Rule2025-12280
Removal of Environmental Impact Analysis Process (EIAP) Regulation
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 1, 2025
Effective
July 1, 2025
Issuing agencies
Defense DepartmentAir Force Department
Abstract
The DAF is rescinding its National Environmental Policy Act (NEPA) regulations because the Council on Environmental Quality's (CEQ) NEPA regulations, which they were meant to supplement, have been rescinded, and because the DoD is promulgating Department-wide NEPA procedures that will guide DAF's NEPA process.
Full Text
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<title>Federal Register, Volume 90 Issue 124 (Tuesday, July 1, 2025)</title>
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[Federal Register Volume 90, Number 124 (Tuesday, July 1, 2025)]
[Rules and Regulations]
[Pages 28021-28024]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-12280]
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DEPARTMENT OF DEFENSE
Department of the Air Force
32 CFR Part 989
[Docket ID: USAF-2025-HQ-0003]
RIN 0701-AA97
Removal of Environmental Impact Analysis Process (EIAP)
Regulation
AGENCY: Department of the Air Force, Department of Defense (DoD).
ACTION: Interim final rule; request for comments.
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SUMMARY: The DAF is rescinding its National Environmental Policy Act
(NEPA) regulations because the Council on Environmental Quality's (CEQ)
NEPA regulations, which they were meant to supplement, have been
rescinded, and because the DoD is promulgating Department-wide NEPA
procedures that will guide DAF's NEPA process.
DATES: This interim final rule is effective July 1, 2025. Comments must
be received on or before July 31, 2025.
ADDRESSES: You may submit comments, identified by docket number and/or
Regulation Identifier Number (RIN), by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Mail: Department of Defense, Office of the Assistant to
the Secretary of Defense for Privacy, Civil Liberties, and
Transparency, Regulatory Directorate, 4800 Mark Center Drive, Mailbox
#24, Suite 05F16, Alexandria, VA 22350-1700.
The general policy for comments and other submissions from members
of the public is to make these submissions available for public viewing
on the internet at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Mr. Jack Bush at 703-695-1773 or by
email at <a href="/cdn-cgi/l/email-protection#fd9c9bd39cc99ed393988d9c8a928f969b91928abd888ed39c9bd3909491"><span class="__cf_email__" data-cfemail="d5b4b3fbb4e1b6fbbbb0a5b4a2baa7beb3b9baa295a0a6fbb4b3fbb8bcb9">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Inspection of Public Comments: All comments received before the
close of the comment period are available for viewing by the public at
<a href="http://www.regulations.gov">http://www.regulations.gov</a>. Comments are posted as soon as possible
after they have been received. Follow the search instructions on that
website to view public comments. DAF will not post public comments that
make threats to individuals or institutions or suggest that the
commenter will take actions to harm an individual. DAF will post
acceptable substantive comments from multiple unique commenters.
Plain Language Summary: In accordance with 5 U.S.C. 553(b)(4), a
plain language summary of this rule may be found at <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>.
I. Background
Title 32 CFR part 989 provides guidance for implementing the
procedural provisions of NEPA and was drafted to supplement the CEQ
regulations at 40 CFR parts 1500 through 1508. See 32 CFR 989.1(b). The
DAF regulation is applicable to all DAF activities and organizations.
However, the CEQ's regulations have been repealed, effective April 11,
2025. See Removal of National Environmental Policy Act Implementing
Regulations, (90 FR 10610; Feb. 25, 2025). This action was necessitated
by and is consistent with Executive Order (E.O.) 14154, Unleashing
American Energy (90 FR 8353; January 20, 2025), in which President
Trump rescinded President Carter's E.O. 11991, Relating to Protection
and Enhancement of Environmental Quality (42 FR 26967; May 24, 1977),
which was the basis CEQ had invoked for its authority to make rules to
begin with. DAF's regulations, which were a ``supplement[] . . . to be
used in conjunction with'' those CEQ regulations, thus stand in obvious
need of fundamental revision. President Trump in E.O. 14154 further
directed agencies to revise their NEPA implementing procedures,
consistent with the E.O., including its direction to CEQ to rescind its
regulations.
In addition, Congress recently amended NEPA in significant part, in
the Fiscal Responsibility Act of 2023 (FRA), Public Law 118-5, signed
on June 3, 2023, in which Congress added substantial detail and
direction in Title I of NEPA, including in particular on
[[Page 28022]]
procedural issues that CEQ and individual acting agencies had
previously addressed in their own procedures. The DAF recognized the
need to update its regulations in light of these significant
legislative changes. Since the DAF's regulations were originally
designed as a supplement to CEQ's NEPA regulations, the DAF had been
awaiting CEQ action before revising its regulations, consistent with
CEQ direction. See 40 CFR 1507.3(b) (2024); see also 86 FR 34154 (June
29, 2021). However, with CEQ's regulations now rescinded, and with the
DAF's NEPA implementing procedures still unmodified more than two years
after this significant legislative overhaul, it is exigent that the DAF
move quickly to conform its procedures to the statute as amended.
Finally, the Supreme Court on May 29, 2025 issued a landmark
decision, Seven County Infrastructure Coalition v. Eagle County,
Colorado, 145 S. Ct. 1497 (2025), in which it decried the
``transform[ation]'' of NEPA from its roots as ``a modest procedural
requirement,'' into a significant ``substantive roadblock'' that
``paralyze[s]'' ``agency decisionmaking.'' Id. at 1507, 1513
(quotations omitted). The Supreme Court explained that part of that
problem had been caused by decisions of lower courts, which it
rejected, issuing a ``course correction'' mandating that courts give
``substantial deference'' to reasonable agency conclusions underlying
their NEPA processes. Id. at 1513-14. But the Court also acknowledged,
and through its course correction sought to address, the effect on
``litigation-averse agencies'' which, in light of judicial
``micromanage[ment],'' had been ``tak[ing] ever more time and . . .
prepar[ing] ever longer EISs for future projects.'' Id. at 1513. The
DAF is therefore issuing this Interim Final Rule (IFR) to align its
actions with the Supreme Court's decision and streamline its process of
ensuring reasonable NEPA decisions. This revision has thus been called
for, authorized, and directed by all three branches of government at
the highest possible levels.
DoD has elected to respond to these instructions by promulgating
Department-wide NEPA procedures, Department of Defense National
Environmental Policy Act Implementing Procedures, which will guide
DAF's NEPA process henceforth. The Supreme Court could not have been
clearer in Seven County that NEPA is a procedural statute. See 145
S.Ct. at 1507 (``NEPA is a purely procedural statute.''); id. at 1510
(``NEPA is purely procedural. . . . NEPA `does not mandate particular
results, but simply prescribes the necessary process' for an agency's
environmental review of a project;''); id. at 1511 (NEPA is a purely
procedural statute''); id. at 1513 (NEPA is properly understood as ``a
modest procedural requirement''); id. at 1514 (``NEPA's status as a
purely procedural statute''); see also id. at 1507 (``Simply stated,
NEPA is a procedural cross-check, not a substantive roadblock.'').
Mindful of this, DOD has decided that the flexibility to respond to new
developments in this fast-evolving area of law, afforded by using non-
codified procedures, outweighs the public-transparency virtues of
codifying its regulations going forward. Notably, DoD can--and will--
ensure that accessibility to the public by posting these procedures
online, retaining the transparency virtues. By contrast, not codifying
its procedures will enable it to rapidly update these procedures in
response to future court decisions (such as Seven County), Presidential
directives, or the needs of the services. The use of non-codified
procedures is, moreover, consistent with the approach that several
other Federal agencies have used for decades.
DoD has, correspondingly, directed all military departments to
repeal their respective NEPA implementing regulations by June 30, 2025,
per a May 21, 2025, memorandum. Thus, with this action, the DAF
rescinds its NEPA implementing regulations at 32 CFR part 989. The DAF
is furthermore taking this action because the CEQ NEPA regulations,
which the DAF regulations supplemented, were repealed effective April
11, 2025. The DAF is rescinding its NEPA regulations to avoid confusion
from maintaining a regulation that was drafted to supplement a
regulation that has now been revoked. The DAF intends to continue to
rely on categorical exclusions previously published in appendix B of 32
CFR part 989 or adopted by public notice in the Federal Register (e.g.,
89 FR 92911), all of which have now been incorporated into the Appendix
to Department of Defense National Environmental Policy Act Implementing
Procedures.
DAF acknowledges that third parties may claim to have reliance
interests in DAF's existing NEPA procedures. Moreover, as the Supreme
Court has just explained, NEPA ``is a purely procedural statute'' that
``imposes no substantive environmental obligations or restrictions.''
Seven County, 145 S. Ct. at 1507. Any asserted reliance interests
grounded in substantive environmental concerns are not in accord with
the best meaning of the law and are entitled to ``no . . . weight.''
Dep't of Homeland Sec. v. Regents of the Univ. of California, 140 S.
Ct. 1891, 1914 (2020).
Because reliance interests are inherently backward-looking, it is
unclear how any party could assert reliance interests in prospective
procedures. To the extent such interests exist, DAF concludes that they
are ``outweigh[ed]'' by ``other interests and policy concerns.'' Id.
Namely, the complex web of regulations that preexisted the 2023
amendments to NEPA and the new Procedures repeatedly ``led to more
agency analysis of separate projects, more consideration of attenuated
effects, more exploration of alternatives to proposed agency action,
more speculation and consultation and estimation and litigation,''
which in turn has meant that ``[f]ewer projects make it to the finish
line,'' or even ``to the starting line.'' Seven County, 145 S. Ct. at
1513-14. This has increased the cost of projects dramatically, ``both
for the agency preparing the EIS and for the builder of the project,''
resulting in systemic harms to America's infrastructure and economy.
Id. at 1514. Correspondingly, the wholesale revision and simplification
of this regime, effectuated by the DoD's new NEPA procedures, is
necessary to ensure efficient and predictable reviews, with significant
upsides for the economy and for projects of all sorts. This set of
policy considerations drastically outweighs any claimed reliance
interests in the preexisting procedures.
DAF has taken this action as part of DoD's broader approach to
revising its implementation of NEPA, in which DoD and its components
have revised their NEPA implementing procedures to conform to the 2023
statutory amendments, to respond to President Trump's direction in E.O.
14154 to, ``[c]onsistent with applicable law, prioritize efficiency and
certainty over any other objectives, including those of activist
groups, that do not align with the policy goals set forth in section 2
of [that] order or that could otherwise add delays and ambiguity to the
permitting process,'' and to address the pathologies of the NEPA
process and NEPA litigation as identified by the Supreme Court. Where
DoD and its components have retained an aspect of their preexisting
NEPA implementing procedures, it is because that aspect is compatible
with these guiding principles; where DoD and its components have
revised or removed an aspect, it is because that aspect is not so
compatible.
[[Page 28023]]
II. Publication as an Interim Final Rule
A. Notice-and-Comment Rulemaking Is Not Required
DAF is repealing its prior procedures and practices for
implementing NEPA, a ``purely procedural statute'' which ``simply
prescribes the necessary process for an agency's environmental review
of a project--a review that is, even in its most rigorous form, ``only
one input into an agency's decision and does not itself require any
particular substantive outcome.'' Seven County, 145 S.Ct. at 1507, 1511
(internal quotation omitted). ``NEPA imposes no substantive constraints
on the agency's ultimate decision to build, fund, or approve a proposed
project,'' and ``is relevant only to the question of whether an
agency's final decision''--i.e., that decision to authorize, fund, or
otherwise carry out a particular proposed project or activity--``was
reasonably explained.'' Id. at 1511. As such, notice and comment
procedures are not required because this revision falls within the
Administrative Procedure Act (APA) exception for ``rules of agency
organization, procedure, or practice.'' 5 U.S.C. 553(b)(A). DAF's
existing regulations do not dictate what outcomes such consideration
must produce, nor do they impose binding legal obligations on private
citizens. Rather, they prescribe how DAF will conduct its NEPA reviews:
detailing the structure of environmental impact statements, specifying
submission requirements, and directing the timing of public comment
periods. These are procedural provisions, not ones that impose
substantive environmental obligations or restrictions. DAF recognized
as much, indeed, even when codifying them: DAF was explicit that was
``issuing its NEPA Guidelines as regulations that will be published in
the Code of Federal Regulations'' to ``ensure that its NEPA procedures
are more accessible to the public,'' and not because the agency had
changed its mind that the procedures were just that, procedural. 57 FR
15122; 55 FR 46444. Indeed, both emphasized that ``[t]he rule amends
and codifies already existing policies and procedures for compliance
with NEPA,'' and contained no substantive changes that would impose
obligations on private citizens. 57 FR 15144; 55 FR 46448. Thus,
because procedural rules do not require notice and comment, they do not
require notice and comment to be removed from the Code of Federal
Regulations. See 5 U.S.C. 553(b)(A).\1\
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\1\ Just so, DoD's new procedures will also be purely
procedural, guiding the Department's own compliance with NEPA.
Indeed, it is hard to see how they could be otherwise, since the
Supreme Court has recently repeatedly emphasized that ``NEPA is a
purely procedural statute.'' Seven County, 145 S.Ct. at 1507, see
id. at 1510 (``NEPA is purely procedural. . . . NEPA `does not
mandate particular results, but simply prescribes the necessary
process' for an agency's environmental review of a project;''); id.
at 1511 (NEPA is a purely procedural statute''); id. at 1513 (NEPA
is properly understood as ``a modest procedural requirement''); id.
at 1514 (``NEPA's status as a purely procedural statute''); see also
id. at 1507 (``Simply stated, NEPA is a procedural cross-check, not
a substantive roadblock.''). Procedures for implementing a purely
procedural statute must be, by their nature, procedural rules.
Surely cannot be legislative rules; as such, they do not need to be
promulgated via notice-and-comment rulemaking. See 5 U.S.C.
553(b)(A).
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Moreover, even if (and to the extent that) DAF's regulations were
not procedural rules, they may be characterized as interpretative rules
or general statements of policy under 5 U.S.C. 553(b)(A). An
interpretative rule provides an interpretation of a statute, rather
than making discretionary policy choices that establish enforceable
rights or obligations for regulated parties under delegated
congressional authority. The definitions in Appendix A of DAF's
procedures, for instance, may be classified as such. General statements
of policy provide notice of an agency's intentions as to how it will
enforce statutory requirements, again without creating enforceable
rights or obligations for regulated parties under delegated
congressional authority. The prefatory sections DAF's procedures, for
instance, may be classified as general statements of policy. Both of
these types of agency action are expressly exempted from notice and
comment by statute, 5 U.S.C. 553(b)(A), and do not require notice and
comment for removal.
Accordingly, although DAF is voluntarily providing notice and an
opportunity to comment on this interim final rule, the agency has
determined that notice-and-comment procedures are not required. The
fact that DAF previously undertook notice-and-comment rulemaking in
promulgating these regulations is immaterial: As the Supreme Court has
held, where notice-and-comment procedures are not required, prior use
of them in promulgating a rule does not bind the agency to use such
procedures in repealing it. Perez v. Mortg. Bankers Ass'n, 575 U.S. 92,
101 (2015).
B. DAF Has Good Cause for Proceeding With an Interim Final Rule
Moreover, DAF also finds that, to the extent that prior notice and
solicitation of public comment would otherwise be required or this
action could not immediately take effect, the need to expeditiously
replace its existing rules satisfies the ``good cause'' exceptions in 5
U.S.C. 553(b)(B) and (d). The APA authorizes agencies to issue
regulations without notice and public comment when an agency finds, for
good cause, that notice and comment is ``impracticable, unnecessary, or
contrary to the public interest,'' 5 U.S.C. 553(b)(B), and to make the
rule effective immediately for good cause. 5 U.S.C. 553(d)(3). As
discussed in Section I, above, DAF's prior rules were promulgated to
supplement the CEQ's NEPA regulations. Following the rescission of
CEQ's regulations, DAF's current rules are left hanging in air,
supplementing a NEPA regime that no longer exists. DAF, thus far and as
a temporary, emergency measure, has been continuing to operate under
its prior procedures as if the CEQ NEPA regime still existed. This is
not, however, tenable in the long term. As soon as proper procedures
are available--which they now are, in the form of DoD's Department-wide
procedures--this makeshift regime needs to be rescinded immediately.
Because of this need for speed and certainty, notice-and-comment is, to
the extent it was required at all, impracticable and contrary to the
public interest.
For the same reasons stated in the present section, above, DAF
finds that ``good cause'' exists under 5 U.S.C. 553(d)(3) to waive the
30-day delay of the effective date that would otherwise be required.
This IFR will accordingly be effective immediately.
C. DAF Solicits Comment
As explained above, notice and comment is not required prior to
issuing this rule because DAF's NEPA procedures were procedural and
because, even if comment were required under the APA, good cause exists
to forego it. Nevertheless, DAF has elected voluntarily to solicit
comment on this action, in an abundance of caution and for reasons of
good government. DAF is soliciting comment on this interim final rule,
and may make further revisions to this action, if DAF's review of any
comments submitted suggests that further revisions are warranted.
Commenters have 30 days from the date of publication of this interim
final rule to submit comments.
III. Executive Order 12866, ``Regulatory Planning and Review,'' and
Executive Order 13563, ``Improving Regulation and Regulatory Review''
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is
[[Page 28024]]
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health, and safety
effects; distribution of impacts; and equity. The Office of Information
and Regulatory Affairs (OIRA) in the Office of Management and Budget
(OMB), has determined that this rulemaking is ``significant'' under
section 3(f) of Executive Order 12866.
IV. Executive Order 14192, ``Unleashing Prosperity Through
Deregulation''
Executive Order 14192 was issued on January 31, 2025, and requires
that ``any new incremental costs associated with new regulations shall,
to the extent permitted by law, be offset by the elimination of
existing costs associated with at least 10 prior regulations.'' This
rule is expected to be an Executive Order 14192 deregulatory action.
V. Congressional Review Act (5 U.S.C. 801 et seq.)
OIRA has determined that this rulemaking does not meet the criteria
set forth in 5 U.S.C. 804(2) under Subtitle E of the Small Business
Regulatory Enforcement Fairness Act of 1996 (also known as the
Congressional Review Act). This action, in any event, is not a ``rule''
at all under 5 U.S.C. 804(3)(C). Therefore, this rule is not major
under the Congressional Review Act.
VI. Paperwork Reduction Act (44 U.S.C. 3501 et seq.)
The rule does not contain any information collection requirements
that require the approval of the OMB under the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.).
VII. Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
The Secretary of the Air Force certified that this rule is not
subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it
will not have a significant economic impact on a substantial number of
small entities. Also, the rule repeals DAF NEPA implementing
regulations for the EIAP at 32 CFR part 989, which outline procedures
for environmental impact analysis for all DAF activities and programs.
Therefore, the Regulatory Flexibility Act, as amended, does not require
preparation of a regulatory flexibility analysis. See 5 U.S.C. 603(a)
and 604(a).
VIII. Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
Section 202 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1532) requires agencies to assess anticipated costs and benefits before
issuing any rule whose mandates require spending in any 1 year of $100
million in 1995 dollars, updated annually for inflation. This
rulemaking will not result in the expenditure by State, local, or
Tribal Governments, in the aggregate, or by the private sector, which
exceeds the threshold. Thus, no written assessment of unfunded mandates
is required.
IX. Executive Order 13132, ``Federalism''
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with Executive Order
13132, the Secretary of the Air Force has determined that this
rulemaking does not have sufficient federalism implications to warrant
preparation of a federalism assessment.
X. Executive Order 13175, ``Consultation and Coordination With Indian
Tribal Governments''
Executive Order 13175 establishes certain requirements that an
agency must meet when it promulgates a rule that imposes substantial
direct compliance costs on one or more Indian Tribes, preempts Tribal
law, or effects the distribution of power and responsibilities between
the Federal Government and Indian Tribes. This rule will not have a
substantial effect on Indian Tribal Governments.
List of Subjects in 32 CFR Part 989
Environmental impact statements.
PART 989--[REMOVED]
0
Accordingly, by the authority of 5 U.S.C. 301, 32 CFR part 989 is
removed.
Approved by:
Dated: June 27, 2025.
Tommy W. Lee,
Acting Air Force Federal Register Liaison Officer.
[FR Doc. 2025-12280 Filed 6-30-25; 8:45 am]
BILLING CODE 3911-44-P
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