[Federal Register Volume 87, Number 76 (Wednesday, April 20, 2022)]
[Rules and Regulations]
[Pages 23453-23470]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08288]
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COUNCIL ON ENVIRONMENTAL QUALITY
40 CFR Parts 1502, 1507, and 1508
[CEQ-2021-0002]
RIN 0331-AA05
National Environmental Policy Act Implementing Regulations
Revisions
AGENCY: Council on Environmental Quality.
ACTION: Final rule.
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SUMMARY: The Council on Environmental Quality (CEQ) issues this final
rule to amend certain provisions of its regulations for implementing
the National Environmental Policy Act (NEPA), addressing the purpose
and need of a proposed action, agency NEPA procedures for implementing
CEQ's NEPA regulations, and the definition of ``effects.'' The
amendments generally restore provisions that were in effect for decades
before being modified in 2020.
DATES: This rule is effective May 20, 2022.
ADDRESSES: CEQ established a docket for this action under docket number
CEQ-2021-0002. All documents in the docket are listed on
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Amy B. Coyle, Deputy General Counsel,
202-395-5750, [email protected].
SUPPLEMENTARY INFORMATION: CEQ is issuing this final rule to amend
three provisions of its regulations implementing the National
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., which
are set forth in 40 CFR parts 1500 through 1508 (``NEPA regulations''
or ``CEQ regulations''). First, CEQ is revising 40 CFR 1502.13 on the
requirement for a purpose and need statement in an environmental impact
statement. The revision clarifies that agencies have discretion to
consider a variety of factors when assessing an application for an
authorization, removing the requirement that an agency base the purpose
and need on the goals of an applicant and the agency's statutory
authority. The final rule also makes a conforming edit to the
definition of ``reasonable alternatives'' in 40 CFR 1508.1(z). Second,
CEQ is revising 40 CFR 1507.3 to remove language 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 the CEQ regulatory requirements. Third, CEQ is
revising the definition of ``effects'' in paragraph (g) of 40 CFR
1508.1 to include direct, indirect, and cumulative effects. CEQ is
making these changes in order to better align the provisions with CEQ's
extensive experience implementing NEPA and unique perspective on how
NEPA can best inform agency decision making, as well as longstanding
Federal agency experience and practice, NEPA's statutory text and
purpose to protect and enhance the quality of the human environment,
including making decisions informed by science, and case law
interpreting NEPA's requirements.
I. Background
A. NEPA Statute
Congress enacted NEPA in 1969 by a unanimous vote in the Senate and
a nearly unanimous vote in the House \1\ to declare an ambitious and
visionary national policy to promote environmental protection for
present and future generations. President Nixon signed NEPA into law on
January 1, 1970. NEPA seeks to ``encourage productive and enjoyable
harmony'' between humans and the environment, recognizing the
``profound impact'' of human activity and the ``critical importance of
restoring and maintaining environmental quality'' to the overall
welfare of humankind. 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. 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. 4321, 4331.
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\1\ See Linda Luther, Cong. Rsch. Serv., RL33152, The National
Environmental Policy Act: Background and Implementation (2008),
https://crsreports.congress.gov/product/details?prodcode=RL33152.
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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 give appropriate consideration to environmental values in their
decision making. To that end, section 102(2)(C) of NEPA requires
Federal agencies to prepare ``detailed statements,'' referred to as
environmental impact statements (EISs), for ``every recommendation or
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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
that environmental conditions will improve when decision makers
understand and consider environmental impacts. The EIS process also
serves to enrich the understanding of the ecological systems and
natural resources important to the Nation and helps guide sound
decision making, including development, in line with the best available
science and data. NEPA also established the Council on Environmental
Quality (CEQ) in the Executive Office of the President, which advises
the President on environmental policy matters and oversees Federal
agencies' implementation of NEPA. 42 U.S.C. 4342.
In many respects, NEPA was a statute ahead of its time, and it
remains relevant and vital today. It codifies the common-sense and
fundamental idea of ``look before you leap'' to guide agency decision
making, particularly in complex and consequential areas, because
conducting sound environmental analysis before actions are taken
reduces conflict and waste in the long run by avoiding unnecessary
harms and uninformed decisions. It establishes a framework for agencies
to ground decisions in sound science and recognizes that the public may
have important ideas and information on how Federal actions can occur
in a manner that reduces potential harms and enhances ecological,
social, and economic well-being. See, e.g., 42 U.S.C. 4331, 4332(2)(A).
B. Regulatory Implementation of NEPA 1970-2020
In 1970, President Nixon issued Executive Order (E.O.) 11514,
Protection and Enhancement of Environmental Quality, directing CEQ to
issue guidelines for implementation of section 102(2)(C) of NEPA.\2\ In
response, CEQ issued interim guidelines in April 1970, and revised the
guidelines in 1971 and 1973.\3\ In 1977, President Carter issued E.O.
11991, Relating to Protection and Enhancement of Environmental Quality,
amending E.O. 11514 and directing CEQ to issue regulations for
implementation of section 102(2)(C) of NEPA and requiring that Federal
agencies comply with those regulations.\4\ CEQ promulgated its NEPA
regulations in 1978.\5\ Issued 8 years after NEPA's enactment, the NEPA
regulations reflected CEQ's interpretation of the statutory text and
Congressional intent, expertise developed through issuing and revising
the CEQ guidelines and advising Federal agencies on their
implementation of NEPA, initial interpretations of the courts, and
Federal agency experience implementing NEPA. The 1978 regulations
reflected the fundamental principles of informed and science-based
decision making, transparency, and public engagement Congress
established in NEPA. They directed Federal agencies to issue and update
periodically agency-specific implementing procedures to supplement
CEQ's procedures and integrate the NEPA process into the agencies'
specific programs and processes. Consistent with 42 U.S.C. 4332(2)(B),
the regulations also required agencies to consult with CEQ in the
development or update of these agency-specific procedures to ensure
consistency with CEQ's regulations.
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\2\ 35 FR 4247 (Mar. 7, 1970), sec. 3(h).
\3\ See 35 FR 7390 (May 12, 1970) (interim guidelines); 36 FR
7724 (Apr. 23, 1971) (final guidelines); 38 FR 10856 (May 2, 1973)
(proposed revisions to the guidelines); 38 FR 20550 (Aug. 1, 1973)
(revised guidelines).
\4\ 42 FR 26967 (May 25, 1977).
\5\ 43 FR 55978 (Nov. 23, 1978).
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In 1981, CEQ issued the ``Forty Most Asked Questions Concerning
CEQ's National Environmental Policy Act Regulations,'' \6\ one of
numerous guidance documents CEQ has issued. The ``Forty Questions''
reflected CEQ's contemporaneous interpretation of the 1978 regulations
and grew out of meetings CEQ held in ten Federal regions to discuss
implementation of the CEQ regulations with Federal, state, and local
government officials, which identified common questions. The Forty
Questions guidance is the most comprehensive guidance CEQ has issued on
the 1978 regulations, addressing a broad set of topics from
alternatives to tiering. Since its issuance, CEQ has routinely
identified the Forty Questions guidance as an invaluable tool for
Federal, state, Tribal, and local governments and officials, and
members of the public, who have questions about NEPA implementation.
Since 1981, CEQ has issued more than 30 additional guidance documents
on a range of topics including efficient and coordinated environmental
reviews, mitigation and monitoring, and effects analyses.\7\
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\6\ 46 FR 18026 (Mar. 23, 1981) (``Forty Questions''), https://www.energy.gov/nepa/downloads/forty-most-asked-questions-concerning-ceqs-national-environmental-policy-act.
\7\ See https://www.energy.gov/nepa/ceq-guidance-documents for a
list of current CEQ guidance documents.
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CEQ made technical amendments to the 1978 implementing regulations
in 1979 \8\ and amended one provision in 1986 (referred to collectively
as 1978 regulations).\9\ Otherwise, the regulations were left unchanged
for over 40 years. As a result, CEQ and Federal agencies developed
extensive experience implementing the 1978 regulations, and a large
body of agency practice and case law developed based on them.
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\8\ 44 FR 873 (Jan. 3, 1979).
\9\ 51 FR 15618 (Apr. 25, 1986) (amending 40 CFR 1502.22).
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C. 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,\10\ directing, in part,
CEQ to establish and lead an interagency working group to identify and
propose changes to the NEPA regulations.\11\ In response, CEQ issued an
advanced notice of proposed rulemaking (ANPRM) on June 20, 2018,
requesting comment on potential revisions to ``update and clarify'' the
CEQ regulations and including a list of questions on specific aspects
of the regulations.\12\ CEQ received approximately 12,500 comments.\13\
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\10\ 82 FR 40463 (Aug. 24, 2017).
\11\ Id., sec. 5(e)(iii).
\12\ 83 FR 28591 (June 20, 2018).
\13\ The comments are available on www.regulations.gov under
Docket No. CEQ-2018-0001.
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On January 10, 2020, CEQ published a notice of proposed rulemaking
(NPRM) proposing broad revisions to the 1978 NEPA regulations.\14\ A
wide range of stakeholders submitted more than 1.1 million comments on
the proposed rule,\15\ including 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
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wholesale revisions to the regulations; it took effect on September 14,
2020.\16\
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\14\ 85 FR 1684 (Jan. 10, 2020).
\15\ See Docket No. CEQ-2019-0003, https://www.regulations.gov/document/CEQ-2019-0003-0001.
\16\ 85 FR 43304 (July 16, 2020).
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In the months that followed the issuance of the 2020 regulations,
five lawsuits were filed challenging the 2020 rule.\17\ These cases
challenge the 2020 rule on a variety of grounds, including under the
Administrative Procedure Act (APA), NEPA, and the Endangered Species
Act, contending that the rule exceeded CEQ's authority and that the
related rulemaking process was procedurally and substantively
defective. In response to CEQ and joint motions, the district courts
have 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,\18\ and is currently on
appeal to the U.S. Court of Appeals for the Fourth Circuit.
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\17\ Wild Va. v. Council on Env't Quality, No. 3:20cv45 (W.D.
Va. 2020); Env't Justice Health All. v. Council on Env't Quality,
No. 1:20cv06143 (S.D.N.Y. 2020); Alaska Cmty. Action on Toxics v.
Council on Env't Quality, No. 3:20cv5199 (N.D. Cal. 2020);
California v. Council on Env't Quality, No. 3:20cv06057 (N.D. Cal.
2020); Iowa Citizens for Cmty. Improvement v. Council on Env't
Quality, No. 1:20cv02715 (D.D.C. 2020). Additionally, in The Clinch
Coalition v. U.S. Forest Service, No. 2:21cv00003 (W.D. Va. 2020),
plaintiffs challenged the U.S. Forest Service's NEPA implementing
procedures, which established new categorical exclusions, and,
relatedly, the 2020 rule's provisions on categorical exclusions.
\18\ Wild Va. v. Council on Env't Quality, 544 F. Supp.3d 620
(W.D. Va. 2021) (appeal pending).
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D. CEQ's Comprehensive 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,\19\ 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 greenhouse gas 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.\20\ The E.O. 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. The E.O. also revokes E.O. 13807 and directs agencies to
promptly take steps to rescind any rules or regulations implementing
it. An accompanying White House fact sheet, published on January 20,
2021, specifically directs CEQ to review the 2020 regulations for
consistency with E.O. 13990's policy.\21\
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\19\ 86 FR 7037 (Jan. 25, 2021).
\20\ Id., sec. 1.
\21\ White House Fact Sheet: List of Agency Actions for Review
(Jan. 20, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/.
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On January 27, 2021, the President signed E.O. 14008, Tackling the
Climate Crisis at Home and Abroad, to establish a government-wide
approach to the climate crisis by reducing greenhouse gas emissions and
an Administration policy to increase climate resilience, transition to
a clean-energy economy, address environmental justice and invest in
disadvantaged communities, and spur well-paying union jobs and economic
growth.\22\ E.O. 14008 also requires the Chair of CEQ and the Director
of the Office of Management and Budget (OMB) to ensure that Federal
permitting decisions consider the effects of greenhouse gas emissions
and climate change.\23\
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\22\ E.O. 14008, 86 FR 7619 (Feb. 1, 2021). E.O. 14008's
direction to advance environmental justice reinforces and reflects
the policy established in E.O. 13985, Advancing Racial Equity and
Support for Underserved Communities Through the Federal Government,
that the Federal Government ``pursue a comprehensive approach to
advancing equity for all, including people of color and others who
have been historically underserved, marginalized, and adversely
affected by persistent poverty and inequality.'' 86 FR 7009 (Jan.
20, 2021).
\23\ Id., sec. 213(a); see also 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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Consistent with E.O. 13990 and E.O. 14008, CEQ is engaged in a
comprehensive review of the 2020 regulations to ensure that they
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,
advances environmental justice, respects Tribal sovereignty, protects
our Nation's resources, and promotes better environmental and community
outcomes. CEQ is taking a phased approach to its comprehensive review,
which includes this Phase 1 rulemaking and a planned, more
comprehensive Phase 2 rulemaking. Additionally, as a preliminary
matter, CEQ issued an interim final rule on June 29, 2021, amending the
requirement in 40 CFR 1507.3(b) for agencies to propose changes to
existing agency-specific NEPA procedures by September 14, 2021, to make
those procedures consistent with the 2020 regulations.\24\ CEQ extended
the date by 2 years to avoid agencies proposing changes to agency-
specific implementing procedures on a tight deadline to conform to
regulations that are undergoing extensive review and will likely change
in the near future. CEQ requested comments on the interim final rule
and received approximately 20 written submissions; summaries and
responses to those comments are included in the response to comments
document posted to the docket for this rulemaking.
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\24\ 86 FR 34154 (June 29, 2021).
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As a next step in the phased approach, CEQ published a proposed
rule \25\ for the Phase 1 rulemaking on October 7, 2021. In the Phase 1
proposed rule, CEQ identified a discrete set of provisions that pose
significant near-term interpretation or implementation challenges for
Federal agencies; would have the most impact to agencies' NEPA
processes during the interim period before a ``Phase 2'' rulemaking is
complete and make sense to revert to the 1978 regulatory approach. In
proposing to revert to language conforming to the approach in the 1978
regulations, the proposed rule addressed issues similar or identical to
those the public and Federal agencies recently had the opportunity to
consider and comment on during the rulemaking for the 2020 rule.
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\25\ 86 FR 55757 (Oct. 7, 2021).
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Publication of the proposed rule initiated a 45-day public comment
period that concluded on November 22, 2021. CEQ received approximately
94,458 written comments in response to the proposed rule. Seventy-six
comments were shared with CEQ during two virtual public meetings CEQ
hosted on the proposed rule on October 19, 2021, and October 21, 2021.
In total, CEQ received 94,534 comments on the proposed rule, which CEQ
considered in the development of this final rule. A majority of the
comments (approximately 93,893) were campaign form letters sent in
response to an organized initiative and identical or very similar in
form and content. CEQ received approximately 573 unique public
comments, of which 362 were substantive comments raising a variety of
issues related to the rulemaking approach and contents of the proposed
rule. The vast majority of the unique comments expressed some level of
support for the proposed rule. Many supportive comments included
suggestions for Phase 2 or expressed general support for Phase 1 while
also
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indicating that the commenters would have preferred for CEQ to have
proposed more comprehensive changes in Phase 1. 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 1 Response to Comments'' (Phase
1 Response to Comments) and provides below brief summaries of comments
and responses related to the provisions in the final rule.
Separately, CEQ is developing a Phase 2 rulemaking to propose
comprehensive revisions to the 2020 regulations and intends to issue a
second proposed rule for notice and public comment. Both the Phase 1
and Phase 2 rulemakings are intended to ensure that the NEPA process
provides for efficient and effective environmental reviews that are
guided by science and are consistent with the statute's text and
purpose; enhance clarity and certainty for Federal agencies, project
proponents, and the public; inform the public about the potential
environmental effects of Federal Government actions and enable full and
fair public participation; and ultimately promote better informed
Federal decisions that protect and enhance the quality of the human
environment and advance environmental, climate change mitigation and
resilience, and environmental justice objectives.
E. Public Comments on the Phased Approach
CEQ received multiple comments related to the phased approach that
it has selected to organize its review of the 2020 regulations.
Numerous commenters suggested that CEQ set aside the 2020 regulations
entirely and reissue the 1978 regulations to serve as a baseline for
consideration of further regulatory reforms. These commenters expressed
overall support for the content of the Phase 1 proposed rule, but
contended that other provisions in the 2020 regulations also pose near-
term challenges and also should be revised to revert to the 1978 text.
Some of these commenters expressed the view that a full repeal of the
2020 regulations is needed to prevent conflicts between existing agency
NEPA procedures and the CEQ regulations. Some commenters also requested
that CEQ reissue the 1978 regulations and not pursue additional
revisions. CEQ also received many comments expressing support for the
Phase 1 rulemaking and encouraging CEQ to quickly initiate and complete
a Phase 2 rulemaking. Some of these commenters also identified
additional provisions that the commenters contended Phase 1 should
address or provided recommendations for consideration in Phase 2.
Other commenters requested that CEQ pursue one overall rulemaking,
rather than a phased approach. These commenters expressed views that
one rulemaking has advantages, including enabling stakeholders and the
public to understand and comment on the full scope of changes at one
time, rather than in two phases. Some of these commenters also
expressed concern that the phased approach could result in confusion
and inefficiency.
CEQ appreciates the views expressed by commenters on the phased
approach and acknowledges that a single rulemaking process would have
entailed different tradeoffs and conferred different benefits. However,
CEQ considers the phased approach for its review of the 2020
regulations to strike the appropriate balance between the need to act
quickly to address critical issues and the need to conduct a thorough
review of the 2020 regulations. As explained above, CEQ determined that
the phased approach will address important near-term implementation
challenges while allowing sufficient time to conduct a thorough review
of the 2020 regulations to determine what other changes, including
additional reversions to the 1978 regulations and new revisions, may be
necessary or appropriate. CEQ decided against proposing a full
reversion to the 1978 regulations in Phase 1 to focus time and
resources on the most pressing issues and avoid the administrative
burdens associated with analyzing each provision in the 2020
regulations, considering whether to revert each provision to the 1978
language and the reasoning for doing so, and responding to comments on
the large number of regulatory provisions that would be affected. CEQ
is a small agency with limited resources and had concerns about
undertaking two large rulemakings--one to revert to the 1978
regulations and a second to propose new updates.
With this final rule, CEQ is concluding Phase 1 and will continue
its work on Phase 2. In Phase 2, CEQ will consider the NEPA regulations
comprehensively and assess whether to revise additional provisions to
revert to the language of the 1978 regulations or to propose other
revisions based on its expertise, NEPA's policies and requirements,
relevant case law, and feedback from Federal agencies and the public.
Further information on the phased approach can be found in the Phase 1
Response to Comments.
III. Summary of and Rationale for Final Rule
This section summarizes and identifies CEQ's rationale for the
regulatory changes included in the final rule. This section also
briefly summarizes and responds to the comments CEQ received in
response to the NPRM. CEQ has provided more detailed summaries and
responses in the Phase 1 Response to Comments document,\26\ which CEQ
incorporates by reference and has made available in the docket for this
rulemaking.
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\26\ The National Environmental Policy Act Implementing
Regulations Revision Phase 1 Response to Comments is available under
``Supporting & Related Materials'' in the docket on
www.regulations.gov under docket ID CEQ-2021-0002, available at
https://www.regulations.gov/docket/CEQ-2021-0002/document?documentTypes=Supporting%20%26%20Related%20Material.
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Many commenters expressed general support for CEQ's proposal and
the general return to the language from the 1978 regulations for the
provisions on purpose and need; agency NEPA procedures; and the
definition of effects. These commenters stated that the 2020 rule
weakened NEPA and that parts of the 2020 regulations were misguided and
reflected a bias in favor of project proponents to the possible
detriment of environmental values or the public interest. Several of
these commenters indicated that the proposed revisions are important
for providing clarity, certainty, and consistency.
Commenters who expressed general opposition to the proposed rule
were generally supportive of the 2020 regulations. These commenters
expressed disappointment about CEQ rescinding portions of the 2020 rule
and expressed concerns that the proposed rule would slow down efforts
to improve the nation's infrastructure or harm certain economic
sectors. Some of these commenters agreed with the goals that CEQ
identified as guiding this rulemaking, but stated that the 2020 rule
advanced those goals.
CEQ acknowledges that there is both support for and opposition to
the changes outlined in the NPRM, and that there are many additional
provisions that commenters suggested CEQ should change in either the
Phase 1 rulemaking or in future rulemakings. CEQ is considering these
comments as it develops its proposed Phase 2 rule.
This Phase 1 final rule is guided by the extensive experience of
CEQ and Federal agencies implementing NEPA for the last 50 years. CEQ
is charged with overseeing NEPA implementation across the Federal
Government and reviews every agency's proposed new or
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updated NEPA implementing procedures. Through this iterative process,
CEQ engages with agencies to understand their specific authorities and
programs to ensure they integrate consideration of environmental
impacts into their decision-making processes. Additionally, CEQ
frequently consults with agencies on the efficacy and effectiveness of
NEPA implementation. Where necessary or appropriate, CEQ engages with
agencies on NEPA reviews for specific projects or project types to
provide advice and identify any emerging or cross-cutting issues that
would benefit from CEQ issuing formal guidance or assisting with
coordination. For example, CEQ has convened interagency working groups
to promote efficient and effective environmental reviews for
transportation and broadband projects. CEQ also has extensive
experience providing written guidance to Federal agencies on a wide
range of NEPA-related issues, including environmental justice,
emergency actions, climate change, and more.\27\ In addition, CEQ meets
regularly with external stakeholders to understand their perspectives
on the NEPA process. Finally, CEQ coordinates with other Federal
agencies and components of the White House on a wide array of
environmental issues, such as endangered species consultation or
impacts to Federal lands and waters from federally authorized
activities.
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\27\ See https://www.energy.gov/nepa/ceq-guidance-documents for
a list of current CEQ guidance documents.
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CEQ relied on this body of experience and expertise in developing
this final rule. As discussed in detail in the following sections, CEQ
is generally reverting to the approach in the 1978 regulations for
these three provisions with non-substantive changes to the 1978
regulatory text to accommodate the current structure of the CEQ
regulations. In doing so, CEQ intends for the Phase 1 final rule
provisions to have the same meaning as the corresponding provisions in
the regulations in effect from 1978 to September 2020.
A. Purpose and Need (Sec. 1502.13)
i. Regulatory History and Proposed Changes
The purpose and need section of an EIS identifies the agency's
purpose for the proposed action and the need it serves. Developing a
statement of the purpose and need is a vital early step in the NEPA
process that is foundational to other elements of an EIS. For example,
the purpose and need statement informs the range of reasonable
alternatives that the agency analyzes and considers.
The 1978 regulations required that each EIS briefly state the
underlying purpose and need to which the agency is responding in
proposing the alternatives, including the proposed action. 40 CFR
1502.13 (2019). The 2020 regulations modified this requirement by
adding specific language to address circumstances in which an agency's
``statutory duty'' is to consider an application for authorization,
such as applications for permits or licenses. In those circumstances,
the 2020 regulations require agencies to base the purpose and need on
the goals of an applicant and the agency's authority. The 2020 rule
added conforming language to a new definition of ``reasonable
alternatives'' in Sec. 1508.1(z). Specifically, the 2020 regulations
define ``reasonable alternatives'' to mean ``a reasonable range of
alternatives that are technically and economically feasible, meet the
purpose and need for the proposed action, and, where applicable, meet
the goals of the applicant.'' \28\ In the NPRM for this rulemaking, CEQ
proposed to revert to the language of the 1978 regulations in Sec.
1502.13 and make a conforming edit to the definition of ``reasonable
alternatives'' in Sec. 1508.1(z) by deleting the reference to the
goals of the applicant from the definition.
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\28\ As noted in the 2020 rule, the definition of ``reasonable
alternatives'' was based in part on CEQ's longstanding guidance, the
``Forty Most Asked Questions Concerning CEQ's National Environmental
Policy Act Regulations,'' 46 FR 18026 (Mar. 23, 1981), as amended,
1986, https://www.energy.gov/sites/default/files/2018/06/f53/G-CEQ-40Questions.pdf. Specifically, the guidance states in response to
Question 2A, ``Reasonable alternatives include those that are
practical or feasible from the technical and economic standpoint and
using common sense, rather than simply desirable from the standpoint
of the applicant.''
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ii. Summary of NPRM Comments on Purpose and Need
CEQ received comments that both supported and opposed the proposed
changes in the NPRM to Sec. Sec. 1502.13 and 1508.1(z). Some
commenters supported the changes in the proposed rule, expressing the
view that the changes would result in better decisions because agencies
would consider a full range of alternatives and their effects without
any arbitrary limitations tied to a project applicant or specific
agency authorities. Commenters also expressed the view that the 2020
rule could be interpreted to allow or encourage agencies to prioritize
an applicant's goals over the needs and goals of the public or the
agency's own goals, and that the proposed rule would remedy these
problems. Some commenters also specifically supported the retention of
``technically and economically feasible'' in the definition of
``reasonable alternatives,'' stating this is in alignment with previous
CEQ guidance on the 1978 regulations. Many commenters agreed with CEQ's
statements in the NPRM that the purpose and need statement should
reflect understanding of an agency's statutory authority, the public
interest, and an applicant's goals but that these should be framed in
the context of the general goal of an action and not through an
evaluation of whether an applicant can reach its specific goals. Some
comments also indicated that the reference to agency authority is
redundant and supported the proposed removal of this reference to avoid
unnecessary confusion.
Other commenters opposed the proposed changes to Sec. Sec. 1502.13
and 1508.1(z), contending that the language adopted in the 2020 rule
provides clarity that agencies must base the purpose and need on the
applicant's goals and agency's statutory authority. Commenters also
expressed the view that the 1978 regulation resulted in some Federal
agencies prioritizing agency goals over the goals of the applicant, and
therefore, that the proposed rule would have the same effect. They
further argued that analyses considering alternatives that do not meet
an applicant's goals or that cannot be implemented by the applicant or
agency are wasteful of both the applicant's and the agency's resources.
Commenters also expressed the view that the proposed changes to purpose
and need are not required by NEPA. For example, some commenters stated
that there is no requirement to consider the public interest when
developing a purpose and need statement for a non-Federal project.
These commenters also objected to CEQ's statements in the NPRM that the
2020 regulations could be interpreted to require that an applicant's
goals be the sole or primary factor for articulating purpose and need.
These commenters contended that the 2020 rule's requirement that
agencies consider alternatives that the applicant is capable of
implementing does not foreclose consideration of potential
environmental impacts or public interests. Further, these commenters
stated that basing alternatives on the needs of an applicant does not
unreasonably narrow the range of alternatives that an agency must
consider because agencies still must consider the ``no action
alternative'' and other reasonable alternatives that align with the
goals of the applicant. Some commenters who supported retaining the
reference to agency statutory
[[Page 23458]]
authority agreed with CEQ that the language is confusing, but contended
that CEQ should clarify it and that deleting the reference also will
create confusion.
The inconsistent interpretations of the language in 40 CFR 1502.13
(2020) expressed by commenters to the NPRM, as well as commenters on
the 2020 rule, demonstrate the ambiguity of the language and underscore
the need for clarification. Some commenters read the language in the
2020 rule to make the applicant's goals and the agency's statutory
authority the sole factors an agency can consider in formulating a
purpose and need statement when considering an application for
authorization. Other commenters read the language as allowing agencies
to consider other, unenumerated factors. These comments demonstrate the
ambiguity of the 2020 text, which CEQ is clarifying in this final rule.
CEQ specifically requested comment on the potential effects of the
proposed changes to Sec. Sec. 1502.13 and 1501.8(z) to the
environmental review process, including timeframes for environmental
review. In response, some commenters indicated they do not believe the
proposed changes will affect the average timeline for the environmental
review process. Other commenters stated that CEQ's proposed revisions
to purpose and need will lead to unnecessarily time-consuming and
costly expansions of the consideration of alternatives by agencies with
little focus on the project's stated purpose. Some commenters expressed
concern that the change to purpose and need would result in additional
EISs as opposed to more efficient environmental assessments. CEQ did
not receive any specific data or evidence from commenters that would
address whether or not the proposed change would have an effect on the
environmental review process, including timelines.
iii. Rationale for Final Rule
In the final rule, CEQ makes the changes as proposed. Specifically,
the final rule amends the first sentence in Sec. 1502.13 to require an
EIS to state the purpose and need to which the agency is responding in
proposing alternatives, including the proposed action. The rule removes
the second sentence requiring agencies base the purpose and need on the
goals of the applicant and the agency's authority when the agency is
reviewing an application for authorization. Finally, the final rule
removes the reference to the goals of the applicant from the definition
of ``reasonable alternatives'' in Sec. 1508.1(z).
CEQ makes these changes to address the ambiguity created by the
2020 rule language and ensure agencies have the flexibility to consider
a variety of factors in developing the purpose and need statement and
are not unnecessarily restricted by misconstruing this language to
require agencies to prioritize an applicant's goals over other
potentially relevant factors, including effectively carrying out the
agency's policies and programs or the public interest. While CEQ does
not interpret the 2020 rule language to require agencies to prioritize
an applicant's goals above or to the exclusion of other relevant
factors, CEQ finds that removing the language on applications for
authorization and restoring the 1978 regulatory text is appropriate.
The language of the 2020 rule could be misconstrued to inappropriately
constrain the discretion of agencies in formulating a purpose and need
statement, which would be inconsistent with fully informed decision
making and sound environmental analysis. And even if interpreted to
merely direct agencies to consider the applicant's goals and the
agency's statutory authority alongside other relevant factors, CEQ
deems it appropriate to strike the text because it is unnecessary and
confusing.
Consistent with longstanding practice and to ensure informed
decision making, agencies should have discretion to base the purpose
and need for their actions on a variety of factors, which include the
goals of the applicant, but not to the exclusion of other factors.
Agencies have long considered myriad factors in developing a purpose
and need statement. These include the agency's mission and the
specifics of the agency decision, including statutory and regulatory
requirements. Factors also may include national, agency, or other
policy objectives applicable to a proposed action, such as a
discretionary grant program targeted to achieve certain policy goals;
desired conditions on the landscape or other environmental outcomes;
local needs; and an applicant's goals. Additionally, when considering a
project sponsored by an outside party, there may be actions by multiple
Federal agencies for which the lead agency, in consultation with
cooperating agencies, will need to craft the purpose and need statement
in a manner to address all of the Federal agency actions (e.g., funding
and permits) covered by the NEPA document.
Finally, the goals of the applicant are an important, but not
determinative, factor in developing a purpose and need statement for a
variety of reasons, including helping to identify reasonable
alternatives that are technically and economically feasible. Both the
development of purpose and need statements and the identification of
alternatives are governed by a rule of reason; the range of
alternatives should be reasonable, practical, and not boundless. This
approach is consistent with CEQ's longstanding position as set forth in
the Forty Questions issued shortly after the promulgation of the 1978
regulations, where CEQ acknowledged that agencies must consider
practicality and feasibility, without relying solely on the applicant's
preference for identifying what alternatives are reasonable.\29\
Additionally, removing this language does not foreclose an agency from
considering the goals of the applicant.
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\29\ See Forty Questions, 2A, supra note 28 (``In determining
the scope of alternatives to be considered, the emphasis is on what
is `reasonable' rather than on whether the proponent or applicant
likes or is itself capable of carrying out a particular alternative.
Reasonable alternatives include those that are practical or feasible
from the technical and economic standpoint and using common sense,
rather than simply desirable from the standpoint of the
applicant.''). See also Simmons v. U.S. Army Corps of Engineers, 120
F.3d 664, 669 (7th Cir. 1997) (``An agency cannot restrict its
analysis to those `alternative means by which a particular applicant
can reach his goals'. . . . The Corps has the `duty under NEPA to
exercise a degree of skepticism in dealing with self-serving
statements from a prime beneficiary of the project.' '').
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The final rule also removes the reference to the agency's statutory
authority from Sec. 1502.13 because it is confusing and unnecessary.
Federal agency discussions with CEQ and public comments, as reflected
in both the 2020 Rule Response to Comments and the Phase 1 Response to
Comments, demonstrate that some interpret this language to limit
agencies' discretion in developing the purpose and need statement. The
implication that an agency's authority is only relevant when the
proposed action is for an authorization, such as a permit or license,
is incorrect because an agency's statutory authority for its action is
always a relevant consideration for developing a purpose and need
statement irrespective of whether the proposed action is an
authorization. The 2020 rule's addition of the text also is confusing
because it suggested that a change in practice was intended. In fact,
agencies have always considered their statutory authority and the scope
of the agency decision when developing purpose and need statements. In
CEQ's experience implementing the 1978 regulations, there has been
little or no confusion among the agencies regarding these issues;
therefore, the additional language is unnecessary. Furthermore,
[[Page 23459]]
for projects involving multiple agency actions under different
statutory authorities, the lead agency should have flexibility in
crafting a purpose and need statement to address multiple agency
decisions both for efficiency and effective decision making.
CEQ also makes these changes in the final rule because the language
added by the 2020 rule may be interpreted in a manner that does not lay
the appropriate groundwork for environmentally sound decision making
when an agency considers a request for an authorization or reflect the
best reading of the NEPA statute or case law. A properly drafted
purpose and need statement should lead to consideration of the
reasonable alternatives to the proposed action, consistent with NEPA's
requirements. See 42 U.S.C. 4332(2)(C), 4332(2)(E). CEQ disagrees with
commenters assertions that consideration of alternatives that do not
meet an applicant's goals or cannot be implemented by the applicant
will always waste applicant or agency resources or result in delays.
There may be times when an agency identifies a reasonable range of
alternatives that includes alternatives--other than the no action
alternative--that are beyond the goals of the applicant or outside the
agency's jurisdiction because the agency concludes that they are useful
for the agency decision maker and the public to make an informed
decision. Always tailoring the purpose and need to an applicant's goals
when considering a request for an authorization could prevent an agency
from considering alternatives that do not meet an applicant's stated
goals, but better meet the policies and requirements set forth in NEPA
and the agency's statutory authority and goals. The rule of reason
continues to guide decision making in such contexts.
CEQ's concern that the 2020 regulation's change to Sec. 1502.13
may be interpreted to unduly constrain the discretion of agencies
leading to the development of unreasonably narrow purpose and need
statements is consistent with a similar concern raised by the courts in
reviewing agencies' purpose and need statements under the 1978
regulations. It is contrary to NEPA for agencies to ``contrive a
purpose so slender as to define competing `reasonable alternatives' out
of consideration (and even out of existence).'' Simmons v. U.S. Army
Corps of Engineers, 120 F.3d 664, 666 (7th Cir. 1997) (citing 42 U.S.C.
4332(2)(E)). Constricting the definition of the project's purpose could
exclude ``truly'' reasonable alternatives, making an EIS incompatible
with NEPA's requirements. Id. See also, e.g., Nat'l Parks &
Conservation Ass'n v. Bureau of Land Mgmt., 606 F.3d 1058, 1070 (9th
Cir. 2010) (``Agencies enjoy `considerable discretion' to define the
purpose and need of a project. However, `an agency cannot define its
objectives in unreasonably narrow terms.''' (internal citations
omitted)).
Other court decisions have deferred to agencies' purpose and need
statements developed under the 1978 regulation that put weight on
multiple factors rather than just an applicant's goals, recognizing
those factors as appropriately within the scope of the agency's
consideration. Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190
(D.C. Cir. 1991), which the 2020 final rule relied upon as the
justification for language added to the purpose and need provision, is
consistent with the language in the 1978 regulations that CEQ is
restoring, and, in fact, interpreted and applied that language. In that
case, in applying the traditional ``rule of reason,'' the court held
that the agency's consideration of the applicant's goals to develop the
purpose and need of the action was reasonable. Id. at 196-99. However,
the court did not require all agencies to make the applicant's goals
the sole (or even primary) factor in the formulation of the purpose and
need in all factual and legal contexts. See id. Returning to the 1978
framework is consistent with case law affirming agency discretion to
formulate purpose and need statements based on a variety of relevant
factors.
Removing the language regarding an applicant's goals from Sec.
1502.13 does not mean that an agency should consider a boundless set of
alternatives. This final rule does not amend language in 40 CFR 1502.14
directing agencies to ``[e]valuate reasonable alternatives to the
proposed action,'' and Sec. 1508.1(z), as amended in this final rule,
continues to define ``reasonable alternatives'' as ``a reasonable range
of alternatives that are technically and economically feasible and meet
the purpose and need for the proposed action.'' The principle that the
range of alternatives should be reasonably related to the purpose and
need is well-settled. See Westlands Water Dist. v. U.S. Dep't of the
Interior, 376 F.3d 853, 868 (9th Cir. 2004); Process Gas Consumers Grp.
v. U.S. Dep't of Agric., 694 F.2d 728, 769 (D.C. Circ. 1981).
The final rule will reduce confusing and unnecessary text and align
the regulations more closely to the purposes underlying NEPA. These
changes reaffirm agency discretion to identify and consider the factors
relevant to formulating statements of purpose and need in view of the
specific circumstances before the agency and the agency's
responsibilities, including effectively carrying out agency policies
and programs and considering the public interest and the goals of an
applicant. CEQ disagrees with the assertions that returning or
reaffirming agency discretion to consider multiple factors even where a
private applicant is involved will result in significant additional
burdens or negatively affect timelines. Agencies have significant
experience under the 1978 regulations in considering a variety of
factors when crafting purpose and need statements, including an
applicant's goals. Furthermore, CEQ did not receive any data, but only
general and speculative statements, in response to its specific request
for comment on potential effects of the proposed changes to Sec. Sec.
1502.13 and 1501.8(z) on the environmental review process, including
timeframes for environmental review. CEQ notes that it is ultimately
for the agency to determine what alternatives are needed to inform its
decision making. Exploring and evaluating reasonable alternatives helps
decision makers and the public examine other ways to meet the purpose
and need of an action, including options with different environmental
consequences or mitigation measures, and demonstrate to the public that
the agency made an informed decision because it has explored such
tradeoffs. CEQ also disagrees with the assertion that the changes to
purpose and need in the final rule will directly result in an increase
in the number of certain types of environmental review documents like
EISs. Development of a purpose and need statement is separate from the
assessment of whether a potential effect is significant, and therefore,
whether an EIS is required. The changes made in the final rule will
ensure agencies can make these determinations based on all relevant
factors.
B. Agency NEPA Procedures (Sec. 1507.3)
i. Regulatory History and Proposed Changes
The 1978 regulations required Federal agencies to develop NEPA
procedures through a notice and comment process to integrate NEPA
reviews into their decision-making processes. Over the 40-year period
that the 1978 regulations were in place, approximately 85 agencies
issued procedures to facilitate agency compliance with NEPA.\30\
[[Page 23460]]
Agencies have taken a wide range of approaches to their agency-specific
NEPA procedures. Some have essentially incorporated the CEQ regulations
by reference without much additional detail; others have issued
procedures that tailor the NEPA process to the contexts in which they
operate and integrate NEPA compliance with the agency's other statutory
responsibilities or environmental requirements.\31\ Consistent with 42
U.S.C. 4332(2)(B) and 40 CFR 1507.3 (2019), agencies consulted with CEQ
in developing agency-specific procedures and CEQ determined that the
procedures conformed with NEPA and the CEQ regulations before the
agencies issued final procedures.
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\30\ A list of agency NEPA procedures is available at https://ceq.doe.gov/laws-regulations/agency_implementing_procedures.html. No
agency has updated its procedures to implement the 2020 regulations
and, as discussed above, CEQ promulgated an interim final rule to
extend the deadline for agencies to propose updates.
\31\ Compare the U.S. Department of Agriculture's procedures, 7
CFR part 1b, with NOAA Administrative Order 216-6A and Companion
Manual, https://www.noaa.gov/nepa.
---------------------------------------------------------------------------
The 2020 rule amended 40 CFR 1507.3 to include ``ceiling
provisions'' that made the CEQ regulations the maximum requirements
agencies could include in their agency NEPA procedures. In adopting the
ceiling provisions, the 2020 rule asserted that the ceiling provisions
were intended to eliminate inconsistencies among agency-specific
procedures and between agency procedures and the CEQ regulations by
requiring that the 2020 regulations apply where existing agency NEPA
procedures are inconsistent with the CEQ regulations absent a clear and
fundamental conflict with another statutory requirement. The 2020 rule
also required agencies to propose new or revised procedures within 12
months to eliminate any inconsistencies and prohibited agencies from
imposing procedures or requirements additional to the CEQ regulations
unless those additional procedures promote agency efficiency or are
required by law.
In the Phase 1 NPRM, CEQ proposed to revise Sec. 1507.3(a) and (b)
to delete the ceiling provisions to provide that while agency NEPA
procedures need to 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.
Specifically, the NPRM proposed to remove language from Sec. 1507.3(a)
stating that where existing agency NEPA procedures are ``inconsistent''
with the CEQ regulations, the CEQ regulations apply ``unless there is a
clear and fundamental conflict with the requirements of another
statute.'' The NPRM did not propose to amend the determination made in
the 2020 rule in Sec. 1507.3(a) that categorical exclusions
established in agency NEPA procedures as of September 14, 2020, are
consistent with the CEQ regulations. The NPRM also proposed to remove
from Sec. 1507.3(b) the language requiring agencies ``to eliminate any
inconsistencies'' with the CEQ regulations and the prohibition on
agencies imposing additional procedures or requirements beyond the CEQ
regulations unless those additional procedures promoted agency
efficiency or were required by law. The NPRM did not propose to further
amend the requirement for agencies to propose new or revised NEPA
procedures within 36 months, by September 14, 2023, as revised in the
interim final rule,\32\ as well as the encouragement for major subunits
of departments to adopt their own procedures with the consent of the
department.
---------------------------------------------------------------------------
\32\ As noted in part I of the preamble, CEQ revised this time
period from 12 months to 36 months in its interim final rule. See 86
FR 34154 (June 29, 2021).
---------------------------------------------------------------------------
ii. Summary of NPRM Comments on Agency NEPA Procedures
Many commenters supported the proposed changes to Sec. 1507.3,
stating that the 2020 ceiling provisions were unnecessary and unhelpful
because agencies should have flexibility to add additional requirements
or detail to their NEPA procedures tailored to their unique needs and
missions. Commenters also noted that the proposed change would assist
agencies during the transition period before the completion of a Phase
2 rulemaking because it clarifies that agencies can and should continue
to apply their existing NEPA procedures while CEQ finishes its review
of the 2020 rule. They noted that without this change, agencies might
be in the position of developing agency procedures that either conflict
with NEPA or the 2020 regulations. Many commenters stated that the
proposal would restore the ability of Federal agencies to develop
agency-specific NEPA procedures to implement NEPA to the ``fullest
extent possible'' consistent with 42 U.S.C. 4332. Some commenters who
supported removing the ceiling provision noted that removing the
provision may reduce, but will not eliminate, all of the harms of the
2020 rule because the 2020 rule is not being repealed.
Other commenters opposed the proposed changes to Sec. 1507.3 as
unnecessary because the 2020 regulations contain language allowing
flexibility for agencies to tailor their NEPA procedures to improve
efficiency. Some commenters also suggested that CEQ's proposed changes
invite agencies to disregard the 2020 rule. Commenters indicated that
the NPRM's proposed changes would result in inconsistencies and
conflicts among agencies' NEPA procedures, increased litigation, costs,
delays, and paperwork, and impede the Administration's goals.
Commenters also requested that CEQ provide additional rationale and
examples of agency confusion about the 2020 regulations.
Some commenters suggested additional changes CEQ should consider to
Sec. 1507.3, including to develop a framework for CEQ review of agency
NEPA procedures to ensure agency discretion is not boundless; require
agencies to affirm their procedures were reviewed for consistency by
CEQ; and require that Federal agencies make revisions to their
procedures only with public notice and comment. While such changes are
beyond the scope of this rulemaking, CEQ notes that agencies cannot
make changes to their NEPA procedures without consulting with CEQ,
providing notice and comment, and receiving a determination from CEQ
that the proposed changes are consistent with NEPA and the CEQ
regulations. See 40 CFR 1507.3(b)(1)-(2). CEQ will consider the ideas
included in these comments in the development of its Phase 2
rulemaking.
iii. Rationale for Final Rule
The 2020 final rule did not include a detailed rationale for
adoption of the ``ceiling'' provisions, although the 2020 proposed rule
stated that they were intended to ``prevent agencies from designing
additional procedures that will result in increased costs or delays.''
(85 FR 1693). The 2020 Final Rule Response to Comments document also
stated that ``it is important that agencies do not revise their
procedures in a way that will impede integration'' with other
environmental review requirements or ``otherwise result in heightened
costs or delays.'' \33\ CEQ also asserted in the 2020 Final Rule
Response to Comments that it had the authority to place limits on
agency procedures pursuant to 42 U.S.C. 4344(3) and E.O. 11991.\34\
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\33\ CEQ, Update to the Regulations Implementing the Procedural
Provisions of the National Environmental Policy Act Final Rule
Response to Comments, p. 436 (June 30, 2020), https://www.regulations.gov/document/CEQ-2019-0003-720629.
\34\ Id.
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CEQ has reexamined the rationales provided for the 2020 rule and
the
[[Page 23461]]
comments received on the Phase 1 NPRM and determined that finalizing
the changes as proposed in the Phase 1 NPRM is appropriate. Doing so
clarifies that agencies can and should continue to apply their existing
NEPA procedures, consistent with the CEQ regulations in effect, while
CEQ completes its review of and revisions to the 2020 regulations in
its Phase 2 rulemaking. The final rule makes clear that agencies have
this discretion by removing the ceiling provisions. The removal of the
ceiling provisions allows agencies to exercise their discretion to
develop and implement procedures beyond the CEQ regulatory
requirements; however, agency procedures cannot conflict with current
CEQ regulations. More generally and as discussed further below, these
changes to Sec. 1507.3 will promote better decisions, improve
environmental and community outcomes, and spur innovation that advances
NEPA's goals by giving agencies the flexibility to follow their
existing procedures or develop new or revised NEPA procedures that best
meet the agencies' statutory missions and enable integration of
environmental considerations in their decision making in a flexible
manner. Giving agencies the flexibility to innovate should increase the
likelihood that agencies identify process improvements and efficiencies
that benefit Federal agencies as well as project sponsors and other
stakeholders, including the public. CEQ disagrees with the 2020 rule's
assertions and some NPRM commenters' contentions that this change will
result in increased costs and delays due to conflicts among agency NEPA
procedures or between agency NEPA procedures and the CEQ regulations. A
primary purpose of the longstanding process by which CEQ engages with
agencies in the development of their NEPA procedures is to identify and
resolve potential conflicts and ensure that agency-specific procedures
conform with the CEQ regulations. Furthermore, the public has an
opportunity to provide public comments on proposed agency NEPA
procedures before they are finalized. These processes facilitate
identification of potential conflicts, costs, or delays and give
agencies opportunities to balance various policy and process
considerations before establishing or changing their procedures.
The final rule's changes to Sec. 1507.3 also will better achieve
NEPA's objectives and statutory requirements. First, while CEQ is
responsible for interpreting and overseeing NEPA implementation, all
agencies are charged with administering the statute's requirements. See
42 U.S.C. 4332. NEPA expressly instructs agencies to develop methods
and procedures in consultation with CEQ to ensure consideration of
``environmental amenities and values'' in decision making. See 42
U.S.C. 4332(2)(B). NEPA and the CEQ regulations, see 40 CFR 1507.3,
call for agencies to take responsibility for their own procedures, even
while consulting with CEQ. Agencies should be allowed to pursue the
environmental aims of the statute, including by adopting and carrying
out procedures that require additional or more specific environmental
analysis than called for by the CEQ regulations. Furthermore, CEQ plays
a critical role in reviewing and determining that an agency's NEPA
procedures comply with NEPA and the CEQ regulations, which ensures that
agency procedures integrate the NEPA process with agency decision
making so that the public and decision makers are informed of the
environmental consequences of agency decisions. See 40 CFR 1507.3(b),
(e).
Second, removing these ceiling provisions improves alignment of the
NEPA regulations with NEPA's statutory text, which directs agencies to
pursue the statute's goals ``to the fullest extent possible.'' 42
U.S.C. 4332. The legislative history of NEPA indicates that the intent
behind this statement was to ensure that all Federal agencies comply
with NEPA as well as their statutory authorities and that ``no agency
shall utilize an excessively narrow construction of its existing
statutory authorizations to avoid compliance.'' \35\ This final rule
provides agencies the flexibility to comply with NEPA, including by
allowing agencies to adopt agency-specific NEPA procedures that align
with their unique missions, circumstances, and statutory mandates.
---------------------------------------------------------------------------
\35\ H. Rep. No. 91-765, at 9-10 (1969).
---------------------------------------------------------------------------
Agencies may more fully pursue NEPA's twin aims to consider
environmental effects and inform the public by establishing procedures
that provide for additional environmental review and public
participation or evaluation of certain issues such as air and water
quality impacts, environmental justice considerations, or habitat
effects. See 42 U.S.C. 4332. Agency procedures could include more
specific requirements for the development of environmental assessments
to facilitate the decision-making process, such as requiring multiple
alternatives or documentation of alternatives considered but dismissed.
For example, the National Oceanic and Atmospheric Administration
(NOAA), which, among other things, is responsible for the stewardship
of the Nation's ocean resources and their habitat, might adopt agency-
specific procedures on the analysis of impacts to species or habitats
protected by the Endangered Species Act, the Marine Mammal Protection
Act, or the Magnuson-Stevens Fishery Conservation and Management Act,
as well as other vulnerable marine and coastal ecosystems. Removing the
ceiling provision allows agencies to include such specificity, which
can help lead to more effective reviews and provide efficiencies by
fostering better integration of NEPA with other statutory requirements.
Third, upon further consideration, CEQ no longer agrees with the
assertions in the 2020 Final Rule Response to Comments that setting the
CEQ regulations as the ceiling puts agencies in the best position to
reduce costs and delays in NEPA implementation, or that doing so will
promote integration of NEPA and compliance with other environmental
review requirements. The 2020 rule did not provide any support for the
assertion that these changes would achieve those goals. It also did not
explain why the process laid out in Sec. 1507.3--requiring agencies to
collaborate with CEQ on the development of their NEPA procedures, seek
public comment on proposed procedures, and obtain CEQ conformity
determinations--does not sufficiently advance the goal of ensuring an
efficient and effective NEPA review. CEQ has reconsidered the ceiling
provisions in light of this longstanding process, CEQ's experience
implementing it, and the comments CEQ received on the proposed rule,
and determined that the ceiling provisions create unnecessary rigidity
in light of other mechanisms to promote consistency and coordination,
and reduce costs and delays. CEQ also finds that the processes included
in the 1978 regulations effectively promoted the integration of NEPA
and other environmental reviews. See 40 CFR 1502.25 (2019). CEQ's
review of agency procedures allows CEQ and the agency to discuss the
rationale for any new or additional procedures or requirements proposed
by agencies, and allows CEQ to promote consistency across the Federal
Government, as appropriate, without limiting agencies' flexibility to
do more than the CEQ regulations describe or otherwise inhibit
innovation, including innovation and
[[Page 23462]]
flexibilities that can improve agency efficiency.
iv. Deadline Extension
As explained in section I.D, CEQ issued an interim final rule in
June 2021 that extended by 2 years--to September 14, 2023--the deadline
in 40 CFR 1507.3(b) for agencies to propose changes to their existing
agency-specific NEPA procedures to make them consistent with the
current CEQ regulations. The interim final rule explained that the
extension would avoid agencies having to propose changes to their
implementing procedures on a tight deadline to conform to regulations
that are undergoing extensive review and will likely change in the near
future.
The Administrative Procedure Act did not require CEQ to provide
notice and an opportunity for public comment prior to extending the
deadline. See, e.g., 86 FR 34156. Nevertheless, CEQ requested comments
on the interim final rule and received approximately 20 written
submissions. CEQ has provided summaries and responses to these comments
in the response to comments document posted to the docket for this
rulemaking. For the reasons set forth in the interim final rule and the
response to comment document, and having now considered public
comments, CEQ is finalizing in this rule the deadline extension
originally made effective in the interim final rule.
C. Definition of ``Effects'' or ``Impacts'' (Sec. 1508.1(g))
i. Regulatory History and Proposed Changes
NEPA requires Federal agencies to examine the environmental effects
of their proposed actions and alternatives and any adverse
environmental effects that cannot be avoided if the proposed action is
implemented. 42 U.S.C. 4332(2)(C). The 1978 regulations defined
``effects'' to include ``direct effects'' and ``indirect effects'' and
separately defined ``cumulative impact.'' See 40 CFR 1508.7, 1508.8
(2019). Section 1508.8(a) of the 1978 regulations defined ``direct
effects'' as effects ``caused by the action and occur at the same time
and place.'' Section 1508.8(b) of the 1978 regulations defined
``indirect effects'' as effects ``caused by the action and are later in
time or farther removed in distance, but are still reasonably
foreseeable.'' Section 1508.8 of the 1978 regulations also provided
examples of indirect effects and effects generally, and noted that the
terms ``effects'' and ``impacts'' as used in the regulations were
synonymous. The 1978 regulations defined ``cumulative impact'' as ``the
impact on the environment which results from the incremental impact of
the action when added to other past, present, and reasonably
foreseeable future actions regardless of what agency (Federal or non-
Federal) or person undertakes such other actions.'' Id. Sec. 1508.7.
The definition also stated that cumulative impacts ``can result from
individually minor but collectively significant actions taking place
over a period of time.'' Id.
The 2020 rule made several major changes to these definitions. The
2020 rule provided a single definition for ``effects'' or ``impacts,''
deleting the subcategorization of ``direct'' and ``indirect'' effects
and the definition of ``cumulative impacts.'' The definition includes
introductory text followed by three paragraphs designated (g)(1)
through (3). The first clause of the introductory text provides that
``[e]ffects or impacts means changes to the human environment from the
proposed action or alternatives that are reasonably foreseeable and
have a reasonably close causal relationship to the proposed action or
alternatives.'' The second clause provides that the definition of
``effects'' or ``impacts'' includes ``those effects that occur at the
same time and place as the proposed action or alternatives and may
include effects that are later in time or farther removed in distance
from the proposed action or alternatives.'' The phrase ``those effects
that occur at the same time and place as the proposed action or
alternatives,'' is drawn verbatim from the description of direct
effects in the 1978 regulations' definition of effects. The clause
``may include effects that are later in time or farther removed in
distance,'' is a modified version of the language describing indirect
effects in the 1978 regulations' definition of effects; the 2020 rule
qualified this description by adding ``may include.'' 40 CFR 1508.1(g)
(2020) (emphasis added).
Following the introductory text, paragraph (g)(1) includes language
identifying examples of effects, which is modified from the last
paragraph of the 1978 definition of ``effects.'' Paragraph (g)(2)
includes new text providing that a ```but for' causal relationship is
insufficient to make an agency responsible for a particular effect
under NEPA'' and that agencies generally should not consider effects
``if they are remote in time, geographically remote, or the product of
a lengthy causal chain.'' This paragraph also explicitly excludes
``effects that the agency has no ability to prevent due to its limited
statutory authority or would occur regardless of the proposed action.''
Paragraph (g)(3) requires an agency's analysis of effects to be
consistent with the definition of ``effects'' and explicitly repeals
the definition of cumulative impact.
In the NPRM, CEQ proposed to revise the definition of ``effects''
or ``impacts'' in Sec. 1508.1(g) to restore the substance of the
definitions of ``effects'' and ``cumulative impact'' contained in the
1978 regulations. The NPRM also proposed to continue to provide one
combined definition for the two terms, rather than reinstating separate
definitions for ``effects'' and ``cumulative impacts'' as existed in
the 1978 regulations, because separate definitions are unnecessary as
reflected in the 1978 regulation's statement that the terms ``impacts''
and ``effects'' were synonymous.
The NPRM proposed the following specific amendments to Sec.
1508.1(g). First the NPRM proposed to revise the introductory paragraph
in Sec. 1508.1(g) to define ``effects'' or ``impacts'' as ``changes to
the human environment from the proposed action or alternatives'' that
include ``direct effects,'' ``indirect effects,'' and ``cumulative
effects'' as described in Sec. 1508.1(g)(1) through (3), and remove
the phrase ``that are reasonably foreseeable and have a reasonably
close causal relationship.''
Second, the NPRM proposed to revise each of the paragraphs (g)(1)
through (3) and add a fourth paragraph (g)(4). Proposed paragraphs
(g)(1) through (3) describe ``direct effects,'' ``indirect effects,''
and ``cumulative effects,'' and proposed paragraph (g)(4) provides a
list of examples of effects similar to paragraph (g)(1) of the 2020
regulation. The NPRM proposed to move text included in the introductory
paragraph of the 2020 regulations, but which originated in the 1978
regulations, into the relevant paragraphs. Specifically, the phrase
``effects that occur at the same time and place'' would be moved to the
description of direct effects in paragraph (g)(1), and the phrase
``effects that are later in time or farther removed in distance'' would
be moved to the description of indirect effects in paragraph (g)(2).
The definition of cumulative effects in paragraph (g)(3) is made up of
the language defining ``cumulative impact'' in the 1978 regulations
with non-substantive edits for consistency with the current
regulations. Paragraph (g)(4) includes proposed amended text from
paragraph (g)(1) of the 2020 regulation providing a list of examples of
effects. In paragraph (g)(4), the NPRM proposed to restore the language
of the 1978 regulations and
[[Page 23463]]
delete minor and non-substantive modifications made in the 2020 rule.
Following the proposed amendments, the text in paragraph (g)(4) would
be identical to the final sentence of the effects definition in the
1978 regulation.
Third, the NPRM proposed to delete in its entirety the text
included in paragraph (g)(2) of the 2020 regulations, which states that
a ``but for'' causal relationship is insufficient to make an agency
responsible for a particular effect under NEPA; generally excludes from
the definition of ``effects'' those that are remote in time,
geographically remote, or the product of a lengthy causal chain; and
fully excludes effects that the agency has no ability to prevent due to
its limited statutory authority or that would occur regardless of the
proposed action.
Fourth, the NPRM proposed to delete in its entirety the text
included in paragraph (g)(3) of the 2020 regulations, which requires
agencies to analyze effects consistent with the definition of
``effects'' and explicitly repeals the definition of ``cumulative
impact'' from the 1978 regulations.
Finally, CEQ notes that the NPRM did not propose to include in the
definition of ``effects'' or ``impacts'' the statement in the 1978
regulations' definition of ``effects'' that ``[e]ffects and impacts as
used in these regulations are synonymous.'' See 40 CFR 1508.8(b)
(2019). Because the NPRM proposed to continue to provide a single
definition for ``effects'' or ``impacts,'' including that statement
would be unnecessary and redundant.
ii. Summary of NPRM Comments on the Definition of ``Effects''
General Comments
CEQ received numerous comments on the proposed changes to Sec.
1508.1(g), both expressing support for and opposition to the proposed
changes. Many commenters supported the proposed revisions and restoring
the concepts of direct, indirect, and cumulative effects or impacts to
the regulations. Commenters expressed support for the proposed changes
for a variety of reasons, including because the proposed changes better
reflect NEPA principles and case law; help ensure the proper scope of
analysis that NEPA requires, including analysis of effects on climate
change, communities with environmental justice concerns, and wildlife;
and provide clarity and consistency for the environmental review
process. Many of these commenters identified the changes to the
definitions of effects and impacts as the most damaging changes put in
place by the 2020 rule. Some commenters specifically pointed to the
importance of considering indirect and cumulative effects for
addressing environmental justice concerns and climate change in
environmental reviews, consistent with E.O. 13990 and the
Administration's priority to assess and mitigate climate pollution.
Commenters also contended that central to an agency considering whether
an action will cause or contribute to undue burdens to a community is a
review of cumulative impacts resulting from past, present, and
reasonably foreseeable future actions and effects in a project area,
including the impacts of climate change. Other commenters raised
concerns about the 2020 rule's removal of language on direct, indirect,
and cumulative effects and impacts and emphasized the importance of
considering these categories of effects on wildlife and other natural
resources. Some commenters agreed with the NPRM that the proposed
changes will provide clarity to agencies, practitioners, and the public
by helping agencies and the public evaluate and understand the full
scope of reasonably foreseeable effects in NEPA reviews.
CEQ also received multiple comments expressing overall opposition
to the proposed changes. Some commenters raised concerns that restoring
the approach to impacts and effects in the 1978 regulations would lead
to wider and more complex analysis in the NEPA process, require
evaluation of impacts that are outside the scope of the decision, and
go beyond the intent of the statute. These commenters stated that the
proposed changes to the definition of effects will not improve NEPA
compliance or agency certainty. Some commenters expressed the view that
the proposed changes will result in undue burden on agencies, increased
costs and litigation, and lengthier review times. Some commenters
indicated that if CEQ restores the definition of effects in the final
rule then the definition should include sideboards or other bounding
criteria to prevent misuse, unnecessary delays, and increased costs.
These commenters contended that requiring agencies to expend time and
resources on analyzing and disclosing speculative effects adds time and
cost to the NEPA process without providing value to decision makers or
the public. Some commenters expressed concern specifically about the
proposed rule's potential to delay critical infrastructure projects.
As discussed further in section II.C.iii and in the Phase 1
Response to Comments, CEQ has considered the comments in support of and
opposed to the changes to the definition of ``effects'' in the proposed
rule. With respect to the potential impacts to NEPA review timelines,
CEQ is not aware of--and commenters did not provide--data supporting
the claim that evaluation of direct, indirect, and cumulative effects
necessarily leads to longer timelines, especially given the long
history of agency and practitioner experience with analyzing these
categories of impacts and effects under the 1978 regulations, as well
as modern techniques leveraging science and technology to make
environmental reviews comprehensive yet efficient.\36\ CEQ considers
the importance of clear and robust analysis of effects to informed
agency decision making to outweigh the speculative potential for
shorter NEPA documents or timeframes.
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\36\ For example, CEQ's NEPA.gov website provides a list of
greenhouse gas (GHG) accounting tools, https://ceq.doe.gov/guidance/ghg-accounting-tools.html, and the Environmental Protection Agency's
(EPA's) NEPAssist tool, https://www.epa.gov/nepa/nepassist, a
web[hyphen]based application that draws environmental data
dynamically from EPA's Geographic Information System databases and
web services and provides immediate screening of environmental
assessment indicators for a user[hyphen]defined area of interest.
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Furthermore, the deletion of the definition of ``cumulative
impacts'' in the 2020 rule did not absolve agencies from evaluating
reasonably foreseeable cumulative effects, and therefore, it is unclear
that the deletion would narrow the scope of effects analyzed by
agencies. Numerous commenters on the NPRM noted that the 2020 rule's
changes to the definition of ``effects'' created uncertainty and
confusion in agencies implementing NEPA. CEQ expects that substantively
restoring these definitions, which were in place and in use for
decades, will better clarify the effects agencies need to consider in
their NEPA analyses and could help avoid delays or deficiencies in NEPA
reviews caused by agency uncertainty over the proper scope of effects
analysis. Furthermore, conducting a robust consideration of all
reasonably foreseeable effects of a proposed action is not a delay;
rather, doing so constitutes sound decision making and fulfills NEPA's
statutory mandate. See 42 U.S.C. 4332. Therefore, based on CEQ's
experience and expertise, this final rule strikes the proper balance of
promoting informed decision making and completing environmental reviews
expeditiously.
CEQ also considered comments regarding the potential for increased
litigation. Both commenters in favor of and opposed to the NPRM's
proposal to restore language from the 1978 regulations on direct,
indirect, and
[[Page 23464]]
cumulative effects raised concerns over increased litigation. CEQ
considers the effect of the proposed changes on litigation to be
difficult to predict, and therefore not a useful factor in determining
the approach for this final rule.
Consistency With the NEPA Statute
Some commenters stated that Federal agencies have a statutory
obligation to assess all of the relevant environmental effects of their
proposed actions and argue that restoring the 1978 definition of
``effects'' would align the regulations with longstanding agency
practice and judicial precedent. Commenters expressed the view that
NEPA's plain language requires Federal agencies to address impacts to
future as well as present generations, that this statutory mandate
cannot be met without analyzing cumulative and indirect effects, and
that courts have consistently affirmed this legal obligation. Other
commenters stated that the changes to the definition of effects and
impacts made by the 2020 rule are at odds with the statute's plain
language, clear congressional intent, and decades of legal precedent
and have created confusion and uncertainty.
Other commenters objected to the proposed rule contending that
because NEPA does not include the terms ``direct,'' ``indirect,'' or
``cumulative'' effects, including those terms in the regulations is
contrary to the plain language of the statute. Commenters also
contended that the 2020 rule's elimination of those terms and
replacement with a simplified definition of ``effects'' focused on
reasonable foreseeability is in better alignment with NEPA's statutory
language, the goals of the statute, and case law.
The restoration of direct, indirect, and cumulative effects as part
of the definition of ``effects'' better reflects NEPA's statutory
purpose, policy, and intent and is more consistent with the case law
interpreting NEPA's requirements. NEPA sets forth a policy to encourage
productive and enjoyable harmony between humans and their environment;
to promote efforts that will prevent or eliminate damage to the
environment and biosphere, and stimulate the health and welfare of
people; and to enrich the understanding of the ecological systems and
natural resources important to the Nation. 42 U.S.C. 4321. Accordingly,
the U.S. Supreme Court has stated that NEPA promotes a ``sweeping
commitment to `prevent or eliminate damage to the environment and
biosphere' by focusing Government and public attention on the
environmental effects of proposed agency action.'' Marsh v. Oregon
Natural Resources Council, 490 U.S. 360, 371 (1989) (citing 42 U.S.C.
4321). The Court explained that NEPA requires agencies to take a ``hard
look'' at the environmental effects of their planned actions, including
indirect effects relevant to the dam project at issue in the case, such
as potential changes in downstream water temperature that could reduce
species survival. Id. at 374, 385.
Similarly, courts have long applied the concept of cumulative
impacts or effects as identified in the 1978 regulations to NEPA
analysis. See, e.g., NRDC v. Hodel, 865 F.2d 288, 297-98 (D.C. Cir.
1988) (stating, ``NEPA, as interpreted by the courts, and CEQ
regulations both require agencies to consider the cumulative impacts of
proposed actions,'' and holding that NEPA required the Secretary of the
Interior to consider the cumulative impacts of offshore development in
different areas of the Outer Continental Shelf). Even before CEQ issued
regulations defining ``effects'' to include cumulative effects, the
U.S. Supreme Court had interpreted NEPA to require consideration of
``cumulative or synergistic environmental impact.'' Kleppe v. Sierra
Club, 427 U.S. 390, 410 (1976). Although this case focuses on
programmatic review, the Court recognized the importance of considering
the collective environmental effects of agency actions to inform the
decision-making process. Id. (``Only through comprehensive
consideration of pending proposals can the agency evaluate different
courses of action.'').\37\
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\37\ See also CEQ's 1970 interim guidelines, interpreting the
requirement in section 102(2)(C)(iv) to mean that ``[t]he
relationship between local short-term uses of man's environment and
the maintenance and enhancement of long-term productivity . . .
requires the agency to assess the action for cumulative and long-
term effects from the perspective that each generation is trustee of
the environment for succeeding generations.'' 35 FR 7390, 7392 (May
12, 1970) (emphasis added).
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Comments on Department of Transportation v. Public Citizen
Some commenters agreed with CEQ's statements in the NPRM about
Department of Transportation v. Public Citizen, 541 U.S. 752 (2004),
contending that the 2020 rule's interpretation of the decision to
justify limits on effects analysis was incorrect and that the changes
in the Phase 1 proposed rule align with the Supreme Court's decision.
Commenters also expressed the view that the 2020 rule's reliance on or
interpretation of Public Citizen to impose a categorical limitation on
the scope of effects that agencies may permissibly analyze was
fundamentally misguided because the decision identified the effects
that an agency must consider, but did not limit the effects that an
agency may consider. Commenters also expressed the view that the
holding in Public Citizen is limited to the narrow circumstance in
which an agency has no discretion to alter the activity that causes the
effects in question. Additional commenters contended that if the Court
intended to exclude cumulative effects or impacts from environmental
review, the Court would have clearly said so. Based on these
interpretations of Public Citizen, these commenters generally supported
the NPRM's proposed definition of effects and requested that CEQ
clarify that the case applies only in limited circumstances.
Commenters who disagreed with the NPRM's interpretation of Public
Citizen contended that the Court stated clearly that NEPA requires a
reasonably close causal relationship between the environmental effect
and alleged cause and that a ``but for'' causal relationship is
insufficient to make an agency responsible for a particular effect
under NEPA. Commenters also argued that the 2020 rule aligned with
Public Citizen, because the Court held that consideration of actions
beyond an agency's statutory authority serves no purpose and fails to
satisfy NEPA's rule of reason. Commenters also asserted that the NPRM
did not adequately explain CEQ's change in interpretation of Public
Citizen in light of the 2020 rule's heavy reliance upon it.
CEQ has reexamined its interpretation of and reliance on the Public
Citizen decision in the 2020 rule. The 2020 rule relied upon the
decision to provide a broadly applicable statement on effects analysis
that is not compelled by the opinion itself and that does not comport
with CEQ's view of the proper scope of effects analysis in line with
NEPA's informational purpose and longstanding agency practice and
discretion. At issue in Public Citizen was whether the Federal Motor
Carrier Safety Administration (FMCSA) had appropriately excluded from
its NEPA analysis effects from Mexican trucks entering the United
States that would occur if the President followed through on his
intention to lift a moratorium on those trucks following FMCSA
promulgating vehicle safety regulations. The Supreme Court explained
that NEPA and the 1978 regulations are governed by a ``rule of
reason.'' Id. at 767. FMCSA had no ability to deny certification if
trucks met minimum requirements, and as a result, the Supreme Court
held that FMCSA had
[[Page 23465]]
lawfully defined the scope of its analysis, and that it was not
arbitrary and capricious for FMCSA to exclude from its NEPA analysis
effects that would occur if the President lifted the moratorium. Id. at
758-59.
In reaching that conclusion, the Court rejected application of ``a
particularly unyielding variation of `but for' causation, where an
agency's action is considered a cause of an environmental effect even
when the agency has no authority to prevent the effect.'' Id. at 767.
The Court stated that ``NEPA requires `a reasonably close causal
relationship' between the environmental effect and the alleged cause.''
Id. And then it explained that ``inherent in NEPA and its implementing
regulations is a `rule of reason,' which ensures that agencies
determine whether and to what extent to prepare an EIS based on the
usefulness of any new potential information to the decisionmaking
process.'' Id. It further explained that ``it would . . . not satisfy
NEPA's `rule of reason' to require an agency to prepare a full EIS due
to the environmental impact of an action it could not refuse to
perform. Put another way, the legally relevant cause of the entry of
the Mexican trucks is not FMCSA's action, but instead the actions of
the President in lifting the moratorium and those of Congress in
granting the President this authority while simultaneously limiting
FMCSA's discretion.'' Id. at 769.
The 2020 rule quoted the Court's statement on ``but for'' causation
as a categorical limitation on effects analysis without recognizing the
factual and legal context in which the statement was made, including
the statements that immediately surrounded it. In fact, the Court tied
its analysis of ``but for'' causation to a ``critical feature'' of the
case--that FMCSA had no statutory authority to stop the process by
which the trucks would operate. The Court explained that requiring
FMCSA to consider the environmental impacts of those operations as
effects of its action would violate the ``rule of reason,'' because the
consideration would not fulfill NEPA's purpose of informing the
decision maker. See id. at 768-69. Moreover, the Court affirmed FMCSA's
consideration of effects under the 1978 regulations. See id. at 770.
The Court did not hold that agencies may not consider a broader range
of effects in other circumstances. The Court's focus was on situations
``where an agency has no ability to prevent a certain effect due to its
limited statutory authority.'' Id. The 2020 rule could be read to apply
universally the proximate causation principle of tort law when
determining the scope of their NEPA analyses. This result is not
compelled by the Public Citizen decision and is in significant tension
with the Supreme Court's recognition that tort law and NEPA are
governed by different principles that serve different policy
objectives. See Metro. Edison Co. v. People Against Nuclear Energy, 460
U.S. 766, 775, FN 7 (1983). Instead, the Court held that FMCSA's
effects analysis in the specific factual and legal context of its
proposed action was reasonable and not arbitrary and capricious.
For these reasons, CEQ has reconsidered its reasoning and approach
taken in the 2020 rule and does not deem it useful to include the
``reasonably close causal relationship'' and ``but for'' language drawn
from Public Citizen, which dealt with a unique context in which an
agency had no authority to direct or alter an outcome, in the broadly
applicable NEPA regulations. Doing so inappropriately transforms a
Court holding affirming an agency's exercise of discretion in a
particular factual and legal context into a rule that could be read to
limit agency discretion. Instead, as further discussed below, agencies
are better guided by the longstanding principle of reasonable
foreseeability and the rule of reason in implementing NEPA's
directives.
Comments on Reasonably Foreseeable and Reasonably Close Causal
Relationship
Some commenters supported the removal of the 2020 language
contending that it limits effects analysis to effects that are
``reasonably foreseeable and have a reasonably close causal
relationship'' and because consequential reasonably foreseeable
environmental effects may occur remote in time or place from the
original action or be the product of a causal chain; for example, toxic
releases into air or water and greenhouse gas emissions that contribute
to climate change often occur remote in time or place from the original
action or are a product of a causal chain. As such, these commenters
stated that restoring the definition of effects to the 1978 regulations
would provide for more sound decision making. Commenters also stated
that the 2020 regulations' definition of ``effects'' requiring a close
causal relationship potentially narrowed and improperly limited the
scope of effects agencies would consider for proposed Federal actions.
Commenters specifically pointed to the ``but for'' language in the 2020
regulations as adding uncertainty and noted that, under the 1978
regulations, agencies shared an understanding of how to assess the
effects of a proposed action based on agency procedures and case law.
On the other hand, commenters opposing changes to the 2020 rule's
definition of ``effects'' argued that limiting the NEPA analysis to
those effects that are reasonably foreseeable and have a reasonably
close causal relationship to the proposed action is in line with common
sense and jurisprudence. Others emphasized that the 2020 definition
reasonably limits the scope of potential effects analysis and prevents
reviews from considering impacts that bear little or no relationship to
the proposed action, and therefore improves clarity and relevance of
NEPA documents. These commenters asserted that the 2020 rule's addition
of ``reasonably foreseeable and reasonably close causal relationship''
made a practical clarification that may reduce unnecessary analysis and
inefficiencies. Other commenters suggested that, if CEQ reintroduces
direct, indirect, and cumulative effects, the rule should clarify that
these effects are limited to those that are ``reasonably foreseeable.''
CEQ has reexamined the phrase ``reasonably close causal
relationship,'' which the 2020 rule added to the definition of
``effects'' in part on the basis that consideration of effects should
be limited by proximate cause principles from tort law.\38\ CEQ now
considers this phrase unnecessary and unhelpful because an agency's
ability to exclude effects too attenuated from its actions is
adequately addressed by the longstanding principle of reasonable
foreseeability that has guided NEPA analysis for decades. See Robertson
v. Methow Valley Citizens Council, 490 U.S. 332, 356 (1989). See also
Sierra Club v. FERC, 867 F.3d 1357, 1371 (D.C. Cir. 2017) (citing
EarthReports, Inc. v. FERC, 828 F.3d 949, 955 (D.C. Cir. 2016)).
Furthermore, CEQ no longer deems it necessary to import principles of
tort law into the NEPA regulations. Environmental review under NEPA
serves different purposes, such as guiding sound agency decision making
and future planning, that may reasonably entail a different scope of
effects analysis than the distinct tort law context. See Metro. Edison
Co., 460 U.S. at 775, FN 7 (1983) (``[W]e do not mean to suggest that
any cause-effect relation too attenuated to merit damages in a tort
suit would also be too attenuated to merit notice in an EIS; nor do we
mean to suggest the converse. In the context of both tort law and NEPA,
courts must look to the underlying policies or legislative intent in
order to draw a manageable line between those causal
[[Page 23466]]
changes that may make an actor responsible for an effect and those that
do not.''). Keeping the 2020 limitation also would suggest that agency
NEPA practitioners are required to apply a tort law legal standard
where they would still have to exercise professional judgement in
determining the scope of the effects analysis. CEQ is removing the
phrase ``reasonably close causal relationship'' from the definition of
``effects''; the definition will continue to include the phrase
``reasonably foreseeable'' consistent with longstanding interpretation
to allow agencies the flexibility to conduct appropriate effects
analysis in line with their discretion and NEPA's requirements.
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\38\ 85 FR 43304 (July 16, 2020).
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Comments on Potential Phase 2 Changes
CEQ also requested public comments on whether a Phase 2 rulemaking
should provide more specificity about the manner in which agencies
should analyze certain categories of effects. In response, some
commenters suggested that the Phase 2 rulemaking should address how
agencies address impacts from climate change and provide more
specificity about how agencies analyze environmental justice impacts.
Others emphasized that a Phase 2 rule should make the effects analysis
more objective and less speculative or provide additional clarification
to the definition of effects to produce more effective and focused
environmental reviews. Some commenters requested CEQ issue guidance on
analysis of effects, and some indicated that guidance might be more
efficient than updating the regulations further in a Phase 2 rule. CEQ
is considering these comments in the development of its Phase 2
rulemaking and its guidance on assessing greenhouse gas emissions and
climate change in environmental reviews.
iii. Rationale for Final Rule
The final rule makes the changes proposed in the NPRM with minor
modification. The final rule revises the introductory paragraph of
Sec. 1508.1(g) defining ``effects'' and ``impacts'' as ``changes to
the human environment from the proposed action or alternatives that are
reasonably foreseeable.'' The NPRM did not include the clause ``that
are reasonably foreseeable,'' but the final rule retains this clause in
response to comments. Doing so is consistent with the preamble to the
NPRM, which consistently states that direct, indirect, and cumulative
effects must be reasonably foreseeable. 86 FR 55765-67. While the NPRM
proposed to remove the clause from the definition because reasonable
foreseeability has always been central to defining the scope of
effects, after considering comments, CEQ agrees that this clause
enhances clarity in line with longstanding agency practice and NEPA
case law. Therefore, CEQ has determined to retain this phrase in the
final rule.
The final rule otherwise makes the changes as proposed in the NPRM.
CEQ is including direct, indirect, and cumulative effects as part of
the definition of ``effects'' or ``impacts'' to avoid disruption and
uncertainty caused by the 2020 rule and clarify that agencies should
continue to engage in the context-specific inquiry they have undertaken
for more than 40 years to identify reasonably foreseeable effects of a
proposed action and its alternatives, providing for sound decision
making. The restoration of ``cumulative impacts'' from the 1978
regulations to include cumulative effects as a component of the
definition of ``effects'' is a non-substantive change, as the 1978
regulations specifically provided that the terms ``impacts'' and
``effects'' are synonymous. Agencies should treat cumulative effects
under the final rule in the same fashion as they treated cumulative
impacts under the 1978 regulations.
As discussed in responding to comments above, restoring language on
direct, indirect, and cumulative effects better promotes NEPA's
statutory purposes and is more consistent with the extensive NEPA case
law. See 42 U.S.C. 4321-4332. Restoring these phrases to the
regulations also is consistent with this Administration's policies to
be guided by science and to address environmental protection, climate
change, and environmental justice. See, e.g., E.O. 13990 \39\ and E.O.
14008.\40\ Returning to the approach in the 1978 regulations provides
regulatory consistency and stability for Federal agencies, affected
stakeholders, and the public. CEQ is not returning to these definitions
because this is what has always been done, but because longstanding CEQ
and Federal agency experience and practice has demonstrated that these
interpretations promote the aims of the NEPA statute and are practical
to implement. These interpretations also reasonably reflect the plain
meaning of the statutory phrase ``environmental impact,'' and
explicitly capture the indirect and cumulative nature of many
environmental impacts.
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\39\ Supra note 19.
\40\ Supra note 22.
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CEQ is including direct, indirect, and cumulative effects as part
of the definition of ``effects'' or ``impacts'' because they have long
provided an understandable and effective framework for agencies to
consider the effects of their proposed actions in a manner that is
understandable to NEPA practitioners and the public. CEQ considers this
approach to result in a more practical and easily implementable
definition than the 2020 rule's definition of ``effects'' that
explicitly captures the indirect and cumulative nature of many
environmental effects, such as greenhouse gas emissions or habitat
fragmentation. Upon further evaluation of the rationale for the 2020
rule and the comments CEQ received on the NPRM, CEQ does not consider
the tort law standards of ``close causal relationship'' and ``but for''
causation to be ones that provide more clarity or predictability for
NEPA practitioners, agency decision makers, or the public. Furthermore,
as discussed in this section, CEQ does not consider the existing case
law interpreting the 1978 definition of ``effects'' to require that the
NEPA regulations limit agency discretion to identify reasonably
foreseeable effects under such a standard. CEQ also is removing the
potential limitations on consideration of temporally or geographically
removed environmental effects, effects that are a product of a lengthy
causal chain, and ``effects that the agency has no ability to prevent
due to its limited statutory authority or would occur regardless of the
proposed action.'' These qualifications may unduly limit agency
discretion and stating them as categorical rules that limit effects
analyses is in tension with NEPA's directives to produce a detailed
statement on the ``environmental impact of [a] proposed action,'' ``any
adverse environmental effects which cannot be avoided,'' and ``the
relationship between local short-term uses of man's environment and the
maintenance and enhancement of long-term productivity.'' 42 U.S.C.
4332(2)(C). Furthermore, this language could lead Federal agencies to
omit from analysis or disclosure critical categories of reasonably
foreseeable effects that are temporally or geographically removed, such
as climate effects, frustrating NEPA's core purpose and Congressional
intent.
Although the 2020 rule preamble suggested that agencies could
continue to consider indirect and cumulative effects,\41\ an agency
could
[[Page 23467]]
misunderstand the language of the rule to prohibit considering indirect
or cumulative effects of their proposed actions given the language in
40 CFR 1508.1(g)(3): ``An agency's analysis of effects shall be
consistent with this [definition of effects].'' Additionally, the
definition included inconsistent directions to agencies--the
introductory paragraph stated that effects ``may include effects that
are later in time or farther removed in distance'' but paragraph (g)(2)
stated that agencies generally should not consider effects if they are
remote in time or geographically remote. CEQ considers the
clarification that indirect and cumulative effects are included in the
definition of effects critical to ensuring that agency decision makers
have a complete view of reasonably foreseeable effects of their
proposed actions.\42\
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\41\ In responding to comments about potential effects on
threatened and endangered species, the preamble to the 2020 rule
explained that ``the final rule does not ignore cumulative effects
on listed species.'' 85 FR 43304 (July 16, 2020). Similarly, the
2020 Final Rule Response to Comments stated that the 2020 rule did
not automatically exclude from analysis effects falling within the
deleted definition of ``cumulative impact[s].'' CEQ, Update to the
Regulations Implementing the Procedural Provisions of the National
Environmental Policy Act Final Rule Response to Comments 467 (June
30, 2020), https://www.regulations.gov/document/CEQ-2019-0003-720629.
\42\ CEQ's longstanding position has been that cumulative
effects analysis is ``critical'' for the purposes of evaluating
project alternatives and developing appropriate mitigation
strategies. See CEQ GHG guidance at https://ceq.doe.gov/guidance/ceq_guidance_nepa-ghg.html.
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Defining ``effects'' to include direct, indirect, and cumulative
effects will not result in consideration of a limitless universe of
effects. The consideration of effects has always been bounded by a
reasonableness standard, and, as discussed above, the final rule will
retain language on reasonable foreseeability. While CEQ understands the
importance of predictability, it is also critical that analyses are
complete and scientifically accurate to ensure that decision makers and
the public are fully informed.
Including direct and indirect effects in the definition of
``effects'' ensures that NEPA analyses disclose both adverse and
beneficial effects over various timeframes, providing important
information to decision makers. For example, a utility-scale solar
facility could have short-term direct effects, such as adverse
construction and land impacts. The facility also could have long-term
indirect beneficial effects, such as reductions in air pollution,
including greenhouse gas emissions, from the renewable energy generated
by the solar facility that displaces more greenhouse gas-intensive
energy sources (such as coal or natural gas) as an electricity source
for years or decades into the future. As another example, air
pollution, including greenhouse gas emissions, released by fossil fuel
combustion is often a reasonably foreseeable indirect effect of
proposed fossil fuel extraction that agencies should evaluate in the
NEPA process, even if the pollution is remote in time or geographically
remote from a proposed action. An agency decision maker can make a more
informed decision about how a proposed action aligns with the agency's
statutory authorities and policies when she has information on the
comparative potential air pollution effects and greenhouse gas
emissions of the proposed action and alternatives, including the no
action alternative. The final rule's definition of ``effects'' provides
clarity and ensures that agencies disclose such indirect effects.
CEQ also has reevaluated its position on cumulative effects and
disagrees with the assertions in the 2020 rule that cumulative effects
analyses divert agency resources from analyzing the most significant
effects to effects that are irrelevant or inconsequential. Rather,
consideration of reasonably foreseeable cumulative effects allows
agencies and the public to understand the full scope of potential
impacts from a proposed action, including how the incremental impacts
of a proposed action contribute to cumulative environmental problems
such as air pollution, water pollution, climate change, environmental
injustice, and biodiversity loss. Science confirms that cumulative
environmental harms, including repeated or frequent exposure to toxic
air or water pollution, threaten human and environmental health and
pose undue burdens on historically marginalized communities.\43\ CEQ
does not consider such harms to be inconsequential or irrelevant, but
rather critical to sound agency decision making. By restoring the
phrase ``cumulative effects,'' this final rule will make clear that
agencies must fully analyze reasonably foreseeable cumulative effects
before Federal decisions are made.
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\43\ See, e.g., Mercedes A. Bravo et al., Racial Isolation and
Exposure to Airborne Particulate Matter and Ozone in Understudied
U.S. Populations: Environmental Justice Applications of Downscaled
Numerical Model Output, 92-93 Env't Int'l 247 (2016) (finding that
long-term exposure to particulate matter is associated with racial
segregation, with more highly segregated areas suffering higher
levels of exposure).
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CEQ continues to have the goal that environmental reviews should be
efficient and effective and will continue to evaluate the NEPA process
for opportunities to improve timeliness consistent with NEPA's
purposes. However, CEQ disagrees with the assertion in the 2020 rule
that requiring analysis of reasonably foreseeable cumulative effects
causes unacceptably long NEPA processes. CEQ considers the disclosure
of all reasonably foreseeable direct, indirect, and cumulative effects
to be critical to the informed decision-making process required by
NEPA, see, e.g., 42 U.S.C. 4332, such that the benefits of any such
disclosure outweigh any potential for shorter NEPA documents or
timeframes. Moreover, nothing in this final rule suggests that a well-
drafted NEPA document cannot be both concise and supported by thorough
analysis. CEQ also disagrees with the 2020 rule's assertion that
deleting reference to direct, indirect, and cumulative effects is
necessary because agencies have devoted substantial resources
categorizing effects as direct, indirect, or cumulative. 85 FR 43343.
Nothing in the CEQ regulations requires agencies to categorize effects
separately in this manner; instead, well-organized NEPA documents
address the direct, indirect, and cumulative effects of particular
resources in a cohesive and comprehensive manner. Agencies may discuss
holistically all reasonably foreseeable direct, indirect, and
cumulative effects, rather than delineating the categories in separate
sections of a NEPA document, to facilitate the decision maker and the
public's comprehensive understanding of the effects of the proposed
actions and alternatives.
IV. Rulemaking Analyses and Notices
A. Executive Order 12866, Regulatory Planning and Review
E.O. 12866 provides that the Office of Information and Regulatory
Affairs (OIRA) will review all significant rules.\44\ E.O. 13563
reaffirms the principles of E.O. 12866, calling for improvements in the
Federal Government's regulatory system to promote predictability,
reduce uncertainty, and use the best, most innovative, and least
burdensome tools for achieving regulatory objectives.\45\ Because this
final rule applies to all Federal agencies, it is a significant
regulatory action that CEQ submitted to OMB for review. The changes
will remove uncertainty created by the 2020 rule to benefit agencies
and the public. These changes do not obligate agencies to undertake
longer, more complicated analyses. Furthermore, an effective NEPA
process can save time and reduce overall project costs by identifying
and avoiding problems, including potential
[[Page 23468]]
significant effects, that may occur in later stages of project
development.\46\ Additionally, if agencies choose to consider
additional alternatives and conduct clearer or more robust analyses,
such analyses should improve societal outcomes by improving agency
decision making. Because individual cases will vary, the magnitude of
potential costs and benefits resulting from these proposed changes are
difficult to anticipate. Therefore, CEQ has not quantified them. CEQ
received a number of comments requesting that it revisit the regulatory
impact analysis from the 2020 rule. Because this final rule mainly
clarifies provisions,\47\ CEQ considers Phase 2 to be the more
appropriate rulemaking for any reconsideration of the regulatory impact
analysis to the extent Phase 2 proposes substantive changes.
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\44\ 58 FR 51735 (Oct. 4, 1993).
\45\ 76 FR 3821 (Jan. 21, 2011).
\46\ See Linda Luther, Cong. Rsch. Serv., R42479, The Role of
the Environmental Review Process in Federally Funded Highway
Projects: Background and Issues for Congress (2012), https://crsreports.congress.gov/product/pdf/R/R42479.
\47\ While the changes to Sec. 1507.3 are more than clarifying
edits, agencies have not revised their NEPA procedures to address
changes to the CEQ regulations made by the 2020 rule. Therefore,
this change does not have costs and benefits for CEQ to consider.
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B. Regulatory Flexibility Act and Executive Order 13272, Proper
Consideration of Small Entities in Agency Rulemaking
The Regulatory Flexibility Act (RFA), as amended, 5 U.S.C. 601 et
seq., and E.O. 13272 \48\ require agencies to assess the impacts of
proposed and final rules on small entities. Under the RFA, small
entities include small businesses, small organizations, and small
governmental jurisdictions. An agency must prepare a Regulatory
Flexibility Analysis at the proposed and final rule stages unless it
determines and certifies that the rule, if promulgated, would not have
a significant economic impact on a substantial number of small
entities. 5 U.S.C. 605(b). An agency need not perform an analysis of
small entity impacts when a rule does not directly regulate small
entities. See Mid-Tex Electric Coop., Inc. v. FERC, 773 F.2d 327 (D.C.
Cir. 1985). This final rule does not directly regulate small entities.
Rather, it applies to Federal agencies and sets forth the process for
their compliance with NEPA. Accordingly, CEQ hereby certifies that the
rule will not have a significant economic impact on a substantial
number of small entities.
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\48\ 67 FR 53461 (Aug. 16, 2002).
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C. National Environmental Policy Act
Under the CEQ regulations, major Federal actions may include
regulations. When CEQ issued regulations in 1978, it prepared a
``special environmental assessment'' for illustrative purposes pursuant
to E.O. 11991.\49\ The NPRM for the 1978 rule stated ``the impacts of
procedural regulations of this kind are not susceptible to detailed
analysis beyond that set out in the assessment.'' \50\ Similarly, in
1986, while CEQ stated in the final rule amending its regulations that
there were ``substantial legal questions as to whether entities within
the Executive Office of the President are required to prepare
environmental assessments,'' it also prepared a special environmental
assessment.\51\ The special environmental assessment issued in 1986
made a finding of no significant impact, and there was no finding made
for the assessment of the 1978 final rule.
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\49\ 43 FR 25230 (June 9, 1978).
\50\ Id. at 25232.
\51\ 51 FR 15618, 15619 (Apr. 25, 1986).
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CEQ continues to take the position that a NEPA analysis is not
required for establishing or updating NEPA procedures. See Heartwood v.
U.S. Forest Serv., 230 F.3d 947, 954-55 (7th Cir. 2000) (finding that
neither NEPA or the CEQ regulations required the Forest Service to
conduct an environmental assessment or an EIS prior to the promulgation
of its procedures creating a categorical exclusion). Nevertheless,
based on past practice, CEQ developed a special environmental
assessment, posted it in the docket, and invited comments. CEQ did not
receive any comments, but made minor changes to the special
environmental assessment, which CEQ has posted in the docket.
D. Executive Order 13132, Federalism
E.O. 13132 requires agencies to develop an accountable process to
ensure meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism
implications.\52\ Policies that have federalism implications include
regulations that have substantial direct effects on the states, on the
relationship between the National Government and the states, or on the
distribution of power and responsibilities among the various levels of
government. This rule does not have federalism implications because it
applies to Federal agencies, not states. However, CEQ notes that States
may elect to assume NEPA responsibilities under Federal statutes. CEQ
received comments in response to the NPRM from a number of States,
including those that have assumed NEPA responsibilities, and considered
these comments in development of the final rule.
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\52\ 64 FR 43255 (Aug. 10, 1999).
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E. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
CEQ acknowledges that it shares a government-to-government
relationship with Tribes that differs from its relationship to the
general public. E.O. 13175 requires agencies to have a process to
ensure meaningful and timely input by Tribal officials in the
development of policies that have Tribal implications.\53\ Such
policies include regulations that have substantial direct effects on
one or more Indian Tribes, on the relationship between the Federal
Government and Indian Tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes. CEQ
has assessed the impact of this final rule on Indian Tribal governments
and has determined that the final rule would not significantly or
uniquely affect these communities. However, CEQ recognizes the
important role Tribes play in the NEPA process and held a government-
to-government consultation on the NEPA regulations generally on
September 30, 2021. CEQ also held a consultation specifically on the
Phase 1 proposed rule on November 12, 2021. CEQ also invited Tribes and
Alaska Native Corporations to provide early input on the Phase 2
rulemaking as well as CEQ's guidance on considering greenhouse gas
emissions and climate change in NEPA reviews. In addition to the
feedback provided during these consultation sessions, CEQ considered
written comments that Tribes submitted during and after the
consultations, as well as Tribal comments submitted during the public
comment period. CEQ plans to continue to engage in additional
government-to-government consultation with federally recognized Tribes
and Alaska Native Corporations on its NEPA regulations. During
consultation and in written comments, CEQ has received input on areas
of importance to Tribes, many of which are around provisions that were
not addressed in this Phase 1 rule. CEQ will consider this input for
the Phase 2 rulemaking.
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\53\ 65 FR 67249 (Nov. 9, 2000).
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[[Page 23469]]
F. Executive Order 12898, Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
E.O. 12898 requires agencies to make achieving environmental
justice part of their missions by identifying and addressing, as
appropriate, disproportionately high and adverse human health or
environmental effects of their programs, policies, and activities on
minority populations and low-income populations.\54\ CEQ has analyzed
this final rule and determined that it will not cause
disproportionately high and adverse human health or environmental
effects on minority populations and low-income populations. This rule
sets forth implementing regulations for NEPA for Federal agencies; it
is in the agency implementation of NEPA when conducting reviews of
proposed agency actions where consideration of environmental justice
effects occurs.
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\54\ 59 FR 7629 (Feb. 16, 1994).
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G. Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Agencies must prepare a Statement of Energy Effects for significant
energy actions under E.O. 13211.\55\ CEQ has determined that this
rulemaking is not a ``significant energy action'' because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy.
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\55\ 66 FR 28355 (May 22, 2001).
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H. Executive Order 12988, Civil Justice Reform
Under section 3(a) of E.O. 12988,\56\ agencies must review their
proposed regulations to eliminate drafting errors and ambiguities,
draft them to minimize litigation, and provide a clear legal standard
for affected conduct. Section 3(b) provides a list of specific issues
for review to conduct the review required by section 3(a). CEQ has
conducted this review and determined that this final rule complies with
the requirements of E.O. 12988.
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\56\ 61 FR 4729 (Feb. 7, 1996).
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I. Unfunded Mandate Reform Act
Section 201 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1531, requires Federal agencies to assess the effects of their
regulatory actions on state, Tribal, and local governments, and the
private sector to the extent that such regulations incorporate
requirements specifically set forth in law. Before promulgating a rule
that may result in the expenditure by a state, Tribal, or local
government, in the aggregate, or by the private sector of $100 million,
adjusted annually for inflation, in any 1 year, an agency must prepare
a written statement that assesses the effects on state, Tribal, and
local governments and the private sector. 2 U.S.C. 1532. This final
rule applies to Federal agencies and will not result in expenditures of
$100 million or more for state, Tribal, and local governments, in the
aggregate, or the private sector in any 1 year. This action also will
not impose any enforceable duty, contain any unfunded mandate, or
otherwise have any effect on small governments subject to the
requirements of 2 U.S.C. 1531-1538.
J. Paperwork Reduction Act
This final rule will not impose any new information collection
burden that requires additional review or approval by OMB under the
Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.
List of Subjects in 40 CFR Parts 1502, 1507, and 1508
Administrative practice and procedure; Environmental impact
statements; Environmental protection; Natural resources.
Brenda Mallory,
Chair.
For the reasons discussed in the preamble, the Council on
Environmental Quality amends parts 1502, 1507, and 1508 in title 40 of
the Code of Federal Regulations as follows:
PART 1502--ENVIRONMENTAL IMPACT STATEMENT
0
1. Revise the authority citation for part 1502 to read as follows:
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902,
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.
0
2. Revise Sec. 1502.13 to read as follows:
Sec. 1502.13 Purpose and need.
The statement shall briefly specify the underlying purpose and need
to which the agency is responding in proposing the alternatives
including the proposed action.
PART 1507--AGENCY COMPLIANCE
0
3. Revise the authority citation for part 1507 to read as follows:
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902,
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.
0
4. Amend Sec. 1507.3 by revising paragraph (a) and the introductory
text of paragraph (b) to read as follows:
Sec. 1507.3 Agency NEPA procedures.
(a) The Council has determined that the categorical exclusions
contained in agency NEPA procedures as of September 14, 2020, are
consistent with this subchapter.
(b) No more than 36 months after September 14, 2020, or 9 months
after the establishment of an agency, whichever comes later, each
agency shall develop or revise, as necessary, proposed procedures to
implement the regulations in this subchapter. When the agency is a
department, it may be efficient for major subunits (with the consent of
the department) to adopt their own procedures.
* * * * *
PART 1508--DEFINITIONS
0
5. Revise the authority citation for part 1508 to read as follows:
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902,
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.
0
6. Amend Sec. 1508.1 by revising paragraphs (g) and (z) to read as
follows:
Sec. 1508.1 Definitions.
* * * * *
(g) Effects or impacts means changes to the human environment from
the proposed action or alternatives that are reasonably foreseeable and
include the following:
(1) Direct effects, which are caused by the action and occur at the
same time and place.
(2) Indirect effects, which are caused by the action and are later
in time or farther removed in distance, but are still reasonably
foreseeable. Indirect effects may include growth inducing effects and
other effects related to induced changes in the pattern of land use,
population density or growth rate, and related effects on air and water
and other natural systems, including ecosystems.
(3) Cumulative effects, which are effects on the environment that
result from the incremental effects of the action when added to the
effects of other past, present, and reasonably foreseeable actions
regardless of what agency (Federal or non-Federal) or person undertakes
such other actions. Cumulative effects can result from individually
minor but collectively significant actions taking place over a period
of time.
[[Page 23470]]
(4) Effects include ecological (such as the effects on natural
resources and on the components, structures, and functioning of
affected ecosystems), aesthetic, historic, cultural, economic, social,
or health, whether direct, indirect, or cumulative. Effects may also
include those resulting from actions which may have both beneficial and
detrimental effects, even if on balance the agency believes that the
effects will be beneficial.
* * * * *
(z) Reasonable alternatives means a reasonable range of
alternatives that are technically and economically feasible, and meet
the purpose and need for the proposed action.
* * * * *
[FR Doc. 2022-08288 Filed 4-19-22; 8:45 am]
BILLING CODE 3325-F2-P