wyo. v. Hathaway, 525 F.2d 66, 71-72 (10th Cir.
1975) (concluding that EPA need not prepare an EIS before cancelling
or suspending registrations of three chemical toxins used to control
coyotes under FIFRA); State of Ala. ex rel. Siegelman v. U.S. EPA,
911 F.2d 499, 504-05 (11th Cir. 1990) (holding that EPA did not need
to comply with NEPA when issuing a final operating permit under the
Resource Conservation and Recovery Act); Envtl. Def. Fund, Inc. v.
Blum, 458 F. Supp. 650, 661-62 (D.D.C. 1978) (EPA need not prepare
an EIS before granting an emergency exemption to a state to use an
unregistered pesticide); State of Md. v. Train, 415 F. Supp. 116,
121-22 (D. Md. 1976) (Ocean Dumping Act functional equivalent of
NEPA). For further discussion, see section J.3 of the Final Rule
Response to Comments.
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Furthermore, CEQ proposed to add a new paragraph to allow agencies
to identify activities or decisions that are not subject to NEPA,
consistent with Sec. 1501.1, in their agency NEPA procedures. CEQ adds
this provision to paragraph (d) in the final rule. The final rule uses
``should'' instead of ``may'' to encourage agencies to make these
identifications in their agency NEPA procedures. The final rule also
replaces ``actions'' with ``activities or decisions'' to avoid
confusion with the definition of ``action'' in Sec. 1508.1(q). CEQ
includes this list in the final rule consistent with the changes in
Sec. 1501.1 as discussed in section II.C.1, with minor revisions to
improve readability and a reordering of the provisions consistent with
the reordering of the provisions in Sec. 1501.1.
Paragraph (e) (proposed paragraph (d)) maintains much of the
language from 40 CFR 1507.3(b). CEQ proposed to add parenthetical
descriptions of the cross-references in proposed paragraph (d)(1), and
CEQ includes these in the final rule at paragraph (e)(1). CEQ proposed
to revise paragraph (d)(2)(ii), which requires agencies to identify CEs
in their agency NEPA procedures, move the requirement for extraordinary
circumstances from the definition of CEs in 40 CFR 1508.4, and require
agencies to identify in their procedures when documentation of a CE
determination is required. CEQ also proposed to add language to
proposed paragraph (e) to codify existing agency practice to publish
notices when an agency pauses an EIS or withdraws an NOI. CEQ includes
this provision with the proposed revisions in the final rule at
paragraph (f)(3). Finally, CEQ proposed to move from 40 CFR
1502.9(c)(3) to proposed paragraph (d)(3) the requirement to include
procedures for introducing a supplement into its formal administrative
record and clarify that this includes EAs and EISs. CEQ includes this
provision in the final rule at paragraph (e)(3).
Paragraphs (f)(1) through (3) (proposed paragraphs (e)(1) through
(3)) maintain much of the language from 40 CFR 1507.3(c) through (e).
In proposed paragraph (e)(1), CEQ proposed to revise the language to
active voice and encourage, rather than just allow, agencies to
organize environmental documents in such a way as to make unclassified
portions of environmental documents available to the public. CEQ makes
these revisions in the final rule in paragraph (f)(1). CEQ also
modifies paragraph (f)(2) to add a reference to the requirements of
lead and cooperating agencies. CEQ adds this example consistent with
the addition to Sec. 1506.11(b) referencing statutory provisions for
combining a final EIS and ROD. This is also consistent with CEQ's goal
of improving coordination between lead and cooperating agencies and
providing efficient processes to allow for integration of the NEPA
review with reviews conducted under other statutes. This allows for
altering time periods to facilitate issuance of a combined FEIS and
ROD. Additionally, CEQ proposed to move the language allowing agencies
to adopt procedures to combine their EA process with their scoping
process from 40 CFR 1501.7(b)(3) to paragraph (e)(4). CEQ makes this
change in the final rule at paragraph (f)(4).
Finally, CEQ proposed in paragraph (e)(5) to allow agencies to
establish a process in their agency NEPA procedures to apply the CEs of
other agencies. CEQ also invited comment on whether to set forth this
process in these regulations. In the final rule, CEQ includes the
provision to allow agencies to establish a process in paragraph (f)(5)
with some changes. CEQ includes clarifying language to address the
confusion commenters had as to differences between this section and
adoption of a CE determination under Sec. 1506.3. An agency's process
must provide for consultation with the agency that listed the CE in its
NEPA procedures to ensure that the planned use of the CE is consistent
with the originating agency's intent and practice.\103\ The process
should ensure documentation of the consultation and identify to the
public those CEs the agency may use for its proposed actions.
Consistent with Sec. 1507.4, agencies could post such information on
their websites. Then, an agency may apply the CE to its proposed
actions, including proposed projects or activities or groups of
proposed projects or activities.
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\103\ The use of another agency's CE under a process in the
agency's NEPA procedures is an option separate from the adoption,
under Sec. 1506.3(f), of another agency's determination that its CE
applies to a particular action that is substantially the same as the
adopting agency's proposed action. An agency may adopt another
agency's CE determination for a particular action regardless of
whether its procedures provide a process for application of other
agencies' CEs.
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4. Agency NEPA Program Information (Sec. 1507.4)
CEQ proposed to add a new Sec. 1507.4, ``Agency NEPA program
information,'' to provide the means of publishing information on
ongoing NEPA reviews and agency records relating to NEPA reviews. CEQ
is finalizing this provision as proposed with no changes. As stated in
the NPRM, this provision requires agencies in their NEPA 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.
Section 1507.4 promotes transparency and efficiency in the NEPA
process, and improves interagency coordination by
[[Page 43342]]
ensuring that information is more readily available to other agencies
and the public. As discussed in the NPRM, 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,\104\ 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 invited comment on this proposal,
including comment on whether additional regulatory changes could help
facilitate streamlined GIS analysis to help agencies comply with NEPA.
While some commenters supported the development of a single NEPA
application, others identified challenges to ensuring databases are
useful, as well as privacy and security concerns. CEQ did not receive
sufficient comment to lead CEQ to make additional regulatory changes to
facilitate streamlined GIS analysis to help agencies comply with NEPA,
and the final rule does not contain any changes from the proposal.
---------------------------------------------------------------------------
\104\ https://nepassisttool.epa.gov/nepassist/nepamap.aspx. See
also the Marine Cadastre, which provides consolidated GIS
information for offshore actions, https://marinecadastre.gov/.
---------------------------------------------------------------------------
J. Revisions to Definitions (Part 1508)
NEPA does not itself include a set of definitions provided by
Congress. CEQ, in the 1978 regulations, established a set of
definitions for NEPA and the CEQ regulations. In this final rule, CEQ
has clarified or supplemented the definitions as discussed below and
further described in the Final Rule Response to Comments at section K.
As noted above, see Public Citizen, 541 U.S. at 757; Methow Valley, 490
U.S. at 355 (citing Andrus, 442 U.S. at 358); Brand X, 545 U.S. at 980-
86; and Mead Corp., 533 U.S. at 227-30, CEQ has the authority to
interpret NEPA. See, e.g., Barnhart v. Walton, 535 U.S. 212, 218 (2002)
(``[S]ilence, after all, normally creates ambiguity. It does not
resolve it.''). Existing NEPA case law inevitably rests directly on
interpretive choices made in the 1978 regulations or on cases that
themselves through some chain of prior cases also trace to the 1978
regulations. Yet consistent with Chevron, CEQ's NEPA regulations are
subject to change. See also Brand X, 545 U.S. 967.
CEQ's intention to make use of its interpretive authority under
Chevron is particularly applicable as to part 1508 where CEQ defines or
revises key terms in the NEPA statute and the CEQ regulations. As a
result, this confers on CEQ an even greater degree of latitude to
elucidate the meaning of the statute's terms in these regulations--the
same basic authority exercised by CEQ back in 1978 in the original form
of the NEPA regulations. See, e.g., Demski v. U.S. Dep't of Labor, 419
F.3d 488, 491 (6th Cir. 2005) (``In the absence of a congressional
definition or an explicit delegation of congressional authority to the
agency, we determine how the agency responsible for implementing the
statute . . . understands the term, and, under Chevron . . . we
determine whether such an understanding is a `reasonable
interpretation' of the statute.'' (citing Chevron, 467 U.S. at 844));
London v. Polishook, 189 F.3d 196, 200 (2d Cir. 1999) (``[J]udicial
deference does apply to the guidelines that [the] Department's Office
of Labor-Management Standards Enforcement has developed and set out in
its LMRDA Interpretive Manual Sec. 030.425--guidelines to which [the
D.C. Circuit in Martoche] deferred in the absence of a clear definition
of `political subdivision' in the Act or in its legislative
history.''); Hawaii Gov't Employees Ass'n, Am. Fed'n of State, Cty. &
Mun. Employees, Local 152 v. Martoche, 915 F.2d 718, 721 (D.C. Cir.
1990) (``With some imprecision in the statutory text [as to an
undefined term] and a nearly total lack of elucidation in the
legislative history, the situation is squarely one in which Congress
implicitly left a gap for the agency to fill.'') (internal citation and
quotation marks omitted). See also Perez v. Commissioner, 144 T.C. 51,
59 (2015); Saha Thai Steel Pipe (Pub.) Co. v. United States, 33 C.I.T.
1541, 1547 (Ct. of Int'l Trade 2009).\105\ In promulgating new or
revised definitions and other changes to the NEPA regulations, CEQ has
considered the ordinary meaning of the terms used by Congress in the
statute.
---------------------------------------------------------------------------
\105\ ``Although NEPA's statutory text specifies when an agency
must comply with NEPA's procedural mandate; it is the Council on
Environmental Quality Regulations (`CEQ') regulations which dictate
the how, providing the framework by which all [F]ederal agencies
comply with NEPA.'' Dine' Citizens Against Ruining Our Environment
v. Klein, 747 F. Supp. 2d 1234, 1248 (D. Colo. 2010) (emphasis in
original).
---------------------------------------------------------------------------
As discussed in the NPRM, CEQ proposed significant revisions to
part 1508. CEQ proposed to move the operative language, which is
regulatory language that provides instruction or guidance, included
throughout the regulations in this section to the relevant substantive
sections of the regulations. Consistent with this change, CEQ proposed
to retitle part 1508 from ``Terminology and Index'' to ``Definitions.''
\106\ CEQ also proposed 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 proposed
to eliminate individual section numbers for each term in favor of a
single section of defined terms in the revised Sec. 1508.1. Finally,
CEQ proposed to remove citations to the specific definition sections
throughout the rule. CEQ makes these changes in the final rule.
---------------------------------------------------------------------------
\106\ CEQ has maintained an index in the Code of Federal
Regulations, but this is not a part of the regulations. CEQ does not
intend to continue to maintain such an index because it is no longer
necessary given that the regulations are typically accessed
electronically and the regulations' organization has been
significantly improved.
---------------------------------------------------------------------------
1. Clarifying the Meaning of ``Act''
CEQ proposed in paragraph (a) to add ``NEPA'' as a defined term
with the same meaning as ``Act.'' CEQ makes this change in the final
rule.
2. Definition of ``Affecting''
CEQ did not propose to make any change to the defined term
``affecting'' in paragraph (b). CEQ does not make any changes to this
definition in the final rule.
3. New Definition of ``Authorization''
CEQ proposed to define the term ``authorization'' in paragraph (c)
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. CEQ proposed to replace the word ``entitlement'' with
``authorization'' throughout the rule. CEQ adds this definition and
makes these changes in the final rule.
4. Clarifying the Meaning of ``Categorical Exclusion''
CEQ proposed to revise the definition of ``categorical exclusion''
in paragraph (d) by inserting ``normally'' to clarify that there may be
situations where an action may have significant effects on account of
extraordinary circumstances.
[[Page 43343]]
CEQ also proposed to strike ``individually or cumulatively'' for
consistency with the proposed revisions to the definition of
``effects'' as discussed in this section. CEQ proposed conforming edits
in Sec. Sec. 1500.4(a) and 1500.5(a). As noted in section II.I.3, CEQ
proposed to move the requirement to provide for extraordinary
circumstances in agency procedures to Sec. 1507.3(d)(2)(ii) (Sec.
1507.3(e)(2)(ii) in the final rule). CEQ makes these changes in the
final rule. CEQ notes that the definition of ``categorical exclusion''
only applies to those CEs created by an agency in its agency NEPA
procedures and does not apply to ``legislative'' CEs 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.
5. Clarifying the Meaning of ``Cooperating Agency''
CEQ proposed to amend the definition of ``cooperating agency'' in
paragraph (e) 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 allowing a State, Tribal, or local
agency to become a cooperating agency with the lead agency's agreement
to paragraph (a) of Sec. 1501.8, ``Cooperating agencies.'' CEQ also
proposed to remove the sentence cross-referencing the cooperating
agency section in part 1501 and stating that the selection and
responsibilities of a cooperating agency are described there because it
is unnecessary and does not define the term. CEQ makes these changes in
the final rule.
6. Definition of ``Council''
CEQ did not propose any changes to the definition of ``Council'' in
paragraph (f). CEQ also invited comment on whether to update references
to ``Council'' in the regulations to ``CEQ'' throughout the rule. CEQ
did not receive sufficient comments on this proposal; therefore, CEQ
does not make this change in the final rule.
7. Definition of ``Cumulative Impact'' and Clarifying the Meaning of
``Effects''
CEQ proposed to remove the definition of ``cumulative impact'' and
revise the definition of ``effects'' in paragraph (g). As noted in the
NPRM, many commenters to the ANPRM urged CEQ to refine the definition
based on concerns that it 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 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 a number of publications that address the topic.
While NEPA refers to environmental impacts and environmental
effects, it does not subdivide the terms into direct, indirect, or
cumulative. Nor are the terms ``direct,'' ``indirect,'' or
``cumulative'' included in the text of the statute. CEQ created those
concepts and included them in the 1978 regulations.
To address commenters' concerns and reduce confusion and
unnecessary litigation, CEQ proposed to simplify the definition of
effects by striking the specific references to direct, indirect, and
cumulative effects and providing clarity on the bounds of effects
consistent with the Supreme Court's holding in 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 ``[t]his requirement is like the
familiar doctrine of proximate cause from tort law.''). CEQ sought
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.
In the final rule, CEQ revises the definition of effects consistent
with the proposal, with some additional edits. First, to eliminate the
circularity in the definition, CEQ changes the beginning of the
definition from ``means effects of'' to ``means changes to the human
environment from'' the proposed action or alternatives. This change
also associates the definition of effects with the definition of human
environment, which continues to cross-reference to the definition of
effects in the final rule. It also makes clear that, when the
regulations use the term ``effects,'' it means effects on the human
environment. This responds to comments suggesting CEQ add ``on the
human environment'' after ``effects'' in various sections of the rule.
The final rule also consolidates the first two sentences of the
definition to clarify that, for purposes of this definition, ``effects
that occur'' at the ``same time and place as the proposed action or
alternatives,'' or that ``are later in time or farther removed in
distance'' must nevertheless be reasonably foreseeable and have a
reasonably close causal relationship to the proposed action or
alternatives. As a separate sentence that only referenced reasonable
foreseeability, there was ambiguity as to whether a reasonably close
causal relationship was required. Additionally, the final rule adds a
clause to clarify that the consideration of time and place or distance
are relative to the proposed action or alternatives.
CEQ proposed to strike the definition of ``cumulative impact'' and
the terms ``direct'' and ``indirect'' in order to focus agency time and
resources on considering whether the proposed action causes an effect
rather than on categorizing the type of effect. As stated in the NPRM,
CEQ intends the revisions to simplify the definition to focus agencies
on consideration of effects that are reasonably foreseeable and have a
reasonably close causal relationship to the proposed action. In
practice, agencies have devoted substantial resources to categorizing
effects as direct, indirect, or cumulative, which, as noted above, are
not terms referenced in the NEPA statute. CEQ eliminates these
references in the final rule.
To further assist agencies in their assessment of significant
effects, CEQ also proposed to clarify that agencies should not consider
effects 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''). CEQ revises this sentence in the final rule to add
``generally'' to reflect the fact that there may occasionally be a
[[Page 43344]]
circumstance where an effect that is remote in time, geographically
remote, or the product of a lengthy causal chain is reasonably
foreseeable and has a reasonably close causal relationship to the
proposed action.
Further, CEQ proposed 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 that
would happen even without the agency action, because they would not
have a sufficiently close causal connection to the proposed action. For
example, this would include effects that would constitute an
intervening and superseding cause under familiar principles of tort
law. See, e.g., Sierra Club v. FERC, 827 F.3d 36, 47-48 (D.C. Cir.
2016) (NEPA case incorporating these principles) (``[C]ritical to
triggering that chain of events is the intervening action of the
Department of Energy in granting an export license. The Department's
independent decision to allow exports--a decision over which the
Commission has no regulatory authority--breaks the NEPA causal chain
and absolves the Commission of responsibility to include in its NEPA
analysis considerations that it `could not act on' and for which it
cannot be `the legally relevant cause.''' (quoting Pub. Citizen, 541
U.S. at 769)). As discussed in the NPRM, 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 includes this language in the final rule as proposed.
In addition, CEQ proposed a change in position to state that
analysis of cumulative effects, as defined in the 1978 regulations, is
not required under NEPA. 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. Past CEQ guidance has not been successful in dispelling
ambiguity. 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 effects that would occur as a result of
the agency's decision, rather than effects that would be the result of
intervening and superseding causes. Agencies are not expected to
conduct exhaustive research on identifying and categorizing actions
beyond the agency's control.
CEQ intended the proposed elimination of the definition of
cumulative impact to focus agencies on analysis of effects that are
reasonably foreseeable and have a reasonably close causal relationship
to the proposed action. Cumulative effects analysis has been
interpreted so expansively as to undermine informed decision making,
and led agencies to conduct analyses to include effects that are not
reasonably foreseeable or do not have a reasonably close causal
relationship to the proposed action or alternatives. CEQ also invited
comment on whether to include an affirmative statement that
consideration of indirect effects is not required; the final rule does
not include additional direction to agencies specific to indirect
effects.
CEQ received many comments on cumulative effects. In the final
rule, to provide further clarification, CEQ includes a new provision at
paragraph (g)(3) that states that the analysis of effects shall be
consistent with the definition of effects, and that cumulative impact,
defined in 40 CFR 1508.7 (1978), is repealed. This language explains
how agencies should apply the definition of effects with respect to
environmental documents and other provisions in the final rule.
Specifically, analyses are bound by the definition of effects as set
forth in Sec. 1508.1(g)(1) and (2) and should not go beyond the
definition of effects set forth in those two paragraphs. The final rule
provides considerable flexibility to agencies to structure the analysis
of effects based on the circumstances of their programs.
In response to the NPRM, commenters stated that agencies would no
longer consider the impacts of a proposed action on climate change. The
rule does not preclude consideration of the impacts of a proposed
action on any particular aspect of the human environment. The analysis
of the impacts on climate change will depend on the specific
circumstances of the proposed action. As discussed above, under the
final rule, agencies will consider predictable trends in the area in
the baseline analysis of the affected environment.
8. Clarifying the Meaning of ``Environmental Assessment''
CEQ proposed to revise the definition of ``environmental
assessment'' in paragraph (h), describing the purpose for the document
and moving all of the operative language setting forth the requirements
for an EA from the definition to proposed Sec. 1501.5. CEQ makes this
change in the final rule.
9. Clarifying the Meaning of ``Environmental Document''
CEQ proposed to remove the cross-references from the definition of
``environmental document'' in paragraph (i). CEQ makes this change in
the final rule.
10. Clarifying the Meaning of ``Environmental Impact Statement''
CEQ proposed to change ``the Act'' to ``NEPA'' in the definition of
``environmental impact statement'' in paragraph (j). CEQ makes this
change in the final rule.
11. Clarifying the Meaning of ``Federal Agency''
CEQ proposed to amend the definition of ``Federal agency'' in
paragraph (k) 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. As stated
in the NPRM, 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, Public Law
93-383, sec. 104(h), 88 Stat. 633, 640, 42 U.S.C. 5304. See, e.g.,
Surface Transportation Project Delivery Program, 23 U.S.C. 327. This
change acknowledges these programs and helps clarify roles and
responsibilities. CEQ makes this change and minor clarifying edits in
the final rule.
12. Clarifying the Meaning of ``Finding of No Significant Impact''
CEQ proposed to revise the definition of ``finding of no
significant impact'' in paragraph (l) to insert the word
``categorically'' into the phrase ``not otherwise excluded,'' change
the cross-reference to the new section addressing CEs at Sec. 1501.4,
and move the operative language requiring a FONSI to include an EA or a
summary of it and allowing incorporation by reference of the EA to
Sec. 1501.6, which addresses the requirements of a FONSI. CEQ makes
these revisions in the final rule.
13. Clarifying the Meaning of ``Human Environment''
CEQ proposed to change ``people'' to ``present and future
generations of Americans'' consistent with section 101(a) of NEPA to
the definition of human environment in paragraph (m). CEQ also proposed
to move the operative language stating that economic or social effects
by themselves
[[Page 43345]]
do not require preparation of an EIS to Sec. 1502.16(b), which is the
section of the regulations that addresses when agencies should consider
economic or social effects in an EIS. CEQ makes these changes in the
final rule to assist agencies in understanding and implementing the
statute and regulations.
14. Definition of ``Jurisdiction by Law''
The NPRM did not propose any changes to the definition of
jurisdiction by law in paragraph (n). CEQ did not revise this
definition in the final rule.
15. Clarifying the Meaning of ``Lead Agency''
CEQ proposed to amend the definition of lead agency in paragraph
(o) to clarify that this term includes joint lead agencies, which are
an acceptable practice. CEQ makes this change in the final rule.
16. Clarifying the Meaning of ``Legislation''
CEQ proposed to move the operative language regarding the test for
significant cooperation and the principle that only the agency with
primary responsibility will prepare a legislative EIS to Sec. 1506.8.
CEQ also proposed to strike the example of treaties, because the
President is not a Federal agency, and therefore a request for
ratification of a treaty would not be subject to NEPA. CEQ makes these
changes in the final rule, striking the references to ``significant
cooperation and support,'' in paragraph (p) to narrow the definition to
comport with the NEPA statute, as discussed in section II.H.8.
17. Clarifying the Meaning of ``Major Federal Action''
CEQ received many comments on the ANPRM 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 proposed to amend the first sentence of the definition in
paragraph (q) 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 proposed to replace ``major'' effects with
``significant'' in this sentence to align with the NEPA statute. In the
final rule, CEQ revises the definition to remove reference to
significance. CEQ also revises the definition to remove the circularity
in the definition, changing ``means an action'' to ``means an activity
or decision'' that is subject to Federal control and responsibility.
i. Independent Meaning of ``Major''
CEQ proposed to strike the second sentence of the definition, which
provides ``Major reinforces but does not have a meaning independent of
significantly.'' CEQ makes this change in the final rule. This is a
change in position as compared to CEQ's earlier interpretation of NEPA
and, in finalizing this change, CEQ intends to correct this
longstanding misconstruction of the NEPA statute. The statutory aim of
NEPA is to focus on ``major Federal actions significantly affecting the
quality of the human environment,'' 42 U.S.C. 4332(2)(C), rather than
on non-major Federal actions that simply have some degree of Federal
involvement. Under the 1978 regulations, however, the word ``major''
was rendered virtually meaningless.
CEQ makes this change 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.'') (internal quotations
and citations omitted) (quoting United States v. Menasche, 348 U.S.
528, 538 (1955)). Although the 1978 regulations treated the terms
``major'' and ``significantly'' as interchangeable, there is an
important distinction between the two terms and how they apply in the
NEPA process. ``Major'' refers to the type of action, including the
role of the Federal agency and its control over any environmental
impacts. ``Significant'' relates to the effects stemming from the
action, including consideration of the affected area, resources, and
the degree of the effects. In the statute, ``major'' occurs twice, and
in both instances is a modifier of ``Federal action''--in section
102(2)(C) in the phrase ``other major Federal actions significantly
affecting the quality of the human environment,'' and section 102(2)(D)
in the phrase, ``any major Federal action funded under a program of
grants to States.'' NEPA also uses ``significant'' or ``significantly''
twice as a modifier of the similar words ``affecting'' in section
102(2)(C) and ``impacts'' in section 102(2)(D)(iv).
The legislative history of NEPA also reflects that Congress used
the term ``major'' independent 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 (Senate Report) 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).\107\
Further, the Senate Report shows that OMB's predecessor, the Bureau of
the Budget, submitted comments on the legislation to provide the views
of the Executive Office of the President and recommended that Congress
revise the text of the bill to include two separate modifiers:
``major'' before Federal actions and ``significantly'' before affecting
the quality of the human environment. See id. at 30 (Bureau of the
Budget's markup returned to the Senate on July 7, 1969). The enacted
legislation included these revisions. While CEQ followed the Eight
Circuit's approach in Minnesota Public Interest Research Group v. Butz,
498 F.2d 1314, 1321-22 (8th Cir. 1974), in the 1978 regulations, other
courts had interpreted ``major'' and ``significantly'' as having
independent meaning before CEQ issued its 1978 regulations. See NAACP
v. Med. Ctr., Inc., 584 F.2d 619, 629 (3d Cir. 1978) (analyzing the
Secretary's ministerial approval of a capital expenditure under a
framework that first considered whether there had been agency action,
and then whether that action was ``major''); Hanly v. Mitchell, 460
F.2d 640, 644-45 (2d Cir. 1972) (``There is no doubt that the Act
contemplates some agency action that does not require an impact
statement because the action is minor and has so little effect on the
environment as to be insignificant.'' (internal citations omitted));
Scherr v. Volpe, 466 F.2d 1027, 1033 (7th Cir. 1972) (finding that a
highway project qualifies as major before turning to the second step of
whether the project would have a significant effect); Julius v. City of
Cedar Rapids, 349 F. Supp. 88, 90 (N.D. Iowa 1972) (finding that a lane
widening project was not a major Federal action); Goose Hollow
Foothills League v. Romney, 334 F. Supp. 877, 879 (D. Or. 1971)
(discussing whether a proposed
[[Page 43346]]
building project was ``major''); SW Neighborhood Assembly v. Eckard,
445 F. Supp. 1195, 1199 (D.D.C. 1978) (``The phrase `major Federal
action' has been construed by the Courts to require an inquiry into
such questions as the amount of federal funds expended by the action,
the number of people affected, the length of time consumed, and the
extent of government planning involved.'' (citing Hanly, 460 F.2d at
644)); Nat. Res. Def. Council v. Grant, 341 F. Supp. 356, 366 (E.D.N.C.
1972) (``Certainly, an administrative agency [such] as the Soil
Conservation Service may make a decision that a particular project is
not major, or that it does not significantly affect the quality of the
human environment, and, that, therefore, the agency is not required to
file an impact statement.''). Moreover, as discussed further below,
over the past four decades, in a number of cases, courts have
determined that NEPA does not apply to actions with minimal Federal
involvement or funding. Under the revised definition, these would be
non-major Federal actions.
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\107\ https://ceq.doe.gov/docs/laws-regulations/Senate-Report-on-NEPA.pdf.
---------------------------------------------------------------------------
In the final rule, CEQ reorganizes the remainder of the definition
of major Federal action into subordinate paragraphs. Paragraph (q)(1)
provides a list of activities or decisions that are not included within
the definition.
ii. Extraterritoriality
In the NPRM, CEQ requested comment on whether to clarify that major
Federal action does not include extraterritorial actions because 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. In the final rule, CEQ revises the definition of
``Major Federal action'' in a new paragraph (q)(1)(i) to exclude
extraterritorial activities or decisions, which mean activities or
decisions with effects located entirely outside the jurisdiction of the
United States.\108\
---------------------------------------------------------------------------
\108\ The Restatement of Foreign Relations Law provides that the
areas within the territorial jurisdiction of the United States
include ``its land, internal waters, territorial sea, the adjacent
airspace, and other places over which the United States has
sovereignty or some measure of legislative control.'' Restatement
(Fourth) of Foreign Relations Law sec. 404 (2018).
---------------------------------------------------------------------------
The Supreme Court has stated that ``[i]t is a longstanding
principle of American law `that legislation of Congress, unless a
contrary intent appears, is meant to apply only within the territorial
jurisdiction of the United States.' '' EEOC v. Arabian Am. Oil Co.
(Aramco), 499 U.S. 244, 248 (1991) (quoting Foley Bros. v. Filardo,
Inc., 336 U.S. 281, 285 (1949)). During the past decade, the Supreme
Court has considered the application of the presumption to a variety of
Federal statutes.\109\ As the Supreme Court has stated, the presumption
``rests on the perception that Congress ordinarily legislates with
respect to domestic, not foreign matters.'' Morrison, 561 U.S. at 255
(citing Smith v. United States, 507 U.S. 197, 204 n.5 (1993)). ``Thus,
`unless there is the affirmative intention of the Congress clearly
expressed' to give a statute extraterritorial effect, `we must presume
it is primarily concerned with domestic conditions.' '' Morrison, 561
U.S. at 255 (citing Aramco, 499 U.S. at 248). The Supreme Court has
held, including in more recent decisions, that the presumption applies
regardless of whether there is a risk of conflict between the U.S.
statute and a foreign law. Morrison, 561 U.S. at 255 (citing Sale v.
Haitian Ctrs. Council, Inc., 509 U.S. 155, 173-74 (1993)); RJR Nabisco,
136 S. Ct. at 2100; see also Smith, 507 U.S. at 204 n.5.
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\109\ See RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090
(2016) (Racketeer Influenced and Corrupt Organizations Act); Kiobel,
569 U.S. at 115-16 (Alien Tort Statute); Morrison v. Nat'l Austl.
Bank Ltd., 561 U.S. 247, 255 (2010) (Securities and Exchange Act of
1934); WesternGeco LLC v. ION Geophysical Corp., 138 S. Ct. 2129
(2018) (Patent Act).
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The Supreme Court has established a two-step framework for
analyzing whether the presumption against extraterritoriality applies
to a Federal statute.\110\ Under this framework, the first step is to
ask whether the presumption against extraterritoriality has been
rebutted because ``the statute gives a clear, affirmative indication
that it applies extraterritorially.'' RJR Nabisco, 136 S. Ct. at 2101.
If the presumption has not been rebutted, the second step is to
determine whether the case involves a domestic application of the
statute, and courts have done this by looking to the statute's
``focus.'' \111\
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\110\ See RJR Nabisco, 136 S. Ct. at 2101 (citing Morrison, 561
U.S. at 267 n.9; Kiobel, 569 U.S. 108); see also WesternGeco LLC,
138 S. Ct. 2129.
\111\ Id. (``If the conduct relevant to the statute's focus
occurred in the United States, then the case involves a permissible
domestic application even if other conduct occurred abroad; but if
the conduct relevant to the focus occurred in a foreign country,
then the case involves an impermissible extraterritorial application
regardless of any other conduct that occurred in U.S. territory.'').
This two-step framework for analyzing extraterritoriality issues is
also reflected in the Restatement of Foreign Relations Law. See
Restatement (Fourth) of Foreign Relations Law sec. 404 (2018).
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Under the two-step framework, CEQ has determined that because the
legislative history and statutory text of section 102(2)(C) gives no
clear indication that it applies extraterritorially, the presumption
against extraterritoriality has not been rebutted. The plain language
of section 102(2)(C) does not require it to be applied to actions
occurring outside the jurisdiction of the United States.\112\ The only
reference in the Act to international considerations is in section
102(2)(F), which refers to ``international cooperation'' and the
``worldwide and long-range character of environmental problems,'' and
directs agencies to ``where consistent with the foreign policy of the
United States, lend appropriate support to initiatives, resolutions,
and programs designed to maximize international cooperation'' to
protect the environment. 42 U.S.C. 4332(2)(F). International
cooperation is inherently voluntary and not part of the mandatory
analysis required under the statute, and this provision does not
indicate in any way that the requirements of section 102(2)(C) to
prepare detailed statements applies outside of U.S. territorial
jurisdiction. The limited legislative history of section 102(2)(C)
similarly does not include discussion of application of the
requirements of section 102(2)(C) to extraterritorial actions.\113\
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\112\ Section 102(2)(C) directs Federal agencies to provide a
detailed statement for major Federal actions significantly affecting
the quality of the human environment, and requires the responsible
official to consult with and obtain the comments of Federal agencies
with jurisdiction or special expertise, as well as to make copies of
the statement and comments and views of Federal, state and local
agencies available to the President, CEQ and the public. 42 U.S.C.
4332(2)(C). Nothing in the text states that this section was
intended to require the preparation of detailed statements for
actions located outside the United States.
\113\ See also Nat. Res. Def. Council v. Nuclear Regulatory
Comm'n, 647 F. 2d 1345, 1367 (D.C. Cir. 1981) (``NEPA's legislative
history illuminates nothing in regard to extraterritorial
application.'').
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Under the two-step framework, CEQ has also considered the purpose
of section 102(2)(C), which is to ensure that a Federal agency, as part
of its decision making process, considers the potential environmental
impacts of proposed actions. The focus of congressional concern is the
proposed action and its potential environmental effects. The effects of
a proposed action may occur both within U.S. territorial jurisdiction
as well as outside that jurisdiction. To the extent effects of a
proposed action occur entirely outside the territorial jurisdiction of
the United States, the application of section 102(2)(C) would not be
permissible, consistent with the Supreme Court's holding that where the
conduct relevant to the statute's focus occurred in the United States,
then ``the case involves a
[[Page 43347]]
permissible domestic application even if other conduct occurred abroad;
but if the conduct relevant to the focus occurred in a foreign country,
then the case involves an impermissible extraterritorial application
regardless of any other conduct that occurred in U.S. territory.'' RJR
Nabisco, 136 S. Ct. at 2101. Therefore, CEQ provides in paragraph
(q)(1)(i) of the final rule that NEPA does not apply to ``agency
activities or decisions with effects located entirely outside of the
jurisdiction of the United States.''
iii. Non-Discretionary Activities or Decisions
In the NPRM, CEQ proposed to clarify that the definition does not
include non-discretionary activities or decisions made in accordance
with the agency's statutory authority. The Supreme Court has held that
analysis of a proposed action's effects under NEPA is not required
where an agency has limited statutory authority and ``simply lacks the
power to act on whatever information might be contained in the EIS.''
Pub. Citizen, 541 U.S. at 768; see also South Dakota, 614 F.2d at 1193
(holding that the Department of the Interior's issuance of a mineral
patent that was a ministerial act did not come within NEPA); Milo Cmty.
Hosp. v. Weinberger, 525 F.2d 144, 148 (1st Cir. 1975) (NEPA analysis
of impacts not required when agency was under a statutory duty to take
the proposed action of terminating a hospital). CEQ includes this
clarification in paragraph (q)(1)(ii).
iv. Final Agency Action and Failure To Act
CEQ proposed to strike the statement that major Federal action
includes a failure to act and instead clarify that the definition
excludes activities or decisions that do not result in final agency
action under the APA. The basis for including only final agency actions
is the statutory text of the APA, which provides a right to judicial
review of all ``final agency action[s] for which there is no other
adequate remedy in a court.'' 5 U.S.C. 704. CEQ includes this
clarification in paragraph (q)(1)(iii) of the final rule and includes
``or other statute that also includes a finality requirement'' because
CEQ recognizes that other statutes may also contain finality
requirements beyond those of the APA. As the NPRM noted, NEPA applies
when agencies are considering a proposal for decision. In the case of a
``failure to act,'' there is no proposed action and therefore there are
no alternatives that the agency may consider. S. Utah Wilderness All.,
542 U.S. at 70-73. Judicial review is available only when an agency
fails to take a discrete action it is required to take. Id. In omitting
the reference to a failure to act from the definition of ``major
Federal action,'' CEQ does not contradict the definition of ``agency
action'' under the APA at 5 U.S.C. 551(13), and recognizes that the APA
may compel agency action that is required but has been unreasonably
withheld. If an agency is compelled to take such agency action, it
should prepare a NEPA analysis at that time, as appropriate.
v. Enforcement Actions
In the final rule, CEQ moves the exclusion of judicial or
administrative civil or criminal enforcement actions from 40 CFR
1508.18(a) to paragraph (q)(1)(iv) of Sec. 1508.1. CEQ did not propose
changes to this language in the NPRM. In the final rule, CEQ moves this
language and revises it consistent with the format of the list in
paragraph (q)(1).
vi. General Revenue Sharing Funds
CEQ proposed to strike the specific reference to the State and
Local Fiscal Assistance Act of 1972 from 40 CFR 1508.18(a) and clarify
that general revenue sharing funds do not meet the definition of major
Federal action because the agency has no discretion. CEQ includes this
change in paragraph (q)(1)(v) in the final rule.
vii. Minimal Federal Funding or Involvement
CEQ proposed to clarify that non-Federal projects with minimal
Federal funding or minimal Federal involvement such that the agency
cannot control the outcome of the project are not major Federal
actions. The language in paragraph (q)(1)(vi) of the final rule is
consistent with the holdings of relevant circuit court cases that have
addressed this issue. See Rattlesnake Coal. v. U.S. EPA, 509 F.3d 1095,
1101 (9th Cir. 2007) (Federal funding comprising six percent of the
estimated implementation budget not enough to federalize implementation
of entire project); New Jersey Dep't of Envtl. Prot. & Energy v. Long
Island Power Auth., 30 F.3d 403, 417 (3d Cir. 1994) (``Federal approval
of a private party's project, where that approval is not required for
the project to go forward, does not constitute a major Federal
action.''); United States v. S. Fla. Water Mgmt. Dist., 28 F.3d 1563,
1572 (11th Cir. 1994) (``The touchstone of major [F]ederal activity
constitutes a [F]ederal agency's authority to influence nonfederal
activity. `The [F]ederal agency must possess actual power to control
the nonfederal activity.' '' (quoting Sierra Club v. Hodel, 848 F.2d
1068, 1089 (10th Cir. 1988), overruled on other grounds by Vill. of Los
Ranchos de Albuquerque v. Marsh, 956 F.2d 970 (10th Cir. 1992));
Sugarloaf Citizens Ass'n v. FERC, 959 F.2d 508, 512 (4th Cir. 1992);
Save Barton Creek Ass'n v. Fed. Highway Admin., 950 F.2d 1129, 1134-35
(5th Cir. 1992); Macht v. Skinner, 916 F.2d 13, 20 (D.C. Cir. 1990)
(funding for planning and studies not enough to federalize a project);
Vill. of Los Ranchos de Albuquerque v. Barnhart, 906 F.2d 1477, 1482
(10th Cir. 1990); Sierra Club v. Penfold, 857 F.2d 1307, 1314 (9th Cir.
1998) (finding that the Bureau of Land Management's review of Notice
mines, which do not require agency approval before commencement of
mining, is ``only a marginal [F]ederal action rather than a major
action''); Winnebago Tribe of Neb. v. Ray, 621 F. 2d 269, 272 (8th Cir.
1980) (``Factual or veto control, however, must be distinguished from
legal control or `enablement''' (citing Med. Ctr., Inc., 584 F.2d
619)); Atlanta Coal. on the Transp. Crisis v. Atlanta Reg'l Comm'n, 599
F.2d 1333, 1347 (5th Cir. 1979); Ctr. for Biological Diversity v. HUD,
541 F. Supp. 2d 1091, 1099 (D. Ariz. 2008), aff'd, Ctr. for Biological
Diversity v. HUD, No. 09-16400, 359 Fed. Appx. 781, 2009 WL 4912592
(9th Cir. Nov. 25, 2009) (unreported); see also Touret v. NASA, 485 F.
Supp. 2d 38 (D.R.I. 2007).
As discussed in the NPRM, in these 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. The final rule includes these criteria in paragraph
(q)(1)(vi) to make clear that these projects are ones where the agency
does not exercise sufficient control and responsibility over the
outcome of the project.
CEQ expects that agencies will further define these non-major
actions, for which the agency does not exercise sufficient control and
responsibility over the outcome of the project, in their agency NEPA
procedures pursuant to Sec. 1507.3(d)(4). For example, agencies that
exercise trust responsibilities over activities or decisions that occur
on or involve land held in trust by the United
[[Page 43348]]
States for the benefit of an Indian Tribe, or are held in fee subject
to a restriction against alienation, may define those activities or
decisions that involve minimal Federal funding or involvement. In such
circumstances, the Federal Government does not exercise sufficient
control and responsibility over the effects of actions on Indian lands,
and a ``but for'' causal relationship of requiring Federal approval for
such actions is insufficient to make an agency responsible for any
particular effects from such actions.
In the NPRM, CEQ also invited comment on 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 did not receive sufficient information
to establish such a threshold in the final rule.
viii. Loans and Loan Guarantees
CEQ also proposed to exclude loans, loan guarantees, and other
forms of financial assistance where the Federal agency does not
exercise sufficient control and responsibility over the effects of the
action. CEQ includes this in the final rule in paragraph (q)(1)(vii),
changing ``action'' to ``such assistance'' to remove the ambiguity with
the use of the defined term in the definition. CEQ proposed to also
exclude 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. CEQ includes these as
examples of loan guarantees in paragraph (q)(1)(vii) and makes one
correction to the citation to SBA's business loan guarantee programs,
changing the final section cited from 697f to 697g.
By guaranteeing loans, FSA is not lending Federal funds; a
``guaranteed loan'' under FSA regulations is defined in 7 CFR 761.2(b)
as a ``loan made and serviced by a lender for which the Agency has
entered into a Lender's Agreement and for which the Agency has issued a
Loan Guarantee.'' The FSA loan guarantees are limited statutorily to an
amount not to exceed $1.75 million (with allowance for inflation). See
7 U.S.C. 1925 and 1943. For fiscal year 2019, the average loan amount
for a guaranteed operating loan is $289,393; and the average for a
guaranteed farm ownership loan is $516,859.\114\ The relatively modest
amounts of these loan guarantees suggest that these are not ``major''
within the meaning of the NEPA statute and for that reason CEQ makes
this result clear in a specific application of its definition of
``major Federal action.'' In determining whether Federal funding
federalizes a non-Federal action, courts have considered whether the
proportion of Federal funds in relation to funds from other sources is
``significant.'' See, e.g., Ka Makani `O Kohala Ohana Inc. v. Dep't of
Water Supply, 295 F.3d 955, 960 (9th Cir. 2002) (``While significant
[F]ederal funding can turn what would otherwise be a [S]tate or local
project into a major Federal action, consideration must be given to a
great disparity in the expenditures forecast for the [S]tate [and
county] and [F]ederal portions of the entire program. . . . In the
present case, the sum total of all of the [F]ederal funding that was
ever offered . . . is less than two percent of the estimated total
project cost.'' (alteration in original) (internal quotation marks and
citation omitted)); Friends of the Earth, Inc. v. Coleman, 518 F.2d
323, 329 (9th Cir. 1975) (holding Federal funding amounting to 10
percent of the total project cost not adequate to federalize project
under NEPA); Sancho v. Dep't of Energy, 578 F. Supp. 2d 1258, 1266-68
(D. Haw. 2008) (Federal provision of less than 10 percent of project
costs not sufficient to federalize project); Landmark West! v. U.S.
Postal Serv., 840 F. Supp. 994, 1009 (S.D.N.Y. 1993), aff'd, 41 F.3d
1500 (2d Cir. 1994) (holding U.S. Postal Service's role in private
development of new skyscraper was not sufficient to federalize the
project).
---------------------------------------------------------------------------
\114\ See Executive Summary for Farm Loan Programs in Fiscal
Year 2019, https://www.fsa.usda.gov/Assets/USDA-FSA-Public/usdafiles/Farm-Loan-Programs/pdfs/program-data/FY2019_Executive_Summary.pdf. See generally https://www.fsa.usda.gov/programs-and-services/farm-loan-programs/program-data/index.
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Furthermore, FSA loan guarantee programs do not provide any Federal
funding to the participating borrower. Rather, FSA's role is limited to
providing a guaranty to the private lender; no Federal funds are
expended unless the borrower defaults on the private third-party loan,
and the lender is unable to recover its debt through foreclosure of its
collateral. In the event of default, the guarantee is paid to the
lender, not to lender's borrower. FSA rarely makes guaranteed loan loss
claim payments because delinquency rates are very low, ranging from
between 0.98 and 1.87 percent from 2005 to 2019, and 1.62 percent in
2019.\115\ The FSA guaranteed loan loss rates have ranged between 0.2
and 0.6 percent during the same time period.\116\
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\115\ See Guaranteed Loan Executive Summary, as of FY 2019,
https://www.fsa.usda.gov/Assets/USDA-FSA-Public/usdafiles/Farm-Loan-Programs/pdfs/program-data/FLP_Guaranteed_Loan_Servicing_Executive_Summary.pdf.
\116\ Id.
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For purposes of triggering NEPA, ``[t]he mere possibility of
[F]ederal funding in the future is too tenuous to convert a local
project into [F]ederal action.'' Pres. Pittsburgh v. Conturo, 2011 U.S.
Dist. LEXIS 101756, at *13 (W.D. Pa. 2011). Indeed, in Sancho, the
court observed that ``analysis of the `major Federal action'
requirement in NEPA must focus upon [F]ederal funds that have already
been distributed. Federal funds that have only been budgeted or
allocated toward a project cannot be considered because they are not an
`irreversible and irretrievable commitment of resources.' '' Sancho,
578 F. Supp. 2d at 1267 (internal citation omitted). The court further
stated that ``[t]he expectation of receiving future funds will not
transform a local or state project into a federal project. . . .
Regardless of the percentage, consideration of the budgeted future
federal funds is not ripe for consideration in the `major Federal
action' analysis.'' Id. Other district courts have also found that, to
federalize a project, the Federal funding must be more than ``the
passive deferral of a payment'' and must be provided ``primarily to
directly further a policy goal of the funding agency.'' Hamrick v. GSA,
107 F. Supp. 3d 910, 926 (C.D. Ill. 2015) (citing Landmark West!, 840
F. Supp. at 1007).
FSA's role is to protect the financial interests of the United
States, and its relationship is with the lender not the borrower. 7 CFR
762.103(a). FSA's involvement is primarily to ensure the financial
stability of the loan and ensure proper loan servicing by the lender.
Therefore, the context of these FSA regulations does not involve NEPA
and is not compliance-driven but only meant to ensure that, in the
event of a default, the loan proceeds are disbursed by the lender, used
properly, and that the project is completed and operating so as to
produce income necessary for the loan to be repaid.
If a lender violates one of FSA's regulations, FSA's only remedy is
not to pay the loss claim in the event of a liquidation. FSA does not
possess control or actual decision-making authority over the lender's
issuance of the loan, the funded facility, or operations of the
borrower. Courts have
[[Page 43349]]
recognized Federal agencies do not have sufficient control over loan
guarantees to trigger NEPA. See, e.g., Ctr. for Biological Diversity,
541 F. Supp. 2d 1091, aff'd, Ctr. for Biological Diversity, No. 08-
16400, 359 F. Appx. 781 (``The agencies guarantee loans issued by
private lenders to qualified borrowers, but do not approve or undertake
any of the development projects at issue. The agencies' loan guarantees
have such a remote and indirect relationship to the watershed problems
allegedly stemming from the urban development that they cannot be held
to be a legal cause of any effects on the protected species for
purposes of either the ESA or the NEPA.'' Ctr. for Biological
Diversity, No. 08-16400, 359 F. Appx. at 783). ``The [F]ederal agency
must possess actual power to control the nonfederal activity.'' Hodel,
848 F.2d at 1089, overruled on other grounds by Vill. of Los Ranchos de
Albuquerque v. Marsh, 956 F.2d 970.
SBA's business loan programs include general business loan programs
(7(a) Program), authorized by section 7(a) of the Small Business Act,
15 U.S.C. 636(a); the microloan demonstration loan program (Microloan
Program), authorized by section 7(m) of the Small Business Act, 15
U.S.C. 636(m); and the development company program (504 Program), which
is a jobs-creation program, authorized by Title V of the Small Business
Investment Act of 1958, 15 U.S.C. 695-697g. Under all of these
programs, SBA does not recruit or work with the borrower, or service
the loan unless, following a default in payment, the lender has
collected all that it can under the loan.
Under the 7(a) Program, SBA guarantees a percentage of the loan
amount extended by a commercial lender to encourage such lenders to
make loans to eligible small businesses. The lender seeks and receives
the guaranty, not the applicant small business. In over 80 percent of
loans stemming from the 7(a) Program, the lender approves the loan
without SBA's prior review and approval through the 7(a) Program's
Preferred Lender Program (``PLP program'').\117\ Further, SBA does not
expend Federal funds unless there is a default by the borrower in
paying the loan; in such cases, SBA reimburses the lender in accordance
with SBA's guarantee percentage. The maximum amount for a standard loan
under the 7(a) program is $5 million, while various 7(a) loans have
lesser maximum amounts of $500,000 or less.\118\
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\117\ Pursuant to the Small Business Act, under the PLP program,
SBA delegates responsibility to experienced and qualified lenders to
issue an SBA guarantee on a loan without prior approval by SBA. The
PLP program is defined as a ``program established by the
Administrator . . . under which a written agreement between the
lender and the Administration delegates to the lender . . . complete
authority to make and close loans with a guarantee from the
Administration without obtaining the prior specific approval of the
Administration . . . .'' 15 U.S.C. 636(a)(2)(C)(iii). Thus, PLP
program lenders have delegated authority to make SBA-guaranteed
loans without any approval from SBA.
\118\ 15 U.S.C. 636(a).
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Under the Microloan Program, recipient entities can obtain loans,
up to $50,000, for certain, limited purposes. SBA provides funds to
designated intermediary lenders, which are non-profit, community-based
organizations. Each of the lenders has its own lending and credit
requirements, and the lenders extend the microloan financing.
Recipients only may use the funds for working capital, inventory or
supplies, furniture or fixtures, or machinery or equipment. They cannot
purchase real estate or pay existing debt.
Under the 504 Program, small businesses can obtain long-term,
fixed-rate financing to acquire or improve capital assets. Certified
Development Companies (CDCs), which are private, mostly non-profit,
corporations certified by SBA to promote local and community economic
development, implement the program. Typically, a 504 Program project is
funded by three sources: (1) A loan, secured with a senior lien, from a
private-sector lender for 50 percent of the project costs; (2) an
equity contribution from the borrower of at least 10 percent of the
project costs; and (3) a loan covering up to 40 percent of the total
costs, which is funded by proceeds from the sale to investors of an
SBA-guaranteed debenture issued by a CDC.\119\ The 504's Premier
Certified Lender Program (``PCLP program'') provides for only limited
SBA review of eligibility, and SBA delegates the responsibility to CDCs
to issue an SBA guarantee of debenture for eligible loans without prior
approval by SBA. 15 U.S.C. 697e.\120\ Under the 504 program, the
maximum loan amount is $5 million, although small manufacturers or
certain energy projects, including energy efficiency or renewable
generation projects, may qualify for a $5.5 million debenture.\121\ SBA
does not expend Federal funds unless there is a default by the borrower
in paying the debenture-funded loan, in which case SBA pays the
outstanding balance owed on the debenture to the investors. SBA expends
Federal funds on its loan guarantee programs only when expected losses
from defaults exceed expected fee collections. Section 7(a) and 504
loan program delinquency rates are 0.8 percent and 0.7 percent as of
July 2019 respectively.\122\
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\119\ In the 504 program, SBA guarantees payments of debentures,
which are bonds sold to investors. The proceeds from the sale of the
debentures are used to fund the underlying loans to borrowers.
\120\ Congress has mandated that guaranteed loans made by PCLPs
shall not include SBA ``review of decisions by the lender involving
creditworthiness, loan closing, or compliance with legal
requirements imposed by law or regulation.'' 15 U.S.C. 697e(e)(2).
\121\ 15 U.S.C. 696(2)(A).
\122\ See SBA Fiscal Year 2019 Agency Financial Report at 22,
available at https://www.sba.gov/document/report--agency-financial-report.
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CEQ has determined that FSA and SBA do not have sufficient control
and responsibility over the underlying activities to meet the
definition of major Federal action. The issuance of loan guarantees to
a non-Federal lender to back a percentage of a loan that the lender
decides to make to a private, third-party borrower is insufficient
control or authority over the underlying project. See Rattlesnake
Coal., 509 F.3d at 1102 (``The United States must maintain decision
making authority over the local plan in order for it to become a major
[F]ederal action.''); Ka Makani, 295 F.3d at 961 (``Because the final
decision-making power remained at all times with [the State agency], we
conclude that the [Federal agency] involvement was not sufficient to
constitute `major [F]ederal action.' '' (quoting Barnhart, 906 F.2d at
1482)); S. Fla. Water Mgmt. Dist., 28 F.3d at 1572 (``The [F]ederal
agency must possess actual power to control the nonfederal activity.''
(citation omitted)).
CEQ also invited comment on whether any other types of financial
instruments should be considered non-major Federal actions and the
basis for such exclusion. CEQ did not receive sufficient comments to
make any additional changes to the definition of major Federal action
with respect to other financial instruments.
ix. Other Changes to Major Federal Action
In the final rule, paragraphs (q)(2) and (3) include the examples
of activities and decisions that are in 40 CFR 1508.18(a) and (b). CEQ
invited comment on whether it should change ``partly'' to
``predominantly'' in paragraph (q)(2) for consistency with the edits to
the introductory text regarding ``minimal Federal funding.'' CEQ does
not make this change in the final rule. CEQ notes that ``continuing''
activities in paragraph (q)(2) refers to situations where a major
Federal action remains to occur, consistent with Sec. 1502.9(d) and
Norton v. Southern Utah Wilderness Alliance. 542 U.S. at 73.
[[Page 43350]]
CEQ proposed to insert ``implementation of'' before ``treaties'' in
proposed paragraph (q)(2)(i) to clarify that the major Federal action
is not the treaty itself, but rather an agency's action to implement
that treaty. CEQ makes this change in Sec. 1508.1(q)(3)(i) of the
final rule and clarifies that this includes an agency's action to
implement a treaty pursuant to statute or regulation. CEQ also changes
``pursuant to'' to ``under'' the APA and adds a reference to ``other
statutes'' after the APA. While agencies conduct the rulemaking process
pursuant to the APA, they also may do so under the authority of the
specific statutes.
CEQ proposed to strike ``guide'' from proposed paragraph (q)(2)(ii)
because guidance is non-binding. CEQ makes this change in the final
rule in Sec. 1508.1(q)(3)(ii).
Finally, CEQ invited comment in the NPRM on whether CEQ should
further revise the definition of ``major Federal action'' to exclude
other per se categories of activities or to further address what NEPA
analysts have called ``the small handle problem.'' \123\ CEQ did not
receive sufficient information to make any additional changes.
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\123\ 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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18. Definition of ``Matter''
The NPRM did not propose any changes to the definition of matter in
paragraph (r). CEQ did not revise this definition in the final rule.
19. Clarifying the Meaning of ``Mitigation''
CEQ proposed 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 proposed 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 change will 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 29.
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 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.\124\
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\124\ See Council on Environmental Quality, Aligning National
Environmental Policy Act Processes with Environmental Management
Systems (Apr. 2007), https://ceq.doe.gov/docs/ceq-publications/NEPA_EMS_Guide_final_Apr2007.pdf.
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CEQ makes the proposed changes in the final rule with minor edits
to improve clarity. Specifically, CEQ replaces ``reasonably foreseeable
impacts to the human environment'' with ``effects'' to more precisely
refer to the defined term ``effects.'' In response to comments, CEQ
also adds ``or alternatives'' after ``proposed action'' to clarify that
mitigation measures mean measures to avoid, minimize, or compensate for
effects caused by a proposed action or its alternatives. CEQ also
replaces ``the effects of a proposed action'' with ``those effects'' to
reduce wordiness and provide additional clarity.
20. Definition of ``NEPA Process''
The NPRM did not propose any changes to the definition of NEPA
process in paragraph (t). CEQ did not revise this definition in the
final rule.
21. Clarifying the Meaning of ``Notice of Intent''
CEQ proposed to revise the definition of ``notice of intent'' in
paragraph (u) to move the operative requirements for what agencies must
include in the notices to Sec. 1501.9(d) and add the word ``public''
to clarify that the NOI is a public notice. CEQ makes these changes in
the final rule.
22. New Definition of ``Page''
CEQ proposed a new definition of ``page'' in paragraph (v) to
provide a word count (500 words) for a more standard functional
definition of ``page'' for page count and other NEPA purposes. CEQ adds
this definition as proposed to the final rule. As discussed in the
NPRM, this change updates NEPA for modern electronic publishing and
internet formatting, in which the number of words per page can vary
widely depending on format. It also ensures 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.
23. New Definition of ``Participating Agency''
CEQ proposed to add the concept of a participating agency to the
CEQ regulations in paragraph (w). CEQ proposed to define participating
agency consistent with the definition in FAST-41 and 23 U.S.C. 139. CEQ
proposed to add participating agencies to Sec. 1501.7(i) regarding the
schedule and replace the term ``commenting'' agencies with
``participating'' agencies throughout. CEQ adds this definition as
proposed to the final rule.
24. Clarifying the Meaning of ``Proposal''
CEQ proposed clarifying edits to the definition of proposal in
paragraph (x) and to strike the operative language regarding timing of
an EIS because it is already addressed in Sec. 1502.5. CEQ makes these
changes in the final rule.
25. New Definition of ``Publish and Publication''
CEQ proposed to define publish and publication in paragraph (y) 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 the modern internet and GIS mapping tools.
To ensure that agencies do not exclude the affected public from the
NEPA process due to a lack of resources (often referred to as the
``digital
[[Page 43351]]
divide''), the definition retains a provision for printed environmental
documents where necessary for effective public participation. CEQ adds
this definition as proposed in the final rule.
26. New Definition of ``Reasonable Alternatives''
Several ANPRM 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 proposed a
new definition of ``reasonable alternatives'' in paragraph (z) to
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 proposed to define
reasonable alternatives as ``a reasonable range of alternatives'' to
codify Questions 1a and 1b in the Forty Questions, supra note 2.
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 proposed 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 will 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 other congressional directives, in
defining the proposed action's purpose and need. CEQ adds this
definition as proposed in the final rule.
27. New Definition of ``Reasonably Foreseeable''
CEQ received comments on the ANPRM requesting that the regulations
provide a definition of ``reasonably foreseeable.'' CEQ proposed to
define ``reasonably foreseeable'' in paragraph (aa) consistent with the
ordinary person standard--that is what a person of ordinary prudence in
the position of the agency decision maker would consider in reaching a
decision. Sierra Club v. Marsh, 976 F.2d 763, 767 (1st Cir. 1992). CEQ
adds this definition as proposed in the final rule.
28. Definition of ``Referring Agency''
CEQ proposed a grammatical edit to the definition of referring
agency in paragraph (bb). CEQ makes this change in the final rule.
29. Definition of ``Scope''
CEQ proposed to move the operative language from paragraph (cc),
which tells agencies how to determine the scope of an EIS, to Sec.
1501.9(e). CEQ makes this change in the final rule.
30. New Definition of ``Senior Agency Official''
CEQ proposed to define the new term ``senior agency official'' in
paragraph (dd) to provide for agency officials that are responsible for
the agency's NEPA compliance. As reflected in comments, implementation
of NEPA can require significant agency resources. Without senior agency
official leadership and effective management of NEPA reviews, the
process can be lengthy, costly, and subject to uncertainty and delays.
CEQ seeks to advance efficiencies to ensure that agencies use their
limited resources to effectively consider environmental impacts and
support timely and informed decision making by the Federal Government.
CEQ adds this definition with some changes in the final rule.
Specifically, CEQ does not include the phrase ``and representing agency
analysis of the effects of agency actions on the human environmental in
agency decision-making processes'' because the duties and
responsibilities of the ``senior agency official,'' including
representing the agency, are discussed in various provisions of the
subchapter. See Sec. Sec. 1501.5(f), 1501.7(d), 1501.8(b)(6) and (c),
1501.10, 1502.7, 1507.2.
31. Definition of ``Special Expertise''
The NPRM did not propose any changes to the definition of special
expertise in paragraph (ee). CEQ did not revise this definition in the
final rule.
32. Striking the Definition of ``Significantly''
Because 40 CFR 1508.27 did not define ``significantly,'' but rather
set out factors for agencies to consider in assessing whether a
particular effect is significant, CEQ proposed to strike this
definition and discuss significance in Sec. 1501.3(b), as described in
section II.C.3. CEQ makes this change in the final rule.
33. Clarifying the Meaning of ``Tiering''
CEQ proposed to amend the definition of ``tiering'' in paragraph
(ff) to make clear that agencies may use EAs at the programmatic stage
as well as the subsequent stages. This clarifies that agencies have
flexibility in structuring programmatic NEPA reviews and associated
tiering. CEQ proposed to move the operative language describing how any
agency determines when and how to tier from 40 CFR 1508.28 to Sec.
1501.11(b). CEQ makes these changes in the final rule.
K. CEQ Guidance Documents
In the proposed rule, CEQ stated that if the proposal was adopted
as a final rule, it would supersede any previous CEQ NEPA guidance and
handbooks. With this final rule, CEQ clarifies that it will provide
notice in the Federal Register listing withdrawn guidance. CEQ will
issue updated or new guidance consistent with Presidential directives.
CEQ also intends to update the Citizen's Guide to NEPA.\125\
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\125\ Supra note 29.
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III. Rulemaking Analyses and Notices
A. Executive Order 12866, Regulatory Planning and Review and Executive
Order 13563, Improving Regulation and Regulatory Review
E.O. 12866 \126\ directs agencies to assess all costs and benefits
of available regulatory alternatives, and if regulation is necessary,
to select regulatory approaches that maximize net benefits, including
potential economic, environmental, public health and safety effects,
and other advantages; distributive impacts; and equity. E.O. 13563
\127\ reaffirms E.O. 12866, and directs agencies to use a process that
provides for public participation in developing rules; promotes
coordination, simplification, and harmonization; and reduces burdens
and maintains flexibility.
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\126\ 58 FR 51735 (Oct. 4, 1993).
\127\ 76 FR 3821 (Jan. 21, 2011).
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Section 3(f) of E.O. 12866 sets forth the four categories of
regulatory action that meet the definition of a significant regulatory
action. The first category includes rules that have an annual effect on
the economy of $100 million or adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, Tribal, or local
governments or communities. Some commenters stated that this rulemaking
would have such an effect, and therefore CEQ should have prepared a
regulatory impact statement. Commenters noted, for example, proposed
changes to the definition of effects, alternatives analysis, and
overall effect on the number of Federal actions subject to NEPA as
examples of impacts
[[Page 43352]]
contributing to an impact of over $100 million on the public.
CEQ agrees that this an economically significant action. However,
many of the changes made in this rule codify long-standing practices
and case law that have developed since CEQ issued the 1978 regulations.
Under OMB Circular A-4, ``Regulatory Analysis'' (Sept. 17, 2003),\128\
the ``no action'' baseline is ``what the world will be like if the
proposed rule is not adopted.'' Changes to the regulations based on
long-standing guidance and Supreme Court case law would be included in
the baseline for the rule; therefore, their codification would generate
marginal cost savings. Similarly, changes that clarify or otherwise
improve the ability to interpret and implement the regulations would
have little to no quantifiable impact. The appendix to the Regulatory
Impact Analysis for the Final Rule, Update to the Regulations
Implementing the Procedural Provisions of the National Environmental
Policy Act \129\ (``RIA Appendix'') provides a summary of the
anticipated economic and environmental impacts associated with the
changes in the final rule. In evaluating economic and environmental
impacts, CEQ has considered the statute and Supreme Court case law, and
the 1978 regulations. As discussed throughout Section II and the Final
Rule Response to Comments, CEQ has made revisions to better align the
regulations with the statute, codify Supreme Court case law and current
agency practice, improve the timeliness and efficiency of the NEPA
process, and make other changes to improve the clarity and readability
of the regulations.
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\128\ 68 FR 58366 (Oct. 10, 2003).
\129\ The Regulatory Impact Analysis for the Final Rule, Update
to the Regulations Implementing the Procedural Provisions of the
National Environmental Policy Act is available under ``Supporting
Documents'' in the docket on regulations.gov under docket ID CEQ-
2019-0003.
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The revisions to CEQ's regulations are anticipated to significantly
lower administrative costs as a result of changes to reduce unnecessary
paperwork. Government-wide, the average number of pages for a final EIS
is approximately 661 pages. The final rule includes numerous changes to
reduce the duplication of paperwork and establishes presumptive page
limits for EAs of 75 pages, and for EISs of 150 pages (or 300 pages for
proposals of unusual scope or complexity).\130\ However, agencies may
request longer page limits with approval from a senior agency official
and include additional material as appendices. The final rule also
makes numerous changes to improve the efficiency of the NEPA process
and establishes presumptive time limits for EAs of one year and for
EISs of two years, which may be extended with approval of a senior
agency official. CEQ expects the final rule to reduce the length of EAs
and EISs, and the time for completing and these analyses, and to lower
administrative costs government-wide.
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\130\ The 1978 regulations recommended the same page limits for
EISs but did not include provisions requiring agencies to meet those
page limits. 40 CFR 1502.7.
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A total of 1,276 EISs were completed from 2010 through 2018, and
the median EIS completion time was 3.5 years with only 257 EISs
completed in 2 years or less.\131\ Based on the efficiencies and
presumptive time limit for EISs in the final rule, the length of time
to complete the 1019 EISs that took longer than 2 years could be
reduced by 58 percent, assuming a 2-year completion time for all of
those actions. Applying this potential time savings to the total
administrative cost to prepare those EISs taking in excess of 2 years
could result in roughly $744 million in savings over the 9-year time
period for an annualized savings of roughly $83 million (2016 adjusted
dollars).\132\ The amount of time required to prepare an EIS does not
necessarily correlate with the total cost. However, for those EISs
taking over two years to prepare, comparing the anticipated time
savings with the respective administrative costs provides insight into
the potential cost savings that an agency may generate under the final
rule. Additionally, CEQ notes that there may be cost savings related to
the preparation of EAs and application of CEs. While the cost of these
actions is significantly lower, agencies conduct such reviews in much
larger numbers than EISs.
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\131\ See Council on Environmental Quality, EIS Timeline Data
Excel Workbook, (June 12, 2020), https://ceq.doe.gov/docs/nepa-practice/CEQ_EIS_Timeline_Data_2020-6-12.xlsx.
\132\ This calculation uses the mid-point ($1.125 million) of
the $250,000 to $2 million cost range found in the NEPA Task Force
report and assumes a 58 percent reduction in costs for those EISs
taking longer than 2 years. NEPA Task Force Report, supra, note 28.
This number is similar to the cost data from the Department of
Energy, which found a median EIS cost of $1.4 million. GAO NEPA
Report, supra, note 91.
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Agencies have not routinely tracked costs of completing NEPA
analyses.\133\ With implementation of this final rule, in particular
Sec. 1502.11(g), agencies will be required to provide the estimated
total cost of preparing an EIS. CEQ expects this will begin to address
the data gap that currently exists relating to the administrative costs
of NEPA compliance.
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\133\ As noted above, a 2014 U.S. Government Accountability
Office report 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. GAO NEPA Report, supra note 91.
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CEQ expects these and other changes in the final rule to catalyze
economic benefits by expediting some reviews, including through
improved coordination and management and less focus on non-significant
impacts. Commenters from industry on both the ANPRM and proposed rule
frequently discussed that delays under the 1978 regulations resulted in
higher costs; however, these costs are difficult to quantify. One
estimate in 2015 found that the cost of a 6-year delay in
infrastructure projects across the electricity transmission, power
generation, inland waterways, roads and bridges, rail, and water (both
drinking and wastewater) sectors is $3.7 trillion,\134\ which was
subsequently updated to $3.9 trillion in 2018.\135\ There may be
underlying permits and consultations (e.g., the Endangered Species Act)
and other issues that contribute to a delay and therefore allocating a
portion of the cost to the NEPA process would be challenging.
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\134\ Two Years, Not Ten, supra note 4.
\135\ Press Release, Common Good, Common Good Updates the Cost
of US Infrastructure Delays Costs Have Risen $200 Billion Over Five
Years to Nearly $3.9 Trillion (May 2018), https://www.commongood.org/wp-content/uploads/2018/05/Two-Years-Update.pdf.
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NEPA is a procedural statute requiring agencies to disclose and
consider potential environmental effects in their decision-making
processes. The final rule does not alter any substantive environmental
law or regulation such as the Clean Air Act, the Clean Water Act, and
the Endangered Species Act. Under the final rule, agencies will
continue to consider all significant impacts to the environment.
Although some may view the changes in the final rule as reducing the
number or scope of analyses, CEQ has determined that, using a baseline
of the statutory requirements of NEPA and Supreme Court case law, there
are no adverse environmental impacts (see RIA Appendix).
OMB has determined that this final rule is an economically
significant regulatory action because it may have an annual effect on
the economy of $100 million or more associated with lower
administrative costs and reduced paperwork and delays in the
environmental review process. This rule sets forth the government-wide
process for implementing NEPA in a consistent and coordinated manner.
The rule will also require agencies to update their existing NEPA
procedures for
[[Page 43353]]
consistency with the changes set forth in this final rule.
B. Executive Order 13771, Reducing Regulation and Controlling
Regulatory Costs
Under E.O. 13771,\136\ agencies must identify for elimination two
prior regulations for every one regulation issued, and promulgate
regulations consistent with a regulatory budget. This rule is a
deregulatory action under E.O. 13771 and OMB's guidance implementing
E.O. 13771, titled ``Reducing Regulation and Controlling Regulatory
Costs'' (April 5, 2017).\137\ CEQ anticipates that the changes made in
this rule will reduce unnecessary paperwork and expedite some reviews
through improved coordination and management.
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\136\ 82 FR 9339 (Feb. 3, 2017).
\137\ Available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-21-OMB.pdf.
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C. 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 \138\ 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 a regulatory
flexibility analysis at the proposed and final rule stages unless it
determines and certifies that the rule, if promulgated, would not have
a significant economic impact on a substantial number of small
entities. 5 U.S.C. 605(b). An agency need not perform an analysis of
small entity impacts when a rule does not directly regulate small
entities. See Mid-Tex Electric Coop., Inc. v. FERC, 773 F.2d 327 (D.C.
Cir. 1985). This rule does not directly regulate small entities.
Rather, it applies to Federal agencies and sets forth the process for
their compliance with NEPA. As noted above, NEPA is a procedural
statute requiring agencies to disclose and consider potential
environmental effects in their decision-making processes, and does not
alter any substantive environmental law or regulation. Under the final
rule, agencies will continue to consider all significant impacts to the
environment.
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\138\ 67 FR 53461 (Aug. 16, 2002).
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A few commenters asserted that the rule would impact small
entities, including small businesses that provide services relating to
the preparation of NEPA documents, outdoor recreation businesses, and
other related small businesses. To the extent that the rule may affect
small entities, this rulemaking will make the NEPA process more
efficient and consistent and clarify the procedural requirements, which
CEQ expects to directly benefit Federal agencies and indirectly benefit
all other entities engaged in the process, including applicants seeking
a Federal permit and those engaged in NEPA compliance activities. In
addition, CEQ expects that small businesses and farmers seeking SBA or
FSA guaranteed loans will indirectly benefit from the clarifying
revisions in the final rule to the definition of major Federal action.
Accordingly, CEQ hereby certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
D. Congressional Review Act
Before a rule can take effect, the Congressional Review Act (CRA)
requires agencies to submit to the House of Representatives, Senate,
and Comptroller General a report containing a copy of the rule and a
statement identifying whether it is a ``major rule.'' 5 U.S.C. 801. OMB
determines if a final rule constitutes a major rule. The CRA defines a
major rule as any rule that the Administrator of OMB's Office of
Information and Regulatory Affairs finds has resulted in or is likely
to result in--(A) an annual effect on the economy of $100,000,000 or
more; (B) a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions, or (C) significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based enterprises to compete with foreign-based enterprises in
domestic and export markets. 5 U.S.C. 804(2).
OMB has determined that this final rule is a major rule for
purposes of the Congressional Review Act. CEQ will submit a report,
including the final rule, to both houses of Congress and the Government
Accountability Office for review.
E. National Environmental Policy Act
Under the CEQ regulations, major Federal actions may include
regulations. When CEQ issued regulations in 1978, it prepared a
``special environmental assessment'' for illustrative purposes pursuant
to E.O. 11991. 43 FR at 25232. The NPRM for the 1978 regulations stated
``the impacts of procedural regulations of this kind are not
susceptible to detailed analysis beyond that set out in the
assessment.'' Id. Similarly, in 1986, while CEQ stated in the final
rule that there were ``substantial legal questions as to whether
entities within the Executive Office of the President are required to
prepare environmental assessments,'' it also prepared a special
environmental assessment. 51 FR at 15619. The special environmental
assessment issued in 1986 made a finding of no significant
environmental impact, and there was no finding made for the assessment
of the 1978 regulations.
Some commenters expressed the view that CEQ failed to comply with
NEPA when publishing the proposed rule that precedes this final rule,
and CEQ should have prepared an EA or EIS. The commenters stated that
section 102(2)(C) of NEPA requires environmental review of major
Federal actions. By not conducting an environmental review under NEPA,
commenters stated that CEQ violated its own regulations and past
practices in prior regulations. Other commenters stated that NEPA
review was required if the proposed rule ``created the possibility'' of
significant impacts on the environment. They asserted that the proposed
rule was a ``sweeping re-write'' of the 1978 regulations that would
alter Federal agencies' consideration of environmental effects of
proposed projects. Aspects of the proposed rule that were referenced in
this regard include expanded use of CEs, narrow definitions of
significance and effects, weakened alternatives analysis, and reduced
public participation and agency accountability. Commenters asserted
that the consequence of these changes is truncated analysis, a less
informed public, and less mitigation.
CEQ disagrees with commenters. CEQ prepared a special assessment on
its prior rules for illustrative purposes. Those long-prior voluntary
decisions do not forever establish that CEQ has an obligation to apply
the CEQ's regulations to changes to those regulations. As noted above,
CEQ has the authority to promulgate and revise its regulations
consistent with Chevron and other applicable case law.
This rule would not authorize any activity or commit resources to a
project that may affect the environment. Similar to the 1978
regulations, these regulations do not concern any particular
environmental media, nor are the regulations tied to a specific
environmental setting. Rather, these regulations apply generally to
Federal actions affecting the environment. No action under the
regulations or specific issue or problem is singled out for special
consideration. See Council on Environmental Quality, Special
[[Page 43354]]
Environmental Assessment of Regulations Proposed Under E.O. 11991 to
Implement the Procedural Provisions of the National Environmental
Policy Act, p. 6 (1978). Further, as stated by CEQ when it proposed the
regulations in 1978, procedural rules of this kind are not susceptible
to detailed analysis. 43 FR at 25232.
Even if CEQ were required to prepare an EA, it likely would result
in a FONSI. CEQ has reviewed the changes made in this final rule and
determined that they would not result in environmental impacts. See RIA
Appendix. For reasons explained in the respective areas of this
preamble and further summarized in the RIA Appendix, CEQ disagrees that
the clarifications and changes to the processes that Federal agencies
follow when relying on CEs, analyzing alternatives, and engaging the
public will themselves result in any environmental impacts, let alone
potentially significant impacts. This thorough review, in combination
with the aforementioned circumstances of the special environmental
assessments prepared for the 1978 and 1986 regulations, and the
procedural nature of these regulations, reinforces CEQ's view that an
EA is neither required nor necessary.
Moreover, preparing an EA for the final rule would not meaningfully
inform CEQ or the public. The clarifications and changes in the final
rule are entirely procedural and will help to inform the processes used
by Federal agencies to evaluate the environmental effects of their
proposed actions in the future.
For reasons explained in the respective areas of this preamble and
further summarized in the RIA Appendix, CEQ disagrees that changes
relating to CEs, analysis of alternatives, public participation, and
agency responsibilities will have environmental impacts, let alone
potentially significant ones.
In addition, commenters referenced several court opinions in
support of their view that an agency's interpretation of a statute can
be subject to NEPA review when that interpretation can lead to
subsequent, significant effects on the environment, including Citizens
for Better Forestry v. U.S. Dep't of Agric., 481 F. Supp. 2d 1059 (N.D.
Cal. 2007) and Sierra Club v. Bosworth, 510 F. 3d 1016 (9th Cir. 2007).
Commenters stated that CEQ was required to request comment on the
appropriate scope of the environmental review of the proposed rule and
then prepare, and notice for public comment, an EIS before or in tandem
with its publication.
The circumstances in this rule are distinctly different from the
case law referenced by commenters. Citizens for Better Forestry
pertains to the misapplication of an existing CE, where the court found
that the agency improperly expanded the scope of an existing CE when
applying it to a National Forest Management Act rulemaking. 481 F.
Supp. at 1086. In Sierra Club v. Bosworth, the court agreed with
previous cases finding that the promulgation of agency NEPA procedures,
including the establishment of new CEs, did not itself require
preparation of an EA or EIS, but that agencies need only comply with
CEQ regulations setting forth procedural requirements, including
consultation with CEQ, and Federal Register publication for public
comment (40 CFR 1507.3). 510 F.3d at 1022. The court, however, found
that the record relied on by the U.S. Forest Service to develop and
justify a CE was deficient. Id. at 1026-30. Neither of the
circumstances in those cases is comparable to the circumstances of this
rule. Further, in another relevant case, Heartwood v. U.S. Forest
Service, the court found that neither NEPA nor the CEQ regulations
required the agency to conduct an EA or an EIS prior to the
promulgation of its procedures creating a CE. 230 F.3d 947, 954-55 (7th
Cir. 2000).
This rule serves as the primary regulation from which agencies
develop procedures to implement the statute. To prepare an EIS, as some
commenters had requested, would necessitate that CEQ apply the 1978
regulations to a rule that revises those same regulations. There is no
indication that the statute contemplated such circumstances, and CEQ is
not aware of other examples in law where the revisions to procedural
rules were subject to the requirements of the rule that those same
rules replaced. Further, the 1978 regulations do not require agencies
to prepare a NEPA analysis before establishing or updating agency
procedures for implementing NEPA. Since this rule would not authorize
any activity or commit resources to a project that may affect the
environment, preparation of an environmental review is not required.
F. Endangered Species Act
Under the ESA, the promulgation of regulations can be a
discretionary agency action subject to section 7 of the ESA. CEQ has
determined that updating its regulations implementing the procedural
provisions of NEPA has ``no effect'' on listed species and critical
habitat. Therefore, ESA section 7 consultation is not required.
Commenters stated that consultation with the Fish and Wildlife
Service and the National Marine Fisheries Service is required because
the rule may affect or may adversely affect species listed under the
ESA. In support of this point, commenters referenced proposed changes
to the definition of ``effects'' and ``significantly,'' development of
alternatives, and obligations for agencies to obtain information.
Commenters noted that a programmatic consultation may be appropriate
where an agency promulgates regulations that may affect endangered
species. Other commenters believe that the rule is contrary to section
7(a)(1) of ESA, which imposes a specific obligation upon all federal
agencies to carry out programs to conserve endangered and threatened
species. Commenters stated that the proposed changes eliminate or
otherwise weaken requirements pertaining to the assessment of impacts
and, in doing so, CEQ fails to satisfy responsibilities under section
7(a)(1).
CEQ disagrees that the aforementioned regulatory changes ``may
affect'' listed species or critical habitat. Initially, it is important
to note that commenters are conflating ESA and NEPA. As courts have
stated numerous times, these are two different statutes with different
standards and definitions and, in fact, different underlying policies.
As discussed in section II.B.1, the Supreme Court has stated that NEPA
is a procedural statute. In contrast, the ESA is principally focused on
imposing substantive duties on Federal agencies and the public.
Regardless of how definitions or other procedures under NEPA are
changed under this regulation or any other regulatory process, it will
not change the requirements for Federal agencies under the ESA or its
implementing regulations.
This rulemaking is procedural in nature, and therefore does not
make any final determination regarding the level of NEPA analysis
required for particular actions. CEQ's approach is consistent with the
approach taken by other Federal agencies that similarly make
determinations of no effect on listed species and critical habitat when
establishing or updating agency NEPA procedures. CEQ also notes that
neither the 1978 regulations nor the 1986 amendments indicate that CEQ
consulted under ESA section 7(a)(2). Setting aside the procedural
nature of this rule, CEQ reviewed it to determine if it ``may affect''
listed species or their designated critical habitat. CEQ has closely
reviewed the impacts of all the changes made to the 1978 regulations,
as summarized in the RIA Appendix and described in greater detail in
the
[[Page 43355]]
respective responses to comments. None of the changes to the 1978
regulations are anticipated to have environmental impacts, including
potential effects to listed species and critical habitat. For example,
under Sec. 1501.3 of the final rule, agencies should continue to
consider listed species and designated habitat when making a
determination of significance with respect to the level of NEPA review.
Contrary to several comments, the final rule does not ignore
cumulative effects on listed species. Rather, the final rule includes a
definition of effects that comports with Supreme Court case law to
encompass all effects that are reasonably foreseeable and have a
reasonably close causal relationship to the proposed action or
alternatives. In general, the changes improve the timeliness and
efficiency of the NEPA process while retaining requirements to analyze
all activities and environmental impacts covered within the scope of
the statute. To the extent the rule modifies the 1978 regulations, the
changes do not diminish the quality and depth of environmental review
relative to the baseline, which is defined as how NEPA is conducted
under applicable Supreme Court case law.
Neither the ESA regulations nor the ESA Section 7 Consultation
Handbook (1998) require the action agency to request concurrence from
the Fish and Wildlife Service and National Marine Fisheries Service for
determinations that an action will have no effect on listed species or
their critical habitat. The final rule does not change the obligations
of Federal agencies under the ESA; as noted above, importantly, all of
the requirements under section 7 and associated implementing
regulations and policies continue to apply regardless of whether NEPA
analysis is triggered or the form of the NEPA documentation. For the
aforementioned reasons, CEQ has determined that the final rule will
have no effect on ESA listed species and designated critical habitat.
To the extent commenters imply that, under the authority of ESA
section 7(a)(1), CEQ can regulate Federal action agencies with regard
to the ESA, this is not accurate. For example, CEQ does not have the
authority, under the guise of NEPA, to dictate to Federal action
agencies that they may only choose an alternative that has the most
conservation value for listed species or designated critical habitat.
All Federal agencies continue to be subject to the ESA and its
requirements. Further, as described in detail in the RIA Appendix and
in Final Rule Response to Comments on specific changes, none of the
changes to the 1978 regulations are anticipated to have environmental
impacts, including potential effects to listed species and critical
habitat. In general, the changes improve the timeliness and efficiency
of the NEPA process while retaining requirements to analyze all
environmental impacts covered within the ambit of the statute. CEQ
notes that the rulemaking is procedural in nature, and therefore does
not make any final determination regarding the level of NEPA analysis
required for particular actions.
G. 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.\139\ 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. This rule does not have federalism implications because it
applies to Federal agencies, not States. However, CEQ notes that States
may elect to assume NEPA responsibilities under Federal statutes. CEQ
received comments in response to the NPRM from a number of States,
including those that have assumed NEPA responsibilities, and considered
these comments in development of the final rule.
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\139\ Supra note 75.
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H. 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.\140\ 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 rule is not a regulatory policy
that has Tribal implications, the rule does, in part, respond to Tribal
government comments concerning Tribal sovereign rights, interests, and
the expertise of Tribes in the NEPA process and the CEQ regulations
implementing NEPA.
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\140\ Supra note 69.
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Several commenters stated that it is inaccurate for CEQ to conclude
that the rule ``is not a regulatory policy that has Tribal
implications,'' under E.O. 13175. Commenters noted that NEPA uniquely
and substantially impacts Tribes, and Tribal lands are ordinarily held
in Federal trust. Commenters also stated that through NEPA and its
implementing regulations, Tribes often engage with the Federal agency
on projects located within the Tribes' ancestral lands, including on
projects that may affect cultural resources, sacred sites, and other
resources. Commenters noted Tribal nations routinely participate in the
NEPA process as participating, cooperating, or sometimes lead agencies.
Further, the proposed regulations specifically contain provisions that
explicitly reference Tribal nations.
Commenters stated that consultation is required by the Presidential
Memorandum for the Heads of Executive Departments and Agencies on
Tribal Consultation dated November 5, 2009,\141\ which supplements E.O.
13175 and requested formal consultation and additional meetings in
their region with CEQ on the proposed rule. Commenters stated that the
Tribal meetings CEQ held were insufficient in number or capacity for
meaningful consultation. Other commenters stated that consultation
should start at the outset of the process, and some reference comments
provided on the need for consultation during the ANPRM process. Some
commenters stated that CEQ should withdraw the proposed rule, and
others asked that CEQ postpone or extend the comment period for the
rulemaking in order to engage in consultation with Tribal governments
in order to make the regulatory framework more responsive to Tribal
needs.
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\141\ 74 FR 57881 (Nov. 9, 2009).
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The final rule does not meet the criteria in E.O. 13175 that
require government-to-government consultation. This rule does not
impose substantial direct compliance costs on Tribal governments
(section 5(b)) and does not preempt Tribal law (section 5(c)). However,
CEQ solicited and received numerous Tribal governmental and
organizational public comments during the rulemaking process. The
comments received through the ANPRM informed the development of CEQ's
proposed rule. For the proposed rule, CEQ provided for a 60-day public
comment period, which is consistent with the length of the comment
period provided by CEQ for the original 1978 proposed regulations, as
well as the APA and E.O. 12866. CEQ notified all
[[Page 43356]]
Tribal leaders of federally recognized Tribes by email or mail of the
proposed rule and invited comments. CEQ conducted additional Tribal
outreach to solicit comments from Tribal leaders and members through
three listening sessions held in Denver, Colorado, Anchorage, Alaska,
and Washington, DC. CEQ made information to aid the Tribes and the
public's review available on its websites at www.whitehouse.gov/ceq and
www.nepa.gov, including a redline version of the proposed changes, a
presentation on the proposed rule, and other background information.
One commenter argued that CEQ made a ``substantive'' decision to
forego Tribal consultation that it must support with substantial
evidence in the administrative record under the APA. While compliance
with E.O. 13175 is not subject to judicial review, the final rule
explains how CEQ received meaningful and timely input from Tribal
leaders and members.
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 in section II.A, CEQ is
amending its regulations in the final rule 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.
I. 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 their missions 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.\142\ CEQ has analyzed
this final 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 agencies can consider, as needed, environmental justice
issues.
---------------------------------------------------------------------------
\142\ 59 FR 7629 (Feb. 16, 1994).
---------------------------------------------------------------------------
Several commenters disagreed with CEQ's determination that the
proposed rule would not cause disproportionately high and adverse human
health or environmental effects on minority populations and low-income
populations. Commenters stated NEPA's mandate to consider environmental
effects, E.O. 12898, agency guidance, and case law establish that
agencies cannot ignore the impacts of their actions on low-income and
minority communities, and that CEQ is relinquishing its responsibility
to oversee compliance with E.O. 12898 and NEPA. Further, commenters
contended that CEQ's failure to analyze how the proposed rule and its
implementation would affect E.O. 12898's mandates would render the
regulations arbitrary and capricious, and exceed the agency's statutory
authority.
Commenters stated that CEQ provided no explanation or analysis of
how the development and implementation of this rule would affect
implementation of E.O. 12898 and, consequently, environmental justice
communities. Commenters noted the fundamental proposed changes to
nearly every step of the NEPA review process will disproportionately
impact environmental justice communities and will reduce or limit
opportunities for such communities to understand the effects of
proposed projects and to participate in the NEPA review process.
NEPA is a procedural statute that does not presuppose any
particular substantive outcomes. In addition, CEQ has reviewed the
changes in this final rule and has determined that they would not
result in environmental impacts. See RIA Appendix. CEQ disagrees that
the final rule will have disproportionately high and adverse human
health or environmental effects on minority populations and low-income
population. Rather, the final rule modernizes and clarifies the
procedures that NEPA contemplates. Among other things, this will give
agencies greater flexibility to design and customize public involvement
to best address the specific circumstances of their proposed actions.
The final rule expands the already wide range of tools agencies may use
when providing notice to potentially affected communities and inviting
public involvement. CEQ has made further changes to Sec. 1506.6 in the
final rule to clarify that agencies should consider the public's access
to electronic media when selecting appropriate methods for providing
public notice and involvement. The final rule also better informs the
public by extending the scoping period so that it may occur prior to
publication of the NOI, where appropriate, and increasing the
specificity of the NOI.
Commenters also raised concerns that CEQ did not follow the E.O.
12898 directive to ensure that environmental justice communities can
meaningfully participate in public processes and Federal agency
decision making, including making public information and hearings
``readily accessible.'' Commenters stated that CEQ failed to follow
this directive in designing its rulemaking process, and in fact,
excluded environmental justice communities from the process. Further,
commenters stated that, over 20 years ago, CEQ acknowledged that
traditional notice and comment procedures may be insufficient to engage
environmental justice communities. These barriers may range from agency
failure to provide translation of documents to the scheduling of
meetings at times and in places that are not convenient to working
families. Commenters stated that CEQ failed to mention environmental
justice communities in its opening statement during the Washington, DC
hearing.
Commenters also stated that CEQ failed to take note of the
thousands of comments submitted in response to the ANPRM raising
concerns about the health and environment of environmental justice
communities that could come from limiting opportunities to gain access
to information about projects and to comment. Commenters stated that if
CEQ's rulemaking process was more inclusive and expansive it would
enable some valuable clarifications in the regulations of how
environmental justice impacts should be taken more definitively into
account in NEPA reviews. Commenters also stated that the proposed rule
changes show no particular interest in better clarifying this important
aspect of environmental review, and show no evidence of interest in
bettering environmental justice impact assessment.
In response to the ANPRM, CEQ received over 12,500 comments,
including from those representing
[[Page 43357]]
environmental justice organizations. The diverse range of public
comments informed CEQ's development of the proposed rule to improve
interagency coordination in the environmental review process, promote
earlier public involvement, increase transparency, and enhance the
participation of States, Tribes, and localities.
In issuing the NPRM, CEQ took a number of further actions to hear
from the public and to encourage all interested stakeholders to submit
comments. These actions included notifying and inviting comment from
all federally recognized Tribes and over 400 interested groups,
including States, localities, environmental organizations, trade
associations, NEPA practitioners, and other interested members of the
public, representing a broad range of diverse views. Additionally, CEQ
made information to aid the public's review available on its websites
at www.whitehouse.gov/ceq and www.nepa.gov, including a redline version
of the proposed changes to the regulations, along with a presentation
on the proposed rule and other background information.
CEQ engaged in extensive public outreach with the benefit of modern
technologies and rulemaking procedures. CEQ held two public hearings
each with morning, afternoon, and evening sessions, in Denver, Colorado
on February 11, 2020, and in Washington, DC on February 25, 2020. Both
hearings had diverse representation from stakeholders, including many
speaking on behalf of environmental justice communities or about their
concerns. CEQ also attended the National Environmental Justice Advisory
Committee (NEJAC) meeting in Jacksonville, Florida to brief NEJAC
members and the public on the proposed rule and to answer questions.
CEQ also conducted additional public outreach to solicit comments and
receive input, including Tribal engagement in Denver, Colorado,
Anchorage, Alaska and Washington, DC.
J. 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.\143\ This final 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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\143\ 66 FR 28355 (May 22, 2001).
---------------------------------------------------------------------------
K. Executive Order 12988, Civil Justice Reform
Under section 3(a) E.O. 12988,\144\ 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 final rule complies with
the requirements of E.O. 12988.
---------------------------------------------------------------------------
\144\ 61 FR 4729 (Feb. 7, 1996).
---------------------------------------------------------------------------
L. Unfunded Mandates 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, Tribal, and local governments, and the
private sector to the extent that such regulations incorporate
requirements specifically set forth in law. Before promulgating a rule
that may result in the expenditure by a State, Tribal, or local
government, in the aggregate, or by the private sector of $100 million,
adjusted annually for inflation, in any one year, an agency must
prepare a written statement that assesses the effects on State, Tribal,
and local governments and the private sector. 2 U.S.C. 1532. This final
rule applies to Federal agencies and would not result in expenditures
of $100 million or more for State, Tribal, and local 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. 1531-38.
M. Paperwork Reduction Act
This final 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
40 CFR Parts 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, and 1508
Administrative practice and procedure, Environmental impact
statements, Environmental protection, Natural resources.
40 CFR Part 1515
Freedom of information.
40 CFR Part 1516
Privacy.
40 CFR Part 1517
Sunshine Act.
40 CFR Part 1518
Accounting, Administrative practice and procedure, Environmental
impact statements.
Mary B. Neumayr,
Chairman.
For the reasons stated in the preamble, and under the authority of
42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C. 7609; E.O. 11514,
35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, as amended by E.O. 11991,
42 FR 26967, 3 CFR, 1977 Comp., p. 123; and E.O. 13807, 82 FR 40463, 3
CFR, 2017, Comp., p. 369, the Council on Environmental Quality amends
chapter V in title 40 of the Code of Federal Regulations as follows:
PARTS 1500 THROUGH 1508 [DESIGNATED AS SUBCHAPTER A]
0
1. Designate parts 1500 through 1508 as subchapter A and add a heading
for newly designated subchapter A to read as follows:
Subchapter A--National Environmental Policy Act Implementing
Regulations
0
2. 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, 3 CFR, 1966-1970, Comp., p. 902, as
amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123; and
E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
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
[[Page 43358]]
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 this subchapter 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. The regulations in this subchapter 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 in this
subchapter 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 in this subchapter promote concurrent environmental
reviews to ensure timely and efficient decision making.
Sec. 1500.2 [Reserved]
Sec. 1500.3 NEPA compliance.
(a) Mandate. This subchapter is applicable to and binding on all
Federal agencies for implementing the procedural provisions of the
National Environmental Policy Act of 1969, as amended (Pub. L. 91-190,
42 U.S.C. 4321 et seq.) (NEPA or the Act), except where compliance
would be inconsistent with other statutory requirements. The
regulations in this subchapter are issued pursuant to NEPA; the
Environmental Quality Improvement Act of 1970, as amended (Pub. L. 91-
224, 42 U.S.C. 4371 et seq.); 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).
The regulations in this subchapter apply to the whole of section 102(2)
of NEPA. The provisions of the Act and the regulations in this
subchapter must be read together as a whole to comply with the law.
(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(d)(7) of
this chapter).
(2) The draft and final environmental impact statements shall
include a summary of all alternatives, information, and analyses
submitted by State, Tribal, and local governments and other public
commenters for consideration by the lead and cooperating agencies in
developing the draft and final environmental impact statements (Sec.
1502.17 of this chapter).
(3) For consideration by the lead and cooperating agencies, State,
Tribal, and local governments and other public commenters must submit
comments within the comment periods provided, and comments shall be as
specific as possible (Sec. Sec. 1503.1 and 1503.3 of this chapter).
Comments or objections of any kind not submitted, including those based
on submitted alternatives, information, and analyses, shall be
forfeited as unexhausted.
(4) Informed by the submitted alternatives, information, and
analyses, including the summary in the final environmental impact
statement (Sec. 1502.17 of this chapter) and the agency's response to
comments in the final environmental impact statement (Sec. 1503.4 of
this chapter), together with any other material in the record that he
or she determines relevant, the decision maker shall certify in the
record of decision that the agency considered all of the alternatives,
information, and analyses, and objections submitted by States, Tribal,
and local governments and other public commenters for consideration by
the lead and cooperating agencies in developing the environmental
impact statement (Sec. 1505.2(b) of this chapter).
(c) Review of NEPA compliance. It is the Council's intention that
judicial review of agency compliance with the regulations in this
subchapter not occur before an agency has issued the record of decision
or taken other final agency action. It is the Council's intention that
any allegation of noncompliance with NEPA and the regulations in this
subchapter should be resolved as expeditiously as possible. Consistent
with their organic statutes, and as part of implementing the exhaustion
provisions in paragraph (b) of this section, agencies may structure
their procedures to include an appropriate bond or other security
requirement.
(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 this subchapter. It is the Council's
intention that the regulations in this subchapter create no presumption
that violation of NEPA is a basis for injunctive relief or for a
finding of irreparable harm. The regulations in this subchapter 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, vacate,
or otherwise alter an agency decision on the basis of an alleged NEPA
violation be raised as soon as practicable after final agency action 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 this subchapter are separate and
severable from one another. If any section or portion therein is stayed
or determined to be invalid, or the applicability of any section to any
person or entity is held invalid, it is the Council's intention that
the validity of the remainder of those parts shall not be affected,
with the remaining sections to continue in effect.
Sec. 1500.4 Reducing paperwork.
Agencies shall reduce excessive paperwork by:
(a) Using categorical exclusions to define categories of actions
that normally do not have a significant effect on the human environment
and therefore do not require preparation of an environmental impact
statement (Sec. 1501.4 of this chapter).
(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 therefore does not require preparation of an
environmental impact statement (Sec. 1501.6 of this chapter).
(c) Reducing the length of environmental documents by means such as
meeting appropriate page limits (Sec. Sec. 1501.5(f) and 1502.7 of
this chapter).
[[Page 43359]]
(d) Preparing analytic and concise environmental impact statements
(Sec. 1502.2 of this chapter).
(e) Discussing only briefly issues other than significant ones
(Sec. 1502.2(b) of this chapter).
(f) Writing environmental impact statements in plain language
(Sec. 1502.8 of this chapter).
(g) Following a clear format for environmental impact statements
(Sec. 1502.10 of this chapter).
(h) Emphasizing the portions of the environmental impact statement
that are useful to decision makers and the public (e.g., Sec. Sec.
1502.14 and 1502.15 of this chapter) and reducing emphasis on
background material (Sec. 1502.1 of this chapter).
(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 of this chapter).
(j) Summarizing the environmental impact statement (Sec. 1502.12
of this chapter).
(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. 1501.11 and 1502.4 of this chapter).
(l) Incorporating by reference (Sec. 1501.12 of this chapter).
(m) Integrating NEPA requirements with other environmental review
and consultation requirements (Sec. 1502.24 of this chapter).
(n) Requiring comments to be as specific as possible (Sec. 1503.3
of this chapter).
(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) of this
chapter).
(p) Eliminating duplication with State, Tribal, and local
procedures, by providing for joint preparation of environmental
documents where practicable (Sec. 1506.2 of this chapter), and with
other Federal procedures, by providing that an agency may adopt
appropriate environmental documents prepared by another agency (Sec.
1506.3 of this chapter).
(q) Combining environmental documents with other documents (Sec.
1506.4 of this chapter).
Sec. 1500.5 Reducing delay.
Agencies shall reduce delay by:
(a) Using categorical exclusions to define categories of actions
that normally do not have a significant effect on the human environment
(Sec. 1501.4 of this chapter) and therefore do not require preparation
of 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 of this chapter) and therefore does not
require preparation of an environmental impact statement.
(c) Integrating the NEPA process into early planning (Sec. 1501.2
of this chapter).
(d) Engaging in interagency cooperation before or as the
environmental assessment or environmental impact statement is prepared,
rather than awaiting submission of comments on a completed document
(Sec. Sec. 1501.7 and 1501.8 of this chapter).
(e) Ensuring the swift and fair resolution of lead agency disputes
(Sec. 1501.7 of this chapter).
(f) Using the scoping process for an early identification of what
are and what are not the real issues (Sec. 1501.9 of this chapter).
(g) Meeting appropriate time limits for the environmental
assessment and environmental impact statement processes (Sec. 1501.10
of this chapter).
(h) Preparing environmental impact statements early in the process
(Sec. 1502.5 of this chapter).
(i) Integrating NEPA requirements with other environmental review
and consultation requirements (Sec. 1502.24 of this chapter).
(j) Eliminating duplication with State, Tribal, and local
procedures by providing for joint preparation of environmental
documents where practicable (Sec. 1506.2 of this chapter) and with
other Federal procedures by providing that agencies may jointly prepare
or adopt appropriate environmental documents prepared by another agency
(Sec. 1506.3 of this chapter).
(k) Combining environmental documents with other documents (Sec.
1506.4 of this chapter).
(l) Using accelerated procedures for proposals for legislation
(Sec. 1506.8 of this chapter).
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, to the extent consistent with its existing authority.
Agencies shall review their policies, procedures, and regulations
accordingly and revise them as necessary to ensure full compliance with
the purposes and provisions of the Act as interpreted by the
regulations in this subchapter. The phrase ``to the fullest extent
possible'' in section 102 of NEPA means that each agency of the Federal
Government shall comply with that section, consistent with Sec. 1501.1
of this chapter. Nothing contained in the regulations in this
subchapter is intended or should be construed to limit an agency's
other authorities or legal responsibilities.
0
3. Revise part 1501 to read as follows:
PART 1501--NEPA AND AGENCY PLANNING
Sec.
1501.1 NEPA thresholds.
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, 35 FR 4247, 3 CFR, 1966-1970, Comp.,
p. 902, as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p.
123; and E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
Sec. 1501.1 NEPA thresholds.
(a) In assessing whether NEPA applies or is otherwise fulfilled,
Federal agencies should determine:
(1) Whether the proposed activity or decision is expressly exempt
from NEPA under another statute;
(2) Whether compliance with NEPA would clearly and fundamentally
conflict with the requirements of another statute;
(3) Whether compliance with NEPA would be inconsistent with
Congressional intent expressed in another statute;
(4) Whether the proposed activity or decision is a major Federal
action;
(5) Whether the proposed activity or decision, 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;
and
(6) Whether the proposed action is an action for which another
statute's requirements serve the function of agency compliance with the
Act.
(b) Federal agencies may make determinations under this section in
their agency NEPA procedures (Sec. 1507.3(d) of this chapter) or on an
individual basis, as appropriate.
[[Page 43360]]
(1) Federal agencies may seek the Council's assistance in making an
individual determination under this section.
(2) An agency shall consult with other Federal agencies concerning
their concurrence in statutory determinations made under this section
where more than one Federal agency administers the statute.
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 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 man's environment, as specified by Sec. 1507.2(a) of this chapter.
(2) Identify environmental effects and values in adequate detail so
the decision maker can appropriately consider such effects and values
alongside economic and technical analyses. Whenever practicable,
agencies shall review and publish environmental documents and
appropriate analyses at the same time as other planning documents.
(3) Study, develop, and describe appropriate alternatives to
recommended courses of action in any proposal that involves unresolved
conflicts concerning alternative uses of available resources as
provided by section 102(2)(E) of NEPA.
(4) Provide for actions subject to NEPA that 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 their involvement is reasonably foreseeable.
(iii) The Federal agency commences its NEPA process at the earliest
reasonable time (Sec. Sec. 1501.5(d) and 1502.5(b) of this chapter).
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 of this
chapter).
(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. Agencies should
consider connected actions consistent with Sec. 1501.9(e)(1).
(1) In considering the potentially affected environment, agencies
should consider, as appropriate to the specific action, the affected
area (national, regional, or local) and its resources, such as listed
species and designated critical habitat under the Endangered Species
Act. Significance varies with the setting of the proposed action. For
instance, in the case of a site-specific action, significance would
usually depend only upon the effects in the local area.
(2) In considering the degree of the effects, agencies should
consider the following, as appropriate to the specific action:
(i) Both short- and long-term effects.
(ii) Both beneficial and adverse effects.
(iii) Effects on public health and safety.
(iv) Effects that would violate Federal, State, Tribal, or local
law protecting the environment.
Sec. 1501.4 Categorical exclusions.
(a) For efficiency, agencies shall identify in their agency NEPA
procedures (Sec. 1507.3(e)(2)(ii) of this chapter) 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 categorical exclusion identified
in its agency NEPA procedures covers a proposed action, the agency
shall evaluate the action for extraordinary circumstances in which a
normally excluded action may have a significant effect.
(1) If an extraordinary circumstance is present, the agency
nevertheless may categorically exclude the proposed action if the
agency determines that there are circumstances that lessen the impacts
or other conditions sufficient to avoid significant effects.
(2) If the agency cannot categorically exclude the proposed action,
the agency shall prepare an environmental assessment or environmental
impact statement, as appropriate.
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, and the
environmental impacts of the proposed action and alternatives, and
include a listing of agencies and persons consulted.
(d) For applications to the agency requiring an environmental
assessment, the agency shall commence the environmental assessment as
soon as practicable after receiving the application.
(e) Agencies shall involve the public, State, Tribal, and local
governments, relevant agencies, and any applicants, to the extent
practicable in preparing environmental assessments.
(f) 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.
(g) Agencies may apply the following provisions to environmental
assessments:
(1) Section 1502.21 of this chapter--Incomplete or unavailable
information;
(2) Section 1502.23 of this chapter--Methodology and scientific
accuracy; and
(3) Section 1502.24 of this chapter--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
[[Page 43361]]
determines, based on the environmental assessment, not to prepare an
environmental impact statement because the proposed action will not
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(b) of
this chapter.
(2) In the following circumstances, the agency shall make the
finding of no significant impact available for public review for 30
days before the agency makes its final determination whether to prepare
an environmental impact statement and before the action may begin:
(i) The proposed action is or is closely similar to one that
normally requires the preparation of an environmental impact statement
under the procedures adopted by the agency pursuant to Sec. 1507.3 of
this chapter; 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 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 a complex 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 of this chapter).
(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 will be the lead agency and which will be
cooperating agencies. The agencies shall resolve the lead agency
question so as not to cause delay. If there is disagreement among the
agencies, the following factors (which are listed in order of
descending importance) shall determine lead agency designation:
(1) Magnitude of agency's involvement.
(2) Project approval or disapproval authority.
(3) Expertise concerning the action's environmental effects.
(4) Duration of agency's involvement.
(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 in a lead agency designation within 45 days,
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; and
(2) A detailed statement of why each potential lead agency should
or should not be the lead agency under the criteria specified in
paragraph (c) of this section.
(f) Any potential lead agency may file a response within 20 days
after a request is filed with the Council. As soon as possible, but not
later than 20 days after receiving the request and all responses to it,
the Council shall determine which Federal agency will be the lead
agency and which other Federal agencies will be cooperating agencies.
(g) To the extent practicable, if a proposal will require action by
more than one Federal agency and the lead agency determines that it
requires preparation of an environmental impact statement, the lead and
cooperating agencies shall evaluate the proposal in a single
environmental impact statement and issue a joint record of decision. To
the extent practicable, if a proposal will require action by more than
one Federal agency and the lead agency determines that it requires
preparation of an environmental assessment, the lead and cooperating
agencies 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.
(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. As
soon as practicable, the responsible agencies shall elevate the issue
to the appropriate officials of the responsible agencies for timely
resolution.
Sec. 1501.8 Cooperating agencies.
(a) The purpose of this section is to emphasize agency cooperation
early in the NEPA process. Upon request of the lead agency, any Federal
agency with jurisdiction by law shall be a cooperating agency. In
addition, upon request of the lead agency, any other Federal agency
with special expertise with respect to any environmental issue may be a
cooperating agency. A State, Tribal, or local agency of similar
qualifications may become a cooperating agency by agreement with the
lead agency. An agency may request that the lead agency designate it a
cooperating agency, and a Federal agency may appeal a denial of its
request to the Council, in accordance with 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) On request of the lead agency, assume 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) On request of the lead agency, make available staff support to
enhance
[[Page 43362]]
the lead agency's interdisciplinary capability.
(5) Normally use its own funds. To the extent available funds
permit, the lead agency shall fund those major activities or analyses
it requests from cooperating agencies. Potential lead agencies shall
include such funding requirements in their budget requests.
(6) Consult with the lead agency in developing the schedule (Sec.
1501.7(i)), meet the schedule, and elevate, as soon as practicable, to
the senior agency official of the lead agency any issues relating to
purpose and need, alternatives, or other issues that may affect any
agencies' ability to meet the schedule.
(7) Meet the lead agency's schedule for providing comments 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 of this chapter.
(8) To the maximum extent practicable, jointly issue environmental
documents with the lead agency.
(c) In response to a lead agency's request for assistance in
preparing the environmental documents (described in paragraph (b)(3),
(4), or (5) of this section), a cooperating agency may reply that other
program commitments preclude any involvement or the degree of
involvement requested in the action that is the subject of the
environmental impact statement or environmental assessment. The
cooperating agency shall submit a copy of this reply to the Council and
the senior agency official of the lead agency.
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), unless there is a limited exception under Sec. 1507.3(f)(1)
of this chapter.
(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(f)(3) of this chapter. An agency also may publish notice in
accordance with Sec. 1506.6 of this chapter. The notice shall include,
as appropriate:
(1) The purpose and need for the proposed action;
(2) A preliminary description of the proposed action and
alternatives the environmental impact statement will consider;
(3) A brief summary of expected 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 identification of potential alternatives,
information, and analyses relevant to the proposed action (see Sec.
1502.17 of this chapter); 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 statement. To determine
the scope of environmental impact statements, agencies shall consider:
(1) Actions (other than unconnected single actions) that may be
connected actions, which means that they are closely related and
therefore should be discussed in the same impact statement. Actions are
connected if they:
(i) Automatically trigger other actions that may require
environmental impact statements;
(ii) Cannot or will not proceed unless other actions are taken
previously or simultaneously; or
(iii) Are interdependent parts of a larger action and depend on the
larger action for their justification.
(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 that are
not significant or have been covered by prior environmental review(s)
(Sec. 1506.3 of this chapter), 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 that are being or will be prepared and
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 and integrated
with the environmental impact statement, as provided in Sec. 1502.24
of this chapter.
(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 of this chapter).
(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
[[Page 43363]]
period in writing and establishes a new time limit. One year is
measured from the date of agency decision to prepare an environmental
assessment to the publication of an environmental assessment or a
finding of no significant impact.
(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 should tier their environmental impact statements and
environmental assessments when it would eliminate repetitive
discussions of the same issues, focus on the actual issues ripe for
decision, and exclude from consideration issues already decided or not
yet ripe at each level of environmental review. Tiering may also be
appropriate for different stages of actions.
(b) When an agency has prepared an environmental impact statement
or environmental assessment for a program or policy and then prepares a
subsequent statement or assessment on an action included within the
entire program or policy (such as a project- or site-specific action),
the tiered document needs only to summarize and incorporate by
reference the issues discussed in the broader document. The tiered
document shall concentrate on the issues specific to the subsequent
action. The tiered document shall state where the earlier document is
available.
(c) 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 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, such as planning studies,
analyses, or other relevant information, into environmental documents
by reference when the effect will be to cut down on bulk without
impeding agency and public review of the action. Agencies shall cite
the incorporated material in the document and briefly describe its
content. Agencies may not incorporate material by reference unless it
is reasonably available for inspection by potentially interested
persons within the time allowed for comment. Agencies shall not
incorporate by reference material based on proprietary data that is not
available for review and comment.
0
4. Revise part 1502 to read as follows:
PART 1502--ENVIRONMENTAL IMPACT STATEMENT
Sec.
1502.1 Purpose of environmental impact statement.
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 List of preparers.
1502.19 Appendix.
1502.20 Publication of the environmental impact statement.
1502.21 Incomplete or unavailable information.
1502.22 Cost-benefit analysis.
1502.23 Methodology and scientific accuracy.
1502.24 Environmental review and consultation requirements.
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, as
amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123; and
E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
Sec. 1502.1 Purpose of environmental impact statement.
The primary purpose of an environmental impact statement prepared
pursuant to section 102(2)(C) of NEPA 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 that 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 and the public.
[[Page 43364]]
Sec. 1502.2 Implementation.
(a) Environmental impact statements shall not be encyclopedic.
(b) Environmental impact statements shall discuss impacts 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 this subchapter. 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 as interpreted in the
regulations in this subchapter and other environmental laws and
policies.
(e) The range of alternatives discussed in environmental impact
statements shall encompass those to be considered by the decision
maker.
(f) Agencies shall not commit resources prejudicing selection of
alternatives before making a final decision (see also Sec. 1506.1 of
this chapter).
(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(e) of this chapter) 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. When agencies prepare such statements, they should be
relevant to the program decision and timed to coincide with meaningful
points in agency planning and decision making.
(1) 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:
(i) Geographically, including actions occurring in the same general
location, such as body of water, region, or metropolitan area.
(ii) Generically, including actions that have relevant
similarities, such as common timing, impacts, alternatives, methods of
implementation, media, or subject matter.
(iii) By stage of technological development including Federal or
federally assisted research, development or demonstration programs for
new technologies that, if applied, could significantly affect the
quality of the human environment. 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.
(2) Agencies shall as appropriate employ scoping (Sec. 1501.9 of
this chapter), tiering (Sec. 1501.11 of this chapter), and other
methods listed in Sec. Sec. 1500.4 and 1500.5 of this chapter 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 final agency action.
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 receives a proposal so that preparation can be completed in time for
the final statement to be included in any recommendation or report on
the proposal. The statement shall be prepared early enough so that it
can serve as an important practical contribution to the decision-making
process and will not be used to rationalize or justify decisions
already made (Sec. Sec. 1501.2 of this chapter and 1502.2). For
instance:
(a) For projects directly undertaken by Federal agencies, the
agency shall prepare the environmental impact statement at the
feasibility analysis (go/no-go) stage and may supplement it at a later
stage, if necessary.
(b) For applications to the agency requiring an environmental
impact statement, the agency shall commence the statement as soon as
practicable after receiving the application. Federal agencies should
work with potential applicants and applicable State, Tribal, and local
agencies and governments prior to receipt of the application.
(c) For adjudication, the final environmental impact statement
shall normally precede the final staff recommendation and that portion
of the public hearing related to the impact study. In appropriate
circumstances, the statement may follow preliminary hearings designed
to gather information for use in the statements.
(d) For informal rulemaking, the draft environmental impact
statement shall normally accompany the proposed rule.
Sec. 1502.6 Interdisciplinary preparation.
Agencies shall prepare environmental impact statements using an
interdisciplinary approach that will ensure the integrated use of the
natural and social sciences and the environmental design arts (section
102(2)(A) of NEPA). The disciplines of the preparers shall be
appropriate to the scope and issues identified in the scoping process
(Sec. 1501.9 of this chapter).
Sec. 1502.7 Page limits.
The text of final environmental impact statements (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.
Agencies shall write environmental impact statements in plain
language and may use appropriate graphics so that decision makers and
the public can readily understand such statements. Agencies should
employ writers of clear prose or editors to write, review, or edit
statements, which shall be based upon the analysis and supporting data
from the natural and social sciences and the environmental design arts.
Sec. 1502.9 Draft, final, and supplemental statements.
(a) Generally. Except for proposals for legislation as provided in
Sec. 1506.8 of this chapter, agencies shall prepare environmental
impact statements in two stages and, where necessary,
[[Page 43365]]
supplement them, as provided in paragraph (d)(1) of this section.
(b) Draft environmental impact statements. Agencies shall prepare
draft environmental impact statements in accordance with the scope
decided upon in the scoping process (Sec. 1501.9 of this chapter). The
lead agency shall work with the cooperating agencies and shall obtain
comments as required in part 1503 of this chapter. To the fullest
extent practicable, the draft statement must meet the requirements
established for final statements in section 102(2)(C) of NEPA as
interpreted in the regulations in this subchapter. 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. At
appropriate points in the draft statement, the agency shall discuss 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. At appropriate points in the final statement, the agency
shall discuss any responsible opposing view that was not adequately
discussed in the draft statement and shall indicate the agency's
response to the issues raised.
(d) Supplemental environmental impact statements. Agencies:
(1) Shall prepare supplements to either draft or final
environmental impact statements if a major Federal action remains to
occur, and:
(i) The agency makes substantial changes to the proposed action
that are relevant to environmental concerns; or
(ii) There are 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
(exclusive of scoping (Sec. 1501.9 of this chapter)) as a draft and
final statement, as is appropriate to the stage of the statement
involved, unless the Council approves alternative procedures (Sec.
1506.12 of this chapter).
(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 of this chapter), 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
that will encourage good analysis and clear presentation of the
alternatives including the proposed action. Agencies should use the
following standard format for environmental impact statements unless
the agency determines that there is a more effective format for
communication:
(1) Cover.
(2) Summary.
(3) Table of contents.
(4) Purpose of and need for action.
(5) Alternatives including the 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)(1) through (8) of this section, as further described in
Sec. Sec. 1502.11 through 1502.19, 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(s), if applicable) where the action is located.
(c) The name, address, and telephone number of the person at the
agency who can supply further information.
(d) A designation of the statement as a draft, final, or draft or
final supplement.
(e) A one-paragraph abstract of the statement.
(f) The date by which the agency must receive comments (computed in
cooperation with EPA under Sec. 1506.11 of this chapter).
(g) For the final environmental impact statement, the estimated
total cost to prepare both the draft and final environmental impact
statement, including the costs of agency full-time equivalent (FTE)
personnel hours, contractor costs, and other direct costs. If
practicable and noted where not practicable, agencies also should
include costs incurred by cooperating and participating agencies,
applicants, and contractors.
Sec. 1502.12 Summary.
Each environmental impact statement shall contain a summary that
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 normally will 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.
The alternatives 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 that the agency eliminated from detailed study,
briefly discuss the reasons for their elimination.
(b) Discuss each alternative considered in detail, including the
proposed action, so that reviewers may evaluate their comparative
merits.
(c) Include the no action alternative.
(d) Identify the agency's preferred alternative or alternatives, if
one or more exists, in the draft statement and identify such
alternative in the final statement unless another law prohibits the
expression of such a preference.
(e) Include appropriate mitigation measures not already included in
the proposed action or alternatives.
(f) Limit their consideration to a reasonable number of
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, including the reasonably foreseeable
environmental trends and planned actions in the area(s). The
environmental impact statement may
[[Page 43366]]
combine the description with evaluation of the environmental
consequences (Sec. 1502.16), and it 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) The environmental consequences 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 that 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 the significance of those
impacts. The comparison of the proposed action and reasonable
alternatives shall be based on this discussion of the impacts.
(2) Any adverse environmental effects that 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 that
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)
of this chapter)
(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, the environmental impact
statement shall discuss and give appropriate consideration to these
effects on the human environment.
Sec. 1502.17 Summary of submitted alternatives, information, and
analyses.
(a) The draft environmental impact statement shall include a
summary that identifies all alternatives, information, and analyses
submitted by State, Tribal, and local governments and other public
commenters during the scoping process for consideration by the lead and
cooperating agencies in developing the environmental impact statement.
(1) The agency shall append to the draft environmental impact
statement or otherwise publish all comments (or summaries thereof where
the response has been exceptionally voluminous) received during the
scoping process that identified alternatives, information, and analyses
for the agency's consideration.
(2) Consistent with Sec. 1503.1(a)(3) of this chapter, the lead
agency shall invite comment on the summary identifying all submitted
alternatives, information, and analyses in the draft environmental
impact statement.
(b) The final environmental impact statement shall include a
summary that identifies all alternatives, information, and analyses
submitted by State, Tribal, and local governments and other public
commenters for consideration by the lead and cooperating agencies in
developing the final environmental impact statement.
Sec. 1502.18 List of preparers.
The environmental impact statement shall list the names, together
with their qualifications (expertise, experience, professional
disciplines), of the persons who were primarily responsible for
preparing the environmental impact statement or significant background
papers, including basic components of the statement. Where possible,
the environmental impact statement shall identify the persons who are
responsible for a particular analysis, including analyses in background
papers. Normally the list will not exceed two pages.
Sec. 1502.19 Appendix.
If an agency prepares an appendix, the agency shall publish it with
the environmental impact statement, and it shall consist of:
(a) Material prepared in connection with an environmental impact
statement (as distinct from material that is not so prepared and is
incorporated by reference (Sec. 1501.12 of this chapter)).
(b) Material substantiating any analysis fundamental to the impact
statement.
(c) Material relevant to the decision to be made.
(d) For draft environmental impact statements, all comments (or
summaries thereof where the response has been exceptionally voluminous)
received during the scoping process that identified alternatives,
information, and analyses for the agency's consideration.
(e) For final environmental impact statements, the comment
summaries and responses consistent with Sec. 1503.4 of this chapter.
Sec. 1502.20 Publication of the environmental impact statement.
Agencies shall publish the entire draft and final environmental
impact statements and unchanged statements as provided in Sec.
1503.4(c) of this chapter. 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 that has jurisdiction by law or special
expertise with respect to any environmental impact involved and any
appropriate Federal, State, Tribal, or local agency authorized to
develop and enforce environmental standards.
(b) The applicant, if any.
(c) Any person, organization, or agency requesting the entire
environmental impact statement.
(d) In the case of a final environmental impact statement, any
person, organization, or agency that submitted substantive comments on
the draft.
Sec. 1502.21 Incomplete or unavailable information.
(a) When an agency is evaluating reasonably foreseeable significant
adverse effects on the human environment in an environmental impact
statement, and there is incomplete or unavailable information, the
agency shall make clear that such information is lacking.
(b) If the incomplete but available 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.
[[Page 43367]]
(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 that 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 that 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. 1502.22 Cost-benefit analysis.
If the agency is considering a cost-benefit analysis for the
proposed action relevant to the choice among alternatives with
different environmental effects, the agency shall incorporate the cost-
benefit analysis by reference or append it to the statement as an aid
in evaluating the environmental consequences. In such cases, to assess
the adequacy of compliance with section 102(2)(B) of NEPA (ensuring
appropriate consideration of unquantified environmental amenities and
values in decision making, along with economical and technical
considerations), the statement shall discuss the relationship between
that analysis and any analyses of unquantified environmental impacts,
values, and amenities. For purposes of complying with the Act, agencies
need not display the weighing of the merits and drawbacks of the
various alternatives in a monetary cost-benefit analysis and should not
do so when there are important qualitative considerations. However, an
environmental impact statement should at least indicate those
considerations, including factors not related to environmental quality,
that are likely to be relevant and important to a decision.
Sec. 1502.23 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. 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. Agencies may place discussion of methodology in an appendix.
Agencies are not required to undertake new scientific and technical
research to inform their analyses. Nothing in this section is intended
to prohibit agencies from compliance with the requirements of other
statutes pertaining to scientific and technical research.
Sec. 1502.24 Environmental review and consultation requirements.
(a) To the fullest extent possible, agencies shall prepare draft
environmental impact statements concurrent and integrated with
environmental impact analyses and related surveys and studies required
by all other Federal environmental review laws and Executive orders
applicable to the proposed action, including the Fish and Wildlife
Coordination Act (16 U.S.C. 661 et seq.), the National Historic
Preservation Act of 1966 (54 U.S.C. 300101 et seq.), and the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.).
(b) The draft environmental impact statement shall list all Federal
permits, licenses, and other authorizations that must be obtained in
implementing the proposal. If it is uncertain whether a Federal permit,
license, or other authorization is necessary, the draft environmental
impact statement shall so indicate.
0
5. 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; E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, as
amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123; E.O.
13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
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 that has jurisdiction
by law or special expertise with respect to any environmental impact
involved or is authorized to develop and enforce environmental
standards.
(2) Request the comments of:
(i) Appropriate State, Tribal, and local agencies that are
authorized to develop and enforce environmental standards;
(ii) State, Tribal, or local governments that may be affected by
the proposed action;
(iii) Any agency that has requested it receive statements on
actions of the kind proposed;
(iv) The applicant, if any; and
(v) The public, affirmatively soliciting comments in a manner
designed to inform those persons or organizations who may be interested
in or affected by the proposed action.
(3) Invite comment specifically on the submitted alternatives,
information, and analyses and the summary thereof (Sec. 1502.17 of
this chapter).
(b) An agency may request comments on a final environmental impact
statement before the final decision and set a deadline for providing
such comments. Other agencies or persons may make comments consistent
with the time periods under Sec. 1506.11 of this chapter.
(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 of this chapter. A Federal
agency may reply that it has no comment. If a cooperating agency is
satisfied that the environmental impact statement adequately reflects
its views, it should reply that it has no comment.
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
[[Page 43368]]
provide as much detail as necessary to meaningfully participate and
fully inform the agency of the commenter's position. Comments should
explain why the issues raised are important 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 and summary thereof (Sec. 1502.17 of this chapter) should be
as specific as possible. Comments and objections of any kind shall be
raised within the comment period on the draft environmental impact
statement provided by the agency, consistent with Sec. 1506.11 of this
chapter. If the agency requests comments on the final environmental
impact statement before the final decision, consistent with Sec.
1503.1(b), comments and objections of any kind shall be raised within
the comment period provided by the agency. Comments and objections of
any kind not provided within the comment period(s) shall be considered
unexhausted and forfeited, consistent with Sec. 1500.3(b) of this
chapter.
(c) When a participating agency criticizes a lead agency's
predictive methodology, the participating agency should describe the
alternative methodology that 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. The agency may respond to individual comments or groups
of comments. In the final environmental impact statement, the agency
may respond by:
(1) Modifying alternatives including the proposed action.
(2) Developing and evaluating alternatives not previously given
serious consideration by the agency.
(3) Supplementing, improving, or modifying its analyses.
(4) Making factual corrections.
(5) Explaining why the comments do not warrant further agency
response, recognizing that agencies are not required to respond to each
comment.
(b) An agency shall append or otherwise publish all substantive
comments received on the draft statement (or summaries thereof where
the response has been exceptionally voluminous).
(c) If changes in response to comments are minor and are confined
to the responses described in paragraphs (a)(4) and (5) of this
section, an agency may write any changes on errata sheets and attach
the responses to the statement instead of rewriting the draft
statement. In such cases, only the comments, the responses, and the
changes and not the final statement need be published (Sec. 1502.20 of
this chapter). The agency shall file the entire document with a new
cover sheet with the Environmental Protection Agency as the final
statement (Sec. 1506.10 of this chapter).
0
6. 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; E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, as
amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123; E.O.
13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
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) Section 309 of the Clean Air Act (42 U.S.C. 7609) directs the
Administrator of the Environmental Protection Agency to review and
comment publicly on the environmental impacts of Federal activities,
including actions for which agencies prepare environmental impact
statements. If, after this review, the Administrator determines that
the matter is ``unsatisfactory from the standpoint of public health or
welfare or environmental quality,'' section 309 directs that the matter
be referred to the Council (hereafter ``environmental referrals'').
(c) Under section 102(2)(C) of NEPA (42 U.S.C. 4332(2)(C)), other
Federal agencies may prepare similar reviews of environmental impact
statements, including judgments on the acceptability of anticipated
environmental impacts. These reviews must be made available to the
President, the Council, and the public.
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; and
(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) Notify the lead agency at the earliest possible time that it
intends to refer a matter to the Council unless a satisfactory
agreement is reached;
(2) Include such a notification whenever practicable in the
referring agency's comments on the environmental assessment or draft
environmental impact statement;
(3) Identify any essential information that is lacking and request
that the lead agency make it available at the earliest possible time;
and
[[Page 43369]]
(4) Send copies of the referring agency's views 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; and
(2) A statement supported by factual evidence leading to the
conclusion that the matter is unsatisfactory from the standpoint of
public health or welfare or environmental quality. The statement shall:
(i) Identify any disputed material facts and incorporate (by
reference if appropriate) agreed upon facts;
(ii) Identify any existing environmental requirements or policies
that would be violated by the matter;
(iii) Present the reasons for the referral;
(iv) Contain a finding by the agency whether the issue raised is of
national importance because of the threat to national environmental
resources or policies or for some other reason;
(v) Review the steps taken by the referring agency to bring its
concerns to the attention of the lead agency at the earliest possible
time; and
(vi) Give the referring agency's recommendations as to what
mitigation alternative, further study, or other course of action
(including abandonment of the matter) are necessary to remedy the
situation.
(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; and
(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 referring and lead agencies should further
negotiate the issue, and the issue is not appropriate for Council
consideration until one or more heads of agencies report to the Council
that the agencies' disagreements are irreconcilable.
(6) Publish its findings and recommendations (including, where
appropriate, a finding that the submitted evidence does not support the
position of an agency).
(7) When appropriate, submit the referral and the response together
with the Council's recommendation to the President for action.
(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
7. 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, 3 CFR, 1966-1970, Comp., p. 902, as
amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123; and
E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
Sec. 1505.1 [Reserved]
Sec. 1505.2 Record of decision in cases requiring environmental
impact statements.
(a) At the time of its decision (Sec. 1506.11 of this chapter) 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:
(1) State the decision.
(2) Identify alternatives considered by the agency in reaching its
decision, specifying the alternative or alternatives considered
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, that the agency balanced in making its decision and
state how those considerations entered into its decision.
(3) 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 for any
enforceable mitigation requirements or commitments.
(b) Informed by the summary of the submitted alternatives,
information, and analyses in the final environmental impact statement
(Sec. 1502.17(b) of this chapter), together with any other material in
the record that he or she determines to be relevant, the decision maker
shall certify in the record of decision that the agency has considered
all of the alternatives, information, analyses, and objections
submitted by State, Tribal, and local governments and 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
presumption that the agency has considered the submitted alternatives,
information, and analyses, including the summary thereof, in the final
environmental impact statement (Sec. 1502.17(b)).
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(a)(3)) 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.
[[Page 43370]]
(b) Condition funding of actions on mitigation.
(c) Upon request, inform cooperating or participating agencies on
progress in carrying out mitigation measures that they have proposed
and were adopted by the agency making the decision.
(d) Upon request, publish the results of relevant monitoring.
0
8. 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, 3 CFR, 1966-1970, Comp., p. 902, as
amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123; and
E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
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 of this chapter, or record of decision, as provided in
Sec. 1505.2 of this chapter, no action concerning the proposal may be
taken that 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 review is
in progress and the action is not covered by an existing programmatic
review, agencies shall not undertake in the interim any major Federal
action covered by the program that may significantly affect the quality
of the human environment unless such action:
(1) Is justified independently of the program;
(2) Is itself accompanied by an adequate environmental review; and
(3) Will not prejudice the ultimate decision on the program.
Interim action prejudices the ultimate decision on the program when it
tends to determine subsequent development or limit alternatives.
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) To the fullest extent practicable unless specifically
prohibited by law, agencies shall cooperate with State, Tribal, and
local agencies to reduce duplication between NEPA and State, Tribal,
and local requirements, including through use of studies, analysis, and
decisions developed by State, Tribal, or local agencies. Except for
cases covered by paragraph (a) of this section, such cooperation shall
include, to the fullest extent practicable:
(1) Joint planning processes.
(2) Joint environmental research and studies.
(3) Joint public hearings (except where otherwise provided by
statute).
(4) Joint environmental assessments.
(c) To the fullest extent practicable unless specifically
prohibited by law, agencies shall cooperate with State, Tribal, and
local agencies to reduce duplication between NEPA and comparable State,
Tribal, and local requirements. Such cooperation shall include, to the
fullest extent practicable, joint environmental impact statements. In
such cases, one or more Federal agencies and one or more State, Tribal,
or local agencies shall be joint lead agencies. Where State or Tribal
laws or local ordinances have environmental impact statement or similar
requirements in addition to but not in conflict with those in NEPA,
Federal agencies may cooperate in fulfilling these requirements, as
well as those of Federal laws, so that one document will comply with
all applicable laws.
(d) To better integrate environmental impact statements into State,
Tribal, or local planning processes, environmental impact statements
shall discuss any inconsistency of a proposed action with any approved
State, Tribal, or local plan or law (whether or not federally
sanctioned). Where an inconsistency exists, the statement should
describe the extent to which the agency would reconcile its proposed
action with the plan or law. While the statement should discuss any
inconsistencies, NEPA does not require reconciliation.
Sec. 1506.3 Adoption.
(a) Generally. An agency may adopt a Federal draft or final
environmental impact statement, environmental assessment, or portion
thereof, or categorical exclusion determination provided that the
statement, assessment, portion thereof, or determination meets the
standards for an adequate statement, assessment, or determination under
the regulations in this subchapter.
(b) Environmental impact statements. (1) If the actions covered by
the original environmental impact statement and the proposed action are
substantially the same, the adopting agency shall republish it as a
final statement consistent with Sec. 1506.10. If the actions are not
substantially the same, the adopting agency shall treat the statement
as a draft and republish it, consistent with Sec. 1506.10.
(2) Notwithstanding paragraph (b)(1) of this section, 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.
(c) Environmental assessments. If the actions covered by the
original environmental assessment and the proposed action are
substantially the same, the adopting agency may adopt the environmental
assessment in its finding of no significant impact and provide notice
consistent with Sec. 1501.6 of this chapter.
(d) Categorical exclusions. An agency may adopt another agency's
determination that a categorical exclusion applies to a proposed action
if the action covered by the original categorical exclusion
determination and the adopting agency's proposed action are
substantially the same. The agency shall document the adoption.
(e) Identification of certain circumstances. The adopting agency
[[Page 43371]]
shall specify if one of the following circumstances is 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 of this chapter.
(3) The assessment or statement's adequacy is the subject of a
judicial action that is not final.
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) Responsibility. The agency is responsible for the accuracy,
scope (Sec. 1501.9(e) of this chapter), and content of environmental
documents prepared by the agency or by an applicant or contractor under
the supervision of the agency.
(b) Information. An agency may require an applicant to submit
environmental information for possible use by the agency in preparing
an environmental document. An agency also may direct an applicant or
authorize a contractor to prepare an environmental document under the
supervision of the agency.
(1) The agency should assist the applicant by outlining the types
of information required or, for the preparation of environmental
documents, shall provide guidance to the applicant or contractor and
participate in their preparation.
(2) The agency shall independently evaluate the information
submitted or the environmental document and shall be responsible for
its accuracy, scope, and contents.
(3) The agency shall include in the environmental document the
names and qualifications of the persons preparing environmental
documents, and conducting the independent evaluation of any information
submitted or environmental documents prepared by an applicant or
contractor, such as in the list of preparers for environmental impact
statements (Sec. 1502.18 of this chapter). It is the intent of this
paragraph (b)(3) that acceptable work not be redone, but that it be
verified by the agency.
(4) Contractors or applicants preparing environmental assessments
or environmental impact statements shall submit a disclosure statement
to the lead agency that specifies any financial or other interest in
the outcome of the action. Such statement need not include privileged
or confidential trade secrets or other confidential business
information.
(5) Nothing in this section is intended to prohibit 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 of this chapter).
(b) Provide public notice of NEPA-related hearings, public
meetings, and other opportunities for public involvement, and the
availability of environmental documents so as to inform those persons
and agencies who may be interested or affected by their proposed
actions. When selecting appropriate methods for providing public
notice, agencies shall consider the ability of affected persons and
agencies to access electronic media.
(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.
(3) In the case of an action with effects primarily of local
concern, the notice may include:
(i) Notice to State, Tribal, and local agencies that may be
interested or affected by the proposed action.
(ii) Notice to interested or affected State, Tribal, and local
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).
(c) Hold or sponsor public hearings, public meetings, or other
opportunities for public involvement 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. When selecting appropriate methods for public involvement,
agencies shall consider the ability of affected entities to access
electronic media.
(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.
(a) 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.
(b) To the extent that Council guidance issued prior to September
14, 2020 is in conflict with this subchapter, the provisions of this
subchapter apply.
Sec. 1506.8 Proposals for legislation.
(a) When developing legislation, agencies shall integrate the NEPA
process for proposals for legislation significantly affecting the
quality of the human environment with the legislative process of the
Congress. Technical drafting assistance does not by itself constitute a
legislative proposal. Only the agency that has primary responsibility
for the subject matter involved will prepare a legislative
environmental impact statement.
(b) A legislative environmental impact statement is the detailed
statement required by law to be included in an agency's recommendation
or report on a legislative proposal to Congress. A legislative
environmental impact statement shall be considered part of the formal
transmittal of a legislative proposal to Congress; however, it may be
transmitted to Congress up to 30 days
[[Page 43372]]
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 this
subchapter, except as follows:
(1) There need not be a scoping process.
(2) Agencies shall prepare the legislative statement in the same
manner as a draft environmental impact statement and need not prepare a
final statement unless any of the following conditions exist. In such
cases, the agency shall prepare and publish the statements consistent
with Sec. Sec. 1503.1 of this chapter and 1506.11:
(i) A Congressional committee with jurisdiction over the proposal
has a rule requiring both draft and final environmental impact
statements.
(ii) The proposal results from a study process required by statute
(such as those required by the Wild and Scenic Rivers Act (16 U.S.C.
1271 et seq.)).
(iii) Legislative approval is sought for Federal or federally
assisted construction or other projects that the agency recommends be
located at specific geographic locations. For proposals requiring an
environmental impact statement for the acquisition of space by the
General Services Administration, a draft statement shall accompany the
Prospectus or the 11(b) Report of Building Project Surveys to the
Congress, and a final statement shall be completed before site
acquisition.
(iv) The agency decides to prepare draft and final statements.
(d) Comments on the legislative statement shall be given to the
lead agency, which shall forward them along with its own responses to
the Congressional committees with jurisdiction.
Sec. 1506.9 Proposals for regulations.
Where the proposed action is the promulgation of a rule or
regulation, procedures and documentation pursuant to other statutory or
Executive order requirements may satisfy one or more requirements of
this subchapter. When a procedure or document satisfies one or more
requirements of this subchapter, the agency may substitute it for the
corresponding requirements in this subchapter and need not carry out
duplicative procedures or documentation. Agencies shall identify which
corresponding requirements in this subchapter are satisfied and consult
with the Council to confirm such determinations.
Sec. 1506.10 Filing requirements.
(a) Agencies shall file environmental impact statements together
with comments and responses with the Environmental Protection Agency
(EPA), Office of Federal Activities, consistent with EPA's procedures.
(b) Agencies shall file statements 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 are calculated from the date of publication of this
notice.
(b) Unless otherwise provided by law, including statutory
provisions for combining a final environmental impact statement and
record of decision, Federal agencies may not make or issue a record of
decision under Sec. 1505.2 of this chapter for the proposed action
until the later of the following dates:
(1) 90 days after publication of the notice described in paragraph
(a) of this section for a draft environmental impact statement.
(2) 30 days after publication of the notice described in paragraph
(a) of this section for a final environmental impact statement.
(c) An agency may make an exception to the rule on timing set forth
in paragraph (b) of this section for a proposed action in the following
circumstances:
(1) Some agencies have a formally established appeal process after
publication of the final environmental impact statement that allows
other agencies or the public to take appeals on a decision and make
their views known. In such cases where a real opportunity exists to
alter the decision, the agency may make and record the decision at the
same time it publishes the environmental impact statement. This means
that the period for 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; or
(2) An agency engaged in rulemaking under the Administrative
Procedure Act or other statute for the purpose of protecting the public
health or safety may waive the time period in paragraph (b)(2) of this
section, publish a decision on the final rule simultaneously with
publication of the notice of the availability of the final
environmental impact statement, and provide notification consistent
with 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.
Upon a showing by the lead agency of compelling reasons of national
policy, the Environmental Protection Agency may reduce the minimum
periods and, upon a showing by any other Federal agency of compelling
reasons of national policy, also may extend the minimum periods, but
only after consultation with the lead agency. The lead agency may
modify the minimum periods when necessary to comply with other specific
statutory requirements. (Sec. 1507.3(f)(2) of this chapter) 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.
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 this subchapter, the Federal agency taking the
action should consult with the Council about alternative arrangements
for compliance with section 102(2)(C) of NEPA. Agencies and the Council
will limit such arrangements to actions necessary to control the
immediate impacts of the emergency. Other actions remain subject to
NEPA review.
Sec. 1506.13 Effective date.
The regulations in this subchapter apply to any NEPA process begun
after September 14, 2020. An agency may apply the regulations in this
subchapter to ongoing activities and environmental
[[Page 43373]]
documents begun before September 14, 2020.
0
9. 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, 3 CFR, 1966-1970, Comp., p. 902, as
amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123; and
E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
Sec. 1507.1 Compliance.
All agencies of the Federal Government shall comply with the
regulations in this subchapter.
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 this subchapter. Such compliance may include use of the
resources of other agencies, applicants, and other participants in the
NEPA process, but the agency using the resources shall itself have
sufficient capability to evaluate what others do for it and account for
the contributions of others. Agencies shall:
(a) Fulfill the requirements of section 102(2)(A) of NEPA to
utilize a systematic, interdisciplinary approach that will ensure the
integrated use of the natural and social sciences and the environmental
design arts in planning and in decision making that may have an impact
on the human environment. Agencies shall designate a senior agency
official to be responsible for overall review of agency NEPA
compliance, including resolving implementation issues.
(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 that involves unresolved conflicts
concerning alternative uses of available resources, consistent with
section 102(2)(E) of NEPA.
(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) Where existing agency NEPA procedures are inconsistent with the
regulations in this subchapter, the regulations in this subchapter
shall apply, consistent with Sec. 1506.13 of this chapter, unless
there is a clear and fundamental conflict with the requirements of
another statute. The Council has determined that the categorical
exclusions contained in agency NEPA procedures as of September 14, 2020
are consistent with this subchapter.
(b) No more than 12 months after September 14, 2020, or 9 months
after the establishment of an agency, whichever comes later, each
agency shall develop or revise, as necessary, proposed procedures to
implement the regulations in this subchapter, including to eliminate
any inconsistencies with the regulations in this subchapter. When the
agency is a department, it may be efficient for major subunits (with
the consent of the department) to adopt their own procedures. Except
for agency efficiency (see paragraph (c) of this section) or as
otherwise required by law, agency NEPA procedures shall not impose
additional procedures or requirements beyond those set forth in the
regulations in this subchapter.
(1) Each agency shall consult with the Council while developing or
revising its proposed procedures and before publishing them in the
Federal Register for comment. Agencies with similar programs should
consult with each other and the Council to coordinate their procedures,
especially for programs requesting similar information from applicants.
(2) Agencies shall provide an opportunity for public review and
review by the Council for conformity with the Act and the regulations
in this subchapter before 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.
(c) Agencies shall adopt, as necessary, agency NEPA procedures to
improve agency efficiency and ensure that agencies make decisions in
accordance with the Act's procedural requirements. Such procedures
shall include:
(1) 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 begins at the earliest
reasonable time, consistent with Sec. 1501.2 of this chapter, and
aligns with the corresponding decision points.
(2) Requiring that relevant environmental documents, comments, and
responses be part of the record in formal rulemaking or adjudicatory
proceedings.
(3) 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.
(4) 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 documents. If another
decision document accompanies the relevant environmental documents to
the decision maker, agencies are encouraged to make available to the
public before the decision is made any part of that document that
relates to the comparison of alternatives.
(5) Requiring the combination of environmental documents with other
agency documents. Agencies may designate and rely on one or more
procedures or documents under other statutes or Executive orders as
satisfying some or all of the requirements in this subchapter, and
substitute such procedures and documentation to reduce duplication.
When an agency substitutes one or more procedures or documents for the
requirements in this subchapter, the agency shall identify the
respective requirements that are satisfied.
(d) Agency procedures should identify those activities or decisions
that are not subject to NEPA, including:
(1) Activities or decisions expressly exempt from NEPA under
another statute;
(2) Activities or decisions where compliance with NEPA would
clearly
[[Page 43374]]
and fundamentally conflict with the requirements of another statute;
(3) Activities or decisions where compliance with NEPA would be
inconsistent with Congressional intent expressed in another statute;
(4) Activities or decisions that are non-major Federal actions;
(5) Activities or decisions that are non-discretionary actions, in
whole or in part, for which the agency lacks authority to consider
environmental effects as part of its decision-making process; and
(6) Actions where the agency has determined that another statute's
requirements serve the function of agency compliance with the Act.
(e) Agency procedures shall comply with the regulations in this
subchapter 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) of this chapter (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
of this chapter)). 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 when 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.
(f) Agency procedures may:
(1) Include specific criteria for providing limited exceptions to
the provisions of the regulations in this subchapter for classified
proposals. These are proposed actions that are specifically authorized
under criteria established by an Executive order or statute to be kept
secret in the interest of national defense or foreign policy and are in
fact properly classified pursuant to such Executive order or statute.
Agencies may safeguard and restrict from public dissemination
environmental assessments and environmental impact statements that
address classified proposals in accordance with agencies' own
regulations applicable to classified information. Agencies should
organize these documents so that classified portions are included as
annexes, so that the agencies can make the unclassified portions
available to the public.
(2) Provide for periods of time other than those presented in Sec.
1506.11 of this chapter when necessary to comply with other specific
statutory requirements, including requirements of lead or cooperating
agencies.
(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(d) of this chapter 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) Establish a process that allows the agency to use a categorical
exclusion listed in another agency's NEPA procedures after consulting
with that agency to ensure the use of the categorical exclusion is
appropriate. The process should ensure documentation of the
consultation and identify to the public those categorical exclusions
the agency may use for its proposed actions. Then, the agency may apply
the categorical exclusion to its proposed actions.
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
10. Revise part 1508 to read as follows:
PART 1508--DEFINITIONS
Sec.
1508.1 Definitions.
1508.2 [Reserved]
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, as
amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123; and
E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
Sec. 1508.1 Definitions.
The following definitions apply to the regulations in this
subchapter. Federal agencies shall use these terms uniformly throughout
the Federal Government.
(a) Act or NEPA means the National Environmental Policy Act, as
amended (42 U.S.C. 4321, et seq.).
(b) Affecting means will or may have an effect on.
(c) Authorization means any license, permit, approval, finding,
determination, or other administrative decision issued by an agency
that is required or authorized under Federal law in order to implement
a proposed action.
(d) Categorical exclusion means a category of actions that the
agency has determined, in its agency NEPA procedures (Sec. 1507.3 of
this chapter), 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 that 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
that may significantly affect the quality of the human environment.
(f) Council means the Council on Environmental Quality established
by title II of the Act.
[[Page 43375]]
(g) Effects or impacts means changes to the human environment from
the proposed action or alternatives that are reasonably foreseeable and
have a reasonably close causal relationship to the proposed action or
alternatives, including those effects that occur at the same time and
place as the proposed action or alternatives and may include effects
that are later in time or farther removed in distance from the proposed
action or alternatives.
(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
generally not be considered if they are remote in time, geographically
remote, or the product of a lengthy causal chain. Effects do not
include those effects that the agency has no ability to prevent due to
its limited statutory authority or would occur regardless of the
proposed action.
(3) An agency's analysis of effects shall be consistent with this
paragraph (g). Cumulative impact, defined in 40 CFR 1508.7 (1978), is
repealed.
(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 a finding of no significant impact, as provided in
Sec. 1501.6 of this chapter.
(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. For the purposes of the regulations in this subchapter, Federal
agency also includes States, units of general local government, and
Tribal governments assuming NEPA responsibilities from a Federal agency
pursuant to statute.
(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 of this chapter), 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 also the
definition of ``effects'' in paragraph (g) of this section.)
(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 a Federal agency, but does not include requests for
appropriations or legislation recommended by the President.
(q) Major Federal action or action means an activity or decision
subject to Federal control and responsibility subject to the following:
(1) Major Federal action does not include the following activities
or decisions:
(i) Extraterritorial activities or decisions, which means agency
activities or decisions with effects located entirely outside of the
jurisdiction of the United States;
(ii) Activities or decisions that are non-discretionary and made in
accordance with the agency's statutory authority;
(iii) Activities or decisions that do not result in final agency
action under the Administrative Procedure Act or other statute that
also includes a finality requirement;
(iv) Judicial or administrative civil or criminal enforcement
actions;
(v) Funding assistance solely in the form of general revenue
sharing funds with no Federal agency control over the subsequent use of
such funds;
(vi) Non-Federal projects with minimal Federal funding or minimal
Federal involvement where the agency does not exercise sufficient
control and responsibility over the outcome of the project; and
(vii) Loans, loan guarantees, or other forms of financial
assistance where the Federal agency does not exercise sufficient
control and responsibility over the effects of such assistance (for
example, action does 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
697g).
(2) 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 of this chapter).
(3) Major Federal actions tend to fall within one of the following
categories:
(i) Adoption of official policy, such as rules, regulations, and
interpretations adopted under the Administrative Procedure Act, 5
U.S.C. 551 et seq. or other statutes; implementation of treaties and
international conventions or agreements, including those implemented
pursuant to statute or regulation; formal documents establishing an
agency's policies 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 of this chapter:
(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 effects caused by a proposed action or alternatives as described in
an environmental document or record of decision and that have a nexus
to those effects. While NEPA requires consideration of mitigation, it
does not mandate the form or adoption of any mitigation. Mitigation
includes:
[[Page 43376]]
(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 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 of this chapter.
(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 of this chapter).
(dd) Senior agency official means an official of assistant
secretary rank or higher (or equivalent) that is designated for overall
agency NEPA compliance, including resolving implementation issues.
(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.
Sec. 1508.2 [Reserved]
PARTS 1515 THROUGH 1518 [DESIGNATED AS SUBCHAPTER B]
0
11. Designate parts 1515 through 1518 as subchapter B and add a heading
for newly designated subchapter B to read as follows:
Subchapter B--Administrative Procedures and Operations
[FR Doc. 2020-15179 Filed 7-15-20; 4:15 pm]
BILLING CODE 3225-F0-P
