Rule2025-12318
Environmental Analysis of Army Actions (AR 200-2)
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 3, 2025
Effective
July 3, 2025
Issuing agencies
Defense DepartmentArmy Department
Abstract
This interim final rule rescinds the Department of the Army regulations implementing the National Environmental Policy Act (NEPA), because the Council on Environmental Quality's (CEQ) NEPA regulations, which they were meant to supplement, have been rescinded, and because the DoD is promulgating Department-wide NEPA procedures that will guide the Army's NEPA process. In addition, this interim final rule requests comments on this action and related matters.
Full Text
<html>
<head>
<title>Federal Register, Volume 90 Issue 126 (Thursday, July 3, 2025)</title>
</head>
<body><pre>
[Federal Register Volume 90, Number 126 (Thursday, July 3, 2025)]
[Rules and Regulations]
[Pages 29450-29453]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-12318]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Department of the Army
32 CFR Part 651
[Docket ID: USA-2025-HQ-0003]
RIN 0702-AB02
Environmental Analysis of Army Actions (AR 200-2)
AGENCY: Department of the Army, Department of Defense (DoD).
ACTION: Interim final rule.
-----------------------------------------------------------------------
SUMMARY: This interim final rule rescinds the Department of the Army
regulations implementing the National Environmental Policy Act (NEPA),
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which they were meant to supplement, have been rescinded, and because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
the Army's NEPA process. In addition, this interim final rule requests
comments on this action and related matters.
DATES: This interim final rule is effective July 3, 2025. Comments must
be received on or before August 4, 2025.
ADDRESSES: You may submit comments, identified by docket number and/or
Regulation Identifier Number (RIN) and title, by any of the following
methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> 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.
Instructions: All submissions received must include the agency name
and docket number or RIN for this Federal Register document. 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="https://www.regulations.gov">https://www.regulations.gov</a> as they are received and
without change, including any personal identifiers or contact
information.
FOR FURTHER INFORMATION CONTACT: David Guldenzopf, Ph.D., Director for
Environmental Quality, Office of the Assistant Secretary of the Army
for Installations, Energy and Environment, (571) 256-7822,
<a href="/cdn-cgi/l/email-protection#224643544b460c400c45574e46474c584d52440c414b546243504f5b0c4f4b4e"><span class="__cf_email__" data-cfemail="2044415649440e420e47554c44454e5a4f50460e4349566041524d590e4d494c">[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. We
post all comments received before the close of the comment period on
the following website as soon as possible after the comments have been
received: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the search instructions
on that website to view public comments. DoD will not post on <a href="https://www.regulations.gov">https://www.regulations.gov</a> public comments that make threats to individuals or
institutions, or that suggest the commenter will take actions to harm
an individual.
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 651 provides guidance for implementing NEPA in
the Army. It applies to the Department of the Army, including the
Active Army, the Army Reserve, Joint Bases for which the Army is the
lead component, the Army's acquisition process, functions of the Army
National Guard involving Federal funding, and functions for which the
Army is the DoD executive agent. This part does not apply to civil
works functions of the U.S. Army Corps of Engineers or to combat or
combat-related activities in a combat or hostile-fire zone. Title 32
CFR part 651 was intended to be used as a ``supplement[ ] . . . in
conjunction with'' the regulations of the Council on Environmental
Quality (CEQ) at 40 CFR parts 1500 through 1508. 32 CFR 651.1(c).
However, the CEQ's regulations have been repealed, effective April
11. See Removal of National Environmental Policy Act Implementing
Regulations (90 FR 10610; Feb. 25, 2025). This action was necessitated
by and 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. The Army'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 procedural
issues that CEQ and individual acting agencies had previously addressed
in their own procedures. The Army recognized the need to update its
regulations in light of these significant legislative changes. Since
the Army's regulations were originally designed as a supplement to
CEQ's NEPA regulations, the Army had
[[Page 29451]]
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 Army's NEPA implementing procedures still unmodified more than
two years after this significant legislative overhaul, it is exigent
that the Army 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
its NEPA process. 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 []
prepar[ing] ever longer EISs for future projects.'' Id. at 1513. The
Army, thus, is issuing this 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 the
Army'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.''); see also 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;'') (internal quotation
omitted); 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, which removes the upside
of codification. 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, the Army is rescinding its NEPA
implementing regulations at 32 CFR part 651. The Army is furthermore
taking this action because the CEQ NEPA regulations, which the Army
regulations were intended to supplement, have been rescinded and the
Army regulations are incomplete on their own. The authority under which
the CEQ regulations were promulgated, Executive Order (E.O.) 11991 (42
FR 26967, May 24, 1977), has been rescinded by E.O. 14154 (90 FR 8353,
Jan. 29, 2025). Therefore, the Army is rescinding 32 CFR part 651 to
conform to CEQ's rescission of its regulations. The Army intends to
continue to rely on categorical exclusions previously published in
appendix B of 32 CFR part 651 or adopted by public notice in the
Federal Register, all of which have now been incorporated into the
Appendix to Department of Defense National Environmental Policy Act
Implementing Procedures.
The Army acknowledges that third parties may claim to have reliance
interests in the Army's existing NEPA procedures. But revised agency
procedures will have no effect on ongoing NEPA reviews, where the Army,
following CEQ guidance, has held it will continue to apply existing
applications. 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, such interests 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, the Army concludes that
they are ``outweigh[ed]'' by ``other interests and policy concerns.''
Id. Namely, the complex web of regulations 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 Procedures, is necessary
to assure 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.
The Army 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 29452]]
II. Publication as an Interim Final Rule
A. Notice-and-Comment Rulemaking Is Not Required
The Army 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). The
Army'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 the Army
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. 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\
---------------------------------------------------------------------------
\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., 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).
---------------------------------------------------------------------------
Moreover, even if (and to the extent that) the Army 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. Part II of Appendix F to Part 651, 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. 32 CFR 651.5 (``Army policies''), 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 the Army 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 the Army 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. The Army Has Good Cause for Proceeding With an Interim Final Rule
Moreover, the Army 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, the Army's prior rules were promulgated
to supplement CEQ's NEPA regulations. Following the rescission of CEQ's
regulations, the Army's current rules are left hanging in air,
supplementing a NEPA regime that no longer exists. The Army, 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, the Army
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. The Army Solicits Comment
As explained above, notice and comment is not required prior to
issuing this rule because the Army's NEPA procedures were procedural
and because, even if comment were required under the APA, good cause
exists to forego it. Nevertheless, the Army has elected voluntarily to
solicit comment on this action. The Army is soliciting comment on this
interim final rule, and may make further revisions to this action, if
the Army'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. E.O. 12866, ``Regulatory Planning and Review,'' and E.O. 13563,
``Improving Regulation and Regulatory Review''
EOs 12866 and 13563 direct agencies to assess all costs and
benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health, and safety
effects, distribution of impacts, and equity). The Office of Management
and Budget's (OMB's) Office of Information and Regulatory Affairs
(OIRA) has determined that this rulemaking, while not ``economically
significant,'' is ``significant'' under section 3(f)(4) of E.O. 12866.
[[Page 29453]]
IV. E.O. 14192, ``Unleashing Prosperity Through Deregulation''
E.O. 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 E.O. 14192 deregulatory action. Rescinding this part will
enable the Army to update its internal Army procedures, ensuring
consistent and streamlined implementation of NEPA responsibilities
across all Army operations. This action will allow the Army to finalize
the establishment of previously-proposed and publicly-reviewed
categorical exclusions (CXs) that will reduce government spending on
environmental compliance and will shorten project timelines for those
activities that do not need a detailed analysis. The Army currently
prepares approximately 10,000 CXs annually. The Army expects the new
and revised CXs to increase use of CXs and to shorten project-approval
timelines. Application of each new and revised CX will reduce the need
to complete environmental assessments. Each environmental assessment
costs approximately $500,000 and takes six months to one year to
complete. The new and revised CX list will greatly reduce government
spending on environmental site assessments.
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.)
This interim final rule does not contain any information-collection
provisions that require OMB approval 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 Senior Official Performing the Duties of Under Secretary of the
Army certified that this interim final 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.
Therefore, the Regulatory Flexibility Act, as amended, does not require
the Army to prepare a regulatory flexibility analysis. See 5 U.S.C.
603(a), 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 that mandates spending in any one year of $100 million
in 1995 dollars, updated annually for inflation. This rulemaking will
not result in an expenditure by State, local, or Tribal Governments, in
the aggregate, or by the private sector, in excess of the above
threshold. Thus, no written assessment of unfunded mandates is
required.
IX. E.O. 13132, ``Federalism''
This interim final rule will not have substantial direct effects on
the States, on the relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with E.O. 13132,
the Senior Official Performing the Duties of Under Secretary of the
Army has determined that this rulemaking does not have sufficient
federalism implications to warrant preparation of a federalism
assessment.
X. E.O. 13175, ``Consultation and Coordination With Indian Tribal
Governments''
E.O. 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
affects the distribution of power and responsibilities between the
Federal Government and Indian Tribes. This interim final rule will not
have a substantial effect on Indian Tribal Governments.
List of Subjects in 32 CFR Part 651
Environmental impact statements, Environmental protection, and
Foreign relations.
PART 651--[REMOVED]
0
Accordingly, by the authority of 5 U.S.C. 301, 32 CFR part 651 is
removed.
James W. Satterwhite Jr.,
Army Federal Register Liaison Officer.
[FR Doc. 2025-12318 Filed 7-1-25; 2:30 pm]
BILLING CODE 3711-CC-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on July 3, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.