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Proposed Rule2023-15405

National Environmental Policy Act Implementing Regulations Revisions Phase 2

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Published

July 31, 2023

Issuing agencies

Council on Environmental Quality

Abstract

The Council on Environmental Quality (CEQ) is proposing this "Bipartisan Permitting Reform Implementation Rule" to revise its regulations for implementing the procedural provisions of the National Environmental Policy Act (NEPA), including to implement the Fiscal Responsibility Act's amendments to NEPA. CEQ proposes the revisions to provide for an effective environmental review process that promotes better decision making; ensure full and fair public involvement; provide for an efficient process and regulatory certainty; and provide for sound decision making grounded in science, including consideration of relevant environmental, climate change, and environmental justice effects. CEQ proposes these changes to better align the provisions with CEQ's extensive experience implementing NEPA; CEQ's perspective on how NEPA can best inform agency decision making; longstanding Federal agency experience and practice; NEPA's statutory text and purpose, including making decisions informed by science; and case law interpreting NEPA's requirements. CEQ invites comments on the proposed revisions.

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[Federal Register Volume 88, Number 145 (Monday, July 31, 2023)]
[Proposed Rules]
[Pages 49924-49988]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-15405]

[[Page 49923]]

Vol. 88

Monday,

No. 145

July 31, 2023

Part III

Council on Environmental Quality

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40 CFR Parts 1500, 1501, 1502, et al.

National Environmental Policy Act Implementing Regulations Revisions
Phase 2; Proposed Rule

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

[[Page 49924]]

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COUNCIL ON ENVIRONMENTAL QUALITY

40 CFR Parts 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, and
1508

[CEQ-2023-0003]
RIN 0331-AA07

National Environmental Policy Act Implementing Regulations
Revisions Phase 2

AGENCY: Council on Environmental Quality.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Council on Environmental Quality (CEQ) is proposing this
``Bipartisan Permitting Reform Implementation Rule'' to revise its
regulations for implementing the procedural provisions of the National
Environmental Policy Act (NEPA), including to implement the Fiscal
Responsibility Act's amendments to NEPA. CEQ proposes the revisions to
provide for an effective environmental review process that promotes
better decision making; ensure full and fair public involvement;
provide for an efficient process and regulatory certainty; and provide
for sound decision making grounded in science, including consideration
of relevant environmental, climate change, and environmental justice
effects. CEQ proposes these changes to better align the provisions with
CEQ's extensive experience implementing NEPA; CEQ's perspective on how
NEPA can best inform agency decision making; longstanding Federal
agency experience and practice; NEPA's statutory text and purpose,
including making decisions informed by science; and case law
interpreting NEPA's requirements. CEQ invites comments on the proposed
revisions.

DATES:
Comments: CEQ must receive comments by September 29, 2023.
Public meetings: CEQ will conduct four virtual public meetings for
the proposed rule on Saturday, August 26, 2023, from 1 p.m. to 4 p.m.
EDT; Wednesday, August 30, 2023, from 5 p.m. to 8 p.m. EDT; Monday,
September 11, 2023, from 1 p.m. to 4 p.m. EDT; and Thursday, September
21, 2023, from 2 p.m. to 5 p.m. EDT. For additional information and to
register for the meetings, please visit CEQ's website at <a href="http://www.nepa.gov">www.nepa.gov</a>.

ADDRESSES: You may submit comments, identified by docket number CEQ-
2023-0003, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Fax: 202-456-6546.
<bullet> Mail: Council on Environmental Quality, 730 Jackson Place
NW, Washington, DC 20503.
Instructions: All submissions received must include the agency
name, ``Council on Environmental Quality,'' and docket number, CEQ-
2023-0003, for this rulemaking. All comments received will be posted
without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal
information provided. Please do not submit electronically any
information you consider private, Confidential Business Information
(CBI), or other information, the disclosure of which is restricted by
statute.
Docket: For access to the docket to read background documents or
comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>.

FOR FURTHER INFORMATION CONTACT: Amy B. Coyle, Deputy General Counsel,
202-395-5750, <a href="/cdn-cgi/l/email-protection#88c9e5f1a6caa6cbe7f1e4edc8ebedf9a6ede7f8a6efe7fe">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:

I. Background

A. NEPA Statute

Congress enacted NEPA in 1969 by a unanimous vote in the Senate and
a nearly unanimous vote in the House to declare an ambitious and
visionary national policy to promote environmental protection for
present and future generations.\1\ President Nixon signed NEPA into law
on January 1, 1970. NEPA seeks to ``encourage productive and enjoyable
harmony'' between humans and the environment, recognizing the
``profound impact'' of human activity and the ``critical importance of
restoring and maintaining environmental quality'' to the overall
welfare of humankind. 42 U.S.C. 4321, 4331.
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\1\ See Linda Luther, Cong. Rsch. Serv., RL33152, The National
Environmental Policy Act: Background and Implementation, 4 (2008),
<a href="https://crsreports.congress.gov/product/details?prodcode=RL33152">https://crsreports.congress.gov/product/details?prodcode=RL33152</a>.
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Furthermore, NEPA seeks to promote efforts that will prevent or
eliminate damage to the environment and biosphere and stimulate the
health and welfare of people, making it the continuing policy of the
Federal Government to use all practicable means and measures to create
and maintain conditions under which humans and nature can exist in
productive harmony and fulfill the social, economic, and other
requirements of present and future generations of Americans. 42 U.S.C.
4331(a). It also recognizes that each person should have the
opportunity to enjoy a healthy environment and has a responsibility to
contribute to the preservation and enhancement of the environment. 42
U.S.C. 4331(c).
NEPA requires Federal agencies to interpret and administer Federal
policies, regulations, and laws in accordance with NEPA's policies and
to consider environmental values in their decision making. 42 U.S.C.
4332. To that end, section 102(2)(C) of NEPA requires Federal agencies
to prepare ``detailed statements,'' referred to as environmental impact
statements (EISs), for ``every recommendation or report on proposals
for legislation and other major Federal actions significantly affecting
the quality of the human environment'' and, in doing so, provide
opportunities for public participation to help inform agency decision
making. 42 U.S.C. 4332(2)(C). The EIS process embodies the
understanding that informed decisions are better decisions and lead to
better environmental outcomes when decision makers understand,
consider, and publicly disclose environmental effects of their
decisions. The EIS process also enriches understanding of the
ecological systems and natural resources important to the Nation and
helps guide sound decision making, such as decisions on infrastructure
and energy development, in line with high-quality information,
including the best available science, information and data, as well as
the environmental design arts.
In many respects, NEPA was a statute ahead of its time and remains
relevant and vital today. It codifies the common-sense idea of ``look
before you leap'' to guide agency decision making, particularly in
complex and consequential areas, because conducting sound environmental
analysis before agencies take actions reduces conflict and waste in the
long run by avoiding unnecessary harm and uninformed decisions. See,
e.g., 42 U.S.C. 4332. It establishes a framework for agencies to ground
decisions in sound science and recognizes that the public may have
important ideas and information on how Federal actions can occur in a
manner that reduces potential harms and enhances ecological, social,
and economic well-being. See, e.g., id.
On June 3, 2023, President Biden signed the Fiscal Responsibility
Act of 2023 (FRA) into law, which included amendments to NEPA.
Specifically, the FRA amended section 102(2)(C) and added sections
102(2)(D) through (F) and sections 106 through 111. The amendments in
section 102(2)(C) largely codify longstanding principles that EISs

[[Page 49925]]

should include discussion of reasonably foreseeable environmental
effects of the proposed action, reasonably foreseeable adverse
environmental effects that cannot be avoided, and a reasonable range of
alternatives to the proposed action. Section 102(2)(D) requires Federal
agencies to ensure the professional integrity of the discussion and
analysis in an environmental document; section 102(2)(E) requires use
of reliable data and resources when carrying out NEPA; and section
102(2)(F) requires agencies to study, develop, and describe technically
and economically feasible alternatives.
Section 106 adds provisions for determining the appropriate level
of NEPA review. It clarifies that an agency is only required to prepare
an environmental document when proposing to take an action that would
constitute a final agency action and codifies existing regulations and
caselaw that an agency is not required to prepare an environmental
document when doing so would clearly and fundamentally conflict with
the requirements of another law or a proposed action is non-
discretionary. Section 106 also largely codifies the current CEQ
regulations and longstanding practice with respect to the use of
categorical exclusions (CEs), environmental assessments (EAs), and
EISs, as modified by the new provision expressly permitting agencies to
adopt CEs from other agencies established in section 109 of NEPA.
Section 107 addresses timely and unified Federal reviews, codifying
existing practice with a few minor adjustments, including provisions
clarifying lead, joint-lead, and cooperating agency designation,
generally requiring development of a single environmental document,
directing agencies to develop procedures for project sponsors to
prepare EAs and EISs, and prescribing page limits and deadlines similar
to current requirements. Section 108 codifies time lengths and
circumstances for when agencies can rely on programmatic environmental
documents without additional review, and section 109 allows a Federal
agency to use another agency's CE. Section 111 adds a variety of
definitions. This proposed rule would update the regulations to address
how agencies should implement NEPA consistent with the amendments made
by the FRA.

B. The Council on Environmental Quality

NEPA established the Council on Environmental Quality (CEQ) in the
Executive Office of the President. 42 U.S.C. 4342. For more than 50
years, CEQ has advised presidents on national environmental policy,
assisted Federal agencies in their implementation of NEPA, and overseen
implementation of a variety of other environmental initiatives from the
expeditious and thorough environmental review of infrastructure
projects \2\ to the sustainability of Federal operations.\3\
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\2\ See, e.g., E.O. 14008, Tackling the Climate Crisis at Home
and Abroad, 86 FR 7619 (Feb. 1, 2021); E.O. 13604, Improving
Performance of Federal Permitting and Review of Infrastructure
Projects, 77 FR 18885 (Mar. 28, 2012); E.O. 13274, Environmental
Stewardship and Transportation Infrastructure Project Reviews, 67 FR
59449 (Sept. 23, 2002); see also Modernizing Federal Infrastructure
Review and Permitting Regulations, Policies, and Procedures, 78 FR
30733 (May 22, 2013).
\3\ See, e.g., E.O. 14057, Catalyzing Clean Energy Industries
and Jobs Through Federal Sustainability, 86 FR 70935 (Dec. 13,
2021); E.O. 13834, Efficient Federal Operations, 83 FR 23771 (May
22, 2018); E.O. 13693, Planning for Federal Sustainability in the
Next Decade, 80 FR 15869 (Mar. 25, 2015); E.O. 13514, Federal
Leadership in Environmental, Energy, and Economic Performance, 74 FR
52117 (Oct. 8, 2009); E.O. 13423, Strengthening Federal
Environmental, Energy, and Transportation Management, 72 FR 3919
(Jan. 26, 2007); E.O. 13101, Greening the Government Through Waste
Prevention, Recycling, and Federal Acquisition, 63 FR 49643 (Sept.
16, 1998). For Presidential directives pertaining to other
environmental initiatives, see E.O. 13432, Cooperation Among
Agencies in Protecting the Environment With Respect to Greenhouse
Gas Emissions From Motor Vehicles, Nonroad Vehicles, and Nonroad
Engines, 72 FR 27717 (May 16, 2007) (requiring CEQ and OMB to
implement the E.O. and facilitate Federal agency cooperation to
reduce greenhouse gas emissions); E.O. 13141, Environmental Review
of Trade Agreements, 64 FR 63169 (Nov. 18, 1999) (requiring CEQ and
the U.S. Trade Representative to implement the E.O., which has the
purpose of promoting Trade agreements that contribute to sustainable
development); E.O. 13061, Federal Support of Community Efforts Along
American Heritage Rivers, 62 FR 48445 (Sept. 15, 1997) (charging CEQ
with implementing the American Heritage Rivers initiative); E.O.
13547, Stewardship of the Ocean, Our Coasts, and the Great Lakes, 75
FR 43023 (Jul. 22, 2010) (directing CEQ to lead the National Ocean
Council); E.O. 13112, Invasive Species, 64 FR 6183 (Feb. 8, 1999)
(requiring the Invasive Species Council to consult with CEQ to
develop guidance to Federal agencies under NEPA on prevention and
control of invasive species).
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NEPA charges CEQ with overseeing and guiding NEPA implementation
across the Federal Government. In addition to issuing the regulations
for implementing NEPA, 40 CFR parts 1500 through 1508 (referred to
throughout as ``the CEQ regulations''), CEQ has issued guidance on
numerous topics related to NEPA review. In 1981, CEQ issued the ``Forty
Most Asked Questions Concerning CEQ's National Environmental Policy Act
Regulations,'' \4\ which CEQ has routinely identified as an invaluable
tool for Federal, Tribal, State, and local governments and officials,
and members of the public, who have questions about NEPA
implementation.
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\4\ CEQ, Forty Most Asked Questions Concerning CEQ's National
Environmental Policy Act Regulations, 46 FR 18026 (Mar. 23, 1981)
(``Forty Questions''), <a href="https://www.energy.gov/nepa/downloads/forty-most-asked-questions-concerning-ceqs-national-environmental-policy-act">https://www.energy.gov/nepa/downloads/forty-most-asked-questions-concerning-ceqs-national-environmental-policy-act</a>.
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CEQ also has issued guidance on a variety of other topics, from
scoping to cooperating agencies to consideration of effects.\5\ For
example, in 1997, CEQ issued guidance documents on the consideration of
environmental justice in the NEPA context \6\ under Executive Order
(E.O.) 12898, Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations,7 and on
analysis of cumulative effects in NEPA reviews,\8\ two documents that
agencies continue to use today. From 2010 to the present, CEQ developed
additional guidance on CEs, mitigation, programmatic reviews, and
consideration of greenhouse gas (GHG) emissions in NEPA.\9\ To ensure

[[Page 49926]]

coordinated environmental review, CEQ has issued guidance to integrate
NEPA reviews with other environmental review requirements such as the
National Historic Preservation Act, E.O. 11988, Floodplain Management,
and E.O. 11990, Protection of Wetlands.\10\ Finally, CEQ has provided
guidance to ensure efficient and effective environmental reviews,
particularly for infrastructure projects.\11\
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\5\ See, e.g., CEQ, Memorandum for General Counsels, NEPA
Liaisons and Participants in Scoping (Apr. 30, 1981), <a href="https://www.energy.gov/nepa/downloads/scoping-guidance-memorandum-general-counsels-nepa-liaisons-and-participants-scoping">https://www.energy.gov/nepa/downloads/scoping-guidance-memorandum-general-counsels-nepa-liaisons-and-participants-scoping</a>; CEQ, Incorporating
Biodiversity Considerations Into Environmental Impact Analysis Under
the National Environmental Policy Act (Jan. 1993), <a href="https://ceq.doe.gov/publications/incorporating_biodiversity.html">https://ceq.doe.gov/publications/incorporating_biodiversity.html</a>; CEQ,
Council on Environmental Quality Guidance on NEPA Analyses for
Transboundary Impacts (July 1, 1997), <a href="https://ceq.doe.gov/docs/ceq-regulations-and-guidance/memorandum-transboundary-impacts-070197.pdf">https://ceq.doe.gov/docs/ceq-regulations-and-guidance/memorandum-transboundary-impacts-070197.pdf</a>; CEQ, Designation of Non-Federal Agencies to be
Cooperating Agencies in Implementing the Procedural Requirements of
the National Environmental Policy Act (July 28, 1999), <a href="https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ceqcoop.pdf">https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ceqcoop.pdf</a>; CEQ,
Identifying Non-Federal Cooperating Agencies in Implementing the
Procedural Requirements of the National Environmental Policy Act
(Sept. 25, 2000), <a href="https://ceq.doe.gov/docs/ceq-regulations-and-guidance/memo-non-federal-cooperating-agencies-09252000.pdf">https://ceq.doe.gov/docs/ceq-regulations-and-guidance/memo-non-federal-cooperating-agencies-09252000.pdf</a>; CEQ &
DOT Letters on Lead and Cooperating Agency Purpose and Need (May 12,
2003), <a href="https://ceq.doe.gov/docs/ceq-regulations-and-guidance/CEQ-DOT_PurposeNeed_May-2013.pdf">https://ceq.doe.gov/docs/ceq-regulations-and-guidance/CEQ-DOT_PurposeNeed_May-2013.pdf</a>.
\6\ CEQ, Environmental Justice: Guidance under the National
Environmental Policy Act (Dec. 10, 1997) (``Environmental Justice
Guidance''), <a href="https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ej/justice.pdf">https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ej/justice.pdf</a>.
\7\ E.O. 12898, Federal Actions To Address Environmental Justice
in Minority Populations and Low-Income Populations, 59 FR 7629 (Feb.
16, 1994).
\8\ CEQ, Considering Cumulative Effects Under the National
Environmental Policy Act (Jan. 1997), <a href="https://ceq.doe.gov/publications/cumulative_effects.html">https://ceq.doe.gov/publications/cumulative_effects.html</a>; see also CEQ, Guidance on the
Consideration of Past Actions in Cumulative Effects Analysis (June
24, 2005), <a href="https://www.energy.gov/sites/default/files/nepapub/nepa_documents/RedDont/G-CEQ-PastActsCumulEffects.pdf">https://www.energy.gov/sites/default/files/nepapub/nepa_documents/RedDont/G-CEQ-PastActsCumulEffects.pdf</a>.
\9\ CEQ, Establishing, Applying, and Revising Categorical
Exclusions Under the National Environmental Policy Act (Nov. 23,
2010) (``CE Guidance''), <a href="https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf">https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf</a>; CEQ, Appropriate Use of
Mitigation and Monitoring and Clarifying the Appropriate Use of
Mitigated Findings of No Significant Impact (Jan. 14, 2011), <a href="https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf">https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf</a>; CEQ, National
Environmental Policy Act Guidance on Consideration of Greenhouse Gas
Emissions and Climate Change, 88 FR 1196 (Jan. 9, 2023) (``2023 GHG
Guidance''), <a href="https://ceq.doe.gov/guidance/ceq_guidance_nepa-ghg.html">https://ceq.doe.gov/guidance/ceq_guidance_nepa-ghg.html</a>.
\10\ CEQ, Implementation of Executive Order 11988 on Floodplain
Management and Executive Order 11990 on Protection of Wetlands (Mar.
21, 1978), <a href="https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Memorandum-Implementation-of-EO-11988-and-EO-11990-032178.pdf">https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Memorandum-Implementation-of-EO-11988-and-EO-11990-032178.pdf</a>; CEQ &
Advisory Council on Historic Preservation, NEPA and NHPA: A Handbook
for Integrating NEPA and Section 106 (Mar. 2013), <a href="https://ceq.doe.gov/docs/ceq-publications/NEPA_NHPA_Section_106_Handbook_Mar2013.pdf">https://ceq.doe.gov/docs/ceq-publications/NEPA_NHPA_Section_106_Handbook_Mar2013.pdf</a>.
\11\ See, e.g., CEQ, Improving the Process for Preparing
Efficient and Timely Environmental Reviews Under the National
Environmental Policy Act (Mar. 6, 2012), <a href="https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Improving_NEPA_Efficiencies_06Mar2012.pdf">https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Improving_NEPA_Efficiencies_06Mar2012.pdf</a>; CEQ, Effective Use of
Programmatic NEPA Reviews (Dec. 18, 2014) (``Programmatic
Guidance''), <a href="https://www.energy.gov/sites/default/files/2016/05/f31/effective_use_of_programmatic_nepa_reviews_18dec2014.pdf">https://www.energy.gov/sites/default/files/2016/05/f31/effective_use_of_programmatic_nepa_reviews_18dec2014.pdf</a>; OMB & CEQ,
M-15-20, Guidance Establishing Metrics for the Permitting and
Environmental Review of Infrastructure Projects (Sept. 22, 2015),
<a href="https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2015/m-15-20.pdf">https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2015/m-15-20.pdf</a>; OMB & CEQ, M-17-14, Guidance to
Federal Agencies Regarding the Environmental Review and
Authorization Process for Infrastructure Projects (Jan. 13, 2017),
<a href="https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2017/m-17-14.pdf">https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2017/m-17-14.pdf</a>.
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In addition to guidance, CEQ engages frequently with Federal
agencies on their implementation of NEPA. First, CEQ is responsible for
consulting with all agencies on the development of their NEPA
implementing procedures and determining that those procedures conform
with NEPA and the CEQ regulations. Through this process, CEQ engages
with agencies to understand their specific authorities and programs to
ensure agencies integrate consideration of environmental effects into
their decision-making processes. Additionally, CEQ provides feedback
and recommendations on how agencies may effectively implement NEPA
through their procedures.
Second, CEQ consults with agencies on the efficacy and
effectiveness of NEPA implementation. Where necessary or appropriate,
CEQ engages with agencies on NEPA reviews for specific projects or
project types to provide advice and identify any emerging or cross-
cutting issues that would benefit from CEQ issuing formal guidance or
assisting with coordination. This includes establishing alternative
arrangements for compliance with NEPA when agencies encounter emergency
situations where they need to act swiftly while also ensuring they meet
their NEPA obligations. CEQ also advises on NEPA compliance when
agencies are establishing new programs or implementing new statutory
authorities. Finally, CEQ helps advance the environmental review
process for projects or initiatives deemed important to an
administration such as nationally and regionally significant projects,
major infrastructure projects, and consideration of climate change-
related effects and effects on communities with environmental justice
concerns.\12\
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\12\ See, e.g., Memorandum from President Barack Obama to the
Heads of Executive Departments and Agencies, Speeding Infrastructure
Development through More Efficient and Effective Permitting and
Environmental Review (Aug. 31, 2011), <a href="https://obamawhitehouse.archives.gov/the-press-office/2011/08/31/presidential-memorandum-speeding-infrastructure-development-through-more">https://obamawhitehouse.archives.gov/the-press-office/2011/08/31/presidential-memorandum-speeding-infrastructure-development-through-more</a>; E.O. 13807, Establishing Discipline and Accountability in the
Environmental Review and Permitting Process for Infrastructure
Projects, 82 FR 40463 (Aug. 24, 2017).
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Third, CEQ meets regularly with external stakeholders to understand
their perspectives on the NEPA process. These meetings can help inform
CEQ's development of guidance or other initiatives and engagement with
Federal agencies. Finally, CEQ coordinates with other Federal agencies
and components of the White House on a wide array of environmental
issues and reviews that intersect with the NEPA process, such as
Endangered Species Act consultation or effects to Federal lands and
waters from federally authorized activities.
In addition to its NEPA responsibilities, CEQ is currently charged
with implementing several of the administration's key environmental
priorities. On January 27, 2021, the President signed E.O. 14008,
Tackling the Climate Crisis at Home and Abroad, to establish a
government-wide approach to the climate crisis by reducing GHG
emissions across the economy; increasing resilience to climate change-
related effects; conserving land, water, and biodiversity;
transitioning to a clean-energy economy; advancing environmental
justice; and investing in disadvantaged communities.\13\ CEQ is leading
the President's efforts to secure environmental justice consistent with
sections 219 through 223 of the E.O.\14\ For example, CEQ has developed
the Climate and Economic Justice Screening Tool \15\ and collaborates
with the Office of Management and Budget (OMB) and the National Climate
Advisor on implementing the Justice40 initiative, which sets a goal
that 40 percent of the overall benefits of certain Federal investments
flow to disadvantaged communities.\16\
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\13\ E.O. 14008, supra note 2.
\14\ E.O. 14008's direction to advance environmental justice
reinforces and reflects longstanding policy established in E.O.
12898 and advances the related though distinct policy defined more
broadly in E.O. 13985, Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government, that the
Federal Government ``pursue a comprehensive approach to advancing
equity for all, including people of color and others who have been
historically underserved, marginalized, and adversely affected by
persistent poverty and inequality.'' 86 FR 7009 (Jan. 25, 2021),
sec. 1.
\15\ CEQ, Explore the Map, Climate and Economic Justice
Screening Tool, <a href="https://screeningtool.geoplatform.gov/">https://screeningtool.geoplatform.gov/</a>.
\16\ E.O. 14008, supra note 2, sec. 223.
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Section 205 of the E.O. also charged CEQ with developing the
Federal Sustainability Plan, a directive that was augmented by E.O.
14057, Catalyzing Clean Energy Industries and Jobs Through Federal
Sustainability,\17\ to achieve a carbon pollution-free electricity
sector and clean and zero-emission vehicle fleets. CEQ also is
collaborating with the Departments of the Interior, Agriculture, and
Commerce on the implementation of the America the Beautiful
Initiative.\18\ Additionally, E.O. 14008 requires the Chair of CEQ and
the Director of OMB to ensure that Federal permitting decisions
consider the effects of GHG emissions and climate change.\19\
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\17\ E.O. 14057, supra note 3.
\18\ E.O. 14008, supra note 2.
\19\ Id. at sec. 213(a); see also id., sec. 219 (directing
agencies to ``make achieving environmental justice part of their
missions by developing programs, policies, and activities to address
the disproportionately high and adverse human health, environmental,
climate-related and other cumulative impacts on disadvantaged
communities'').
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CEQ is also instrumental to the President's efforts to institute a
government-wide approach to advancing environmental justice. On April
21, 2023, the President signed E.O. 14096, Revitalizing Our Nation's
Commitment to Environmental Justice for All, to further embed
environmental justice into the work of Federal agencies and ensure that
all people can benefit from the vital safeguards enshrined in the
Nation's foundational environmental and civil rights laws.\20\

[[Page 49927]]

The E.O. charges each agency with making achieving environmental
justice part of its mission consistent with statutory authority,\21\
and requires each agency to submit to the Chair of CEQ and make
publicly available an Environmental Strategic Plan setting forth the
agency's goals and plans for advancing environmental justice.\22\
Further, section 8 of the E.O. establishes a White House Office of
Environmental Justice within CEQ.
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\20\ E.O. 14096, Revitalizing Our Nation's Commitment to
Environmental Justice for All, 88 FR 25251 (Apr. 26, 2023). E.O.
14096 builds upon efforts to advance environmental justice and
equity consistent with the policy advanced in documents including
E.O. 13985, E.O. 14008, and E.O. 12898. See, e.g., note 14, supra.
\21\ E.O. 14096, supra note 20, sec. 3.
\22\ Id. at sec. 4.
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Finally, CEQ is staffed with experts with decades of NEPA
experience. CEQ's diverse array of responsibilities and expertise has
long influenced the implementation of NEPA, and CEQ relied extensively
on this experience in developing this rulemaking.

C. NEPA Implementation 1970-2019

Following shortly after the enactment of NEPA, President Nixon
issued E.O. 11514, Protection and Enhancement of Environmental Quality,
directing CEQ to issue guidelines for implementation of section
102(2)(C) of NEPA.\23\ In response, CEQ in April 1970 issued interim
guidelines, which addressed the provisions of section 102(2)(C) of the
Act regarding EIS requirements.\24\ CEQ revised the guidelines in 1971
and 1973 to address public involvement and introduce the concepts of
EAs and draft and final EISs.\25\
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\23\ E.O. 11514, Protection and Enhancement of Environmental
Quality, 35 FR 4247 (Mar. 7, 1970), sec. 3(h).
\24\ See Statements on Proposed Federal Actions Affecting the
Environment, 35 FR 7390 (May 12, 1970) (interim guidelines).
\25\ Statements on Proposed Federal Actions Affecting the
Environment, 36 FR 7724 (Apr. 23, 1971) (final guidelines);
Preparation of Environmental Impact Statements, 38 FR 10856 (May 2,
1973) (proposed revisions to the guidelines); Preparation of
Environmental Impact Statements: Guidelines, 38 FR 20550 (Aug. 1,
1973) (revised guidelines).
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In 1977, President Carter issued E.O. 11991, Relating to Protection
and Enhancement of Environmental Quality, amending E.O. 11514 and
directing CEQ to issue regulations for implementation of section
102(2)(C) of NEPA and requiring that Federal agencies comply with those
regulations.\26\ CEQ promulgated its NEPA regulations in 1978.\27\
Issued 8 years after NEPA's enactment, the NEPA regulations reflected
CEQ's interpretation of the statutory text and Congressional intent,
expertise developed through issuing and revising the CEQ guidelines and
advising Federal agencies on their implementation of NEPA, initial
interpretations of the courts, and Federal agency experience
implementing NEPA. The 1978 regulations reflected the fundamental
principles of informed and science-based decision making, transparency,
and public engagement Congress established in NEPA. The regulations
further required agency-level implementation, directing Federal
agencies to issue and update periodically agency-specific implementing
procedures to supplement CEQ's procedures and integrate the NEPA
process into the agencies' specific programs and processes. Consistent
with 42 U.S.C. 4332(2)(B), the regulations also required agencies to
consult with CEQ in the development or update of these agency-specific
procedures to ensure consistency with CEQ's regulations.
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\26\ E.O. 11991, Relating to Protection and Enhancement of
Environmental Quality, 42 FR 26967 (May 25, 1977).
\27\ Implementation of Procedural Provisions, 43 FR 55978 (Nov.
29, 1978).
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CEQ made typographical amendments to the 1978 implementing
regulations in 1979 \28\ and amended one provision in 1986 (CEQ refers
to these regulations, as amended, as the ``1978 regulations'' in this
preamble).\29\ Otherwise, CEQ left the regulations unchanged for over
40 years. As a result, CEQ and Federal agencies developed extensive
experience implementing the 1978 regulations, and a large body of
agency practice and case law developed based on them.
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\28\ Implementation of Procedural Provisions; Corrections, 44 FR
873 (Jan. 3, 1979).
\29\ National Environmental Policy Act Regulations; Incomplete
or Unavailable Information, 51 FR 15618 (Apr. 25, 1986) (amending 40
CFR 1502.22).
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D. 2020 Amendments to the CEQ Regulations

On August 15, 2017, President Trump issued E.O. 13807, Establishing
Discipline and Accountability in the Environmental Review and
Permitting Process for Infrastructure Projects,\30\ which directed CEQ
to establish and lead an interagency working group to identify and
propose changes to the NEPA regulations.\31\ In response, CEQ issued an
advance notice of proposed rulemaking (ANPRM) on June 20, 2018,\32\ and
a notice of proposed rulemaking (NPRM) on January 10, 2020, proposing
broad revisions to the 1978 regulations.\33\ A wide range of
stakeholders submitted more than 12,500 comments on the ANPRM \34\ and
1.1 million comments on the proposed rule,\35\ including from state and
local governments, Tribes, environmental advocacy organizations,
professional and industry associations, other advocacy or non-profit
organizations, businesses, and private citizens. Many commenters
provided detailed feedback on the legality, policy wisdom, and
potential consequences of the proposed amendments. In keeping with the
proposed rule, the final rule, promulgated on July 16, 2020 (``2020
regulations'' or ``2020 rule''), made wholesale revisions to the
regulations; it took effect on September 14, 2020.\36\
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\30\ E.O. 13807, supra note 12.
\31\ Id., sec. 5(e)(iii).
\32\ Update to the Regulations for Implementing the Procedural
Provisions of the National Environmental Policy Act, 83 FR 28591
(June 20, 2018).
\33\ Update to the Regulations Implementing the Procedural
Provisions of the National Environmental Policy Act, 85 FR 1684
(Jan. 10, 2020).
\34\ See Docket No. CEQ-2018-0001, <a href="https://www.regulations.gov/document/CEQ-2018-0001-0001">https://www.regulations.gov/document/CEQ-2018-0001-0001</a>.
\35\ See Docket No. CEQ-2019-0003, <a href="https://www.regulations.gov/document/CEQ-2019-0003-0001">https://www.regulations.gov/document/CEQ-2019-0003-0001</a>.
\36\ Update to the Regulations Implementing the Procedural
Provisions of the National Environmental Policy Act, 85 FR 43304
(July 16, 2020) (``2020 Final Rule'').
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In the months that followed the issuance of the 2020 regulations,
five lawsuits were filed challenging the 2020 rule.\37\ These cases
challenge the 2020 rule on a variety of grounds, including under the
Administrative Procedure Act (APA), NEPA, and the Endangered Species
Act, contending that the rule exceeded CEQ's authority and that the
related rulemaking process was procedurally and substantively
defective. In response to CEQ's motions and joint motions, the district
courts issued temporary stays in each of these cases, except for Wild
Virginia v. Council on Environmental Quality, which the district court
dismissed without prejudice on June 21, 2021.\38\ The Fourth Circuit
affirmed that dismissal on December 22, 2022.\39\
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\37\ Wild Va. v. Council on Env't Quality, No. 3:20cv45 (W.D.
Va. 2020); Env't Justice Health All. v. Council on Env't Quality,
No. 1:20cv06143 (S.D.N.Y. 2020); Alaska Cmty. Action on Toxics v.
Council on Env't Quality, No. 3:20cv5199 (N.D. Cal. 2020);
California v. Council on Env't Quality, No. 3:20cv06057 (N.D. Cal.
2020); Iowa Citizens for Cmty. Improvement v. Council on Env't
Quality, No. 1:20cv02715 (D.D.C. 2020). Additionally, in The Clinch
Coalition v. U.S. Forest Serv., No. 2:21cv00003 (W.D. Va. 2020),
plaintiffs challenged the U.S. Forest Service's NEPA implementing
procedures, which established new categorical exclusions, and,
relatedly, the 2020 rule's provisions on categorical exclusions.
\38\ Wild Va. v. Council on Env't Quality, 544 F. Supp. 3d 620
(W.D. Va. 2021).
\39\ Wild Va. v. Council on Env't Quality, 56 F.4th 281 (4th
Cir. 2022).

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[[Page 49928]]

E. CEQ's Review of the 2020 Regulations

On January 20, 2021, President Biden issued E.O. 13990, Protecting
Public Health and the Environment and Restoring Science to Tackle the
Climate Crisis,\40\ to establish an administration policy to listen to
the science; improve public health and protect our environment; ensure
access to clean air and water; limit exposure to dangerous chemicals
and pesticides; hold polluters accountable, including those who
disproportionately harm communities of color and low-income
communities; reduce GHG emissions; bolster resilience to the impacts of
climate change; restore and expand the Nation's treasures and
monuments; and prioritize both environmental justice and the creation
of well-paying union jobs necessary to achieve these goals.\41\ The
Executive Order calls for Federal agencies to review existing
regulations issued between January 20, 2017, and January 20, 2021, for
consistency with the policy it articulates and to take appropriate
action.\42\ The Executive Order also revokes E.O. 13807 and directs
agencies to take steps to rescind any rules or regulations implementing
it.\43\ An accompanying White House fact sheet, published on January
20, 2021, specifically identified the 2020 regulations for CEQ's review
for consistency with E.O. 13990's policy.\44\
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\40\ 86 FR 7037 (Jan. 25, 2021).
\41\ Id. at sec. 1.
\42\ Id.
\43\ Id. at sec. 7.
\44\ The White House, Fact Sheet: List of Agency Actions for
Review (Jan. 20, 2021), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/">https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/</a>.
---------------------------------------------------------------------------

Consistent with E.O. 13990 and E.O. 14008, CEQ has reviewed the
2020 regulations and engaged in a multi-phase rulemaking process to
ensure that the NEPA implementing regulations provide for sound and
efficient environmental review of Federal actions, including those
actions integral to tackling the climate crisis, in a manner that
enables meaningful public participation, provides for an expeditious
process, discloses climate change-related effects, advances
environmental justice, respects Tribal sovereignty, protects our
Nation's resources, and promotes better and more equitable
environmental and community outcomes.
First, CEQ issued an interim final rule on June 29, 2021, amending
the requirement in 40 CFR 1507.3(b) for agencies to propose changes to
existing agency-specific NEPA procedures by September 14, 2021, to make
those procedures consistent with the 2020 regulations.\45\ CEQ extended
the date by 2 years to avoid agencies proposing changes to agency-
specific implementing procedures on a tight deadline to conform to
regulations that are undergoing extensive review and would likely
change in the near future.
---------------------------------------------------------------------------

\45\ Deadline for Agencies to Propose Updates to National
Environmental Policy Act Procedures, 86 FR 34154 (June 29, 2021).
---------------------------------------------------------------------------

Next, on October 7, 2021, CEQ issued a ``Phase 1'' proposed rule to
focus on a discrete set of provisions designed to restore three
elements of the 1978 regulations.\46\ CEQ proposed changes to the
provisions it considered most critical to address, revise, and clarify
while completing the comprehensive review. First, CEQ proposed to
revise 40 CFR 1502.13 to clarify that agencies have discretion to
consider a variety of factors when assessing an application for
authorization by removing a requirement that an agency base the purpose
and need on the goals of an applicant and the agency's statutory
authority. CEQ also proposed a conforming edit to the definition of
``reasonable alternatives'' in 40 CFR 1508.1(z). Second, CEQ proposed
to remove language in 40 CFR 1507.3 that could be construed to limit
agencies' flexibility to develop or revise procedures to implement NEPA
specific to their programs and functions that may go beyond CEQ's
regulatory requirements. Finally, CEQ proposed to revise the definition
of ``effects'' in 40 CFR 1508.1(g) to restore the substance of the
definitions of ``effects'' and ``cumulative impacts'' contained in the
1978 regulations. CEQ received 94,458 written comments in response to
the proposed rule. CEQ issued a Phase 1 final rule on April 20,
2022,\47\ which finalized the proposed revisions.
---------------------------------------------------------------------------

\46\ National Environmental Policy Act Implementing Regulations
Provisions, 86 FR 55757 (Oct. 7, 2021).
\47\ National Environmental Policy Act Implementing Regulations
Revisions, 87 FR 23453 (Apr. 20, 2022) (``Phase 1 Final Rule'').
---------------------------------------------------------------------------

CEQ received a variety of comments on the Phase 1 proposed rule
suggesting additional provisions or changes that CEQ should consider as
part of the Phase 2 rulemaking.\48\ For example, commenters requested
that CEQ strengthen public participation requirements and encourage
more robust public engagement; better incorporate environmental justice
and climate change considerations into the regulations; further address
the climate and biodiversity crises; modernize environmental review of
renewable energy projects; and further refine definitions, including
human environment, major Federal action, and effects. In addition,
commenters suggested that CEQ address page and time limits; mitigation;
tiering; CEs; and improved coordination among Federal, Tribal, State,
and local agencies and governments. Additionally, many of the comments
on the Phase 1 proposed rule's changes to 40 CFR 1502.13 on purpose and
need also included suggestions for changes to 40 CFR 1502.14 and the
discussion of alternatives. Where appropriate, CEQ summarizes these
Phase 1 comments as they relate to specific subsections of Section II
of the preamble.
---------------------------------------------------------------------------

\48\ See CEQ, National Environmental Policy Act Implementing
Regulations Revision Phase 1 Response to Comments (Apr. 2022)
(``Phase 1 Response to Comments''), <a href="https://www.regulations.gov/document/CEQ-2021-0002-39427">https://www.regulations.gov/document/CEQ-2021-0002-39427</a>.
---------------------------------------------------------------------------

Here, in this Phase 2 notice of proposed rulemaking (NPRM), CEQ
initiates a broader rulemaking to revise, update, and modernize the
NEPA implementing regulations. Informed by CEQ's extensive experience
implementing NEPA, CEQ proposes further revisions to ensure the NEPA
process provides for efficient and effective environmental reviews that
are guided by science and are consistent with the statute's text and
purpose; enhance clarity and certainty for Federal agencies, project
proponents, and the public; inform the public about the potential
environmental effects of Federal Government actions and enable full and
fair public participation; and ultimately promote better informed
Federal decisions that protect and enhance the quality of the human
environment, including by ensuring climate change, environmental
justice, and other environmental issues are fully accounted for in
agencies' decision-making processes.
As part of CEQ's review, CEQ engaged in extensive outreach with a
wide variety of interested and experienced parties to solicit their
feedback and recommendations on what new elements CEQ should consider
adding; what elements from the 1978 regulations CEQ should consider
restoring; what existing elements of the NEPA regulations CEQ should
consider clarifying, revising, or removing; and what existing elements
CEQ should retain in their current form. CEQ convened a Federal
interagency working group made up of NEPA practitioners, attorneys, and
other experts to hear and discuss their recommendations on a wide
variety of issues in the NEPA regulations and more generally with the
environmental review process. The Federal agency participants
represented the broad array of NEPA practice and environmental
expertise across the

[[Page 49929]]

Federal Government, including land management, infrastructure, resource
conservation, climate, and environmental justice experts.
CEQ also hosted or participated in over 60 meetings with external
parties, such as environmental organizations, business and industry
organizations (including timber, energy, air, grazing, mining, and
transportation organizations), Tribal Nations, State governments,
environmental justice organizations, academics, and labor
organizations. Additionally, CEQ held a Tribal consultation
specifically on the Phase 2 regulations and the updates to CEQ's GHG
guidance on November 12, 2021. CEQ considered the feedback received
during these engagements in the development of this proposed rule and
has included summaries of the external engagements in the docket.
Finally, as discussed in Section I.B, CEQ relies on its extensive
experience overseeing and implementing NEPA in the development of this
rule. CEQ has over 50 years of experience advising Federal agencies on
the implementation of NEPA. CEQ collaborates daily with Federal
agencies on specific NEPA reviews, provides government-wide guidance on
NEPA implementation, consults with agencies on the development of
agency-specific NEPA implementing procedures and determines they
conform with NEPA and the CEQ regulations, and advises the President on
a vast array of environmental issues. This experience also enables CEQ
to clarify the patchwork of fact-specific judicial decisions that have
evolved under NEPA. This rulemaking seeks to bring clarity and
predictability to Federal agencies and outside parties whose activities
require Federal action and therefore trigger NEPA review, while also
facilitating better environmental and social outcomes due to informed
decision making.

II. Summary of Proposed Rule

This section summarizes CEQ's proposed revisions to its NEPA
implementing regulations and the rationale for the changes. CEQ's
proposed changes fall into five general categories. First, CEQ proposes
revisions to implement the amendments to NEPA made by the FRA. Second,
where CEQ determined it made sense to do so, CEQ proposes to amend
provisions, which the 2020 regulations revised, to revert to the
language from the 1978 regulations that was in effect for more than 40
years, subject to minor revisions for clarity. Third, CEQ proposes to
remove certain provisions added by the 2020 rule that CEQ considers
imprudent or legally unsettled. Fourth, CEQ proposes to amend certain
provisions to enhance consistency and provide clarity to improve the
efficiency and effectiveness of the environmental review process.
Fifth, CEQ proposes revisions to the regulations to implement decades
of CEQ and agency experience implementing and complying with NEPA,
foster science-based decision making--including decisions that account
for climate change and environmental justice--improve the efficiency
and effectiveness of the environmental review process, and better
effectuate NEPA's statutory purposes. CEQ is retaining many of the
changes made in the 2020 rulemaking particularly where those changes
codified longstanding practice or guidance or enhanced the efficiency
and effectiveness of the NEPA process.
In response to the Phase 1 proposed rule, CEQ received many
comments on provisions not addressed in Phase 1. CEQ indicated in the
Phase 1 final rule that it would consider such comments during the
development of this Phase 2 rulemaking. CEQ has done so, and where
applicable, this NPRM provides a high-level summary of the important
issues raised in those public comments.
While some comments have advocated for a straight return to the
1978 regulations, CEQ does not consider this to be the appropriate
approach. As part of its review, CEQ evaluated the provisions of the
2020 regulations and sought feedback from NEPA experts and interested
stakeholders to identify provisions that, as written, add value to the
NEPA process or that require amendments to enhance clarity or improve
efficiency and effectiveness. For example, CEQ identified for retention
the inclusion of Tribal interests throughout the regulations, the
integration of mechanisms to facilitate better interagency cooperation,
and the reorganization and modernization of provisions addressing
certain elements of the process to make the regulations easier to
understand and follow. CEQ considers it important that the regulations
meet current goals and objectives, including to promote the development
of NEPA documents that are concise but also include the information
needed to inform decision makers and reflect public input. CEQ's
proposed revisions to the regulations emphasize the importance of
transparency and public engagement, reflecting modern practices and
changing needs, while also recognizing the discretion and flexibility
that Federal agencies need to respond and move efficiently and
effectively through the NEPA process.

A. Proposed Changes Throughout Parts 1500-1508 49
---------------------------------------------------------------------------

\49\ CEQ prepared a redline of this proposed rule's changes to
the current CEQ regulations and provided it in the docket as a tool
to facilitate public review of this NPRM.
---------------------------------------------------------------------------

CEQ proposes several revisions throughout parts 1500-1508 to
provide consistency, improve clarity, and correct grammatical errors.
Improved clarity reduces confusion and results in more consistent
implementation, thereby improving the efficiency of the NEPA process
and reducing the risk of litigation.
For greater consistency and clarity, CEQ proposes to change the
word ``impact'' to ``effect'' where this term is used as a noun because
these two words are synonymous. Throughout the regulations, to improve
clarity, CEQ proposes to use the word ``significant'' only to modify
the term ``effects.'' Accordingly, throughout the regulations, where
``significant'' modifies a word other than ``effects,'' CEQ proposes to
replace ``significant'' with another accurate adjective, typically
``important'' or ``substantial,'' which have been used throughout the
CEQ regulations since 1978. In doing so, CEQ seeks to avoid confusion
about what ``significant'' means in these other contexts by limiting
its use to describing ``significant effects.'' The one exception to
this change would be that CEQ proposes for the regulations to continue
to refer to a finding of no significant impact (FONSI), which CEQ would
leave intact because the concept of a FONSI is entrenched in practice
and case law. CEQ heard from public comments and agency feedback on the
Phase 1 rulemaking that use of the word ``significant'' in phrases such
as ``significant issues'' or ``significant actions'' creates confusion
on what the word ``significant'' means.\50\ The proposed change also
aligns with the proposed definition of ``significant effects'' in Sec.
1508.1(jj),\51\ as discussed in section II.J.13. CEQ does not intend
these proposed changes to substantively change the meaning of the
provisions.
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\50\ Phase 1 Response to Comments, supra note 48, at 120-21.
\51\ In the preamble, CEQ uses the section symbol (Sec. ) to
refer to the proposed regulations as set forth in this NPRM and 40
CFR to refer to the current CEQ regulations as set forth in 40 CFR
parts 1500-1508. When referencing specific regulatory sections in
place prior to the 2020 final rule, CEQ uses 40 CFR but adds
``(2019).''
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For clarity, CEQ proposes to change ``statement'' to
``environmental impact statement'' and ``assessment'' to
``environmental assessment'' where the regulations only use the short
form in the paragraph. See, e.g., Sec. Sec. 1502.3 and 1506.3(e)(1)
through (e)(3).

[[Page 49930]]

CEQ also proposes to make grammatical corrections or other edits
throughout the regulations where CEQ considers the changes necessary
for the reader to understand fully the meaning of the sentences.
Finally, CEQ proposes to update the authorities for each part, update
the references to NEPA as amended by the FRA, and fix internal cross
references to other sections of the regulations throughout to follow
the correct Federal Register format.

B. Proposed Revisions To Update Part 1500, Purpose and Policy

1. Purpose (Sec. 1500.1) and Policy (Sec. 1500.2)
Consistent with the approach taken in the 1978 regulations, CEQ
proposes to address the purpose of the CEQ regulations in Sec. 1500.1,
``Purpose,'' and reinstate Sec. 1500.2, ``Policy.'' In Sec. 1500.1,
CEQ proposes to restore much of the language from the 1978 regulations
and further incorporate the policies Congress established in the NEPA
statute. CEQ is proposing these changes to restore text regarding
NEPA's purpose and goals, placing the regulations into their broader
context. CEQ also finds value in restating the policies of the Act
within the regulations, which would improve readability by avoiding the
need for cross references to material outside the four corners of the
regulations.
Specifically, CEQ proposes to revise 40 CFR 1500.1(a) by
subdividing it into Sec. 1500.1(a), (a)(1), and (a)(2), and restoring
language from the 1978 regulations that states the principles and
policies Congress established in sections 101 and 102 of NEPA. CEQ is
proposing to remove the language that describes NEPA as a purely
procedural statute because, while correct, CEQ considers that language
to be an inappropriately narrow view of NEPA's purpose that minimizes
some of the broader goals of NEPA described in section I.A. While CEQ
agrees that a NEPA analysis does not dictate a particular outcome by
the decision maker, Congress established the NEPA process to provide
for better informed Federal decision making and improve environmental
outcomes, and those goals are not fulfilled if the NEPA analysis is
treated merely as a check-the-box exercise. In short, CEQ does not
consider it necessary to repeatedly emphasize the procedural nature of
NEPA, which may suggest that NEPA mandates a rote paperwork exercise
and de-emphasizes the Act's larger goals and purposes. Instead, CEQ
remains cognizant of the goals Congress intended to achieve through the
NEPA process in developing its implementing regulations, and agencies
should carry out NEPA's procedural requirements in a manner faithful to
the purposes of the statute.
In Sec. 1500.1(a)(1), CEQ proposes to retain the sentence
summarizing section 101(a) of NEPA and add a second sentence
summarizing section 101(b) to clarify that agencies also should
accomplish the purposes described in section 101(b) through NEPA
reviews. Including this language in Sec. 1500.1(a)(1) would help
agencies understand what the regulations refer to when the regulations
direct or encourage agencies to act in a manner consistent with the
purposes or policies of the Act. See, e.g., Sec. Sec. 1500.2(a),
1500.6, 1501.1(a), 1502.1(a), and 1507.3(b).
In Sec. 1500.1(a)(2), CEQ proposes to restore generally the
language of the 1978 regulations stating that the purpose of the
regulations is to convey what agencies should and must do to comply
with NEPA to achieve its purpose. CEQ proposes to strike the language
added by the 2020 rule that NEPA requires Federal agencies to provide a
detailed statement for major Federal actions, that the purpose and
function of NEPA is satisfied if agencies have considered environmental
information and informed the public, and that NEPA does not mandate
particular results. While it is true that NEPA does not mandate
particular results in specific decision-making processes, this language
unduly minimizes Congress's understanding that procedures ensuring that
agencies analyze, consider, and disclose environmental effects will
lead to better substantive outcomes, and is inconsistent with
Congress's statements of policy in the NEPA statute.
In Sec. 1500.1(b), CEQ proposes to strike the first two sentences
added by the 2020 rule and restore language from the 1978 regulations
emphasizing the importance of the early identification of high-quality
information that is relevant to a decision. Early identification and
consideration of issues using high-quality information have long been
fundamental to the NEPA process, particularly because this facilitates
comprehensive analysis of alternatives and timely and efficient
decision making, and CEQ considers it important to emphasize these
considerations in this section. The proposed changes also emphasize
that the environmental information that agencies use in the NEPA
process should be high-quality, science-based, and accessible. CEQ
proposes to strike the first two sentences of this paragraph, which the
2020 rule added, because they also provide an unnecessarily narrow view
of the purposes of NEPA and its implementing regulations.
Finally, CEQ proposes in a new Sec. 1500.1(c) to restore text from
the 1978 regulations, most of which the 2020 rule deleted, emphasizing
the importance of NEPA reviews for informed decision making. The
proposed changes to Sec. 1500.1 recognize that the procedural
provisions of NEPA are intended to further the purpose and goals of the
Act. One of those goals is to make improved and sound government
decisions.
The 2020 rule struck 40 CFR 1500.2 (2019) and integrated policy
language into 40 CFR 1500.1 (2020).\52\ CEQ is proposing to once again
provide for two sections, renaming Sec. 1500.1 to ``Purpose'' and
restoring Sec. 1500.2 as ``Policy.'' CEQ is proposing to restore with
some updates the language of the 1978 regulations to Sec. 1500.2.
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\52\ 2020 Final Rule, supra note 36, at 43316-17.
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In Sec. 1500.2(a), CEQ proposes to restore the 1978 language
directing agencies to interpret their authorities consistent with the
policies of NEPA and the CEQ regulations to the fullest extent
possible. Paragraph (b) would restore with clarifying edits the 1978
language directing agencies to implement procedures that facilitate a
meaningful NEPA process to the fullest extent possible and emphasize
that environmental documents should be concise and clear. Paragraph (c)
would direct agencies to integrate NEPA with other planning and
environmental review requirements to the fullest extent possible, which
promotes efficient processes. CEQ proposes to modernize language from
the 1978 regulations in paragraph (d) to emphasize public engagement,
including with communities with environmental justice concerns, which
often include communities of color, low-income communities, and
indigenous communities, and Tribal communities. CEQ views an emphasis
on engagement with such communities to be important because agencies
have not always meaningfully engaged with them and such communities
have been disproportionately and adversely affected by certain Federal
activities.
In proposing to make this change to emphasize public engagement,
CEQ notes that the obligation to consult with Tribal Nations on a
nation-to-nation basis is distinct from the public engagement
requirements of NEPA.\53\ CEQ invites comment on whether

[[Page 49931]]

additional changes to the NEPA regulations would be appropriate in
light of the obligation for Tribal consultation.
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\53\ See E.O. 13175, Consultation and Coordination with Indian
Tribal Governments, 65 FR 67249 (Nov. 9, 2000); Presidential
Memorandum, Tribal Consultation and Strengthening Nation-to-Nation
Relationships, 86 FR 7491 (Jan. 29, 2021), <a href="https://www.federalregister.gov/d/2021-02075">https://www.federalregister.gov/d/2021-02075</a>.
---------------------------------------------------------------------------

In paragraph (e), CEQ proposes to restore language from the 1978
regulations regarding the identification of alternatives that avoid or
minimize adverse effects. CEQ is proposing to add examples of such
alternatives, including those that will reduce climate change-related
effects or address effects that disproportionately affect communities
with environmental justice concerns consistent with E.O. 12898 and E.O.
14096, to highlight the importance of considering such effects in
environmental documents, consistent with NEPA's requirements, including
the consideration of high-quality information, such as best available
science and data.\54\
---------------------------------------------------------------------------

\54\ Consideration of environmental justice and climate change-
related effects has long been part of NEPA analysis. See, e.g.,
Environmental Justice Guidance, supra note 6, and Ctr. For
Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538
F.3d 1172 (9th Cir. 2008). See also 42 U.S.C. 4331(b) (``[I]t is the
continuing responsibility of the Federal Government to . . . assure
for all Americans safe, healthful, productive, and esthetically and
culturally pleasing surroundings . . . [and to] maintain, wherever
possible, an environment which supports diversity and variety of
individual choice'' (emphasis added); 42 U.S.C. 4332(2)(F) (``all
agencies of the Federal Government shall . . . recognize the
worldwide and long-range character of environmental problems'').
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Finally, in paragraph (f), CEQ proposes to restore the direction
from the 1978 regulations to use all practicable means to restore and
enhance the environment, consistent with the policies of NEPA. These
proposed restorations and additions to Sec. 1500.2(d), (e), and (f)
reflect longstanding practice among Federal agencies and align with
NEPA's statutory policies, including to avoid environmental
degradation, preserve historic, cultural, and natural resources, and
``attain the widest range of beneficial uses of the environment without
degradation, risk to health or safety, or other undesirable and
unintended consequences.'' 42 U.S.C. 4331(b).
The 2020 rule removed the Policy section stating that it was
duplicative of other sections.\55\ However, CEQ proposes to restore and
update this section because a robust articulation of the Act's policy
principles is fundamental to the NEPA process. CEQ also considers it
helpful to agency practitioners and the public to have a consolidated
listing of policy objectives regardless of whether other sections of
the regulations address those objectives.
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\55\ 2020 Final Rule, supra note 36 at 43317.
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2. NEPA Compliance (Sec. 1500.3)
CEQ proposes to remove from Sec. 1500.3 provisions added by the
2020 rule regarding exhaustion and remedies, restore some language from
the 1978 regulations removed by the 2020 rule, and make other
conforming edits. Specifically, in Sec. 1500.3(a), CEQ proposes to
remove the phrase ``except where compliance would be inconsistent with
other statutory requirements'' because this is addressed by Sec.
1500.6. CEQ also proposes to remove the reference to E.O. 13807, which
E.O. 13990 revoked, as well as the reference to section 309 of the
Clean Air Act because this provision is implemented by EPA.
CEQ proposes to delete 40 CFR 1500.3(b), including its paragraphs.
The process established by the 2020 rule provides that first, an agency
must request in its notice of intent (NOI) comments on all relevant
information, studies, and analyses on potential alternatives and
effects. 40 CFR 1500.3(b)(1). Second, the agency must summarize all the
information it receives in the draft EIS and specifically seek comment
on it. 40 CFR 1500.3(b)(2), 1502.17, 1503.1(a)(3). Third, decision
makers must certify in the record of decision (ROD) that they
considered all the alternatives, information, and analyses submitted by
public commenters. 40 CFR 1500.3(b)(4), 1505.2(b). Fourth, any comments
not submitted within the comment period are considered forfeited as
unexhausted. 40 CFR 1500.3(b)(3), 1505.2(b). By adding this exhaustion
process, the 2020 rule aimed to limit legal challenges and judicial
remedies.\56\
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\56\ 2020 Final Rule, supra note 36, at 43317-18.
---------------------------------------------------------------------------

CEQ proposes to remove this process because it establishes an
inappropriately stringent exhaustion requirement for public commenters
and agencies. It is unsettled whether CEQ has the authority under NEPA
to set out an exhaustion requirement that bars parties from bringing
claims on the grounds that an agency's compliance with NEPA violated
the APA, pursuant to 5 U.S.C. 702. While the 2020 rule correctly
identifies instances in which courts have ruled that parties may not
raise legal claims based on issues that they themselves did not raise
during the comment period,\57\ other courts have sometimes ruled that a
plaintiff can bring claims where another party raised an issue in
comments or where the agency should have identified an issue on its
own. Pac. Coast Fed'n of Fishermen's Ass'ns v. U.S. Dep't of Interior,
929 F. Supp. 2d 1039, 1045-46 (E.D. Cal. 2013); Wyo. Lodging and Rest.
Ass'n v. U.S. Dep't of Interior, 398 F. Supp. 2d 1197, 1210 (D. Wyo.
2005); see Pub. Citizen, 541 U.S. at 765 (noting that ``[T]he agency
bears the primary responsibility to ensure that it complies with NEPA .
. . and an EA's or an EIS' flaws might be so obvious that there is no
need for a commentator to point them out specifically in order to
preserve its ability to challenge a proposed action''). Because the
fundamental question raised by these cases is the availability of a
cause of action under the APA, and not a question of interpreting NEPA,
CEQ considers this question more appropriate for the courts to
determine. Further, nothing in this revision would limit the positions
the Federal Government may take regarding whether, based on the facts
of a particular case, a particular issue has been forfeited by a
party's failure to raise it before the agency, and removing this
provision does not suggest that a party should not be held to have
forfeited an issue by failing to raise it. By deleting the exhaustion
requirements, CEQ does not take the position that plaintiffs may raise
new and previously unraised issues in litigation. Rather, CEQ considers
this to be a question of general administrative law and therefore the
courts to be the proper venue to determine whether any particular claim
can proceed.
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\57\ Id. (citing Dep't of Transp. v. Pub. Citizen, 541 U.S. 752
(2004); Karst Env't. Educ. & Prot., Inc. v. Fed. Highway Admin., 559
F. App'x 421 (6th Cir. 2014); Friends of the Norbeck v. U.S. Forest
Serv., 661 F.3d 969 (8th Cir. 2011); Exxon Mobil Corp. v. U.S. EPA,
217 F.3d 1246 (9th Cir. 2000); Nat'l Ass'n of Mfrs. v. U.S. Dep't of
the Interior, 134 F.3d 1095 (D.C. Cir. 1998)).
---------------------------------------------------------------------------

Moreover, the exhaustion requirement established in the 2020 rule
is at odds with longstanding agency practice. While courts have ruled
that agencies are not required to do so, see, e.g., Pub. Citizen, 541
U.S. at 764-65 (finding that where a party does not raise an objection
in their comments on an EA, the party forfeits any objection to the EA
on that ground), agencies have discretion to consider and respond to
comments submitted after a comment period ends. The exhaustion
requirement established in the 2020 regulations could encourage
agencies to disregard important information presented to the agency
shortly after a comment period closes, and such a formalistic approach
would not advance NEPA's goal of informed decision making.
To be clear, this change does not relieve parties interested in
participating in, commenting on, or ultimately challenging a NEPA
analysis

[[Page 49932]]

of the obligation to ``structure their participation so that it is
meaningful.'' Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council,
Inc., 435 U.S. 519, 553 (1978). As CEQ's regulations have made clear
since 1978, parties must provide comments that are as specific as
possible to enable agencies to consider and address information during
the decision-making processes. See 40 CFR 1503.3(a). While commenters
should follow the appropriate procedures and time limits, the revisions
would provide agencies flexibility to address unusual circumstances.
CEQ proposes to redesignate 40 CFR 1500.3(c), ``Review of NEPA
compliance,'' as paragraph (b) and move to paragraph (b) the sentence
from 40 CFR 1500.3(d) regarding harmless error for minor, non-
substantive errors, which is a concept that has been in place since the
1978 regulations. CEQ proposes to delete the remaining text of 40 CFR
1500.3(c), removing language that noncompliance with NEPA and the CEQ
regulations should be resolved as expeditiously as possible. While CEQ
agrees with expeditious resolution of issues, CEQ considers this
inappropriate for regulatory text as these regulations cannot compel
members of the public or courts to resolve NEPA disputes. Rather, the
regulations promote public engagement, appropriate analysis, and
informed decision making to facilitate NEPA compliance and avoid such
disputes from the outset. CEQ also proposes to strike the last sentence
in this paragraph regarding bonding and other security requirements,
which relates to litigation over an agency action and not the NEPA
process itself. It is unsettled whether NEPA provides agencies with
authority to promulgate procedures that require plaintiffs to post
bonds in litigation brought under the APA. In any case, CEQ does not
consider it appropriate to address this issue in the NEPA implementing
regulations.
With the exception of the last sentence in 40 CFR 1500.3(d)
regarding remedies, which CEQ proposes to move, as discussed earlier in
this section, CEQ proposes to delete the remainder of the paragraph. It
is questionable whether CEQ has the authority to direct courts about
what remedies are available in litigation brought under the APA to
challenge NEPA compliance and, in any case, CEQ considers the 2020
rule's addition of this paragraph to be inappropriate. CEQ considers
courts to be in the best position to determine the appropriate remedies
when a plaintiff successfully challenges an agency's NEPA compliance.
Finally, CEQ proposes to redesignate 40 CFR 1500.3(e),
``Severability,'' as paragraph (c), without change. CEQ intends these
regulations to be severable. The proposed rule would amend existing
regulations and the NEPA regulations could be functionally implemented
if each revision proposed in this rule occurred on its own or in
combination with any other subset of proposed revisions. As a result,
if a court were to invalidate any particular provision of this rule,
allowing the remainder of the rule to remain in effect would still
result in a functional NEPA review process. This approach to
severability is the same as the approach that CEQ took when it
promulgated the 2020 regulations, because those amendments similarly
could be layered onto the 1978 regulations individually without
disrupting the overarching NEPA review process.
3. Concise and Informative Environmental Documents (Sec. 1500.4)
CEQ proposes to revise Sec. 1500.4 to emphasize the important
values served by concise and informative NEPA documents beyond merely
reducing paperwork, such as promoting informed and efficient decision
making and facilitating meaningful public participation. Section 1500.4
lists examples of provisions in the CEQ regulations that provide
mechanisms by which agencies may prepare concise and informative
environmental documents. Each paragraph listed in Sec. 1500.4 includes
cross references to regulatory provisions that further the goal of
preparing concise and informative documents.
To that end, CEQ proposes to retitle Sec. 1500.4 from ``Reducing
paperwork'' to ``Concise and informative environmental documents'' and
revise the introductory text to clarify that the paragraphs in this
section provide examples of the mechanisms in the regulations that
agencies can use to prepare concise and informative environmental
documents. CEQ proposes to remove paragraphs (a) and (b) from 40 CFR
1500.4 because they are redundant with Sec. 1500.5(a) and (b) and are
more appropriately addressed in the section on reducing delay, as well
as paragraph (d) because it is addressed in the revised introductory
text. CEQ proposes to redesignate 40 CFR 1500.4(c) and (e) through (q)
as Sec. 1500.4 (a) and (b) through (n), respectively.
CEQ proposes to add ``e.g.,'' to the cross references listed in
Sec. 1500.4(b), (c), and (e) to clarify that they are non-exclusive
examples of how agencies can briefly discuss unimportant issues, write
in plain language, and reduce emphasis on background material. CEQ
would update the cross references to other sections of the subchapter
to reflect proposed changes elsewhere in the regulations. In paragraphs
(c) and (e), CEQ proposes to expand the reference from EISs to all
environmental documents, as the concepts discussed are more broadly
applicable. Additionally, in paragraph (e), CEQ proposes to insert
``most'' before ``useful'' to clarify that the environmental documents
should not contain portions that are useless.
In Sec. 1500.4(f), CEQ proposes to replace ``significant'' with
``important'' and insert ``unimportant'' to modify ``issues''
consistent with our proposal to only use ``significant'' to modify
``effects.'' CEQ also proposes to clarify in paragraph (f) that scoping
may apply to EAs. Finally, CEQ proposes to expand paragraph (h),
regarding programmatic review and tiering, to include EAs to align with
the proposed changes to Sec. 1501.11. Finally, in paragraph (m), CEQ
proposes to insert ``Federal'' before ``agency'' consistent with Sec.
1506.3, which allows adoption of NEPA documents prepared by other
Federal agencies.
Concise and informational documents make the NEPA process more
accessible and transparent to the public, allowing the public an
opportunity to contribute to the NEPA process. The changes proposed in
Sec. 1500.4 align the regulations with the intent of NEPA to allow the
public to provide input, as well as CEQ's stated goal of increasing
transparency, while providing agencies flexibility on how to achieve
concise and informative documents. These proposed changes aim to
encourage the preparation of documents that can be easily read and
understood, which in turn promote informed and efficient decision
making.
4. Efficient Process (Sec. 1500.5)
CEQ proposes minor changes to Sec. 1500.5 to provide clarity and
flexibility regarding mechanisms by which agencies can apply the CEQ
regulations to improve efficiency in the environmental review process.
CEQ proposes these changes to acknowledge that unanticipated events and
circumstances beyond agency control may delay the environmental review
process, and to recognize that, while these approaches may improve
efficiency for many NEPA reviews, they could be inefficient for others.
To that end, CEQ proposes to retitle Sec. 1500.5 from ``Reducing
delay'' to ``Efficient process'' and revise the introductory text to
reflect the new title. The other proposed changes include adding EAs

[[Page 49933]]

to paragraph (a) to make the provision consistent with the definition
of ``categorical exclusion;'' changing ``real issues'' to ``important
issues that required detailed analysis'' in paragraph (f) for
consistency with Sec. 1502.4; and expanding the scope of paragraph (h)
from EISs to environmental documents to make clear that, regardless of
the level of NEPA review, agencies should prepare environmental
documents early in the process. Proposed Sec. 1500.5 recognizes the
importance of timely information for decision making and encourages
agencies to implement the 12 listed mechanisms to achieve timely and
efficient NEPA processes.
5. Agency Authority (Sec. 1500.6)
In Sec. 1500.6, CEQ proposes to revise the second sentence to
remove the qualification added in the 2020 rule that agencies must
ensure full compliance with the Act ``as interpreted by'' these
regulations and instead state that agencies must review and revise
their procedures to ensure compliance with NEPA and the CEQ
regulations. The phrase added in 2020 could be read to indicate that
agencies have no freestanding requirement to comply with NEPA itself,
which would be untrue. CEQ also considers the proposed change necessary
for consistency with Sec. 1507.3(b), which CEQ revised in the Phase 1
rulemaking to make clear that, while agency procedures must be
consistent with the CEQ regulations, agencies have discretion and
flexibility to develop procedures beyond the CEQ regulatory
requirements, enabling agencies to address their specific programs,
statutory mandates, and the contexts in which they operate. CEQ
proposes to make conforming edits in Sec. Sec. 1502.2(d) and 1502.9(b)
to remove this phrase.
In the third sentence, CEQ proposes to remove the cross-reference
to Sec. 1501.1 for consistency with the proposed modifications to
Sec. 1501.1 and restore the intent of language from the 1978
regulations, with modification, explaining that the phrase ``to the
fullest extent possible'' means that each agency must comply with
section 102 of NEPA unless an agency activity, decision, or action is
exempted by law or compliance with NEPA is impossible. Finally, CEQ
proposes to strike the last sentence stating that the CEQ regulations
do not limit an agency's other authorities or legal responsibilities,
which the 2020 rule added to acknowledge the possibility of different
statutory authorities with different requirements. While the 2020
regulations contended that this sentence was added for consistency with
E.O. 11514, as amended by section 2(g) of E.O. 11991, CEQ considers the
sentence superfluous and unnecessarily vague. As stated in the new
proposed text, agencies must comply with NEPA in carrying out an
activity, decision, or action unless exempted by law or compliance with
NEPA is impossible. That description would reflect accurately the
directive that Federal agencies comply with the CEQ regulations
``except where such compliance would be inconsistent with statutory
requirements.'' \58\
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\58\ 2020 Final Rule, supra note 36, at 43319.
---------------------------------------------------------------------------

CEQ's proposed revisions to Sec. 1500.6 would clarify that
agencies have an independent responsibility to ensure compliance with
NEPA and a duty to harmonize NEPA with their other statutory
requirements and authorities to the maximum extent possible. This is
true as a general matter of statutory construction as well as under the
specific statutory mandate of section 102 of NEPA, which requires that
``the policies, regulations, and public laws of the United States shall
be interpreted and administered in accordance with the policies set
forth in this [Act].'' 42 U.S.C. 4332(1).
Therefore, compliance with NEPA is only impossible within the
meaning of this subsection when the conflict between another statute
and the requirements of NEPA are clear, unavoidable, and
irreconcilable. Absent exemption by Congress or a court, an
irreconcilable conflict exists only if the agency's authorizing statute
grants it no discretion to comply with NEPA while also satisfying the
statutory mandate.

C. Proposed Revisions To Update Part 1501, NEPA and Agency Planning

CEQ is proposing substantive revisions to all sections in part 1501
except Sec. 1501.2, ``Apply NEPA early in the process,'' to which CEQ
proposes minor edits for readability that CEQ considers clarifying and
non-substantive. CEQ invites comment on whether it should make any
substantive changes to that section or other changes to part 1501.
1. Purpose (Sec. 1501.1)
CEQ proposes to revert and retitle Sec. 1501.1 to ``Purpose,'' to
emphasize the goals of part 1501 consistent with the approach in the
1978 regulations. As discussed further below, CEQ proposes to move some
of the NEPA thresholds language in 40 CFR 1501.1 to Sec. 1503.1(a),
strike the remaining text, and replace it with new provisions similar
to those in the 1978 regulations.
In Sec. 1501.1(a), CEQ proposes to highlight the importance of
integrating NEPA early in agency planning processes by generally
restoring the language from the 1978 regulations, while also
emphasizing that this promotes an efficient process and reduces delay.
Restoring this language is consistent with section 102(2)(C) of NEPA
and the objective to build into agency decision making, beginning at
the earliest point, an appropriate consideration of the environmental
aspects of a proposed action. 42 U.S.C. 4332(2)(C). CEQ proposes in
paragraph (b) to emphasize early engagement in the environmental review
process consistent with other changes proposed throughout the
regulations to elevate the importance of early coordination and
engagement throughout the NEPA process to identify and address
potential issues early in a decision-making process, thereby helping to
reduce the overall time required to approve a project and improving
outcomes. In new paragraph (c), CEQ proposes to restore text from the
1978 regulations regarding expeditious resolution of interagency
disputes as promoted in Sec. Sec. 1501.7 and 1501.8. Paragraph (d)
also would restore the direction to identify the scope of the proposed
action and important environmental issues consistent with Sec. 1501.3,
thereby enhancing efficiency. Finally, paragraph (e) would highlight
the importance of schedules consistent with Sec. 1501.10, which
includes provisions requiring agencies to develop a schedule for all
environmental reviews and authorizations, as well as Sec. Sec. 1501.7
and 1501.8, which promote interagency coordination including with
respect to schedules.
As discussed further in section II.C.2, CEQ proposes to combine the
threshold considerations provision with the process to determine the
appropriate level of NEPA review in Sec. 1501.3 by moving 40 CFR
1501.1(a)(1), (2), (4), and (5) to proposed Sec. 1501.3(a)(1), (2),
(4), and (4)(ii), respectively, and striking the remaining paragraphs.
The 2020 regulations replaced the purpose section in 40 CFR 1501.1 with
a list of factors agencies should consider in assessing whether NEPA
applies or is otherwise fulfilled for a proposed activity or decision,
and allows agencies to make these threshold considerations pursuant to
their agency NEPA procedures or on an individual basis.
CEQ proposes to delete two of the threshold factors currently in 40
CFR 1501.1(a). First, CEQ proposes to delete the factor currently
listed in 40 CFR 1501.1(a)(3), inconsistency with Congressional intent
expressed in another statute. Upon further

[[Page 49934]]

consideration, this factor may inadequately account for agencies'
responsibility to harmonize NEPA with other statutes, as discussed
further in section II.C.2. As discussed in section II.B.5, the
regulations provide that an agency should determine if a statute or
court exempts an action from NEPA or if compliance with NEPA and
another statute would be impossible; if not, the agency must comply
with NEPA. To the extent the factor suggests that Congress's intent
regarding NEPA compliance involves considerations other than those two
determinations, the factor is incorrect.
Second, CEQ proposes to strike the factor in 40 CFR 1501.1(a)(6)
regarding functional equivalence. While certain Environmental
Protection Agency (EPA) actions are explicitly exempted from NEPA's
environmental review requirements, and courts have found other EPA-
administered statutes to be functionally equivalent or otherwise
exempt, CEQ considers this language added to the 2020 rule to go beyond
the scope of the NEPA statute and case law because the language can be
construed to expand functional equivalence beyond the narrow contexts
in which it has been recognized. See, e.g., 15 U.S.C. 793(c)(1)
(exempting EPA actions under the Clean Air Act); 33 U.S.C. 1371(c)(1)
(exempting most EPA actions under the Clean Water Act); Env't Def.
Fund, Inc. v. EPA, 489 F.2d 1247, 1256-57 (D.C. Cir. 1973) (exempting
agency actions under FIFRA); W. Neb. Res. Council v. U.S. Env't Prot.
Agency, 943 F.2d 867, 871-72 (8th Cir. 1991) (noting exemptions under
the Safe Drinking Water Act). CEQ considers the more appropriate and
prudent approach is for agencies to establish mechanisms in their
agency NEPA procedures to align processes and requirements from other
environmental laws with the NEPA process.
CEQ proposes to eliminate the current language in 40 CFR 1501.1(b)
allowing agencies to make threshold determinations individually or in
their NEPA procedures because CEQ proposes to move the consideration of
thresholds into Sec. 1501.3 to consolidate the steps agencies should
take to determine whether NEPA applies and, if so, what level of NEPA
review is appropriate. The language in 40 CFR 1501.1(b) is also
redundant to language in Sec. 1507.3(d)(1), which would provide that
agency NEPA procedures may identify activities or decisions that are
not subject to NEPA. CEQ proposes to remove as unnecessary 40 CFR
1501.1(b)(1) because agencies have discretion to consult with CEQ and
have done so for decades on a wide variety of matters, including on
determining NEPA applicability, without such specific language in the
CEQ regulations. Finally, CEQ proposes to eliminate 40 CFR 1501.1(b)(2)
directing agencies to consult with another agency when they jointly
administer a statute if they are making a threshold applicability
determination. While CEQ agrees that consultation is a good practice in
such circumstances, it does not consider such a requirement necessary
for these regulations because consultation is best determined by the
agencies involved.
2. Determine the Appropriate Level of NEPA Review (Sec. 1501.3)
CEQ proposes substantive revisions to Sec. 1501.3 to provide a
more robust and consolidated description of the process agencies should
use to determine the appropriate level of NEPA review, including
addressing the threshold question of whether NEPA applies. CEQ also
proposes clarifying edits, including adding paragraph headings to
paragraphs (a) through (d). This revised provision would clarify the
steps for assessing the appropriate level of NEPA review, facilitating
a more efficient and predictable review process.
First, as noted in section II.C.1, CEQ proposes to move 40 CFR
1501.1(a)(1) to a new Sec. 1501.3(a), ``Applicability,'' and add a
sentence requiring agencies to determine whether NEPA applies to a
proposed activity or decision as a threshold matter. CEQ proposes this
move because the inquiry into whether NEPA applies is central to
determining the level of NEPA review and consolidating the steps in
this process in one regulatory section would improve the clarity of the
regulations. It is also consistent with the approach in section 106 of
NEPA, which addresses threshold considerations. CEQ proposes to strike
``or is otherwise fulfilled'' in the moved text because, as discussed
in section II.C.1, CEQ is proposing to remove the functional
equivalence factor from the regulation.
Second, CEQ proposes to move the threshold determination factors
agencies should consider when determining whether NEPA applies,
currently at 40 CFR 1501.1(a)(1) and (2), to Sec. 1501.3(a)(1) and (2)
respectively. CEQ proposes to align the text in paragraph (a)(1) with
the language in Sec. 1500.6, ``exempted from NEPA by law,'' and align
the text in paragraph (a)(2) with the language in section 106(a)(3) of
NEPA, changing ``another statute'' to ``another provision of law'' for
consistency with the statutory text. Third, CEQ proposes a new factor
in paragraph (a)(3) to address circumstances other than those in which
Congress or case law have exempted an activity from NEPA, to clarify
that there must be an irreconcilable and fundamental conflict between
complying with a statutory provision and complying with NEPA--i.e., the
other statutory provision must make NEPA compliance impossible. This
factor would be consistent with case law and longstanding principles of
statutory construction that require statutes to be read in harmony when
it is possible to do so. This approach also reflects the statutory
requirement of section 102 of NEPA that agencies interpret and
administer ``the policies, regulations, and public laws of the United
States'' in accordance with NEPA's policies and is consistent with
CEQ's proposed revisions to Sec. 1500.6, ``Agency Authority.'' 42
U.S.C. 4332; see section II.B.5.
Fourth, consistent with section 106(a)(1) and (4) of NEPA, CEQ
proposes to move the threshold determination factors regarding whether
the activity or decision is a major Federal action from 40 CFR
1501.1(a)(4) and (5), to Sec. 1501.3(a)(4) and (a)(4)(ii),
respectively. Consistent with section 106(a)(1) and (4) of NEPA, CEQ
proposes to include whether an activity or decision is a final agency
action or non-discretionary as subfactors of whether an activity or
decision is a major Federal action in Sec. 1501.3(a)(4) because these
are also exclusions from the definition of a major Federal action. When
agencies assess whether an activity or decision meets the definition of
a major Federal action, agencies determine whether they have discretion
to consider environmental effects consistent with Sec. 1508.1(u). CEQ
invites comment on whether it should make additional changes to Sec.
1501.3(a) in light of the recently enacted provisions in section 106(a)
regarding threshold determinations.
Fifth, CEQ proposes to move, with clarifying edits, 40 CFR
1501.9(e), ``Determination of scope,'' to a new proposed Sec.
1501.3(b), ``Scope of action and analysis,'' to provide the next step
in determining the appropriate level of NEPA review--the scope of the
proposed action and its potential effects. In addition, CEQ proposes
moving into Sec. 1501.3(b) one sentence from 40 CFR 1502.4(a)
directing agencies to evaluate in a single NEPA review proposals
sufficiently closely related to be considered a single action, as well
as text from 40 CFR 1501.9(e)(1) regarding connected actions, which are
closely related Federal activities or decisions that agencies should
consider in a single NEPA document. CEQ proposes to move

[[Page 49935]]

40 CFR 1501.9(e)(1)(i) through (e)(1)(iii) providing the types of
connected actions into Sec. 1501.3(b)(1)(i) through (b)(1)(iii),
respectively. This longstanding principle from the 1978 regulations
that agencies should not improperly segment their actions is relevant
not only when agencies are preparing EISs; rather, it is critical for
agencies to consider this as part of the determination whether to
prepare an EA or apply a CE. CEQ proposes to consolidate this text into
Sec. 1501.3(b) because the determination of the scope of the action,
including any connected actions, necessarily informs the appropriate
level of NEPA review. While 40 CFR 1501.9(e) currently applies to the
scope of EISs, CEQ's proposed consolidation would clarify that this
analysis is applicable not only to the scope of the environmental
document itself but also to the determination of the level of NEPA
document the agency must prepare. Because including this provision in
Sec. 1501.3 would make it applicable to environmental reviews other
than EISs, CEQ proposes to strike the sentence that accompanied the
text in 40 CFR 1502.4(a) directing the lead agency to determine the
scope and significant issues for analysis in the EIS as part of the
scoping process. CEQ would retain in Sec. 1502.4(a), ``Scoping,'' the
requirement that agencies determine the scope and significant issues
for analysis in an EIS using an early and open process. CEQ proposes in
Sec. 1501.3(b)(1)(i) to likewise change ``environmental impact
statements'' to ``NEPA review.''
In bringing the text from 40 CFR 1501.9(e) to Sec. 1501.3(b), CEQ
is proposing to strike 40 CFR 1501.9(e)(2) and (3) relating to
alternatives and impacts, respectively. The current CEQ regulations and
the proposed revisions in this NPRM address the analyses of
alternatives and effects regarding both EISs (Sec. Sec. 1502.14,
1502.15) and EAs (Sec. 1501.5(c)(2)(ii) and (c)(2)(iii)). It would be
premature in the process, unnecessary, and unhelpful to address
alternatives as part of determining the level of NEPA review.
Sixth, CEQ proposes to redesignate 40 CFR 1501.3(a) as paragraph
(c), title it ``Levels of NEPA review,'' and retain the existing
paragraphs (1) through (3) without change. In paragraph (c), CEQ
proposes to incorporate section 106(b)(3) of NEPA addressing the
sources of information agencies may rely on when determining the
appropriate level of NEPA review. While section 106(b)(3) only directly
applies to an agency's determination whether to prepare an EA or an
EIS, CEQ views the approach to reliable data and producing new research
as consistent with longstanding practice and caselaw and appropriate to
apply broadly to an agency's determination of the appropriate level of
NEPA review, including a determination that no review is required. This
approach avoids creating an implication that an agency could be
required to conduct new research in a broader range of circumstances
when making threshold determinations outside of whether to prepare an
EA or EIS, for example in considering whether a CE applies. CEQ invites
comment on this approach.
Seventh, CEQ proposes to redesignate 40 CFR 1501.3(b) as Sec.
1501.3(d), title it ``Significance determination--context and
intensity,'' and address factors agencies must consider in determining
significance by restoring with some modifications the consideration of
``context'' and ``intensity'' from the 1978 regulations, which appeared
in the definition of ``significantly.'' See 40 CFR 1508.27 (2019).
Because this text provides direction on how agencies determine the
significance of an effect, rather than a definition, this is a more
appropriate location for this provision than Sec. 1508.1.
CEQ proposes to modify the introductory language in Sec. 1501.3(d)
by requiring agencies to consider the context of an action and the
intensity of the effects when considering whether the proposed action's
effects are significant. CEQ proposes to strike the sentence requiring
agencies to consider connected actions because this concept would be
included in proposed paragraph (c).
Paragraph (d)(1) would restore the consideration of the context of
the proposed action as a standalone consideration. Specifically, CEQ
proposes to restore language from the 1978 regulations requiring
agencies to analyze the significance of an action in several contexts.
The proposed provision also provides some examples of contexts for
consideration. First, the provision proposes agencies should consider
the characteristics of the relevant geographic area such as proximity
to unique or sensitive resources or vulnerable communities. Such
resources may include historic or cultural resources, Tribal sacred
sites, and various types of ecologically sensitive areas. This proposal
relates to the intensity factor proposed in (d)(2)(iii), which CEQ is
proposing to restore from the 1978 regulations. CEQ is proposing to
include it as a context factor as well since it relates to the setting
of the proposed action. It also would encourage agencies to consider
proximity to communities with environmental justice concerns.
Second, CEQ proposes that agencies should consider the potential
global, national, regional, and local contexts, which may be relevant
depending on the scope of the action, consistent with the current
regulations as well as the 1978 regulations. Third, agencies should
consider the duration of the potential effects and whether they are
anticipated to be short- or long-term. To that end, CEQ proposes to
move and revise text providing that the consideration of short- and
long-term effects is relevant to the context of a proposed action from
current 40 CFR 1501.3(b)(2)(i) to paragraph (d)(1).
The 2020 rule narrowed the ``context'' consideration to the
potentially affected environment in determining significance, stating
that this reframing relates more closely to physical, ecological, and
socio-economic aspects of the environment.\59\ CEQ has reconsidered
this approach and now finds it to be overly limiting. Agencies have
decades of experience analyzing their actions within this broader
framing of ``context.'' Moreover, this use of ``context'' is consistent
with CEQ's 2022 reinstatement of the concepts of indirect and
cumulative effects. Additionally, the 2020 rule's tying of significance
to the affected environment, ``usually'' only in the local area,\60\
could be read as deemphasizing reasonably foreseeable effects beyond
the immediate area of the action. The appropriate environment is the
one that the agency has identified as the affected environment in Sec.
1502.15, which can include the global, national, regional, and local
environment. For example, leases for oil and gas extraction or natural
gas pipelines have local effects, but also have reasonably foreseeable
global indirect and cumulative effects related to GHG emissions.
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\59\ 2020 Final Rule, supra note 36, at 43322.
\60\ 40 CFR 1501.3(b)(1) (``For instance, in the case of a site-
specific action, significance would usually depend only upon the
effects in the local area.'') (emphasis added).
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CEQ also proposes to reinstate ``intensity'' as a consideration in
determining significance, which CEQ reframed in the 2020 rule as the
``degree'' of the action's effects. In Sec. 1501.3(d)(2), CEQ proposes
to require agencies to assess the intensity of effects from an action
and to provide a list of factors, some or all of which may apply to any
given action, for agencies to consider in relation to one another,
returning to the approach from 1978. In 2020, CEQ justified the removal
of intensity as a consideration in part

[[Page 49936]]

based on the proposition that effects are not required to be intense or
severe to be considered significant.\61\ However, the intensity factors
that CEQ proposes to reinstate with modifications have long provided
agencies with guidance in how the intensity of an action's effects may
inform the significance determination. CEQ does not consider
``intense'' to be a synonym for ``significant;'' rather, it points to
factors to inform the determination of significance that are part of
longstanding agency practice. CEQ also proposes to clarify that
agencies should focus on adverse impacts in determinations of
significance. This is consistent with NEPA's policies and goals as set
forth in section 101 of the statute. 42 U.S.C. 4331.
---------------------------------------------------------------------------

\61\ 2020 Final Rule, supra note 36, at 43322.
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Paragraph (d)(2)(i) would mirror the 1978 rule's reference to
beneficial effects with clarifying additions. CEQ proposes to state
that only actions with significant adverse effects require an EIS. This
is distinct from weighing beneficial effects against adverse effects to
determine that an action's effects on the whole are not significant.
Rather, this statement reflects the fact that an action with only
beneficial effects and no significant adverse effects does not require
an EIS, consistent with CEQ's proposed revisions to Sec. 1501.3(d)(2),
regarding the meaning of intensity.
CEQ proposes to add to paragraph (d)(2)(i) clarification that
agencies should consider the duration of effects and provide an example
of an action with short-term adverse effects but long-term beneficial
effects. While significant adverse effects may exist even if the agency
considers that on balance the effects of the action will be beneficial,
the agency should consider any related short- and long-term effects in
the same effect category together in evaluating intensity. For example,
an agency should consider short-term construction-related GHG emissions
from a renewable energy project in light of long-term reductions in GHG
emissions when determining the overall intensity of effects. In this
situation, the agency could reasonably determine that the climate
effects of the proposed action would not be significantly adverse, and
therefore an EIS would not be required. As another example, a forest
restoration project may have a short-term adverse effect to a species
by displacing it from the area while the project is carried out but
have long-term beneficial effects to the species by reducing the risk
that a severe wildfire will destroy the habitat altogether. An agency
should consider both of these effects in assessing whether the action
significantly affects the species, and may determine that the overall
effects on the species would not be significantly adverse and therefore
would not require an EIS.
In paragraph (d)(2)(ii), CEQ proposes to make a clarifying edit to
the factor relating to the action's effects on health and safety by
adding language indicating that the relevant consideration is ``the
degree to which'' the proposed action may ``adversely'' affect public
health and safety.
CEQ proposes to add in paragraph (d)(2)(iii) a factor to consider
the degree to which the proposed action may adversely affect unique
characteristics of the geographic area such as historic or cultural
resources, Tribal sacred sites, parkland, and various types of
ecologically sensitive areas. This would reinstate a factor from the
1978 regulations, with clarifying edits, which agencies have considered
for decades. As noted earlier in this section, CEQ proposes to use the
wording from the 1978 factor on unique characteristics because it is a
context consideration. Consideration of this factor is consistent with
both the definition of effects (Sec. 1508.1(g)) and the policies and
goals of NEPA. 42 U.S.C. 4331.
In paragraph (d)(2)(iv), CEQ proposes to make a clarifying edit to
the factor in 40 CFR 1501.3(b)(2)(iv) relating to actions that may
violate Federal, State, Tribal, or local law by adding reference to
``other requirements.'' CEQ also proposes to include inconsistencies
with policies designed for protection of the environment because
agencies should not necessarily limit their inquiry to statutory
requirements. Of course, it may be appropriate to give relatively more
weight to whether the action threatens a law imposed for environmental
protection as opposed to a policy, but policies imposed for the
protection of clean air, clean water, or species conservation, for
example, may nonetheless be relevant in evaluating intensity. CEQ
invites comment on the inclusion of policies in this provision and
whether the regulations should reference specific categories of
policies.
Next, CEQ proposes to add paragraph (d)(2)(v) to consider the
degree to which effects are highly uncertain. The 1978 regulations
included factors for ``controversial'' effects and those that are
``highly uncertain or involve unique or unknown risks.'' CEQ proposes
to restore a modified version of this concept that makes clear that the
uncertainty of an effect is the appropriate consideration, and not
whether an action is controversial. While a legitimate disagreement on
technical grounds may relate to uncertainty, this approach would make
clear that public controversy over an activity or effect is not a
factor for determining significance.
CEQ proposes to add a factor to paragraph (d)(2)(vi) regarding the
action's relationship with other actions. This would reinstate a factor
from the 1978 regulations and reinforce the consideration of the scope
of the action that agencies should consider in a NEPA document--that an
agency cannot avoid significance by terming an action temporary when it
is in fact a part of a repeating or ongoing action or segmenting it
into smaller parts. This longstanding NEPA principle is consistent with
decades of case law prohibiting the segmentation of actions. See, e.g.,
Sierra Club v. Marsh, 769 F.2d 868 (1st Cir. 1985); Kern v. U.S. Bureau
of Land Mgmt., 284 F.3d 1062 (9th Cir. 2002).
CEQ proposes to add a factor to paragraph (d)(2)(vii) relating to
actions that would affect historic resources listed or eligible for
listing in the National Register of Historic Places. This would
generally reinstate a factor from the 1978 regulations, which agencies
have decades of experience considering. Consideration of this factor
furthers the policies and goals of NEPA, including to ``preserve
important historic, cultural, and natural aspects of our national
heritage . . . .'' 42 U.S.C. 4331.
CEQ proposes to add paragraph (d)(2)(viii) to include effects on an
endangered or threatened species or its habitat, including critical
habitat under the Endangered Species Act. 16 U.S.C. 1532(5). This would
be an expansion of an intensity factor from the 1978 regulations, which
only addressed critical habitat. CEQ's proposed revision would clarify
that agencies should consider effects to the habitat of endangered or
threatened species even if it has not been designated as critical
habitat.
CEQ proposes to add paragraph (d)(2)(ix) to include consideration
of the degree to which the action may have disproportionate and adverse
effects on communities with environmental justice concerns. Evidence
continues to accumulate that communities with environmental justice
concerns often experience disproportionate environmental burdens such
as pollution or urban heat stress, and often experience
disproportionate health and other socio-economic burdens that make them
more susceptible to adverse effects.
Finally, CEQ proposes to add paragraph (d)(2)(x) to include effects

[[Page 49937]]

upon the rights of Tribal Nations reserved through treaties, statutes,
or Executive Orders. This proposed addition would clarify that agencies
should consider how an action may impact the reserved rights of Tribal
Nations. Tribes' ability to exercise these rights often depends on
protection of the resources that support the rights, and agencies
should consider impacts to such resources. CEQ specifically seeks
comments from Tribes on this proposed addition.
CEQ invites comments on whether there are other considerations that
should be added to the regulations to guide agency evaluation of the
context and intensity of an effect as part of a determination of
significance.
3. Categorical Exclusions (Sec. 1501.4)
CEQ proposes revisions to Sec. 1501.4 to clarify this provision,
which the 2020 rule added, and provide agencies new flexibility to
establish CEs using additional mechanisms and flexibilities outside of
their NEPA procedures to promote more efficient and transparent
development of CEs that may be tailored to specific environmental
contexts or project types.
First, CEQ proposes to edit Sec. 1501.4(a) for consistency with
and add a cross reference to Sec. 1507.3(c)(8), which currently
requires agencies to establish CEs in their NEPA procedures. This
revision would more fully and accurately reflect the purposes of and
requirements for CEs. As is reflected in the regulations, CEQ views CEs
to be an important mechanism to promote efficiency in the NEPA process
where agencies have long exercised their expertise to identify and
substantiate categories of actions that normally do not have a
significant effect on the human environment.
CEQ also proposes to add the clause ``individually or in the
aggregate'' to Sec. 1501.4(a)'s description of CEs. This proposal
would clarify that when establishing a CE in its procedures, an agency
must determine that the application of the CE to a single action and
the repeated collective application to multiple actions would not have
significant effects on the human environment. This clarification
recognizes that agencies often use CEs multiple times over many years.
This change is consistent with the definition of ``categorical
exclusion'' provided by section 111(1) as a ``category of actions,''
which highlights the manner in which CEs consider an aggregation of
individual actions. This change is similar to the 1978 regulations'
definition of CEs as categories of actions that do not ``individually
or cumulatively'' have significant effects, which the 2020 rule removed
consistent with its removal of the term ``cumulative impacts'' from the
regulations. The Phase 1 rulemaking reinstated cumulative effects to
the definition of ``effects,'' \62\ so the 2020 rule's justification
for removing the phrase no longer has a basis. However, CEQ proposes to
use the phrase ``in the aggregate'' rather than ``cumulatively'' to
avoid potential confusion. Cumulative effects refer to the incremental
effects of an agency action added to the effects of other past,
present, and reasonably foreseeable actions. In the context of
establishing CEs, agencies must consider both the effects of a single
action as well as the aggregation of effects from anticipated multiple
actions covered by the CE such that the aggregate sum of actions
covered by the CE does not normally have a significant effect on the
human environment. As part of this analysis, agencies consider the
effects--direct, indirect, and cumulative--of the individual and
aggregated actions. Because the definition of effects includes
cumulative effects, CEQ considers the phrase ``in the aggregate'' to
more clearly define what agencies must consider in establishing a CE--
the full scope of direct, indirect, and cumulative effects of the
category of action covered by the CE. Agencies have flexibility on how
to evaluate whether the ``aggregate'' of actions covered by a CE will
not ordinarily have significant effects and may consider the manner in
which the agency's extraordinary circumstances may avoid multiple
potential actions having reasonably foreseeable significant effects in
the aggregate. As discussed further in section II.I.2 CEQ notes that
agencies do not need to evaluate the environmental effects of
establishing the CE itself, but rather define the category of action
and demonstrate in its substantiation that the CE does not normally
have significant effects in the absence of extraordinary circumstances.
CEQ proposes to add a qualifying clause at the end of the sentence to
reference extraordinary circumstances consistent with Sec. 1501.4(b),
and add a definition of ``extraordinary circumstances'' at Sec.
1508.1(m). These provisions are consistent with longstanding practice
and recognize that, as the definition provided by section 111(1)
indicates, CEs are a mechanism to identify categories of actions that
normally do not have significant environmental effects. Extraordinary
circumstances serve to identify actions within a category of actions
the effects of which exceed those normally associated with that
category of action and therefore, do not fall within the bounds of the
CE.
---------------------------------------------------------------------------

\62\ Phase 1 Final Rule, supra note 47, at 23469.
---------------------------------------------------------------------------

Finally, CEQ also proposes to add at the end of paragraph (a)
language clarifying that agencies may establish CEs individually or
jointly with other agencies. In such cases, agencies may use a shared
substantiation document and list the CEs in both agencies' NEPA
procedures or identify them through another joint document as provided
for by proposed Sec. 1501.4(c). CEQ proposes this addition to provide
an additional mechanism for establishing CEs transparently and with
appropriate public process. Agencies may find value in establishing a
CE jointly for activities that they routinely work on together where
having a CE would create efficiency in project implementation. Agencies
also may save administrative time by establishing CEs jointly.
CEQ proposes edits to Sec. 1501.4(b)(1) to clarify the standard
for applying a CE to a proposed action where extraordinary
circumstances exist: an agency may apply a CE if the agency determines
that a proposed action does not have the potential to result in
significant effects, or the agency modifies the proposed action to
address the extraordinary circumstance. This standard is consistent
with agency practice and has been upheld in case law. As currently
drafted, 40 CFR 1501.4(b)(1) could be construed to mean that agencies
may mitigate extraordinary circumstances that would otherwise have the
potential for significant effects and thereby apply a CE with no
opportunity for public review or engagement on such actions. While the
2020 Response to Comments sought to distinguish ``circumstances that
lessen the impacts'' from required mitigation to address significant
effects,\63\ based on CEQ's discussions with agency representatives and
stakeholders, the potential for confusion remains. CEQ's proposed
standard makes clear that if an extraordinary circumstance exists, an
agency must make an affirmative determination that there is no
potential for significant effects in order to apply a CE. If it finds
such potential it must either: (1) modify its proposed action in a way
that will address the extraordinary circumstance, or (2) prepare an EA
or EIS.
---------------------------------------------------------------------------

\63\ CEQ, Update to the Regulations Implementing the Procedural
Provisions of the National Environmental Policy Act Final Rule
Response to Comments 130 (June 30, 2020) (``2020 Response to
Comments''), <a href="https://www.regulations.gov/document/CEQ-2019-0003-720629">https://www.regulations.gov/document/CEQ-2019-0003-720629</a>.
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CEQ also proposes to add a documentation requirement in these

[[Page 49938]]

instances where an agency is applying a CE notwithstanding
extraordinary circumstances. CEQ also proposes to add language
encouraging agencies to publish such documentation. While not required,
CEQ encourages agencies to publish documentation of instances where an
agency is applying a CE notwithstanding extraordinary circumstances to
provide transparency to the public of an agency determination that
there is no potential for significant effects. The proposed language
responds to feedback from the public requesting such transparency. CEQ
invites comment on whether it should require agencies to publish such
documentation.
In addition, CEQ proposes to add a new Sec. 1501.4(c) to provide
agencies more flexibility to establish CEs outside of their NEPA
procedures. This provision would allow agencies to establish CEs
through a land use plan, a decision document supported by a
programmatic EIS or EA, or other equivalent planning or programmatic
decisions. Once established, agencies could apply CEs to future actions
addressed in the program or plan, including site-specific or project-
level actions. CEQ anticipates that expanding the mechanisms through
which agencies may establish CEs will encourage agencies to conduct
programmatic and planning reviews, increase the speed with which
agencies can establish CEs while ensuring public participation and
adequate substantiation, promote the development of CEs that are
tailored to specific contexts, geographies, or project-types, and allow
decision makers to consider the cumulative effects of related actions
on a geographic area over a longer time frame than agencies generally
consider in a review of a single action. This provision would not
require agencies to establish CEs through the mechanism added in Sec.
1501.4(c) but rather would provide new options for agencies to
consider. CEQ also notes that this mechanism does not preclude agencies
from conducting and relying on programmatic analyses in making project-
level decisions consistent with Sec. 1501.11. Additionally, it does
not require agencies to conduct a NEPA analysis to establish CEs
generally, consistent with Sec. 1507.3(c)(8).
Establishing a CE through this alternative approach could be
beneficial by providing agencies with more flexibility on how to
identify categories of actions that normally will not have significant
effects and establishing a CE for them. A programmatic EIS supporting a
program decision or land use plan could, for example, provide the
analysis necessary to substantiate a new CE established by the
associated decision document that makes sense in the context of the
overall program decision or land use plan. For example, a land
management agency could consider establishing a CE for zero or minimal
impact resilience-related activities. Enabling an agency to establish a
CE through this mechanism would reduce duplication of effort by
obviating the need for the agency to revise their NEPA procedures
consistent with Sec. 1507.3 after completing the programmatic EIS.
Agencies also may find it efficient to establish a CE through a land
use planning process rather than undertaking a separate process to
establish the CE via agency procedures after completion of the land use
planning process.
Paragraphs (c)(1) through (c)(6) would set forth the requirements
for the establishment of CEs through mechanisms other than an agency's
NEPA procedures. Paragraphs (c)(1) and (c)(2) would require agencies to
provide CEQ an opportunity to review and comment and provide
opportunities for public comment. Agencies may satisfy the requirement
for notification and comment under paragraph (c)(2) by incorporating
the proposed CEs into any interagency and public review process that
involves notice and comment opportunities applicable to the relevant
programmatic or planning document.
Proposed paragraphs (c)(3) and (c)(4) would include the same
requirements for agencies to substantiate CEs and provide for
extraordinary circumstances when they establish CEs under this section
as when they establish CEs through their agency NEPA procedures
pursuant to Sec. 1507.3. Specifically, first, agencies would have to
substantiate their determinations that the category of actions covered
by a CE normally will not result in significant effects, individually
or in the aggregate. Second, agencies would need to identify
extraordinary circumstances. This could be the same list set forth in
the agency's NEPA procedures, a list specific to this set of CEs, or a
combination of both. While agencies would need to satisfy these
requirements in a manner consistent with the establishment of CEs under
Sec. 1507.3, agencies could document their compliance with these
requirements in the relevant programmatic or planning documents.
Proposed paragraph (c)(5) would direct agencies to establish a
process for determining that a CE applies to a specific action in the
absence of extraordinary circumstance, or determine the CE still
applies notwithstanding the presence of extraordinary circumstances.
Finally, paragraph (c)(6) would direct agencies to maintain a list of
all such CEs on their websites, similar to the requirement for agencies
to publish CEs established in their agency NEPA procedures consistent
with Sec. Sec. 1507.3(b)(2) and 1507.4(a). Agency websites should
clearly link the CEs to their underlying programmatic or planning
documents. Additionally, agencies may want to incorporate CEs
established through these mechanisms into their agency NEPA procedures
during a subsequent revision. CEQ encourages agencies to list all
agency CEs in one location, regardless of how the agency established
the CE, so that the public can easily access the full list of an
agency's CEs.
Proposed Sec. 1501.4(d) would identify a list of examples of
features agencies may want to consider including when establishing CEs,
regardless of what mechanism they use to do so. Paragraph (d)(1) would
note that CEs may cover specific geographic areas or areas that share
common characteristics, such as a specific habitat type for a given
species.
To promote experimentation and evaluation, paragraph (d)(2) would
indicate that agencies may establish CEs for a limited duration. Doing
so would enable agencies to narrow the scope of analysis necessary to
substantiate that a class of activities normally will not have a
significant environmental effect where uncertainty exists about changes
to the environment that may occur later in time that could affect the
analysis. As with all CEs, agencies should review their continued
validity periodically, consistent with CEQ's proposed review timeframe
in Sec. 1507.3(c)(9). Once the limited duration threshold is met,
agencies could either consider the CE expired, conduct additional
analysis to create a permanent CE, or reissue the CE for a new period.
Paragraph (d)(3) provides that a CE may include mitigation measures
to address potential significant effects. A CE that includes mitigation
is different than an agency modifying an action to avoid an
extraordinary circumstance that would otherwise require preparation of
an EA or EIS. Paragraph (d)(3) makes clear that an agency may establish
a CE for a class of activities that include mitigation requirements as
part of the CE application. Agencies would implement the activities
covered by the CE as well as the mitigation incorporated into those
activities as part of the CE. As an illustrative example, an agency
could conclude that, as a category, a type of activity that degrades
five acres of habitat will not ordinarily have significant effects
where five acres

[[Page 49939]]

of equivalent habitat are effectively restored or conserved elsewhere.
As another example, a CE could allow for vegetation management
activities but require specific mitigation if a certain habitat type is
disturbed, such as implementing vegetation activities on 10 acres of
sage grouse habitat and requiring restoration or compensatory
mitigation for an equivalent 10 acres of sage grouse habitat. Where an
agency establishes a CE with a mitigation requirement, the agency would
need to include such mitigation in their proposed actions in order for
the CE to apply.
Paragraph (d)(4) would provide that agencies can include criteria
for when a CE might expire, such that, if such criteria were present,
the agency could no longer apply that CE. For example, an agency could
establish a CE for certain activities up to a threshold, such as a
specified number of acres or occurrences. Once the agency applied that
CE up to the threshold number of proposed actions, the agency could no
longer use the CE. An agency might set an expiration date or threshold
where their record indicates a potential for significant effects after
a certain number of applications of the CE to proposed actions; where
there is uncertainty beyond that threshold; or where it is unclear how
widely the agency would apply the CE. In other situations, an agency
may want to make a CE time limited because its authority over the
actions is likewise time limited.
Finally, CEQ proposes to strike the provision that would allow an
agency to establish a process in its agency NEPA procedures to apply a
CE listed in another agency's NEPA procedures in 40 CFR 1507.3(f)(5)
and replace it with a provision in Sec. 1501.4(e) that is consistent
with the process for adoption established by section 109 of NEPA. While
section 109 uses the term ``adopt'' CEQ is proposing to use ``apply''
to distinguish this provision from the longstanding use of ``adoption''
in the CEQ regulations to refer to an agency's reliance on another
agency's previously completed analysis, including the determination
that a CE applies to a proposed action.
First, paragraph (e)(1) would require the borrowing agency to
identify the proposed action or category of proposed actions that falls
within the CE. In instances where an agency would like to use the CE on
a long-term basis, CEQ encourages agencies to establish the CE either
in their own procedures or through the process set forth in Sec.
1501.4(c). However, this provision would serve as an important bridge
when agencies are implementing new programs where they have not yet
established relevant CEs or when existing programs begin to undertake
new categories of actions but where other agencies have experience with
similar actions and have established a CE for those actions. In these
circumstances, the agency could immediately begin to implement the new
programs and new activities based on another agencies CE for similar
actions without the need to first develop a CE to cover them. CEQ also
notes that, consistent with the requirement of section 109(2) that an
agency consult with ``the agency that established the categorical
exclusion,'' this provision would only apply to CEs established
administratively by the agency, including those that Congress directs
agencies to establish administratively, but not those CEs created by
statute. While CEQ encourages agencies to include legislative CEs
established by statute in their NEPA procedures to provide
transparency, they are not ``established'' by the agency, but rather by
Congress. CEQ invites comment on this approach.
Second, under paragraph (e)(2), the borrowing agency would consult
with the agency that has the listed CE to ensure application of the CE
is appropriate. Third, under paragraph (e)(3), the borrowing agency
would evaluate for extraordinary circumstances, consistent with Sec.
1501.3(b) to incorporate the process for documenting use of the CE when
extraordinary circumstances are present, but application of the CE is
still appropriate. Finally, under paragraphs (e)(4) and (e)(5), the
borrowing agency would document application of the CE, provide public
notice of the CE that the agency plans to use, and publish the
documentation of the application of the CE. Neither the statute or the
proposed regulation requires the agency to accept comment on the public
notice of the CE that the agency plans to use. In cases where an agency
is applying CEs to a category of actions, the agency could conduct a
single consultation and publish a consolidated notice, for example. CEQ
invites comment on its proposed process. CEQ invites comment on whether
the regulations implementing section 109 should include additional
provisions to facilitate the use of CEs while ensuring CEs are not used
improperly to authorize actions that have reasonably foreseeable
significant effect.
CEQ notes that there has been some confusion regarding the
difference between the use or borrowing of another agency's CE proposed
in Sec. 1501.4(e), which section 109 of NEPA refers to as adoption and
is currently provided by 40 CFR 1507.3(f)(5) and adoption of a CE
determination under Sec. 1506.3(d). In the latter case of adoption of
a CE determination, an agency with a CE has applied the CE to its own
proposed action. A second agency then adopts that determination for the
second agency's action that is substantially the same. Under Sec.
1501.4(e), an agency may use a CE from another agency that has not
itself determined that the CE applies to an action. In such
circumstances, an agency would be borrowing the CE of another agency
and applying it to a new, separate action, rather than adopting a CE
determination for an action that is substantially the same.
4. Environmental Assessments (Sec. 1501.5)
CEQ proposes to revise Sec. 1501.5 for consistency with sections
106(b)(2) and 107(e)(2) of NEPA, and to provide greater clarity to
agencies on the requirements that apply to the preparation of EAs and
to codify agency practice. CEQ proposes edits to address what agencies
must discuss in an EA, how agencies should consider public comments
they receive on draft EAs, what page limits apply to EAs, and what
other requirements in the CEQ regulations agencies should apply to EAs.
Regarding the contents of an EA, CEQ proposes to split 40 CFR
1501.5(c)(2), which requires an EA to briefly discuss the purpose and
need for the proposed action, alternatives, and effects, into
paragraphs (c)(2)(i) through (iii) to improve readability and provide a
clearly defined list of requirements. This formatting change would make
it easier for the public and the agencies to ascertain whether an EA
includes the necessary contents. For example, when an agency develops
an EA for a proposal involving unresolved conflicts concerning
alternative uses of available resources, section 102(2)(H) requires an
analysis of alternatives, which will generally require analysis of one
or more reasonable alternatives, in addition to a proposed action and
no action alternative. 42 U.S.C. 4332(2)(H).
CEQ proposes to move from 40 CFR 1501.5(c)(2) into its own
paragraph at Sec. 1501.5(c)(3) the requirement for EAs to list the
agencies and persons consulted in the development of the EA. CEQ also
proposes to clarify in this paragraph that agencies include Federal
agencies as well as State, Tribal, and local governments and agencies.
CEQ also proposes to add in paragraph (c)(4) a requirement that the EA
include a unique identification number that can be used for tracking
purposes that

[[Page 49940]]

would then be carried forward to all other documents related to the
environmental review of the action, including the FONSI. Identification
numbers can help the public and agencies track the progress of an EA
for a specific action as it moves through the NEPA process and may
allow for more efficient and effective use of technology such as
databases. CEQ also is proposing a similar requirement for EISs in
Sec. 1502.4(e)(9).
To reflect current agency practice and provide the public with a
clearer understanding about potential public participation
opportunities with respect to EAs, CEQ proposes to add a new paragraph
(e) that provides that if an agency chooses to publish a draft EA, it
must invite public comment on the draft and consider those comments
when preparing a final EA. This provision reflects the fact that one of
the primary purposes for which agencies choose to prepare draft EAs is
to enable public participation. Codifying this practice will enhance
the public's understanding of the NEPA process and meaningful public
engagement and does not restrict agency discretion over whether to
choose to prepare a draft EA for public comment. CEQ would redesignate
the current 40 CFR 1501.5(e) and (f) to Sec. 1501.5(f) and (g)
respectively.
CEQ also proposes to revise Sec. 1501.5(g) to dispense with the
requirement for senior agency official approval to exceed 75 pages, not
including any citations or appendices, for consistency with section
107(e)(2) of NEPA.
CEQ proposes to add paragraph (h) to clarify that agencies may
reevaluate or supplement an EA if a major Federal action remains to
occur and the agency considers it appropriate to do so. Paragraph (h)
also would provide that agencies may reevaluate an environmental
assessment or otherwise document a finding that changes to the proposed
action or new circumstances or information relevant to environmental
concerns are not substantial, or the underlying assumptions of the
analysis remain valid. CEQ adds this to clarify that an agency may
apply the provisions at Sec. 1502.9 regarding supplemental EISs to a
supplemental EA to improve efficiency and effectiveness.
Finally, CEQ proposes to clarify the provisions that agencies
should or may apply to EAs. In a new paragraph (i), CEQ proposes to
clarify that agencies generally should apply the provisions of Sec.
1502.21 regarding incomplete or unavailable information and Sec.
1502.23 regarding scientific accuracy. The 2020 regulations added these
as provisions agencies ``may apply;'' however, on reflection, CEQ
considers it important to disclose where information is incomplete or
unavailable, and ensure scientific accuracy for all levels of NEPA
review, not just EISs. Then, CEQ proposes to provide in paragraph (j)
that agencies may apply the other provisions of parts 1502 and 1503
where they consider it appropriate to improve efficiency and
effectiveness of EAs. This provision includes a list of example
provisions where this might be the case--scoping (Sec. 1502.4), cost-
benefit analysis (Sec. 1502.22), environmental review and consultation
requirements (Sec. 1502.24), and response to comments (Sec. 1503.4).
5. Findings of No Significant Impact (Sec. 1501.6)
CEQ proposes two revisions to Sec. 1501.6 on findings of no
significant impact (FONSIs) to clarify the 2020 rule's codification of
the longstanding agency practice of relying on mitigated FONSIs in
circumstances where the agency incorporates mitigation into the
proposed action to reduce its effects below significance. This is an
important efficiency tool for NEPA compliance because it expands the
circumstances in which an agency may prepare an EA and reach a FONSI,
rather than preparing an EIS, consistent with the requirements of NEPA.
Paragraph (a) currently describes that an agency prepares a FONSI
when it determines, as a result of an EA, not to prepare an EIS because
the proposed action will not have significant effects. At the end of
paragraph (a), CEQ proposes to clarify that agencies can prepare a
mitigated FONSI if the action will include mitigation to avoid the
significant effects that would otherwise occur or minimize or
compensate for them to the point that the effects are not significant.
So long as the agency can conclude that effects will be insignificant
in light of mitigation, the agency can issue a mitigated FONSI. CEQ
considers this an important clarification for consistency with the
language in Sec. 1501.6(c). Codification of these best practices also
aligns with guidance CEQ has issued on appropriate use of mitigation,
monitoring, and mitigated FONSIs.\64\
---------------------------------------------------------------------------

\64\ CEQ, Appropriate Use of Mitigation and Monitoring and
Clarifying the Appropriate Use of Mitigated Findings of No
Significant Impact (Jan. 14, 2011), <a href="https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf">https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf</a>.
---------------------------------------------------------------------------

Paragraph (c) currently addresses what an agency must include in a
FONSI regarding mitigation. The text provides that when an agency
relies on mitigation to reach a FONSI, the mitigated FONSI must state
the enforceable mitigation requirements or commitments that avoid the
potentially significant effects. CEQ proposes to clarify in the second
sentence that the FONSI must state the enforceable mitigation
requirements or commitments, as well as the authorities for them, since
they must be enforceable for agencies to reach a mitigated FONSI. CEQ
proposes this change because, where a proposed action evaluated in an
EA may have significant effects, and an agency is not preparing an EIS,
the FONSI must include mitigation of the significant effects. At the
end of paragraph (c), CEQ proposes additional language to provide
additional details on what is needed to demonstrate that mitigation
requirements or commitments are enforceable. Specifically, the proposed
language would direct agencies to identify the authority that is being
exercised to make the mitigation enforceable.
Finally, as discussed in section II.G.2, CEQ proposes to add a new
sentence at the end of paragraph (c) to require a monitoring and
compliance plan when the EA relies on mitigation as a component of the
proposed action and incorporates the mitigation into the FONSI,
consistent with proposed Sec. 1505.3(c). These changes will help
effectuate NEPA's purpose as articulated in section 101, including to
``attain the widest range of beneficial uses of the environment without
degradation, risk to health or safety, or other undesirable and
unintended consequences'' and to ``preserve important historic,
cultural, and natural aspects of our national heritage . . . .'' 42
U.S.C. 4331(b).
6. Lead Agency; Cooperating Agencies (Sec. Sec. 1501.7 and 1501.8)
CEQ proposes to eliminate the reference to ``complex''
environmental assessments. The 2020 rule added this term without
definition. CEQ invites comment on whether it should retain a complex
EA in the regulations, and if so, how CEQ should define a complex EA.
CEQ proposes to retitle Sec. 1501.7 ``Lead Agency'' to align with
section 107(a) of NEPA. CEQ proposes to revise paragraph (b) regarding
joint lead agencies for consistency with section 107(a)(1)(B) of NEPA
to clarify that the participating Federal agencies may designate a
Federal, State, Tribal, or local agency as a joint lead agency upon
invitation to and acceptance by such agency. CEQ includes Federal
agencies in the list of potential joint lead agencies because there are
circumstances in which having another

[[Page 49941]]

agency serving as a joint lead agency will enhance efficiency. CEQ does
not read the text in section 107(a)(1)(B) of NEPA as precluding this
approach, but rather Congress specified that State, Tribal, and local
agencies may serve as joint lead agencies because they are ineligible
to serve as the lead agency. CEQ invites comment on whether it should
make additional changes to this paragraph.
CEQ proposes to revise paragraph (c) for consistency with section
107(a)(1) of NEPA to clarify that the participating Federal agencies
determine the agency that will be lead and any joint lead agencies, and
that the lead agency determines any cooperating agencies. This change
also would make this paragraph consistent with the text in Sec.
1506.2(c) on joint EISs. In Sec. 1501.7(d), CEQ proposes to revise the
text for consistency with section 107(a)(5)(B) of NEPA and make a non-
substantive change to replace the phrase ``private person'' with the
word ``individual'' for consistency with this term's use in other
sections of the regulations. In paragraph (e), CEQ proposes to revise
the text for consistency with section 107(a)(4) of NEPA, clarify that
the 45 days is calculated from the date of the written request to the
senior agency officials as set forth in Sec. 1501.7(d), and replace
``persons'' with ``individuals'' for consistency with the rest of
regulations.
In paragraph (f), CEQ proposes to revise the text for consistency
with section 107(a)(5)(D) of NEPA, to change ``within 20 days'' to ``no
later than 20 days'' in the first sentence, and ``20 days'' to ``40
days'' and ``determine'' to ``designate'' in the second sentence.
Currently, 40 CFR 1501.7(g), addressing combined documents, is
consistent with the text of section 107(b) of NEPA with respect to
EISs, EAs, and FONSIs. The statute does not address joint RODs. CEQ
proposes to revise Sec. 1501.7 to add a caveat that agencies must
issue joint RODs except where it is inappropriate or inefficient to do
so, such as when an agency has a separate statutory directive, or it
would take significantly longer to issue a joint ROD than separate
ones. CEQ recognizes that, in some cases, requiring a joint ROD could
inadvertently slow the NEPA process down because, for example, agencies
may have different procedures for issuing authorizations under their
applicable legal authorities or may need to consider different factors.
But in other cases, it could improve efficiency by avoiding duplication
of effort or analysis. Additionally, for consistency with Sec. 1501.5,
CEQ proposes to add that agencies can jointly determine to prepare an
EIS if a FONSI is inappropriate.
In Sec. 1501.7(h)(2), CEQ proposes to add a clause consistent with
section 107(a)(2)(C) of NEPA requiring the lead agency to give
consideration to a cooperating agency's analyses and proposals. In the
existing clause, CEQ proposes to move the qualifier, ``to the extent
practicable'' to clarify that it only modifies the second clause, and
change ``proposals'' to ``information'' to make the text consistent
with Sec. 1501.8(b)(3). Further, the use of ``proposal'' here is
inconsistent with the definition of ``proposal'' provided in Sec.
1508.1(cc). CEQ also proposes to remove the reference to jurisdiction
by law or special expertise as unnecessarily redundant given that the
definition of ``cooperating agencies'' in Sec. 1508.1(e) incorporates
those phrases.
As discussed further in section II.C.8, CEQ proposes to move the
requirements for schedules and milestones currently in 40 CFR 1501.7(i)
and (j) to proposed Sec. 1501.10(c) in order to consolidate provisions
related to deadlines, schedules, and milestones in one section.
CEQ proposes an addition to Sec. 1501.8 to clarify the meaning of
the phrase ``special expertise.'' Paragraph (a) provides that a lead
agency may request an agency with special expertise to serve as a
cooperating agency. CEQ proposes to clarify in paragraph (a) that
special expertise can include Indigenous Knowledge. This proposed
change helps ensure that Federal agencies respect and benefit from
unique knowledge that Tribal governments may bring to the environmental
review process. CEQ notes that the Office of Science and Technology
Policy and CEQ have issued a Guidance Memorandum for Federal
Departments and Agencies on Indigenous Knowledge,\65\ but does not
define Indigenous Knowledge. CEQ invites comment on whether it should
include such a definition in the regulations. Finally, CEQ notes that
even where a federally recognized Tribe participates as a cooperating
agency, the agency also may have an obligation to engage in government-
to-government consultation on the proposed action consistent with the
agency's obligations under E.O. 13175, Consultation and Coordination
with Indian Tribal Governments.\66\
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\65\ Office of Science and Technology Policy and CEQ, Guidance
for Federal Departments and Agencies on Indigenous Knowledge (Nov.
30, 2022), <a href="https://www.whitehouse.gov/wp-content/uploads/2022/12/OSTP-CEQ-IK-Guidance.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/12/OSTP-CEQ-IK-Guidance.pdf</a>.
\66\ E.O. 13175, supra note 53.
---------------------------------------------------------------------------

In paragraph (b)(7), CEQ proposes to strike the second clause
requiring cooperating agencies to limit their comments to align this
paragraph with section 107(a)(3) of NEPA. Finally, CEQ invites comment
on whether it should make any additional changes to these sections to
promote or improve lead and cooperating agency engagement on the
preparation of NEPA documents or increase the efficiency of the
preparation process.
7. Public and Governmental Engagement (Sec. 1501.9)
CEQ proposes to address public and governmental engagement in a
revised Sec. 1501.9 by moving and updating 40 CFR 1506.6, ``Public
involvement,'' to Sec. 1501.9, and moving provisions specific to the
EIS scoping process to Sec. 1502.4. CEQ proposes these updates to
continue to provide agencies with flexibility to tailor their
engagement specific to their programs and actions while also
maintaining the requirements to engage the public and affected parties
in the NEPA process. CEQ proposes revisions to Sec. 1501.9 to
emphasize the importance of creating an accessible and transparent NEPA
process. CEQ also proposes many of these changes in response to
feedback on the Phase 1 proposed rule, the 2020 proposed rule, and
input received from stakeholders and agencies during development of
this proposed rule. Much of that feedback requested increased
opportunities for public engagement and increased transparency about
agency decision making, along with general requests that CEQ elevate
the importance of public engagement in the NEPA process. Finally, CEQ
proposes to move the requirements related to public engagement to part
1501 to emphasize that it is a core component of the NEPA process and
agency planning, regardless of the level of NEPA analysis being
undertaken.
To accomplish this goal, CEQ is proposing changes to multiple
sections of the regulations. First, CEQ is proposing to move the
existing provisions of 40 CFR 1501.9 on scoping, specifically
paragraphs (a), (b), (c), (d), (d)(1) through (8), (f), and (f)(1)
through (5) to proposed Sec. 1502.4, ``Scoping.'' As discussed in
sections II.C.2 and II.C.9, CEQ proposes to move the existing
provisions in 40 CFR 1502.4 on ``Major Federal actions requiring the
preparation of environmental impact statements'' to Sec. Sec. 1501.3
and 1501.11. Also, as discussed in section II.C.2, CEQ proposes to move
the remaining text of existing 40 CFR 1501.9(e) and (e)(1) through (3)
on the determination of scope to proposed Sec. 1501.3 because

[[Page 49942]]

determining the scope of actions applies to all levels of NEPA review.
CEQ proposes to retitle Sec. 1501.9 to ``Public and governmental
engagement'' and accordingly update references to ``public
involvement'' within this section and throughout the CEQ regulations to
``public engagement.'' CEQ is proposing this change because the word
``engagement'' better reflects how Federal agencies should be
interacting with the public. The word ``engagement'' reflects a process
that is more interactive and collaborative compared to simply including
or notifying the public of an action. Engagement is also a common term
for Federal agencies with experience developing public engagement
strategies or that work with public engagement specialists. CEQ
proposes to add ``governmental'' to the title to better reflect the
description of the provisions proposed to be included in the section,
which relate to both public and governmental entities.
Next, CEQ proposes to add paragraphs (a) and (b) to articulate the
purposes of public and governmental engagement and to identify the
responsibility of agencies to determine the appropriate methods of
public and governmental engagement and conduct scoping consistent with
Sec. 1502.4 for EISs. CEQ proposes to use the phrase ``meaningful''
engagement to better describe the purpose of this process because
public and governmental engagement should not be a mere check-the-box
exercise, and agencies should conduct engagement with appropriate
planning and active dialogue or other interaction with stakeholders in
which all parties can contribute. For example, such engagement can
inform the potential for significant effects or identify alternatives
that avoid or reduce effects. Agencies should determine the appropriate
level of outreach needed to engage meaningfully and effectively with
affected communities.
Paragraph (c) would list what actions the lead agency should take
when conducting outreach for public and governmental engagement.
Proposed paragraph (c)(1) would recommend agencies invite likely
affected agencies and governments, and paragraph (c)(2) would recommend
agencies conduct early engagement with likely affected or interested
members of the public. CEQ modeled these provisions on the existing
approaches in 40 CFR 1501.7(a)(1) (2019) and 40 CFR 1501.9(b) (2020) to
invite early participation of likely affected parties. Paragraph (c)(3)
would provide flexibility to agencies to tailor engagement strategies,
considering the scope, scale, and complexity of the proposed action and
alternatives, the degree of public interest, and other relevant
factors. CEQ proposes to move from 40 CFR 1506.6(c) to Sec.
1501.9(c)(3) the requirement that agencies consider the ability of
affected parties to access electronic media when selecting the
appropriate methods of notification. CEQ also proposes to add a clause
to the end of paragraph (c)(3) to require agencies to consider the
primary language of affected persons when determining the appropriate
notification methods to use.
CEQ then proposes to move and modify the rest of 40 CFR 1506.6 to
proposed Sec. Sec. 1501.9(d), (e), and (f). Specifically, CEQ proposes
to move the introductory clause of 40 CFR 1506.6 and 40 CFR 1506.6(b),
including its paragraphs, to Sec. 1501.9(d) and (d)(2), respectively,
and make minor revisions to improve readability and consistency with
the rest of Sec. 1501.9, including adding the paragraph heading
``notification.'' CEQ also proposes in (d)(2) to clarify that agencies
should make environmental documents available, as appropriate, to help
inform the public engagement process. CEQ proposes here and throughout
the CEQ regulations to replace the word ``notice'' with
``Notification,'' except where ``notice'' is used in reference to a
Federal Register notice. This proposed change is intended to clearly
differentiate between those requirements to publish a notice in the
Federal Register and other requirements to provide notification of an
activity, which may include a notice in the Federal Register or use of
other mechanisms.
CEQ proposes a new paragraph (d)(1) to require agencies to publish
notification of proposed actions they are analyzing through an EIS. CEQ
proposes this requirement in response to feedback from multiple
stakeholders and members of the public requesting more transparency
about agency proposed actions. Agencies may publish notification
through websites, email notifications, or other mechanisms such as the
Permitting Dashboard,\67\ so long as the notification method or methods
are designed to adequately inform the persons and agencies who may be
interested or affected, consistent with the definition of ``publish''
in Sec. 1508.1(ee). A notice of intent in the Federal Register,
consistent with Sec. 1502.4(e), can fulfill the notification
requirement, but agencies also may elect to use additional notification
methods. CEQ proposes to combine the provisions from 40 CFR
1506.6(b)(3)(i) and (ii) on notice to State, Tribal, and local
governments and agencies in proposed Sec. 1501.9(d)(2)(iii)(A) to
consolidate similar provisions. CEQ also proposes to recommend in
paragraph (d)(2)(iii)(I) that agencies establish email notification
lists or similar methods for the public to easily request electronic
notifications for proposed actions.
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\67\ See Fed. Permitting Improvement Steering Council,
Permitting Dashboard for Federal Infrastructure Projects, <a href="https://www.permits.performance.gov/">https://www.permits.performance.gov/</a>.
---------------------------------------------------------------------------

As discussed in section II.I.3, CEQ proposes to move the
requirement for agencies to explain in their NEPA procedures where
interested persons can get information on EISs and the NEPA process
from 40 CFR 1506.6(e) to Sec. 1507.3(c)(11) since this is a
requirement for NEPA procedures, not public engagement. CEQ proposes to
move the requirements to make EISs available under FOIA from 40 CFR
1506.6(f) to Sec. 1501.9(d)(3).
CEQ proposes to delete 40 CFR 1506.6(d) on soliciting information
from the public because CEQ proposes to include that concept in the
purpose and language of Sec. 1501.9. CEQ proposes to move 40 CFR
1506.6(c) on public meetings and hearings to Sec. 1501.9(e), with
modification, including adding the heading ``Public meetings and
hearings'' to the paragraph, making minor revisions for clarity,
consistency, and readability, and adding a phrase to clarify that when
an agency accepts comments for electronic or virtual meetings, agencies
must allow the public to submit them electronically or via regular
mail. CEQ also proposes to add in paragraph (e) a sentence encouraging
agencies to consider the needs of affected communities when determining
what format to use for a public hearing or public meeting because the
best option for the communities involved may vary.
Finally, CEQ proposes to move 40 CFR 1506.6(a) on public
involvement for NEPA procedures to new paragraph Sec. 1501.9(f),
adding a paragraph heading ``Agency procedures'' and changing the word
``involve'' to ``engage.'' CEQ is proposing to move this provision to
its own paragraph because engagement in the development of agency NEPA
procedures does not align with the new title added for paragraph (d)
and its paragraphs on notification requirements.
CEQ invites comment on whether and how it can make any additional
changes to this or other provisions in the regulations to enhance
community engagement. This could include adding provisions to the NEPA
regulations to

[[Page 49943]]

further address the responsibilities of the Chief Public Engagement
Officers proposed in Sec. 1507.2(a) to facilitate community engagement
across the agency and technical assistance to communities. CEQ welcomes
other ideas.
8. Deadlines and Schedule for the NEPA Process (Sec. 1501.10)
CEQ proposes to retitle Sec. 1501.10 to ``Deadlines and schedule
for the NEPA process'' and revise the section to direct agencies to set
deadlines and schedules for NEPA reviews to achieve efficient and
informed NEPA analyses consistent with section 107 of NEPA. The
proposed changes in this section would improve transparency and
predictability for stakeholders and the public regarding NEPA reviews.
In paragraph (a), CEQ proposes edits to emphasize that while NEPA
reviews should be efficient and expeditious, they also must include
sound analysis. The proposal would direct agencies to set deadlines and
schedules tailored to individual or types of proposed actions to
facilitate meeting the deadlines proposed in Sec. 1501.10(b).
Consistent with section 107(a)(2)(D) of NEPA, CEQ also proposes in this
paragraph to require, where applicable, the lead agency to consult with
and seek concurrence of joint lead, cooperating, and participating
agencies and consult with project sponsors and applicants when
establishing and updating schedules.
CEQ proposes to update paragraph (b) for consistency with section
107(h) of NEPA. Paragraph (b)(1) would require agencies to complete an
EA within one year and paragraph (b)(2) would require EIS completion in
two years unless the lead agency extends the deadline in consultation
with any applicant or project sponsor and sets a new deadline. In
circumstances where there is no applicant or project sponsor, the
consultation requirement is inapplicable to extension of deadlines.
Paragraph (b)(3) would identify the starting points from which the
deadline is measured and require agencies to measure from the soonest
of the three dates identified in section 107(g) of NEPA, as applicable.
CEQ notes that section 107(g)(3) of NEPA provides a mechanism for
project sponsors to petition the courts for relief if an agency fails
to meet the deadlines. Finally, paragraph (b)(4) would require agencies
to submit the report to Congress on any missed deadlines required by
section 107(h) of NEPA.
To enhance predictability, CEQ proposes to add a new paragraph (c),
which would contain text moved from 40 CFR 1501.7(i) and modified for
consistency with section 107(a)(2)(D) and (E) of NEPA requiring the
lead agency to develop schedules for EISs and EAs. The schedule would
include key milestones for the environmental review process, including
reviews, permits, and authorizations, and the lead agency would develop
it in consultation with the applicant or project sponsor and in
consultation with and seek the concurrence of any joint lead,
cooperating, and participating agencies. CEQ proposes to allow
schedules to be tailored to proposed actions and to highlight factors
that may help agencies set specific schedules to meet the deadlines.
Finally, CEQ proposes to move to the end of this paragraph text from 40
CFR 1501.7(j) with modifications, including for consistency with
section 107(a)(2)(E) of NEPA, and provide clarification to enhance
interagency communication and issue resolution. The proposed changes
would require that, when the lead agency or any participating agency
anticipates a missed milestone, that agency notifies the responsible
agency (and the lead agency if identified by another agency) and
request that they take action to comply with the schedule. To emphasize
the importance of informed and efficient decision making, CEQ proposes
to require agencies to elevate any unresolved disputes contributing to
the missed milestone to the appropriate officials for resolution within
the deadlines for the individual action.
CEQ proposes to redesignate 40 CFR 1501.10(c) as paragraph (d),
which addresses factors in setting deadlines, and make changes to the
text for consistency with the proposed changes to paragraph (b).
Specifically, CEQ proposes to change the reference to ``deadlines'' to
add a reference to ``the schedule'' and add a reference to the ``lead
agency,'' to consider the listed factors in setting schedules. CEQ
proposes to add an additional factor to (d)(7), redesignating 40 CFR
1501.10(c)(7) to be paragraph (d)(8), to add the degree to which a
substantial dispute exists on the proposed action and its effects. This
would restore and clarify a factor included in the 1978 regulations at
40 CFR 1501.8(a)(vii) (2019) regarding the degree to which the action
is controversial. While the 2020 regulations removed this factor
because it overlapped with other factors, CEQ is proposing to restore
and clarify it in the list of factors, focusing on substantial disputes
over the size, location, nature, or consequences of the proposed action
and its effects. CEQ considers this an important factor that could have
implications for establishing schedules and milestones. In such
instances, agencies should seek ways to resolve disputes early in the
process, including using conflict resolution and other tools, to
achieve efficient outcomes and avoid costly and time-consuming
litigation later in the process.
CEQ proposes to redesignate 40 CFR 1501.10(d) as paragraph (e) and
require a schedule to include a list of specific milestones. Proposed
paragraphs (e)(1) through (e)(5) would require EIS schedules to include
proposed dates for publication of the NOI, issuance of the draft EIS,
the public comment period, issuance of the final EIS, and issuance of
the ROD. CEQ proposes to remove paragraphs 40 CFR 1501.10(d)(2),
(d)(6), and (d)(7) because they are either covered by proposed (e)(1)
through (e)(3) or unnecessary. CEQ proposes in paragraph (f) and (f)(1)
through (f)(4) to identify the milestones that agencies must include in
schedules for EAs.
CEQ proposes to redesignate 40 CFR 1501.10(e) as paragraph (g).
Finally, to increase predictability and enhance agency accountability,
CEQ proposes to strike 40 CFR 1501.10(f) and add a new paragraph (h) to
require agencies to make schedules for EISs publicly available and to
publish revisions to the schedule. It also would require agencies to
publish revisions to the schedule and include an explanation for
substantial revisions to increase transparency and public understanding
of decision making and to encourage agencies to avoid unnecessary
delays.
9. Programmatic Environmental Document and Tiering (Sec. 1501.11)
CEQ proposes to revise and retitle Sec. 1501.11, ``Programmatic
environmental document and tiering,'' for consistency with section 108
of NEPA, to consolidate relevant provisions, and to add new language to
codify best practices for developing programmatic NEPA reviews and
tiering, which are important tools to facilitate more efficient
environmental reviews and project approvals. The revisions to this
section propose to move portions of 40 CFR 1502.4 on EISs for broad
Federal actions to proposed Sec. 1501.11 because agencies can review
actions at a programmatic level in both EAs and EISs. CEQ has
encouraged agencies to engage in environmental reviews for broad
Federal actions through the NEPA process since CEQ's initial
guidelines. This continues to be a best practice for addressing broad
actions, such as programs, policies, rulemakings, series of projects,
and larger or multi-phase projects. CEQ developed guidance in 2014 on
Effective

[[Page 49944]]

Use of Programmatic NEPA Reviews,\68\ compiling best practices across
the Federal Government on the development of programmatic environmental
reviews. In this proposed rule, CEQ would codify some of these
principles.
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\68\ Programmatic Guidance, supra note 11.
---------------------------------------------------------------------------

CEQ proposes to first address programmatic environmental documents
and then tiering in Sec. 1501.11. Accordingly, CEQ proposes to
redesignate existing 40 CFR 1501.11(a), (b), and (c), which address
tiering, to be proposed paragraphs (b), (b)(1), and (b)(2),
respectively, with some modifications. CEQ proposes to add a new
paragraph (a) to address programmatic environmental documents. Proposed
paragraph (a) would encourage the use of programmatic environmental
documents through an EIS or EA that evaluates the environmental effects
of policies, programs, plans, or groups of related activities. CEQ
proposes to move text from 40 CFR 1502.4(b) to Sec. 1501.11(a) and
revise it to include EAs, providing that programmatic environmental
documents should be relevant to the agency decisions and timed to
coincide with meaningful points in agency planning and decision making.
Finally, paragraph (a) would clarify that agencies can use programmatic
environmental documents in a variety of ways, highlighting some
examples for agencies to consider to facilitate better and more
efficient environmental reviews.
CEQ proposes to move the list of ways agencies may find it useful
to evaluate a proposal when preparing programmatic documents from 40
CFR 1502.4(b)(1) and (b)(1)(i) through (b)(1)(iii) to Sec.
1501.11(a)(1) and (a)(1)(i) through (a)(1)(iii), respectively, and
expand the list to apply to environmental documents rather than just
EISs to encompass EAs. CEQ proposes to modify paragraph (a)(1)(ii) to
clarify ``[g]enerically'' to mean ``[t]hematically or by sector,'' and
add technology as an example action type.
CEQ proposes to add paragraph (a)(2) to provide examples of the
types of agency actions that may be appropriate for programmatic
environmental documents, including programs, policies, or plans;
regulations; national or regional actions; or actions with multiple
stages and are part of an overall plan or program. CEQ proposes to move
40 CFR 1502.4(b)(2) to Sec. 1501.11(a)(3) and recommend that agencies
employ scoping and other tools to describe the relationship between
programmatic environmental document and related actions to reduce
duplication. CEQ proposes to strike the last sentence of 40 CFR
1502.4(b)(2) stating that agencies may tier their analyses because
tiering and programmatic environmental documents would now be addressed
together in this section rendering the language unnecessary.
As referenced earlier in this section, CEQ proposes to redesignate
the existing paragraphs on tiering to paragraphs (b), (b)(1) and
(b)(2). CEQ proposes to title paragraph (b) ``Tiering'' and add new
language to describe when agencies may employ tiering. CEQ proposes to
strike as redundant the reference to issues not yet ripe for decision
as well as the last sentence on applying tiering to different stages of
actions.
In Sec. 1501.11(b)(1) CEQ proposes to add programmatic
environmental document to the list of documents from which agencies may
tier. This paragraph also would clarify that agencies need to discuss
the relationship between the tiered analysis and the previous review;
evaluate site-, phase-, or stage-specific conditions and effects; and
allow for public engagement opportunities that are appropriate for the
location, phase, or stage.
Programmatic documents can most effectively address later
activities when they provide a description of planned activities that
would implement the program and consider the effects of the program as
specifically and comprehensively as possible. A sufficiently detailed
programmatic analysis with such project descriptions can allow agencies
to rely upon programmatic environmental documents for further actions
with no or little additional environmental review necessary. When
conducting programmatic analyses, agencies should engage the public
throughout the NEPA process and consider when it is appropriate to re-
engage the public prior to implementation of the action.
In paragraph (c), CEQ proposes to include the provisions in section
108 of NEPA, which address when an agency may rely on a programmatic
document in subsequent environmental documents. CEQ notes that it
interprets the reference to ``judicial review'' in paragraph (c)(1) to
mean an opportunity for a party to challenge the programmatic document,
including an administrative proceeding or challenge under the
Administrative Procedure Act. CEQ invites comment on whether to provide
additional information in the regulations to clarify this provision.
CEQ proposes in paragraph (c)(2) to require agencies to briefly
document their reevaluations when relying on programmatic environmental
documents older than 5 years. CEQ invites comment on whether and how to
more closely align this provision with the reevaluation and
supplementation provisions in Sec. Sec. 1501.5(h) and 1502.9(d).
CEQ invites comment on any additional changes that would promote
effective use of programmatic environmental reviews to facilitate
efficient and non-duplicative subsequent review of project-specific
actions, including through tiering.
10. Incorporation by Reference Into Environmental Documents (Sec.
1501.12)
CEQ proposes minor modifications to Sec. 1501.12 to emphasize the
importance of transparency and accessibility of material that agencies
incorporate by reference. CEQ proposes to add a specific requirement
for agencies to briefly explain the relevance of any material
incorporated into the environmental document to clarify that agencies
must do this. CEQ proposes this addition because explaining the
relevance of incorporated material in addition to summarizing it will
better inform the decision maker and the public. CEQ encourages
agencies to integrate the description of relevance into the summary of
the material. CEQ also proposes to change ``may not'' to ``shall not''
to eliminate a potential ambiguity over whether agencies must make
material they incorporate by reference reasonably available for public
inspection. CEQ also proposes to add a reference to ``publicly
accessible website'' as an example of a mechanism for making material
incorporated by reference available to the public, and clarify that an
agency may meet this obligation by posting documents on a website.
Finally, CEQ proposes to add language encouraging agencies to provide
digital references, such as hyperlinks, to incorporated material or
otherwise indicate how the public can access the material for
inspection.

D. Proposed Revisions To Update Part 1502, Environmental Impact
Statements

CEQ is proposing revisions to many sections of part 1502. CEQ is
not proposing any substantive changes to Sec. 1502.3, but is revising
the section title to read ``Statutory requirements for environmental
impact statements.'' CEQ is not proposing substantive changes to Sec.
1502.6, Interdisciplinary preparation; Sec. 1502.13, Purpose and need;
Sec. 1502.18, List of preparers; Sec. 1502.19, Appendix; Sec.
1502.20, Publication of the environmental impact statement; Sec.
1502.22, Cost-benefit analysis; or

[[Page 49945]]

Sec. 1502.24, Environmental review and consultation requirements. CEQ
invites comment on whether it should make any changes to these sections
or other changes to part 1502.
CEQ particularly invites comment on whether it should codify any or
all of its 2023 GHG guidance, and, if so, which provisions of part 1502
or other provisions of the regulations CEQ should amend. CEQ proposes
to incorporate some or all of the 2023 GHG guidance, which would
require making additional changes in the final rule to codify the
guidance in whole or part, as is or with changes, based on the comments
CEQ receives on this proposed rule.\69\
---------------------------------------------------------------------------

\69\ See 2023 GHG Guidance, supra note 9.
---------------------------------------------------------------------------

1. Purpose (Sec. 1502.1)
CEQ proposes to divide Sec. 1502.1 into paragraphs (a), (b), and
(c) to enhance readability and amend the text in the section to restore
the approach taken in the 1978 regulations regarding the purpose of
EISs as they relate to NEPA.
In paragraph (a), CEQ proposes to restore language from the 1978
regulations clarifying that one purpose of an EIS is to serve as an
action-forcing device for implementing the policies set out in section
101 of NEPA by ensuring agencies consider the environmental effects of
their action in decision making. Congress did not enact NEPA to create
procedure for procedure's sake; NEPA's procedures serve the substantive
policies and goals Congress established and restoring the action-
forcing language would clarify how EISs serve this broader function.
This proposed change is consistent with the proposed edits in Sec.
1500.1. See section II.B.1.
In paragraph (b), CEQ proposes minor edits for clarity and
consistency with other changes proposed throughout the regulations. CEQ
proposes to change ``It'' to ``Environmental impact statements'' to
improve readability in light of the proposal to add paragraphs to the
section. CEQ also proposes to change ``significant'' to ``important''
before ``environmental issues'' and insert ``reasonable'' before
``alternatives'' for consistency with similar phrasing throughout the
regulations. In paragraph (c), CEQ proposes to restore the 1978
language clarifying that an EIS is more than a disclosure document and
that agencies must use EISs concurrently with other relevant
information to make informed decisions. CEQ considers this language to
provide important direction to agencies to ensure that EISs inform
planning and decision making and do not serve as a perfunctory check-
the-box exercise.
2. Implementation (Sec. 1502.2)
CEQ proposes minor modifications in Sec. 1502.2. First, CEQ
proposes to restore from the 1978 regulations the introductory
paragraph directing agencies to prepare EISs to meet the purpose
established in Sec. 1502.1. Upon reconsideration, CEQ is proposing to
restore this language that was removed as unnecessary by the 2020 rule
to provide clarity on the purpose of this section and improve
readability.
Next, in paragraph (b) CEQ proposes to replace the word
``significant'' with ``important'' and add reference to an
environmental assessment for clarity and consistency. In paragraph (c),
CEQ proposes to change ``analytic'' to ``analytical,'' and ``project
size'' to ``the scope and complexity of the action'' since this
provision is applicable to more than projects, and the length of an EIS
should be proportional to the scope and complexity of the action
analyzed in the document.
CEQ proposes to delete ``as interpreted in'' before ``the
regulations in this subchapter'' in paragraph (d), for the reasons
discussed above for making a similar change in section II.B.5. CEQ is
concerned that this phrase may inappropriately constrain agencies whose
agency NEPA procedures go beyond the CEQ regulations. Under the
proposal, EISs must state how alternatives and decisions will or will
not achieve the requirements of NEPA, the CEQ regulations, and other
environmental laws and policies. Finally, CEQ proposes to delete the
word ``final'' in paragraph (f) because there is no distinction between
a decision and final decision and for consistency with use of
``decision'' elsewhere in the regulations.
3. Scoping (Sec. 1502.4)
As discussed in section II.C.7 on Sec. 1501.9, ``Public and
governmental engagement,'' and Sec. 1501.11, ``Programmatic review and
tiering,'' CEQ proposes to revise Sec. 1502.4 by retitling it
``Scoping'' and moving provisions from the current 40 CFR 1501.9 to
this section. This proposal would move the requirements of scoping for
EISs to part 1502, which addresses the requirements of EISs, while
moving requirements for determining the appropriate level of NEPA
review applicable to all environmental reviews to Sec. 1501.3(b). CEQ
also proposes to revise the provisions moved from the current 40 CFR
1501.9 to align scoping with related changes made on public engagement
in Sec. 1501.9 and to add requirements focused on increasing
efficiency in the EIS scoping process.
CEQ has heard from multiple Federal agencies that there is
uncertainty over the differences between the scoping process required
for EISs and other public involvement or engagement requirements for
NEPA reviews more generally. By proposing the revisedSec. 1501.9 on
public and governmental engagement and moving the scoping provisions to
Sec. 1502.4, CEQ is emphasizing the importance of public engagement in
the NEPA process generally, clarifying what requirements are unique to
EISs, and clarifying what requirements and best practices agencies
should consider regardless of the level of NEPA review.
As noted in sections II.C.2 and II.C.9, with the revision of this
section to address scoping, CEQ proposes to move the existing
provisions of 40 CFR 1502.4, ``Major Federal actions requiring the
preparation of environmental impact statements'' to Sec. Sec. 1501.3
and 1501.11.
CEQ proposes to move 40 CFR 1501.9(a), outlining the general
purpose of scoping, to Sec. 1502.4(a) and proposes to change the words
``significant'' and ``non-significant'' to ``important'' and
``unimportant,'' respectively, to align with CEQ's proposed change to
only use the word ``significant'' when describing effects. CEQ intends
this to be a clarifying, non-substantive change. CEQ proposes to move
40 CFR 1501.9(c) on scoping outreach to paragraph (b) and add a
sentence requiring agencies to facilitate notification to persons and
agencies who may be interested or affected by an agency's proposed
action, consistent with the public engagement requirements in proposed
Sec. 1501.9. CEQ proposes to move 40 CFR 1501.9(b) on cooperating and
participating agencies to paragraph (c) and retitle it ``Inviting
participation'' to better reflect that the paragraph covers cooperating
and participating agencies as well as proponents of the action and
other likely affected or interested persons. CEQ notes that agencies
invited to serve as cooperating or participating agencies should
respond in a timely manner to facilitate the inclusion in the NOI any
information that these agencies may need as part of the scoping
process.
CEQ proposes to move 40 CFR 1501.9(f) and (f)(1) through (f)(5) on
additional scoping responsibilities to paragraph (d) and (d)(1) though
(d)(5), respectively. Within this list, CEQ proposes modifications to
paragraph (d)(1) to change ``significant'' to ``important'' to align
with changes in paragraph (a) and the use of ``significant'' throughout
the

[[Page 49946]]

regulations, which CEQ intends to be a clarifying, non-substantive
change.
CEQ proposes to move the requirements for an NOI from 40 CFR
1501.9(d) and (d)(1) through (d)(8) to Sec. 1502.4(e) and (e)(1)
through (e)(8), respectively. CEQ proposes to delete the reference to
40 CFR 1507.3(f)(3) because CEQ is proposing to remove that provision
from the regulations, as discussed in section II.I.2. CEQ proposes to
revise the language in paragraph (e)(7) for consistency with section
107(c) requiring the NOI to include a request for public comment on
alternatives or impacts and on relevant information, studies, or
analyses, delete the cross reference to Sec. 1502.17 because CEQ
proposes to broaden the language in Sec. 1502.17. Further, this cross
reference would no longer be necessary since CEQ proposes to remove the
exhaustion process in 40 CFR 1500.3, which relies, in part, on this
provision as the first step in that process. Additionally, the purpose
of scoping is to receive input from the public on the proposed action
and alternatives as well as other information relevant to consideration
of the proposed action. CEQ considers the language in this paragraph to
be redundant to the other required information in paragraph (e).
To this list of NOI requirements, CEQ proposes to add paragraph
(e)(9) to require the lead agency to list any cooperating and
participating agencies that have been identified at the time of the
NOI, as well as any information those agencies require to facilitate
their decisions or authorizations related to the EIS. CEQ proposes to
add this requirement to ensure that lead and cooperating agencies are
communicating about any unique statutory or regulatory requirements of
each agency so that the necessary information is included in the
initial NOI and does not require re-issuance of a second NOI by the
cooperating or participating agency. For example, the U.S. Forest
Service's regulations regarding administrative review require the
responsible official to disclose during the NEPA scoping process that a
proposed project or activity or proposed plan, plan amendment, or plan
revision is subject to one of its administrative review regulations. 36
CFR 218.7(a), 219.52(a). When the Forest Service acts as a cooperating
agency and the lead agency does not include the necessary information
in the NOI, the Forest Service then must issue its own NOI, which can
add additional time in the NEPA process.
CEQ also proposes to add paragraph (e)(10) to require that the NOI
include a unique identification number for tracking purposes that would
be carried forward to all other documents related to the action such as
the draft and final EISs and ROD. Identification numbers can help both
the public and agencies track the progress of an EIS for a specific
action as it moves through the NEPA process. CEQ has similarly proposed
to require agencies to use tracking numbers for environmental
assessments in Sec. 1501.5. See section II.C.4.
CEQ proposes to move and edit the second sentence regarding
supplemental notices in 40 CFR 1507.3(f)(3) to paragraph (f), ``Notices
of withdrawal or cancellation,'' to require that an agency publish in
the Federal Register a notice of withdrawal of the NOI or a
supplemental notice to inform the public that it is no longer
considering a proposed action and, therefore, discontinuing preparation
of an EIS. Agencies should publish such notices if they withdraw,
cancel, or otherwise cease the consideration of a proposed action
before completing a final EIS. CEQ proposes this requirement to codify
common agency practice and to increase transparency to the public. Such
a notice does not need to be lengthy, but should clearly reference the
original NOI, name of the project in the original notice, unique
identification number, and who to contact for additional
information.\70\ Finally, CEQ proposes to move 40 CFR 1501.9(g) on NOI
revisions to Sec. 1502.4(g), updating the paragraph references and
changing ``significant'' to ``important'' and ``impacts'' to
``effects,'' which CEQ intends to be a clarifying, non-substantive
edit. These edits would align the text with the proposed changes to
Sec. 1502.9(d)(1)(ii).
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\70\ Examples of NOI Withdrawals: Powell Ranger District; Utah;
Powell Travel Management Project; Withdrawal of Notice of Intent to
Prepare an Environmental Impact Statement, 87 FR 1109 (Jan. 10,
2022); Withdrawal of the Notice of Intent to Prepare an
Environmental Impact Statement for the Carpinteria Shoreline, a
Feasibility Study in the City of Carpinteria, Santa Barbara County,
CA, 86 FR 41028 (July 30, 2021).
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4. Timing (Sec. 1502.5)
CEQ proposes to make three clarifying amendments to Sec. 1502.5.
First, in paragraph (a), CEQ proposes to add ``e.g.,'' in the
parenthetical ``(go/no-go).'' CEQ proposes this amendment in response
to agency feedback during the development of the proposed rule to
clarify that the feasibility analysis and the ``go/no-go'' stage may
not occur at the same point in time and may differ depending on what is
included in the feasibility analysis and how the agency has structured
that analysis. This change would be consistent with the longstanding
practice that agencies have discretion to decide the appropriate time
to begin the NEPA analysis, but also that agencies should integrate the
NEPA process and other planning or authorization processes early. See
Sec. 1501.2(a).
Second, CEQ proposes to add ``complete'' in the first sentence of
paragraph (b) to clarify that agencies must begin preparing an EIS
after receiving a complete application, though agencies can elect to
begin the process earlier if they choose to do so. CEQ also proposes to
add ``together and'' in the second sentence of paragraph (b) to clarify
further that agencies should work ``together and with'' potential
applicants and other entities before receiving the application. Based
on CEQ's experience, early conversations and coordination among Federal
agencies, the applicant, and other interested entities can improve
efficiencies in the NEPA process and ultimately lead to better
environmental outcomes. Additionally, similar to the proposed change to
paragraph (a), this proposed change is consistent with other directions
in the regulations to integrate the NEPA process and other processes
early. See Sec. Sec. 1500.5(h), (i), 1501.2(a).
5. Page Limits (Sec. 1502.7)
CEQ proposes to amend Sec. 1502.7, to align the text with section
107(e) of NEPA, which sets page limits for EISs at 150 pages or 300
pages for proposals of extraordinary complexity, not including
citations or appendices. CEQ proposes to remove the requirement for the
senior agency official of the lead agency to approve longer documents
for consistency with the statute, which does not provide a mechanism to
approve longer documents.
CEQ strongly encourages agencies to prepare concise EISs that are
both comprehensive and understandable to the decision maker and the
public. Agencies should consider establishing within their procedures
mechanisms to do so that will be most effective for their programs and
activities. Such mechanisms might include placing technical analyses in
appendices and summarizing them in plain language in the EIS; making
use of visual aids, which are excluded from the definition of ``page,''
including sample images, maps, drawings, charts, graphs, and tables;
and using insets, colors, and highlights to create visually interesting
ways to draw attention to key information and conclusions. Agencies
should consider making EISs and technical appendices machine readable,
where possible and feasible, to facilitate data sharing and reuse in
future

[[Page 49947]]

analyses. CEQ invites comment on whether CEQ should modify the
regulations to appropriately encourage agencies to do so.
6. Writing; and Draft, Final, and Supplemental Statements (Sec. Sec.
1502.8 and 1502.9)
CEQ proposes minor edits to Sec. 1502.8 to make the text
consistent with modifications proposed in Sec. 1502.12 regarding
visual aids or charts.
CEQ proposes to delete ``as interpreted'' before ``in the
regulations in this subchapter'' in Sec. 1502.9(b), as section II.B.5
explains. CEQ also proposes to clarify that it is the agency preparing
a draft EIS that determines a draft statement requires supplementation
to inform its decision-making process.
In Sec. 1502.9(c), CEQ proposes to clarify that a final EIS should
``consider and respond'' to comments rather than just ``address'' them,
restoring language from the 1978 regulations and aligning the language
with text at Sec. 1503.4(a) regarding consideration of comments. The
2020 rule did not explain the change to ``address,'' \71\ and CEQ is
concerned that it could be read as weakening the standard for
responding to comments within Sec. 1502.9 and in Sec. 1503.4. In
paragraphs (d)(1)(ii) and (d)(4), CEQ proposes to replace the word
``significant'' with ``important'' and ``impacts'' with ``effects''
(except where ``impact'' is used as part of the term FONSI) for
consistency, as discussed in section II.A. In paragraph (d)(1)(ii), CEQ
also proposes to add ``substantial or'' before ``important new
circumstances or information,'' for consistency with its use section
108(1) of NEPA, which confirms that an agency may rely on the analysis
in an existing programmatic environmental document for five years
without having to supplement or reevaluate the analysis, provided no
substantial new circumstances or information exist. CEQ invites comment
on whether it should revise the language in paragraphs (d)(1)(i) and
(d)(1)(ii) to more specifically identify situations where
supplementation is required.
---------------------------------------------------------------------------

\71\ See 2020 Final Rule, supra note 36.
---------------------------------------------------------------------------

CEQ proposes to redesignate 40 CFR 1502.9(d)(4) as Sec. 1502.9(e),
title it ``Reevaluation,'' making this a standalone paragraph rather
than a paragraph of supplemental EISs to clarify that reevaluation is a
separate tool to document when supplementation is not required. CEQ
proposes to add in paragraph (e) that agencies may ``reevaluate'' an
EIS in part to determine ``that the underlying assumptions of the
analysis remains valid.'' That language is generally consistent with
section 108(2) of NEPA's rule that an agency may rely on programmatic
documents that are more than five years old if it reevaluates the
underlying analysis. However, while section 108(2) requires
reevaluation for programmatic documents more than five years old, CEQ
proposes to leave agencies discretion over whether and when to
reevaluate non-programmatic documents.
7. Recommended Format and Cover (Sec. Sec. 1502.10 and 1502.11)
CEQ proposes to revise the recommended format of an EIS. CEQ
proposes to include the summary of scoping information required by
Sec. 1502.17 and the list of preparers required by Sec. 1502.18 in
appendices, rather than the main body of the EIS. Therefore, CEQ
proposes to remove 40 CFR 1502.10(a)(7) through (9), and add a new
paragraph (a)(7) requiring appendices including the scoping summary and
list of preparers.
CEQ proposes to clarify in Sec. 1502.11(a) that the list of
``responsible agencies'' on an EIS cover are the lead, joint lead, and
any cooperating agencies. Consistent with the proposed change in Sec.
1502.4(e)(10), CEQ proposes to amend paragraph (g) to require the cover
to include the identification number identified in the NOI to make
clear the relationships of documents to one another and help the public
and decision makers easily track the progress of the EIS as it moves
through the NEPA process and to facilitate digitization and analysis.
CEQ proposes to strike the existing requirement in 40 CFR
1502.11(g) to include on the cover of the final EIS the estimated
preparation cost, a change that multiple Federal agencies requested
during development of this proposed rule. The 2020 rule stated that
including estimated total costs would be helpful for tracking such
costs, and that agencies could develop their own methodologies for
tracking EIS preparation costs in their agency NEPA procedures.\72\
However, Federal agency commenters stated that agencies typically do
not estimate total costs, that they are difficult to monitor especially
when project sponsors and contractors are bearing some of the cost,
that the methodology for estimating costs is inconsistent across
agencies, and that providing these estimates would be burdensome. At
least one agency commenter noted that agencies inconsistently
implemented a similar requirement in E.O. 13807, which undermined the
utility of the estimates, that tracking costs added a significant new
burden on staff, and that it was not clear whether tracking such costs
provided useful information for agencies or the public.
---------------------------------------------------------------------------

\72\ Id.
---------------------------------------------------------------------------

CEQ does not consider EIS costs to be germane to the purpose of an
EIS. Requiring that they be included on the cover could incorrectly
lead the public and decision makers to believe that those costs relate
to the proposed action addressed in the EIS. In general, the purpose of
the cover is to indicate the subject matter of the document and provide
the public with an agency point of contact, provide a short abstract of
the EIS, and indicate the date by which the public must submit
comments. Further, CEQ is concerned that requiring agencies to
calculate the costs may unnecessarily add time to the EIS preparation
process, particularly where aspects of an environmental review serve
multiple purposes and allocating costs to NEPA compliance and other
obligations may be complicated.
CEQ recognizes the value in gathering information on overall costs,
trends in costs, and approaches that can reduce costs, as this can
provide a full picture of how and whether agencies are effectively
using their resources, including to conduct environmental reviews. Each
agency should track and monitor these costs through their own
procedures and mechanisms and consult with CEQ about any lessons
learned to inform CEQ's ongoing evaluation of the efficiency and
effectiveness of the NEPA process. CEQ does not consider requiring in
the NEPA regulations that agencies publish costs on the cover of EISs
to be the appropriate mechanism to develop that information.
8. Summary (Sec. 1502.12)
CEQ proposes modifications to Sec. 1502.12 to clarify the purpose
of the summary and update what elements agencies should include in the
summary with a goal of creating summaries that are more useful to the
public and agencies. The summary serves to provide the public and
decision makers with a clear, high-level overview of the proposed
action and alternatives, the significant effects, and other critical
information in the EIS.
CEQ proposes a few changes to the second sentence in Sec. 1502.12.
First, CEQ proposes to replace the word ``stress'' with ``include'' in
describing the contents of the summary to clarify that an adequate and
accurate summary may include more than what is listed in Sec. 1502.12.
Next, CEQ proposes to clarify that the summary should summarize

[[Page 49948]]

disputed issues, any issues to be resolved, and key differences among
alternatives. CEQ proposes this change to provide the public and
decision makers with a more complete picture of the disputed issues
rather than focusing on ``areas of'' disputed issues and to facilitate
informed decision making and transparency. These edits are also
consistent with Sec. 1502.14(b), which requires agencies to discuss
alternatives in detail. Summarizing the key differences of alternatives
could enhance the public's and decision makers' understandings of the
relative trade-offs of the alternatives considered in detail.
CEQ also proposes to add language to the second sentence to require
that the summary identify the environmentally preferable alternative or
alternatives. Adding the environmentally preferable alternative to the
summary would enhance the public's and decision makers' understandings
of the alternative or alternatives that will best promote the national
environmental policy as expressed in section 101 of NEPA by providing a
summary of that alternative early on in the document.
CEQ proposes to add a fourth sentence to Sec. 1502.12 to make
summaries easier to read and understand by requiring agencies to write
the summary in plain language and encouraging use of visual aids and
charts. Existing regulatory text already requires agencies to write
environmental documents in plain language as a means to preparing
readable, concise, and informative documents. See, e.g., Sec. Sec.
1500.4 and 1502.8. Agencies commonly use visual aids, such as graphics,
maps, and pictures, throughout their environmental documents.
Finally, similar to other changes proposed regarding page limits,
CEQ proposes to allow agencies flexibility in the length of a summary.
In the existing text, summaries are limited to 15 pages. CEQ proposes
instead to encourage summaries to not exceed 15 pages. Although
summaries should be brief, CEQ acknowledges with this proposed change
that some proposed actions are more complex and may require additional
pages.
9. Purpose and Need; Alternatives Including the Proposed Action
(Sec. Sec. 1502.13 and 1502.14)
CEQ proposes to revise Sec. 1502.13 to align the language with the
text of section 107(d) of NEPA requiring an EIS to include statement
that briefly summarizes the underlying purpose and need for the
proposed agency action.
CEQ proposes revisions to Sec. 1502.14 to promote the rigorous
analysis and consideration of alternatives, consistent with the
longstanding principle that agencies take a ``hard look'' at their
actions. To that end, CEQ proposes to reintroduce much of the 1978 text
to Sec. 1502.14 that the 2020 rule removed and modernize it to ensure
agency decision makers are well-informed. Many commenters on the Phase
1 rule requested CEQ revise this provision to revert to the 1978
language or revise it to ensure agencies fully explore the reasonable
alternatives to their proposed actions.\73\
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\73\ See Phase 1 Response to Comments, supra note 48, at 162.
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