Rule2024-08792
National Environmental Policy Act Implementing Regulations Revisions Phase 2
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Published
May 1, 2024
Effective
July 1, 2024
Issuing agencies
Council on Environmental Quality
Abstract
The Council on Environmental Quality (CEQ) is finalizing its "Bipartisan Permitting Reform Implementation Rule" to revise its regulations for implementing the procedural provisions of the National Environmental Policy Act (NEPA), including the recent amendments to NEPA in the Fiscal Responsibility Act. CEQ is making these revisions to provide for an effective environmental review process; ensure full and fair public engagement; enhance efficiency and regulatory certainty; and promote sound Federal agency decision making that is grounded in science, including consideration of relevant environmental, climate change, and environmental justice effects. These changes are grounded in NEPA's statutory text and purpose, including making decisions informed by science; CEQ's extensive experience implementing NEPA; CEQ's perspective on how NEPA can best inform agency decision making; longstanding Federal agency experience and practice; and case law interpreting NEPA's requirements.
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[Federal Register Volume 89, Number 85 (Wednesday, May 1, 2024)]
[Rules and Regulations]
[Pages 35442-35577]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08792]
[[Page 35441]]
Vol. 89
Wednesday,
No. 85
May 1, 2024
Part IV
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; Final Rule
Federal Register / Vol. 89, No. 85 / Wednesday, May 1, 2024 / Rules
and Regulations
[[Page 35442]]
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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: Final rule.
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SUMMARY: The Council on Environmental Quality (CEQ) is finalizing its
``Bipartisan Permitting Reform Implementation Rule'' to revise its
regulations for implementing the procedural provisions of the National
Environmental Policy Act (NEPA), including the recent amendments to
NEPA in the Fiscal Responsibility Act. CEQ is making these revisions to
provide for an effective environmental review process; ensure full and
fair public engagement; enhance efficiency and regulatory certainty;
and promote sound Federal agency decision making that is grounded in
science, including consideration of relevant environmental, climate
change, and environmental justice effects. These changes are grounded
in NEPA's statutory text and purpose, including making decisions
informed by science; CEQ's extensive experience implementing NEPA;
CEQ's perspective on how NEPA can best inform agency decision making;
longstanding Federal agency experience and practice; and case law
interpreting NEPA's requirements.
DATES: The effective date is July 1, 2024.
ADDRESSES: CEQ established a docket for this action under docket number
CEQ-2023-0003. All documents in the docket are listed on
<a href="http://www.regulations.gov">www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Amy B. Coyle, Deputy General Counsel,
202-395-5750, <a href="/cdn-cgi/l/email-protection#70311d095e325e331f091c15301315015e151f005e171f06"><span class="__cf_email__" data-cfemail="e1a08c98cfa3cfa28e988d84a1828490cf848e91cf868e97">[email protected]</span></a>; Megan Healy, Deputy Director for
NEPA, 202-395-5750, <a href="/cdn-cgi/l/email-protection#4d00282a2c2363086305282c21340d2e283c6328223d632a223b"><span class="__cf_email__" data-cfemail="25684042444b0b600b6d4044495c654640540b404a550b424a53">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
This final rule completes a multiphase rulemaking process that CEQ
initiated in 2021 to revise its regulations to improve implementation
of the National Environmental Policy Act (NEPA). Throughout the
process, CEQ engaged with agency experts who implement NEPA on a daily
basis to develop revisions to the regulations to enhance the clarity of
the regulatory text, improve the efficiency and effectiveness of the
NEPA process, enhance regulatory certainty and address potential
sources of litigation risk, and promote consistency across the Federal
Government while recognizing the importance of providing agencies with
flexibility to tailor their NEPA processes to the specific statutes and
factual contexts in which they administer their programs and decisions.
CEQ also engaged with individuals affected by agency implementation of
NEPA, including representatives of Tribal Nations, environmental
justice experts, and representatives of various industries, to gather
input on how to improve the NEPA process. CEQ proposed and is now
finalizing this rule to reflect the input CEQ has received, the decades
of CEQ and agency experience implementing NEPA, and the recent
statutory amendments to NEPA. This final rule will help agencies more
successfully implement NEPA and facilitate a more efficient and
effective environmental review process.
A. NEPA Statute
To declare an ambitious and visionary national policy to promote
environmental protection for present and future generations, Congress
enacted NEPA in 1969 by a unanimous vote in the Senate and a nearly
unanimous vote in the House,\1\ and President Nixon signed it into law
on January 1, 1970. NEPA seeks to ``encourage productive and enjoyable
harmony'' between humans and the environment, recognizing the
``profound impact'' of human activity and the ``critical importance of
restoring and maintaining environmental quality'' to the overall
welfare of humankind. 42 U.S.C. 4321, 4331. Furthermore, NEPA seeks to
promote efforts that will prevent or eliminate damage to the
environment and biosphere and stimulate the health and welfare of
people, making it the continuing policy of the Federal Government to
use all practicable means and measures to create and maintain
conditions under which humans and nature can exist in productive
harmony and fulfill the social, economic, and other requirements of
present and future generations of Americans. 42 U.S.C. 4331(a). It also
recognizes that each person should have the opportunity to enjoy a
healthy environment and has a responsibility to contribute to the
preservation and enhancement of the environment. 42 U.S.C. 4331(c).
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\1\ See Linda Luther, Cong. Rsch. Serv., RL33152, The National
Environmental Policy Act: Background and Implementation, 4 (2011),
<a href="https://crsreports.congress.gov/product/details?prodcode=RL33152">https://crsreports.congress.gov/product/details?prodcode=RL33152</a>.
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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 statement[s],'' 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 based on high-quality information,
such as decisions on infrastructure and energy development.\2\ See,
e.g., Winter v. NRDC, 555 U.S. 7, 23 (2008) (``Part of the harm NEPA
attempts to prevent in requiring an EIS is that, without one, there may
be little if any information about prospective environmental harms and
potential mitigating measures.'').
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\2\ See CEQ, The National Environmental Policy Act: A Study of
Its Effectiveness after Twenty-five Years 17 (Jan. 1997) (noting
that study participants, which included academics, nonprofit
organizations, and businesses, ``applauded NEPA for opening the
federal process to public input and were convinced that this open
process has improved project design and implementation.'').
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In many respects, NEPA was a statute ahead of its time and remains
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; Laclede Gas Co. v. FERC, 873 F.2d 1494, 1499 (D.C. Cir.
1989) (``When so much depends upon the agency having a sure footing, it
is not too much for us to demand that it look first, and then leap if
it likes.''). It establishes a framework for agencies to ground
decisions in science, by
[[Page 35443]]
requiring professional and scientific integrity, 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., 42 U.S.C. 4332.
On June 3, 2023, President Biden signed into law the Fiscal
Responsibility Act of 2023, which included amendments to NEPA.
Specifically, it amended section 102(2)(C) and added sections 102(2)(D)
through (F) and sections 106 through 111. 42 U.S.C. 4332(2)(C)-(D),
4336-4336e. The amendments codify longstanding principles drawn from
CEQ's NEPA regulations, decades of agency practice, and case law
interpreting the NEPA regulations, and provide additional direction to
improve the efficiency and effectiveness of the NEPA process consistent
with NEPA's purposes. Section 102(2)(C) provides that EISs 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. 42 U.S.C. 4332(2)(C)-(F).
Section 106 adds provisions for determining the appropriate level
of NEPA review. It clarifies that an agency is required to prepare an
environmental document when proposing to take an action that would
constitute a final agency action, and codifies existing regulations and
case law 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. See Flint Ridge Development Co. v. Scenic Rivers Ass'n
of Oklahoma, 426 U.S. 776, 791 (1976) (holding that a 30-day statutory
deadline for a certain agency action created a ``clear and fundamental
conflict of statutory duty'' that excused the agency from NEPA
compliance with regard to that action); Dep't of Transp. v. Pub.
Citizen, 541 U.S. 752, 756 (2004) (concluding that NEPA did not require
an agency to evaluate the environmental effects of certain actions
because the agency lacked discretion over those actions). 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. 42 U.S.C. 4336, 4336c.
Section 107 addresses timely and unified Federal reviews, largely
codifying existing practice with a few adjustments, including
provisions clarifying lead, joint-lead, and cooperating agency
designations, 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. 42
U.S.C. 4336a. 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 adopt and
use another agency's CE. 42 U.S.C. 4336b, 4336c. Section 111 adds
statutory definitions. 42 U.S.C. 4336e. This final rule updates the
regulations to address how agencies should implement NEPA consistent
with these recent amendments.
Section 110 directs CEQ to conduct a study and submit a report to
Congress on the potential to use online and digital technologies to
improve NEPA processes. The development of this report is outside the
scope of this rulemaking and the final rule does not incorporate
provisions related to implementation of section 110.
B. The Council on Environmental Quality
NEPA codified the existence of the Council on Environmental Quality
(CEQ), which had been established 6 months earlier through E.O. 11472,
Establishing the Environmental Quality Council and the Citizen's
Advisory Committee on Environmental Quality, as a component of 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 engaged
with them on myriad of environmental policies, and overseen
implementation of a variety of other environmental policy initiatives
from the expeditious and thorough environmental review of
infrastructure projects \3\ to the sustainability of Federal
operations.\4\
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\3\ 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 18887 (Mar. 28, 2012); E.O. 13274, Environmental
Stewardship and Transportation Infrastructure Project Reviews, 67 FR
59449 (Sept. 23, 2002); see also Presidential Memorandum,
Modernizing Federal Infrastructure Review and Permitting
Regulations, Policies, and Procedures, 78 FR 30733 (May 22, 2013).
\4\ 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 15871 (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 (July 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,'' \5\ 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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\5\ 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
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effects.\6\ For example, in 1997, CEQ issued guidance documents on the
consideration of environmental justice in the NEPA context \7\ under
E.O. 12898, Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations,\8\ and on analysis of
cumulative effects in NEPA reviews.\9\ From 2010 to the present, CEQ
developed additional guidance on CEs, mitigation, programmatic reviews,
and consideration of greenhouse gas (GHG) emissions in NEPA.\10\ To
ensure coordinated environmental reviews, 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.\11\ Additionally,
CEQ has provided guidance to ensure efficient and effective
environmental reviews, particularly for infrastructure projects.\12\
Finally, CEQ has published resources for members of the public to
assist them in understanding the NEPA process and how they can
effectively engage in agency NEPA reviews to make sure their voices are
heard.\13\
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\6\ 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>.
\7\ 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>.
\8\ E.O. 12898, Federal Actions To Address Environmental Justice
in Minority Populations and Low-Income Populations, 59 FR 7629 (Feb.
16, 1994).
\9\ 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>.
\10\ 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, Final Guidance for
Federal Departments and Agencies on the Appropriate Use of
Mitigation and Monitoring and Clarifying the Appropriate Use of
Mitigated Findings of No Significant Impact, 76 FR 3843 (Jan. 21,
2011) (Mitigation Guidance), <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>.
\11\ 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-E.O.-11988-and-E.O.-11990-032178.pdf">https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Memorandum-Implementation-of-E.O.-11988-and-E.O.-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>.
\12\ See, e.g., CEQ, Final Guidance on Improving the Process for
Preparing Efficient and Timely Environmental Reviews Under the
National Environmental Policy Act, 77 FR 14473 (Mar. 12, 2012),
<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>.
\13\ CEQ, A Citizen's Guide to the National Environmental Policy
Act; Having Your Voice Heard (Jan. 2021), <a href="https://ceq.doe.gov/get-involved/citizens_guide_to_nepa.html">https://ceq.doe.gov/get-involved/citizens_guide_to_nepa.html</a>.
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In addition to guidance, CEQ engages frequently with Federal
agencies on their implementation of NEPA. 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. CEQ also provides feedback and advice
on how agencies may effectively implement NEPA through their
procedures. Additionally, CEQ provides recommendations on how agencies
can coordinate on or align their respective procedures to ensure
consistent implementation of NEPA across agencies. This role is
particularly important in situations where multiple agencies and
applicants are regularly involved, such as the review of infrastructure
projects.
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 interagency 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 certain types of effects, such as climate change-related effects and
effects on communities with environmental justice concerns.\14\
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\14\ See, e.g., Presidential Memorandum, 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, including efficient and effective environmental review and
permitting. 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
[[Page 35445]]
reducing GHG emissions across the economy; increasing resilience to
climate change-related effects; conserving land, water, and
biodiversity; transitioning to a clean-energy economy; and advancing
environmental justice, including delivering the benefits of Federal
investments to disadvantaged communities.\15\ CEQ is leading the
President's efforts to secure environmental justice consistent with
sections 219 through 223 of the E.O. For example, CEQ has developed the
Climate and Economic Justice Screening Tool,\16\ 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.\17\
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\15\ E.O. 14008, supra note 3.
\16\ CEQ, Explore the Map, Climate and Economic Justice
Screening Tool, <a href="https://screeningtool.geoplatform.gov/">https://screeningtool.geoplatform.gov/</a>.
\17\ E.O. 14008, supra note 3, sec. 223.
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Section 205 of the E.O. also charged CEQ with developing the
Federal Sustainability Plan to achieve a carbon pollution-free
electricity sector and clean and zero-emission vehicle fleets.
Thereafter, CEQ issued the Federal Sustainability Plan,\18\ which
accompanied E.O. 14057, Catalyzing Clean Energy Industries and Jobs
Through Federal Sustainability.\19\ CEQ is leading the efforts with its
agency partners to implement E.O. 14057's ambitious goals, which
include reducing Federal agency GHG emissions by 65 percent and
improving the climate resilience of Federal infrastructure and
operations. CEQ also is collaborating with the Departments of the
Interior, Agriculture, and Commerce on the implementation of the
America the Beautiful Initiative, which was issued to achieve the goal
of conserving at least 30 percent of our lands and waters by 2030 as
set forth in E.O. 14008.\20\ 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.\21\
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\18\ CEQ, Federal Sustainability Plan (Dec. 2021), <a href="https://www.sustainability.gov/federalsustainabilityplan/">https://www.sustainability.gov/federalsustainabilityplan/</a>.
\19\ E.O. 14057, supra note 4.
\20\ E.O. 14008, supra note 3.
\21\ 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.\22\ The E.O.
charges each agency to make achieving environmental justice part of its
mission consistent with the agency's statutory authority,\23\ and
requires each agency to submit to the Chair of CEQ and make publicly
available an Environmental Justice Strategic Plan setting forth the
agency's goals and plans for advancing environmental justice.\24\
Further, section 8 of the E.O. establishes a White House Office of
Environmental Justice within CEQ.
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\22\ 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. 14091, and E.O. 14008, and supplements the
foundational efforts of E.O. 12898 to deliver environmental justice
to communities across America. See E.O. 13985, Advancing Racial
Equity and Support for Underserved Communities Through the Federal
Government, 86 FR 7009 (Jan. 25, 2021); E.O. 14091, Further
Advancing Racial Equity and Support for Underserved Communities
Through the Federal Government, 88 FR 10825 (Feb. 22, 2023); E.O.
14008, supra note 3; and E.O. 12898, supra note 8.
\23\ E.O. 14096, supra note 22, sec. 3.
\24\ Id. at sec. 4.
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Additionally, CEQ plays a significant role in improving interagency
coordination and providing for efficient environmental reviews and
permitting under the Biden-Harris Permitting Action Plan.\25\ The
Action Plan outlines the Administration's strategy for ensuring that
Federal environmental reviews and permitting processes are effective,
efficient, and transparent, guided by the best available science to
promote positive environmental and community outcomes, and shaped by
early and meaningful public engagement. The Action Plan contains five
key elements that build on strengthened Federal approaches to
environmental reviews and permitting: (1) accelerating permitting
through early cross-agency coordination to appropriately scope reviews,
reduce bottlenecks, and use the expertise of sector-specific teams; (2)
establishing clear timeline goals and tracking key project information
to improve transparency and accountability, providing increased
certainty for project sponsors and the public; (3) engaging in early
and meaningful outreach and communication with Tribal Nations, States,
Territories, and local communities; (4) improving agency
responsiveness, technical assistance, and support to navigate the
environmental review and permitting process effectively and
efficiently; and (5) adequately resourcing agencies and using the
environmental review process to improve environmental and community
outcomes.
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\25\ The Biden-Harris Permitting Action Plan to Rebuild
America's Infrastructure, Accelerate the Clean Energy Transition,
Revitalize Communities, and Create Jobs (May 22, 2022), <a href="https://www.whitehouse.gov/wp-content/uploads/2022/05/Biden-Harris-Permitting-Action-Plan.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/05/Biden-Harris-Permitting-Action-Plan.pdf</a>.
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Finally, CEQ is staffed with experts with decades of NEPA
experience as well as other environmental law and policy experience. As
part of CEQ's broader environmental policy role, CEQ advises the
President on environmental issues facing the nation, and on the design
and implementation of the President's environmental initiatives. In
that role, CEQ collaborates with agencies and provides feedback on
their implementation of the numerous environmental statutes and
directives. 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.\26\ In response, CEQ in April 1970 issued interim
guidelines, which addressed the provisions of section 102(2)(C) of the
Act regarding EIS requirements.\27\ CEQ revised the guidelines in 1971
and 1973 to address public involvement and introduce the concepts of
EAs and draft and final EISs.\28\
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\26\ E.O. 11514, Protection and Enhancement of Environmental
Quality, 35 FR 4247 (Mar. 7, 1970), sec. 3(h).
\27\ See CEQ, Statements on Proposed Federal Actions Affecting
the Environment, 35 FR 7390 (May 12, 1970) (interim guidelines).
\28\ CEQ, Statements on Proposed Federal Actions Affecting the
Environment, 36 FR 7724 (Apr. 23, 1971) (final guidelines); CEQ,
Preparation of Environmental Impact Statements, 38 FR 10856 (May 2,
1973) (proposed revisions to the guidelines); CEQ, 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
[[Page 35446]]
of section 102(2)(C) of NEPA and requiring that Federal agencies comply
with those regulations.\29\ CEQ promulgated its NEPA regulations in
1978.\30\ 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 that Congress established in NEPA.
The regulations further required agency-level implementation, directing
Federal agencies to issue and periodically update 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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\29\ E.O. 11991, Relating to Protection and Enhancement of
Environmental Quality, 42 FR 26967 (May 25, 1977).
\30\ CEQ, Implementation of Procedural Provisions; Final
Regulations, 43 FR 55978 (Nov. 29, 1978).
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CEQ made typographical amendments to the 1978 implementing
regulations in 1979 \31\ and amended one provision in 1986 (CEQ refers
to these regulations, as amended, as the ``1978 regulations'' in this
preamble).\32\ 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. See, e.g.,
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 355 (1989)
(``CEQ regulations are entitled to substantial deference.''); Wild Va.
v. Council on Env't Quality, 56 F.4th 281, 288 (4th Cir. 2022) (noting
that prior to the 2020 rule, CEQ's NEPA regulations ``had remained
virtually unchanged since 1978.'')
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\31\ CEQ, Implementation of Procedural Provisions; Corrections,
44 FR 873 (Jan. 3, 1979).
\32\ CEQ, 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,\33\ which directed CEQ
to establish and lead an interagency working group to identify and
propose changes to the NEPA regulations.\34\ In response, CEQ issued an
advance notice of proposed rulemaking (ANPRM) on June 20, 2018,\35\ and
a notice of proposed rulemaking (NPRM) on January 10, 2020, proposing
broad revisions to the 1978 regulations.\36\ A wide range of
stakeholders submitted more than 12,500 comments on the ANPRM \37\ and
1.1 million comments on the proposed rule,\38\ 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.\39\
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\33\ E.O. 13807, supra note 14.
\34\ Id. at sec. 5(e)(iii).
\35\ CEQ, Update to the Regulations for Implementing the
Procedural Provisions of the National Environmental Policy Act, 83
FR 28591 (June 20, 2018).
\36\ CEQ, Update to the Regulations Implementing the Procedural
Provisions of the National Environmental Policy Act, 85 FR 1684
(Jan. 10, 2020).
\37\ See Docket No. CEQ-2018-0001, Update to the Regulations for
Implementing the Procedural Provisions of the National Environmental
Policy Act, <a href="https://www.regulations.gov/document/CEQ-2018-0001-0001">https://www.regulations.gov/document/CEQ-2018-0001-0001</a>.
\38\ See Docket No. CEQ-2019-0003, Update to the Regulations for
Implementing the Procedural Provisions of the National Environmental
Policy Act, <a href="https://www.regulations.gov/document/CEQ-2019-0003-0001">https://www.regulations.gov/document/CEQ-2019-0003-0001</a>.
\39\ CEQ, 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 rule, five
lawsuits were filed challenging the 2020 rule.\40\ These cases
challenge the 2020 rule on a variety of grounds, including under the
Administrative Procedure Act (APA), NEPA, and the Endangered Species
Act, and contend that the rule exceeded CEQ's authority and that the
related rulemaking process was procedurally and substantively
defective. 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.\41\ The Fourth Circuit affirmed that dismissal on December 22,
2022.\42\
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\40\ 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 Clinch
Coalition v. U.S. Forest Serv., No. 2:21cv00003 (W.D. Va. 2021),
plaintiffs challenged the U.S. Forest Service's NEPA implementing
procedures, which established new CEs, and, relatedly, the 2020
rule's provisions on CEs.
\41\ Wild Va. v. Council on Env't Quality, 544 F. Supp. 3d 620
(W.D. Va. 2021).
\42\ Wild Va. v. Council on Env't Quality, 56 F.4th 281 (4th
Cir. 2022).
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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,\43\ 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.\44\ 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.\45\ The Executive Order also revokes E.O. 13807 and directs
agencies to take steps to rescind any rules or regulations implementing
it.\46\ 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.\47\
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\43\ E.O. 13990, Protecting Public Health and the Environment
and Restoring Science To Tackle the Climate Crisis, 86 FR 7037 (Jan.
25, 2021).
\44\ Id. at sec. 1.
\45\ Id. at sec. 2.
\46\ Id. at sec. 7.
\47\ 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>.
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[[Page 35447]]
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.
On June 29, 2021, CEQ issued an interim final rule to amend the
requirement in 40 CFR 1507.3(b) (2020) \48\ that agencies propose
changes to existing agency-specific NEPA procedures to make those
procedures consistent with the 2020 regulations by September 14,
2021.\49\ 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 were undergoing extensive review and
would likely change in the near future.
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\48\ In the preamble, CEQ uses the section symbol (Sec. ) to
refer to the proposed or final regulations; 40 CFR 150X.X (2020) or
(2022) to refer to the current CEQ regulations as set forth in 40
CFR parts 1500-1508, which this Final Rule amends; and 40 CFR 150X.X
(2019) to refer to the CEQ regulations as they existed prior to the
2020 rule.
\49\ CEQ, Deadline for Agencies to Propose Updates to National
Environmental Policy Act Procedures, 86 FR 34154 (June 29, 2021).
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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, which CEQ finalized on April 20,
2022.\50\ First, the Phase 1 rule revised 40 CFR 1502.13 (2020), with a
conforming edit to 40 CFR 1508.1(z) (2020), 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. Second, CEQ removed language in 40 CFR 1507.3
(2020) 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 revised the definition of ``effects'' in 40
CFR 1508.1(g) (2020) to restore the substance of the definitions of
``effects'' and ``cumulative impacts'' contained in the 1978
regulations.
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\50\ CEQ, National Environmental Policy Act Implementing
Regulations Revisions, 86 FR 55757 (Oct. 7, 2021) (Phase 1 proposed
rule); CEQ, National Environmental Policy Act Implementing
Regulations Revisions, 87 FR 23453 (Apr. 20, 2022) (Phase 1 Final
Rule).
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On July 31, 2023, CEQ published the Phase 2 notice of proposed
rulemaking (proposed rule or NPRM), initiating a broader rulemaking to
revise, update, and modernize the NEPA implementing regulations.\51\
Informed by CEQ's extensive experience implementing NEPA, public and
agency input, and Congress's amendments to NEPA, CEQ proposed further
revisions to improve the efficiency and effectiveness of environmental
reviews; ensure that environmental reviews 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;
enable full and fair public participation and a process that informs
the public about the potential environmental effects of agency actions;
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.
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\51\ CEQ, National Environmental Policy Act Implementing
Regulations Revision Phase 2, 88 FR 49924 (July 31, 2023) (Phase 2
proposed rule).
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Publication of the proposed rule initiated a 60-day public comment
period that concluded on September 29, 2023. CEQ held four virtual
public meetings on the proposed rule on August 26, 2023; August 30,
2023; September 11, 2023; and September 21, 2023, as well as two Tribal
consultations on September 6, 2023, and September 12, 2023. CEQ
received approximately 147,963 written comments and 86 oral comments in
response to the proposed rule and considered these 148,049 comments in
the development of this final rule. A majority of the comments
(approximately 147,082) were campaign form letters sent in response to
an organized initiative and are identical or very similar in form and
content. CEQ received approximately 920 unique public comments, of
which 540 were substantive comments on a variety of aspects of the
rulemaking approach and contents of the proposed rule.
The majority of the unique comments expressed overall or
conditional support for the proposed rule. CEQ provides a summary of
the comments received on the proposed rule and responses to those
comment summaries in the document, ``National Environmental Policy Act
Implementing Regulations Revision Phase 2 Response to Comments'' (Phase
2 Response to Comments). Additionally, CEQ provides brief comment
summaries and responses for many of the substantive comments it
received as part of the summary and rationale for the final rule in
section II.
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 and is staffed by NEPA practitioners who have
decades of experience implementing NEPA at agencies across the Federal
Government as well as from outside the government, including State
governments and applicants whose activities require Federal action. CEQ
collaborates daily with Federal agencies on specific NEPA reviews,
provides government-wide guidance on NEPA implementation, including the
recent NEPA amendments, consults with agencies on the development of
agency-specific NEPA implementing procedures and determines whether the
procedures conform with NEPA and the CEQ regulations, and advises the
President on a vast array of environmental issues. This experience also
enables CEQ to contextualize 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 and Rationale for the Final Rule
This section summarizes the changes CEQ proposed to its NEPA
implementing regulations in the notice of proposed rulemaking (NPRM or
proposed rule), the public comments CEQ received on those proposed
changes, a description of the revisions made through this final rule,
and the rationale for those changes. CEQ's revisions fall into five
general categories. First, CEQ makes revisions to the regulations to
implement the amendments to NEPA made by the Fiscal Responsibility Act.
Second, CEQ amends the regulations to enhance consistency and clarity.
Third, CEQ revises the regulations based on decades of CEQ and agency
experience implementing and complying with NEPA to improve the
efficiency and
[[Page 35448]]
effectiveness of the environmental review process, foster science-based
decision making, better effectuate NEPA's statutory purposes, and
reflect developments in case law. Fourth, CEQ reverts to and revises
for clarity certain language from the 1978 regulations, which were in
effect for more than 40 years before the 2020 rule revised them, where
CEQ determined the 1978 language provides clearer and more effective
and predictable direction or guidance to implement NEPA. Fifth, CEQ
removes certain provisions added by the 2020 rule that CEQ considers
imprudent or legally unsettled, or that create uncertainty or ambiguity
that could reduce efficiency or increase the risk of litigation.
Outside of those revisions, CEQ retains many of the changes made in the
2020 rulemaking, including changes that codified longstanding practice
or guidance or enhanced the efficiency and effectiveness of the NEPA
process. 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.
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 final rule provides a high-level summary of the
important issues raised in those public comments. Where CEQ has
retained provisions as finalized in the Phase 1 rulemaking, CEQ
incorporates by reference the discussion of those provisions in the
Phase 1 proposed and final rule, as well as the Phase 1 Response to
Comments.\52\ CEQ is revising and republishing the entirety of the NEPA
regulations, Subpart A of Chapter V, Title 40 of the Code of Federal
Regulations.\53\
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\52\ CEQ, Phase 1 proposed rule, supra note 50; CEQ, Phase 1
Final Rule, supra note 50; 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>.
\53\ Consistent with guidance from the Office of Federal
Register, republishing the provisions that are unchanged in this
rulemaking provides context for the revisions. See Office of the
Federal Register, Amendatory Instruction: Revise and Republish,
<a href="https://www.archives.gov/federal-register/write/ddh/revise-republish">https://www.archives.gov/federal-register/write/ddh/revise-republish</a>.
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A. Changes Throughout Parts 1500-1508
In the NPRM, CEQ proposed several revisions throughout parts 1500
through 1508 to provide consistency, improve clarity, and correct
grammatical errors. CEQ proposed clarifying edits because unclear
language can create confusion and undermine consistent implementation,
thereby improving the efficiency of the NEPA process and reducing the
risk of litigation.
For these reasons, CEQ proposed to change the word ``impact'' to
``effect'' throughout the regulations where this term is used as a noun
because these two words are synonymous, with three exceptions. The
regulations would continue to refer to a finding of no significant
impact (FONSI) because that term has been widely used and recognized
and making the substitution of effect for impact in that instance could
create confusion rather than add clarity, and environmental impact
statement because this term is used in the NEPA statute. Third, CEQ
proposed to use ``cumulative impact'' in the definition of
``environmental justice'' as discussed further in section II.J.9. CEQ
makes these change in the final rule as proposed.
Also, to enhance clarity, CEQ proposed to use the word
``significant'' only to modify the term ``effects'' throughout the
regulations. Accordingly, where ``significant'' modifies a word other
than ``effects,'' CEQ proposed to replace ``significant'' with another
synonymous adjective, typically ``important'' or ``substantial,'' which
have also been used in varying provisions throughout the CEQ
regulations since 1978. CEQ proposed this change to avoid confusion
about what ``significant'' means in these other contexts without
substantively changing any of the provisions so revised.
CEQ proposed this change based on 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.\54\ CEQ also
proposed the change to align with the definition of ``significant
effects'' in Sec. 1508.1(mm), as discussed in section II.J.24.
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\54\ CEQ, Phase 1 Response to Comments, supra note 52, at 120-
21.
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One commenter supported the use of ``important'' in place of
``significant,'' asserting that the change will reduce unnecessary
confusion and delays because use of consistent terminology will
eliminate ambiguity and increase consistency and will speed up future
reviews because all parties will understand what is meant by a term. A
few other commenters supported the changes in terms generally, saying
that the changes help make the NEPA regulations easier to understand.
A separate commenter supported the use of the term ``important''
arguing that it would broaden the scope of what agencies should
consider under NEPA. The commenter described significance, in the
context of NEPA, as a high bar, and agreed with CEQ that important
issues should also be subject to thorough consideration in
environmental reviews.
Multiple commenters disagreed with the proposed use of
``important'' in place of ``significant'' or ``unimportant'' in place
of ``insignificant.'' These commenters expressed concern about the
interpretation of ``important'' without a definition or additional
guidance, and that the use of these adjectives could cause confusion
and increase litigation risk. A few commenters requested that the final
rule replace ``issues'' with ``effects'' and change ``important
issues'' to ``significant effects'' asserting that the phrase
``important issues'' is subjective. One commenter stated that while CEQ
described the changes as minor, these terms are well understood by
courts and agencies and as such changing them will result in numerous
updates of related procedures, regulations, and guidance documents that
use these terms just for editorial purposes.
Another commenter expressed concern that replacing the word
``significant'' with another adjective is unnecessary, and points to
CEQ's own description in the NPRM that it does not intend to
``substantively change the meaning of the provisions'' and suggesting
the replacement words will be synonymous. The commenter further
asserted that it will be difficult to ensure consistency of
implementation if CEQ continually changes language that has no
substantive effect on the regulations.
A separate commenter asserted that while they appreciated the
return of the definition of ``significance,'' the use of the new term
``important'' is confusing. The commenter further stated that with the
heightened focus on environmental justice, human health, and social or
societal effects, it is unclear what is
[[Page 35449]]
considered important and who determines whether something is important.
CEQ implements this change from ``significant'' to one of its
synonyms when it is not modifying ``effect'' in the final rule. The
NEPA regulations have long required agencies to focus on the
``important'' issues, see 40 CFR 1500.1 (2019), and agencies have
decades of experience doing just that--CEQ disagrees that use of this
term in other provisions as a substitute for ``significant issues''
alters the scope of the issues to which those provisions refer. CEQ
declines to add a definition for this term because its plain meaning is
sufficient and notes that the phrase ``significant issues'' was not
defined in the 1978 regulations.\55\ CEQ's intent is that agencies
focus their NEPA documents on the issues that are key for the public to
comment on and the agency to take into account in the decision-making
process, and only briefly explain why other, unimportant issues are not
discussed. As CEQ indicated in the proposed rule, it does not intend
the substitution of ``important'' and ``substantial'' for
``significant'' to substantively change the meaning of the provisions,
but rather to bring greater consistency and clarity to agencies in
implementing these provisions by eliminating a potential ambiguity that
these phrases incorporate the definition of ``significant effects'';
for example, ensuring that the phrase ``significant actions'' is not
mistakenly understood to mean actions that have significant effects,
which was not the meaning of the phrase in the regulations. CEQ
discusses comments on specific uses of the terms in specific sections
of the rule and in the Phase 2 Response to Comments.
---------------------------------------------------------------------------
\55\ See, e.g., Significant, Merriam-Webster, <a href="https://www.merriam-webster.com/dictionary/significant">https://www.merriam-webster.com/dictionary/significant</a> (defining
``significant'' as ``having or likely to have influence or effect:
IMPORTANT'').
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For clarity, CEQ proposed 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). CEQ did not receive comments on this proposal and makes
these changes throughout the rule as proposed.
CEQ also proposed to make non-substantive grammatical corrections
or consistency edits throughout the regulations where CEQ considered
the changes to improve readability. Finally, CEQ proposed to update the
authorities for each part, update the references to NEPA as amended by
the Fiscal Responsibility Act, and fix internal cross references to
other sections of the regulations throughout to follow the correct
Federal Register format. CEQ makes these changes in the final rule.
B. Revisions To Update Part 1500, Purpose and Policy
CEQ proposed substantive revisions to all sections in part 1500.
These revisions include reinstating Sec. 1500.2, ``Policy,'' as its
own section separate from Sec. 1500.1, ``Purpose'' consistent with the
approach taken in the 1978 regulations. Some commenters recommended
that CEQ title Sec. 1500.1 ``Purpose and Policy'' and title Sec.
1500.2 ``Additional Policy'' because, in their view, Sec. 1500.2
reflects CEQ's policy judgments rather than the commands of the NEPA
statute.
CEQ declines to make this change. The purpose of Sec. Sec. 1500.1
and 1500.2 is to place the regulations into their broader context by
restating the policies of the Act within the regulations, which will
improve readability by avoiding the need for cross references to
material outside the text of the regulations. Section 1500.2 reflects
CEQ's interpretation of the policies of the Act, rather than CEQ's own
policy priorities.
1. Purpose (Sec. 1500.1)
In Sec. 1500.1, CEQ proposed to restore much of the language from
the 1978 regulations with revisions to further incorporate the policies
Congress established in the NEPA statute. CEQ proposed these changes to
restore text regarding NEPA's purpose and goals, placing the
regulations into their broader context and to restate the policies of
the Act within the regulations. Some commenters expressed general
support for proposed Sec. 1500.1 stating that the revisions
appropriately frame NEPA's purposes. CEQ revises Sec. 1500.1 as
discussed in this section to 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 informed and sound government decisions.
First, CEQ proposed to revise paragraph (a) of 40 CFR 1500.1 (2020)
by subdividing it into paragraphs (a), (a)(1), and (a)(2). In paragraph
(a), CEQ proposed to revise the first sentence to restore language from
the 1978 regulations stating that NEPA is ``the basic national charter
for protection of the environment'' and add a new sentence stating that
NEPA ``establishes policy, sets goals'' and ``provides direction'' for
carrying out the principles and policies Congress established in
sections 101 and 102 of NEPA. 42 U.S.C. 4331, 4332. CEQ proposed to
remove language from the first sentence of paragraph (a) describing
NEPA as a purely procedural statute because CEQ considers that language
to be an inappropriately narrow view of NEPA's purpose and ignores the
fact that Congress established the NEPA process for the purpose of
promoting informed decision making and improved environmental outcomes.
Some commenters objected to the proposed use of the phrase ``basic
national charter for protection of the environment'' in paragraph (a),
asserting it misrepresents NEPA's purpose as a procedural statute.
Other commenters opposed the proposed changes to remove the language
clarifying that NEPA is a procedural statute, asserting the proposed
changes could give the impression that CEQ seeks to expand NEPA beyond
its original mandate.
Another commenter objected to the restoration of the language in
paragraph (a) asserting that describing NEPA as the ``basic national
charter for the protection of the environment'' displaces the U.S.
Constitution from the role of ``America's basic national charter for
protection.'' CEQ declines to remove this language, which accurately
describes NEPA's purpose, was included in the 1978 regulations, and
remained in place until the 2020 rule. CEQ disagrees that describing
NEPA as the basic national charter for the protection of the
environment denigrates the role of the U.S. Constitution. Congress
enacted NEPA exercising its Constitutional authority to declare a
national environmental policy and describing NEPA as ``America's basic
national charter for the protection of the environment'' does not imply
that NEPA overshadows the U.S. Constitution. CEQ also notes that
several courts have quoted this language approvingly. See, e.g., Ctr.
for Biological Diversity v. Bernhardt, 982 F.3d 723, 734 (9th Cir.
2020); Habitat Educ. Ctr., Inc. v. United States Forest Serv., 673 F.3d
518, 533 (7th Cir. 2012).
In the final rule, CEQ revises paragraph (a) as proposed, but
removes the parenthetical references to sections 101 and 102 as
unnecessary and incomplete because other sections of NEPA also provide
direction for carrying out NEPA's policy, which are addressed
throughout the regulations. While CEQ agrees that the NEPA analysis
required by section 102(2)(C) and these regulations does not dictate a
particular outcome, Congress did not establish NEPA to create procedure
for procedure's sake, but rather, to provide for better informed
Federal decision making and improved environmental
[[Page 35450]]
outcomes. These goals are not fulfilled if the NEPA analysis is treated
merely as a check-the-box exercise. 42 U.S.C. 4332(2)(C). CEQ does not
consider it necessary to repeatedly emphasize in the regulations the
procedural nature of the statutory mechanism Congress chose to advance
the purposes of NEPA as described in section 2 and the policy
directions established in section 101 of NEPA. 42 U.S.C. 4321, 4331.
Doing so 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 CEQ's implementing regulations, and agencies
should carry out NEPA's procedural requirements in a manner faithful to
the purposes of the statute.
Second, in Sec. 1500.1(a)(1), CEQ proposed to retain the second
sentence of 40 CFR 1500.1(a) (2020) summarizing section 101(a) of NEPA,
change ``man'' to ``people'' to remove gendered language, and delete
``of Americans'' after ``present and future generations.'' 42 U.S.C.
4331(a). CEQ proposed to add a second sentence summarizing section
101(b) to clarify that agencies should advance the purposes in section
101(b) through their NEPA reviews. 42 U.S.C. 4331(b). CEQ proposed to
include this language in Sec. 1500.1(a)(1) to 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).
Some commenters objected to the proposal to remove ``of Americans''
from paragraph (a)(1) contending that the removal would be inconsistent
with the statute. After considering these comments, CEQ has determined
not to make this change and leave the phrase ``of Americans'' at the
end of the first sentence of paragraph (a)(1), because this sentence is
specifically describing section 101(a) of NEPA, which includes the
phrase. However, CEQ notes that this text in section 101(a) and
paragraph (a)(1) does not limit NEPA's concerns solely to Americans or
the United States. For example, other language in section 101 reflects
NEPA's broader purpose to ``create and maintain conditions under which
[humans] and nature can exist in productive harmony'' without
qualification. 42 U.S.C. 4331(a). As discussed further in section
II.J.13, CEQ removes ``of Americans'' from the definition of ``human
environment'' in Sec. 1508.1(r) for consistency with the statute's
overall broader purpose.
A commenter recommended CEQ add a dash after ``national policy'' in
the second sentence for consistency with the statute to ensure that all
six of the goals are modified by the phrase ``consistent with
considerations of national policy.'' CEQ agrees that the beginning of
the sentence, including the phrase ``consistent with other essential
considerations of national policy'' modifies all of the listed items
that follow and, in the final rule, revises the sentence to subdivide
it into paragraphs (a)(1)(i) through (vi) to make this clarification.
Lastly in paragraph (a)(1), in the final rule, CEQ changes ``man'' to
``humans'' rather than the proposed ``people'' to remove the gendered
language while also providing consistency with the term ``human'' and
``human environment'' used in the NEPA statute and throughout the
regulations.
Third, CEQ proposed to begin Sec. 1500.1(a)(2) with the third
sentence of 40 CFR 1500.1(a) (2020), modify it, and add two new
sentences to generally restore 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.
Specifically, CEQ proposed to revise the first sentence to state that
section 102(2) of NEPA establishes the procedural requirements to carry
out the policies ``and responsibilities established'' in section 101,
and contains `` `action-forcing' procedural provisions to ensure
Federal agencies implement the letter and spirit of the Act.'' 42
U.S.C. 4332(2), 42 U.S.C. 4331. CEQ proposed to add a new second
sentence stating the purpose of the regulations is to set forth what
agencies must and should do to comply with the procedures and achieve
the goals of the Act. In the third new sentence, CEQ proposed to
restore the language from the 1978 regulations that the President,
Federal agencies, and the courts share responsibility for enforcing the
Act to achieve the policy goals of section 101. 42 U.S.C. 4331.
Fourth, CEQ proposed to strike the fourth and fifth sentences of 40
CFR 1500.1(a) (2020), added by the 2020 rule, which state 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 the
NEPA process does not mandate that agencies reach specific decisions,
CEQ proposed to remove this language because CEQ considered this
language to unduly minimize Congress's understanding that procedures
ensuring that agencies analyze, consider, and disclose environmental
effects will lead to better substantive outcomes. CEQ also considered
this language inconsistent with Congress's statements of policy in the
NEPA statute.
Some commenters objected specifically to the proposed addition of
the phrase ``action-forcing,'' and others contended that the proposed
rule would revise the regulation not merely to force action, but to
require specific outcomes. Another commenter asserted that proposed
paragraph (a)(2) goes too far in separating policy goals from the
procedures passed by Congress to achieve them.
CEQ finalizes paragraph (a)(2) as proposed and removes the language
that describes NEPA as a purely procedural statute because CEQ
considers the language to reflect an inappropriately narrow view of
NEPA's purpose that minimizes Congress's broader goals in enacting the
statute, as specified in sections 2 and 101 of NEPA. 42 U.S.C. 4321,
4331. While NEPA does not mandate particular results in specific
decision-making processes, Congress intended the procedures required
under the Act to result in more informed decisions, with the goal that
information about the environmental effects of those decision would
facilitate better environmental outcomes. See, e.g., Andrus v. Sierra
Club, 442 U.S. 347, 350-51 (1979) (``If environmental concerns are not
interwoven into the fabric of agency planning, the action-forcing
characteristics of [NEPA] would be lost.'').
Fifth, CEQ proposed to strike the first two sentences of 40 CFR
1500.1(b) (2020), which the 2020 rule added, because they provide an
unnecessarily narrow view of the purposes of NEPA and its implementing
regulations. CEQ proposed to revise the third sentence and add two new
sentences to restore in paragraph (b) 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 such identification and consideration facilitates
comprehensive analysis of alternatives and timely and efficient
decision making, and CEQ considers it important to emphasize these
considerations in this section. CEQ also proposed the changes to
emphasize that the environmental information that agencies
[[Page 35451]]
use in the NEPA process should be high-quality, science-based, and
accessible.
Multiple commenters supported the proposed provisions of Sec.
1500.1(b). One commenter supported the provision for agencies to
``concentrate on the issues that are truly relevant to the action in
question, rather than amassing needless detail,'' and to use ``high
quality, science-based, and accessible'' information. One commenter
recommended that CEQ revise ``Most important'' to ``Most importantly''
in Sec. 1500.1(b). CEQ agrees that this change would improve the
readability of the sentence and makes this clarifying edit in the final
rule.
Other commenters opposed the change to proposed paragraph (b),
asserting it would delete important regulatory text. The commenters
asserted that by striking the language, CEQ has turned the section from
one that says follow the rules into one that adds to the rules. Upon
further consideration, CEQ has determined not to finalize the proposed
revisions to the beginning of paragraph (b) because the text from the
1978 regulations could be construed as a direction to agencies rather
than a statement about the purpose of the CEQ regulations.
Specifically, the final rule retains ``[t]he regulations in this
subchapter implement'' from the current regulations and then replaces
``section 102(2) of NEPA'' with ``the requirements of NEPA,'' because
the requirements of NEPA extend to additional sections following the
2023 NEPA amendments. Additionally, CEQ includes the proposed new
second sentence, with revisions. In the final rule, this provision
requires rather than recommends that information be high quality for
consistency with Sec. 1506.6. CEQ does not include the proposed
references to ``science-based'' and ``accessible'' to avoid potential
confusion that this provision was establishing a separate obligation
from Sec. 1506.6, which addresses methodology and scientific accuracy.
Finally, CEQ proposed a new paragraph (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. Some
commenters recommended CEQ further amend proposed paragraph (c) to
state that agencies only have to ``protect'' or ``restore and
protect,'' rather than ``enhance'' the environment for consistency with
sections 101 and 102 of NEPA. 42 U.S.C. 4331, 4332.
CEQ disagrees with the commenters' view of NEPA's purposes and
scope. To the extent that a substantive difference exists between the
terms in this context, CEQ notes that section 101(c) of NEPA recognizes
``that each person has a responsibility to contribute to the
preservation and enhancement of the environment.'' 42 U.S.C. 4331(c)
(emphasis added); see also, e.g., Douglas Ctny. v. Babbitt, 48 F.3d
1495, 1505 (9th Cir. 1995) (``The purpose of NEPA is to `provide a
mechanism to enhance or improve the environment and prevent further
irreparable damage.' '' (emphasis added) (quoting Pac. Legal Found. v.
Andrus, 657 F.2d 829, 837 (6th Cir. 1981)). Another commenter
recommended that CEQ qualify the second sentence of proposed paragraph
(c) by appending, ``within the agency's Congressional authorizations.''
CEQ declines to make this change. In implementing any statute, agencies
must act within the scope of their legal authority; adding a specific
qualification to that effect here is therefore unnecessary and could be
confusing. CEQ finalizes paragraph (c) as proposed.
2. Policy (Sec. 1500.2)
The 2020 rule struck 40 CFR 1500.2 (2019), stating that it was
duplicative of other sections, and integrated policy language into 40
CFR 1500.1 (2020).\56\ CEQ proposed to restore Sec. 1500.2 because a
robust articulation of NEPA's policy principles is fundamental to the
NEPA process. CEQ also proposed to restore the policy section because
it is 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. CEQ proposed to
restore with some updates the language of the 1978 regulations to Sec.
1500.2.
---------------------------------------------------------------------------
\56\ CEQ, 2020 Final Rule, supra note 39, at 43316-17.
---------------------------------------------------------------------------
First, CEQ proposed to restore an introductory paragraph to require
agencies ``to the fullest extent possible'' to comply with the policy
set forth in paragraphs (a) through (f). One commenter asserted that
the final rule should delete ``to the fullest extent possible'' because
it improperly expands the regulation's authority. CEQ disagrees with
the commenter's interpretation of the phrase, which does not expand,
but rather qualifies, the scope of Sec. 1500.2 and conforms with the
text in section 102 of NEPA, which directs agencies to comply with that
section's requirements, including the requirement to prepare an EIS,
``to the fullest extent possible.'' See 42 U.S.C. 4332.
Second, CEQ proposed to restore in paragraph (a) the 1978 language
directing agencies to interpret and administer policies, regulations,
and U.S. laws consistent with the policies of NEPA and the CEQ
regulations. Some commenters recommended the final rule revise
paragraph (a) to replace ``the policies set forth in the Act and in
these regulations,'' with ``with other applicable laws and regulations,
in addition to NEPA.'' CEQ finalizes paragraph (a) as proposed and
declines to make this change because it aligns with the language of
section 102(1) of NEPA. See 42 U.S.C. 4332(1). The purpose of Sec.
1500.2(a) is to place the CEQ regulations into their broader context by
restating NEPA's policies. Doing so improves readability by avoiding
the need for cross references to material outside the text of the
regulations.
Third, in paragraph (b), CEQ proposed to restore with clarifying
edits the 1978 language directing agencies to implement procedures that
facilitate a meaningful NEPA process, including one that is useful to
decision makers and the public with environmental documents that are
concise and clear, emphasize the important issues and alternatives, and
are supported by evidence. CEQ did not receive comments specific to
this proposed paragraph and finalizes paragraph (b) as proposed.
Fourth, in paragraph (c), CEQ proposed to direct agencies to
integrate NEPA with other planning and environmental review
requirements to promote efficient, concurrent processes. One commenter
requested the final rule revise proposed paragraph (c) to add
qualifying language to require the integration be done at the earliest
reasonable time, consistent with Sec. 1501.2(a), except where
inconsistent with other statutory requirements or where inefficient.
The commenter generally supported integrating the NEPA process with
other processes when it is efficient, but asserted that sometimes it
may be more efficient to have other processes run consecutively instead
of concurrently. CEQ agrees that processes should run consecutively
where it is more efficient to do so, and that agencies should not
integrate processes when doing so would be inefficient. Therefore, in
the final rule, CEQ adds proposed paragraph (c) but does not include
``all'' before ``such procedures,'' and adds ``where doing so promotes
efficiency'' at the end of the paragraph.
Fifth, in paragraph (d) CEQ proposed to modernize language from the
1978 regulations in 40 CFR 1500.2(d) (2019) to emphasize public
engagement, including ``meaningful public
[[Page 35452]]
engagement with communities with environmental justice concerns, which
often include communities of color, low-income communities, indigenous
communities, and Tribal communities.''
One commenter requested that CEQ clarify whether the phrase
``affect the quality of the human environment'' in paragraph (d) refers
to beneficial or adverse effects and whether it covers temporary
effects in addition to permanent ones. CEQ declines to amend the
language in question, which CEQ is restoring from the 1978 regulations.
Because NEPA directs agencies to consider all of the reasonably
foreseeable effects of a proposed action--including positive, negative,
temporary, and permanent effects--this phrase is appropriately broad.
While the final rule defines ``significant effects'' as limited to only
adverse effects, see Sec. 1508.1(mm), paragraph (d) is broader because
the NEPA regulations encourage and facilitate public engagement for
actions that may not have significant effects, including actions that
agencies analyze through an EA.
Multiple commenters supported proposed Sec. 1500.2(d) and the
emphasis on public engagement. Some commenters recommended the final
rule expand the paragraph to clarify how agencies should facilitate
public engagement and education. CEQ declines to expand this paragraph
because the intent of Sec. 1500.2 is to place the regulations into
their broader policy context. Instead, Sec. 1501.9 describes agencies'
public engagement responsibilities in detail.
Some commenters opposed proposed paragraph (d) and the emphasis on
public engagement. One commenter expressed concern that the proposed
rule does not include a similar increased emphasis on State-specific
involvement, requested the final rule delineate between State
involvement and public involvement, and explicitly emphasize the
importance of State-specific engagement, much the same way CEQ has
outlined for Tribal engagement.
In the final rule, CEQ adds proposed paragraph (d) but omits the
last clause of the proposal and declines to specifically address State-
specific involvement in this paragraph because this paragraph is about
involving the public, rather than coordinating with other government
entities such as States and Tribes. While public involvement and inter-
governmental coordination are both critically important components of
the NEPA process, they implicate different considerations and are
addressed by different portions of the NEPA regulations. CEQ does not
include the proposed language describing what communities are often
included as communities with environmental justice concerns because
``environmental justice'' and ``communities with environmental justice
concerns'' are defined terms in Sec. 1508.1(f) and (m) and the
explanatory language is unnecessary in Sec. 1500.2. CEQ also revises
the clause in the final rule to clarify the example by adding ``such as
those'' after communities so that the example refers to communities in
general and communities with environmental justice concerns more
specifically, because the regulations encourage meaningful engagement
with all communities that are potentially affected by an action. The
reference to engagement with communities with environmental justice
concerns is an example and not exhaustive. Further, 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, and such communities often face challenges
in engaging with the Federal Government. In making this change to
emphasize public engagement, CEQ notes that consultation with Tribal
Nations on a nation-to-nation basis is distinct from the public
engagement requirements of NEPA.\57\
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\57\ 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).
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Sixth, in paragraph (e), CEQ proposed to restore language from the
1978 regulations regarding use of the NEPA process to identify and
assess the reasonable alternatives to proposed actions that avoid or
minimize adverse effects. CEQ also proposed to add examples of such
alternatives, including those that will reduce climate change-related
effects or address health and environmental effects that
disproportionately affect communities with environmental justice
concerns.
One commenter requested that the final rule further clarify
paragraph (e) by adding examples of reasonable alternatives. CEQ
declines to add examples to paragraph (e) because reasonable
alternatives are not amenable to easy generalization or simple
description as they depend on project-specific factors, such as purpose
and need, and technical and economic feasibility. Therefore, examples
of reasonable alternatives are ill-suited to regulatory text. Some
commenters opposed the references to climate change and environmental
justice in Sec. 1500.2(e), contending that the references indicate
that CEQ's regulations direct or favor particular substantive outcomes,
such as the disapproval of oil and gas projects, and will therefore
prejudice agencies' analysis of environmental effects; that the NEPA
statute does not explicitly address these subjects; or that it will be
difficult or burdensome for agencies to account for climate change when
conducting environmental reviews.
CEQ adds paragraph (e) as proposed in the final rule. CEQ agrees
that NEPA does not dictate a particular outcome, and disagrees that the
references to climate change and environmental justice in Sec.
1500.2(e) are contrary to this principle. Rather, Congress enacted and
amended NEPA based on the understanding that agency decision makers
will make better decisions if they are fully informed about each
decision's reasonably foreseeable environmental effects. Paragraph (e)
prompts agencies to give appropriate regard to environmental effects
related to climate change and environmental justice.
Further, the references to climate change and environmental justice
in paragraph (e) reflect and advance NEPA's statutory objectives, text,
and policy statements, which include analyzing a reasonable range of
alternatives; avoiding environmental degradation; preserving historic,
cultural, and natural resources; and ``attain[ing] 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), 4332(2)(C)(iii). The references emphasize that decision
makers should integrate those subjects into the analysis of the
environmental effects of a proposed action and any reasonable
alternatives, as appropriate. Additionally, these changes are
consistent with the goal of providing ``safe, healthful, productive,
and esthetically and culturally pleasing surroundings'' across the
Nation, and the goal that all people can ``enjoy a healthful
environment,'' 42 U.S.C. 4331(b), (c), and highlight the importance of
considering such effects in environmental documents, consistent with
NEPA's requirements and agency practice.\58\ The changes are also
[[Page 35453]]
consistent with E.O. 12898 and E.O. 14096.
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\58\ Consistent with section 102(2)(C) of NEPA, consideration of
environmental justice and climate change-related effects has long
been part of NEPA analysis. See, e.g., Ctr. for Biological Diversity
v. Nat'l Highway Traffic Safety Admin., 538 F.3d 1172 (9th Cir.
2008) and CEQ, Environmental Justice Guidance, supra note 7.
---------------------------------------------------------------------------
Finally, in paragraph (f), CEQ proposed to restore the direction
from the 1978 regulations to use all practicable means, consistent with
the policies of NEPA, to restore and enhance the environment and avoid
or minimize any possible adverse effects of agency actions. These
revisions 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).
Multiple commenters expressed support for the proposed changes to
paragraphs (d), (e), and (f), asserting the changes appropriately
emphasize agency obligations to facilitate public participation in the
decision-making process, instead of merely keeping the public informed,
and to act on information they obtain in that process. These commenters
asserted the proposed changes properly describe the objectives of
environmental reviews under NEPA as informed decision making, robust
public engagement, and protection of the environment.
One commenter requested the final rule revise paragraph (f) to add
other laws and agency authorities after ``the requirements of the
Act.'' CEQ finalizes paragraph (f) as proposed and declines to make
this change because this paragraph aligns with section 101(b) of NEPA.
42 U.S.C. 4331(b). The purpose of Sec. Sec. 1500.1 and 1500.2 is to
place the regulations into their broader context by restating NEPA's
policies within the regulations. Doing so improves readability by
avoiding the need for cross references to material outside the text of
the regulations. CEQ agrees that agencies should comply with other laws
and with agency authorities, which are examples of ``other essential
considerations of national policy.'' CEQ also notes that this text was
in the 1978 regulation, in effect until 2020, and did not create
confusion that the NEPA regulations prevented agencies from complying
with other legal requirements.
Commenters recommended that CEQ add various qualifiers to Sec.
1500.2 asserting that agencies have limited authorities and resources
and must comply with other applicable laws in addition to NEPA. CEQ
declines to make these changes. The introductory paragraph of Sec.
1500.2 provides that agencies must carry out the policies set forth in
the section ``to the fullest extent possible,'' which renders the
suggested amendments redundant. Moreover, Sec. 1501.3 directs agencies
to consider, for a particular action, whether compliance with NEPA
would clearly and fundamentally conflict with the requirements of
another provision of Federal law when determining NEPA applicability to
that action, which is consistent with the manner in which Congress
addressed this issue in section 106 of NEPA. 42 U.S.C. 4336.
Likewise, commenters suggested that CEQ clarify particular points
of NEPA practice, such as defining ``all practicable means;''
explaining how agencies should facilitate public engagement and
education; adding examples of reasonable alternatives; requiring
environmental documents to describe the steps that the agency has taken
to avoid or minimize adverse effects; providing standards against which
to quantitatively assess agencies' implementation of the NEPA
regulations; requiring only that agencies minimize the ``significant''
adverse effects of a proposed action; or directing agencies to make
their planning efforts consistent with State and local plans to the
maximum extent possible.
CEQ declines to revise the regulations in response to these
comments. The purpose of Sec. Sec. 1500.1 and 1500.2 is to place the
regulations into their broader context by restating the purposes and
policies of the Act and addressing a variety of aspects of NEPA
practice would distract from that purpose. Other provisions in the
regulations implement the provisions of NEPA that effectuate these
purposes and policies, and set forth specific procedures that agencies
must and should follow. Accordingly, it is not necessary or appropriate
for Sec. 1500.2 to address these subjects in greater detail.
Lastly, one commenter recommended that CEQ add a new paragraph to
Sec. 1500.2 to require agencies to realize the Federal Government's
trust responsibility to Tribal Nations by acting on and not merely
considering Indigenous Knowledge. Another commenter made a related
recommendation that Sec. 1500.1 explicitly recognize the Federal
Government's trust responsibilities to Tribes.
CEQ agrees that agencies should consider and include Indigenous
Knowledge in Federal research, policies, and decision making, including
as part of the environmental review process under NEPA. CEQ also
recognizes that the Federal trust responsibility to Tribal Nations may
shape both the procedures that agencies follow and the substantive
outcomes of agencies' decision-making processes. CEQ does not, however,
view it as properly within the scope of CEQ's authority to direct
agencies to act on Indigenous Knowledge through the NEPA regulations,
because the NEPA statute includes procedural, rather than substantive
requirements, and the obligation to honor the trust responsibility,
including the obligation to engage in Tribal consultation, does not
arise from the NEPA statute.
3. NEPA Compliance (Sec. 1500.3)
CEQ proposed to revise Sec. 1500.3 to restore some language from
the 1978 regulations and remove some provisions added by the 2020 rule
regarding exhaustion and remedies, which aimed to limit legal
challenges and judicial remedies.\59\ The process established by the
2020 rule provided 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)
(2020). 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) (2020). 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) (2020). And fourth, any comments not
submitted within the comment period were considered forfeited as
unexhausted. 40 CFR 1500.3(b)(3), 1505.2(b) (2020).
---------------------------------------------------------------------------
\59\ CEQ, 2020 Final Rule, supra note 39, at 43317-18.
---------------------------------------------------------------------------
First, CEQ proposed to revise paragraph (a) to remove the phrase
``except where compliance would be inconsistent with other statutory
requirements'' from the end of the first sentence because Sec. 1500.6
addresses this issue. CEQ also proposed to remove the references 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.\60\
---------------------------------------------------------------------------
\60\ See E.O. 13807, supra note 14; E.O. 13990, supra note 43.
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CEQ removes the clause ``except where compliance would be
inconsistent with other statutory requirements'' in the final rule
because the relationship between NEPA and agency statutory authority is
addressed in Sec. 1500.6 and the circumstances in
[[Page 35454]]
which an agency does not need to prepare an environmental document due
to a conflict with other statutes is addressed in Sec. 1501.3.
Moreover, to the extent that this phrase could be read as identifying
when an agency does not need to conduct an environmental review, the
NEPA amendments address that in section 106(a)(3) using different
language, specifically, that an agency does not need to prepare an
environmental document where ``the preparation of such document would
clearly and fundamentally conflict with the requirements of another
provision of law.'' 42 U.S.C. 4336(a)(3). CEQ also removes the
references to E.O. 13807 and section 309 of the Clean Air Act
consistent with the proposal.
Second, CEQ proposed to delete paragraphs (b) and (b)(1) through
(b)(4) of 40 CFR 1500.3 (2020) addressing exhaustion. CEQ proposed to
remove these provisions because they establish an inappropriately
stringent exhaustion requirement for public commenters and agencies.
CEQ also proposed to delete this paragraph because 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. As explained in the proposed rule, 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,\61\ 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 proposed to delete the exhaustion provision because CEQ considers
interpreting and applying the APA more appropriate for the courts.
---------------------------------------------------------------------------
\61\ CEQ, 2020 Final Rule, supra note 39, at 43317-18 (citing
Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 764-65 (2004); Karst
Env't. Educ. & Prot., Inc. v. Fed. Highway Admin., 559 F. App'x 421,
426-27 (6th Cir. 2014); Friends of the Norbeck v. U.S. Forest Serv.,
661 F.3d 969, 974 (8th Cir. 2011); Exxon Mobil Corp. v. U.S. EPA,
217 F.3d 1246, 1249 (9th Cir. 2000); and Nat'l Ass'n of Mfrs. v.
U.S. Dep't of the Interior, 134 F.3d 1095, 1111 (D.C. Cir. 1998)).
---------------------------------------------------------------------------
CEQ also proposed to remove the exhaustion requirement because it
is at odds with longstanding agency practice. While courts have ruled
that agencies are not required to consider comments that are not
received until after comment periods end, 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 do so and have sometimes
chosen to exercise this discretion, particularly where a comment
provides helpful information to inform the agency's decision. As
explained in the proposed rule, the exhaustion requirement 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.
Many commenters supported CEQ's proposal to remove the exhaustion
provisions asserting that the provisions were unlawful, created
additional compliance burdens, did not improve the efficiency of the
NEPA process, and did not reduce litigation risk; and that removal is
consistent with the NEPA statute, which does not provide for an
exhaustion requirement. One commenter that supported removal, asserted
that because NEPA does not impose a statutory exhaustion requirement,
the determination of whether a particular plaintiff may go forward with
a particular claim is a matter for the judiciary. CEQ agrees with this
commenter's view. Where appropriate in light of the statutes they
administer, individual agencies may address exhaustion through their
agency-specific rules of procedure, and courts will continue to
consider exhaustion as a normal part of judicial review.
Commenters that opposed removing the exhaustion requirements argued
they are necessary to curb ``frivolous litigation claims;'' assist
agencies and the public by providing helpful information on filing
timely comments and incentivizing them to raise concerns during the
NEPA process; and communicate the need for prompt and active
participation in the NEPA review process. While CEQ agrees with these
commenters' assertions that the regulations should promote early
engagement and public participation and the timely identification of
concerns during the NEPA process, CEQ disagrees that the exhaustion
provisions are the mechanism to achieve these goals. CEQ considers
other provisions in the regulations, including Sec. Sec. 1501.9 and
1502.4, and part 1503, to be the better means of achieving these goals
without incurring the risk of including provisions in the regulations
that are legally uncertain.
For these reasons, CEQ removes the exhaustion provisions from the
regulations and strikes paragraphs (b) and (b)(1) through (b)(4) of 40
CFR 1500.3 (2020) consistent with the proposal. Removal of these
exhaustion provisions does not relieve parties interested in
participating in, commenting on, or ultimately challenging a NEPA
analysis 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) (2019).
Further, nothing in this revision limits 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 best addressed by the courts
based on the facts of a particular case.
Third, CEQ proposed to redesignate paragraph (c), ``Review of NEPA
compliance,'' of 40 CFR 1500.3 (2020) as paragraph (b) and add a
clause, ``except with respect to claims brought by project sponsors
related to deadlines under section 107(g)(3) of NEPA'' to the end of
the first sentence stating that judicial review of NEPA compliance does
not occur before an agency issues a ROD or takes a final agency action.
CEQ did not receive specific comments on this proposal and adds to
redesignated paragraph (b) the exception clause to acknowledge the
ability of project sponsors to petition a
[[Page 35455]]
court when an agency allegedly fails to meet a deadline consistent with
section 107(g)(3) of NEPA. 42 U.S.C. 4336(a)(g)(3).
Fourth, CEQ proposed to move the last sentence of paragraph (d) of
40 CFR 1500.3 (2020) regarding harmless error for minor, non-
substantive errors, a concept that has been in place since the 1978
regulations, to redesignated paragraph (b). CEQ also proposed to delete
the second sentence of paragraph (c) of 40 CFR 1500.3 (2020) stating
that noncompliance with NEPA and the CEQ regulations should be resolved
as expeditiously as possible. While CEQ agrees with expeditious
resolution of issues, CEQ proposed to delete this sentence reasoning
that CEQ cannot compel members of the public or courts to resolve NEPA
disputes expeditiously.
One commenter opposed the proposed deletion of the second sentence
of paragraph (c) of 40 CFR 1500.3 (2020) and disagreed with CEQ's
rationale, asserting that it is proper for CEQ to express its interest
in agencies resolving NEPA compliance issues as soon as practicable.
The commenter further argued that doing so is in the interest of
Federal agencies, project proponents, and the public, and that
unresolved NEPA disputes can lead to costly litigation that prolongs
the NEPA process, wastes taxpayer and project proponent resources, and
deprives communities of infrastructure improvements.
CEQ agrees that efficiency is an important goal, and that resolving
claims of NEPA noncompliance can result in costly and time-consuming
litigation. Upon further consideration, CEQ retains the second sentence
of paragraph (c) of 40 CFR 1500.3(2020) in the final rule as the third
sentence of Sec. 1500.3(b), but revises the text from ``as
expeditiously as possible'' to ``as expeditiously as appropriate.''
While it is true that CEQ cannot compel members of the public or courts
to resolve disputes expeditiously, as noted in CEQ's justification for
proposing to delete this provision, CEQ considers this sentence to
appropriately express CEQ's intention, rather than purporting to
inappropriately bind those parties to litigation or dictate what
timeline is appropriate for any particular case. Further, CEQ notes
that the regulations promote public engagement, appropriate analysis,
and informed decision making to facilitate NEPA compliance and avoid
such disputes from the outset. CEQ moves the last sentence of 40 CFR
1500.3(d) (2020) to Sec. 1500.3(b) as proposed.
Fifth, CEQ proposed to strike the last sentence of paragraph (c) of
40 CFR 1500.3 (2020) allowing agencies to include bonding and other
security requirements in their procedures consistent with their organic
statutes and as part of implementing the exhaustion requirements
because this relates to litigation over an agency action and not the
NEPA process. CEQ explained in the proposed rule that it is unsettled
whether NEPA provides agencies with authority to promulgate procedures
that require plaintiffs to post bonds in litigation brought under the
APA, and that CEQ does not consider it appropriate to address this
issue in the NEPA implementing procedures.
Multiple commenters urged CEQ not to remove this sentence or
encouraged CEQ to revise the regulations to require parties to post
such a bond when petitioning a court to enjoin a NEPA decision during
the pendency of litigation. Conversely, many commenters supported the
proposed elimination of the bonding provision, which the commenters
said discourages public engagement, appropriate analysis, and informed
decision making and inequitably burdens disadvantaged communities.
CEQ removes the bonding provision in the final rule by striking the
last sentence of 40 CFR 1500.3(c) (2020). NEPA does not authorize CEQ
to require posting of bonds or other financial securities prior to a
party challenging an agency decision. Agencies may have various
authorities independent of NEPA to require bonds or other securities as
a condition of filing an administrative appeal or obtaining injunctive
relief; this rule does not modify those authorities. CEQ continues to
consider it unsettled whether NEPA provides agencies with authority to
promulgate procedures that require plaintiffs to post bonds in
litigation brought under the APA, commenters did not identify any
specific statutory authorities, and even if such authority exists, CEQ
does not view such a requirement as appropriate for inclusion in the
NEPA regulations. Agency authority to require bonds or other securities
as a condition of an administrative appeal or injunctive relief may
exist independent of NEPA, and to the extent that such authority does
exist, it likely varies by agency. The rule does not modify any
existing authority.
CEQ proposed to strike paragraph (d) of 40 CFR 1500.3 (2020)
regarding remedies, with the exception of the last sentence, which CEQ
proposed to move to proposed paragraph (c) as discussed earlier in this
section. CEQ proposed to remove this provision because it is
questionable whether CEQ has the authority to direct courts about what
remedies are available in litigation brought under the APA, and in any
case, CEQ considers the 2020 rule's addition of this paragraph to be
inappropriate.
CEQ strikes 40 CFR 1500.3(d) (2020) in the final rule. CEQ
considers courts to be in the best position to determine the
appropriate remedies when a plaintiff successfully challenges an
agency's NEPA compliance. See, e.g., N. Cheyenne Tribe v. Norton, 503
F.3d 836, 842 (9th Cir. 2007) (rejecting successful NEPA plaintiffs'
contention that CEQ regulations mandated a particular remedy and
holding that ``a NEPA violation is subject to traditional standards in
equity for injunctive relief'').
Finally, CEQ proposed to redesignate paragraph (e) of 40 CFR 1500.3
(2020) on Severability, as proposed paragraph (c), without change. CEQ
makes this change in the final rule because CEQ intends these
regulations to be severable. This final rule amends existing
regulations, and the NEPA regulations can be functionally implemented
if each revision in this final rule occurred on its own or in
combination with any other subset of revisions. As a result, if a court
were to invalidate any particular provision of this final 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.
4. Concise and Informative Environmental Documents (Sec. 1500.4)
CEQ proposed to revise Sec. 1500.4, which briefly describes and
cross references certain other provisions of the CEQ regulations, 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 and transparency. CEQ proposed these changes to encourage
the preparation of documents that can be easily read and understood by
decision makers and the public, which in turn promotes informed and
efficient decision making and public participation.
First, CEQ proposed to retitle Sec. 1500.4 from ``Reducing
paperwork'' to ``Concise and informative environmental documents'' and
revise the introductory text to clarify that the
[[Page 35456]]
listed paragraphs provide examples of the regulatory mechanisms that
agencies can use to prepare concise and informative environmental
documents. Multiple commenters supported the proposed changes in Sec.
1500.4, opining the changes properly direct agencies to streamline the
process of preparing environmental documents and make those documents
analytical, concise, and informative. One commenter recommended that
CEQ add ``for example'' and ``as appropriate'' to the introductory
paragraph.
CEQ revises the title and introductory text of Sec. 1500.4 in the
final rule as proposed. 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 in Sec. 1500.4 align the regulations with the intent of NEPA
to allow the public to provide input and enhance transparency, while
providing agencies flexibility on how to achieve concise and
informative documents. CEQ declines to add ``for example'' and ``as
appropriate'' to the introductory paragraph. Those qualifiers are
unnecessary because CEQ proposed and is adding ``e.g.,'' throughout
Sec. 1500.4, where appropriate, to clarify that the cross-references
are non-exclusive examples of strategies that agencies must use in
preparing analytical, concise, and informative environmental documents.
CEQ proposed to strike paragraphs (a) and (b) of 40 CFR 1500.4
(2020) because they are redundant with Sec. 1500.5(a) and (b) and are
more appropriately addressed in that section, which addresses an
efficient process. CEQ also proposed to strike paragraph (d) of 40 CFR
1500.4 (2020) because this provision would be addressed in the revised
introductory text.
A few commenters objected to the deletion of 40 CFR 1500.4(a) and
(b) (2020), which pertain to using CEs and FONSIs, respectively. The
commenters asserted that the use of CEs and FONSIs is critical to
ensuring ``analytical, concise, and informative'' environmental
documents, and that the inclusion of such language encourages concision
in the evaluation process. While recognizing the paragraphs are
redundant with Sec. 1500.5(a) and (b), they asserted that Sec.
1500.5(a) and (b) address improving efficiency in the process, while
Sec. 1500.4 addresses concise environmental documents. The commenters
further asserted that the two sections are separate in substance and in
form, and each should therefore include independent language addressing
any inefficiencies.
CEQ strikes paragraphs (a), (b), and (d) of 40 CFR 1500.4 (2020)
consistent with the proposal. While CEQ agrees that, where appropriate,
applying CEs and preparing EAs and FONSIs typically result in shorter
evaluation timelines, this section addresses the preparation of
documents, including CE determinations, EAs, and FONSIs, rather than
addressing the use of different types of environmental documents.
CEQ proposed to redesignate paragraphs (c) and (e) through (q) of
40 CFR 1500.4 (2020) as Sec. 1500.4 (a) and (b) through (n),
respectively. CEQ proposed to add ``e.g.,'' to the cross references
listed in proposed paragraphs (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 also proposed to update the regulatory section
cross references for consistency with the proposed changes in the rule.
CEQ makes these changes in the final rule as proposed.
In proposed paragraphs (c) and (e), CEQ proposed to expand the
reference from EISs to all environmental documents, as the concepts
discussed are more broadly applicable. Additionally, in paragraph (e),
CEQ proposed to insert ``most'' before ``useful'' to clarify that the
environmental documents should not contain portions that are useless.
In proposed paragraph (f), CEQ proposed to replace ``significant''
with ``important'' and insert ``unimportant'' to modify ``issues''
consistent with the proposal to only use ``significant'' to modify
``effects.'' CEQ also proposed to clarify in paragraph (f) that scoping
may apply to EAs. Additionally, CEQ proposed to expand paragraph (h),
regarding programmatic review and tiering, to include EAs to align with
the proposed changes to Sec. 1501.11. CEQ makes these changes to
paragraphs (c), (e), (f), and (h) in the final rule as proposed.
While CEQ did not propose any changes to paragraph (l) regarding
use of errata sheets, in the final rule, CEQ moves the clause ``when
changes are minor'' from the end to the beginning of the paragraph to
make the language clearer that agencies use errata sheets only when
changes between the draft EIS and final EIS are minor. Finally, in
paragraph (m), CEQ proposed to insert ``Federal'' before ``agency''
consistent with Sec. 1506.3, which allows adoption of NEPA documents
prepared by other Federal agencies.
One commenter objected to paragraph (m), contending that directing
agencies to eliminate duplication by preparing environmental documents
jointly with relevant State, Tribal, and local agencies would threaten
the autonomy of Tribes by obligating them to coordinate with Federal
agencies in preparing environmental documents. CEQ disagrees with this
commenter's interpretation of paragraph (m). Paragraph (m) refers
agencies to Sec. 1506.2, which makes clear that agencies should only
prepare joint environmental documents by mutual consent. CEQ makes the
changes as proposed in the final rule.
Commenters recommended including additional strategies in Sec.
1500.4, including minimizing unnecessary repetition in describing and
assessing alternatives, limiting discussion of effects to those that
are reasonably foreseeable, and resolving disagreements in the review
process expeditiously. CEQ declines to add additional paragraphs.
Section 1500.4 lists regulatory provisions that agencies must use in
preparing concise and informative environmental documents; these
provisions already direct agencies to minimize unnecessary repetition,
evaluate the reasonably foreseeable effects of proposed actions, and
resolve disagreements expeditiously.
5. Efficient Process (Sec. 1500.5)
CEQ proposed 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 proposed 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 proposed to retitle Sec. 1500.5 from ``Reducing
delay'' to ``Efficient process'' and revise the introductory text to
replace ``reduce delay'' with ``improve efficiency of the NEPA
processes'' consistent with the new title.
Some commenters recommended against these changes asserting that
they give the impression that it is unimportant for agencies to reduce
delays in the permitting process. CEQ revises the title and
introductory text as proposed. The purpose of the changes is not to
discount the importance of reducing delays in the environmental review
process, but to emphasize that agencies should make their review
processes broadly efficient and not merely fast--recognizing that
efficiency also requires effectiveness and quality of
[[Page 35457]]
work. CEQ agrees that reducing delays is important but considers the
text to give the wrong impression that there are always delays in the
NEPA process.
CEQ proposed to add EAs to paragraph (a) to make the provision
consistent with the definition of ``categorical exclusion;'' phrase
paragraph (d) in active voice; change ``real issues'' to ``important
issues that required detailed analysis'' in paragraph (f) for
consistency with Sec. 1502.4; change ``time limits'' to ``deadlines''
in paragraph (g) for consistency with Sec. 1501.10; and expand 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. CEQ proposed
these revisions to recognize the importance of timely information for
decision making and encourage agencies to implement the 12 listed
mechanisms to achieve timely and efficient NEPA processes. CEQ did not
receive any comments specific to these proposed changes and makes them
in the final rule. Additionally, CEQ revises Sec. 1500.5(a) to change
``using'' to ``establishing'' and adds a cross reference to Sec.
1507.3(c)(8) because the language in this provision is addressing the
development of CEs, not their application to proposed actions.
One commenter recommended the final rule revise paragraph (d)--
requiring interagency cooperation during preparation of an EA or EIS
rather than waiting to submit comments on a completed document--to
require the lead agency to involve other relevant agencies in the
determination of whether to review a proposed action by applying a CE,
preparing an EA, or preparing an EIS.
CEQ revises paragraph (d) to incorporate some of the text proposed
by the commenter. Specifically, CEQ adds ``including with affected
Federal, State, Tribal, and local agencies'' to highlight the
efficiency benefits of interagency cooperation with those non-Federal
entities, and also adds the words ``request or'' before the ``submit
comments'' to highlight the importance of both the lead agency and
other agencies to interagency cooperation.
6. Agency Authority (Sec. 1500.6)
CEQ proposed revisions to Sec. 1500.6 to 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. CEQ proposed to revise the
second and third sentences in Sec. 1500.6 and strike the fourth
sentence.
While CEQ did not propose changes to the first sentence, which
requires an agency to view its policies and missions in the light of
NEPA's environmental objectives to the extent consistent with its
existing authority, one commenter recommended that CEQ revise the
sentence to restore phrasing from the 1978 regulations. In particular,
the commenter recommended the final rule delete the last clause, ``to
the extent consistent with its existing authority'' because it is
``internally inconsistent and contrary to the plain language of NEPA
Section 105.'' 42 U.S.C. 4335. Another commenter recommended the final
rule delete the first sentence and disagreed with the description in
the proposed rule that ``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,'' asserting that if a
statute delegates authority, it does so expressly and there is no
presumption that an agency's authorizing statute delegates the agency
authority to comply with NEPA.
CEQ declines to revise the first sentence. This provision generally
directs agencies to interpret the provisions of NEPA, including section
2's statement of purpose, section 101's statement of policy, and
sections 102 through 111's procedural provisions as a supplement to
their existing authorities, and agencies can only do so to the extent
consistent with those authorities. See 42 U.S.C. 4321 et seq. This
provision does not address the more specific issue of when an agency is
excused from completing an environmental document because of contrary
statutory authority. That issue is addressed in Sec. 1501.3(a)(2),
which incorporates section 106(a) of NEPA's directive that agencies are
not required to prepare an environmental document where ``the
preparation of such document would clearly and fundamentally conflict
with the requirements of another provision of law.'' 42 U.S.C.
4336(a)(3). NEPA applies to all Federal agencies and includes a
specific statutory directive that ``the policies, regulations, and
public laws of the United States shall be interpreted and administered
in accordance with the policies set forth in [NEPA].'' 42 U.S.C.
4332(1). While there may be situations in which compliance with another
Federal law precludes an agency from complying with NEPA, agencies have
an obligation to harmonize NEPA with their other statutes where
possible to do so.
CEQ proposed to revise the second sentence of Sec. 1500.6 to
remove the qualification added in the 2020 rule that agencies must
ensure full compliance with the Act ``as interpreted by'' the CEQ
regulations so the provision would instead state that agencies must
review and revise their procedures to ensure compliance with NEPA and
the CEQ regulations. CEQ proposed this change because the phrase ``as
interpreted by'' could be read to indicate that agencies have no
freestanding requirement to comply with NEPA itself, which would be
untrue. CEQ also considered the change necessary for consistency with
Sec. 1507.3(b), which CEQ revised in its 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 proposed to make conforming edits in
Sec. Sec. 1502.2(d) and 1502.9(b) to remove this phrase.
Several commenters expressed support for CEQ's proposal to restore
language emphasizing each Federal agency's independent obligation and
ability to implement NEPA. The commenters asserted that removing this
language would make it clear that agencies have an obligation to comply
with NEPA by following CEQ's regulations and also reviewing and
revising, as necessary, their own agency policies, procedures, and
activities. The commenter further asserted this independent obligation
to comply with NEPA, combined with revisions to Sec. 1507.3 in the
Phase 1 rule, provides Federal agencies with flexibility to craft
regulations tailored to their agency's work, even if they go beyond the
requirements of the CEQ NEPA regulations.
Another commenter expressed support for this proposed change and
agreed with CEQ's statement that the current text could be read to
mistakenly indicate that agencies have no freestanding requirement to
comply with NEPA. The commenter suggested that the final rule add to
the beginning of the second sentence, to state that ``[a]gencies shall
comply with the purposes and provisions of the Act and with the
requirements under this Part, to the fullest extent possible.'' The
commenter asserted that regardless of what an agency's policies,
procedures, and regulations say, it is critical that the agency comply
with both NEPA and the CEQ regulations, unless an agency activity,
decision, or action is exempted
[[Page 35458]]
by law or compliance with NEPA is impossible.
In the final rule, CEQ revises the second sentence of Sec. 1500.6
as proposed to replace ``as interpreted by'' with ``and'' and makes
conforming changes to Sec. Sec. 1502.2(d) and 1502.9(b). CEQ declines
to add the clause suggested by the commenter because compliance with
NEPA and the regulations is already addressed in the last sentence of
this section as well as Sec. Sec. 1507.1 and 1507.2.
In the third sentence, CEQ proposed to remove the cross-reference
to Sec. 1501.1 for consistency with the proposed revisions to Sec.
1501.1 and add the text, consistent with language from the 1978
regulations, 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. 42 U.S.C. 4332.
A couple of commenters suggested revisions to the last sentence of
Sec. 1500.6. They asserted that the proposed revisions would create
confusion by creating a distinction between complying with section 102
of NEPA and complying with all of NEPA, and that this was incorrect
given the recent NEPA amendments and the proposed implementation of
those amendments in these regulations. 42 U.S.C. 4321 et seq. The
commenters recommended the final rule replace ``that section unless''
with ``the Act and the regulations of this subchapter.''
CEQ agrees with the commenter that the statement in section 102 is
not limited to that section and replaces the phrase ``that section''
with ``the Act'' for consistency with the statute. Section 102(2)
authorizes and directs that, to the fullest extent possible the
policies, regulations, and public laws of the United States shall be
interpreted and administered in accordance with the policies set forth
in NEPA. 42 U.S.C. 4332(2). CEQ does not include a reference to the
regulations as these are not specifically identified in section 102,
and Sec. 1507.1 addresses the requirement to comply with the NEPA
regulations.
The commenters also recommended the final rule replace ``compliance
with NEPA is impossible'' with ``compliance is impracticable.'' The
commenters recommended this change because section 101 refers to the
Federal Government taking all ``practicable means'' to advance NEPA's
goals, implicitly sparing the need to pursue ``impracticable'' steps.
42 U.S.C. 4331.
CEQ declines to make this change and revises the last sentence as
proposed to strike ``consistent with Sec. 1501.1 of this chapter'' and
replace it with ``unless an agency activity, decision, or action is
exempted from NEPA by law or compliance with NEPA is impossible.''
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 if
the agency's authorizing statute does not provide the agency any
discretion to comply with NEPA while also satisfying its statutory
mandate. While NEPA requires agencies ``to use all practicable means''
to achieve the Act's environmental goals, see 42 U.S.C. 4331, the Act
does not limit its procedural requirements in the same fashion.
Instead, it directs agencies to fulfill the obligations in section 102
of NEPA, which establishes NEPA's procedural obligations, ``to the
fullest extent possible,'' 42 U.S.C. 4332, which the Supreme Court has
interpreted to require compliance except for ``where a clear and
unavoidable conflict in statutory authority exists.'' See Flint Ridge
Dev. Co, 426 U.S. at 788. Therefore, revising proposed paragraph (a)(3)
to replace ``impossible'' with ``impracticable'' would be inconsistent
with the statute and deviate from the established legal standard
implementing it.
Finally, CEQ proposed to strike the last sentence of 40 CFR 1500.6
(2020) stating that the CEQ regulations do not limit an agency's other
authorities or legal responsibilities. In the 2020 rule, CEQ stated
that it added this sentence to acknowledge the possibility of different
statutory authorities with different requirements and for consistency
with E.O. 11514, as amended by section 2(g) of E.O. 11991.\62\ CEQ
reconsidered its position and proposed to delete the sentence as
superfluous and unnecessarily vague. CEQ proposed that the revised last
sentence of Sec. 1500.6--agencies must comply with NEPA in carrying
out an activity, decision, or action unless exempted by law (including
where courts have held that a statute is functionally equivalent) or
compliance with NEPA is impossible--accurately reflects the directive
that Federal agencies comply with the CEQ regulations ``except where
such compliance would be inconsistent with statutory requirements.''
\63\ CEQ removes this sentence from 40 CFR 1500.6 (2020) in the final
rule.
---------------------------------------------------------------------------
\62\ E.O. 11514, supra note 26; E.O 11991, supra note 29.
\63\ CEQ, 2020 Final Rule, supra note 39, at 43319.
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C. Revisions To Update Part 1501, NEPA and Agency Planning
CEQ proposed substantive revisions to all sections in part 1501
except Sec. 1501.2, ``Apply NEPA early in the process,'' to which CEQ
proposed minor edits for readability that are non-substantive. CEQ
received a few comments on Sec. 1501.2 requesting additional revisions
but declines to make additional changes in response to the comments,
which are discussed in the Phase 2 Response to Comments.
1. Purpose (Sec. 1501.1)
CEQ proposed to revise Sec. 1501.1 to address the purpose and
goals of part 1501, consistent with the approach in the 1978
regulations, and move the text in paragraph (a) of 40 CFR 1501.1 (2020)
regarding NEPA thresholds to Sec. 1501.3(a). CEQ discusses the
revisions to that paragraph in section II.C.2 of this rule. Multiple
commenters expressed general support for the overall changes to Sec.
1501.1.
First, consistent with the approach in the 1978 regulations, CEQ
proposed to retitle Sec. 1501.1 to ``Purpose,'' and add an
introductory paragraph to indicate that this section would address the
purposes of part 1501. CEQ did not receive any specific comments on
these proposed changes and makes them in the final rule consistent with
the proposal.
Second, in paragraph (a), CEQ proposed to highlight the importance
of integrating NEPA early in agency planning processes by restoring
some of the language from the 1978 regulations, while also including
language that emphasizes that early integration of NEPA promotes an
efficient process and can reduce delay. CEQ proposed these revisions
for consistency 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 did not receive any specific comments
on proposed paragraph (a) and includes it in the final rule as
proposed.
Third, CEQ proposed in paragraph (b) to emphasize early engagement
in the environmental review process to elevate the importance of early
coordination and engagement throughout the NEPA process to identify and
address potential issues early in the decision-making process, thereby
helping to reduce the overall time required to approve a project and
improving outcomes. Multiple commenters expressed support
[[Page 35459]]
for proposed paragraph (b) and the emphasis on early engagement in the
environmental review process. One commenter suggested additional
language to clarify that engagement should occur both prior to and
during preparation of environmental documents. CEQ agrees that public
engagement should continue throughout the NEPA process. However, this
section outlines the purposes of part 1501, and while Sec. 1501.1(b)
emphasizes that engagement should start early in the NEPA process, the
full breadth of appropriate engagement in the NEPA process is more
appropriately discussed in Sec. 1501.9. Therefore, CEQ includes
paragraph (b), which is consistent with other changes throughout the
regulations emphasizing the importance of engagement, as proposed, in
the final rule.
Fourth, CEQ proposed to add a new paragraph (c) to restore text
from the 1978 regulations regarding expeditious resolution of
interagency disputes. One commenter suggested appending ``and in the
best interest of the public'' to the end of paragraph (c) and expressed
concern that the proposed language, particularly the reference to
``fair,'' implies agencies have an interest of their own. The commenter
recommended the regulations clarify that interagency disputes should be
resolved in a manner that advances the public interest and not just the
interests of the agencies.
CEQ adds paragraph (c), as proposed, to the final rule. While CEQ
considers expeditious resolution of interagency disputes to be in the
best interest of the public, the purpose of part 1501 is to facilitate
the resolution of such disputes in an efficient fashion that
accommodates the perspectives, expertise, and relevant statutory
authority of the agencies involved in the dispute.
Fifth, CEQ proposed to add paragraph (d) to restore the direction
to identify the scope of the proposed action and important
environmental issues consistent with Sec. 1501.3, which can enhance
efficiency. One commenter requested clarity on what ``important
environmental issues'' means, while another commenter asserted that all
issues that acutely and negatively impact the environment deserve full
study. One commenter also requested the final rule add language to
clarify that agencies should remove unimportant issues from study or
analysis, not just deemphasize them.
CEQ adds paragraph (d), as proposed, to the final rule. CEQ
declines to make the commenter's recommended changes in paragraph (d).
Agencies must consider all issues during the environmental review
process, but the level of analysis should be commensurate with the
importance of the effect, with some issues requiring less analysis.
This approach is consistent with the approach of the 1978 regulations
that agencies have decades of experience implementing, which indicated
that agencies should ``concentrate on the issues that are truly
significant to the action in question, rather than amassing needless
detail.'' 40 CFR 1500.1(b) (2019).
Sixth, CEQ proposed to add paragraph (e) to 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. CEQ did not receive any specific comments on
proposed paragraph (e) and includes it in the final rule as proposed.
Seventh, as discussed further in section II.C.2, CEQ proposed to
combine the threshold considerations provision with the process to
determine the appropriate level of NEPA review in Sec. 1501.3 by
moving paragraphs (a)(1), (a)(2), (a)(4), and (a)(5) of 40 CFR 1501.1
(2020) to Sec. 1501.3(a)(1), (2), (4), and (4)(ii), respectively, and
striking paragraphs (a)(3) and (a)(6).
CEQ proposed to delete the factor listed in 40 CFR 1501.1(a)(3)
(2020), inconsistency with Congressional intent expressed in another
statute, because upon further consideration, CEQ considers this factor
to have inadequately accounted 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 decision 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 suggested that agencies should seek to go beyond these two
questions to determine Congress's intent regarding NEPA compliance in
enacting another statute, the factor is incorrect.
One commenter objected to CEQ's removal of the factor at 40 CFR
1501.1(a)(3) (2020) directing agencies to consider ``[w]hether
compliance with NEPA would be inconsistent with Congressional intent
expressed in another statute.'' The commenter asserted the proposed
rule does not provide sufficient guidance to Federal agencies to
determine whether an action is consistent with Congressional intent. In
the final rule, CEQ strikes 40 CFR 1501.1(a)(3) (2020) as proposed
because CEQ considers this factor to have inadequately accounted for
agencies' responsibility to harmonize NEPA with other statutes. Section
1501.3(a)(2) of the final rule requires agencies to consider
``[w]hether compliance with NEPA would clearly and fundamentally
conflict with the requirements of another provision of Federal law.''
As discussed further in section II.C.2, Sec. 1501.3(a)(2) incorporates
the language of section 106(a)(3) of NEPA, 42 U.S.C. 4336(a)(3), and
aligns with the statutory mandate in section 102 of NEPA, 42 U.S.C.
4332, that agencies comply with NEPA ``to the fullest extent
possible.'' Therefore, CEQ is removing this factor because it provides
an inadequately rigorous standard for exempting agency actions from
NEPA and is redundant with Sec. 1501.3(a)(2).
CEQ proposed to strike the factor in 40 CFR 1501.1(a)(6) (2020)
regarding functional equivalence to restore the status quo as it
existed in the longstanding 1978 regulations. The NPRM explained that
certain Environmental Protection Agency (EPA) actions are explicitly
exempted from NEPA's environmental review requirements, 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), and courts have found EPA's procedures under certain other
environmental statutes it administers and certain procedures under the
Endangered Species Act (ESA) to be functionally equivalent to or
otherwise exempt from NEPA. See, e.g., Env't Def. Fund, Inc. v. EPA,
489 F.2d 1247, 1256-57 (D.C. Cir. 1973) (exempting agency actions under
the Federal Insecticide, Fungicide, and Rodenticide Act); 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); Douglas
County v. Babbitt, 48 F.3d 1495, 1503 (9th Cir. 1995) (holding that
Endangered Species Act procedures for designating a critical habitat
replace the NEPA requirements). Nevertheless, CEQ considered this
language added to the 2020 rule to go beyond the scope of the NEPA
statute and case law because the language could be construed to expand
functional equivalence beyond the narrow contexts in which it has been
recognized.
Some commenters opposed the proposed removal of the factor on
functional equivalence from 40 CFR 1501.1(a)(6) (2020) as well as in
other provisions of the regulations, including the removal of 40 CFR
1500.1(a), 1506.9,
[[Page 35460]]
1507.3(c)(5), and 1507.3(d)(6) (2020). One commenter asserted that
removing it would extend duplicative activity among agencies. Other
opponents underscored that courts have held on several occasions that
statutes that include their own environmental review processes can make
compliance with NEPA redundant. These commenters asserted that CEQ's
removal of regulatory language recognizing those decisions will
encourage duplication and inefficiency. One commenter asserted that
language in the rulemaking that encourages agencies ``to establish
mechanisms in their agency NEPA procedures to align processes and
requirements from other environmental laws with the NEPA process''
would turn the functional equivalence doctrine on its head, by
requiring a specific statute to give way to a general statute rather
than vice versa.
By contrast, supporters of these changes asserted that the language
in question had no justification in law, and that Congress had
considered incorporating language related to functional equivalence
into NEPA as part of the development of the Fiscal Responsibility Act
but had ultimately chosen not to do so.
CEQ strikes the factor in 40 CFR 1501.1(a)(6) (2020) from the final
rule. As several commenters acknowledged, courts decided some of the
cases addressing functional equivalence before CEQ issued the 1978
regulations, which encouraged agencies to combine environmental
documents with ``any other agency document[s] to reduce duplication and
paperwork,'' 40 CFR 1506.4 (2019),\64\ and to ``adapt[] [their]
implementing procedures authorized by Sec. 1507.3 to the requirements
of other applicable laws.'' 40 CFR 1507.1 (2019). CEQ acknowledges the
continuing validity of the judicial decisions finding EPA's procedures
under certain environmental statutes it administers and certain
procedures under the ESA are functionally equivalent to NEPA. CEQ
considers these circumstances to fall within the scope of the
activities and decisions addressed in Sec. 1501.3(a)(1) as ``exempted
from NEPA by law.'' CEQ considers it unhelpful to separately discuss
functional equivalence in the regulations to avoid suggesting that
other agencies and activities or decisions are also exempted from NEPA.
CEQ disagrees with commenters who contended that the functional
equivalence decisions give agencies license to create new NEPA
exemptions.\65\ Rather, the appropriate approach is for agencies to
align their NEPA procedures with their statutory requirements--an
approach that does not require a more specific statute to give way to a
more general one, as asserted by a commenter, but rather allows
agencies to comply with both statutes at once.
---------------------------------------------------------------------------
\64\ See CEQ, Phase 2 proposed rule, supra note 51, at 49956.
\65\ See also CEQ, Phase 2 proposed rule, supra note 51, at
49959 (``CEQ has concerns about . . . language added by the 2020
rule [in 40 CFR 1507.3(c)(5)] to substitute other reviews as
functionally equivalent for NEPA compliance, and therefore proposes
to remove it.'').
---------------------------------------------------------------------------
Eighth, CEQ proposed to remove the language in paragraph (b) of 40
CFR 1501.1 (2020) allowing agencies to make threshold determinations
individually or in their NEPA procedures because CEQ proposed 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. CEQ also proposed to
strike this language because it is redundant to language in Sec.
1507.3(d)(1), which provides that agency NEPA procedures may identify
activities or decisions that are not subject to NEPA.
Ninth, CEQ proposed to remove as unnecessary paragraph (b)(1) of 40
CFR 1501.1 (2020) 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 proposed to eliminate paragraph (b)(2) of 40 CFR
1501.1 (2020) directing agencies to consult with another agency when
they jointly administer a statute if they are making a threshold
applicability determination. CEQ proposed to delete this paragraph
because 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.
One commenter expressed appreciation for the consolidation of
threshold considerations from paragraph (b) but asserted that the final
rule should retain an acknowledgement that the threshold considerations
are a non-exhaustive list and that agencies should identify
considerations on a case-by-case basis. CEQ considers the language in
Sec. Sec. 1501.3(a) and 1507.3(d)(1) to address the commenter's
concern and removes paragraphs (b), (b)(1), and (b)(2) of 40 CFR 1501.1
(2020) in the final rule.
2. Determine the Appropriate Level of NEPA Review (Sec. 1501.3)
CEQ proposed 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
proposed clarifying edits, including adding paragraph headings to
paragraphs (a) through (d). CEQ proposed these revisions to clarify the
steps for assessing the appropriate level of NEPA review to facilitate
a more efficient and predictable review process.
First, as noted in section II.C.1, CEQ proposed to move paragraph
(a) of 40 CFR 1501.1 (2020) to a new Sec. 1501.3(a), title it
``Applicability,'' and add a sentence requiring agencies to determine
whether NEPA applies to a proposed activity or decision as a threshold
matter. CEQ proposed this move because the inquiry into whether NEPA
applies is a component of determining the level of NEPA review. CEQ
proposed to consolidate the steps in this process into one regulatory
section to improve the clarity of the regulations. CEQ also noted that
this consolidated provision is consistent with the approach in section
106 of NEPA, which addresses threshold determinations on whether to
prepare an EA/FONSI or EIS. 42 U.S.C. 4336. In moving the text, CEQ
proposed to strike ``or is otherwise fulfilled'' after ``[i]n assessing
whether NEPA applies'' because, as discussed in section II.C.1, CEQ
proposed to remove the functional equivalence factor from the
regulation.
Second, CEQ proposed to move the threshold determination factors
agencies should consider when determining whether NEPA applies from
paragraphs (a)(1) and (a)(2) of 40 CFR 1501.1 (2020), to proposed
paragraphs (a)(1) and (2), respectively. CEQ proposed to align the text
in paragraph (a)(1) with the language proposed in Sec. 1500.6 by
deleting ``expressly'' and replacing ``exempt from NEPA under another
statute'' with ``exempted from NEPA by law.'' CEQ proposed to 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. 42 U.S.C. 4336(a)(3).
One commenter requested that the final rule revise paragraph (a)(2)
to clarify that in the event of a clear and fundamental conflict with
another law, an agency should consider ``whether NEPA or that provision
prevails under legal rules for resolving such conflicts between Federal
laws.'' In requesting
[[Page 35461]]
this revision, the commenter described that if a situation arises in
which NEPA clearly and fundamentally conflicts with a provision of
State, Tribal, or local law, the agency has no further assessment to
make before determining that NEPA prevails. However, if a situation
arises in which NEPA clearly and fundamentally conflicts with another
provision of a Federal law or a U.S. treaty with a foreign power, the
commenter asserted the agency must make further assessments before it
can determine whether NEPA or the other provision prevails.
In the final rule, CEQ moves paragraph (a) of 40 CFR 1501.1 (2020)
to a new Sec. 1501.3(a), ``Applicability,'' and makes the changes to
paragraph (a) as proposed. CEQ also moves paragraphs (a)(1) and (a)(2)
of 40 CFR 1501.1 (2020), to Sec. 1501.3(a)(1) and (2), respectively,
except that CEQ adds the word ``Federal'' to the phrase ``another
provision of law.'' CEQ interprets section 106(a)(3), 42 U.S.C.
4336(a)(3), in light of the bedrock legal principle established by the
Supremacy Clause of the Constitution that State, Tribal, or local laws
do not override Federal law, the corollary that the Federal Government
is not subject to State regulation in the absence of clear and
unambiguous Congressional authorization, see EPA v. California ex rel.
State Water Resources Control Bd., 426 U.S. 200, 211 (1976), and
decades of case law that predated the NEPA amendments and informed
CEQ's 2020 rule considering whether NEPA conflicts with another Federal
law. See, e.g., Flint Ridge Development Co. v. Scenic Rivers Ass'n of
Oklahoma, 426 U.S. 776, 788 (1976). To improve the clarity of the NEPA
regulations, CEQ adds the word ``Federal'' to the sentence to avoid any
potential confusion that non-Federal legal requirements can override
NEPA. CEQ disagrees that an agency must apply principles of statutory
interpretation to determine whether NEPA applies where its application
would present a clear and fundamental conflict with the requirements of
another provision of Federal law, because section 106(a) of NEPA
provides that in such circumstances ``an agency is not required to
prepare an environmental document with respect to a proposed agency
action.'' 42 U.S.C. 4336(a).
Third, CEQ proposed a new factor in paragraph (a)(3) to address
circumstances where statutory provisions applicable to a proposed
activity or decision make compliance with NEPA impossible. CEQ
explained in the proposed rule that this factor is consistent with case
law, principles of statutory construction, and 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. 42 U.S.C. 4332(1).
One commenter recommended the final rule change ``impossible'' to
``impracticable'' while another commenter suggested that the final rule
remove paragraph (a)(3) because it is duplicative of paragraph (a)(2).
CEQ has considered the comments and agrees that proposed paragraph
(a)(3) is duplicative of proposed paragraph (a)(2) and could therefore
cause confusion. Therefore, CEQ does not include proposed paragraph
(a)(3) in the final rule.
Fourth, consistent with section 106(a)(1) and (4) of NEPA, 42
U.S.C. 4336(a)(1) and (4), CEQ proposed to move the threshold
determination factor regarding whether the activity or decision is a
major Federal action from paragraph (a)(4) of 40 CFR 1501.1 (2020) and
the factor regarding whether the activity or decision is non-
discretionary from paragraph (a)(5) of 40 CFR 1501.1 (2020), to
proposed Sec. 1501.3(a)(4) and (a)(4)(ii), respectively. CEQ proposed
to add a new paragraph (a)(4)(i) to add the factor regarding whether
the proposed activity or decision is a final agency action under the
APA. CEQ proposed 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 CEQ
also proposed these as exclusions from the definition of ``major
Federal action.'' The proposed rule explained that when agencies assess
whether an activity or decision is a major Federal action, agencies
determine whether they have discretion to consider environmental
effects consistent with the definition of ``major Federal action'' in
Sec. 1508.1.
One commenter recommended the final rule exclude proposed paragraph
(a)(4) because the question of whether NEPA applies precedes the
determination of whether the proposed action is a major Federal action,
and there is no need to consider whether an action is a major Federal
action if NEPA does not apply to the action. Other commenters
recommended proposed paragraphs (a)(4), (a)(4)(i), and (a)(4)(ii) be
separated from paragraph (a) in order to clearly distinguish the
factors for threshold applicability determination from the definition
of ``major Federal action.''
In the final rule, CEQ moves paragraph (a)(4) of 40 CFR
1501.1(2020) regarding major Federal action to Sec. 1501.3(a)(3) and
adds a cross reference to the definition Sec. 1508.1(w). CEQ makes
this revision to enhance the clarity of the regulation and for
consistency with section 106(a) of NEPA. 42 U.S.C. 4336(a). CEQ
disagrees with the commenter that determining whether an action
constitutes a major Federal action is not a component of determining
NEPA applicability or that treating this determination separately will
improve efficiency. Agencies have the flexibility to consider the
factors in paragraph (a) in any order and, therefore, the regulation
does not require an agency to evaluate whether an action is a major
Federal action if NEPA does not apply to it for other reasons.
In the final rule CEQ adds proposed paragraph (a)(4)(i) regarding
final agency action to Sec. 1501.3(a)(4) to make this a stand-alone
factor, rather than a component of determining whether an action is a
major Federal action, for consistency with section 106(a) of NEPA and
improved clarity. 42 U.S.C. 4336(a). The final rule also adds the word
``not'' to paragraph (a)(4), so that it reads ``[w]hether the proposed
activity or decision is not a final agency action'' for consistency
with section 106(a)(1) of NEPA and parallelism with the other factors,
which identify circumstances in which NEPA does not apply. 42 U.S.C.
4336(a)(1). CEQ notes that this factor requires the agency to evaluate
whether the proposed action would be a final agency action if
ultimately taken by the agency. CEQ does not include a cross reference
to the definition of ``major Federal action'' as proposed because the
final rule does not include this as an exclusion from the definition.
Lastly within paragraph (a), CEQ moves paragraph (a)(5) of 40 CFR
1501.1 (2020) on non-discretionary actions to Sec. 1501.3(a)(5) to
make this a stand-alone factor, rather than a sub-factor of major
Federal action, for consistency with section 106(a)(4) of NEPA. 42
U.S.C. 4336(a)(4). While non-discretionary actions are excluded from
the definition of ``major Federal action'' in section 111(10) of NEPA
and Sec. 1508.1(w), Congress determined that it was important to
highlight this category as a component of determining NEPA
applicability, and CEQ considers it appropriate for the regulations to
do so as well. 42 U.S.C. 4336e(10). CEQ does not include a cross
reference to the definition of ``major Federal action'' as proposed
because the language in the statutory exclusion from the definition of
``major Federal action'' is different from this exclusion.
CEQ notes that where some components of an action are non-
discretionary, but others are
[[Page 35462]]
discretionary, an agency can exclude considerations of the non-
discretionary components from its NEPA analysis. That circumstance more
logically presents an issue of the appropriate scope of the analysis,
rather than of NEPA applicability, so, as discussed below, CEQ has
included a reference to it in paragraph (b). For example, if a statute
mandated an agency to make an affirmative decision once a set of
criteria are met, but the agency has flexibility in how to meet those
criteria, the agency exercises discretion on aspects of its decision
and an analysis of alternatives and effects would inform the agency's
exercise of discretion. Similarly, if a statute directs an agency to
take an action, but the agency has discretion in how it takes that
action, the agency can still comply with NEPA while carrying out its
statutory mandate.
Fifth, CEQ proposed to move, with clarifying edits and additions,
paragraph (e) and its subparagraphs of 40 CFR 1501.9 (2020),
``Determination of scope,'' to a new 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 proposed moving into Sec.
1501.3(b) one sentence from paragraph (a) of 40 CFR 1502.4 (2020)
directing agencies to evaluate in a single NEPA review proposals
sufficiently closely related to be considered a single action, and the
text from paragraph (e)(1) of 40 CFR 1501.9 (2020) regarding connected
actions, which are closely related Federal activities or decisions that
agencies should consider in a single NEPA document. CEQ proposed to
move paragraphs (e)(1)(i) through (e)(1)(iii) of 40 CFR 1501.9 (2020)
providing the types of connected actions into Sec. 1501.3(b)(1)
through (b)(3), respectively.
CEQ proposed these changes because this longstanding principle from
the 1978 regulations--that agencies should not improperly segment their
actions--is relevant not only when agencies are preparing EISs, but
also when agencies determine whether to prepare an EA or apply a CE.
See, e.g., Fath v. Texas DOT, 924 F.3d 132, 137 (5th Cir. 2018)
(``Agencies generally should not segment, or divide artificially a
major Federal action into smaller components to escape the application
of NEPA to some of its segments.'') (quotations omitted). CEQ proposed
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. Because
including this provision in Sec. 1501.3 would make it applicable to
environmental reviews other than EISs, CEQ proposed to strike the
sentence that accompanied the text in 40 CFR 1502.4(a) (2020) directing
the lead agency to determine the scope and significant issues for
analysis in the EIS as part of the scoping process. CEQ proposed in
Sec. 1501.3(b)(1) to make a conforming change of ``environmental
impact statements'' to ``NEPA review.''
Multiple commenters provided feedback on the first sentence of
proposed Sec. 1501.3(b) suggesting the final rule include additional
language to limit it to an action that is under Federal agency control,
and that NEPA reviews should not be used as a ``Federal handle'' to
subject an entire project to Federal review where the Federal action
comprises only one portion of the project. CEQ declines these edits
because the sentence in question appropriately directs agencies to
consider the scope of the proposed action and its potential effects
consistent with longstanding agency practice.
In the final rule, CEQ moves paragraphs (e) and (e)(1) of 40 CFR
1501.9 (2020), to Sec. 1501.3(b), and moves paragraph (e)(1)(i)
through (e)(1)(iii) of 40 CFR 1501.9 (2020) to Sec. 1501.3(b)(1)
through (b)(3), respectively. CEQ adds the first sentence of proposed
Sec. 1501.3(b) as proposed with an additional phrase ``whether aspects
of the action are non-discretionary'' at the end of the first sentence
for consistency with agency practice and case law recognizing that
where some aspects of an agency's action are non-discretionary, the
agency can properly exclude them from the scope of its analysis. Adding
this reference to this sentence clarifies that while NEPA does not
apply to an action that is wholly non-discretionary, agencies should
approach circumstances in which aspects of an action are non-
discretionary, but others are discretionary, as a component of
determining scope.
Another commenter suggested use of ``potential effects'' be
replaced with ``reasonably foreseeable effects'' to emphasize that
agencies are not required to consider effects that are not reasonably
foreseeable. CEQ agrees that an agency only needs to consider
reasonably foreseeable effects in determining the scope of analysis but
declines to make this change as the word ``effects'' is a defined term
in the regulations meaning reasonably foreseeable effects. Upon further
consideration, CEQ deletes the word ``potential'' before the word
``effects'' to avoid any confusion that agencies must consider effects
other than reasonably foreseeable effects.
Some commenters requested additional clarity on the meaning of
scope and how determination of scope under paragraph (b) relates to
public engagement and the scoping process under Sec. 1502.4. CEQ adds
a new second sentence to paragraph (b) to require agencies to use, as
appropriate, the public engagement and scoping mechanisms in Sec. Sec.
1501.9 and 1502.4 to inform consideration of the scope of the proposed
action and determination of the level of NEPA review. CEQ adds this
language, consistent with other changes made in Sec. Sec. 1501.9 and
1502.4 to better explain the connection between scope, scoping, and
public engagement.
One commenter requested clarity on the relationship between the
second and third sentences of proposed Sec. 1501.3(b), specifically
suggesting deletion of the second sentence and revisions to the third
sentence to provide a clearer standard for connected actions. Another
commenter requested the final rule exclude ``Federal'' in the proposed
sentence. CEQ declines the suggested edits. These sentences are based
on longstanding provisions from 40 CFR 1502.4 and 1501.9(e)(1) (2020)
and 40 CFR 1508.25(a)(1) (2019), and agencies have decades of
experience applying them, including experience identifying those
components of a project that have independent utility and therefore can
be analyzed separately without running afoul of the prohibition on
segmentation. The two regulatory requirements of the proposed second
and third sentences--prohibiting agencies from breaking up a single
``action'' into separate reviews and requiring them to review together
closely related ``connected actions''--are related but distinct
requirements, which is why CEQ included them in a single paragraph but
in different sentences. CEQ also disagrees that connected actions
should be broadened to include non-Federal actions. Non-Federal actions
have long been excluded from connected actions because the purpose of
the doctrine is to prevent the Federal Government from segmenting
Federal actions into separate projects and thereby failing to consider
the scope and impact of the Federal activity. See Sierra Club v. U.S.
Army Corps of Engineers, 803 F.3d 31 (D.C. Cir. 2015). Including non-
Federal actions as connected actions would be inconsistent with the
purpose of the concept and unsettle an aspect of the NEPA
implementation that has been stable for decades.
One commenter suggested that CEQ add language to Sec. 1501.3(b)
stating that
[[Page 35463]]
to avoid segmentation, projects that are separate and distinct must
have a logical end point; substantial independent utility; do not
foreclose the opportunity to consider alternatives; and do not
irretrievably commit Federal funds for closely related projects during
the same time period, place, and type. CEQ declines to adopt the
language suggested by the commenter. CEQ recognizes that some courts
and agencies have included similar language in decisions and agency
NEPA procedures (see, e.g., Del. Riverkeeper Network v. FERC, 753 F.3d
1304, 1315 (D.C. Cir. 2014) (quoting Taxpayers Watchdog, Inc. v.
Stanley, 819 F.2d 294, 298 (D.C. Cir. 1987))); 23 CFR 771.111(f))
(2018), but considers providing additional details on segmentation more
appropriately addressed in agency procedures that can be tailored to
specific agency programs and actions.
In moving the text from 40 CFR 1501.9(e) (2020) to Sec. 1501.3(b),
CEQ proposed to strike paragraphs (e)(2) and (e)(3) of 40 CFR 1501.9
(2020) relating to alternatives and impacts, respectively. CEQ proposed
to delete these paragraphs because both the 2020 regulations and the
proposed rule separately address the analyses of alternatives and
effects regarding EISs (Sec. Sec. 1502.14, 1502.15) and EAs (Sec.
1501.5(c)(2)(ii) and (c)(2)(iii)). CEQ considers it to be premature in
the process, unnecessary, and unhelpful to address alternatives as part
of determining the level of NEPA review.
One commenter requested the final rule provide a better explanation
regarding the deletion of 40 CFR 1501.9(e)(2) and (e)(3) (2020) and
requested that CEQ provide more direction and guidance on consideration
of alternatives and impacts. The commenter stated that this text has
been in the regulations since 1978 and requested clearer justification
for the changes. CEQ agrees that the effects of a proposed action are
relevant to determining the scope of the action and analysis, which is
why the first sentence of Sec. 1501.3(b) references effects. However,
CEQ does not consider alternatives to be relevant to identifying the
scope of action and analysis under paragraph (b), which is intended to
inform an agency's determination under paragraph (c) of the appropriate
level of review.
In the final rule, CEQ adds the second sentence from proposed
paragraph (d)(2)(vi), in which CEQ proposed to include an intensity
factor from the 1978 regulations related to the relationship of
actions, to be the fourth sentence of Sec. 1501.3(b). CEQ revises the
language for clarity to specify that agencies ``shall not term an
action temporary that is not temporary in fact or segment an action
into smaller component parts to avoid significant effects.'' CEQ has
made this change in the final rule because the text in proposed
paragraph (d)(2)(vi) directs agencies not to segment actions, which is
more appropriately addressed in the paragraph on scope than in the
paragraph on intensity.
Sixth, CEQ proposed to redesignate paragraph (a) of 40 CFR 1501.3
(2020) as paragraph (c), title it ``Levels of NEPA review,''
incorporate the language of section 106(b)(3) of NEPA, 42 U.S.C.
4336(b)(3), addressing the sources of information agencies may rely on
when determining the appropriate level of NEPA review, and redesignate
paragraphs (a)(1) through (a)(3) describing three levels of review--
CEs, EAs, and EISs--as paragraphs (c)(1) through (c)(3), respectively
without change.
CEQ received multiple comments on the incorporation of section
106(b)(3) of NEPA into proposed paragraph (c). 42 U.S.C. 4336(b)(3).
Some commenters supported this incorporation, while others urged CEQ to
limit the standard established in section 106(b)(3) to the
determination of whether to prepare an EA or an EIS. CEQ disagrees with
these commenters and adds the proposed language in the final rule
because CEQ considers it appropriate to direct agencies to make use of
any reliable data source in considering whether to apply a CE to an
action and notes that a decision based on unreliable data would likely
be inconsistent with the principles of reasoned decision making. CEQ
also considers the approach to reliable data and producing new research
in section 106(b)(3) to be consistent with longstanding practice and
case law and appropriate to apply broadly to an agency's determination
of the appropriate level of NEPA review, including a determination that
no such review is required. 42 U.S.C. 4336(b)(3). Moreover, because
section 106(b)(3)(B) provides that an agency ``is not required to
undertake new scientific or technical research'' outside of the
identified circumstances, making this language inapplicable to CE
determinations would mean that agencies have a broader (but undefined)
obligation to undertake new scientific or technical research for those
determinations. 42 U.S.C. 4336(b)(3). Such a result would undermine the
efficiency of CEs and create confusion for agencies.
Multiple commenters requested additional guidance from CEQ on how
to apply the standard, what is considered a reliable data source, what
costs or delays make obtaining new information unreasonable, and how
long information will continue to be considered reliable. CEQ considers
those questions to raise detailed or fact-specific issues that may be
better suited to address in guidance or by agencies in considering
specific NEPA reviews. CEQ notes that agencies have extensive
experience in assessing the reliability of information in the NEPA
process, and the regulations provide additional direction in Sec. Sec.
1502.21 and 1506.6. CEQ will consider whether additional guidance is
necessary to assist agencies in applying the standard.
CEQ makes these revisions as proposed in the final rule with one
clarifying change to paragraph (c)(1) to replace ``[n]ormally does not
have significant effects and is'' with ``[i]s appropriately.'' As
phrased, this provision could be read to conflict with the process
provided for in Sec. 1501.4(b) for an agency to determine that a
proposed action can be categorically excluded notwithstanding the
existence of extraordinary circumstances. This change also provides for
a parallel structure with paragraphs (c)(2) and (c)(3).
Seventh, CEQ proposed to redesignate paragraph (b) of 40 CFR 1501.3
(2020) 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). The proposed rule explained that because this
text provides direction on how agencies determine the significance of
an effect, rather than a definition, addressing significance
determinations in Sec. 1501.3 is more appropriate than Sec. 1508.1.
Eighth, CEQ proposed to modify the introductory language in
paragraph (d) by replacing the requirement that agencies ``analyze the
potentially affected environment and degree of the effects'' with a
requirement for 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 proposed to strike the second sentence of
40 CFR 1501.3(b) (2020) requiring agencies to consider connected
actions because this concept would be included in proposed paragraph
(c).
Multiple commenters expressed support for the overall restoration
of the context and intensity factors, as well as the proposed expansion
of the factors, asserting that doing so aligns with
[[Page 35464]]
longstanding case law and adds certainty to the process. A few
commenters generally opposed the reintroduction and expansion of the
factors, asserting they would expand the scope of NEPA review rather
than encourage streamlining and that the expansion of the factors is
inconsistent with the statutory amendments to NEPA. A few commenters
requested that proposed paragraph (d) clarify that agencies may
consider mitigation in making a significance determination.
In the final rule, consistent with the proposal, CEQ redesignates
paragraph (b) of 40 CFR 1501.3 (2020) as Sec. 1501.3(d), titles it
``Significance determination--context and intensity,'' revises the
first sentence of paragraph (d) with additional modifications to the
proposal, and strikes the second sentence of 40 CFR 1501.3(b) (2020).
CEQ adds and revises the factors as discussed further in this section.
CEQ disagrees that the factors will expand the scope of NEPA review.
Rather, these factors, including the additional factors, will assist
agencies in determining the appropriate level of NEPA review for their
proposed actions by focusing their review on the critical factors in
determining significance.
As discussed further in this section, CEQ moves language regarding
beneficial and adverse effects as well as the language regarding
segmentation to the end of paragraph (d) in response to commenters'
recommendations because this language is more generally applicable and
not specific to context or intensity. Finally, CEQ declines to address
the role of mitigation in this paragraph. CEQ has clarified in Sec.
1501.6 that if an agency determines that a proposed action would not
have a significant effect because of the implementation of mitigation,
then the agency must document its finding in a mitigated FONSI.
Therefore, addressing mitigation and its relation to significance is
unnecessary in this paragraph.
Ninth, CEQ proposed to strike 40 CFR 1501.3(b)(1) (2020), replace
it with proposed paragraph (d)(1), and restore the requirement for
agencies to analyze the significance of an action in several contexts
consistent with the 1978 regulations. CEQ also proposed to add examples
of contexts that may be relevant. In the first sentence, CEQ proposed
to encourage agencies to consider the characteristics of the relevant
geographic area, such as proximity to unique or sensitive resources or
vulnerable communities. The proposed rule indicated that such resources
may include historic or cultural resources, Tribal sacred sites, and
various types of ecologically sensitive areas. CEQ explained that this
revision relates to the intensity factor in proposed paragraph
(d)(2)(iii), which CEQ proposed to restore from the 1978 regulations.
CEQ proposed to include it as a context factor as well since it relates
to the setting of the proposed action and to encourage agencies to
consider proximity to communities with environmental justice concerns.
CEQ also proposed to add a third sentence to paragraph (d)(1)
encouraging agencies to consider the potential global, national,
regional, and local contexts, which may be relevant depending on the
scope of the action, consistent with the 2020 and 1978 regulations.
Additionally, CEQ proposed 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 40 CFR 1501.3(b)(2)(i) (2020) to the
end of the third proposed sentence in paragraph (d)(1) to encourage
agencies to consider the duration of the potential effects whether they
are anticipated to be short- or long-term.
Multiple commenters expressed support for the proposed restoration
of the consideration of context in determining significance, asserting
that doing so is consistent with case law and would promote compliance
with NEPA's mandate to consider all significant effects. A few
commenters requested the regulations define or add clarity on the terms
``unique or sensitive resources,'' ``vulnerable communities,'' and
``relevant geographic area.'' Some commenters supported the use of
these terms while others expressed concern that without clear
definitions there could be project delays or increased litigation risk.
In the final rule CEQ strikes 40 CFR 1501.3(b)(1) (2020) and
replaces it in Sec. 1501.3(d)(1) with the text in proposed paragraph
(d)(1) with a few modifications. CEQ notes that paragraph (d)(1)
requires agencies to analyze the significance of an action in several
contexts, as evidenced by use of the term ``shall'' in the first
sentence, while the second and third sentences use ``should'' to
clarify that the determination the appropriate contextual factors will
depend on the particular proposed action. In the final rule, CEQ uses
the term ``communities with environmental justice concerns'' instead of
``vulnerable communities'' because CEQ has added this as a defined term
in Sec. 1508.1, and it is consistent with use of this term elsewhere
in the rule. CEQ excludes the word ``relevant'' before ``geographic
area'' in the final rule text as an unnecessary modifier since the
encouragement is to consider the geographic area of the proposed
action, which will necessarily depend on the context and scope of the
proposed action. Moreover, agencies have decades of experience
implementing a similar provision in the 1978 regulations, which did not
include the word ``relevant'' before ``geographic area,'' and the
addition of ``relevant'' could have the unintended consequence of
indicating to agencies that this provision requires a substantially
different analysis. CEQ declines to define ``geographic area'' and
``unique or sensitive resources'' as these phrases have been used in
the regulations since 1978, and agencies have extensive experience
interpreting them in the context of particular proposed actions.
Further, CEQ is unaware of any misunderstanding about the meaning of
these phrases and is concerned that adding a new regulatory definition
could be disruptive for agencies.
Some commenters expressed support for the language encouraging
agencies to consider the potential global, national, regional, and
local contexts. Other commenters opposed the inclusion of all four
contexts, and in particular the inclusion of ``global,'' stating that
requiring agencies to consider all four would expand the complexity and
scope of NEPA reviews and lead to inappropriate determinations that
certain projects require an EIS, strain agency resources, cause delays
and increase litigation risk, and allow subjectivity to be introduced
to the decision. Other commenters requested more clarity on the types
of actions that require consideration of potential global, national,
regional, and local contexts, with another commenter requesting that
the language be modified to provide flexibility to consider appropriate
geographic contexts based on the site-specific action rather than
always require evaluation of all four contexts.
In the final rule, CEQ includes the language on global, national,
regional, and local contexts as proposed in Sec. 1501.3(d)(1). The
2020 rule described ``context'' as related 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.\66\ CEQ has reconsidered this approach and
now finds it to be unhelpful and potentially limiting. While CEQ agrees
that the contexts relevant to an agency's assessment of significance
will be those that are potentially affected, identifying
[[Page 35465]]
the global, national, regional, and local contexts reminds agencies
that they should consider whether proposed actions have reasonably
foreseeable effects across these various contexts. Describing context
in this manner is also consistent with the decades of experience
agencies had implementing the 1978 regulations and is consistent with
the concepts of indirect and cumulative effects. CEQ has also
reconsidered the statement in the 2020 rule that the affected
environment, is ``usually'' only the local area, 40 CFR 1501.3(b)(1)
(2020) (``For instance, in the case of a site-specific action,
significance would usually depend only upon the effects in the local
area.'') (emphasis added), because many Federal actions have reasonably
foreseeable effects that extend regionally, nationally, or globally.
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\66\ CEQ, 2020 Final Rule, supra note 39, at 43322.
---------------------------------------------------------------------------
CEQ notes that Sec. 1501.3(d)(1) does not require agencies to
evaluate all four contexts--global, national, regional, and local--for
every proposed action. Rather, agencies should determine the
appropriate contexts to consider based on the scope of the action and
its anticipated reasonably foreseeable effects.
CEQ disagrees with commenters' assertion that this language will
lead agencies to expand the evaluation of effects beyond those that are
reasonably foreseeable. This provision provides guidance to agencies on
how to determine whether an effect is significant, and the word
``effect'' is a defined term in the regulations that is always limited
to reasonably foreseeable effects. This text recognizes that the
global, national, regional, or local context may bear on assessing the
significance of reasonably foreseeable effects. For example, in
determining the significance of an effect on highly migratory marine
species that travels thousands of miles each year from waters around
Antarctica to the Arctic Ocean, the agency may need to consider the
global context in which the species migrates, including other stressors
that occur at other points of the migration route. Conversely, dam
operations in a transboundary watershed may have consequences on
aquatic ecosystems that are appropriately considered at the regional or
watershed level and that may need to consider management and stressors
extending across national boundaries. The regional nature of the
resource effects, however, may not necessitate an analysis of global
context. A decision to fund a project to construct a building to
provide additional office space for a Federal agency on previously
developed land may have consequences limited to the local area around
the new building, and may not necessitate an analysis of global, State,
or regional context.
Tenth, CEQ proposed to strike 40 CFR 1501.3(b)(2) (2020), replace
it with proposed paragraph (d)(2), and reinstate ``intensity'' as a
consideration in determining significance, which CEQ reframed in the
2020 rule as the ``degree'' of the action's effects. Specifically, CEQ
proposed to strike the sentence in 40 CFR 1501.3(b)(2) (2020)
encouraging agencies to consider the list of factors in assessing the
degree of effects and replace it with a requirement to analyze the
intensity of effects in light of the list of factors as applicable to
the proposed action and in relation to one another. CEQ proposed to
reinstate consideration of intensity because the concept of intensity
and the intensity factors have long provided agencies with guidance in
how the intensity of an action's effects may inform the significance
determination. Further, CEQ noted it had reconsidered its position in
the 2020 rule that removal of intensity as a consideration was based in
part on the proposition that effects are not required to be intense or
severe to be considered significant.\67\ 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.
---------------------------------------------------------------------------
\67\ CEQ, 2020 Final Rule, supra note 39, at 43322.
---------------------------------------------------------------------------
Multiple commenters expressed general support for the restoration
of the intensity factors in the proposed rule or identified support for
specific factors, whereas others expressed general opposition or
opposition to particular factors. One commenter suggested that the
final rule replace the phrases ``potential'' and ``degree to which the
proposed action may adversely affect'' in proposed paragraphs
(d)(2)(ii), (iii), (v), (viii), and (x) with ``the degree of any
reasonably foreseeable adverse effect of the proposed action on.'' The
commenter also suggested the final rule revise paragraph (d)(2)(ix) to
``the degree of any reasonably foreseeable and disproportionate adverse
effects from the proposed action on communities with environmental
justice concerns.'' The commenter asserted these changes would focus
the consideration on reasonably foreseeable effects, consistent with
the statute, while ``may adversely affect'' could be read to mean
agencies should consider speculative scenarios and effects that are not
reasonably foreseeable. Other commenters made similar suggestions,
requesting the regulations consistently refer to ``reasonably
foreseeable effects.'' Relatedly, a commenter recommended the
regulations consistently refer to ``the proposed action,'' rather than
``the action'' in the factors. Some commenters opposed the inclusion of
``adverse'' in front of multiple factors.
CEQ declines to make these changes in the final rule. The intensity
factors inform an agency's determination of whether an effect is
significant, and the word ``effect'' is a defined term that means
reasonably foreseeable effects. Therefore, paragraph (d)(2) applies
only to reasonably foreseeable effects and repeating the phrase
``reasonably foreseeable'' throughout this paragraph is unnecessary.
CEQ retains ``adverse'' in the final rule consistent with the
definition of ``significant effects'' and the language in Sec.
1501.3(d), which clarify that only adverse effects can be significant.
Eleventh, CEQ proposed to clarify in proposed paragraph (d)(2)(i)
that agencies should focus on adverse effects in determinations of
significance, consistent with NEPA's policies and goals as set forth in
section 101 of the statute. 42 U.S.C. 4331. CEQ proposed to redesignate
paragraph (b)(2)(ii) of 40 CFR 1501.3 (2020) as paragraph (d)(2)(i)
regarding beneficial and adverse effects and revise it to state that
``[e]ffects may be beneficial or adverse'' but ``only actions with
significant adverse effects require an [EIS].''
CEQ proposed to add a third sentence to this paragraph to indicate
that a significant adverse effect may exist even if the agency
considers that on balance the effects of the action will be beneficial.
The proposed rule explained that this provision is intended to be
distinct from weighing beneficial effects against adverse effects to
determine that an action's effects on the whole are not significant.
Rather, 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 proposed to strike paragraph (b)(2)(i) of 40 CFR 1501.3 (2020)
but incorporate the text into a fourth sentence in paragraph (d)(2)(i)
to clarify that agencies should consider the duration of effects and
include an example of such consideration--an action with short-term
adverse effects but long-term beneficial effects. The proposed rule
explained that 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.
[[Page 35466]]
Multiple commenters supported proposed paragraph (d)(2)(i),
expressing support for the qualification that only actions with
significant adverse effects require an EIS because it will reduce
expenditure of agency resources on unnecessary EISs, streamline the
NEPA process, and promote a holistic review of projects. One commenter
cited Friends of Fiery Gizzard v. Farmers Home Admin., 61 F.3d 501 (6th
Cir. 1995) to support CEQ's proposed approach.
Multiple commenters also opposed the proposal to only require an
EIS for actions with significant adverse effects. Some commenters
asserted that proposed (d)(2)(i) and the reference to adverse effects
in other proposed intensity factors would illegally limit the scope of
NEPA because the statutory requirement to prepare an EIS does not
distinguish between adverse and beneficial effects. A few commenters
cited case law that they argued contravenes the proposed change. Hiram
Clarke Civil Club v. Lynn, 476 F.2d 421 (5th Cir. 1973); Environmental
Defense Fund v. Marsh, 651 F.2d 983 (5th Cir. 1981). One commenter also
asserted the proposal poses a risk that agencies will not assess
significant adverse effects or evaluate less damaging alternatives, and
that the proposed provision could be interpreted to give agencies
discretion to opt out of preparing an EIS based on unsupported claims
that the project will be beneficial or based on the project's stated
intent. One commenter further asserted that almost no environmentally
significant project completely avoids all potentially significant
adverse effects and also expressed concern about the lack of an EIS
limiting the opportunity for the public to provide comment where they
might raise other potentially adverse effects. A few commenters
expressed concern that the proposed language favors a certain type of
project over another without statutory or factual support for doing so.
Some commenters interpreted the language in the last two sentences
of proposed paragraph (d)(2)(i) to read that CEQ supported a
``netting'' approach to EISs, whereby if an action has significant
adverse effects but had net beneficial effects then the agency would
not have to prepare an EIS. Some commenters supported this
interpretation while others opposed it. A few commenters requested CEQ
clarify that the significance determination through the application of
context and intensity factors across timescales or duration applies to
each individual ``effect category'' that is implicated by the proposed
action. The commenters state that without this clarification, decision
makers could conflate categories of effects by considering an action's
effects as a whole thereby dismissing significant adverse effects
within an individual category on a given timescale if the decision
maker determines the action is beneficial overall. Another commenter
requested the regulations clarify that an EIS is not required where the
beneficial effects of a proposed action outweigh its adverse effects.
In the final rule, CEQ addresses the concept that only adverse
effects are significant by moving the last sentence of proposed
paragraph (d)(2)(i) to paragraph (d) and revising it because this
concept is a more general consideration and not specific to intensity.
CEQ also includes a definition of ``significant effect'' in Sec.
1508.1 to provide further clarity.
Specifically, CEQ strikes 40 CFR 1501.3(b)(2)(i) and (ii) (2020)
because Sec. 1501.3(d) addresses consideration of the duration of
effects and whether a particular category of effect is adverse or
beneficial coupled with the definition of ``significant effects'' in
Sec. 1508.1(mm). CEQ includes the first clause of the last sentence of
proposed paragraph (d)(2)(i), encouraging agencies to consider the
duration of effects, as the second sentence of Sec. 1501.3(d) and adds
an introductory clause to the sentence: ``[i]n assessing context and
intensity.'' CEQ also makes ``effects'' singular to emph
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