[Federal Register Volume 88, Number 145 (Monday, July 31, 2023)]
[Proposed Rules]
[Pages 49924-49988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15405]
[[Page 49923]]
Vol. 88
Monday,
No. 145
July 31, 2023
Part III
Council on Environmental Quality
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40 CFR Parts 1500, 1501, 1502, et al.
National Environmental Policy Act Implementing Regulations Revisions
Phase 2; Proposed Rule
Federal Register / Vol. 88 , No. 145 / Monday, July 31, 2023 /
Proposed Rules
[[Page 49924]]
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COUNCIL ON ENVIRONMENTAL QUALITY
40 CFR Parts 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, and
1508
[CEQ-2023-0003]
RIN 0331-AA07
National Environmental Policy Act Implementing Regulations
Revisions Phase 2
AGENCY: Council on Environmental Quality.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Council on Environmental Quality (CEQ) is proposing this
``Bipartisan Permitting Reform Implementation Rule'' to revise its
regulations for implementing the procedural provisions of the National
Environmental Policy Act (NEPA), including to implement the Fiscal
Responsibility Act's amendments to NEPA. CEQ proposes the revisions to
provide for an effective environmental review process that promotes
better decision making; ensure full and fair public involvement;
provide for an efficient process and regulatory certainty; and provide
for sound decision making grounded in science, including consideration
of relevant environmental, climate change, and environmental justice
effects. CEQ proposes these changes to better align the provisions with
CEQ's extensive experience implementing NEPA; CEQ's perspective on how
NEPA can best inform agency decision making; longstanding Federal
agency experience and practice; NEPA's statutory text and purpose,
including making decisions informed by science; and case law
interpreting NEPA's requirements. CEQ invites comments on the proposed
revisions.
DATES:
Comments: CEQ must receive comments by September 29, 2023.
Public meetings: CEQ will conduct four virtual public meetings for
the proposed rule on Saturday, August 26, 2023, from 1 p.m. to 4 p.m.
EDT; Wednesday, August 30, 2023, from 5 p.m. to 8 p.m. EDT; Monday,
September 11, 2023, from 1 p.m. to 4 p.m. EDT; and Thursday, September
21, 2023, from 2 p.m. to 5 p.m. EDT. For additional information and to
register for the meetings, please visit CEQ's website at www.nepa.gov.
ADDRESSES: You may submit comments, identified by docket number CEQ-
2023-0003, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 202-456-6546.
Mail: Council on Environmental Quality, 730 Jackson Place
NW, Washington, DC 20503.
Instructions: All submissions received must include the agency
name, ``Council on Environmental Quality,'' and docket number, CEQ-
2023-0003, for this rulemaking. All comments received will be posted
without change to https://www.regulations.gov, including any personal
information provided. Please do not submit electronically any
information you consider private, Confidential Business Information
(CBI), or other information, the disclosure of which is restricted by
statute.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Amy B. Coyle, Deputy General Counsel,
202-395-5750, [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
A. NEPA Statute
Congress enacted NEPA in 1969 by a unanimous vote in the Senate and
a nearly unanimous vote in the House to declare an ambitious and
visionary national policy to promote environmental protection for
present and future generations.\1\ President Nixon signed NEPA into law
on January 1, 1970. NEPA seeks to ``encourage productive and enjoyable
harmony'' between humans and the environment, recognizing the
``profound impact'' of human activity and the ``critical importance of
restoring and maintaining environmental quality'' to the overall
welfare of humankind. 42 U.S.C. 4321, 4331.
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\1\ See Linda Luther, Cong. Rsch. Serv., RL33152, The National
Environmental Policy Act: Background and Implementation, 4 (2008),
https://crsreports.congress.gov/product/details?prodcode=RL33152.
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Furthermore, NEPA seeks to promote efforts that will prevent or
eliminate damage to the environment and biosphere and stimulate the
health and welfare of people, making it the continuing policy of the
Federal Government to use all practicable means and measures to create
and maintain conditions under which humans and nature can exist in
productive harmony and fulfill the social, economic, and other
requirements of present and future generations of Americans. 42 U.S.C.
4331(a). It also recognizes that each person should have the
opportunity to enjoy a healthy environment and has a responsibility to
contribute to the preservation and enhancement of the environment. 42
U.S.C. 4331(c).
NEPA requires Federal agencies to interpret and administer Federal
policies, regulations, and laws in accordance with NEPA's policies and
to consider environmental values in their decision making. 42 U.S.C.
4332. To that end, section 102(2)(C) of NEPA requires Federal agencies
to prepare ``detailed statements,'' referred to as environmental impact
statements (EISs), for ``every recommendation or report on proposals
for legislation and other major Federal actions significantly affecting
the quality of the human environment'' and, in doing so, provide
opportunities for public participation to help inform agency decision
making. 42 U.S.C. 4332(2)(C). The EIS process embodies the
understanding that informed decisions are better decisions and lead to
better environmental outcomes when decision makers understand,
consider, and publicly disclose environmental effects of their
decisions. The EIS process also enriches understanding of the
ecological systems and natural resources important to the Nation and
helps guide sound decision making, such as decisions on infrastructure
and energy development, in line with high-quality information,
including the best available science, information and data, as well as
the environmental design arts.
In many respects, NEPA was a statute ahead of its time and remains
relevant and vital today. It codifies the common-sense idea of ``look
before you leap'' to guide agency decision making, particularly in
complex and consequential areas, because conducting sound environmental
analysis before agencies take actions reduces conflict and waste in the
long run by avoiding unnecessary harm and uninformed decisions. See,
e.g., 42 U.S.C. 4332. It establishes a framework for agencies to ground
decisions in sound science and recognizes that the public may have
important ideas and information on how Federal actions can occur in a
manner that reduces potential harms and enhances ecological, social,
and economic well-being. See, e.g., id.
On June 3, 2023, President Biden signed the Fiscal Responsibility
Act of 2023 (FRA) into law, which included amendments to NEPA.
Specifically, the FRA amended section 102(2)(C) and added sections
102(2)(D) through (F) and sections 106 through 111. The amendments in
section 102(2)(C) largely codify longstanding principles that EISs
[[Page 49925]]
should include discussion of reasonably foreseeable environmental
effects of the proposed action, reasonably foreseeable adverse
environmental effects that cannot be avoided, and a reasonable range of
alternatives to the proposed action. Section 102(2)(D) requires Federal
agencies to ensure the professional integrity of the discussion and
analysis in an environmental document; section 102(2)(E) requires use
of reliable data and resources when carrying out NEPA; and section
102(2)(F) requires agencies to study, develop, and describe technically
and economically feasible alternatives.
Section 106 adds provisions for determining the appropriate level
of NEPA review. It clarifies that an agency is only required to prepare
an environmental document when proposing to take an action that would
constitute a final agency action and codifies existing regulations and
caselaw that an agency is not required to prepare an environmental
document when doing so would clearly and fundamentally conflict with
the requirements of another law or a proposed action is non-
discretionary. Section 106 also largely codifies the current CEQ
regulations and longstanding practice with respect to the use of
categorical exclusions (CEs), environmental assessments (EAs), and
EISs, as modified by the new provision expressly permitting agencies to
adopt CEs from other agencies established in section 109 of NEPA.
Section 107 addresses timely and unified Federal reviews, codifying
existing practice with a few minor adjustments, including provisions
clarifying lead, joint-lead, and cooperating agency designation,
generally requiring development of a single environmental document,
directing agencies to develop procedures for project sponsors to
prepare EAs and EISs, and prescribing page limits and deadlines similar
to current requirements. Section 108 codifies time lengths and
circumstances for when agencies can rely on programmatic environmental
documents without additional review, and section 109 allows a Federal
agency to use another agency's CE. Section 111 adds a variety of
definitions. This proposed rule would update the regulations to address
how agencies should implement NEPA consistent with the amendments made
by the FRA.
B. The Council on Environmental Quality
NEPA established the Council on Environmental Quality (CEQ) in the
Executive Office of the President. 42 U.S.C. 4342. For more than 50
years, CEQ has advised presidents on national environmental policy,
assisted Federal agencies in their implementation of NEPA, and overseen
implementation of a variety of other environmental initiatives from the
expeditious and thorough environmental review of infrastructure
projects \2\ to the sustainability of Federal operations.\3\
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\2\ See, e.g., E.O. 14008, Tackling the Climate Crisis at Home
and Abroad, 86 FR 7619 (Feb. 1, 2021); E.O. 13604, Improving
Performance of Federal Permitting and Review of Infrastructure
Projects, 77 FR 18885 (Mar. 28, 2012); E.O. 13274, Environmental
Stewardship and Transportation Infrastructure Project Reviews, 67 FR
59449 (Sept. 23, 2002); see also Modernizing Federal Infrastructure
Review and Permitting Regulations, Policies, and Procedures, 78 FR
30733 (May 22, 2013).
\3\ See, e.g., E.O. 14057, Catalyzing Clean Energy Industries
and Jobs Through Federal Sustainability, 86 FR 70935 (Dec. 13,
2021); E.O. 13834, Efficient Federal Operations, 83 FR 23771 (May
22, 2018); E.O. 13693, Planning for Federal Sustainability in the
Next Decade, 80 FR 15869 (Mar. 25, 2015); E.O. 13514, Federal
Leadership in Environmental, Energy, and Economic Performance, 74 FR
52117 (Oct. 8, 2009); E.O. 13423, Strengthening Federal
Environmental, Energy, and Transportation Management, 72 FR 3919
(Jan. 26, 2007); E.O. 13101, Greening the Government Through Waste
Prevention, Recycling, and Federal Acquisition, 63 FR 49643 (Sept.
16, 1998). For Presidential directives pertaining to other
environmental initiatives, see E.O. 13432, Cooperation Among
Agencies in Protecting the Environment With Respect to Greenhouse
Gas Emissions From Motor Vehicles, Nonroad Vehicles, and Nonroad
Engines, 72 FR 27717 (May 16, 2007) (requiring CEQ and OMB to
implement the E.O. and facilitate Federal agency cooperation to
reduce greenhouse gas emissions); E.O. 13141, Environmental Review
of Trade Agreements, 64 FR 63169 (Nov. 18, 1999) (requiring CEQ and
the U.S. Trade Representative to implement the E.O., which has the
purpose of promoting Trade agreements that contribute to sustainable
development); E.O. 13061, Federal Support of Community Efforts Along
American Heritage Rivers, 62 FR 48445 (Sept. 15, 1997) (charging CEQ
with implementing the American Heritage Rivers initiative); E.O.
13547, Stewardship of the Ocean, Our Coasts, and the Great Lakes, 75
FR 43023 (Jul. 22, 2010) (directing CEQ to lead the National Ocean
Council); E.O. 13112, Invasive Species, 64 FR 6183 (Feb. 8, 1999)
(requiring the Invasive Species Council to consult with CEQ to
develop guidance to Federal agencies under NEPA on prevention and
control of invasive species).
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NEPA charges CEQ with overseeing and guiding NEPA implementation
across the Federal Government. In addition to issuing the regulations
for implementing NEPA, 40 CFR parts 1500 through 1508 (referred to
throughout as ``the CEQ regulations''), CEQ has issued guidance on
numerous topics related to NEPA review. In 1981, CEQ issued the ``Forty
Most Asked Questions Concerning CEQ's National Environmental Policy Act
Regulations,'' \4\ which CEQ has routinely identified as an invaluable
tool for Federal, Tribal, State, and local governments and officials,
and members of the public, who have questions about NEPA
implementation.
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\4\ CEQ, Forty Most Asked Questions Concerning CEQ's National
Environmental Policy Act Regulations, 46 FR 18026 (Mar. 23, 1981)
(``Forty Questions''), https://www.energy.gov/nepa/downloads/forty-most-asked-questions-concerning-ceqs-national-environmental-policy-act.
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CEQ also has issued guidance on a variety of other topics, from
scoping to cooperating agencies to consideration of effects.\5\ For
example, in 1997, CEQ issued guidance documents on the consideration of
environmental justice in the NEPA context \6\ under Executive Order
(E.O.) 12898, Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations,7 and on
analysis of cumulative effects in NEPA reviews,\8\ two documents that
agencies continue to use today. From 2010 to the present, CEQ developed
additional guidance on CEs, mitigation, programmatic reviews, and
consideration of greenhouse gas (GHG) emissions in NEPA.\9\ To ensure
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coordinated environmental review, CEQ has issued guidance to integrate
NEPA reviews with other environmental review requirements such as the
National Historic Preservation Act, E.O. 11988, Floodplain Management,
and E.O. 11990, Protection of Wetlands.\10\ Finally, CEQ has provided
guidance to ensure efficient and effective environmental reviews,
particularly for infrastructure projects.\11\
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\5\ See, e.g., CEQ, Memorandum for General Counsels, NEPA
Liaisons and Participants in Scoping (Apr. 30, 1981), https://www.energy.gov/nepa/downloads/scoping-guidance-memorandum-general-counsels-nepa-liaisons-and-participants-scoping; CEQ, Incorporating
Biodiversity Considerations Into Environmental Impact Analysis Under
the National Environmental Policy Act (Jan. 1993), https://ceq.doe.gov/publications/incorporating_biodiversity.html; CEQ,
Council on Environmental Quality Guidance on NEPA Analyses for
Transboundary Impacts (July 1, 1997), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/memorandum-transboundary-impacts-070197.pdf; CEQ, Designation of Non-Federal Agencies to be
Cooperating Agencies in Implementing the Procedural Requirements of
the National Environmental Policy Act (July 28, 1999), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ceqcoop.pdf; CEQ,
Identifying Non-Federal Cooperating Agencies in Implementing the
Procedural Requirements of the National Environmental Policy Act
(Sept. 25, 2000), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/memo-non-federal-cooperating-agencies-09252000.pdf; CEQ &
DOT Letters on Lead and Cooperating Agency Purpose and Need (May 12,
2003), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/CEQ-DOT_PurposeNeed_May-2013.pdf.
\6\ CEQ, Environmental Justice: Guidance under the National
Environmental Policy Act (Dec. 10, 1997) (``Environmental Justice
Guidance''), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ej/justice.pdf.
\7\ E.O. 12898, Federal Actions To Address Environmental Justice
in Minority Populations and Low-Income Populations, 59 FR 7629 (Feb.
16, 1994).
\8\ CEQ, Considering Cumulative Effects Under the National
Environmental Policy Act (Jan. 1997), https://ceq.doe.gov/publications/cumulative_effects.html; see also CEQ, Guidance on the
Consideration of Past Actions in Cumulative Effects Analysis (June
24, 2005), https://www.energy.gov/sites/default/files/nepapub/nepa_documents/RedDont/G-CEQ-PastActsCumulEffects.pdf.
\9\ CEQ, Establishing, Applying, and Revising Categorical
Exclusions Under the National Environmental Policy Act (Nov. 23,
2010) (``CE Guidance''), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf; CEQ, Appropriate Use of
Mitigation and Monitoring and Clarifying the Appropriate Use of
Mitigated Findings of No Significant Impact (Jan. 14, 2011), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf; CEQ, National
Environmental Policy Act Guidance on Consideration of Greenhouse Gas
Emissions and Climate Change, 88 FR 1196 (Jan. 9, 2023) (``2023 GHG
Guidance''), https://ceq.doe.gov/guidance/ceq_guidance_nepa-ghg.html.
\10\ CEQ, Implementation of Executive Order 11988 on Floodplain
Management and Executive Order 11990 on Protection of Wetlands (Mar.
21, 1978), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Memorandum-Implementation-of-EO-11988-and-EO-11990-032178.pdf; CEQ &
Advisory Council on Historic Preservation, NEPA and NHPA: A Handbook
for Integrating NEPA and Section 106 (Mar. 2013), https://ceq.doe.gov/docs/ceq-publications/NEPA_NHPA_Section_106_Handbook_Mar2013.pdf.
\11\ See, e.g., CEQ, Improving the Process for Preparing
Efficient and Timely Environmental Reviews Under the National
Environmental Policy Act (Mar. 6, 2012), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Improving_NEPA_Efficiencies_06Mar2012.pdf; CEQ, Effective Use of
Programmatic NEPA Reviews (Dec. 18, 2014) (``Programmatic
Guidance''), https://www.energy.gov/sites/default/files/2016/05/f31/effective_use_of_programmatic_nepa_reviews_18dec2014.pdf; OMB & CEQ,
M-15-20, Guidance Establishing Metrics for the Permitting and
Environmental Review of Infrastructure Projects (Sept. 22, 2015),
https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2015/m-15-20.pdf; OMB & CEQ, M-17-14, Guidance to
Federal Agencies Regarding the Environmental Review and
Authorization Process for Infrastructure Projects (Jan. 13, 2017),
https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2017/m-17-14.pdf.
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In addition to guidance, CEQ engages frequently with Federal
agencies on their implementation of NEPA. First, CEQ is responsible for
consulting with all agencies on the development of their NEPA
implementing procedures and determining that those procedures conform
with NEPA and the CEQ regulations. Through this process, CEQ engages
with agencies to understand their specific authorities and programs to
ensure agencies integrate consideration of environmental effects into
their decision-making processes. Additionally, CEQ provides feedback
and recommendations on how agencies may effectively implement NEPA
through their procedures.
Second, CEQ consults with agencies on the efficacy and
effectiveness of NEPA implementation. Where necessary or appropriate,
CEQ engages with agencies on NEPA reviews for specific projects or
project types to provide advice and identify any emerging or cross-
cutting issues that would benefit from CEQ issuing formal guidance or
assisting with coordination. This includes establishing alternative
arrangements for compliance with NEPA when agencies encounter emergency
situations where they need to act swiftly while also ensuring they meet
their NEPA obligations. CEQ also advises on NEPA compliance when
agencies are establishing new programs or implementing new statutory
authorities. Finally, CEQ helps advance the environmental review
process for projects or initiatives deemed important to an
administration such as nationally and regionally significant projects,
major infrastructure projects, and consideration of climate change-
related effects and effects on communities with environmental justice
concerns.\12\
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\12\ See, e.g., Memorandum from President Barack Obama to the
Heads of Executive Departments and Agencies, Speeding Infrastructure
Development through More Efficient and Effective Permitting and
Environmental Review (Aug. 31, 2011), https://obamawhitehouse.archives.gov/the-press-office/2011/08/31/presidential-memorandum-speeding-infrastructure-development-through-more; E.O. 13807, Establishing Discipline and Accountability in the
Environmental Review and Permitting Process for Infrastructure
Projects, 82 FR 40463 (Aug. 24, 2017).
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Third, CEQ meets regularly with external stakeholders to understand
their perspectives on the NEPA process. These meetings can help inform
CEQ's development of guidance or other initiatives and engagement with
Federal agencies. Finally, CEQ coordinates with other Federal agencies
and components of the White House on a wide array of environmental
issues and reviews that intersect with the NEPA process, such as
Endangered Species Act consultation or effects to Federal lands and
waters from federally authorized activities.
In addition to its NEPA responsibilities, CEQ is currently charged
with implementing several of the administration's key environmental
priorities. On January 27, 2021, the President signed E.O. 14008,
Tackling the Climate Crisis at Home and Abroad, to establish a
government-wide approach to the climate crisis by reducing GHG
emissions across the economy; increasing resilience to climate change-
related effects; conserving land, water, and biodiversity;
transitioning to a clean-energy economy; advancing environmental
justice; and investing in disadvantaged communities.\13\ CEQ is leading
the President's efforts to secure environmental justice consistent with
sections 219 through 223 of the E.O.\14\ For example, CEQ has developed
the Climate and Economic Justice Screening Tool \15\ and collaborates
with the Office of Management and Budget (OMB) and the National Climate
Advisor on implementing the Justice40 initiative, which sets a goal
that 40 percent of the overall benefits of certain Federal investments
flow to disadvantaged communities.\16\
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\13\ E.O. 14008, supra note 2.
\14\ E.O. 14008's direction to advance environmental justice
reinforces and reflects longstanding policy established in E.O.
12898 and advances the related though distinct policy defined more
broadly in E.O. 13985, Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government, that the
Federal Government ``pursue a comprehensive approach to advancing
equity for all, including people of color and others who have been
historically underserved, marginalized, and adversely affected by
persistent poverty and inequality.'' 86 FR 7009 (Jan. 25, 2021),
sec. 1.
\15\ CEQ, Explore the Map, Climate and Economic Justice
Screening Tool, https://screeningtool.geoplatform.gov/.
\16\ E.O. 14008, supra note 2, sec. 223.
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Section 205 of the E.O. also charged CEQ with developing the
Federal Sustainability Plan, a directive that was augmented by E.O.
14057, Catalyzing Clean Energy Industries and Jobs Through Federal
Sustainability,\17\ to achieve a carbon pollution-free electricity
sector and clean and zero-emission vehicle fleets. CEQ also is
collaborating with the Departments of the Interior, Agriculture, and
Commerce on the implementation of the America the Beautiful
Initiative.\18\ Additionally, E.O. 14008 requires the Chair of CEQ and
the Director of OMB to ensure that Federal permitting decisions
consider the effects of GHG emissions and climate change.\19\
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\17\ E.O. 14057, supra note 3.
\18\ E.O. 14008, supra note 2.
\19\ Id. at sec. 213(a); see also id., sec. 219 (directing
agencies to ``make achieving environmental justice part of their
missions by developing programs, policies, and activities to address
the disproportionately high and adverse human health, environmental,
climate-related and other cumulative impacts on disadvantaged
communities'').
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CEQ is also instrumental to the President's efforts to institute a
government-wide approach to advancing environmental justice. On April
21, 2023, the President signed E.O. 14096, Revitalizing Our Nation's
Commitment to Environmental Justice for All, to further embed
environmental justice into the work of Federal agencies and ensure that
all people can benefit from the vital safeguards enshrined in the
Nation's foundational environmental and civil rights laws.\20\
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The E.O. charges each agency with making achieving environmental
justice part of its mission consistent with statutory authority,\21\
and requires each agency to submit to the Chair of CEQ and make
publicly available an Environmental Strategic Plan setting forth the
agency's goals and plans for advancing environmental justice.\22\
Further, section 8 of the E.O. establishes a White House Office of
Environmental Justice within CEQ.
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\20\ E.O. 14096, Revitalizing Our Nation's Commitment to
Environmental Justice for All, 88 FR 25251 (Apr. 26, 2023). E.O.
14096 builds upon efforts to advance environmental justice and
equity consistent with the policy advanced in documents including
E.O. 13985, E.O. 14008, and E.O. 12898. See, e.g., note 14, supra.
\21\ E.O. 14096, supra note 20, sec. 3.
\22\ Id. at sec. 4.
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Finally, CEQ is staffed with experts with decades of NEPA
experience. CEQ's diverse array of responsibilities and expertise has
long influenced the implementation of NEPA, and CEQ relied extensively
on this experience in developing this rulemaking.
C. NEPA Implementation 1970-2019
Following shortly after the enactment of NEPA, President Nixon
issued E.O. 11514, Protection and Enhancement of Environmental Quality,
directing CEQ to issue guidelines for implementation of section
102(2)(C) of NEPA.\23\ In response, CEQ in April 1970 issued interim
guidelines, which addressed the provisions of section 102(2)(C) of the
Act regarding EIS requirements.\24\ CEQ revised the guidelines in 1971
and 1973 to address public involvement and introduce the concepts of
EAs and draft and final EISs.\25\
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\23\ E.O. 11514, Protection and Enhancement of Environmental
Quality, 35 FR 4247 (Mar. 7, 1970), sec. 3(h).
\24\ See Statements on Proposed Federal Actions Affecting the
Environment, 35 FR 7390 (May 12, 1970) (interim guidelines).
\25\ Statements on Proposed Federal Actions Affecting the
Environment, 36 FR 7724 (Apr. 23, 1971) (final guidelines);
Preparation of Environmental Impact Statements, 38 FR 10856 (May 2,
1973) (proposed revisions to the guidelines); Preparation of
Environmental Impact Statements: Guidelines, 38 FR 20550 (Aug. 1,
1973) (revised guidelines).
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In 1977, President Carter issued E.O. 11991, Relating to Protection
and Enhancement of Environmental Quality, amending E.O. 11514 and
directing CEQ to issue regulations for implementation of section
102(2)(C) of NEPA and requiring that Federal agencies comply with those
regulations.\26\ CEQ promulgated its NEPA regulations in 1978.\27\
Issued 8 years after NEPA's enactment, the NEPA regulations reflected
CEQ's interpretation of the statutory text and Congressional intent,
expertise developed through issuing and revising the CEQ guidelines and
advising Federal agencies on their implementation of NEPA, initial
interpretations of the courts, and Federal agency experience
implementing NEPA. The 1978 regulations reflected the fundamental
principles of informed and science-based decision making, transparency,
and public engagement Congress established in NEPA. The regulations
further required agency-level implementation, directing Federal
agencies to issue and update periodically agency-specific implementing
procedures to supplement CEQ's procedures and integrate the NEPA
process into the agencies' specific programs and processes. Consistent
with 42 U.S.C. 4332(2)(B), the regulations also required agencies to
consult with CEQ in the development or update of these agency-specific
procedures to ensure consistency with CEQ's regulations.
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\26\ E.O. 11991, Relating to Protection and Enhancement of
Environmental Quality, 42 FR 26967 (May 25, 1977).
\27\ Implementation of Procedural Provisions, 43 FR 55978 (Nov.
29, 1978).
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CEQ made typographical amendments to the 1978 implementing
regulations in 1979 \28\ and amended one provision in 1986 (CEQ refers
to these regulations, as amended, as the ``1978 regulations'' in this
preamble).\29\ Otherwise, CEQ left the regulations unchanged for over
40 years. As a result, CEQ and Federal agencies developed extensive
experience implementing the 1978 regulations, and a large body of
agency practice and case law developed based on them.
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\28\ Implementation of Procedural Provisions; Corrections, 44 FR
873 (Jan. 3, 1979).
\29\ National Environmental Policy Act Regulations; Incomplete
or Unavailable Information, 51 FR 15618 (Apr. 25, 1986) (amending 40
CFR 1502.22).
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D. 2020 Amendments to the CEQ Regulations
On August 15, 2017, President Trump issued E.O. 13807, Establishing
Discipline and Accountability in the Environmental Review and
Permitting Process for Infrastructure Projects,\30\ which directed CEQ
to establish and lead an interagency working group to identify and
propose changes to the NEPA regulations.\31\ In response, CEQ issued an
advance notice of proposed rulemaking (ANPRM) on June 20, 2018,\32\ and
a notice of proposed rulemaking (NPRM) on January 10, 2020, proposing
broad revisions to the 1978 regulations.\33\ A wide range of
stakeholders submitted more than 12,500 comments on the ANPRM \34\ and
1.1 million comments on the proposed rule,\35\ including from state and
local governments, Tribes, environmental advocacy organizations,
professional and industry associations, other advocacy or non-profit
organizations, businesses, and private citizens. Many commenters
provided detailed feedback on the legality, policy wisdom, and
potential consequences of the proposed amendments. In keeping with the
proposed rule, the final rule, promulgated on July 16, 2020 (``2020
regulations'' or ``2020 rule''), made wholesale revisions to the
regulations; it took effect on September 14, 2020.\36\
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\30\ E.O. 13807, supra note 12.
\31\ Id., sec. 5(e)(iii).
\32\ Update to the Regulations for Implementing the Procedural
Provisions of the National Environmental Policy Act, 83 FR 28591
(June 20, 2018).
\33\ Update to the Regulations Implementing the Procedural
Provisions of the National Environmental Policy Act, 85 FR 1684
(Jan. 10, 2020).
\34\ See Docket No. CEQ-2018-0001, https://www.regulations.gov/document/CEQ-2018-0001-0001.
\35\ See Docket No. CEQ-2019-0003, https://www.regulations.gov/document/CEQ-2019-0003-0001.
\36\ Update to the Regulations Implementing the Procedural
Provisions of the National Environmental Policy Act, 85 FR 43304
(July 16, 2020) (``2020 Final Rule'').
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In the months that followed the issuance of the 2020 regulations,
five lawsuits were filed challenging the 2020 rule.\37\ These cases
challenge the 2020 rule on a variety of grounds, including under the
Administrative Procedure Act (APA), NEPA, and the Endangered Species
Act, contending that the rule exceeded CEQ's authority and that the
related rulemaking process was procedurally and substantively
defective. In response to CEQ's motions and joint motions, the district
courts issued temporary stays in each of these cases, except for Wild
Virginia v. Council on Environmental Quality, which the district court
dismissed without prejudice on June 21, 2021.\38\ The Fourth Circuit
affirmed that dismissal on December 22, 2022.\39\
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\37\ Wild Va. v. Council on Env't Quality, No. 3:20cv45 (W.D.
Va. 2020); Env't Justice Health All. v. Council on Env't Quality,
No. 1:20cv06143 (S.D.N.Y. 2020); Alaska Cmty. Action on Toxics v.
Council on Env't Quality, No. 3:20cv5199 (N.D. Cal. 2020);
California v. Council on Env't Quality, No. 3:20cv06057 (N.D. Cal.
2020); Iowa Citizens for Cmty. Improvement v. Council on Env't
Quality, No. 1:20cv02715 (D.D.C. 2020). Additionally, in The Clinch
Coalition v. U.S. Forest Serv., No. 2:21cv00003 (W.D. Va. 2020),
plaintiffs challenged the U.S. Forest Service's NEPA implementing
procedures, which established new categorical exclusions, and,
relatedly, the 2020 rule's provisions on categorical exclusions.
\38\ Wild Va. v. Council on Env't Quality, 544 F. Supp. 3d 620
(W.D. Va. 2021).
\39\ Wild Va. v. Council on Env't Quality, 56 F.4th 281 (4th
Cir. 2022).
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[[Page 49928]]
E. CEQ's Review of the 2020 Regulations
On January 20, 2021, President Biden issued E.O. 13990, Protecting
Public Health and the Environment and Restoring Science to Tackle the
Climate Crisis,\40\ to establish an administration policy to listen to
the science; improve public health and protect our environment; ensure
access to clean air and water; limit exposure to dangerous chemicals
and pesticides; hold polluters accountable, including those who
disproportionately harm communities of color and low-income
communities; reduce GHG emissions; bolster resilience to the impacts of
climate change; restore and expand the Nation's treasures and
monuments; and prioritize both environmental justice and the creation
of well-paying union jobs necessary to achieve these goals.\41\ The
Executive Order calls for Federal agencies to review existing
regulations issued between January 20, 2017, and January 20, 2021, for
consistency with the policy it articulates and to take appropriate
action.\42\ The Executive Order also revokes E.O. 13807 and directs
agencies to take steps to rescind any rules or regulations implementing
it.\43\ An accompanying White House fact sheet, published on January
20, 2021, specifically identified the 2020 regulations for CEQ's review
for consistency with E.O. 13990's policy.\44\
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\40\ 86 FR 7037 (Jan. 25, 2021).
\41\ Id. at sec. 1.
\42\ Id.
\43\ Id. at sec. 7.
\44\ The White House, Fact Sheet: List of Agency Actions for
Review (Jan. 20, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/.
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Consistent with E.O. 13990 and E.O. 14008, CEQ has reviewed the
2020 regulations and engaged in a multi-phase rulemaking process to
ensure that the NEPA implementing regulations provide for sound and
efficient environmental review of Federal actions, including those
actions integral to tackling the climate crisis, in a manner that
enables meaningful public participation, provides for an expeditious
process, discloses climate change-related effects, advances
environmental justice, respects Tribal sovereignty, protects our
Nation's resources, and promotes better and more equitable
environmental and community outcomes.
First, CEQ issued an interim final rule on June 29, 2021, amending
the requirement in 40 CFR 1507.3(b) for agencies to propose changes to
existing agency-specific NEPA procedures by September 14, 2021, to make
those procedures consistent with the 2020 regulations.\45\ CEQ extended
the date by 2 years to avoid agencies proposing changes to agency-
specific implementing procedures on a tight deadline to conform to
regulations that are undergoing extensive review and would likely
change in the near future.
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\45\ Deadline for Agencies to Propose Updates to National
Environmental Policy Act Procedures, 86 FR 34154 (June 29, 2021).
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Next, on October 7, 2021, CEQ issued a ``Phase 1'' proposed rule to
focus on a discrete set of provisions designed to restore three
elements of the 1978 regulations.\46\ CEQ proposed changes to the
provisions it considered most critical to address, revise, and clarify
while completing the comprehensive review. First, CEQ proposed to
revise 40 CFR 1502.13 to clarify that agencies have discretion to
consider a variety of factors when assessing an application for
authorization by removing a requirement that an agency base the purpose
and need on the goals of an applicant and the agency's statutory
authority. CEQ also proposed a conforming edit to the definition of
``reasonable alternatives'' in 40 CFR 1508.1(z). Second, CEQ proposed
to remove language in 40 CFR 1507.3 that could be construed to limit
agencies' flexibility to develop or revise procedures to implement NEPA
specific to their programs and functions that may go beyond CEQ's
regulatory requirements. Finally, CEQ proposed to revise the definition
of ``effects'' in 40 CFR 1508.1(g) to restore the substance of the
definitions of ``effects'' and ``cumulative impacts'' contained in the
1978 regulations. CEQ received 94,458 written comments in response to
the proposed rule. CEQ issued a Phase 1 final rule on April 20,
2022,\47\ which finalized the proposed revisions.
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\46\ National Environmental Policy Act Implementing Regulations
Provisions, 86 FR 55757 (Oct. 7, 2021).
\47\ National Environmental Policy Act Implementing Regulations
Revisions, 87 FR 23453 (Apr. 20, 2022) (``Phase 1 Final Rule'').
---------------------------------------------------------------------------
CEQ received a variety of comments on the Phase 1 proposed rule
suggesting additional provisions or changes that CEQ should consider as
part of the Phase 2 rulemaking.\48\ For example, commenters requested
that CEQ strengthen public participation requirements and encourage
more robust public engagement; better incorporate environmental justice
and climate change considerations into the regulations; further address
the climate and biodiversity crises; modernize environmental review of
renewable energy projects; and further refine definitions, including
human environment, major Federal action, and effects. In addition,
commenters suggested that CEQ address page and time limits; mitigation;
tiering; CEs; and improved coordination among Federal, Tribal, State,
and local agencies and governments. Additionally, many of the comments
on the Phase 1 proposed rule's changes to 40 CFR 1502.13 on purpose and
need also included suggestions for changes to 40 CFR 1502.14 and the
discussion of alternatives. Where appropriate, CEQ summarizes these
Phase 1 comments as they relate to specific subsections of Section II
of the preamble.
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\48\ See CEQ, National Environmental Policy Act Implementing
Regulations Revision Phase 1 Response to Comments (Apr. 2022)
(``Phase 1 Response to Comments''), https://www.regulations.gov/document/CEQ-2021-0002-39427.
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Here, in this Phase 2 notice of proposed rulemaking (NPRM), CEQ
initiates a broader rulemaking to revise, update, and modernize the
NEPA implementing regulations. Informed by CEQ's extensive experience
implementing NEPA, CEQ proposes further revisions to ensure the NEPA
process provides for efficient and effective environmental reviews that
are guided by science and are consistent with the statute's text and
purpose; enhance clarity and certainty for Federal agencies, project
proponents, and the public; inform the public about the potential
environmental effects of Federal Government actions and enable full and
fair public participation; and ultimately promote better informed
Federal decisions that protect and enhance the quality of the human
environment, including by ensuring climate change, environmental
justice, and other environmental issues are fully accounted for in
agencies' decision-making processes.
As part of CEQ's review, CEQ engaged in extensive outreach with a
wide variety of interested and experienced parties to solicit their
feedback and recommendations on what new elements CEQ should consider
adding; what elements from the 1978 regulations CEQ should consider
restoring; what existing elements of the NEPA regulations CEQ should
consider clarifying, revising, or removing; and what existing elements
CEQ should retain in their current form. CEQ convened a Federal
interagency working group made up of NEPA practitioners, attorneys, and
other experts to hear and discuss their recommendations on a wide
variety of issues in the NEPA regulations and more generally with the
environmental review process. The Federal agency participants
represented the broad array of NEPA practice and environmental
expertise across the
[[Page 49929]]
Federal Government, including land management, infrastructure, resource
conservation, climate, and environmental justice experts.
CEQ also hosted or participated in over 60 meetings with external
parties, such as environmental organizations, business and industry
organizations (including timber, energy, air, grazing, mining, and
transportation organizations), Tribal Nations, State governments,
environmental justice organizations, academics, and labor
organizations. Additionally, CEQ held a Tribal consultation
specifically on the Phase 2 regulations and the updates to CEQ's GHG
guidance on November 12, 2021. CEQ considered the feedback received
during these engagements in the development of this proposed rule and
has included summaries of the external engagements in the docket.
Finally, as discussed in Section I.B, CEQ relies on its extensive
experience overseeing and implementing NEPA in the development of this
rule. CEQ has over 50 years of experience advising Federal agencies on
the implementation of NEPA. CEQ collaborates daily with Federal
agencies on specific NEPA reviews, provides government-wide guidance on
NEPA implementation, consults with agencies on the development of
agency-specific NEPA implementing procedures and determines they
conform with NEPA and the CEQ regulations, and advises the President on
a vast array of environmental issues. This experience also enables CEQ
to clarify the patchwork of fact-specific judicial decisions that have
evolved under NEPA. This rulemaking seeks to bring clarity and
predictability to Federal agencies and outside parties whose activities
require Federal action and therefore trigger NEPA review, while also
facilitating better environmental and social outcomes due to informed
decision making.
II. Summary of Proposed Rule
This section summarizes CEQ's proposed revisions to its NEPA
implementing regulations and the rationale for the changes. CEQ's
proposed changes fall into five general categories. First, CEQ proposes
revisions to implement the amendments to NEPA made by the FRA. Second,
where CEQ determined it made sense to do so, CEQ proposes to amend
provisions, which the 2020 regulations revised, to revert to the
language from the 1978 regulations that was in effect for more than 40
years, subject to minor revisions for clarity. Third, CEQ proposes to
remove certain provisions added by the 2020 rule that CEQ considers
imprudent or legally unsettled. Fourth, CEQ proposes to amend certain
provisions to enhance consistency and provide clarity to improve the
efficiency and effectiveness of the environmental review process.
Fifth, CEQ proposes revisions to the regulations to implement decades
of CEQ and agency experience implementing and complying with NEPA,
foster science-based decision making--including decisions that account
for climate change and environmental justice--improve the efficiency
and effectiveness of the environmental review process, and better
effectuate NEPA's statutory purposes. CEQ is retaining many of the
changes made in the 2020 rulemaking particularly where those changes
codified longstanding practice or guidance or enhanced the efficiency
and effectiveness of the NEPA process.
In response to the Phase 1 proposed rule, CEQ received many
comments on provisions not addressed in Phase 1. CEQ indicated in the
Phase 1 final rule that it would consider such comments during the
development of this Phase 2 rulemaking. CEQ has done so, and where
applicable, this NPRM provides a high-level summary of the important
issues raised in those public comments.
While some comments have advocated for a straight return to the
1978 regulations, CEQ does not consider this to be the appropriate
approach. As part of its review, CEQ evaluated the provisions of the
2020 regulations and sought feedback from NEPA experts and interested
stakeholders to identify provisions that, as written, add value to the
NEPA process or that require amendments to enhance clarity or improve
efficiency and effectiveness. For example, CEQ identified for retention
the inclusion of Tribal interests throughout the regulations, the
integration of mechanisms to facilitate better interagency cooperation,
and the reorganization and modernization of provisions addressing
certain elements of the process to make the regulations easier to
understand and follow. CEQ considers it important that the regulations
meet current goals and objectives, including to promote the development
of NEPA documents that are concise but also include the information
needed to inform decision makers and reflect public input. CEQ's
proposed revisions to the regulations emphasize the importance of
transparency and public engagement, reflecting modern practices and
changing needs, while also recognizing the discretion and flexibility
that Federal agencies need to respond and move efficiently and
effectively through the NEPA process.
A. Proposed Changes Throughout Parts 1500-1508 49
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\49\ CEQ prepared a redline of this proposed rule's changes to
the current CEQ regulations and provided it in the docket as a tool
to facilitate public review of this NPRM.
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CEQ proposes several revisions throughout parts 1500-1508 to
provide consistency, improve clarity, and correct grammatical errors.
Improved clarity reduces confusion and results in more consistent
implementation, thereby improving the efficiency of the NEPA process
and reducing the risk of litigation.
For greater consistency and clarity, CEQ proposes to change the
word ``impact'' to ``effect'' where this term is used as a noun because
these two words are synonymous. Throughout the regulations, to improve
clarity, CEQ proposes to use the word ``significant'' only to modify
the term ``effects.'' Accordingly, throughout the regulations, where
``significant'' modifies a word other than ``effects,'' CEQ proposes to
replace ``significant'' with another accurate adjective, typically
``important'' or ``substantial,'' which have been used throughout the
CEQ regulations since 1978. In doing so, CEQ seeks to avoid confusion
about what ``significant'' means in these other contexts by limiting
its use to describing ``significant effects.'' The one exception to
this change would be that CEQ proposes for the regulations to continue
to refer to a finding of no significant impact (FONSI), which CEQ would
leave intact because the concept of a FONSI is entrenched in practice
and case law. CEQ heard from public comments and agency feedback on the
Phase 1 rulemaking that use of the word ``significant'' in phrases such
as ``significant issues'' or ``significant actions'' creates confusion
on what the word ``significant'' means.\50\ The proposed change also
aligns with the proposed definition of ``significant effects'' in Sec.
1508.1(jj),\51\ as discussed in section II.J.13. CEQ does not intend
these proposed changes to substantively change the meaning of the
provisions.
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\50\ Phase 1 Response to Comments, supra note 48, at 120-21.
\51\ In the preamble, CEQ uses the section symbol (Sec. ) to
refer to the proposed regulations as set forth in this NPRM and 40
CFR to refer to the current CEQ regulations as set forth in 40 CFR
parts 1500-1508. When referencing specific regulatory sections in
place prior to the 2020 final rule, CEQ uses 40 CFR but adds
``(2019).''
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For clarity, CEQ proposes to change ``statement'' to
``environmental impact statement'' and ``assessment'' to
``environmental assessment'' where the regulations only use the short
form in the paragraph. See, e.g., Sec. Sec. 1502.3 and 1506.3(e)(1)
through (e)(3).
[[Page 49930]]
CEQ also proposes to make grammatical corrections or other edits
throughout the regulations where CEQ considers the changes necessary
for the reader to understand fully the meaning of the sentences.
Finally, CEQ proposes to update the authorities for each part, update
the references to NEPA as amended by the FRA, and fix internal cross
references to other sections of the regulations throughout to follow
the correct Federal Register format.
B. Proposed Revisions To Update Part 1500, Purpose and Policy
1. Purpose (Sec. 1500.1) and Policy (Sec. 1500.2)
Consistent with the approach taken in the 1978 regulations, CEQ
proposes to address the purpose of the CEQ regulations in Sec. 1500.1,
``Purpose,'' and reinstate Sec. 1500.2, ``Policy.'' In Sec. 1500.1,
CEQ proposes to restore much of the language from the 1978 regulations
and further incorporate the policies Congress established in the NEPA
statute. CEQ is proposing these changes to restore text regarding
NEPA's purpose and goals, placing the regulations into their broader
context. CEQ also finds value in restating the policies of the Act
within the regulations, which would improve readability by avoiding the
need for cross references to material outside the four corners of the
regulations.
Specifically, CEQ proposes to revise 40 CFR 1500.1(a) by
subdividing it into Sec. 1500.1(a), (a)(1), and (a)(2), and restoring
language from the 1978 regulations that states the principles and
policies Congress established in sections 101 and 102 of NEPA. CEQ is
proposing to remove the language that describes NEPA as a purely
procedural statute because, while correct, CEQ considers that language
to be an inappropriately narrow view of NEPA's purpose that minimizes
some of the broader goals of NEPA described in section I.A. While CEQ
agrees that a NEPA analysis does not dictate a particular outcome by
the decision maker, Congress established the NEPA process to provide
for better informed Federal decision making and improve environmental
outcomes, and those goals are not fulfilled if the NEPA analysis is
treated merely as a check-the-box exercise. In short, CEQ does not
consider it necessary to repeatedly emphasize the procedural nature of
NEPA, which may suggest that NEPA mandates a rote paperwork exercise
and de-emphasizes the Act's larger goals and purposes. Instead, CEQ
remains cognizant of the goals Congress intended to achieve through the
NEPA process in developing its implementing regulations, and agencies
should carry out NEPA's procedural requirements in a manner faithful to
the purposes of the statute.
In Sec. 1500.1(a)(1), CEQ proposes to retain the sentence
summarizing section 101(a) of NEPA and add a second sentence
summarizing section 101(b) to clarify that agencies also should
accomplish the purposes described in section 101(b) through NEPA
reviews. Including this language in Sec. 1500.1(a)(1) would help
agencies understand what the regulations refer to when the regulations
direct or encourage agencies to act in a manner consistent with the
purposes or policies of the Act. See, e.g., Sec. Sec. 1500.2(a),
1500.6, 1501.1(a), 1502.1(a), and 1507.3(b).
In Sec. 1500.1(a)(2), CEQ proposes to restore generally the
language of the 1978 regulations stating that the purpose of the
regulations is to convey what agencies should and must do to comply
with NEPA to achieve its purpose. CEQ proposes to strike the language
added by the 2020 rule that NEPA requires Federal agencies to provide a
detailed statement for major Federal actions, that the purpose and
function of NEPA is satisfied if agencies have considered environmental
information and informed the public, and that NEPA does not mandate
particular results. While it is true that NEPA does not mandate
particular results in specific decision-making processes, this language
unduly minimizes Congress's understanding that procedures ensuring that
agencies analyze, consider, and disclose environmental effects will
lead to better substantive outcomes, and is inconsistent with
Congress's statements of policy in the NEPA statute.
In Sec. 1500.1(b), CEQ proposes to strike the first two sentences
added by the 2020 rule and restore language from the 1978 regulations
emphasizing the importance of the early identification of high-quality
information that is relevant to a decision. Early identification and
consideration of issues using high-quality information have long been
fundamental to the NEPA process, particularly because this facilitates
comprehensive analysis of alternatives and timely and efficient
decision making, and CEQ considers it important to emphasize these
considerations in this section. The proposed changes also emphasize
that the environmental information that agencies use in the NEPA
process should be high-quality, science-based, and accessible. CEQ
proposes to strike the first two sentences of this paragraph, which the
2020 rule added, because they also provide an unnecessarily narrow view
of the purposes of NEPA and its implementing regulations.
Finally, CEQ proposes in a new Sec. 1500.1(c) to restore text from
the 1978 regulations, most of which the 2020 rule deleted, emphasizing
the importance of NEPA reviews for informed decision making. The
proposed changes to Sec. 1500.1 recognize that the procedural
provisions of NEPA are intended to further the purpose and goals of the
Act. One of those goals is to make improved and sound government
decisions.
The 2020 rule struck 40 CFR 1500.2 (2019) and integrated policy
language into 40 CFR 1500.1 (2020).\52\ CEQ is proposing to once again
provide for two sections, renaming Sec. 1500.1 to ``Purpose'' and
restoring Sec. 1500.2 as ``Policy.'' CEQ is proposing to restore with
some updates the language of the 1978 regulations to Sec. 1500.2.
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\52\ 2020 Final Rule, supra note 36, at 43316-17.
---------------------------------------------------------------------------
In Sec. 1500.2(a), CEQ proposes to restore the 1978 language
directing agencies to interpret their authorities consistent with the
policies of NEPA and the CEQ regulations to the fullest extent
possible. Paragraph (b) would restore with clarifying edits the 1978
language directing agencies to implement procedures that facilitate a
meaningful NEPA process to the fullest extent possible and emphasize
that environmental documents should be concise and clear. Paragraph (c)
would direct agencies to integrate NEPA with other planning and
environmental review requirements to the fullest extent possible, which
promotes efficient processes. CEQ proposes to modernize language from
the 1978 regulations in paragraph (d) to emphasize public engagement,
including with communities with environmental justice concerns, which
often include communities of color, low-income communities, and
indigenous communities, and Tribal communities. CEQ views an emphasis
on engagement with such communities to be important because agencies
have not always meaningfully engaged with them and such communities
have been disproportionately and adversely affected by certain Federal
activities.
In proposing to make this change to emphasize public engagement,
CEQ notes that the obligation to consult with Tribal Nations on a
nation-to-nation basis is distinct from the public engagement
requirements of NEPA.\53\ CEQ invites comment on whether
[[Page 49931]]
additional changes to the NEPA regulations would be appropriate in
light of the obligation for Tribal consultation.
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\53\ See E.O. 13175, Consultation and Coordination with Indian
Tribal Governments, 65 FR 67249 (Nov. 9, 2000); Presidential
Memorandum, Tribal Consultation and Strengthening Nation-to-Nation
Relationships, 86 FR 7491 (Jan. 29, 2021), https://www.federalregister.gov/d/2021-02075.
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In paragraph (e), CEQ proposes to restore language from the 1978
regulations regarding the identification of alternatives that avoid or
minimize adverse effects. CEQ is proposing to add examples of such
alternatives, including those that will reduce climate change-related
effects or address effects that disproportionately affect communities
with environmental justice concerns consistent with E.O. 12898 and E.O.
14096, to highlight the importance of considering such effects in
environmental documents, consistent with NEPA's requirements, including
the consideration of high-quality information, such as best available
science and data.\54\
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\54\ Consideration of environmental justice and climate change-
related effects has long been part of NEPA analysis. See, e.g.,
Environmental Justice Guidance, supra note 6, and Ctr. For
Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538
F.3d 1172 (9th Cir. 2008). See also 42 U.S.C. 4331(b) (``[I]t is the
continuing responsibility of the Federal Government to . . . assure
for all Americans safe, healthful, productive, and esthetically and
culturally pleasing surroundings . . . [and to] maintain, wherever
possible, an environment which supports diversity and variety of
individual choice'' (emphasis added); 42 U.S.C. 4332(2)(F) (``all
agencies of the Federal Government shall . . . recognize the
worldwide and long-range character of environmental problems'').
---------------------------------------------------------------------------
Finally, in paragraph (f), CEQ proposes to restore the direction
from the 1978 regulations to use all practicable means to restore and
enhance the environment, consistent with the policies of NEPA. These
proposed restorations and additions to Sec. 1500.2(d), (e), and (f)
reflect longstanding practice among Federal agencies and align with
NEPA's statutory policies, including to avoid environmental
degradation, preserve historic, cultural, and natural resources, and
``attain the widest range of beneficial uses of the environment without
degradation, risk to health or safety, or other undesirable and
unintended consequences.'' 42 U.S.C. 4331(b).
The 2020 rule removed the Policy section stating that it was
duplicative of other sections.\55\ However, CEQ proposes to restore and
update this section because a robust articulation of the Act's policy
principles is fundamental to the NEPA process. CEQ also considers it
helpful to agency practitioners and the public to have a consolidated
listing of policy objectives regardless of whether other sections of
the regulations address those objectives.
---------------------------------------------------------------------------
\55\ 2020 Final Rule, supra note 36 at 43317.
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2. NEPA Compliance (Sec. 1500.3)
CEQ proposes to remove from Sec. 1500.3 provisions added by the
2020 rule regarding exhaustion and remedies, restore some language from
the 1978 regulations removed by the 2020 rule, and make other
conforming edits. Specifically, in Sec. 1500.3(a), CEQ proposes to
remove the phrase ``except where compliance would be inconsistent with
other statutory requirements'' because this is addressed by Sec.
1500.6. CEQ also proposes to remove the reference to E.O. 13807, which
E.O. 13990 revoked, as well as the reference to section 309 of the
Clean Air Act because this provision is implemented by EPA.
CEQ proposes to delete 40 CFR 1500.3(b), including its paragraphs.
The process established by the 2020 rule provides that first, an agency
must request in its notice of intent (NOI) comments on all relevant
information, studies, and analyses on potential alternatives and
effects. 40 CFR 1500.3(b)(1). Second, the agency must summarize all the
information it receives in the draft EIS and specifically seek comment
on it. 40 CFR 1500.3(b)(2), 1502.17, 1503.1(a)(3). Third, decision
makers must certify in the record of decision (ROD) that they
considered all the alternatives, information, and analyses submitted by
public commenters. 40 CFR 1500.3(b)(4), 1505.2(b). Fourth, any comments
not submitted within the comment period are considered forfeited as
unexhausted. 40 CFR 1500.3(b)(3), 1505.2(b). By adding this exhaustion
process, the 2020 rule aimed to limit legal challenges and judicial
remedies.\56\
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\56\ 2020 Final Rule, supra note 36, at 43317-18.
---------------------------------------------------------------------------
CEQ proposes to remove this process because it establishes an
inappropriately stringent exhaustion requirement for public commenters
and agencies. It is unsettled whether CEQ has the authority under NEPA
to set out an exhaustion requirement that bars parties from bringing
claims on the grounds that an agency's compliance with NEPA violated
the APA, pursuant to 5 U.S.C. 702. While the 2020 rule correctly
identifies instances in which courts have ruled that parties may not
raise legal claims based on issues that they themselves did not raise
during the comment period,\57\ other courts have sometimes ruled that a
plaintiff can bring claims where another party raised an issue in
comments or where the agency should have identified an issue on its
own. Pac. Coast Fed'n of Fishermen's Ass'ns v. U.S. Dep't of Interior,
929 F. Supp. 2d 1039, 1045-46 (E.D. Cal. 2013); Wyo. Lodging and Rest.
Ass'n v. U.S. Dep't of Interior, 398 F. Supp. 2d 1197, 1210 (D. Wyo.
2005); see Pub. Citizen, 541 U.S. at 765 (noting that ``[T]he agency
bears the primary responsibility to ensure that it complies with NEPA .
. . and an EA's or an EIS' flaws might be so obvious that there is no
need for a commentator to point them out specifically in order to
preserve its ability to challenge a proposed action''). Because the
fundamental question raised by these cases is the availability of a
cause of action under the APA, and not a question of interpreting NEPA,
CEQ considers this question more appropriate for the courts to
determine. Further, nothing in this revision would limit the positions
the Federal Government may take regarding whether, based on the facts
of a particular case, a particular issue has been forfeited by a
party's failure to raise it before the agency, and removing this
provision does not suggest that a party should not be held to have
forfeited an issue by failing to raise it. By deleting the exhaustion
requirements, CEQ does not take the position that plaintiffs may raise
new and previously unraised issues in litigation. Rather, CEQ considers
this to be a question of general administrative law and therefore the
courts to be the proper venue to determine whether any particular claim
can proceed.
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\57\ Id. (citing Dep't of Transp. v. Pub. Citizen, 541 U.S. 752
(2004); Karst Env't. Educ. & Prot., Inc. v. Fed. Highway Admin., 559
F. App'x 421 (6th Cir. 2014); Friends of the Norbeck v. U.S. Forest
Serv., 661 F.3d 969 (8th Cir. 2011); Exxon Mobil Corp. v. U.S. EPA,
217 F.3d 1246 (9th Cir. 2000); Nat'l Ass'n of Mfrs. v. U.S. Dep't of
the Interior, 134 F.3d 1095 (D.C. Cir. 1998)).
---------------------------------------------------------------------------
Moreover, the exhaustion requirement established in the 2020 rule
is at odds with longstanding agency practice. While courts have ruled
that agencies are not required to do so, see, e.g., Pub. Citizen, 541
U.S. at 764-65 (finding that where a party does not raise an objection
in their comments on an EA, the party forfeits any objection to the EA
on that ground), agencies have discretion to consider and respond to
comments submitted after a comment period ends. The exhaustion
requirement established in the 2020 regulations could encourage
agencies to disregard important information presented to the agency
shortly after a comment period closes, and such a formalistic approach
would not advance NEPA's goal of informed decision making.
To be clear, this change does not relieve parties interested in
participating in, commenting on, or ultimately challenging a NEPA
analysis
[[Page 49932]]
of the obligation to ``structure their participation so that it is
meaningful.'' Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council,
Inc., 435 U.S. 519, 553 (1978). As CEQ's regulations have made clear
since 1978, parties must provide comments that are as specific as
possible to enable agencies to consider and address information during
the decision-making processes. See 40 CFR 1503.3(a). While commenters
should follow the appropriate procedures and time limits, the revisions
would provide agencies flexibility to address unusual circumstances.
CEQ proposes to redesignate 40 CFR 1500.3(c), ``Review of NEPA
compliance,'' as paragraph (b) and move to paragraph (b) the sentence
from 40 CFR 1500.3(d) regarding harmless error for minor, non-
substantive errors, which is a concept that has been in place since the
1978 regulations. CEQ proposes to delete the remaining text of 40 CFR
1500.3(c), removing language that noncompliance with NEPA and the CEQ
regulations should be resolved as expeditiously as possible. While CEQ
agrees with expeditious resolution of issues, CEQ considers this
inappropriate for regulatory text as these regulations cannot compel
members of the public or courts to resolve NEPA disputes. Rather, the
regulations promote public engagement, appropriate analysis, and
informed decision making to facilitate NEPA compliance and avoid such
disputes from the outset. CEQ also proposes to strike the last sentence
in this paragraph regarding bonding and other security requirements,
which relates to litigation over an agency action and not the NEPA
process itself. It is unsettled whether NEPA provides agencies with
authority to promulgate procedures that require plaintiffs to post
bonds in litigation brought under the APA. In any case, CEQ does not
consider it appropriate to address this issue in the NEPA implementing
regulations.
With the exception of the last sentence in 40 CFR 1500.3(d)
regarding remedies, which CEQ proposes to move, as discussed earlier in
this section, CEQ proposes to delete the remainder of the paragraph. It
is questionable whether CEQ has the authority to direct courts about
what remedies are available in litigation brought under the APA to
challenge NEPA compliance and, in any case, CEQ considers the 2020
rule's addition of this paragraph to be inappropriate. CEQ considers
courts to be in the best position to determine the appropriate remedies
when a plaintiff successfully challenges an agency's NEPA compliance.
Finally, CEQ proposes to redesignate 40 CFR 1500.3(e),
``Severability,'' as paragraph (c), without change. CEQ intends these
regulations to be severable. The proposed rule would amend existing
regulations and the NEPA regulations could be functionally implemented
if each revision proposed in this rule occurred on its own or in
combination with any other subset of proposed revisions. As a result,
if a court were to invalidate any particular provision of this rule,
allowing the remainder of the rule to remain in effect would still
result in a functional NEPA review process. This approach to
severability is the same as the approach that CEQ took when it
promulgated the 2020 regulations, because those amendments similarly
could be layered onto the 1978 regulations individually without
disrupting the overarching NEPA review process.
3. Concise and Informative Environmental Documents (Sec. 1500.4)
CEQ proposes to revise Sec. 1500.4 to emphasize the important
values served by concise and informative NEPA documents beyond merely
reducing paperwork, such as promoting informed and efficient decision
making and facilitating meaningful public participation. Section 1500.4
lists examples of provisions in the CEQ regulations that provide
mechanisms by which agencies may prepare concise and informative
environmental documents. Each paragraph listed in Sec. 1500.4 includes
cross references to regulatory provisions that further the goal of
preparing concise and informative documents.
To that end, CEQ proposes to retitle Sec. 1500.4 from ``Reducing
paperwork'' to ``Concise and informative environmental documents'' and
revise the introductory text to clarify that the paragraphs in this
section provide examples of the mechanisms in the regulations that
agencies can use to prepare concise and informative environmental
documents. CEQ proposes to remove paragraphs (a) and (b) from 40 CFR
1500.4 because they are redundant with Sec. 1500.5(a) and (b) and are
more appropriately addressed in the section on reducing delay, as well
as paragraph (d) because it is addressed in the revised introductory
text. CEQ proposes to redesignate 40 CFR 1500.4(c) and (e) through (q)
as Sec. 1500.4 (a) and (b) through (n), respectively.
CEQ proposes to add ``e.g.,'' to the cross references listed in
Sec. 1500.4(b), (c), and (e) to clarify that they are non-exclusive
examples of how agencies can briefly discuss unimportant issues, write
in plain language, and reduce emphasis on background material. CEQ
would update the cross references to other sections of the subchapter
to reflect proposed changes elsewhere in the regulations. In paragraphs
(c) and (e), CEQ proposes to expand the reference from EISs to all
environmental documents, as the concepts discussed are more broadly
applicable. Additionally, in paragraph (e), CEQ proposes to insert
``most'' before ``useful'' to clarify that the environmental documents
should not contain portions that are useless.
In Sec. 1500.4(f), CEQ proposes to replace ``significant'' with
``important'' and insert ``unimportant'' to modify ``issues''
consistent with our proposal to only use ``significant'' to modify
``effects.'' CEQ also proposes to clarify in paragraph (f) that scoping
may apply to EAs. Finally, CEQ proposes to expand paragraph (h),
regarding programmatic review and tiering, to include EAs to align with
the proposed changes to Sec. 1501.11. Finally, in paragraph (m), CEQ
proposes to insert ``Federal'' before ``agency'' consistent with Sec.
1506.3, which allows adoption of NEPA documents prepared by other
Federal agencies.
Concise and informational documents make the NEPA process more
accessible and transparent to the public, allowing the public an
opportunity to contribute to the NEPA process. The changes proposed in
Sec. 1500.4 align the regulations with the intent of NEPA to allow the
public to provide input, as well as CEQ's stated goal of increasing
transparency, while providing agencies flexibility on how to achieve
concise and informative documents. These proposed changes aim to
encourage the preparation of documents that can be easily read and
understood, which in turn promote informed and efficient decision
making.
4. Efficient Process (Sec. 1500.5)
CEQ proposes minor changes to Sec. 1500.5 to provide clarity and
flexibility regarding mechanisms by which agencies can apply the CEQ
regulations to improve efficiency in the environmental review process.
CEQ proposes these changes to acknowledge that unanticipated events and
circumstances beyond agency control may delay the environmental review
process, and to recognize that, while these approaches may improve
efficiency for many NEPA reviews, they could be inefficient for others.
To that end, CEQ proposes to retitle Sec. 1500.5 from ``Reducing
delay'' to ``Efficient process'' and revise the introductory text to
reflect the new title. The other proposed changes include adding EAs
[[Page 49933]]
to paragraph (a) to make the provision consistent with the definition
of ``categorical exclusion;'' changing ``real issues'' to ``important
issues that required detailed analysis'' in paragraph (f) for
consistency with Sec. 1502.4; and expanding the scope of paragraph (h)
from EISs to environmental documents to make clear that, regardless of
the level of NEPA review, agencies should prepare environmental
documents early in the process. Proposed Sec. 1500.5 recognizes the
importance of timely information for decision making and encourages
agencies to implement the 12 listed mechanisms to achieve timely and
efficient NEPA processes.
5. Agency Authority (Sec. 1500.6)
In Sec. 1500.6, CEQ proposes to revise the second sentence to
remove the qualification added in the 2020 rule that agencies must
ensure full compliance with the Act ``as interpreted by'' these
regulations and instead state that agencies must review and revise
their procedures to ensure compliance with NEPA and the CEQ
regulations. The phrase added in 2020 could be read to indicate that
agencies have no freestanding requirement to comply with NEPA itself,
which would be untrue. CEQ also considers the proposed change necessary
for consistency with Sec. 1507.3(b), which CEQ revised in the Phase 1
rulemaking to make clear that, while agency procedures must be
consistent with the CEQ regulations, agencies have discretion and
flexibility to develop procedures beyond the CEQ regulatory
requirements, enabling agencies to address their specific programs,
statutory mandates, and the contexts in which they operate. CEQ
proposes to make conforming edits in Sec. Sec. 1502.2(d) and 1502.9(b)
to remove this phrase.
In the third sentence, CEQ proposes to remove the cross-reference
to Sec. 1501.1 for consistency with the proposed modifications to
Sec. 1501.1 and restore the intent of language from the 1978
regulations, with modification, explaining that the phrase ``to the
fullest extent possible'' means that each agency must comply with
section 102 of NEPA unless an agency activity, decision, or action is
exempted by law or compliance with NEPA is impossible. Finally, CEQ
proposes to strike the last sentence stating that the CEQ regulations
do not limit an agency's other authorities or legal responsibilities,
which the 2020 rule added to acknowledge the possibility of different
statutory authorities with different requirements. While the 2020
regulations contended that this sentence was added for consistency with
E.O. 11514, as amended by section 2(g) of E.O. 11991, CEQ considers the
sentence superfluous and unnecessarily vague. As stated in the new
proposed text, agencies must comply with NEPA in carrying out an
activity, decision, or action unless exempted by law or compliance with
NEPA is impossible. That description would reflect accurately the
directive that Federal agencies comply with the CEQ regulations
``except where such compliance would be inconsistent with statutory
requirements.'' \58\
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\58\ 2020 Final Rule, supra note 36, at 43319.
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CEQ's proposed revisions to Sec. 1500.6 would clarify that
agencies have an independent responsibility to ensure compliance with
NEPA and a duty to harmonize NEPA with their other statutory
requirements and authorities to the maximum extent possible. This is
true as a general matter of statutory construction as well as under the
specific statutory mandate of section 102 of NEPA, which requires that
``the policies, regulations, and public laws of the United States shall
be interpreted and administered in accordance with the policies set
forth in this [Act].'' 42 U.S.C. 4332(1).
Therefore, compliance with NEPA is only impossible within the
meaning of this subsection when the conflict between another statute
and the requirements of NEPA are clear, unavoidable, and
irreconcilable. Absent exemption by Congress or a court, an
irreconcilable conflict exists only if the agency's authorizing statute
grants it no discretion to comply with NEPA while also satisfying the
statutory mandate.
C. Proposed Revisions To Update Part 1501, NEPA and Agency Planning
CEQ is proposing substantive revisions to all sections in part 1501
except Sec. 1501.2, ``Apply NEPA early in the process,'' to which CEQ
proposes minor edits for readability that CEQ considers clarifying and
non-substantive. CEQ invites comment on whether it should make any
substantive changes to that section or other changes to part 1501.
1. Purpose (Sec. 1501.1)
CEQ proposes to revert and retitle Sec. 1501.1 to ``Purpose,'' to
emphasize the goals of part 1501 consistent with the approach in the
1978 regulations. As discussed further below, CEQ proposes to move some
of the NEPA thresholds language in 40 CFR 1501.1 to Sec. 1503.1(a),
strike the remaining text, and replace it with new provisions similar
to those in the 1978 regulations.
In Sec. 1501.1(a), CEQ proposes to highlight the importance of
integrating NEPA early in agency planning processes by generally
restoring the language from the 1978 regulations, while also
emphasizing that this promotes an efficient process and reduces delay.
Restoring this language is consistent with section 102(2)(C) of NEPA
and the objective to build into agency decision making, beginning at
the earliest point, an appropriate consideration of the environmental
aspects of a proposed action. 42 U.S.C. 4332(2)(C). CEQ proposes in
paragraph (b) to emphasize early engagement in the environmental review
process consistent with other changes proposed throughout the
regulations to elevate the importance of early coordination and
engagement throughout the NEPA process to identify and address
potential issues early in a decision-making process, thereby helping to
reduce the overall time required to approve a project and improving
outcomes. In new paragraph (c), CEQ proposes to restore text from the
1978 regulations regarding expeditious resolution of interagency
disputes as promoted in Sec. Sec. 1501.7 and 1501.8. Paragraph (d)
also would restore the direction to identify the scope of the proposed
action and important environmental issues consistent with Sec. 1501.3,
thereby enhancing efficiency. Finally, paragraph (e) would highlight
the importance of schedules consistent with Sec. 1501.10, which
includes provisions requiring agencies to develop a schedule for all
environmental reviews and authorizations, as well as Sec. Sec. 1501.7
and 1501.8, which promote interagency coordination including with
respect to schedules.
As discussed further in section II.C.2, CEQ proposes to combine the
threshold considerations provision with the process to determine the
appropriate level of NEPA review in Sec. 1501.3 by moving 40 CFR
1501.1(a)(1), (2), (4), and (5) to proposed Sec. 1501.3(a)(1), (2),
(4), and (4)(ii), respectively, and striking the remaining paragraphs.
The 2020 regulations replaced the purpose section in 40 CFR 1501.1 with
a list of factors agencies should consider in assessing whether NEPA
applies or is otherwise fulfilled for a proposed activity or decision,
and allows agencies to make these threshold considerations pursuant to
their agency NEPA procedures or on an individual basis.
CEQ proposes to delete two of the threshold factors currently in 40
CFR 1501.1(a). First, CEQ proposes to delete the factor currently
listed in 40 CFR 1501.1(a)(3), inconsistency with Congressional intent
expressed in another statute. Upon further
[[Page 49934]]
consideration, this factor may inadequately account for agencies'
responsibility to harmonize NEPA with other statutes, as discussed
further in section II.C.2. As discussed in section II.B.5, the
regulations provide that an agency should determine if a statute or
court exempts an action from NEPA or if compliance with NEPA and
another statute would be impossible; if not, the agency must comply
with NEPA. To the extent the factor suggests that Congress's intent
regarding NEPA compliance involves considerations other than those two
determinations, the factor is incorrect.
Second, CEQ proposes to strike the factor in 40 CFR 1501.1(a)(6)
regarding functional equivalence. While certain Environmental
Protection Agency (EPA) actions are explicitly exempted from NEPA's
environmental review requirements, and courts have found other EPA-
administered statutes to be functionally equivalent or otherwise
exempt, CEQ considers this language added to the 2020 rule to go beyond
the scope of the NEPA statute and case law because the language can be
construed to expand functional equivalence beyond the narrow contexts
in which it has been recognized. See, e.g., 15 U.S.C. 793(c)(1)
(exempting EPA actions under the Clean Air Act); 33 U.S.C. 1371(c)(1)
(exempting most EPA actions under the Clean Water Act); Env't Def.
Fund, Inc. v. EPA, 489 F.2d 1247, 1256-57 (D.C. Cir. 1973) (exempting
agency actions under FIFRA); W. Neb. Res. Council v. U.S. Env't Prot.
Agency, 943 F.2d 867, 871-72 (8th Cir. 1991) (noting exemptions under
the Safe Drinking Water Act). CEQ considers the more appropriate and
prudent approach is for agencies to establish mechanisms in their
agency NEPA procedures to align processes and requirements from other
environmental laws with the NEPA process.
CEQ proposes to eliminate the current language in 40 CFR 1501.1(b)
allowing agencies to make threshold determinations individually or in
their NEPA procedures because CEQ proposes to move the consideration of
thresholds into Sec. 1501.3 to consolidate the steps agencies should
take to determine whether NEPA applies and, if so, what level of NEPA
review is appropriate. The language in 40 CFR 1501.1(b) is also
redundant to language in Sec. 1507.3(d)(1), which would provide that
agency NEPA procedures may identify activities or decisions that are
not subject to NEPA. CEQ proposes to remove as unnecessary 40 CFR
1501.1(b)(1) because agencies have discretion to consult with CEQ and
have done so for decades on a wide variety of matters, including on
determining NEPA applicability, without such specific language in the
CEQ regulations. Finally, CEQ proposes to eliminate 40 CFR 1501.1(b)(2)
directing agencies to consult with another agency when they jointly
administer a statute if they are making a threshold applicability
determination. While CEQ agrees that consultation is a good practice in
such circumstances, it does not consider such a requirement necessary
for these regulations because consultation is best determined by the
agencies involved.
2. Determine the Appropriate Level of NEPA Review (Sec. 1501.3)
CEQ proposes substantive revisions to Sec. 1501.3 to provide a
more robust and consolidated description of the process agencies should
use to determine the appropriate level of NEPA review, including
addressing the threshold question of whether NEPA applies. CEQ also
proposes clarifying edits, including adding paragraph headings to
paragraphs (a) through (d). This revised provision would clarify the
steps for assessing the appropriate level of NEPA review, facilitating
a more efficient and predictable review process.
First, as noted in section II.C.1, CEQ proposes to move 40 CFR
1501.1(a)(1) to a new Sec. 1501.3(a), ``Applicability,'' and add a
sentence requiring agencies to determine whether NEPA applies to a
proposed activity or decision as a threshold matter. CEQ proposes this
move because the inquiry into whether NEPA applies is central to
determining the level of NEPA review and consolidating the steps in
this process in one regulatory section would improve the clarity of the
regulations. It is also consistent with the approach in section 106 of
NEPA, which addresses threshold considerations. CEQ proposes to strike
``or is otherwise fulfilled'' in the moved text because, as discussed
in section II.C.1, CEQ is proposing to remove the functional
equivalence factor from the regulation.
Second, CEQ proposes to move the threshold determination factors
agencies should consider when determining whether NEPA applies,
currently at 40 CFR 1501.1(a)(1) and (2), to Sec. 1501.3(a)(1) and (2)
respectively. CEQ proposes to align the text in paragraph (a)(1) with
the language in Sec. 1500.6, ``exempted from NEPA by law,'' and align
the text in paragraph (a)(2) with the language in section 106(a)(3) of
NEPA, changing ``another statute'' to ``another provision of law'' for
consistency with the statutory text. Third, CEQ proposes a new factor
in paragraph (a)(3) to address circumstances other than those in which
Congress or case law have exempted an activity from NEPA, to clarify
that there must be an irreconcilable and fundamental conflict between
complying with a statutory provision and complying with NEPA--i.e., the
other statutory provision must make NEPA compliance impossible. This
factor would be consistent with case law and longstanding principles of
statutory construction that require statutes to be read in harmony when
it is possible to do so. This approach also reflects the statutory
requirement of section 102 of NEPA that agencies interpret and
administer ``the policies, regulations, and public laws of the United
States'' in accordance with NEPA's policies and is consistent with
CEQ's proposed revisions to Sec. 1500.6, ``Agency Authority.'' 42
U.S.C. 4332; see section II.B.5.
Fourth, consistent with section 106(a)(1) and (4) of NEPA, CEQ
proposes to move the threshold determination factors regarding whether
the activity or decision is a major Federal action from 40 CFR
1501.1(a)(4) and (5), to Sec. 1501.3(a)(4) and (a)(4)(ii),
respectively. Consistent with section 106(a)(1) and (4) of NEPA, CEQ
proposes to include whether an activity or decision is a final agency
action or non-discretionary as subfactors of whether an activity or
decision is a major Federal action in Sec. 1501.3(a)(4) because these
are also exclusions from the definition of a major Federal action. When
agencies assess whether an activity or decision meets the definition of
a major Federal action, agencies determine whether they have discretion
to consider environmental effects consistent with Sec. 1508.1(u). CEQ
invites comment on whether it should make additional changes to Sec.
1501.3(a) in light of the recently enacted provisions in section 106(a)
regarding threshold determinations.
Fifth, CEQ proposes to move, with clarifying edits, 40 CFR
1501.9(e), ``Determination of scope,'' to a new proposed Sec.
1501.3(b), ``Scope of action and analysis,'' to provide the next step
in determining the appropriate level of NEPA review--the scope of the
proposed action and its potential effects. In addition, CEQ proposes
moving into Sec. 1501.3(b) one sentence from 40 CFR 1502.4(a)
directing agencies to evaluate in a single NEPA review proposals
sufficiently closely related to be considered a single action, as well
as text from 40 CFR 1501.9(e)(1) regarding connected actions, which are
closely related Federal activities or decisions that agencies should
consider in a single NEPA document. CEQ proposes to move
[[Page 49935]]
40 CFR 1501.9(e)(1)(i) through (e)(1)(iii) providing the types of
connected actions into Sec. 1501.3(b)(1)(i) through (b)(1)(iii),
respectively. This longstanding principle from the 1978 regulations
that agencies should not improperly segment their actions is relevant
not only when agencies are preparing EISs; rather, it is critical for
agencies to consider this as part of the determination whether to
prepare an EA or apply a CE. CEQ proposes to consolidate this text into
Sec. 1501.3(b) because the determination of the scope of the action,
including any connected actions, necessarily informs the appropriate
level of NEPA review. While 40 CFR 1501.9(e) currently applies to the
scope of EISs, CEQ's proposed consolidation would clarify that this
analysis is applicable not only to the scope of the environmental
document itself but also to the determination of the level of NEPA
document the agency must prepare. Because including this provision in
Sec. 1501.3 would make it applicable to environmental reviews other
than EISs, CEQ proposes to strike the sentence that accompanied the
text in 40 CFR 1502.4(a) directing the lead agency to determine the
scope and significant issues for analysis in the EIS as part of the
scoping process. CEQ would retain in Sec. 1502.4(a), ``Scoping,'' the
requirement that agencies determine the scope and significant issues
for analysis in an EIS using an early and open process. CEQ proposes in
Sec. 1501.3(b)(1)(i) to likewise change ``environmental impact
statements'' to ``NEPA review.''
In bringing the text from 40 CFR 1501.9(e) to Sec. 1501.3(b), CEQ
is proposing to strike 40 CFR 1501.9(e)(2) and (3) relating to
alternatives and impacts, respectively. The current CEQ regulations and
the proposed revisions in this NPRM address the analyses of
alternatives and effects regarding both EISs (Sec. Sec. 1502.14,
1502.15) and EAs (Sec. 1501.5(c)(2)(ii) and (c)(2)(iii)). It would be
premature in the process, unnecessary, and unhelpful to address
alternatives as part of determining the level of NEPA review.
Sixth, CEQ proposes to redesignate 40 CFR 1501.3(a) as paragraph
(c), title it ``Levels of NEPA review,'' and retain the existing
paragraphs (1) through (3) without change. In paragraph (c), CEQ
proposes to incorporate section 106(b)(3) of NEPA addressing the
sources of information agencies may rely on when determining the
appropriate level of NEPA review. While section 106(b)(3) only directly
applies to an agency's determination whether to prepare an EA or an
EIS, CEQ views the approach to reliable data and producing new research
as consistent with longstanding practice and caselaw and appropriate to
apply broadly to an agency's determination of the appropriate level of
NEPA review, including a determination that no review is required. This
approach avoids creating an implication that an agency could be
required to conduct new research in a broader range of circumstances
when making threshold determinations outside of whether to prepare an
EA or EIS, for example in considering whether a CE applies. CEQ invites
comment on this approach.
Seventh, CEQ proposes to redesignate 40 CFR 1501.3(b) as Sec.
1501.3(d), title it ``Significance determination--context and
intensity,'' and address factors agencies must consider in determining
significance by restoring with some modifications the consideration of
``context'' and ``intensity'' from the 1978 regulations, which appeared
in the definition of ``significantly.'' See 40 CFR 1508.27 (2019).
Because this text provides direction on how agencies determine the
significance of an effect, rather than a definition, this is a more
appropriate location for this provision than Sec. 1508.1.
CEQ proposes to modify the introductory language in Sec. 1501.3(d)
by requiring agencies to consider the context of an action and the
intensity of the effects when considering whether the proposed action's
effects are significant. CEQ proposes to strike the sentence requiring
agencies to consider connected actions because this concept would be
included in proposed paragraph (c).
Paragraph (d)(1) would restore the consideration of the context of
the proposed action as a standalone consideration. Specifically, CEQ
proposes to restore language from the 1978 regulations requiring
agencies to analyze the significance of an action in several contexts.
The proposed provision also provides some examples of contexts for
consideration. First, the provision proposes agencies should consider
the characteristics of the relevant geographic area such as proximity
to unique or sensitive resources or vulnerable communities. Such
resources may include historic or cultural resources, Tribal sacred
sites, and various types of ecologically sensitive areas. This proposal
relates to the intensity factor proposed in (d)(2)(iii), which CEQ is
proposing to restore from the 1978 regulations. CEQ is proposing to
include it as a context factor as well since it relates to the setting
of the proposed action. It also would encourage agencies to consider
proximity to communities with environmental justice concerns.
Second, CEQ proposes that agencies should consider the potential
global, national, regional, and local contexts, which may be relevant
depending on the scope of the action, consistent with the current
regulations as well as the 1978 regulations. Third, agencies should
consider the duration of the potential effects and whether they are
anticipated to be short- or long-term. To that end, CEQ proposes to
move and revise text providing that the consideration of short- and
long-term effects is relevant to the context of a proposed action from
current 40 CFR 1501.3(b)(2)(i) to paragraph (d)(1).
The 2020 rule narrowed the ``context'' consideration to the
potentially affected environment in determining significance, stating
that this reframing relates more closely to physical, ecological, and
socio-economic aspects of the environment.\59\ CEQ has reconsidered
this approach and now finds it to be overly limiting. Agencies have
decades of experience analyzing their actions within this broader
framing of ``context.'' Moreover, this use of ``context'' is consistent
with CEQ's 2022 reinstatement of the concepts of indirect and
cumulative effects. Additionally, the 2020 rule's tying of significance
to the affected environment, ``usually'' only in the local area,\60\
could be read as deemphasizing reasonably foreseeable effects beyond
the immediate area of the action. The appropriate environment is the
one that the agency has identified as the affected environment in Sec.
1502.15, which can include the global, national, regional, and local
environment. For example, leases for oil and gas extraction or natural
gas pipelines have local effects, but also have reasonably foreseeable
global indirect and cumulative effects related to GHG emissions.
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\59\ 2020 Final Rule, supra note 36, at 43322.
\60\ 40 CFR 1501.3(b)(1) (``For instance, in the case of a site-
specific action, significance would usually depend only upon the
effects in the local area.'') (emphasis added).
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CEQ also proposes to reinstate ``intensity'' as a consideration in
determining significance, which CEQ reframed in the 2020 rule as the
``degree'' of the action's effects. In Sec. 1501.3(d)(2), CEQ proposes
to require agencies to assess the intensity of effects from an action
and to provide a list of factors, some or all of which may apply to any
given action, for agencies to consider in relation to one another,
returning to the approach from 1978. In 2020, CEQ justified the removal
of intensity as a consideration in part
[[Page 49936]]
based on the proposition that effects are not required to be intense or
severe to be considered significant.\61\ However, the intensity factors
that CEQ proposes to reinstate with modifications have long provided
agencies with guidance in how the intensity of an action's effects may
inform the significance determination. CEQ does not consider
``intense'' to be a synonym for ``significant;'' rather, it points to
factors to inform the determination of significance that are part of
longstanding agency practice. CEQ also proposes to clarify that
agencies should focus on adverse impacts in determinations of
significance. This is consistent with NEPA's policies and goals as set
forth in section 101 of the statute. 42 U.S.C. 4331.
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\61\ 2020 Final Rule, supra note 36, at 43322.
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Paragraph (d)(2)(i) would mirror the 1978 rule's reference to
beneficial effects with clarifying additions. CEQ proposes to state
that only actions with significant adverse effects require an EIS. This
is distinct from weighing beneficial effects against adverse effects to
determine that an action's effects on the whole are not significant.
Rather, this statement reflects the fact that an action with only
beneficial effects and no significant adverse effects does not require
an EIS, consistent with CEQ's proposed revisions to Sec. 1501.3(d)(2),
regarding the meaning of intensity.
CEQ proposes to add to paragraph (d)(2)(i) clarification that
agencies should consider the duration of effects and provide an example
of an action with short-term adverse effects but long-term beneficial
effects. While significant adverse effects may exist even if the agency
considers that on balance the effects of the action will be beneficial,
the agency should consider any related short- and long-term effects in
the same effect category together in evaluating intensity. For example,
an agency should consider short-term construction-related GHG emissions
from a renewable energy project in light of long-term reductions in GHG
emissions when determining the overall intensity of effects. In this
situation, the agency could reasonably determine that the climate
effects of the proposed action would not be significantly adverse, and
therefore an EIS would not be required. As another example, a forest
restoration project may have a short-term adverse effect to a species
by displacing it from the area while the project is carried out but
have long-term beneficial effects to the species by reducing the risk
that a severe wildfire will destroy the habitat altogether. An agency
should consider both of these effects in assessing whether the action
significantly affects the species, and may determine that the overall
effects on the species would not be significantly adverse and therefore
would not require an EIS.
In paragraph (d)(2)(ii), CEQ proposes to make a clarifying edit to
the factor relating to the action's effects on health and safety by
adding language indicating that the relevant consideration is ``the
degree to which'' the proposed action may ``adversely'' affect public
health and safety.
CEQ proposes to add in paragraph (d)(2)(iii) a factor to consider
the degree to which the proposed action may adversely affect unique
characteristics of the geographic area such as historic or cultural
resources, Tribal sacred sites, parkland, and various types of
ecologically sensitive areas. This would reinstate a factor from the
1978 regulations, with clarifying edits, which agencies have considered
for decades. As noted earlier in this section, CEQ proposes to use the
wording from the 1978 factor on unique characteristics because it is a
context consideration. Consideration of this factor is consistent with
both the definition of effects (Sec. 1508.1(g)) and the policies and
goals of NEPA. 42 U.S.C. 4331.
In paragraph (d)(2)(iv), CEQ proposes to make a clarifying edit to
the factor in 40 CFR 1501.3(b)(2)(iv) relating to actions that may
violate Federal, State, Tribal, or local law by adding reference to
``other requirements.'' CEQ also proposes to include inconsistencies
with policies designed for protection of the environment because
agencies should not necessarily limit their inquiry to statutory
requirements. Of course, it may be appropriate to give relatively more
weight to whether the action threatens a law imposed for environmental
protection as opposed to a policy, but policies imposed for the
protection of clean air, clean water, or species conservation, for
example, may nonetheless be relevant in evaluating intensity. CEQ
invites comment on the inclusion of policies in this provision and
whether the regulations should reference specific categories of
policies.
Next, CEQ proposes to add paragraph (d)(2)(v) to consider the
degree to which effects are highly uncertain. The 1978 regulations
included factors for ``controversial'' effects and those that are
``highly uncertain or involve unique or unknown risks.'' CEQ proposes
to restore a modified version of this concept that makes clear that the
uncertainty of an effect is the appropriate consideration, and not
whether an action is controversial. While a legitimate disagreement on
technical grounds may relate to uncertainty, this approach would make
clear that public controversy over an activity or effect is not a
factor for determining significance.
CEQ proposes to add a factor to paragraph (d)(2)(vi) regarding the
action's relationship with other actions. This would reinstate a factor
from the 1978 regulations and reinforce the consideration of the scope
of the action that agencies should consider in a NEPA document--that an
agency cannot avoid significance by terming an action temporary when it
is in fact a part of a repeating or ongoing action or segmenting it
into smaller parts. This longstanding NEPA principle is consistent with
decades of case law prohibiting the segmentation of actions. See, e.g.,
Sierra Club v. Marsh, 769 F.2d 868 (1st Cir. 1985); Kern v. U.S. Bureau
of Land Mgmt., 284 F.3d 1062 (9th Cir. 2002).
CEQ proposes to add a factor to paragraph (d)(2)(vii) relating to
actions that would affect historic resources listed or eligible for
listing in the National Register of Historic Places. This would
generally reinstate a factor from the 1978 regulations, which agencies
have decades of experience considering. Consideration of this factor
furthers the policies and goals of NEPA, including to ``preserve
important historic, cultural, and natural aspects of our national
heritage . . . .'' 42 U.S.C. 4331.
CEQ proposes to add paragraph (d)(2)(viii) to include effects on an
endangered or threatened species or its habitat, including critical
habitat under the Endangered Species Act. 16 U.S.C. 1532(5). This would
be an expansion of an intensity factor from the 1978 regulations, which
only addressed critical habitat. CEQ's proposed revision would clarify
that agencies should consider effects to the habitat of endangered or
threatened species even if it has not been designated as critical
habitat.
CEQ proposes to add paragraph (d)(2)(ix) to include consideration
of the degree to which the action may have disproportionate and adverse
effects on communities with environmental justice concerns. Evidence
continues to accumulate that communities with environmental justice
concerns often experience disproportionate environmental burdens such
as pollution or urban heat stress, and often experience
disproportionate health and other socio-economic burdens that make them
more susceptible to adverse effects.
Finally, CEQ proposes to add paragraph (d)(2)(x) to include effects
[[Page 49937]]
upon the rights of Tribal Nations reserved through treaties, statutes,
or Executive Orders. This proposed addition would clarify that agencies
should consider how an action may impact the reserved rights of Tribal
Nations. Tribes' ability to exercise these rights often depends on
protection of the resources that support the rights, and agencies
should consider impacts to such resources. CEQ specifically seeks
comments from Tribes on this proposed addition.
CEQ invites comments on whether there are other considerations that
should be added to the regulations to guide agency evaluation of the
context and intensity of an effect as part of a determination of
significance.
3. Categorical Exclusions (Sec. 1501.4)
CEQ proposes revisions to Sec. 1501.4 to clarify this provision,
which the 2020 rule added, and provide agencies new flexibility to
establish CEs using additional mechanisms and flexibilities outside of
their NEPA procedures to promote more efficient and transparent
development of CEs that may be tailored to specific environmental
contexts or project types.
First, CEQ proposes to edit Sec. 1501.4(a) for consistency with
and add a cross reference to Sec. 1507.3(c)(8), which currently
requires agencies to establish CEs in their NEPA procedures. This
revision would more fully and accurately reflect the purposes of and
requirements for CEs. As is reflected in the regulations, CEQ views CEs
to be an important mechanism to promote efficiency in the NEPA process
where agencies have long exercised their expertise to identify and
substantiate categories of actions that normally do not have a
significant effect on the human environment.
CEQ also proposes to add the clause ``individually or in the
aggregate'' to Sec. 1501.4(a)'s description of CEs. This proposal
would clarify that when establishing a CE in its procedures, an agency
must determine that the application of the CE to a single action and
the repeated collective application to multiple actions would not have
significant effects on the human environment. This clarification
recognizes that agencies often use CEs multiple times over many years.
This change is consistent with the definition of ``categorical
exclusion'' provided by section 111(1) as a ``category of actions,''
which highlights the manner in which CEs consider an aggregation of
individual actions. This change is similar to the 1978 regulations'
definition of CEs as categories of actions that do not ``individually
or cumulatively'' have significant effects, which the 2020 rule removed
consistent with its removal of the term ``cumulative impacts'' from the
regulations. The Phase 1 rulemaking reinstated cumulative effects to
the definition of ``effects,'' \62\ so the 2020 rule's justification
for removing the phrase no longer has a basis. However, CEQ proposes to
use the phrase ``in the aggregate'' rather than ``cumulatively'' to
avoid potential confusion. Cumulative effects refer to the incremental
effects of an agency action added to the effects of other past,
present, and reasonably foreseeable actions. In the context of
establishing CEs, agencies must consider both the effects of a single
action as well as the aggregation of effects from anticipated multiple
actions covered by the CE such that the aggregate sum of actions
covered by the CE does not normally have a significant effect on the
human environment. As part of this analysis, agencies consider the
effects--direct, indirect, and cumulative--of the individual and
aggregated actions. Because the definition of effects includes
cumulative effects, CEQ considers the phrase ``in the aggregate'' to
more clearly define what agencies must consider in establishing a CE--
the full scope of direct, indirect, and cumulative effects of the
category of action covered by the CE. Agencies have flexibility on how
to evaluate whether the ``aggregate'' of actions covered by a CE will
not ordinarily have significant effects and may consider the manner in
which the agency's extraordinary circumstances may avoid multiple
potential actions having reasonably foreseeable significant effects in
the aggregate. As discussed further in section II.I.2 CEQ notes that
agencies do not need to evaluate the environmental effects of
establishing the CE itself, but rather define the category of action
and demonstrate in its substantiation that the CE does not normally
have significant effects in the absence of extraordinary circumstances.
CEQ proposes to add a qualifying clause at the end of the sentence to
reference extraordinary circumstances consistent with Sec. 1501.4(b),
and add a definition of ``extraordinary circumstances'' at Sec.
1508.1(m). These provisions are consistent with longstanding practice
and recognize that, as the definition provided by section 111(1)
indicates, CEs are a mechanism to identify categories of actions that
normally do not have significant environmental effects. Extraordinary
circumstances serve to identify actions within a category of actions
the effects of which exceed those normally associated with that
category of action and therefore, do not fall within the bounds of the
CE.
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\62\ Phase 1 Final Rule, supra note 47, at 23469.
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Finally, CEQ also proposes to add at the end of paragraph (a)
language clarifying that agencies may establish CEs individually or
jointly with other agencies. In such cases, agencies may use a shared
substantiation document and list the CEs in both agencies' NEPA
procedures or identify them through another joint document as provided
for by proposed Sec. 1501.4(c). CEQ proposes this addition to provide
an additional mechanism for establishing CEs transparently and with
appropriate public process. Agencies may find value in establishing a
CE jointly for activities that they routinely work on together where
having a CE would create efficiency in project implementation. Agencies
also may save administrative time by establishing CEs jointly.
CEQ proposes edits to Sec. 1501.4(b)(1) to clarify the standard
for applying a CE to a proposed action where extraordinary
circumstances exist: an agency may apply a CE if the agency determines
that a proposed action does not have the potential to result in
significant effects, or the agency modifies the proposed action to
address the extraordinary circumstance. This standard is consistent
with agency practice and has been upheld in case law. As currently
drafted, 40 CFR 1501.4(b)(1) could be construed to mean that agencies
may mitigate extraordinary circumstances that would otherwise have the
potential for significant effects and thereby apply a CE with no
opportunity for public review or engagement on such actions. While the
2020 Response to Comments sought to distinguish ``circumstances that
lessen the impacts'' from required mitigation to address significant
effects,\63\ based on CEQ's discussions with agency representatives and
stakeholders, the potential for confusion remains. CEQ's proposed
standard makes clear that if an extraordinary circumstance exists, an
agency must make an affirmative determination that there is no
potential for significant effects in order to apply a CE. If it finds
such potential it must either: (1) modify its proposed action in a way
that will address the extraordinary circumstance, or (2) prepare an EA
or EIS.
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\63\ CEQ, Update to the Regulations Implementing the Procedural
Provisions of the National Environmental Policy Act Final Rule
Response to Comments 130 (June 30, 2020) (``2020 Response to
Comments''), https://www.regulations.gov/document/CEQ-2019-0003-720629.
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CEQ also proposes to add a documentation requirement in these
[[Page 49938]]
instances where an agency is applying a CE notwithstanding
extraordinary circumstances. CEQ also proposes to add language
encouraging agencies to publish such documentation. While not required,
CEQ encourages agencies to publish documentation of instances where an
agency is applying a CE notwithstanding extraordinary circumstances to
provide transparency to the public of an agency determination that
there is no potential for significant effects. The proposed language
responds to feedback from the public requesting such transparency. CEQ
invites comment on whether it should require agencies to publish such
documentation.
In addition, CEQ proposes to add a new Sec. 1501.4(c) to provide
agencies more flexibility to establish CEs outside of their NEPA
procedures. This provision would allow agencies to establish CEs
through a land use plan, a decision document supported by a
programmatic EIS or EA, or other equivalent planning or programmatic
decisions. Once established, agencies could apply CEs to future actions
addressed in the program or plan, including site-specific or project-
level actions. CEQ anticipates that expanding the mechanisms through
which agencies may establish CEs will encourage agencies to conduct
programmatic and planning reviews, increase the speed with which
agencies can establish CEs while ensuring public participation and
adequate substantiation, promote the development of CEs that are
tailored to specific contexts, geographies, or project-types, and allow
decision makers to consider the cumulative effects of related actions
on a geographic area over a longer time frame than agencies generally
consider in a review of a single action. This provision would not
require agencies to establish CEs through the mechanism added in Sec.
1501.4(c) but rather would provide new options for agencies to
consider. CEQ also notes that this mechanism does not preclude agencies
from conducting and relying on programmatic analyses in making project-
level decisions consistent with Sec. 1501.11. Additionally, it does
not require agencies to conduct a NEPA analysis to establish CEs
generally, consistent with Sec. 1507.3(c)(8).
Establishing a CE through this alternative approach could be
beneficial by providing agencies with more flexibility on how to
identify categories of actions that normally will not have significant
effects and establishing a CE for them. A programmatic EIS supporting a
program decision or land use plan could, for example, provide the
analysis necessary to substantiate a new CE established by the
associated decision document that makes sense in the context of the
overall program decision or land use plan. For example, a land
management agency could consider establishing a CE for zero or minimal
impact resilience-related activities. Enabling an agency to establish a
CE through this mechanism would reduce duplication of effort by
obviating the need for the agency to revise their NEPA procedures
consistent with Sec. 1507.3 after completing the programmatic EIS.
Agencies also may find it efficient to establish a CE through a land
use planning process rather than undertaking a separate process to
establish the CE via agency procedures after completion of the land use
planning process.
Paragraphs (c)(1) through (c)(6) would set forth the requirements
for the establishment of CEs through mechanisms other than an agency's
NEPA procedures. Paragraphs (c)(1) and (c)(2) would require agencies to
provide CEQ an opportunity to review and comment and provide
opportunities for public comment. Agencies may satisfy the requirement
for notification and comment under paragraph (c)(2) by incorporating
the proposed CEs into any interagency and public review process that
involves notice and comment opportunities applicable to the relevant
programmatic or planning document.
Proposed paragraphs (c)(3) and (c)(4) would include the same
requirements for agencies to substantiate CEs and provide for
extraordinary circumstances when they establish CEs under this section
as when they establish CEs through their agency NEPA procedures
pursuant to Sec. 1507.3. Specifically, first, agencies would have to
substantiate their determinations that the category of actions covered
by a CE normally will not result in significant effects, individually
or in the aggregate. Second, agencies would need to identify
extraordinary circumstances. This could be the same list set forth in
the agency's NEPA procedures, a list specific to this set of CEs, or a
combination of both. While agencies would need to satisfy these
requirements in a manner consistent with the establishment of CEs under
Sec. 1507.3, agencies could document their compliance with these
requirements in the relevant programmatic or planning documents.
Proposed paragraph (c)(5) would direct agencies to establish a
process for determining that a CE applies to a specific action in the
absence of extraordinary circumstance, or determine the CE still
applies notwithstanding the presence of extraordinary circumstances.
Finally, paragraph (c)(6) would direct agencies to maintain a list of
all such CEs on their websites, similar to the requirement for agencies
to publish CEs established in their agency NEPA procedures consistent
with Sec. Sec. 1507.3(b)(2) and 1507.4(a). Agency websites should
clearly link the CEs to their underlying programmatic or planning
documents. Additionally, agencies may want to incorporate CEs
established through these mechanisms into their agency NEPA procedures
during a subsequent revision. CEQ encourages agencies to list all
agency CEs in one location, regardless of how the agency established
the CE, so that the public can easily access the full list of an
agency's CEs.
Proposed Sec. 1501.4(d) would identify a list of examples of
features agencies may want to consider including when establishing CEs,
regardless of what mechanism they use to do so. Paragraph (d)(1) would
note that CEs may cover specific geographic areas or areas that share
common characteristics, such as a specific habitat type for a given
species.
To promote experimentation and evaluation, paragraph (d)(2) would
indicate that agencies may establish CEs for a limited duration. Doing
so would enable agencies to narrow the scope of analysis necessary to
substantiate that a class of activities normally will not have a
significant environmental effect where uncertainty exists about changes
to the environment that may occur later in time that could affect the
analysis. As with all CEs, agencies should review their continued
validity periodically, consistent with CEQ's proposed review timeframe
in Sec. 1507.3(c)(9). Once the limited duration threshold is met,
agencies could either consider the CE expired, conduct additional
analysis to create a permanent CE, or reissue the CE for a new period.
Paragraph (d)(3) provides that a CE may include mitigation measures
to address potential significant effects. A CE that includes mitigation
is different than an agency modifying an action to avoid an
extraordinary circumstance that would otherwise require preparation of
an EA or EIS. Paragraph (d)(3) makes clear that an agency may establish
a CE for a class of activities that include mitigation requirements as
part of the CE application. Agencies would implement the activities
covered by the CE as well as the mitigation incorporated into those
activities as part of the CE. As an illustrative example, an agency
could conclude that, as a category, a type of activity that degrades
five acres of habitat will not ordinarily have significant effects
where five acres
[[Page 49939]]
of equivalent habitat are effectively restored or conserved elsewhere.
As another example, a CE could allow for vegetation management
activities but require specific mitigation if a certain habitat type is
disturbed, such as implementing vegetation activities on 10 acres of
sage grouse habitat and requiring restoration or compensatory
mitigation for an equivalent 10 acres of sage grouse habitat. Where an
agency establishes a CE with a mitigation requirement, the agency would
need to include such mitigation in their proposed actions in order for
the CE to apply.
Paragraph (d)(4) would provide that agencies can include criteria
for when a CE might expire, such that, if such criteria were present,
the agency could no longer apply that CE. For example, an agency could
establish a CE for certain activities up to a threshold, such as a
specified number of acres or occurrences. Once the agency applied that
CE up to the threshold number of proposed actions, the agency could no
longer use the CE. An agency might set an expiration date or threshold
where their record indicates a potential for significant effects after
a certain number of applications of the CE to proposed actions; where
there is uncertainty beyond that threshold; or where it is unclear how
widely the agency would apply the CE. In other situations, an agency
may want to make a CE time limited because its authority over the
actions is likewise time limited.
Finally, CEQ proposes to strike the provision that would allow an
agency to establish a process in its agency NEPA procedures to apply a
CE listed in another agency's NEPA procedures in 40 CFR 1507.3(f)(5)
and replace it with a provision in Sec. 1501.4(e) that is consistent
with the process for adoption established by section 109 of NEPA. While
section 109 uses the term ``adopt'' CEQ is proposing to use ``apply''
to distinguish this provision from the longstanding use of ``adoption''
in the CEQ regulations to refer to an agency's reliance on another
agency's previously completed analysis, including the determination
that a CE applies to a proposed action.
First, paragraph (e)(1) would require the borrowing agency to
identify the proposed action or category of proposed actions that falls
within the CE. In instances where an agency would like to use the CE on
a long-term basis, CEQ encourages agencies to establish the CE either
in their own procedures or through the process set forth in Sec.
1501.4(c). However, this provision would serve as an important bridge
when agencies are implementing new programs where they have not yet
established relevant CEs or when existing programs begin to undertake
new categories of actions but where other agencies have experience with
similar actions and have established a CE for those actions. In these
circumstances, the agency could immediately begin to implement the new
programs and new activities based on another agencies CE for similar
actions without the need to first develop a CE to cover them. CEQ also
notes that, consistent with the requirement of section 109(2) that an
agency consult with ``the agency that established the categorical
exclusion,'' this provision would only apply to CEs established
administratively by the agency, including those that Congress directs
agencies to establish administratively, but not those CEs created by
statute. While CEQ encourages agencies to include legislative CEs
established by statute in their NEPA procedures to provide
transparency, they are not ``established'' by the agency, but rather by
Congress. CEQ invites comment on this approach.
Second, under paragraph (e)(2), the borrowing agency would consult
with the agency that has the listed CE to ensure application of the CE
is appropriate. Third, under paragraph (e)(3), the borrowing agency
would evaluate for extraordinary circumstances, consistent with Sec.
1501.3(b) to incorporate the process for documenting use of the CE when
extraordinary circumstances are present, but application of the CE is
still appropriate. Finally, under paragraphs (e)(4) and (e)(5), the
borrowing agency would document application of the CE, provide public
notice of the CE that the agency plans to use, and publish the
documentation of the application of the CE. Neither the statute or the
proposed regulation requires the agency to accept comment on the public
notice of the CE that the agency plans to use. In cases where an agency
is applying CEs to a category of actions, the agency could conduct a
single consultation and publish a consolidated notice, for example. CEQ
invites comment on its proposed process. CEQ invites comment on whether
the regulations implementing section 109 should include additional
provisions to facilitate the use of CEs while ensuring CEs are not used
improperly to authorize actions that have reasonably foreseeable
significant effect.
CEQ notes that there has been some confusion regarding the
difference between the use or borrowing of another agency's CE proposed
in Sec. 1501.4(e), which section 109 of NEPA refers to as adoption and
is currently provided by 40 CFR 1507.3(f)(5) and adoption of a CE
determination under Sec. 1506.3(d). In the latter case of adoption of
a CE determination, an agency with a CE has applied the CE to its own
proposed action. A second agency then adopts that determination for the
second agency's action that is substantially the same. Under Sec.
1501.4(e), an agency may use a CE from another agency that has not
itself determined that the CE applies to an action. In such
circumstances, an agency would be borrowing the CE of another agency
and applying it to a new, separate action, rather than adopting a CE
determination for an action that is substantially the same.
4. Environmental Assessments (Sec. 1501.5)
CEQ proposes to revise Sec. 1501.5 for consistency with sections
106(b)(2) and 107(e)(2) of NEPA, and to provide greater clarity to
agencies on the requirements that apply to the preparation of EAs and
to codify agency practice. CEQ proposes edits to address what agencies
must discuss in an EA, how agencies should consider public comments
they receive on draft EAs, what page limits apply to EAs, and what
other requirements in the CEQ regulations agencies should apply to EAs.
Regarding the contents of an EA, CEQ proposes to split 40 CFR
1501.5(c)(2), which requires an EA to briefly discuss the purpose and
need for the proposed action, alternatives, and effects, into
paragraphs (c)(2)(i) through (iii) to improve readability and provide a
clearly defined list of requirements. This formatting change would make
it easier for the public and the agencies to ascertain whether an EA
includes the necessary contents. For example, when an agency develops
an EA for a proposal involving unresolved conflicts concerning
alternative uses of available resources, section 102(2)(H) requires an
analysis of alternatives, which will generally require analysis of one
or more reasonable alternatives, in addition to a proposed action and
no action alternative. 42 U.S.C. 4332(2)(H).
CEQ proposes to move from 40 CFR 1501.5(c)(2) into its own
paragraph at Sec. 1501.5(c)(3) the requirement for EAs to list the
agencies and persons consulted in the development of the EA. CEQ also
proposes to clarify in this paragraph that agencies include Federal
agencies as well as State, Tribal, and local governments and agencies.
CEQ also proposes to add in paragraph (c)(4) a requirement that the EA
include a unique identification number that can be used for tracking
purposes that
[[Page 49940]]
would then be carried forward to all other documents related to the
environmental review of the action, including the FONSI. Identification
numbers can help the public and agencies track the progress of an EA
for a specific action as it moves through the NEPA process and may
allow for more efficient and effective use of technology such as
databases. CEQ also is proposing a similar requirement for EISs in
Sec. 1502.4(e)(9).
To reflect current agency practice and provide the public with a
clearer understanding about potential public participation
opportunities with respect to EAs, CEQ proposes to add a new paragraph
(e) that provides that if an agency chooses to publish a draft EA, it
must invite public comment on the draft and consider those comments
when preparing a final EA. This provision reflects the fact that one of
the primary purposes for which agencies choose to prepare draft EAs is
to enable public participation. Codifying this practice will enhance
the public's understanding of the NEPA process and meaningful public
engagement and does not restrict agency discretion over whether to
choose to prepare a draft EA for public comment. CEQ would redesignate
the current 40 CFR 1501.5(e) and (f) to Sec. 1501.5(f) and (g)
respectively.
CEQ also proposes to revise Sec. 1501.5(g) to dispense with the
requirement for senior agency official approval to exceed 75 pages, not
including any citations or appendices, for consistency with section
107(e)(2) of NEPA.
CEQ proposes to add paragraph (h) to clarify that agencies may
reevaluate or supplement an EA if a major Federal action remains to
occur and the agency considers it appropriate to do so. Paragraph (h)
also would provide that agencies may reevaluate an environmental
assessment or otherwise document a finding that changes to the proposed
action or new circumstances or information relevant to environmental
concerns are not substantial, or the underlying assumptions of the
analysis remain valid. CEQ adds this to clarify that an agency may
apply the provisions at Sec. 1502.9 regarding supplemental EISs to a
supplemental EA to improve efficiency and effectiveness.
Finally, CEQ proposes to clarify the provisions that agencies
should or may apply to EAs. In a new paragraph (i), CEQ proposes to
clarify that agencies generally should apply the provisions of Sec.
1502.21 regarding incomplete or unavailable information and Sec.
1502.23 regarding scientific accuracy. The 2020 regulations added these
as provisions agencies ``may apply;'' however, on reflection, CEQ
considers it important to disclose where information is incomplete or
unavailable, and ensure scientific accuracy for all levels of NEPA
review, not just EISs. Then, CEQ proposes to provide in paragraph (j)
that agencies may apply the other provisions of parts 1502 and 1503
where they consider it appropriate to improve efficiency and
effectiveness of EAs. This provision includes a list of example
provisions where this might be the case--scoping (Sec. 1502.4), cost-
benefit analysis (Sec. 1502.22), environmental review and consultation
requirements (Sec. 1502.24), and response to comments (Sec. 1503.4).
5. Findings of No Significant Impact (Sec. 1501.6)
CEQ proposes two revisions to Sec. 1501.6 on findings of no
significant impact (FONSIs) to clarify the 2020 rule's codification of
the longstanding agency practice of relying on mitigated FONSIs in
circumstances where the agency incorporates mitigation into the
proposed action to reduce its effects below significance. This is an
important efficiency tool for NEPA compliance because it expands the
circumstances in which an agency may prepare an EA and reach a FONSI,
rather than preparing an EIS, consistent with the requirements of NEPA.
Paragraph (a) currently describes that an agency prepares a FONSI
when it determines, as a result of an EA, not to prepare an EIS because
the proposed action will not have significant effects. At the end of
paragraph (a), CEQ proposes to clarify that agencies can prepare a
mitigated FONSI if the action will include mitigation to avoid the
significant effects that would otherwise occur or minimize or
compensate for them to the point that the effects are not significant.
So long as the agency can conclude that effects will be insignificant
in light of mitigation, the agency can issue a mitigated FONSI. CEQ
considers this an important clarification for consistency with the
language in Sec. 1501.6(c). Codification of these best practices also
aligns with guidance CEQ has issued on appropriate use of mitigation,
monitoring, and mitigated FONSIs.\64\
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\64\ CEQ, Appropriate Use of Mitigation and Monitoring and
Clarifying the Appropriate Use of Mitigated Findings of No
Significant Impact (Jan. 14, 2011), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.
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Paragraph (c) currently addresses what an agency must include in a
FONSI regarding mitigation. The text provides that when an agency
relies on mitigation to reach a FONSI, the mitigated FONSI must state
the enforceable mitigation requirements or commitments that avoid the
potentially significant effects. CEQ proposes to clarify in the second
sentence that the FONSI must state the enforceable mitigation
requirements or commitments, as well as the authorities for them, since
they must be enforceable for agencies to reach a mitigated FONSI. CEQ
proposes this change because, where a proposed action evaluated in an
EA may have significant effects, and an agency is not preparing an EIS,
the FONSI must include mitigation of the significant effects. At the
end of paragraph (c), CEQ proposes additional language to provide
additional details on what is needed to demonstrate that mitigation
requirements or commitments are enforceable. Specifically, the proposed
language would direct agencies to identify the authority that is being
exercised to make the mitigation enforceable.
Finally, as discussed in section II.G.2, CEQ proposes to add a new
sentence at the end of paragraph (c) to require a monitoring and
compliance plan when the EA relies on mitigation as a component of the
proposed action and incorporates the mitigation into the FONSI,
consistent with proposed Sec. 1505.3(c). These changes will help
effectuate NEPA's purpose as articulated in section 101, including to
``attain the widest range of beneficial uses of the environment without
degradation, risk to health or safety, or other undesirable and
unintended consequences'' and to ``preserve important historic,
cultural, and natural aspects of our national heritage . . . .'' 42
U.S.C. 4331(b).
6. Lead Agency; Cooperating Agencies (Sec. Sec. 1501.7 and 1501.8)
CEQ proposes to eliminate the reference to ``complex''
environmental assessments. The 2020 rule added this term without
definition. CEQ invites comment on whether it should retain a complex
EA in the regulations, and if so, how CEQ should define a complex EA.
CEQ proposes to retitle Sec. 1501.7 ``Lead Agency'' to align with
section 107(a) of NEPA. CEQ proposes to revise paragraph (b) regarding
joint lead agencies for consistency with section 107(a)(1)(B) of NEPA
to clarify that the participating Federal agencies may designate a
Federal, State, Tribal, or local agency as a joint lead agency upon
invitation to and acceptance by such agency. CEQ includes Federal
agencies in the list of potential joint lead agencies because there are
circumstances in which having another
[[Page 49941]]
agency serving as a joint lead agency will enhance efficiency. CEQ does
not read the text in section 107(a)(1)(B) of NEPA as precluding this
approach, but rather Congress specified that State, Tribal, and local
agencies may serve as joint lead agencies because they are ineligible
to serve as the lead agency. CEQ invites comment on whether it should
make additional changes to this paragraph.
CEQ proposes to revise paragraph (c) for consistency with section
107(a)(1) of NEPA to clarify that the participating Federal agencies
determine the agency that will be lead and any joint lead agencies, and
that the lead agency determines any cooperating agencies. This change
also would make this paragraph consistent with the text in Sec.
1506.2(c) on joint EISs. In Sec. 1501.7(d), CEQ proposes to revise the
text for consistency with section 107(a)(5)(B) of NEPA and make a non-
substantive change to replace the phrase ``private person'' with the
word ``individual'' for consistency with this term's use in other
sections of the regulations. In paragraph (e), CEQ proposes to revise
the text for consistency with section 107(a)(4) of NEPA, clarify that
the 45 days is calculated from the date of the written request to the
senior agency officials as set forth in Sec. 1501.7(d), and replace
``persons'' with ``individuals'' for consistency with the rest of
regulations.
In paragraph (f), CEQ proposes to revise the text for consistency
with section 107(a)(5)(D) of NEPA, to change ``within 20 days'' to ``no
later than 20 days'' in the first sentence, and ``20 days'' to ``40
days'' and ``determine'' to ``designate'' in the second sentence.
Currently, 40 CFR 1501.7(g), addressing combined documents, is
consistent with the text of section 107(b) of NEPA with respect to
EISs, EAs, and FONSIs. The statute does not address joint RODs. CEQ
proposes to revise Sec. 1501.7 to add a caveat that agencies must
issue joint RODs except where it is inappropriate or inefficient to do
so, such as when an agency has a separate statutory directive, or it
would take significantly longer to issue a joint ROD than separate
ones. CEQ recognizes that, in some cases, requiring a joint ROD could
inadvertently slow the NEPA process down because, for example, agencies
may have different procedures for issuing authorizations under their
applicable legal authorities or may need to consider different factors.
But in other cases, it could improve efficiency by avoiding duplication
of effort or analysis. Additionally, for consistency with Sec. 1501.5,
CEQ proposes to add that agencies can jointly determine to prepare an
EIS if a FONSI is inappropriate.
In Sec. 1501.7(h)(2), CEQ proposes to add a clause consistent with
section 107(a)(2)(C) of NEPA requiring the lead agency to give
consideration to a cooperating agency's analyses and proposals. In the
existing clause, CEQ proposes to move the qualifier, ``to the extent
practicable'' to clarify that it only modifies the second clause, and
change ``proposals'' to ``information'' to make the text consistent
with Sec. 1501.8(b)(3). Further, the use of ``proposal'' here is
inconsistent with the definition of ``proposal'' provided in Sec.
1508.1(cc). CEQ also proposes to remove the reference to jurisdiction
by law or special expertise as unnecessarily redundant given that the
definition of ``cooperating agencies'' in Sec. 1508.1(e) incorporates
those phrases.
As discussed further in section II.C.8, CEQ proposes to move the
requirements for schedules and milestones currently in 40 CFR 1501.7(i)
and (j) to proposed Sec. 1501.10(c) in order to consolidate provisions
related to deadlines, schedules, and milestones in one section.
CEQ proposes an addition to Sec. 1501.8 to clarify the meaning of
the phrase ``special expertise.'' Paragraph (a) provides that a lead
agency may request an agency with special expertise to serve as a
cooperating agency. CEQ proposes to clarify in paragraph (a) that
special expertise can include Indigenous Knowledge. This proposed
change helps ensure that Federal agencies respect and benefit from
unique knowledge that Tribal governments may bring to the environmental
review process. CEQ notes that the Office of Science and Technology
Policy and CEQ have issued a Guidance Memorandum for Federal
Departments and Agencies on Indigenous Knowledge,\65\ but does not
define Indigenous Knowledge. CEQ invites comment on whether it should
include such a definition in the regulations. Finally, CEQ notes that
even where a federally recognized Tribe participates as a cooperating
agency, the agency also may have an obligation to engage in government-
to-government consultation on the proposed action consistent with the
agency's obligations under E.O. 13175, Consultation and Coordination
with Indian Tribal Governments.\66\
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\65\ Office of Science and Technology Policy and CEQ, Guidance
for Federal Departments and Agencies on Indigenous Knowledge (Nov.
30, 2022), https://www.whitehouse.gov/wp-content/uploads/2022/12/OSTP-CEQ-IK-Guidance.pdf.
\66\ E.O. 13175, supra note 53.
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In paragraph (b)(7), CEQ proposes to strike the second clause
requiring cooperating agencies to limit their comments to align this
paragraph with section 107(a)(3) of NEPA. Finally, CEQ invites comment
on whether it should make any additional changes to these sections to
promote or improve lead and cooperating agency engagement on the
preparation of NEPA documents or increase the efficiency of the
preparation process.
7. Public and Governmental Engagement (Sec. 1501.9)
CEQ proposes to address public and governmental engagement in a
revised Sec. 1501.9 by moving and updating 40 CFR 1506.6, ``Public
involvement,'' to Sec. 1501.9, and moving provisions specific to the
EIS scoping process to Sec. 1502.4. CEQ proposes these updates to
continue to provide agencies with flexibility to tailor their
engagement specific to their programs and actions while also
maintaining the requirements to engage the public and affected parties
in the NEPA process. CEQ proposes revisions to Sec. 1501.9 to
emphasize the importance of creating an accessible and transparent NEPA
process. CEQ also proposes many of these changes in response to
feedback on the Phase 1 proposed rule, the 2020 proposed rule, and
input received from stakeholders and agencies during development of
this proposed rule. Much of that feedback requested increased
opportunities for public engagement and increased transparency about
agency decision making, along with general requests that CEQ elevate
the importance of public engagement in the NEPA process. Finally, CEQ
proposes to move the requirements related to public engagement to part
1501 to emphasize that it is a core component of the NEPA process and
agency planning, regardless of the level of NEPA analysis being
undertaken.
To accomplish this goal, CEQ is proposing changes to multiple
sections of the regulations. First, CEQ is proposing to move the
existing provisions of 40 CFR 1501.9 on scoping, specifically
paragraphs (a), (b), (c), (d), (d)(1) through (8), (f), and (f)(1)
through (5) to proposed Sec. 1502.4, ``Scoping.'' As discussed in
sections II.C.2 and II.C.9, CEQ proposes to move the existing
provisions in 40 CFR 1502.4 on ``Major Federal actions requiring the
preparation of environmental impact statements'' to Sec. Sec. 1501.3
and 1501.11. Also, as discussed in section II.C.2, CEQ proposes to move
the remaining text of existing 40 CFR 1501.9(e) and (e)(1) through (3)
on the determination of scope to proposed Sec. 1501.3 because
[[Page 49942]]
determining the scope of actions applies to all levels of NEPA review.
CEQ proposes to retitle Sec. 1501.9 to ``Public and governmental
engagement'' and accordingly update references to ``public
involvement'' within this section and throughout the CEQ regulations to
``public engagement.'' CEQ is proposing this change because the word
``engagement'' better reflects how Federal agencies should be
interacting with the public. The word ``engagement'' reflects a process
that is more interactive and collaborative compared to simply including
or notifying the public of an action. Engagement is also a common term
for Federal agencies with experience developing public engagement
strategies or that work with public engagement specialists. CEQ
proposes to add ``governmental'' to the title to better reflect the
description of the provisions proposed to be included in the section,
which relate to both public and governmental entities.
Next, CEQ proposes to add paragraphs (a) and (b) to articulate the
purposes of public and governmental engagement and to identify the
responsibility of agencies to determine the appropriate methods of
public and governmental engagement and conduct scoping consistent with
Sec. 1502.4 for EISs. CEQ proposes to use the phrase ``meaningful''
engagement to better describe the purpose of this process because
public and governmental engagement should not be a mere check-the-box
exercise, and agencies should conduct engagement with appropriate
planning and active dialogue or other interaction with stakeholders in
which all parties can contribute. For example, such engagement can
inform the potential for significant effects or identify alternatives
that avoid or reduce effects. Agencies should determine the appropriate
level of outreach needed to engage meaningfully and effectively with
affected communities.
Paragraph (c) would list what actions the lead agency should take
when conducting outreach for public and governmental engagement.
Proposed paragraph (c)(1) would recommend agencies invite likely
affected agencies and governments, and paragraph (c)(2) would recommend
agencies conduct early engagement with likely affected or interested
members of the public. CEQ modeled these provisions on the existing
approaches in 40 CFR 1501.7(a)(1) (2019) and 40 CFR 1501.9(b) (2020) to
invite early participation of likely affected parties. Paragraph (c)(3)
would provide flexibility to agencies to tailor engagement strategies,
considering the scope, scale, and complexity of the proposed action and
alternatives, the degree of public interest, and other relevant
factors. CEQ proposes to move from 40 CFR 1506.6(c) to Sec.
1501.9(c)(3) the requirement that agencies consider the ability of
affected parties to access electronic media when selecting the
appropriate methods of notification. CEQ also proposes to add a clause
to the end of paragraph (c)(3) to require agencies to consider the
primary language of affected persons when determining the appropriate
notification methods to use.
CEQ then proposes to move and modify the rest of 40 CFR 1506.6 to
proposed Sec. Sec. 1501.9(d), (e), and (f). Specifically, CEQ proposes
to move the introductory clause of 40 CFR 1506.6 and 40 CFR 1506.6(b),
including its paragraphs, to Sec. 1501.9(d) and (d)(2), respectively,
and make minor revisions to improve readability and consistency with
the rest of Sec. 1501.9, including adding the paragraph heading
``notification.'' CEQ also proposes in (d)(2) to clarify that agencies
should make environmental documents available, as appropriate, to help
inform the public engagement process. CEQ proposes here and throughout
the CEQ regulations to replace the word ``notice'' with
``Notification,'' except where ``notice'' is used in reference to a
Federal Register notice. This proposed change is intended to clearly
differentiate between those requirements to publish a notice in the
Federal Register and other requirements to provide notification of an
activity, which may include a notice in the Federal Register or use of
other mechanisms.
CEQ proposes a new paragraph (d)(1) to require agencies to publish
notification of proposed actions they are analyzing through an EIS. CEQ
proposes this requirement in response to feedback from multiple
stakeholders and members of the public requesting more transparency
about agency proposed actions. Agencies may publish notification
through websites, email notifications, or other mechanisms such as the
Permitting Dashboard,\67\ so long as the notification method or methods
are designed to adequately inform the persons and agencies who may be
interested or affected, consistent with the definition of ``publish''
in Sec. 1508.1(ee). A notice of intent in the Federal Register,
consistent with Sec. 1502.4(e), can fulfill the notification
requirement, but agencies also may elect to use additional notification
methods. CEQ proposes to combine the provisions from 40 CFR
1506.6(b)(3)(i) and (ii) on notice to State, Tribal, and local
governments and agencies in proposed Sec. 1501.9(d)(2)(iii)(A) to
consolidate similar provisions. CEQ also proposes to recommend in
paragraph (d)(2)(iii)(I) that agencies establish email notification
lists or similar methods for the public to easily request electronic
notifications for proposed actions.
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\67\ See Fed. Permitting Improvement Steering Council,
Permitting Dashboard for Federal Infrastructure Projects, https://www.permits.performance.gov/.
---------------------------------------------------------------------------
As discussed in section II.I.3, CEQ proposes to move the
requirement for agencies to explain in their NEPA procedures where
interested persons can get information on EISs and the NEPA process
from 40 CFR 1506.6(e) to Sec. 1507.3(c)(11) since this is a
requirement for NEPA procedures, not public engagement. CEQ proposes to
move the requirements to make EISs available under FOIA from 40 CFR
1506.6(f) to Sec. 1501.9(d)(3).
CEQ proposes to delete 40 CFR 1506.6(d) on soliciting information
from the public because CEQ proposes to include that concept in the
purpose and language of Sec. 1501.9. CEQ proposes to move 40 CFR
1506.6(c) on public meetings and hearings to Sec. 1501.9(e), with
modification, including adding the heading ``Public meetings and
hearings'' to the paragraph, making minor revisions for clarity,
consistency, and readability, and adding a phrase to clarify that when
an agency accepts comments for electronic or virtual meetings, agencies
must allow the public to submit them electronically or via regular
mail. CEQ also proposes to add in paragraph (e) a sentence encouraging
agencies to consider the needs of affected communities when determining
what format to use for a public hearing or public meeting because the
best option for the communities involved may vary.
Finally, CEQ proposes to move 40 CFR 1506.6(a) on public
involvement for NEPA procedures to new paragraph Sec. 1501.9(f),
adding a paragraph heading ``Agency procedures'' and changing the word
``involve'' to ``engage.'' CEQ is proposing to move this provision to
its own paragraph because engagement in the development of agency NEPA
procedures does not align with the new title added for paragraph (d)
and its paragraphs on notification requirements.
CEQ invites comment on whether and how it can make any additional
changes to this or other provisions in the regulations to enhance
community engagement. This could include adding provisions to the NEPA
regulations to
[[Page 49943]]
further address the responsibilities of the Chief Public Engagement
Officers proposed in Sec. 1507.2(a) to facilitate community engagement
across the agency and technical assistance to communities. CEQ welcomes
other ideas.
8. Deadlines and Schedule for the NEPA Process (Sec. 1501.10)
CEQ proposes to retitle Sec. 1501.10 to ``Deadlines and schedule
for the NEPA process'' and revise the section to direct agencies to set
deadlines and schedules for NEPA reviews to achieve efficient and
informed NEPA analyses consistent with section 107 of NEPA. The
proposed changes in this section would improve transparency and
predictability for stakeholders and the public regarding NEPA reviews.
In paragraph (a), CEQ proposes edits to emphasize that while NEPA
reviews should be efficient and expeditious, they also must include
sound analysis. The proposal would direct agencies to set deadlines and
schedules tailored to individual or types of proposed actions to
facilitate meeting the deadlines proposed in Sec. 1501.10(b).
Consistent with section 107(a)(2)(D) of NEPA, CEQ also proposes in this
paragraph to require, where applicable, the lead agency to consult with
and seek concurrence of joint lead, cooperating, and participating
agencies and consult with project sponsors and applicants when
establishing and updating schedules.
CEQ proposes to update paragraph (b) for consistency with section
107(h) of NEPA. Paragraph (b)(1) would require agencies to complete an
EA within one year and paragraph (b)(2) would require EIS completion in
two years unless the lead agency extends the deadline in consultation
with any applicant or project sponsor and sets a new deadline. In
circumstances where there is no applicant or project sponsor, the
consultation requirement is inapplicable to extension of deadlines.
Paragraph (b)(3) would identify the starting points from which the
deadline is measured and require agencies to measure from the soonest
of the three dates identified in section 107(g) of NEPA, as applicable.
CEQ notes that section 107(g)(3) of NEPA provides a mechanism for
project sponsors to petition the courts for relief if an agency fails
to meet the deadlines. Finally, paragraph (b)(4) would require agencies
to submit the report to Congress on any missed deadlines required by
section 107(h) of NEPA.
To enhance predictability, CEQ proposes to add a new paragraph (c),
which would contain text moved from 40 CFR 1501.7(i) and modified for
consistency with section 107(a)(2)(D) and (E) of NEPA requiring the
lead agency to develop schedules for EISs and EAs. The schedule would
include key milestones for the environmental review process, including
reviews, permits, and authorizations, and the lead agency would develop
it in consultation with the applicant or project sponsor and in
consultation with and seek the concurrence of any joint lead,
cooperating, and participating agencies. CEQ proposes to allow
schedules to be tailored to proposed actions and to highlight factors
that may help agencies set specific schedules to meet the deadlines.
Finally, CEQ proposes to move to the end of this paragraph text from 40
CFR 1501.7(j) with modifications, including for consistency with
section 107(a)(2)(E) of NEPA, and provide clarification to enhance
interagency communication and issue resolution. The proposed changes
would require that, when the lead agency or any participating agency
anticipates a missed milestone, that agency notifies the responsible
agency (and the lead agency if identified by another agency) and
request that they take action to comply with the schedule. To emphasize
the importance of informed and efficient decision making, CEQ proposes
to require agencies to elevate any unresolved disputes contributing to
the missed milestone to the appropriate officials for resolution within
the deadlines for the individual action.
CEQ proposes to redesignate 40 CFR 1501.10(c) as paragraph (d),
which addresses factors in setting deadlines, and make changes to the
text for consistency with the proposed changes to paragraph (b).
Specifically, CEQ proposes to change the reference to ``deadlines'' to
add a reference to ``the schedule'' and add a reference to the ``lead
agency,'' to consider the listed factors in setting schedules. CEQ
proposes to add an additional factor to (d)(7), redesignating 40 CFR
1501.10(c)(7) to be paragraph (d)(8), to add the degree to which a
substantial dispute exists on the proposed action and its effects. This
would restore and clarify a factor included in the 1978 regulations at
40 CFR 1501.8(a)(vii) (2019) regarding the degree to which the action
is controversial. While the 2020 regulations removed this factor
because it overlapped with other factors, CEQ is proposing to restore
and clarify it in the list of factors, focusing on substantial disputes
over the size, location, nature, or consequences of the proposed action
and its effects. CEQ considers this an important factor that could have
implications for establishing schedules and milestones. In such
instances, agencies should seek ways to resolve disputes early in the
process, including using conflict resolution and other tools, to
achieve efficient outcomes and avoid costly and time-consuming
litigation later in the process.
CEQ proposes to redesignate 40 CFR 1501.10(d) as paragraph (e) and
require a schedule to include a list of specific milestones. Proposed
paragraphs (e)(1) through (e)(5) would require EIS schedules to include
proposed dates for publication of the NOI, issuance of the draft EIS,
the public comment period, issuance of the final EIS, and issuance of
the ROD. CEQ proposes to remove paragraphs 40 CFR 1501.10(d)(2),
(d)(6), and (d)(7) because they are either covered by proposed (e)(1)
through (e)(3) or unnecessary. CEQ proposes in paragraph (f) and (f)(1)
through (f)(4) to identify the milestones that agencies must include in
schedules for EAs.
CEQ proposes to redesignate 40 CFR 1501.10(e) as paragraph (g).
Finally, to increase predictability and enhance agency accountability,
CEQ proposes to strike 40 CFR 1501.10(f) and add a new paragraph (h) to
require agencies to make schedules for EISs publicly available and to
publish revisions to the schedule. It also would require agencies to
publish revisions to the schedule and include an explanation for
substantial revisions to increase transparency and public understanding
of decision making and to encourage agencies to avoid unnecessary
delays.
9. Programmatic Environmental Document and Tiering (Sec. 1501.11)
CEQ proposes to revise and retitle Sec. 1501.11, ``Programmatic
environmental document and tiering,'' for consistency with section 108
of NEPA, to consolidate relevant provisions, and to add new language to
codify best practices for developing programmatic NEPA reviews and
tiering, which are important tools to facilitate more efficient
environmental reviews and project approvals. The revisions to this
section propose to move portions of 40 CFR 1502.4 on EISs for broad
Federal actions to proposed Sec. 1501.11 because agencies can review
actions at a programmatic level in both EAs and EISs. CEQ has
encouraged agencies to engage in environmental reviews for broad
Federal actions through the NEPA process since CEQ's initial
guidelines. This continues to be a best practice for addressing broad
actions, such as programs, policies, rulemakings, series of projects,
and larger or multi-phase projects. CEQ developed guidance in 2014 on
Effective
[[Page 49944]]
Use of Programmatic NEPA Reviews,\68\ compiling best practices across
the Federal Government on the development of programmatic environmental
reviews. In this proposed rule, CEQ would codify some of these
principles.
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\68\ Programmatic Guidance, supra note 11.
---------------------------------------------------------------------------
CEQ proposes to first address programmatic environmental documents
and then tiering in Sec. 1501.11. Accordingly, CEQ proposes to
redesignate existing 40 CFR 1501.11(a), (b), and (c), which address
tiering, to be proposed paragraphs (b), (b)(1), and (b)(2),
respectively, with some modifications. CEQ proposes to add a new
paragraph (a) to address programmatic environmental documents. Proposed
paragraph (a) would encourage the use of programmatic environmental
documents through an EIS or EA that evaluates the environmental effects
of policies, programs, plans, or groups of related activities. CEQ
proposes to move text from 40 CFR 1502.4(b) to Sec. 1501.11(a) and
revise it to include EAs, providing that programmatic environmental
documents should be relevant to the agency decisions and timed to
coincide with meaningful points in agency planning and decision making.
Finally, paragraph (a) would clarify that agencies can use programmatic
environmental documents in a variety of ways, highlighting some
examples for agencies to consider to facilitate better and more
efficient environmental reviews.
CEQ proposes to move the list of ways agencies may find it useful
to evaluate a proposal when preparing programmatic documents from 40
CFR 1502.4(b)(1) and (b)(1)(i) through (b)(1)(iii) to Sec.
1501.11(a)(1) and (a)(1)(i) through (a)(1)(iii), respectively, and
expand the list to apply to environmental documents rather than just
EISs to encompass EAs. CEQ proposes to modify paragraph (a)(1)(ii) to
clarify ``[g]enerically'' to mean ``[t]hematically or by sector,'' and
add technology as an example action type.
CEQ proposes to add paragraph (a)(2) to provide examples of the
types of agency actions that may be appropriate for programmatic
environmental documents, including programs, policies, or plans;
regulations; national or regional actions; or actions with multiple
stages and are part of an overall plan or program. CEQ proposes to move
40 CFR 1502.4(b)(2) to Sec. 1501.11(a)(3) and recommend that agencies
employ scoping and other tools to describe the relationship between
programmatic environmental document and related actions to reduce
duplication. CEQ proposes to strike the last sentence of 40 CFR
1502.4(b)(2) stating that agencies may tier their analyses because
tiering and programmatic environmental documents would now be addressed
together in this section rendering the language unnecessary.
As referenced earlier in this section, CEQ proposes to redesignate
the existing paragraphs on tiering to paragraphs (b), (b)(1) and
(b)(2). CEQ proposes to title paragraph (b) ``Tiering'' and add new
language to describe when agencies may employ tiering. CEQ proposes to
strike as redundant the reference to issues not yet ripe for decision
as well as the last sentence on applying tiering to different stages of
actions.
In Sec. 1501.11(b)(1) CEQ proposes to add programmatic
environmental document to the list of documents from which agencies may
tier. This paragraph also would clarify that agencies need to discuss
the relationship between the tiered analysis and the previous review;
evaluate site-, phase-, or stage-specific conditions and effects; and
allow for public engagement opportunities that are appropriate for the
location, phase, or stage.
Programmatic documents can most effectively address later
activities when they provide a description of planned activities that
would implement the program and consider the effects of the program as
specifically and comprehensively as possible. A sufficiently detailed
programmatic analysis with such project descriptions can allow agencies
to rely upon programmatic environmental documents for further actions
with no or little additional environmental review necessary. When
conducting programmatic analyses, agencies should engage the public
throughout the NEPA process and consider when it is appropriate to re-
engage the public prior to implementation of the action.
In paragraph (c), CEQ proposes to include the provisions in section
108 of NEPA, which address when an agency may rely on a programmatic
document in subsequent environmental documents. CEQ notes that it
interprets the reference to ``judicial review'' in paragraph (c)(1) to
mean an opportunity for a party to challenge the programmatic document,
including an administrative proceeding or challenge under the
Administrative Procedure Act. CEQ invites comment on whether to provide
additional information in the regulations to clarify this provision.
CEQ proposes in paragraph (c)(2) to require agencies to briefly
document their reevaluations when relying on programmatic environmental
documents older than 5 years. CEQ invites comment on whether and how to
more closely align this provision with the reevaluation and
supplementation provisions in Sec. Sec. 1501.5(h) and 1502.9(d).
CEQ invites comment on any additional changes that would promote
effective use of programmatic environmental reviews to facilitate
efficient and non-duplicative subsequent review of project-specific
actions, including through tiering.
10. Incorporation by Reference Into Environmental Documents (Sec.
1501.12)
CEQ proposes minor modifications to Sec. 1501.12 to emphasize the
importance of transparency and accessibility of material that agencies
incorporate by reference. CEQ proposes to add a specific requirement
for agencies to briefly explain the relevance of any material
incorporated into the environmental document to clarify that agencies
must do this. CEQ proposes this addition because explaining the
relevance of incorporated material in addition to summarizing it will
better inform the decision maker and the public. CEQ encourages
agencies to integrate the description of relevance into the summary of
the material. CEQ also proposes to change ``may not'' to ``shall not''
to eliminate a potential ambiguity over whether agencies must make
material they incorporate by reference reasonably available for public
inspection. CEQ also proposes to add a reference to ``publicly
accessible website'' as an example of a mechanism for making material
incorporated by reference available to the public, and clarify that an
agency may meet this obligation by posting documents on a website.
Finally, CEQ proposes to add language encouraging agencies to provide
digital references, such as hyperlinks, to incorporated material or
otherwise indicate how the public can access the material for
inspection.
D. Proposed Revisions To Update Part 1502, Environmental Impact
Statements
CEQ is proposing revisions to many sections of part 1502. CEQ is
not proposing any substantive changes to Sec. 1502.3, but is revising
the section title to read ``Statutory requirements for environmental
impact statements.'' CEQ is not proposing substantive changes to Sec.
1502.6, Interdisciplinary preparation; Sec. 1502.13, Purpose and need;
Sec. 1502.18, List of preparers; Sec. 1502.19, Appendix; Sec.
1502.20, Publication of the environmental impact statement; Sec.
1502.22, Cost-benefit analysis; or
[[Page 49945]]
Sec. 1502.24, Environmental review and consultation requirements. CEQ
invites comment on whether it should make any changes to these sections
or other changes to part 1502.
CEQ particularly invites comment on whether it should codify any or
all of its 2023 GHG guidance, and, if so, which provisions of part 1502
or other provisions of the regulations CEQ should amend. CEQ proposes
to incorporate some or all of the 2023 GHG guidance, which would
require making additional changes in the final rule to codify the
guidance in whole or part, as is or with changes, based on the comments
CEQ receives on this proposed rule.\69\
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\69\ See 2023 GHG Guidance, supra note 9.
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1. Purpose (Sec. 1502.1)
CEQ proposes to divide Sec. 1502.1 into paragraphs (a), (b), and
(c) to enhance readability and amend the text in the section to restore
the approach taken in the 1978 regulations regarding the purpose of
EISs as they relate to NEPA.
In paragraph (a), CEQ proposes to restore language from the 1978
regulations clarifying that one purpose of an EIS is to serve as an
action-forcing device for implementing the policies set out in section
101 of NEPA by ensuring agencies consider the environmental effects of
their action in decision making. Congress did not enact NEPA to create
procedure for procedure's sake; NEPA's procedures serve the substantive
policies and goals Congress established and restoring the action-
forcing language would clarify how EISs serve this broader function.
This proposed change is consistent with the proposed edits in Sec.
1500.1. See section II.B.1.
In paragraph (b), CEQ proposes minor edits for clarity and
consistency with other changes proposed throughout the regulations. CEQ
proposes to change ``It'' to ``Environmental impact statements'' to
improve readability in light of the proposal to add paragraphs to the
section. CEQ also proposes to change ``significant'' to ``important''
before ``environmental issues'' and insert ``reasonable'' before
``alternatives'' for consistency with similar phrasing throughout the
regulations. In paragraph (c), CEQ proposes to restore the 1978
language clarifying that an EIS is more than a disclosure document and
that agencies must use EISs concurrently with other relevant
information to make informed decisions. CEQ considers this language to
provide important direction to agencies to ensure that EISs inform
planning and decision making and do not serve as a perfunctory check-
the-box exercise.
2. Implementation (Sec. 1502.2)
CEQ proposes minor modifications in Sec. 1502.2. First, CEQ
proposes to restore from the 1978 regulations the introductory
paragraph directing agencies to prepare EISs to meet the purpose
established in Sec. 1502.1. Upon reconsideration, CEQ is proposing to
restore this language that was removed as unnecessary by the 2020 rule
to provide clarity on the purpose of this section and improve
readability.
Next, in paragraph (b) CEQ proposes to replace the word
``significant'' with ``important'' and add reference to an
environmental assessment for clarity and consistency. In paragraph (c),
CEQ proposes to change ``analytic'' to ``analytical,'' and ``project
size'' to ``the scope and complexity of the action'' since this
provision is applicable to more than projects, and the length of an EIS
should be proportional to the scope and complexity of the action
analyzed in the document.
CEQ proposes to delete ``as interpreted in'' before ``the
regulations in this subchapter'' in paragraph (d), for the reasons
discussed above for making a similar change in section II.B.5. CEQ is
concerned that this phrase may inappropriately constrain agencies whose
agency NEPA procedures go beyond the CEQ regulations. Under the
proposal, EISs must state how alternatives and decisions will or will
not achieve the requirements of NEPA, the CEQ regulations, and other
environmental laws and policies. Finally, CEQ proposes to delete the
word ``final'' in paragraph (f) because there is no distinction between
a decision and final decision and for consistency with use of
``decision'' elsewhere in the regulations.
3. Scoping (Sec. 1502.4)
As discussed in section II.C.7 on Sec. 1501.9, ``Public and
governmental engagement,'' and Sec. 1501.11, ``Programmatic review and
tiering,'' CEQ proposes to revise Sec. 1502.4 by retitling it
``Scoping'' and moving provisions from the current 40 CFR 1501.9 to
this section. This proposal would move the requirements of scoping for
EISs to part 1502, which addresses the requirements of EISs, while
moving requirements for determining the appropriate level of NEPA
review applicable to all environmental reviews to Sec. 1501.3(b). CEQ
also proposes to revise the provisions moved from the current 40 CFR
1501.9 to align scoping with related changes made on public engagement
in Sec. 1501.9 and to add requirements focused on increasing
efficiency in the EIS scoping process.
CEQ has heard from multiple Federal agencies that there is
uncertainty over the differences between the scoping process required
for EISs and other public involvement or engagement requirements for
NEPA reviews more generally. By proposing the revisedSec. 1501.9 on
public and governmental engagement and moving the scoping provisions to
Sec. 1502.4, CEQ is emphasizing the importance of public engagement in
the NEPA process generally, clarifying what requirements are unique to
EISs, and clarifying what requirements and best practices agencies
should consider regardless of the level of NEPA review.
As noted in sections II.C.2 and II.C.9, with the revision of this
section to address scoping, CEQ proposes to move the existing
provisions of 40 CFR 1502.4, ``Major Federal actions requiring the
preparation of environmental impact statements'' to Sec. Sec. 1501.3
and 1501.11.
CEQ proposes to move 40 CFR 1501.9(a), outlining the general
purpose of scoping, to Sec. 1502.4(a) and proposes to change the words
``significant'' and ``non-significant'' to ``important'' and
``unimportant,'' respectively, to align with CEQ's proposed change to
only use the word ``significant'' when describing effects. CEQ intends
this to be a clarifying, non-substantive change. CEQ proposes to move
40 CFR 1501.9(c) on scoping outreach to paragraph (b) and add a
sentence requiring agencies to facilitate notification to persons and
agencies who may be interested or affected by an agency's proposed
action, consistent with the public engagement requirements in proposed
Sec. 1501.9. CEQ proposes to move 40 CFR 1501.9(b) on cooperating and
participating agencies to paragraph (c) and retitle it ``Inviting
participation'' to better reflect that the paragraph covers cooperating
and participating agencies as well as proponents of the action and
other likely affected or interested persons. CEQ notes that agencies
invited to serve as cooperating or participating agencies should
respond in a timely manner to facilitate the inclusion in the NOI any
information that these agencies may need as part of the scoping
process.
CEQ proposes to move 40 CFR 1501.9(f) and (f)(1) through (f)(5) on
additional scoping responsibilities to paragraph (d) and (d)(1) though
(d)(5), respectively. Within this list, CEQ proposes modifications to
paragraph (d)(1) to change ``significant'' to ``important'' to align
with changes in paragraph (a) and the use of ``significant'' throughout
the
[[Page 49946]]
regulations, which CEQ intends to be a clarifying, non-substantive
change.
CEQ proposes to move the requirements for an NOI from 40 CFR
1501.9(d) and (d)(1) through (d)(8) to Sec. 1502.4(e) and (e)(1)
through (e)(8), respectively. CEQ proposes to delete the reference to
40 CFR 1507.3(f)(3) because CEQ is proposing to remove that provision
from the regulations, as discussed in section II.I.2. CEQ proposes to
revise the language in paragraph (e)(7) for consistency with section
107(c) requiring the NOI to include a request for public comment on
alternatives or impacts and on relevant information, studies, or
analyses, delete the cross reference to Sec. 1502.17 because CEQ
proposes to broaden the language in Sec. 1502.17. Further, this cross
reference would no longer be necessary since CEQ proposes to remove the
exhaustion process in 40 CFR 1500.3, which relies, in part, on this
provision as the first step in that process. Additionally, the purpose
of scoping is to receive input from the public on the proposed action
and alternatives as well as other information relevant to consideration
of the proposed action. CEQ considers the language in this paragraph to
be redundant to the other required information in paragraph (e).
To this list of NOI requirements, CEQ proposes to add paragraph
(e)(9) to require the lead agency to list any cooperating and
participating agencies that have been identified at the time of the
NOI, as well as any information those agencies require to facilitate
their decisions or authorizations related to the EIS. CEQ proposes to
add this requirement to ensure that lead and cooperating agencies are
communicating about any unique statutory or regulatory requirements of
each agency so that the necessary information is included in the
initial NOI and does not require re-issuance of a second NOI by the
cooperating or participating agency. For example, the U.S. Forest
Service's regulations regarding administrative review require the
responsible official to disclose during the NEPA scoping process that a
proposed project or activity or proposed plan, plan amendment, or plan
revision is subject to one of its administrative review regulations. 36
CFR 218.7(a), 219.52(a). When the Forest Service acts as a cooperating
agency and the lead agency does not include the necessary information
in the NOI, the Forest Service then must issue its own NOI, which can
add additional time in the NEPA process.
CEQ also proposes to add paragraph (e)(10) to require that the NOI
include a unique identification number for tracking purposes that would
be carried forward to all other documents related to the action such as
the draft and final EISs and ROD. Identification numbers can help both
the public and agencies track the progress of an EIS for a specific
action as it moves through the NEPA process. CEQ has similarly proposed
to require agencies to use tracking numbers for environmental
assessments in Sec. 1501.5. See section II.C.4.
CEQ proposes to move and edit the second sentence regarding
supplemental notices in 40 CFR 1507.3(f)(3) to paragraph (f), ``Notices
of withdrawal or cancellation,'' to require that an agency publish in
the Federal Register a notice of withdrawal of the NOI or a
supplemental notice to inform the public that it is no longer
considering a proposed action and, therefore, discontinuing preparation
of an EIS. Agencies should publish such notices if they withdraw,
cancel, or otherwise cease the consideration of a proposed action
before completing a final EIS. CEQ proposes this requirement to codify
common agency practice and to increase transparency to the public. Such
a notice does not need to be lengthy, but should clearly reference the
original NOI, name of the project in the original notice, unique
identification number, and who to contact for additional
information.\70\ Finally, CEQ proposes to move 40 CFR 1501.9(g) on NOI
revisions to Sec. 1502.4(g), updating the paragraph references and
changing ``significant'' to ``important'' and ``impacts'' to
``effects,'' which CEQ intends to be a clarifying, non-substantive
edit. These edits would align the text with the proposed changes to
Sec. 1502.9(d)(1)(ii).
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\70\ Examples of NOI Withdrawals: Powell Ranger District; Utah;
Powell Travel Management Project; Withdrawal of Notice of Intent to
Prepare an Environmental Impact Statement, 87 FR 1109 (Jan. 10,
2022); Withdrawal of the Notice of Intent to Prepare an
Environmental Impact Statement for the Carpinteria Shoreline, a
Feasibility Study in the City of Carpinteria, Santa Barbara County,
CA, 86 FR 41028 (July 30, 2021).
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4. Timing (Sec. 1502.5)
CEQ proposes to make three clarifying amendments to Sec. 1502.5.
First, in paragraph (a), CEQ proposes to add ``e.g.,'' in the
parenthetical ``(go/no-go).'' CEQ proposes this amendment in response
to agency feedback during the development of the proposed rule to
clarify that the feasibility analysis and the ``go/no-go'' stage may
not occur at the same point in time and may differ depending on what is
included in the feasibility analysis and how the agency has structured
that analysis. This change would be consistent with the longstanding
practice that agencies have discretion to decide the appropriate time
to begin the NEPA analysis, but also that agencies should integrate the
NEPA process and other planning or authorization processes early. See
Sec. 1501.2(a).
Second, CEQ proposes to add ``complete'' in the first sentence of
paragraph (b) to clarify that agencies must begin preparing an EIS
after receiving a complete application, though agencies can elect to
begin the process earlier if they choose to do so. CEQ also proposes to
add ``together and'' in the second sentence of paragraph (b) to clarify
further that agencies should work ``together and with'' potential
applicants and other entities before receiving the application. Based
on CEQ's experience, early conversations and coordination among Federal
agencies, the applicant, and other interested entities can improve
efficiencies in the NEPA process and ultimately lead to better
environmental outcomes. Additionally, similar to the proposed change to
paragraph (a), this proposed change is consistent with other directions
in the regulations to integrate the NEPA process and other processes
early. See Sec. Sec. 1500.5(h), (i), 1501.2(a).
5. Page Limits (Sec. 1502.7)
CEQ proposes to amend Sec. 1502.7, to align the text with section
107(e) of NEPA, which sets page limits for EISs at 150 pages or 300
pages for proposals of extraordinary complexity, not including
citations or appendices. CEQ proposes to remove the requirement for the
senior agency official of the lead agency to approve longer documents
for consistency with the statute, which does not provide a mechanism to
approve longer documents.
CEQ strongly encourages agencies to prepare concise EISs that are
both comprehensive and understandable to the decision maker and the
public. Agencies should consider establishing within their procedures
mechanisms to do so that will be most effective for their programs and
activities. Such mechanisms might include placing technical analyses in
appendices and summarizing them in plain language in the EIS; making
use of visual aids, which are excluded from the definition of ``page,''
including sample images, maps, drawings, charts, graphs, and tables;
and using insets, colors, and highlights to create visually interesting
ways to draw attention to key information and conclusions. Agencies
should consider making EISs and technical appendices machine readable,
where possible and feasible, to facilitate data sharing and reuse in
future
[[Page 49947]]
analyses. CEQ invites comment on whether CEQ should modify the
regulations to appropriately encourage agencies to do so.
6. Writing; and Draft, Final, and Supplemental Statements (Sec. Sec.
1502.8 and 1502.9)
CEQ proposes minor edits to Sec. 1502.8 to make the text
consistent with modifications proposed in Sec. 1502.12 regarding
visual aids or charts.
CEQ proposes to delete ``as interpreted'' before ``in the
regulations in this subchapter'' in Sec. 1502.9(b), as section II.B.5
explains. CEQ also proposes to clarify that it is the agency preparing
a draft EIS that determines a draft statement requires supplementation
to inform its decision-making process.
In Sec. 1502.9(c), CEQ proposes to clarify that a final EIS should
``consider and respond'' to comments rather than just ``address'' them,
restoring language from the 1978 regulations and aligning the language
with text at Sec. 1503.4(a) regarding consideration of comments. The
2020 rule did not explain the change to ``address,'' \71\ and CEQ is
concerned that it could be read as weakening the standard for
responding to comments within Sec. 1502.9 and in Sec. 1503.4. In
paragraphs (d)(1)(ii) and (d)(4), CEQ proposes to replace the word
``significant'' with ``important'' and ``impacts'' with ``effects''
(except where ``impact'' is used as part of the term FONSI) for
consistency, as discussed in section II.A. In paragraph (d)(1)(ii), CEQ
also proposes to add ``substantial or'' before ``important new
circumstances or information,'' for consistency with its use section
108(1) of NEPA, which confirms that an agency may rely on the analysis
in an existing programmatic environmental document for five years
without having to supplement or reevaluate the analysis, provided no
substantial new circumstances or information exist. CEQ invites comment
on whether it should revise the language in paragraphs (d)(1)(i) and
(d)(1)(ii) to more specifically identify situations where
supplementation is required.
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\71\ See 2020 Final Rule, supra note 36.
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CEQ proposes to redesignate 40 CFR 1502.9(d)(4) as Sec. 1502.9(e),
title it ``Reevaluation,'' making this a standalone paragraph rather
than a paragraph of supplemental EISs to clarify that reevaluation is a
separate tool to document when supplementation is not required. CEQ
proposes to add in paragraph (e) that agencies may ``reevaluate'' an
EIS in part to determine ``that the underlying assumptions of the
analysis remains valid.'' That language is generally consistent with
section 108(2) of NEPA's rule that an agency may rely on programmatic
documents that are more than five years old if it reevaluates the
underlying analysis. However, while section 108(2) requires
reevaluation for programmatic documents more than five years old, CEQ
proposes to leave agencies discretion over whether and when to
reevaluate non-programmatic documents.
7. Recommended Format and Cover (Sec. Sec. 1502.10 and 1502.11)
CEQ proposes to revise the recommended format of an EIS. CEQ
proposes to include the summary of scoping information required by
Sec. 1502.17 and the list of preparers required by Sec. 1502.18 in
appendices, rather than the main body of the EIS. Therefore, CEQ
proposes to remove 40 CFR 1502.10(a)(7) through (9), and add a new
paragraph (a)(7) requiring appendices including the scoping summary and
list of preparers.
CEQ proposes to clarify in Sec. 1502.11(a) that the list of
``responsible agencies'' on an EIS cover are the lead, joint lead, and
any cooperating agencies. Consistent with the proposed change in Sec.
1502.4(e)(10), CEQ proposes to amend paragraph (g) to require the cover
to include the identification number identified in the NOI to make
clear the relationships of documents to one another and help the public
and decision makers easily track the progress of the EIS as it moves
through the NEPA process and to facilitate digitization and analysis.
CEQ proposes to strike the existing requirement in 40 CFR
1502.11(g) to include on the cover of the final EIS the estimated
preparation cost, a change that multiple Federal agencies requested
during development of this proposed rule. The 2020 rule stated that
including estimated total costs would be helpful for tracking such
costs, and that agencies could develop their own methodologies for
tracking EIS preparation costs in their agency NEPA procedures.\72\
However, Federal agency commenters stated that agencies typically do
not estimate total costs, that they are difficult to monitor especially
when project sponsors and contractors are bearing some of the cost,
that the methodology for estimating costs is inconsistent across
agencies, and that providing these estimates would be burdensome. At
least one agency commenter noted that agencies inconsistently
implemented a similar requirement in E.O. 13807, which undermined the
utility of the estimates, that tracking costs added a significant new
burden on staff, and that it was not clear whether tracking such costs
provided useful information for agencies or the public.
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\72\ Id.
---------------------------------------------------------------------------
CEQ does not consider EIS costs to be germane to the purpose of an
EIS. Requiring that they be included on the cover could incorrectly
lead the public and decision makers to believe that those costs relate
to the proposed action addressed in the EIS. In general, the purpose of
the cover is to indicate the subject matter of the document and provide
the public with an agency point of contact, provide a short abstract of
the EIS, and indicate the date by which the public must submit
comments. Further, CEQ is concerned that requiring agencies to
calculate the costs may unnecessarily add time to the EIS preparation
process, particularly where aspects of an environmental review serve
multiple purposes and allocating costs to NEPA compliance and other
obligations may be complicated.
CEQ recognizes the value in gathering information on overall costs,
trends in costs, and approaches that can reduce costs, as this can
provide a full picture of how and whether agencies are effectively
using their resources, including to conduct environmental reviews. Each
agency should track and monitor these costs through their own
procedures and mechanisms and consult with CEQ about any lessons
learned to inform CEQ's ongoing evaluation of the efficiency and
effectiveness of the NEPA process. CEQ does not consider requiring in
the NEPA regulations that agencies publish costs on the cover of EISs
to be the appropriate mechanism to develop that information.
8. Summary (Sec. 1502.12)
CEQ proposes modifications to Sec. 1502.12 to clarify the purpose
of the summary and update what elements agencies should include in the
summary with a goal of creating summaries that are more useful to the
public and agencies. The summary serves to provide the public and
decision makers with a clear, high-level overview of the proposed
action and alternatives, the significant effects, and other critical
information in the EIS.
CEQ proposes a few changes to the second sentence in Sec. 1502.12.
First, CEQ proposes to replace the word ``stress'' with ``include'' in
describing the contents of the summary to clarify that an adequate and
accurate summary may include more than what is listed in Sec. 1502.12.
Next, CEQ proposes to clarify that the summary should summarize
[[Page 49948]]
disputed issues, any issues to be resolved, and key differences among
alternatives. CEQ proposes this change to provide the public and
decision makers with a more complete picture of the disputed issues
rather than focusing on ``areas of'' disputed issues and to facilitate
informed decision making and transparency. These edits are also
consistent with Sec. 1502.14(b), which requires agencies to discuss
alternatives in detail. Summarizing the key differences of alternatives
could enhance the public's and decision makers' understandings of the
relative trade-offs of the alternatives considered in detail.
CEQ also proposes to add language to the second sentence to require
that the summary identify the environmentally preferable alternative or
alternatives. Adding the environmentally preferable alternative to the
summary would enhance the public's and decision makers' understandings
of the alternative or alternatives that will best promote the national
environmental policy as expressed in section 101 of NEPA by providing a
summary of that alternative early on in the document.
CEQ proposes to add a fourth sentence to Sec. 1502.12 to make
summaries easier to read and understand by requiring agencies to write
the summary in plain language and encouraging use of visual aids and
charts. Existing regulatory text already requires agencies to write
environmental documents in plain language as a means to preparing
readable, concise, and informative documents. See, e.g., Sec. Sec.
1500.4 and 1502.8. Agencies commonly use visual aids, such as graphics,
maps, and pictures, throughout their environmental documents.
Finally, similar to other changes proposed regarding page limits,
CEQ proposes to allow agencies flexibility in the length of a summary.
In the existing text, summaries are limited to 15 pages. CEQ proposes
instead to encourage summaries to not exceed 15 pages. Although
summaries should be brief, CEQ acknowledges with this proposed change
that some proposed actions are more complex and may require additional
pages.
9. Purpose and Need; Alternatives Including the Proposed Action
(Sec. Sec. 1502.13 and 1502.14)
CEQ proposes to revise Sec. 1502.13 to align the language with the
text of section 107(d) of NEPA requiring an EIS to include statement
that briefly summarizes the underlying purpose and need for the
proposed agency action.
CEQ proposes revisions to Sec. 1502.14 to promote the rigorous
analysis and consideration of alternatives, consistent with the
longstanding principle that agencies take a ``hard look'' at their
actions. To that end, CEQ proposes to reintroduce much of the 1978 text
to Sec. 1502.14 that the 2020 rule removed and modernize it to ensure
agency decision makers are well-informed. Many commenters on the Phase
1 rule requested CEQ revise this provision to revert to the 1978
language or revise it to ensure agencies fully explore the reasonable
alternatives to their proposed actions.\73\
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\73\ See Phase 1 Response to Comments, supra note 48, at 162.
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CEQ proposes to revise the introductory paragraph of Sec. 1502.14
to reinstate the language from the 1978 regulations that the
alternatives analysis ``is the heart of the environmental impact
statement.'' While the 2020 rule described this clause as ``colloquial
language'' to justify its removal,\74\ CEQ now considers this to be an
integral policy statement necessary to emphasize the importance of the
alternatives analyses to allow decision makers to assess a reasonable
range of possible approaches to the matters before them and notes that
numerous court decisions quoted this language from the 1978 regulations
in stressing the importance of the alternatives analysis. See, e.g.,
Wyoming v. U.S. Dep't of Agric., 661 F.3d 1209, 1243 (10th Cir. 2011).
Numerous commenters on the 2020 rule and the 2022 Phase 1 rule
supported inclusion of this language.\75\
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\74\ 2020 Final Rule, supra note 36, at 43330.
\75\ See, e.g., 2020 Response to Comments, supra note 63, at
274; Phase 1 Response to Comments, supra note 48, at 55.
---------------------------------------------------------------------------
CEQ proposes a clarifying edit in the introductory paragraph,
replacing ``present'' the environmental effects with ``identify'' the
``reasonably foreseeable'' environmental effects consistent with Sec.
1500.2(e) and section 102(2)(C)(i) of NEPA. Finally, in the
introductory paragraph, CEQ proposes to state that the alternatives
analysis should sharply define issues for the decision maker and the
public and provide a clear basis for choice in the options. CEQ
proposes reintroducing this language from the 1978 regulations because
it provides an important policy statement, concisely explaining the end
goals for the alternatives analysis.
CEQ proposes in paragraph (a) to restore the clause that agencies
must ``rigorously explore and objectively'' evaluate reasonable
alternatives at the beginning of the first sentence. CEQ proposes to
reinsert this language because it provides a standard for how agencies
should analyze alternatives. CEQ proposes to add two additional
sentences to paragraph (a). One statement would clarify that agencies
need not consider every conceivable alternative to a proposed action
but rather must consider a reasonable range of alternatives that
fosters informed decision making. CEQ proposes to add this sentence to
replace the statement in the current 40 CFR 1502.14(f) requiring
agencies to limit their consideration to a reasonable number of
alternatives, which CEQ proposes to strike. This proposed language is
consistent with longstanding CEQ guidance \76\ and would reinforce that
the alternative analysis is not boundless; the key is to provide the
decision maker with reasonable options to ensure informed decision
making. To that end, CEQ also proposes in paragraph (a) to clarify that
agencies have the discretion to consider reasonable alternatives not
within their jurisdiction, but NEPA and the CEQ regulations generally
do not require them to do so. Such alternatives may be relevant, for
instance, when agencies are considering program-level decisions \77\ or
anticipate funding for a project not yet authorized by Congress.\78\
CEQ anticipates that such consideration would be a relatively
infrequent occurrence and notes that such alternatives would still need
to be technically and economically feasible and meet the purpose and
need for the proposed action, consistent with the definition of
``reasonable alternatives.'' CEQ considers adding this language to
paragraph (a) to improve the consistency of the regulations with the
``hard look'' principle of NEPA.
---------------------------------------------------------------------------
\76\ Forty Questions, supra note 4.
\77\ See, e.g., Fed. R.R. Admin., Final Program Environmental
Impact Report/Environmental Impact Statement (EIR/EIS) for the
proposed California High-Speed Train System (2005), https://hsr.ca.gov/programs/environmental-planning/program-eir-eis-documents-for-the-statewide-high-speed-rail-system-tier-1/final-program-environmental-impact-report-environmental-impact-statement-eir-eis-for-the-proposed-california-high-speed-train-system-2005/.
\78\ See, e.g., U.S. Army Corps of Eng'rs, Final Environmental
Impact Statement for Savannah Harbor Expansion Project (rev. July
2012), https://www.sas.usace.army.mil/Missions/Civil-Works/Savannah-Harbor-Expansion/Final-Environmental-Impact-Statement/.
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Some commenters--both on the 2020 rule and the Phase 1 rule--
supported the removal of the 1978 regulations' requirement to consider
alternatives outside the jurisdiction of the lead agency, contending
that such alternatives are inherently infeasible.\79\ However, many
commenters on the
[[Page 49949]]
Phase 1 rule supported the reintroduction of this language.\80\ CEQ's
proposal is intended to strike a balance; the proposal would not
require agencies to consider alternatives outside their jurisdiction or
preclude agencies from doing so. Further, it would retain the direction
that the agency need only consider reasonable alternatives.
---------------------------------------------------------------------------
\79\ 2020 Final Rule, supra note 36, at 43330-31; 2020 Response
to Comments, supra note 63, at 45, 57.
\80\ Phase 1 Response to Comments, supra note 48, at 162.
---------------------------------------------------------------------------
CEQ proposes to replace paragraph (f) with a requirement to
identify the environmentally preferable alternative. In addition to the
proposed definition of environmentally preferable alternative in Sec.
1508.1(l), this provision would describe elements that the
environmentally preferable alternative may generally include. The list
uses ``or'' to make clear that the environmentally preferable
alternative need not include each delineated element and recognizes
that identifying the environmentally preferable alternative may entail
making tradeoffs in some cases. This approach would provide agencies
flexibility to rely on their discretion and expertise to strike an
appropriate balance in identifying the environmentally preferable
alternative. Finally, paragraph (f) would clarify that the
environmentally preferable alternative may be the proposed action, no
action alternative, or a reasonable alternative. Agencies may identify
more than one environmentally preferable alternative as they deem
appropriate.
The CEQ regulations, at 40 CFR 1505.2, always have required
agencies to identify the environmentally preferable alternative in a
ROD. CEQ's proposal would provide more context for what this
alternative entails, improving consistency and furthering NEPA's goal
of ensuring that agencies make informed decisions regarding actions
that impact the environment. Additionally, requiring that the draft and
final EIS identify the environmentally preferable alternative would
provide more transparency to the public as to the agency's decision-
making process at an earlier stage, as well as an opportunity to
comment on it before the agency makes its decision.
10. Affected Environment (Sec. 1502.15)
CEQ proposes revisions to Sec. 1502.15 to emphasize the use of
high-quality information, including best available science and data;
clarify considerations of reasonably foreseeable environmental trends;
and emphasize efficiency and concise documents. CEQ also proposes to
divide Sec. 1502.15 into paragraphs (a), (b), and (c) to improve
readability.
CEQ proposes to discuss data in a new paragraph (b), which would
encourage agencies to use high-quality information, including best
available science and data, in recognition that these should inform all
agency decisions. This paragraph would articulate clearly NEPA's
statutory mandate that science inform agencies' decisions as part of a
systematic, interdisciplinary approach. See 42 U.S.C. 4332(2)(A). In
addition, the paragraph would clarify that this information should
inform agencies' consideration of ``reasonably foreseeable
environmental trends,'' noting explicitly that this includes
anticipated climate-related changes to the environment.
CEQ proposes this language to clarify that agencies should consider
reasonably foreseeable future climate conditions on affected areas
rather than merely describing general climate change trends at the
global or national level. In line with scientific projections, accurate
baseline assessment of the affected environment over an action's
lifetime should incorporate forward-looking climate projections rather
than relying on historical data alone. CEQ also proposes language in
paragraph (b) to connect the description of baseline environmental
conditions and reasonably foreseeable trends to an agency's analysis of
environmental consequences and mitigation measures.
CEQ proposes to move the second and third through fifth sentences
of 40 CFR 1502.15 to new paragraph (c). CEQ also proposes minor
revisions to the relocated language and a new sentence to provide that
agencies may combine the affected environment and environmental
consequences sections in an EIS, which should be no longer than
necessary to understand the relevant affected environment and the
effects of the alternatives.
11. Environmental Consequences (Sec. 1502.16)
CEQ proposes several changes to Sec. 1502.16 to clarify priorities
and methods of analysis and make updates to ensure that agencies
integrate climate change and environmental justice considerations into
the analysis of environmental effects.
CEQ proposes in paragraph (a)(1) to modify the sentence requiring
agencies to base the comparison of the proposed action and reasonable
alternatives on the discussion of effects to add ``reasonably
foreseeable'' before ``environmental effects'' for consistency with the
text of section 102(2)(C)(i) of NEPA and to focus the comparison of the
proposed action and reasonable alternatives on the ``significant or
important effects'' to emphasize that agencies' analyses of effects
should be proportional to the significance of the effects. The FRA's
amendments to NEPA codified the longstanding principle from the 1978
regulations and long recognized by the courts that effects must be
reasonably foreseeable. Consistent with this provision, agencies should
identify the effects they deem significant whenever possible to inform
the public and decision makers. Finally, CEQ proposes adding a new
sentence to the end of paragraph (a)(1) clarifying the proper role of
the no action alternative to ensure that the comparative analysis is
not distorted by selecting a different alternative (for example, the
preferred alternative) as the baseline against which all other
alternatives are measured. In formulating the no action alternative,
agencies should make reasonable assumptions. CEQ invites comment on
whether it should include additional direction or guidance regarding
the no action alternative in the final rule.
Next, CEQ proposes to add ``reasonably foreseeable'' in paragraph
(a)(1) before ``environmental effects'' for consistency with section
102(2)(C)(i) of NEPA and in paragraph (a)(2) before ``adverse
environmental effects'' for consistency with section 102(2)(C)(ii) of
NEPA. CEQ proposes to add a new paragraph (a)(3) requiring an analysis
of effects of the no action alternative, including any adverse
environmental effects consistent with section 102(2)(C)(iii) of NEPA,
which requires an analysis of any negative environmental impacts of not
implementing the proposed action in the case of a no action
alternative. CEQ interprets ``negative'' to have the same meaning as
the term ``adverse.'' For example, an environmental restoration project
that helps mitigate the effects of climate change and restores habitat
could have adverse effects if it were not implemented or the
construction of a commuter transit line could have adverse effects from
persistent traffic congestion, air pollution, and related effects to
environmental justice communities if it were not implemented. To
accommodate this additional paragraph, CEQ proposes to redesignate 40
CFR 1502.15(a)(3) through (a)(5) as paragraphs (a)(4) through (a)(6)
accordingly. In paragraph (a)(5), CEQ proposes to insert ``Federal''
before ``resources'' for consistency with section 102(2)(C)(v) of NEPA.
Then, CEQ proposes to add reference to two specific elements and
revise the reference to an existing element that agencies must include
in the analysis of environmental consequences, all related
[[Page 49950]]
to climate change. First, CEQ proposes to revise paragraph (a)(6) to
broaden it from land use plans to plans generally and clarify that this
element includes plans and policies addressing climate change. Second,
CEQ proposes to add a new paragraph (a)(7) to clarify that the
discussion of environmental consequences in an EIS must include any
reasonably foreseeable climate change-related effects, including
effects of climate change on the proposed action and alternatives
(which may in turn alter the effects of the proposed action and
alternatives). CEQ would then redesignate the paragraphs at 40 CFR
1502.16(a)(6) and(a)(7) as paragraphs (a)(8) and (a)(9), respectively.
Third, CEQ proposes to add a new paragraph (a)(10), which would require
agencies to address any risk reduction, resiliency, or adaptation
measures included in the proposed action and alternatives. This would
ensure agencies consider resiliency to the risks associated with a
changing climate, including wildfire risk, extreme heat and other
extreme weather events, drought, flood risk, loss of historic and
cultural resources, and food scarcity. This analysis would further
NEPA's mandate that agencies use ``the environmental design arts'' in
decision making and consider the relationship between the ``uses'' of
the environment ``and the maintenance and enhancement of long-term
productivity.'' 42 U.S.C. 4332(2)(A) and (2)(C)(iv). It also would help
achieve NEPA's goals of protecting the environment across generations,
preserving important cultural and other resources, and attaining ``the
widest range of beneficial uses of the environment without degradation,
risk to health or safety, or other undesirable and unintended
consequences.'' 42 U.S.C. 4331(b)(3).
These proposed revisions would clarify that agencies must address
both effects of the proposed action and alternatives on climate change,
and the resiliency of the proposed action and alternatives in light of
climate change.\81\ These proposed revisions are consistent with what
NEPA has long required: using science to make informed decisions. This
proposal is also consistent with NEPA's specific requirement to study
the effects of the Federal action because effects on the Federal action
due to climate change may in turn alter the effects that the project
has on its environment. These proposed revisions also align well with
the definition of effects to encompass reasonably foreseeable indirect
and cumulative effects, which are integral to NEPA analyses.
---------------------------------------------------------------------------
\81\ Such analysis is not new and CEQ has issued guidance
consistent with these proposed provisions for nearly a decade. See
generally CEQ, Final Guidance for Federal Departments and Agencies
on Consideration of Greenhouse Gas Emissions and the Effects of
Climate Change in National Environmental Policy Act Reviews, 81 FR
51866 (Aug. 8, 2016), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/nepa_final_ghg_guidance.pdf, and 2023 GHG Guidance, supra
note 9.
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To accommodate the new paragraph (a)(10), CEQ proposes to
redesignate 40 CFR 1502.16(a)(8) through (a)(10) as paragraphs (a)(11)
through (a)(13), respectively. Finally, CEQ proposes to add paragraph
(a)(14) to provide that agencies must discuss the potential for
disproportionate and adverse health and environmental effects on
communities with environmental justice concerns. The addition of this
paragraph would clarify that EISs generally must include an
environmental justice analysis to ensure that agency actions do not
unintentionally impose disproportionate and adverse effects on these
communities.
Finally, CEQ proposes to strike ``and give appropriate
consideration to'' from paragraph (b). CEQ proposes this revision to
remove unnecessary language that could be read to require the decision
maker to make consideration of such effects a higher priority than
other effects listed in this section.
12. Summary of Scoping Information (Sec. 1502.17)
CEQ proposes to revise Sec. 1502.17 and retitle it ``Summary of
scoping information'' to more accurately reflect the proposed content
of this section and align it with the common practice of what many
agencies produce via scoping reports. CEQ proposes other changes in
this section to simplify and remove unnecessary or redundant text and
clarify requirements.
CEQ proposes to revise paragraph (a) to require agencies to include
a summary of the information they receive from commenters during the
scoping process in draft EISs consistent with the proposed revisions to
Sec. Sec. 1500.3, 1501.9, and 1502.4. CEQ proposes to replace ``State,
Tribal, and local governments and other public commenters'' with
``commenters'' because this phrase is all encompassing. CEQ also
proposes to clarify that a draft EIS should include a summary of
information, including alternative and analyses, that commenters
submitted during scoping. This change provides agencies flexibility to
develop a broader summary of information received during scoping. While
agencies should still summarize alternatives and analyses, this
provision would not require them to provide a specific summary of every
individual alternative, piece of information, or analysis commenters
submit during scoping.
CEQ proposes to redesignate paragraph (a)(1) as paragraph (b) and
modify it to clarify that agencies can either append to the draft EIS
or otherwise make publicly available comments received during scoping.
This modification clarifies that the requirements of this paragraph can
be met through means other than an appendix, such as a scoping report,
which is common practice for some Federal agencies. CEQ proposes a
conforming edit in paragraph (d) of Sec. 1502.19, ``Appendix,'' for
consistency with this language.
Finally, CEQ proposes to delete the current 40 CFR 1502.17(a)(2)
and (b) because the requirements of these paragraphs are redundant to
the requirements in part 1503 for Federal agencies to invite comment on
draft EISs in their entirety and review and respond to public comments.
13. Incomplete or Unavailable Information (Sec. 1502.21)
CEQ proposes one revision to paragraph (b) of Sec. 1502.21 to
strike ``but available,'' which addresses situations where an agency
encounters incomplete or unavailable information during its evaluation
of a proposed action's reasonably foreseeable significant adverse
effects. CEQ proposes to strike ``but available,'' a phrase added by
the 2020 rule, to clarify that agencies must obtain information
relevant to reasonably foreseeable significant adverse effects that is
essential to a reasoned choice between alternatives where the overall
costs of doing so are not unreasonable, and the means of obtaining that
information are known. This qualifier, which CEQ proposes to remove,
could be read to significantly narrow agencies' obligations to obtain
additional information even when it is easily attainable and the costs
are reasonable. CEQ has reconsidered this change and now considers it
vital to the NEPA process for agencies to undertake studies and
analyses where necessary rather than relying solely on available
information where the costs of obtaining the relevant information are
not unreasonable.
Agency feedback received during the development of this proposed
rule supports this change. Agency NEPA experts indicated that this
qualifier could be read to say that agencies do not need to collect
additional information that could and should otherwise inform the
public and decision makers. Removing this phrase also would be
[[Page 49951]]
consistent with other provisions in the regulations emphasizing the
importance of relying on high-quality and accurate information in
implementing NEPA. See, e.g., Sec. 1500.1(b).
14. Methodology and Scientific Accuracy (Sec. 1502.23)
CEQ proposes changes to Sec. 1502.23 to promote use of high-
quality information, such as best available science and data; require
agencies to explain assumptions; and, where appropriate, incorporate
projections, including climate change-related projections, in the
evaluation of reasonably foreseeable effects. CEQ proposes to separate
existing 40 CFR 1502.23 into paragraphs (a) and (b), with some
modification, and add a new paragraph (c). The proposed changes to this
section would provide additional guidance on how Federal agencies can
meet NEPA's statutory requirement to ``study, develop, and describe
appropriate alternatives to recommended courses of action in any
proposal'' as set forth in section 102(2)(H) of NEPA.
In paragraph (a), CEQ proposes to reinstate the term high-quality
information, as used in the 1978 regulations, and clarify that such
information includes best available science and reliable data, models,
and resources. Also, CEQ proposes clarifying edits, including moving
the word ``existing'' in the second sentence of paragraph (a) to the
end of the sentence and adding reference to sources and materials. CEQ
proposes these changes to clarify that while agencies must use reliable
data and resources, which can include existing data and resources, they
are not limited to use of existing materials. Public commenters on the
2020 rule and Federal agency experts who provided input on this
proposed rule raised concerns that the 2020 language could limit
agencies to ``existing'' resources and preclude agencies from
undertaking site surveys, conducting investigation, and performing
other forms of data collection, which have long been standard practice
when analyzing an action's potential environmental effects and may be
necessary for agencies to understand particular effects.
For example, in the context of analyzing historical, cultural, or
biological effects, survey work is often revisited and reassessed
periodically, and an agency should not be required to rely on outdated
data. While there are numerous reliable data sources for a variety of
resources analyzed in NEPA documents, and the CEQ regulations encourage
the use of existing information wherever possible, see Sec. 1501.12,
agencies should be permitted to exercise their good judgment in
determining when new data and analyses are necessary. Indigenous
Knowledge also can be a source of high-quality information.
CEQ proposes to add a new sentence at the end of paragraph (a)
encouraging agencies to explain their assumptions and any limitations
of their models and methods. CEQ proposes this addition to support this
section's overall purpose of ensuring the integrity of the discussions
and analyses in environmental documents. Additionally, this would
codify typical agency practice to explain relevant assumptions or
limitations of the information in environmental documents.
CEQ proposes to strike the statement that agencies are not required
to undertake new research to inform their analyses consistent with the
changes to paragraph (a). As noted in this section, it is common
practice for agencies, when necessary or appropriate, to engage in
additional research and create new data based on an action's particular
circumstances (such as the affected environment) when analyzing
proposed actions under NEPA. Further, by simply striking the sentence
added in 2020, CEQ is not proposing to add an across-the-board
requirement that agencies must undertake new research in all cases.
Finally, CEQ proposes to add a new paragraph (c), which would
require agencies to use projections when evaluating reasonably
foreseeable effects, including climate change-related effects, where
appropriate. CEQ also proposes to clarify that such projections may
employ mathematical or other models that project a range of possible
future outcomes, so long as agencies disclose the relevant assumptions
or limitations. This addition is consistent with the amendments
proposed in paragraphs (a) and (b). Based on existing agency practice
and academic literature on climate science, agencies can and do use
reliable projections to analyze reasonably foreseeable climate change-
related effects. Where available and appropriate, agencies also can use
or rely on projections that are scaled to a more targeted and localized
geographic scope, such as land use projections, air emissions, and
modeling, or to evaluate climate effects experienced locally in
relation to the proposed action. When doing so, agencies should explain
the basis for relying on those projections and their underlying
assumptions. Climate projections can vary based on different factors
and assumptions such as geography, location, and existing and future
GHG emissions. For that reason, agencies can use models that analyze a
range of possible future outcomes, but agencies must disclose the
underlying relevant assumptions or limitations of those models.
CEQ expects that modeling techniques will continue to improve in
the future, resulting in more precise climate projections. To be
consistent with proposed changes with paragraph (a) in this section, as
climate modeling techniques advance, agencies should rely on high-
quality information when evaluating reasonably foreseeable climate
change-related effects.
E. Proposed Revisions To Update Part 1503, Commenting on Environmental
Impact Statements
CEQ is proposing substantive revisions to all sections of part
1503, except Sec. 1503.2, Duty to comment. CEQ invites comments on
whether it should make changes to this section or other changes to part
1503.
1. Inviting Comments and Requesting Information and Analyses (Sec.
1503.1)
CEQ proposes to delete 40 CFR 1503.1(a)(3) requiring agencies to
invite comment specifically on the submitted alternatives, information,
and analyses and the summary thereof for consistency with proposed
changes to Sec. Sec. 1500.3 and 1502.17. This requirement would be
unnecessary with the removal of the exhaustion provision. It also is
redundant as Federal agencies invite comment on all sections of draft
EISs and therefore need not invite comment on one specific section of
an EIS.
2. Specificity of Comments and Information (Sec. 1503.3)
CEQ proposes edits to Sec. 1503.3 to clarify the expected level of
detail in comments submitted by the public and other agencies to
facilitate their consideration by agencies in the decision-making
process. The proposal would remove or otherwise modify provisions that
could inappropriately restrict public comments and place unnecessary
burden on public commenters.
CEQ proposes to remove language from Sec. 1503.3(a) added in the
2020 rule that requires comments to be as detailed as necessary to
meaningfully participate and fully inform the agency of the commenter's
position because this requirement could lead commenters to provide
unnecessarily long comments that will impede efficiency. Paragraph (a)
already requires comments to be ``as specific as possible,'' and the
language CEQ proposes to remove could be read
[[Page 49952]]
to require commenters to provide detailed information that is not
pertinent to the NEPA analysis about the commenter's position on the
proposed action, the project proponent, the Federal agency, or other
issues. For example, the text could be read to require a commenter to
provide a detailed explanation of a moral objection to a proposed
action or a personal interest in it if those inform the commenter's
position on the project. The text also could imply that commenters must
either be an expert on the subject matter or hire an expert to provide
the necessary level of detail. The current text could be read to imply
that commenters are under an obligation to collect or produce
information necessary for agencies to fully evaluate issues raised in
comments even if the commenters do not possess that information or the
skills necessary to produce it. Some commenters on the 2020 rule raised
this issue, expressing concerns that this language could be read to
require the general public to demonstrate a level of sophistication and
technical expertise not required historically under the CEQ regulations
or consistent with the NEPA statute.\82\ Commenters also expressed
concern that the requirement would discourage or preclude laypersons or
communities with environmental justice concerns from commenting.\83\
Other commenters on the 2020 rule expressed concern that the changes
would shift the responsibility of analysis from the agencies to the
general public.\84\ Finally, CEQ proposes to remove this language
because the requirements that comments provide as much detail as
necessary to ``meaningfully'' participate and ``fully inform'' the
agency are vague and put the burden on the commenter to anticipate the
appropriate level of detail to meet those standards.
---------------------------------------------------------------------------
\82\ 2020 Response to Comments, supra note 63, at 326-27.
\83\ Id. at 327.
\84\ Id. at 328.
---------------------------------------------------------------------------
CEQ also proposes to delete from paragraph (a) language describing
the types of impacts that a comment should cover, including the
reference to economic and employment impacts. CEQ proposes this
deletion because this language imposes an inappropriate burden on
commenters by indicating that comments need to explain why an issue
matters for economic and employment purposes. NEPA requires agencies to
analyze the potential effects on the human environment and does not
require that these effects be specified in economic terms or related
specifically to employment considerations. Therefore, it is
inappropriate to single out these considerations for special treatment
and unduly burdensome to expect commenters to address economic and
employment impacts. The proposed revision would not have the effect of
limiting commenters from addressing these issues but would avoid the
implication that members of the public are welcome to comment only if
they address those issues. CEQ proposes to delete the reference to
``other impacts affecting the quality of the human environment''
because it is unnecessary and duplicative of ``consideration of
potential effects and alternatives.''
Finally, in paragraph (a), CEQ proposes changes to the last
sentence to clarify that, only where possible, the public should
include citations or proposed changes to the EIS or describe the data,
sources, or methodologies that support the proposed changes in their
comments. While such information is helpful to the agency whenever it
is readily available, CEQ has concerns that this could be construed to
place an unreasonable burden on commenters.
CEQ proposes to strike 40 CFR 1503.3(b) and redesignate 40 CFR
1503.3(c) through (d) as Sec. 1503.3(b) and (c). CEQ proposes the
deletion of paragraph (b) for consistency with proposed changes to
Sec. 1500.3's exhaustion requirement and corresponding changes to
Sec. 1502.17. The paragraph also is unrelated to the subject addressed
in Sec. 1503.3, which addresses the specificity of comments, rather
than when commenters should file their comments. Further, agencies have
long had the discretion to consider special or unique circumstances
that may warrant consideration of comments outside those time periods.
CEQ proposes to strike ``site-specific'' in paragraph (c) to clarify
that cooperating agencies must identify additional information needed
to address significant effects generally. This proposed change would
enhance efficiency because it would ensure that cooperating agencies
have the information they need to fully comment on EISs averting
potential delay in the environmental review process.
Finally, CEQ proposes in paragraph (d) to strike the requirement
for cooperating agencies to cite their statutory authority for
recommending mitigation. This requirement is unnecessary since, at this
stage, those agencies with jurisdiction by law have already established
their legal authority to participate as cooperating agencies. CEQ also
proposes in paragraph (d) to replace the reference to ``permit,
license, or related requirements'' with ``authorizations'' because the
definition of ``authorization'' in Sec. 1508.1(c) is inclusive of
those terms.
3. Response to Comments (Sec. 1503.4)
CEQ proposes to revise paragraph (a) to clarify that agencies must
respond to comments but may do so either individually, in groups, or in
some combination thereof. The current use of ``may,'' which the 2020
regulations changed from ``shall,'' creates ambiguity that could be
read to mean that agencies have discretion in whether to respond to
comments at all, not just the way they respond, i.e., individually or
in groups. Some comments on the 2020 proposed rule construed the change
to ``may'' as weakening the longstanding requirement to respond to
comments. The proposed change removes any ambiguity created by
revisions to the paragraph in the 2020 regulations and is consistent
with the longstanding requirement and expectation for agencies to
respond to comments received on an EIS while also clarifying that
agencies have discretion on how to respond to comments to promote the
efficiency of the NEPA process.
In paragraph (c), CEQ proposes changes to clarify that when an
agency uses an errata sheet, the agency must publish the entire final
EIS, which would include the errata sheet, the draft EIS, and the
comments with their responses. CEQ proposes these edits to reflect the
typical Federal agency practice and to reflect the current requirement
for electronic submission of EISs rather than the old practice of
printing EISs for distribution.
F. Proposed Revisions To Update Part 1504, Pre-Decisional Referrals to
the Council of Proposed Federal Actions Determined To Be
Environmentally Unsatisfactory
1. Purpose (Sec. 1504.1)
CEQ proposes in Sec. 1504.1(a) to add language encouraging
agencies to engage early with each other to resolve interagency
disagreements concerning proposed major Federal actions before such
disputes are referred to CEQ. CEQ also proposes to add language
clarifying that part 1504 establishes procedures for agencies to submit
requests to CEQ for informal dispute resolution, expanding the purpose
to reflect changes proposed in Sec. Sec. 1504.2 and described in
section II.F.2. This proposal is consistent with CEQ's ongoing role in
promoting the use of environmental collaboration and conflict
resolution,\85\ and serving as a
[[Page 49953]]
convener and informal mediator for interagency disputes. CEQ strongly
encourages agencies to resolve disputes informally and as early as
possible so that referrals under part 1504 are used only as a last
resort. Early resolution of disputes is essential to ensuring an
efficient and effective environmental review process.
---------------------------------------------------------------------------
\85\ See OMB & CEQ, Memorandum on Environmental Collaboration
and Conflict Resolution (Sept. 7, 2012), https://www.energy.gov/sites/default/files/OMB_CEQ_Env_Collab_Conflict_Resolution_20120907-2012.pdf; OMB & CEQ, Memorandum on Environmental Conflict Resolution
(Nov. 28, 2005), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/OMB_CEQ_Joint_Statement.pdf.
---------------------------------------------------------------------------
In paragraph (b), which addresses EPA's role pursuant to section
309 of the Clean Air Act, CEQ proposes to strike the parenthetical
providing the term ``environmental referrals,'' as this term is not
used elsewhere in part 1504. Further, CEQ notes that EPA's section 309
authority is distinct from the ability of an agency to make a referral
pursuant to this part. Finally, CEQ proposes to revise the second
sentence in paragraph (c) to eliminate the passive voice to improve
clarity.
2. Early Dispute Resolution (Sec. 1504.2)
As discussed further in section II.F.3, CEQ proposes to move the
provisions in existing 40 CFR 1504.2 to Sec. 1504.3(a) to repurpose
Sec. 1504.2 for a new section on early dispute resolution. CEQ
proposes to add this section to codify the current practice of agencies
to engage with one another and enlist CEQ to help resolve interagency
disputes. The added text would codify CEQ's role in convening
discussions, mediating issues, and recommending resolutions. While the
proposed provisions in Sec. 1504.2 are non-binding, they would serve
to encourage agencies to use this informal process to resolve
interagency disputes early in the process and provide transparency to
the public that this process occurs.
Proposed paragraph (a) would encourage agencies to engage in
interagency coordination and collaboration within planning and
decision-making processes and to identify and resolve interagency
disputes. Further, paragraph (a) would encourage agencies to elevate
issues to appropriate agency officials or to CEQ in a timely manner
that is consistent with the schedules for the proposed action
established under Sec. 1501.10.
Paragraph (b) would allow a Federal agency to request that CEQ
engage in informal dispute resolution. When making such a request to
CEQ, the agency must provide CEQ with a summary of the proposed action,
information on the disputed issues, and agency points of contact. CEQ
proposes this provision to codify the longstanding practice of CEQ
helping to mediate and resolve interagency disputes outside of and well
before the formal referral process (Sec. 1504.3) and to provide
additional direction to agencies on what information CEQ needs to
effectively mediate.
Paragraph (b) would provide CEQ with several options to respond to
a request for informal dispute resolution, including requesting
additional information, convening discussions, and making
recommendations, as well as the option to decline the request.
3. Criteria and Procedure for Referrals and Response (Sec. 1504.3)
As noted in section II.F.2, CEQ proposes to move the criteria for
referral currently set forth in 40 CFR 1504.2 to a new Sec. 1504.3(a)
and redesignate 40 CFR 1504.3(a) through (h) as Sec. 1504.5(b) through
(i), respectively. As a result of this consolidation, CEQ would revise
the title of Sec. 1504.3 to ``Criteria and procedure for referrals and
response.'' The criteria and procedures for agencies to make a referral
apply to agencies that make a referral under the NEPA regulations and
do not apply to EPA when exercising its referral authority under
section 309 of the Clean Air Act (42 U.S.C. 7609).
G. Proposed Revisions to NEPA and Agency Decision Making (Part 1505)
1. Record of Decision in Cases Requiring Environmental Impact
Statements (Sec. 1505.2)
CEQ proposes modifications in Sec. 1505.2 to align this section
with other proposed changes to the regulations and clarify the
alternatives agencies must identify in RODs. CEQ also proposes to
modify the provision on mitigation.
As discussed further in this section, CEQ proposes to strike 40 CFR
1505.2(b), make 40 CFR 1505.2(a) an undesignated introductory paragraph
in Sec. 1505.2, and redesignate 40 CFR 1505.2(a)(1) through (3) as
Sec. 1505.2(a) through (c), respectively. In Sec. 1505.2(b), CEQ
proposes to restructure the first two sentences to improve readability
and clarify that agencies must identify one or more environmentally
preferable alternatives in the ROD, consistent with proposed changes to
Sec. 1502.14(f) requiring agencies to identify them in the EIS and
Sec. 1508.1(l), defining ``environmentally preferable alternative.''
Further, in the second sentence of paragraph (b), CEQ proposes to add
``environmental'' to the list of relevant factors upon which an agency
may base discussion of preferences among alternatives. In paragraph
(c), CEQ proposes to change ``avoid or minimize'' to ``mitigate'' in
the first sentence for consistency with the remainder of the paragraph.
CEQ also proposes to clarify that any mitigation must be enforceable,
such as through permit conditions or grant agreements, if an agency
includes it as a component of a proposed action and relies on its
implementation to analyze the action's reasonably foreseeable
environmental effects. Additionally, CEQ proposes to require agencies
to identify the authority for enforceable mitigation, and adopt a
mitigation and compliance plan consistent with Sec. 1505.3(c).
CEQ proposes to strike 40 CFR 1505.2(b), which requires a decision
maker to certify in the ROD that the agency has considered all of the
alternatives, information, and analyses submitted under 40 CFR
1502.17(b) and states that such certification is entitled to a
presumption that the agency has considered such information in the EIS.
CEQ proposes to strike 40 CFR 1505.2(b) because it is redundant--the
discussion in the ROD and the decision maker's signature on such
document has long served to verify the agency has considered the EIS's
analysis of the proposed action, alternatives, and effects, as well as
the public comments received. Additionally, while CEQ agrees that
agencies are entitled to a presumption of regularity under the tenets
of generally applicable administrative law, this presumption does not
arise from NEPA, and therefore, CEQ considers it inappropriate to
address in the NEPA regulations.
Finally, CEQ proposes to strike 40 CFR 1505.2(b) consistent with
the proposal to remove the exhaustion provision in 40 CFR 1500.3, as
discussed in section II.B.2. As CEQ discussed in that section, CEQ now
considers it more appropriately the purview of the courts to make
determinations regarding exhaustion. The certification requirement
would no longer be necessary since it was intended to trigger the
exhaustion provision in judicial review.
2. Implementing the Decision (Sec. 1505.3)
CEQ proposes revisions to Sec. 1505.3 to add provisions for
mitigation and related monitoring and compliance plans. To accommodate
the proposed changes, CEQ proposes to designate the undesignated
introductory paragraph of 40 CFR 1505.3 as paragraph (a) and
redesignate 40 CFR 1505.3(a) and (b) as Sec. 1505.3(a)(1) and (a)(2),
respectively.
CEQ proposes to add new Sec. 1505.3(b) to encourage lead and
cooperating agencies to incorporate, where
[[Page 49954]]
appropriate, mitigation measures addressing a proposed action's
significant adverse human health and environmental effects that
disproportionately and adversely affect communities with environmental
justice concerns. This addition would highlight the importance of
considering environmental justice and addressing disproportionate
effects through the NEPA process and the associated decision. CEQ
proposes this addition based on public and agency feedback received
during development of this proposed rule requesting that the
regulations address mitigation of disproportionate effects.
Additionally, this proposed change would encourage agencies to
incorporate mitigation measures to address disproportionate burdens on
communities with environmental justice concerns.
CEQ proposes to strike the text in paragraph (c) regarding
mitigation and strike existing 40 CFR 1505.3(d) regarding publication
of monitoring, replacing them with the new language in Sec. 1505.3(c)
regarding the contents of a monitoring and compliance plan. A revised
paragraph (c) would require agencies to prepare a monitoring and
compliance plan when the agency relies on and commits to mitigation in
a ROD, FONSI, or separate document, which could be issued after the
decision. This provision would require a plan for any mitigation relied
upon and adopted as the basis for analyzing the reasonably foreseeable
effects of a proposed action, not just mitigation to address
significant effects. CEQ views this plan as necessary for an agency to
conclude that it is reasonably foreseeable that a mitigation measure
will be implemented. Further, the plan is necessary for the agency to
conclude that the effects of the action without the mitigation measure
are not reasonably foreseeable and, therefore, do not need to be
analyzed and disclosed. CEQ does not propose to require a monitoring
and compliance plan where an agency analyzes and discloses the effects
of the action without the mitigation measure. In that circumstance, the
agency would not rely on the mitigation measure as the basis for
identifying reasonably foreseeable effects.
New paragraphs (c)(1) and (c)(1)(i) through (c)(1)(vi) would
describe the contents of a monitoring and compliance plan and provide
agencies flexibility to tailor plans to the complexity of the
mitigation that the agency has incorporated into a ROD, FONSI, or other
documents. Contents would include a description of the mitigation
measures; the parties responsible for monitoring and implementation;
how the information will be made publicly available, as appropriate;
the timeframe for the mitigation; the standards for compliance; and how
the mitigation will be funded. Agencies may tailor monitoring and
compliance plans to the particular action, but they should contain
sufficient detail to inform the participating and cooperating agencies
and the public about relevant considerations, such as the magnitude of
the environmental effects that would be subject to mitigation, the
degree to which the mitigation represents an innovative approach, the
degree of uncertainty about the efficacy of the mitigation, and other
relevant facts that support a determination that the mitigation will be
effective. Where a proposed action involves more than one agency, the
lead and cooperating agencies should collaboratively develop a
monitoring and compliance plan that clearly defines agency roles and
avoids duplication of effort.
Requiring agencies to prepare a monitoring and compliance plan for
mitigation relied upon in a decision is intended to address concerns
that mitigation measures included in agency decisions are not always
carried out or monitored for effectiveness. If it is reasonably
foreseeable that a mitigation measure will not be effective, then the
agency could not appropriately rely on the mitigation measure in
determining that an effect is not significant. A monitoring and
compliance plan would address this concern and support an agency
relying on mitigation for purposes of accurately assessing the
environmental effects of a proposed action, and, in some circumstances,
concluding that a FONSI is appropriate.
A new paragraph (c)(2) would state that any new information
developed through the monitoring and compliance plan would not require
an agency to supplement their environmental documents solely because of
this new information. This provision is intended to clarify that the
existence of a monitoring and compliance plan by itself would not mean
that the action to which it relates is an ongoing action if it would
otherwise be considered completed; however, if an action remains to
occur notwithstanding the monitoring and compliance plan, the agency
may need to supplement its analysis in light of new information if the
criteria for supplementation in Sec. 1502.9(d) are met.
The proposed changes to Sec. 1505.3 would be consistent with
proposed revisions to 40 CFR 1505.2(c), which direct agencies to adopt
and summarize a monitoring and enforcement program for any enforceable
mitigation requirements or commitments for a ROD, and changes to Sec.
1501.6(a) to clarify the use of mitigated FONSIs. The changes also
would provide more consistency in the content of monitoring and
compliance plans, increase transparency in the disclosure of mitigation
measures, and provide the public and decision makers with relevant
information about mitigation measures and the process to comply with
them.
H. Proposed Revisions to Other Requirements of NEPA (Part 1506)
CEQ proposes multiple revisions to part 1506, as described in this
section. As noted in section II.C.7, CEQ proposes to move 40 CFR
1506.6, ``Public involvement,'' to proposed Sec. 1501.9, ``Public and
governmental engagement.'' CEQ is not proposing changes to Sec.
1506.2, Elimination of duplication with State, Tribal, and local
procedures; Sec. 1506.4, Combining documents; or Sec. 1506.8,
Proposals for legislation. CEQ invites comment on whether it should
make changes to these sections or other changes to part 1506.
1. Limitations on Actions During NEPA Process (Sec. 1506.1)
CEQ proposes to edit Sec. 1506.1(b) to provide further clarity on
the limitations on actions during the NEPA process to ensure that
agencies and applicants do not take actions that will adversely affect
the environment or limit the choice of reasonable alternatives until an
agency concludes the NEPA process.
CEQ is proposing to amend the last sentence in paragraph (b), which
provides that agencies may authorize certain activities by applicants
for Federal funding while the NEPA process is ongoing. To better align
this provision with NEPA's requirements, CEQ proposes to add a clause
to the sentence clarifying that such activities cannot limit the choice
of reasonable alternatives, and the Federal agency must notify the
applicant that the agency retains discretion to select any reasonable
alternative or the no action alternative regardless of any potential
prior activity taken by the applicant prior to the conclusion of the
NEPA process. This proposal would provide additional clarity consistent
with 40 CFR 1506.1(a) and the 2020 Response to Comments, which state
that this provision allows certain activities to proceed, prior to a
ROD or FONSI, so long as they do not have an adverse environmental
impact or limit the
[[Page 49955]]
choice of reasonable alternatives.\86\ It also is responsive to
comments received on the 2020 rule expressing concern that the proposed
language could allow pre-decisional activities to proceed that would
inappropriately narrow the range of alternatives considered by an
agency. To address this concern, these commenters requested that the
CEQ clarify in the regulations that these pre-decisional activities
cannot limit the range of alternatives an agency considers under
NEPA.\87\ CEQ's proposed amendments to this paragraph would provide
clarity on this issue within the regulatory text.
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\86\ 2020 Response to Comments, supra note 63, at 356.
\87\ Id. at 355.
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CEQ also proposes to strike ``required'' in paragraph (c). This
edit is consistent with Sec. 1506.11, which encourages, but does not
require, the use of programmatic environmental reviews.
2. Adoption (Sec. 1506.3)
The CEQ regulations have always allowed agencies to adopt all or
part of an EIS. The 2020 regulations expanded the adoption provisions
to codify longstanding agency practice of adopting EAs and explicitly
allowed for adoption of other agencies' prior CE determinations. CEQ
has heard from multiple stakeholders, including clean energy and other
stakeholders, that CEQ should retain these provisions because they
create efficiencies in the NEPA process. Conversely, other
stakeholders, including environmental organizations, have raised
concerns about potential abuse of the adoption process, especially for
CE determinations. CEQ proposes changes to this provision to facilitate
use of these efficiency mechanisms in an appropriate and transparent
manner. CEQ proposes modifications to Sec. 1506.3 to improve clarity,
reduce redundancy, and ensure that when a Federal agency adopts an EIS,
EA, or CE determination, the agency conducts an independent review to
determine that the EIS, EA, or CE determination meets certain basic
standards. CEQ also proposes to add new requirements regarding the
adoption of another agency's CE determination to increase public
transparency.
In paragraph (a), CEQ proposes to strike the language requiring an
EIS, EA, or CE determination to meet relevant standards and instead
capture the standards in paragraphs (b) through (d) addressing adoption
of EISs, EAs, and CE determinations, respectively. CEQ proposes to
replace this clause with a statement that requires adoption to be done
``consistent with this section.'' CEQ proposes to remove ``Federal'' as
unnecessary and to make clear that agencies can adopt NEPA documents
prepared by non-Federal entities that are doing so pursuant to
delegated authority from a Federal agency. See, e.g., 23 U.S.C. 327.
Accordingly, in paragraph (b), CEQ proposes to add introductory
text clarifying the standard for adopting an EIS. The language would
provide that an agency may adopt a draft or final EIS, or a portion of
a draft or final EIS, if the adopting agency independently reviews the
statement and concludes it meets the standards for an adequate
statement pursuant to the CEQ regulations and the agency's NEPA
procedures. In paragraph (b)(1), which addresses adoption of an EIS for
actions that are substantially the same, CEQ proposes to insert ``and
file'' after ``republish'' to improve consistency with Sec. 1506.9 and
because agencies must both publish the EIS and file it with EPA.
Further in paragraph (b)(1), CEQ proposes to add text to clarify that
agencies should supplement or reevaluate an EIS if the agency
determines that the EIS requires additional analysis. For example, this
may be necessary if an agency is adopting an EIS for an action that was
evaluated 5 years earlier, and there is more recent data or updated
information available on one of the categories of effects. In such
instances, the agency would adopt the EIS, prepare a supplemental
analysis reevaluating the particular category of effects for which
updated information is available, and issue both for public comment.
Similarly, if an action is not substantially the same and the adopting
agency determines that the EIS requires supplemental analysis, the
agency would treat the EIS as a draft, prepare the additional analysis,
and publish the new draft EIS for notice and comment. Where a proposed
action is not substantially the same, an agency must, at minimum,
supplement the adopted EIS to ensure it covers its proposed action.
Additionally, in paragraph (b)(2), which addresses adoption of an
EIS by a cooperating agency, CEQ proposes to clarify that this
provision is triggered when a cooperating agency does not issue a joint
or concurrent ROD consistent with Sec. 1505.2. For example, this
provision covers instances when a cooperating agency adopts an EIS for
an action the cooperating agency did not anticipate at the time the EIS
was issued, such as a funding action for a project that was not
contemplated at the time of the EIS. In such instances, the cooperating
agency may issue a ROD adopting the EIS of the lead agency without
republication. CEQ proposes to strike the text at the end of paragraph
(b)(2) regarding independent review because that standard would be
captured in paragraph (b).
In paragraph (c), CEQ proposes to add introductory language to
clarify the standard for adopting an EA, which mirrors the standard for
adoption of an EIS. CEQ similarly proposes edits to align the process
with EISs by clarifying that the adopting agency may adopt the EA, and
supplement or reevaluate it as necessary, in its FONSI.
For additional clarity, CEQ proposes to add ``determinations'' to
the title of paragraph (d). CEQ also proposes to revise this paragraph
to improve readability and clarify that the adopting agency is adopting
another agency's already made determination that a CE applies to a
particular proposed action where the adopting agency's proposed action
is substantially the same. This provision does not allow an agency to
unilaterally use another agency's CE for an independent proposed
action; rather, that process is addressed in Sec. 1501.4(e).
To ensure that there is public transparency for adoption of CE
determinations, like adoption of EAs and EISs, CEQ proposes to require
agencies to document and publish their adoption of CE determinations,
such as on their website. Proposed changes to paragraph (d)(1) would
specify that agencies must document a determination that the proposed
action is substantially the same as the action covered by the original
CE determination, and there are no extraordinary circumstances present
requiring preparation of an EA or EIS. Because agencies typically
already make such determinations in the course of adopting CE
determinations for actions that are substantially the same, CEQ does
not view this documentation requirement as onerous or time consuming.
Finally, CEQ proposes to add paragraph (d)(2) requiring agencies to
publicly disclose when they are adopting a CE determination. This
proposed change is intended to increase transparency on use of CEs in
response to feedback from stakeholders that they often do not know when
an agency is proceeding with a CE. This adds a standard to adoption of
CE determinations that is similar to the practice for adoption of EAs
and EISs. Agencies, however, would have flexibility to determine how to
make this information publicly available, including through posting on
an agency's website.
[[Page 49956]]
3. Agency Responsibility for Environmental Documents (Sec. 1506.5)
CEQ proposes modification and additions to Sec. 1506.5 to clarify
the requirements related to a Federal agency's role in preparing
environmental documents and for consistency with section 107(f) of
NEPA, which requires agencies to prescribe procedures to allow project
sponsors to prepare EAs and EISs under the agencies' supervision and to
independently evaluate and take responsibility for such documents. The
2020 rule amended this provision to allow an applicant to prepare EISs
on behalf of the agency; however, the 2023 amendments to NEPA make
clear that agencies must establish procedures for project sponsors to
prepare environmental documents, not the CEQ regulations. CEQ
understands the 2023 amendments to NEPA to use the terms applicant and
project sponsor interchangeably and, therefore, CEQ proposes to remove
references to applicants from this section other than to cross-
reference the requirement that agencies establish procedures in their
agency NEPA procedures for project sponsors to prepare environmental
documents. See section II.I.2. However, CEQ notes that applicants and
project sponsors may still provide information to agencies so that they
or their contractors may prepare environmental documents consistent
with Sec. 1506.5(b).
In paragraph (a), CEQ proposes to clarify that, regardless of who
prepares an environmental document, the agency must ensure they are
prepared with professional and scientific integrity using reliable data
and resources, consistent with sections 102(2)(D) and (2)(E) of NEPA,
and exercise its independent judgment to review, take responsibility
for, and briefly document its determination that the document meets all
necessary requirements and standards related to NEPA, the CEQ
regulations, and the agency's NEPA procedures. Agencies do not need to
document this determination separately and, for example, could include
a certification statement in the environmental document.
Paragraph (b) would provide that agencies can authorize a
contractor to draft a FONSI or ROD, but the agency is responsible for
its accuracy, scope, and contents. Because a FONSI or ROD represents an
agency's conclusions regarding potential environmental impacts and
other aspects of a proposed action, CEQ proposes these changes to
exclude applicants from directly preparing these documents and to
clarify the role of contractors. A lead agency must prescribe
procedures to allow a project sponsor to prepare an environmental
assessment or an environmental impact statement, consistent with
section 107(f) of NEPA, and CEQ proposes to require agencies to include
these procedures as part of their agency NEPA procedures in Sec.
1507.3(c)(12). Finalizing and verifying the contents of these decision
documents is appropriately the responsibility of the Federal agency and
is consistent with longstanding agency practice.
CEQ proposes to revise paragraph (b)(4) to clarify that the Federal
agency is responsible for preparing a disclosure statement for the
contractor to execute, specifying that the contractor does not have any
financial or other interest in the outcome of the proposed action. The
proposed language is generally consistent with the approach in the 1978
regulations.
Finally, CEQ proposes to remove the paragraph headings because they
do not accurately or helpfully describe the contents of the paragraphs.
4. Further Guidance (Sec. 1506.7)
CEQ proposes to simplify Sec. 1506.7(a) by deleting references to
Executive Orders that have been revoked. CEQ will continue to provide
guidance concerning NEPA and its implementation on an as-needed basis.
Any such guidance will be consistent with NEPA, the CEQ regulations,
and any other applicable requirements. Future guidance could include
updates to existing CEQ guidance \88\ or new guidance. CEQ also
proposes to update paragraph (b) to reflect the date upon which a final
rule is effective. If there is a conflict between existing guidance and
an issued final rule, the final rule would prevail after the date upon
which it becomes effective.
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\88\ See CEQ, CEQ Guidance Documents, https://ceq.doe.gov/guidance/guidance.html.
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5. Proposals for Regulations (40 CFR 1506.9)
CEQ proposes to strike 40 CFR 1506.9, ``Proposals for
regulations.'' The 2020 rule added this provision to allow agencies to
substitute processes and documentation as part of the rulemaking
process for corresponding requirements in these regulations.\89\ Since
1978, the CEQ regulations have encouraged agencies to combine
environmental documents with any other agency document to reduce
duplication and paperwork (40 CFR 1506.4), and agencies also may
combine procedural steps, for example, to satisfy the public comment
requirements of a rulemaking process and NEPA. See Sec. 1507.3(c)(5).
As such, CEQ expects that the provision at 40 CFR 1506.9 is unnecessary
to achieve the desired effect of improved efficiency. Removing this
section would avoid confusion and controversy over whether the
procedures of a separate process meet the requirements of CEQ's
regulations. Further, courts have questioned whether separate
regulatory processes can be a substitute for NEPA in some cases. See
e.g., Sierra Club v. Fed. Energy Regul. Comm'n, 867 F.3d 1357, 1375
(D.C. Cir. 2017) (``[T]he existence of permit requirements overseen by
another [F]ederal agency or [S]tate permitting authority cannot
substitute for a proper NEPA analysis.''). Additionally, CEQ does not
consider it appropriate to single out one particular type of action--
rulemaking--for aligning or combining procedural steps. Indeed, one of
the key objectives of agency NEPA procedures is to integrate the NEPA
process into other agency processes. Therefore, CEQ suggests the more
prudent approach is for agencies to combine NEPA reviews with other
reviews for rulemaking, similar to longstanding agency practice to
combine NEPA documents with other review processes, such as compliance
with section 106 of the National Historic Preservation Act or section 7
of the Endangered Species Act, or set out processes in their NEPA
procedures to comply concurrently with multiple legal requirements.
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\89\ 2020 Final Rule, supra note 36, at 43338-39.
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6. Filing Requirements (Sec. 1506.9)
CEQ proposes to redesignate 40 CFR 1506.10 as Sec. 1506.9, which
would restore the same numbering for this and subsequent sections used
in the 1978 regulations. CEQ proposes to replace the acronym for EPA
with the full name ``Environmental Protection Agency'' here and in
Sec. 1506.10, consistent with the format in the rest of the CEQ
regulations. CEQ also proposes to clarify that agencies must notify EPA
when they adopt an EIS consistent with Sec. 1506.3(b). CEQ proposes
this change to codify common practice and guidance from EPA.\90\ EPA
notification ensures initiation of the appropriate comment or review
period. Such notification, even where a cooperating agency is adopting
without public comment consistent
[[Page 49957]]
with Sec. 1506.3(b)(1), improves transparency to the public regarding
the status of an EIS and also helps track the status of EISs across the
Federal Government.
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\90\ See EPA, Environmental Impact Statement Filing Guidance,
https://www.epa.gov/nepa/environmental-impact-statement-filing-guidance. EPA must be notified when a Federal agency adopts an EIS
to commence the appropriate comment or review period. If a Federal
agency chooses to adopt an EIS written by another agency, and it was
not a cooperating agency in the preparation of the original EIS, the
EIS must be republished and filed with EPA.
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7. Timing of Agency Action (Sec. 1506.10)
To accommodate the change in numbering described in section II.H.6,
CEQ proposes to renumber 40 CFR 1506.11 ``Timing of agency action'' to
Sec. 1506.10. CEQ proposes in paragraph (b) to change ``may not'' to
``shall not'' to eliminate a potential ambiguity. CEQ proposes changes
to paragraph (c)(1) to update this provision to reflect current
practices within Federal agencies. Specifically, CEQ proposes to change
references to ``appeal processes'' to ``administrative review
processes'' and add examples, which can include processes such as
appeals, objections, and protests. CEQ further proposes updates to
align the text to provide flexibility in timing to agencies that use
these administrative review processes and clarify that such a process
may be initiated either prior to or after the filing and publication of
a final EIS with EPA depending on the specifics of the agency's
authorities. Depending on the agency involved and their associated
authorities, administrative review processes generally allow other
agencies or the public to raise issues about a decision and make their
views known. CEQ proposes to clarify that the period for administrative
review of the decision and the 30-day review period prescribed in
paragraph (b)(2) for when a ROD can be issued may run concurrently. CEQ
proposes these changes to reflect changes in Federal agency regulations
and procedures since this text was promulgated in 1978 and to allow for
greater efficiency.
For example, the U.S. Department of Agriculture's Forest Service
has an objections process outlined at 36 CFR part 218 where the public
can object to a draft decision; these regulations replaced the prior
appeal process formerly used by the agency. To initiate the objections
process, Forest Service regulations require that the final EIS and a
draft ROD be made available to the public, but the Forest Service does
not have to publish the final EIS with EPA until the conclusion of the
objections process. See 36 CFR 218.7(b). The objections process can
take 120 to 160 days, during which the agency makes the final EIS
widely available to the public. Allowing the agency to file the final
EIS with EPA and issue a ROD at the same time as the conclusion of the
objections process rather than waiting an additional 30 days following
the official filing will add efficiency to the process. These proposed
changes also would accommodate similar administrative review
procedures. See e.g., 43 CFR 1610.5-2 (outlining the Bureau of Land
Management (BLM) protest procedures).
CEQ also proposes minor edits in paragraphs (d) and (e) for clarity
and readability.
8. Emergencies (Sec. 1506.11)
Consistent with changes in the preceding sections, CEQ proposes to
renumber 40 CFR 1506.12 ``Emergencies'' to Sec. 1506.11. CEQ proposes
to strike the last sentence stating other actions remain subject to
NEPA review. This erroneously implies that actions covered by Sec.
1506.11 are not subject to NEPA review. Instead, CEQ proposes to
replace the sentence with language clarifying that alternative
arrangements are not a waiver of NEPA; rather, they establish an
alternative means for NEPA compliance.
This longstanding provision on emergencies has generated some
confusion \91\ as to whether, during emergencies, agency actions are
exempted from NEPA review. CEQ proposes these changes to clarify that
the regulations do not create a NEPA exemption; rather, they provide a
pathway for compliance with NEPA where the exigencies of emergency
situations do not provide sufficient time for an agency to complete an
EIS for an action with significant environmental effects. As has been
the long-standing practice, agencies may continue to determine how to
proceed with actions to respond to emergencies that do not have
significant environmental effects and that would ordinarily be analyzed
through an EA. As discussed in section II.I.2, some agencies include
procedures for addressing such situations in their agency NEPA
procedures.
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\91\ 2020 Response to Comments, supra note 63, at 417-19.
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CEQ does not have the authority to exempt agency actions from NEPA,
regardless of whether an emergency exists. The proposed changes to
Sec. 1506.11 clarify that CEQ does not offer ``alternative
arrangements'' to circumvent appropriate NEPA analysis but rather
allows Federal agencies to establish alternative means for NEPA
compliance to ensure that agencies can act swiftly to address
emergencies while also meeting their statutory obligations under NEPA.
CEQ's proposal would clarify that when emergencies arise, Sec. 1506.11
allows agencies to adjust the means by which they achieve NEPA
compliance. This approach is also consistent with CEQ's guidance on
NEPA and emergencies, updated in 2020.\92\
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\92\ CEQ, Emergencies and the National Environmental Policy Act
Guidance (Sept. 14, 2020), https://ceq.doe.gov/docs/nepa-practice/emergencies-and-nepa-guidance-2020.pdf.
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9. Innovative Approaches to NEPA Reviews (Sec. 1506.12)
CEQ proposes to add a new section to the regulations in Sec.
1506.12 to allow CEQ to grant a request for modification to authorize
Federal agencies to pursue innovative approaches to comply with NEPA
and the regulations in order to address extreme environmental
challenges. CEQ's intent is for this section to maximize agency
flexibility, creativity, and efficiency while still meeting the
requirements of NEPA and providing for sound environmental review. This
is a new concept, distinct from the emergency provisions in Sec.
1506.11, and different considerations apply for determining the
existence of an extreme environmental challenge sufficient to trigger
the proposed Sec. 1506.12 than those for determining the existence of
an emergency requiring alternative arrangements pursuant to Sec.
1506.11. For example, an extreme environmental challenge might have a
longer time horizon than is typical for an emergency action. As another
example, it might be appropriate for an agency to determine that a
forest ecosystem presenting a high risk of severe wildfire that could
threaten water supplies presents extreme environmental challenges, even
though restoration activities would take many years to complete. The
intent of this approach is to allow for agencies to take innovative
approaches when exploring how to address extreme environmental
challenges, which could include, for instance, sea level rise or
increased wildfire risk, or bolstering the resilience of infrastructure
to increased disaster risk from the effects of climate change; water
scarcity; degraded water or air quality; species loss; disproportionate
and adverse effects on communities with environmental justice concerns;
imminent or reasonably foreseeable loss of historic, cultural, or
Tribal resources; and impaired ecosystem health.
Paragraph (a) would provide that the purpose of this section is to
allow agencies to comply with NEPA using procedures modified from the
requirements of these regulations to address extreme environmental
challenges.
Paragraph (b) would require CEQ approval for any innovative
approaches and make clear that approval does not waive the requirement
to comply with
[[Page 49958]]
the statute. Rather, this section establishes an alternative means for
NEPA compliance to address extreme environmental challenges.
Paragraph (c) would outline what an agency must include in its
request for approval of an innovative approach. Agencies would have to
identify each provision of the regulations for which they are
requesting modification and explain how the innovative approach they
propose to ensure NEPA compliance. Agencies also must explain the
extreme environmental challenge they are trying to address, why the
alternative means are needed to address the challenge, and how the
innovative approach would facilitate sound and efficient environmental
review. Finally, agencies would need to consult with any potential
cooperating agencies and include a summary of their comments with the
request.
Paragraph (d) would provide CEQ's process for reviewing and
approving such requests. Under this provision, CEQ would evaluate
requests within 60 days and may choose whether to approve the approach,
approve it with revision, or deny the request. Further, as is
stipulated in paragraph (e), CEQ would post on its website all
modification requests it has approved or denied.
Examples of innovative approaches that could be the basis for a
request include new ways to use information technology; cooperative
agreements or work with local communities; methods more fully
incorporating, while protecting, Indigenous Knowledge; new ways to work
with project proponents and communities to advance proposals; and
innovative tools for engaging the public and providing public comment
opportunities, which could enhance participation from communities with
environmental justice concerns. CEQ acknowledges that the proposed
regulations would not include explicit limits in any of these areas.
The intent of proposed Sec. 1506.12 is to help ensure that the
regulations have the maximum ability to accommodate ideas not yet put
forward to improve NEPA implementation. The proposed regulation would
encourage innovation where needed to address extreme environmental
challenges, consistent with the purposes and policies expressed in the
NEPA statute including to ``promote efforts which will prevent or
eliminate damage to the environment and biosphere and stimulate the
health and welfare of [humans],'' 42 U.S.C. 4321, and ``attain the
widest range of beneficial uses of the environment without degradation,
risk to health or safety, or other undesirable and unintended
consequences,'' 42 U.S.C. 4331(b)(3). CEQ invites public comment on
this proposed provision to determine if it is necessary. Specifically,
CEQ would like input on whether such a provision is needed to address
extreme environmental challenges and what Federal agencies would be
able to carry out under this proposed provision that they cannot
currently accomplish in the current regulations. CEQ also invites
public comment on whether CEQ should add additional procedures or
limitations to ensure that innovative approaches are used
appropriately.
10. Effective Date (Sec. 1506.13)
CEQ proposes to remove the 2020 effective date and replace it with
the date upon which a final rule is effective. CEQ notes that Federal
agencies would not need to redo or supplement a completed NEPA review
(e.g., where a CE determination, FONSI, or ROD has been issued) as a
result of the issuance of this rulemaking.
I. Proposed Revisions to Agency Compliance (Part 1507)
CEQ proposes substantive revisions to all sections in part 1507.
CEQ invites comment on whether it should make other changes to this
section.
1. Compliance (Sec. 1507.1)
CEQ proposes to add a second sentence to Sec. 1507.1, restoring
language from the 1978 regulations, to state that agencies have
flexibility to adapt their implementing procedures to the requirements
of other applicable laws. Restoring this language is consistent with
the changes CEQ made to 40 CFR 1507.3 in its Phase 1 rulemaking to
restore the agency discretion to tailor their NEPA procedures to their
unique missions and contexts, creating opportunity for agencies to
innovate and improve efficiency.
2. Agency Capability To Comply (Sec. 1507.2)
CEQ proposes edits to Sec. 1507.2 to emphasize agencies'
responsibilities under NEPA, including to incorporate the requirements
added to section 102(2) of NEPA by the FRA, and require agencies to
designate a Chief Public Engagement Officer. First, CEQ proposes to
move the first sentence of 40 CFR 1507.2(a) to a new Sec. 1507.2(b)
and require agencies to identify a Chief Public Engagement Officer who
would be responsible for facilitating community engagement across the
agency and, where appropriate, the provision of technical assistance to
communities. Next, CEQ proposes to redesignate 40 CFR 1507.2(b) and (c)
as Sec. 1507.2(c) and (d), respectively. Then, CEQ proposes to
redesignate the existing 40 CFR 1507.2(d) through (f) as Sec.
1507.2(h) through (j) and add a new paragraph (e) to require agencies
to prepare environmental document with professional integrity
consistent with section 102(2)(D) of NEPA. In a new paragraph (f), CEQ
proposes to require agencies to make use of reliable data and
resources, consistent with section 102(2)(E) of NEPA. And in a new
paragraph (g), CEQ proposes to require agencies to study, develop, and
describe technically and economically feasible alternatives, consistent
with section 102(2)(F) of NEPA. Finally, in redesignated paragraph (j),
CEQ proposes to delete the reference to E.O. 13807 because E.O. 13990
revoked E.O. 13807.
3. Agency NEPA Procedures (Sec. 1507.3)
CEQ proposes several updates to Sec. 1507.3 to reorganize
paragraphs to improve readability, consolidate related provisions,
restore text from the 1978 regulations, and codify CEQ guidance on CEs.
In paragraphs (a) and (b), CEQ would update the effective date to
reflect the effective date of a final rule. In paragraph (b), CEQ
proposes to give agencies 12 months after the effective date to develop
proposed procedures and initiate consultation with CEQ to implement the
CEQ regulations. CEQ also proposes moving, with some modification,
language from paragraph (c) to paragraph (b) for clarity and to improve
organization since the language is generally applicable to all agency
NEPA procedures. CEQ would clarify that proposed procedures should
facilitate efficient decision making and ensure that agencies make
decisions in accordance with the policies and requirements of NEPA.
In paragraph (b)(2), CEQ proposes to change ``adopting'' to
``issuing'' to avoid confusion with adoption under Sec. 1506.3. CEQ
also proposes to restore text from the 1978 regulations requiring
agencies to continue to review their policies and procedures and revise
them as necessary to be in full compliance with NEPA. The 2020 rule
deleted this language as redundant to language added to 40 CFR
1507.3(b) requiring agencies to update their procedures to implement
the final rule.\93\ CEQ is proposing to restore this language because
CEQ views the requirement for an agency to continue to review their
policies and procedures as different than the requirement in paragraph
(b) to initially update procedures consistent with a final rule.
[[Page 49959]]
Further, restoring this requirement is consistent with the proposal in
paragraph (c)(9) for agencies to review CEs at least every 10 years.
CEQ proposes a new paragraph (b)(3) to explicitly clarify that,
consistent with longstanding practice, the issuance of new agency
procedures or an update to existing agency procedures is not subject to
NEPA review. To align with these changes with paragraph (b) and its
paragraphs, CEQ proposes to strike the first clause in 40 CFR 1507.3(e)
because it is unnecessary and could create confusion and move the other
text in 40 CFR 1507.3(e) into Sec. 1507.3(c) as discussed below. This
provision does not provide any additional direction given the
regulations' longstanding existing requirements that agencies develop
agency NEPA procedures, and CEQ determinations that they conform to the
NEPA regulations. Further, its requirement that agency procedures
``comply'' with the CEQ regulations could be read to suggest that
agencies must complete a NEPA review when establishing their
procedures.
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\93\ 2020 Final Rule, supra note 36, at 43340.
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Paragraphs (c) and (c)(1) through (c)(10) would list the items that
all agency NEPA procedures must include. CEQ proposes minor revisions
to paragraphs (c)(1) through (c)(4) to improve clarity and conciseness.
CEQ proposes to modify paragraph (c)(3) to clarify that procedures
should integrate environmental review into agency decision-making
processes so decision makers can make use of them in making the
decision. CEQ proposes to modify paragraph (c)(5) to emphasize that
combining environmental documents should be done to facilitate sound
and efficient decision making and avoid duplication. CEQ proposes to
strike the language from this paragraph allowing agencies to designate
and rely on other procedures or documents to satisfy NEPA compliance.
As discussed further in sections II.C.1 and II.C.2, CEQ has concerns
about this language added by the 2020 rule to substitute other reviews
as functionally equivalent for NEPA compliance, and therefore proposes
to remove it.
To consolidate into one paragraph the required aspects of agency
NEPA procedures, CEQ proposes to move 40 CFR 1507.3(e)(1), (e)(2),
(e)(2)(i), and (e)(2)(iii) to paragraphs (c)(6), (c)(7), (c)(7)(i) and
(c)(7)(ii), respectively, with minor wording modification for
readability. CEQ proposes to move with modification 40 CFR
1507.3(e)(2)(ii), requiring agencies to establish CEs and identify
extraordinary circumstances to paragraph (c)(8). CEQ proposes in
paragraphs (c)(8)(i) through (c)(8)(iii) to include more specificity
about the process for establishing new or revising existing CEs
consistent with CEQ's 2010 CE guidance and agency practice. Paragraph
(c)(8)(i) would include the existing requirement from 40 CFR
1507.3(e)(2)(i) that agencies identify when documentation is required
for a determination that a CE applies to a proposed action. Paragraph
(c)(8)(ii) would require agencies to substantiate new or revised CEs
and make the documentation publicly available. This is consistent with
the 2010 guidance and CEQ's longstanding practice requiring agencies to
demonstrate that agency activities are eligible for CEs.\94\ CEQ
proposes to add paragraph (c)(8)(iii) to require agencies to describe
how agencies will consider extraordinary circumstances; this
requirement is currently addressed in existing 40 CFR 1507.3(c)(2)(ii).
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\94\ CE Guidance, supra note 9.
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CEQ proposes to add paragraph (c)(9) to require agencies to include
in their NEPA procedures a process for reviewing their CEs every 10
years. This would codify recommendations in CEQ's guidance on
establishing CEs,\95\ which encourages agencies to review CEs
periodically. While the guidance recommends every 7 years,\96\ CEQ is
proposing for review to occur at least every 10 years. In CEQ's
experience, it can take an agency a year or more to conduct such a
review and revision given the steps involved, including conducting the
review, developing a proposal to update procedures to reflect the
review, consulting with CEQ, soliciting public comment, developing
final procedures, and receiving a CEQ conformity determination. Federal
agencies should review their CEs for multiple reasons, including to
determine if CEs remain useful, whether they should modify them, and to
determine if circumstances have changed resulting in an existing
category raising the potential for significant effects.
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\95\ Id.
\96\ Id. at 16.
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CEQ proposes to move 40 CFR 1507.3(e)(3) to paragraph (c)(10)
without substantive change. Finally, CEQ proposes to move the
requirement for agencies to explain in their NEPA procedures where
interested persons can get information on EISs and the NEPA process
from 40 CFR 1506.6(e) to Sec. 1507.3(c)(11) and add a reference to EAs
as well.
CEQ proposes to codify section 107(f) of NEPA in a new paragraph
(c)(12) requiring agencies to include procedures, where applicable, to
allow a project sponsor to prepare EAs and EISs consistent with Sec.
1506.5. Since not all agency actions involve project sponsors, CEQ
proposes to include ``where applicable'' to qualify this requirement.
CEQ includes ``consistent with Sec. 1506.5'' so that such procedures
would ensure environmental documents prepared by project sponsors (or a
contractor on the project sponsor's behalf) are prepared with
professional and scientific integrity, and ensure that the agency
independently evaluates and takes responsibility for the contents of
such documents. It also would ensure agencies require project sponsors
to execute a disclosure statement to address financial or other
interests. In addition to procedures, agencies may provide project
sponsors with guidance and assist in the preparation of the documents
consistent with Sec. 1506.5(b)(1). CEQ invites comment on whether it
should include additional provisions that agencies should consider or
address in establishing such procedures.
CEQ proposes to delete the provisions in 40 CFR 1507.3(d) and its
paragraphs, which recommend agency procedures identify different
classes of activities or decisions that may not be subject to NEPA. CEQ
proposes to revise Sec. 1507.3(d) to provide a list of items that
agencies may include in their procedures, as appropriate, which would
include, at paragraph (d)(1), identifying activities or decisions that
are not subject to NEPA. Proposing to delete the specific categories of
such activities or decisions is consistent with the proposed changes to
Sec. 1501.1. See section II.C.1 and II.C.2. Paragraph (d)(2) would
allow agencies to include processes for emergency actions that would
not result in significant environmental effects. This provision is
similar to CEQ's own emergency process for EISs provided in Sec.
1506.11 but relates to activities that would not require preparation of
an EIS. Some agencies have programs that focus on these types of
emergency actions and may need to consider special arrangements for
their environmental assessments in these circumstances. These special
arrangements could focus on the format of the documents, special
distribution and public involvement procedures, and timing
considerations. Some agencies have already established such processes
in their procedures to ensure efficient NEPA compliance in an
emergency. See, e.g., 36 CFR 220.4(b); Dep't of Homeland Sec.,
Instruction Manual #023-01-001-01, Section VI.\97\
[[Page 49960]]
CEQ proposes to move, without modification, 40 CFR 1507.3(f)(1) and
(f)(2) to paragraphs (d)(3) and (d)(4), respectively. CEQ proposes to
remove 40 CFR 1507.3(f)(4) regarding combining the agency's EA process
with its scoping process as unnecessary. Section 1501.5(j) clarifies
that agencies can employ scoping at their discretion when it will
improve the efficiency and effectiveness of EAs, including combining
scoping with a comment period on a draft EA. In addition, CEQ proposes
to remove, as superfluous, the first sentence of 40 CFR 1507.3(f)(3)
regarding lengthy periods between an agency's decision to prepare an
EIS and actual preparation, as the regulations do not prescribe
specific timelines for preparation of environmental documents. As
discussed in section II.D.3, CEQ proposes to move the second sentence
of 40 CFR 1507.3(f)(3) regarding supplemental notices when an agency
withdraws, cancels, or otherwise ceases the consideration of a proposed
action before completing an EIS to Sec. 1502.4(f) with modifications.
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\97\ https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf.
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Finally, as discussed in section II.C.3, CEQ is proposing to strike
40 CFR 1507.3(f)(5) and replace it with a provision in Sec. 1501.4(e)
that is consistent with the process established by section 109 of NEPA
for adoption or use of another agency's CE.
4. Agency NEPA Program Information (Sec. 1507.4)
CEQ proposes revisions to Sec. 1507.4, which describes the use of
agency websites and other information technology to promote
transparency and efficiency in the NEPA process. In paragraph (a), CEQ
proposes revisions to remove ``environmental'' before ``documents''
because ``environmental documents'' is a defined term, and the intent
of the sentence is to refer to NEPA-related information and documents
more broadly; CEQ proposes the same edit in paragraph (a)(1). CEQ also
proposes to require agencies to provide on their websites or other
information technology tools (to account for new technologies) their
agency NEPA procedures and a list of EAs and EISs that are in
development and complete. CEQ proposes to revise paragraph (a)(2) to
encourage agencies to post their environmental documents to their
websites. CEQ proposes to encourage rather than simply allow agencies
to include the information listed in paragraphs (a)(1) through (a)(4).
Finally, CEQ proposes edits to paragraph (b), which promotes
interagency coordination of environmental program websites and shared
databases, to provide agencies with additional flexibility and clarify
that the section is not limited to the listed technology.
J. Proposed Revisions to Definitions (Part 1508)
Within part 1508, CEQ proposes revisions to the definitions of
``cooperating agency,'' ``effects'' or ``impacts,'' ``environmental
assessment,'' ``environmental document,'' ``environmental impact
statement,'' ``finding of no significant impact,'' ``human
environment,'' ``lead agency,'' ``major Federal action,''
``mitigation,'' ``notice of intent,'' ``page,'' ``scope,'' and
``tiering.'' CEQ proposes to add definitions for ``environmental
justice,'' ``environmentally preferable alternative,'' ``extraordinary
circumstances,'' ``joint lead agency,'' ``participating Federal
agency,'' ``programmatic environmental document,'' and ``significant
effects.''
CEQ does not propose substantive edits to any other definitions,
but would redesignate the paragraphs to keep the list of terms in
alphabetical order. CEQ invites comment on whether CEQ should modify
other definitions or add new definitions. In particular, CEQ invites
comment on whether it should define any additional terms used in NEPA,
as amended by the FRA, including ``applicant'' or ``project sponsor.''
CEQ is not proposing to separately define the phrase ``communities with
environmental justice concerns,'' but intends that phrase would mean
communities that do not experience environmental justice as defined in
Sec. 1508.1(k). CEQ is particularly interested in comment on whether
to provide a separate definition of ``communities with environmental
justice concerns,'' and if so, how the regulations should define that
term.
1. Cooperating Agency (Sec. 1508.1(e))
CEQ proposes to revise the definition of ``cooperating agency'' in
Sec. 1508.1(e) for clarity and consistency with the definition of
``cooperating agency'' in section 111(2) of NEPA defining this term to
mean ``any Federal, State, Tribal, or local agency with jurisdiction by
law or special expertise that has been designated as a cooperating
agency by the lead agency . . . .''
2. Effects or Impacts (Sec. 1508.1(g))
In Sec. 1508.1(g), CEQ proposes to make clarifying edits and to
add and modernize examples. Paragraph (g)(4) lists common types of
effects that may arise during NEPA review. CEQ proposes to update the
list to add disproportionate and adverse effects to communities with
environmental justice concerns and climate change-related effects. For
climate change effects, CEQ proposes to clarify that this can include
both the contributions to climate change from a proposed action and its
alternatives as well as the potential effects of climate change on the
proposed action and its alternatives. These changes would update the
definition to include effects that have been an important part of NEPA
analysis for more than a decade and will continue to be relevant,
consistent with best available science and NEPA's requirements. Also,
CEQ proposes these changes in response to comments received during the
Phase 1 rulemaking that the definition of ``effects'' or ``impacts''
should explicitly address environmental justice and climate change.\98\
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\98\ Phase 1 Response to Comments, supra note 48, at 87, 99.
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3. Environmental Assessment (Sec. 1508.1(h))
CEQ proposes to update the definition of ``environmental
assessment'' in Sec. 1508.1(h) for consistency with sections 106(b)(2)
and 111(4) of NEPA, 40 CFR 1501.5, and longstanding agency practice.
CEQ proposes to strike ``prepared by'' and change it to ``for which a
Federal agency is responsible'' for consistency with section 107(f) of
NEPA and Sec. 1506.5, which allow a contractor or project sponsor
(following agency issuance of procedures) to prepare an EA but requires
that the agency take responsibility for the accuracy of its contents
irrespective of who prepares it. This change would be consistent with
longstanding agency practice to allow applicants and contractors to
prepare EAs, so long as the agency is ultimately responsible for the
contents.
To improve readability, CEQ proposes edits to add text from Sec.
1501.5 clarifying that an agency prepares an EA when a proposed action
is not likely to have a significant effect or the significance of the
effects is unknown. CEQ also proposes to simplify language in the rest
of the paragraph by deleting superfluous text. These proposed changes
do not alter the intention that an EA is used to support an agency's
determination whether to prepare an EIS (part 1502) or issue a FONSI
(Sec. 1501.6).
4. Environmental Document (Sec. 1508.1(i))
CEQ proposes to add ``record of decision'' to the definition of
``environmental document'' in
[[Page 49961]]
Sec. 1508.1(i) for clarity. CEQ also proposes to add a documented CE
determination to the definition to reflect the longstanding agency
practice of documenting some CE determinations. This change also is
consistent with the change CEQ proposes to Sec. Sec. 1501.4 and 1507.3
to add references to CE determinations. Therefore, for clarity and
efficiency, CEQ is proposing to incorporate documented CE
determinations into the definition of ``environmental document.'' CEQ
notes that section 111(5) of NEPA defines ``environmental document''
more narrowly to only include EISs, EAs, and FONSIs. However, CEQ is
proposing to retain and expand the regulatory definition since the term
is used more broadly in the CEQ regulations.
5. Environmental Impact Statement (Sec. 1508.1(j))
CEQ proposes to change ``as required'' to ``that is required'' in
the definition of EIS in Sec. 1508.1(j) for consistency with the
definition of ``environmental impact statement'' in section 111(6) of
NEPA.
6. Environmental Justice (Sec. 1508.1(k))
CEQ proposes to add a new definition of ``environmental justice''
at Sec. 1508.1(k). This definition would align with the definition set
forth in section 2(b) of E.O. 14096.\99\ This provision would define
``environmental justice'' as the just treatment and meaningful
involvement of all people so that they are fully protected from
disproportionate and adverse human health and environmental effects and
hazards, and have equitable access to a healthy, sustainable, and
resilient environment. The proposed definition of environmental justice
uses the phrase ``cumulative impacts,'' rather than the phrase
``cumulative effects,'' which are used elsewhere in the proposed
regulations. That is because the phrase ``cumulative impacts'' has a
meaning in the context of environmental justice relating to the
aggregate effect of multiple stressors and exposures on a person,
community, or population. See, e.g., Environmental Protection Agency,
Cumulative Impacts Research: Recommendations for EPA's Office of
Research and Development (2022). CEQ views the evolving science on
cumulative impacts as sufficiently distinct from the general meaning of
cumulative effects under the NEPA regulations that using a different
term could be helpful to agencies and the public. CEQ invites comment
on this approach.
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\99\ E.O. 14096, supra note 20, at 25253.
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7. Environmentally Preferable Alternative (Sec. 1508.1(l))
CEQ proposes to add a new definition of ``environmentally
preferable alternative'' at Sec. 1508.1(l). Since 1978, the CEQ
regulations have required agencies to identify the environmentally
preferable alternative or alternatives in the ROD (Sec. 1505.2(b)).
While the regulations did not define the term, CEQ's Forty Questions
document provided an explanation, upon which CEQ has based the proposed
definition.\100\ The environmentally preferable alternative is the
alternative that will best promote the national environmental policy as
expressed in section 101 of NEPA. 42 U.S.C. 4331. Application of the
term ``environmentally preferable alternative'' is also described in
Sec. 1502.14(f) and discussed in section II.D.9.
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\100\ Forty Questions, supra note 4.
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8. Extraordinary Circumstances (Sec. 1508.1(m))
CEQ proposes to add a definition of ``extraordinary circumstances''
at Sec. 1508.1(m). The 1978 regulations included the meaning of
extraordinary circumstances in the definition of ``categorical
exclusion'' at 40 CFR 1508.4 (2019), which the 2020 rule moved to 40
CFR 1501.4(b) (describing how to apply extraordinary circumstances when
considering use of a CE) and 40 CFR 1507.3(e)(2)(ii) (requiring
agencies to establish extraordinary circumstances for CEs in their
procedures).\101\ CEQ proposes to create a standalone definition of
``extraordinary circumstances'' to improve clarity when this term is
used throughout the rule.
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\101\ 2020 Final Rule, supra note 36, at 43322, 43342-43.
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CEQ also proposes to add several examples of extraordinary
circumstances to help agencies and the public understand common
situations that agencies may consider in determining whether
application of a CE is appropriate. The examples would include impacts
on sensitive environmental resources, disproportionate and adverse
effects on communities with environmental justice concerns, effects
associated with climate change, and effects on historic properties or
cultural resources. This list of examples would not be exclusive, and
agencies would continue to have the discretion to identify
extraordinary circumstances in their NEPA implementing procedures that
are specific and appropriate to their particular actions and CEs
consistent with Sec. 1507.3.
9. Finding of No Significant Impact (Sec. 1508.1(o))
In the definition of FONSI in Sec. 1508.1(o), CEQ proposes to
insert ``agency's determination that and'' after ``presenting the'' for
consistency with the definition of FONSI in section 111(7) of NEPA,
which defines the term to mean ``a determination by a Federal agency
that a proposed agency action does not require the issuance of an
environmental impact statement.''
10. Human Environment or Environment (Sec. 1508.1(p))
CEQ proposes to clarify that ``human environment'' and
``environment'' are synonymous in the regulations given that the latter
is the more commonly used term. CEQ proposes a minor edit to ``human
environment'' in Sec. 1508.1(p) to remove ``of Americans'' after
``present and future generations.'' This minor edit improves
consistency with NEPA in section 101(a), which speaks more generally
about the impact of people's ``activity on the interrelations of all
components of the natural environment'' and the need ``to create and
maintain conditions under which [humans] and nature can exist in
productive harmony.'' 42 U.S.C. 4331(a).
In the 2020 rule, CEQ changed ``people'' to ``of Americans,''
explaining that it was done to be consistent with section 101(a) of
NEPA.\102\ However, CEQ now considers this explanation to overlook the
context in which the phrase ``present and future generations of
Americans'' is used in section 101(a). That paragraph of the Act refers
to Americans at the end of the last sentence after using the broader
term ``man'' three times. A reasonable interpretation is that human
environment refers broadly to the interrelationship between people and
the environment. The phrase ``present and future generations of
Americans'' is used in a narrower context to ``fulfill the social,
economic, and other requirements of present and future generations of
Americans.'' 42 U.S.C. 4331(a).
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\102\ Id. at 43344-45.
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11. Joint Lead Agency (Sec. 1508.1(q))
CEQ proposes to add a definition for ``joint lead agency''
consistent with the usage of that term in section 107(a)(1)(B) of NEPA
and Sec. 1501.7(b) and (c).
[[Page 49962]]
12. Lead Agency (Sec. 1508.1(s))
CEQ proposes to revise the definition of ``lead agency'' for
consistency with the definition of ``lead agency'' in section 111(9) of
NEPA and to expand the definition of ``lead agency'' in Sec. 1508.1(s)
to also include EAs, consistent with longstanding practice.
13. Major Federal Action (Sec. 1508.1(u))
CEQ proposes to move the definition of ``major Federal action''
currently provided in 40 CFR 1508.1(q) to Sec. 1508.1(u), revise it to
clarify the list of example activities or decisions that meet the
definition, and revise the list of exclusions from the definition
consistent with section 111(10) of NEPA. CEQ notes that the
determination of whether an activity or decision is a major Federal
action is a fact-specific analysis that agencies have long engaged in
to determine where they have substantial control and responsibility to
consider environmental effects in their decision making.
CEQ proposes to reorder and revise the definition to list the
examples of activities or decisions that may be included in the
definition of ``major Federal action'' in paragraph (u)(1),
redesignating current 40 CFR 1508.1(q)(3)(i) through (q)(3)(iv) as
paragraphs (u)(1)(ii) through (u)(1)(v). To paragraph (u)(1), CEQ
proposes to revise the current example in 40 CFR 1508.1(q)(2) in
paragraph (u)(1)(i) and add one example of potential major Federal
actions.
First, CEQ proposes to strike 40 CFR 1508.1(q)(2) and replace it
with paragraph (u)(1)(i) to include the granting of authorizations such
as permits, licenses, and rights-of way. CEQ proposes to strike the
existing examples since regulated activities would be addressed in this
revised example, and the others are redundant to the other examples
listed in paragraphs (u)(1)(ii) through (u)(1)(vi).
Second, CEQ proposes to revise the phrase ``connected agency
decisions'' to ``related agency decisions'' in paragraph (u)(1)(iv) to
clarify that the concept in this paragraph is not meant to refer to
``connected actions'' as defined in Sec. 1501.3. CEQ considers this a
non-substantive, clarifying change to avoid any confusion with
connected actions.
Third, CEQ proposes to revise paragraph (u)(1)(v) to change
``approval of'' to ``carrying out'' specific projects to address
projects carried out directly by a Federal agency. CEQ proposes to
strike ``located in a defined geographic area'' from the example of
management activities; while this is merely an example, CEQ is
concerned it could be read as limiting. CEQ also proposes to strike the
sentence regarding permits and regulatory decisions as this would be
addressed by the example in paragraph (u)(1)(i).
Fourth, CEQ proposes to add a new example at Sec. 1508.1(u)(1)(vi)
to explain when Federal financial assistance is a major Federal action.
Generally, Federal financial assistance, other than minimal Federal
funding, is a major Federal action where the Federal agency has
authority and discretion over the financial assistance in a manner that
could address environmental effects from the activities receiving the
financial assistance. In such circumstances, the agency has sufficient
control and responsibility over the use of the funds or the effects of
the action for the decision to provide financial assistance to
constitute a major Federal action consistent with the definition in
section 111(10) of NEPA. This includes circumstances where the agency
could deny the financial assistance, in whole or in part, due to
environmental effects from the activity receiving the financial
assistance, or could impose conditions on the financial assistance that
could address the effects of such activity.
To improve clarity and ensure appropriate application of NEPA, CEQ
proposes this example of what a major Federal action may include. CEQ
considers that, other than for minimal Federal Funding, where an agency
has substantial control and responsibility over a recipient's
environmental effects or sufficient discretion to consider the
environmental effects when making decisions, the appropriate approach
is for agencies to identify the corresponding scope of analysis rather
than excluding an activity or decision from NEPA review altogether. For
example, if a Federal agency operates a loan guarantee program, the
agency may have discretion in the types of activities to which it might
issue a loan guarantee. A NEPA review that analyzes the environmental
effects of potential project types could help inform how the agency
designs the program. Depending on the terms of the loan guarantee
program, the agency may have substantial control and responsibility
over the use of the funds such that an environmental analysis can
inform the decision making. As noted in section II.C.2 and earlier in
this section, this is a fact-specific analysis agencies undertake based
on the specifics of their authority for a particular action.
In Sec. 1508.1(u)(2), CEQ proposes to replace the exclusions
currently in 40 CFR 1508.1(q)(1)(i) through (vi) with the exclusions
from the definition of major Federal action codified in the definition
in section 111(10)(B) of NEPA. Paragraph (u)(2)(i)(A) and (B) would
include the exclusion of non-Federal actions with no or minimal
funding; or with no or minimal Federal involvement where the agency
cannot control the outcome of the project consistent with section
111(10)(B)(i) of NEPA. These exclusions would replace the current
exclusion in 40 CFR 1508.1(q)(1)(vi), which CEQ proposes to strike. CEQ
invites comment on whether it should add additional provisions to the
regulations to implement the ``minimal Federal funding'' exclusion in
Sec. 1508.1(u)(2)(i)(A). Agencies currently evaluate the provision of
minimal Federal funding based on specific factual contexts. CEQ is
interested in whether additional procedures, including thresholds for
the amount or proportion of Federal funding necessary for an agency
action to constitute major Federal action, could increase
predictability while ensuring that Federal agencies do not overlook
effects to vital components of the human environment, including the
health of children and vulnerable populations, drinking water,
communities with environmental justice concerns, and similar
considerations.
Paragraph (u)(2)(ii) would include the exclusion of funding
assistance solely in the form of general revenue sharing funds
consistent with section 111(10)(B)(ii) of NEPA. This exclusion would
replace the current, similar exclusion in 40 CFR 1508.1(q)(1)(v), which
CEQ proposes to strike.
Paragraph (u)(2)(iii) would include the exclusion of loans, loan
guarantees, or other forms of financial assistance where a Federal
agency does not exercise sufficient control and responsibility over the
subsequent use of such financial assistance or the effects of the
action, consistent with section 111(10)(B)(iii) of NEPA.
Paragraph (u)(2)(iv) would include the exclusion of certain
business loan guarantees provided by the Small Business Administration,
consistent with section 111(10)(B)(iv) of NEPA. These exclusions would
replace the current, similar exclusion in 40 CFR 1508.1(q)(1)(vii),
which CEQ proposes to strike. In particular, CEQ proposes to strike the
example currently in 40 CFR 1508.1(q)(1)(vii) for farm ownership and
operating loan guarantees by the Farm Service Agency pursuant to 7
U.S.C. 1925 and 1941 through 1949. CEQ considers it best left to
agencies to identify exclusions from the definition of major Federal
action absent specific statutory authority like those for the Small
Business Administration loan guarantees.
[[Page 49963]]
Next, CEQ proposes to move the existing exclusions, currently in 40
CFR 1508.1(q)(1)(iv), (q)(1)(i), and (q)(1)(ii) to paragraphs (u)(2)(v)
through (u)(2)(vii), respectively. Section 111(10)(B)(v) through (vii)
of NEPA codified these exclusions. Paragraph (u)(2)(v) would exclude
bringing judicial or administrative civil or criminal enforcement
actions. Paragraph (u)(2)(vi) would exclude extraterritorial activities
or decisions.\103\ Paragraph (u)(2)(vii) would exclude activities or
decisions that are non-discretionary. CEQ notes that there may be
activities or decisions that are partially non-discretionary. In such
circumstances, an agency may conclude that the non-discretionary
components of an activity or decision are not major Federal actions and
exclude the non-discretionary components from analysis. In such
circumstances, the agency would consider the discretionary components
of the activity or decision. For example, if a statute mandated an
agency to make an affirmative decision once a set of criteria are met,
but the agency has flexibility in how to meet those criteria, the
agency still has some discretion to consider alternatives and effects.
Similarly, if a statute directs an agency to take an action, but the
agency has discretion in how it takes that action, the agency can still
comply with NEPA while carrying out its statutory mandate.
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\103\ CEQ notes that the statutory exclusion of these activities
from the definition of major Federal action and therefore NEPA
review does not change the scope of environmental effects that
agencies should assess for actions that are subject to NEPA review.
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CEQ proposes to move the exclusion regarding final agency actions
from 40 CFR 1508.1(q)(1)(iii) to Sec. 1508.1(u)(2)(viii) and make
changes for consistency with section 106(a)(1). While section 106(a)(1)
of NEPA includes this as a threshold factor for not requiring an EIS or
EA, it is consistent with longstanding caselaw to exclude non-final
agency actions from the definition of major Federal action. Therefore,
CEQ proposes to include this as a threshold consideration as well as an
exclusion from the definition of major Federal action.
Finally, CEQ proposes a new exclusion in Sec. 1508.1(u)(2)(ix) for
activities or decisions for projects approved by a Tribal Nation that
occur on or involve land held in trust or restricted status when the
activities involve no Federal funding or other Federal involvement.
Recognizing the unique circumstances facing Tribal Nations due to the
United States holding land in trust for them or the Tribal Nation
holding land in restricted status, CEQ proposes this exclusion to
clarify that activities or decisions for projects approved by a Tribal
Nation on trust lands are not major Federal actions where such
activities do not involve Federal funding or other Federal involvement.
Tribal leaders raised this issue during consultations that CEQ held on
its NEPA regulations and voiced concerns that the NEPA process placed
Tribal Nations in a disadvantageous position relative to State and
local governments because of the United States' ownership interest in
Tribal lands. Categories of activities on trust lands that typically
will not constitute major Federal actions include transfer of existing
operation and maintenance activities of Federal facilities to Tribal
groups, water user organizations, or other entities; human resources
programs such as social services, education services, employment
assistance, Tribal operations, law enforcement, and credit and
financing activities not related to development; self-governance
compacts for Bureau of Indian Affairs programs; service line agreements
for an individual residence, building, or well from an existing
facility where installation will involve no clearance of vegetation
from the right-of-way other than for placement of poles, signs
(including highway signs), or buried power/cable lines; and approvals
of Tribal regulations or other documents promulgated in exercise of
Tribal sovereignty, such as Tribal Energy Resource Agreements,
certification of a Tribal Energy Development Organization, Helping
Expedite and Advance Responsible Tribal Homeownership Act Tribal
regulations, Indian Trust Asset Reform Act Tribal regulations and trust
asset management plans, and Tribal liquor control ordinances.
14. Mitigation (Sec. 1508.1(w))
CEQ proposes three edits to the definition of ``mitigation'' in
Sec. 1508.1(w). First, CEQ proposes to change ``nexus'' to the more
commonly used word ``connection'' to describe the relationship between
a proposed action or alternatives and any associated environmental
effects. Second, CEQ proposes to delete the sentence that NEPA ``does
not mandate the form or adoption of any mitigation'' because this
sentence is unnecessary and could mislead readers by not acknowledging
that agencies may use other authorities to require mitigation or may
incorporate mitigation in mitigated FONSIs (Sec. 1501.6) and RODs
(Sec. 1505.2). Third, CEQ proposes to add the clause ``in general
order of priority'' to the sentence, ``Mitigation includes'' which
introduces the list of mitigation types. This change would clarify that
the types of mitigation provided in paragraphs (u)(1) though (u)(5) are
listed in general order of priority, consistent with the familiar
``mitigation hierarchy.'' \104\ This list was prioritized in the 1978
regulations with avoidance coming before other types of mitigation and
this proposed addition highlights that intent, which is consistent with
longstanding agency practice.\105\
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\104\ See e.g., U.S. Dep't of the Interior, A Strategy for
Improving the Mitigation Policies and Practices of the Department of
the Interior 2-3 (Apr. 2014), https://www.doi.gov/sites/doi.gov/files/migrated/news/upload/Mitigation-Report-to-the-Secretary_FINAL_04_08_14.pdf (discussing the development of a
``mitigation hierarchy''--which starts with avoidance--in the
implementation of NEPA and the Clean Water Act); Bureau of Land
Mgmt., H-1794-1, Mitigation Handbook (P) 2-1 (Sept. 22, 2021),
https://www.blm.gov/sites/default/files/docs/2021-10/IM2021-046_att2.pdf (citing CEQ regulations and noting that the ``five
aspects of mitigation (avoid, minimize, rectify, reduce/eliminate,
compensate) are referred to as the mitigation hierarchy because they
are generally applied in a hierarchical manner''); U.S. Env't Prot.
Agency & U.S. Dep't of Def., Memorandums of Agreement (MOA); Clean
Water Act Section 404(b)(1) Guidelines; Correction, 55 FR 9210, 9211
(Mar. 12, 1990) (noting that under section 404 of the Clean Water
Act, the Army Corps of Engineers evaluates potential mitigation
efforts sequentially, starting with avoidance, minimization, and
then compensation).
\105\ See, e.g., 10 CFR 900.3 (defining a regional mitigation
approach under NEPA as ``an approach that applies the mitigation
hierarchy (first seeking to avoid, then minimize impacts, then, when
necessary, compensate for residual impacts)''); Presidential
Memorandum, Mitigating Impacts on Natural Resources From Development
and Encouraging Related Private Investment, 80 FR 68743, 68745 (Nov.
6, 2015) (addressing five agencies and noting that, ``[a]s a
practical matter, [mitigation is] captured in the terms avoidance,
minimization, and compensation. These three actions are generally
applied sequentially . . . .''); Fed. Highway Admin., NEPA and
Transportation Decisionmaking: Questions and Answers Regarding the
Consideration of Indirect and Cumulative Impacts in the NEPA Process
Question 9, https://www.environment.fhwa.dot.gov/nepa/QAimpact.aspx
(describing the importance of ``sequencing,'' which refers to the
process of prioritizing avoidance and minimization of effects over
replacement or compensation for NEPA mitigation efforts).
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15. Notice of Intent (Sec. 1508.1(y))
CEQ proposes to modify the definition of notice of intent to
include environmental assessments, as applicable. CEQ proposes this
change for consistency with Sec. 1501.5(j), which provides that
agencies may issue an NOI for an EA where it is appropriate to improve
efficiency and effectiveness, and Sec. 1501.10(b)(3)(iii), which sets
forth one of the three potential starting points from which deadlines
are measured for environmental assessments consistent with section
107(g)(1)(B)(iii).
[[Page 49964]]
16. Page (Sec. 1508.1(z))
CEQ proposes to modify the definition of ``page'' consistent with
section 107(e) of NEPA to exclude citations from the page limits for
EISs and EAs. CEQ proposes to retain the exclusions for maps, diagrams,
graphs, tables, and other means of graphically displaying quantitative
or geospatial information from the definition of ``page'' to facilitate
better NEPA documents. While agencies could move these visual
representations of information to appendices, which could come at the
end of an EIS or the end of EIS chapters, CEQ is concerned that this
will make the documents less functional to decision makers and the
public. Further, such graphical displays themselves could be considered
appendices consistent with the ordinary definition of appendix--
supplementary material usually attached at the end of a piece of
writing.\106\ CEQ invites comment on its proposed definition of
``page.''
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\106\ Merriam-Webster, https://www.merriam-webster.com/dictionary/appendix.
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17. Participating Federal Agency (Sec. 1508.1(bb))
CEQ proposes to add a definition of ``participating Federal
agency'' to Sec. 1508.1(bb) and define it consistent with the
definition of the same term in section 111(8) of NEPA.
18. Programmatic Environmental Document (Sec. 1508.1(cc))
CEQ proposes to add a definition of ``programmatic environmental
document'' to Sec. 1508.1(cc) and define it consistent with the
definition of the same term in section 111(11) of NEPA.
19. Scope (Sec. 1508.1(ii))
CEQ proposes to expand the definition of ``scope'' to include EAs
and revise the definition to include both the range and breadth of the
actions, alternatives, and effects to be considered in an EIS or EA,
consistent with CEQ's proposed relocation of the discussion of scope in
Sec. 1501.3(b). As discussed further in section II.C.2, agencies have
long examined the scope of their actions to determine what alternatives
and effects they must analyze. This is a fact-specific analysis that
agencies undertake informed by their statutory authority and control
and responsibility over the activity. CEQ also proposes to strike the
last sentence regarding tiering because it is not definitional language
and is unnecessary because this concept is more fully addressed in
Sec. 1501.11.
20. Significant Effects (Sec. 1508.1(kk))
CEQ proposes to add a definition for ``significant effects'' to
provide a definition for those effects that are of vital importance in
the NEPA process in determining the appropriate level of review. The
proposed definition would align with the restoration of the context and
intensity factors for determining significance in Sec. 1501.3(d). CEQ
proposes to define ``significant effects'' as adverse effects
identified by an agency as significant based on the criteria set forth
in Sec. 1501.3(d). This would clarify that beneficial effects are not
significant effects as the phrase is used in NEPA and, therefore, do
not require an agency to prepare an EIS. CEQ proposes this as an
alternative approach to the proposal in Sec. 1501.3(d)(2)(i) where an
action ``does not'' require an EIS when it would result only in
significant beneficial effects. If CEQ includes this definition in the
final rule, this approach would mean that an agency would not need to
prepare an EIS if a proposed action's effects are exclusively
beneficial. However, irrespective of the level of NEPA review, agencies
would still need to analyze both adverse and beneficial effects in NEPA
documents if they are reasonably foreseeable. CEQ invites comment on
the definition, specifically on the inclusion of ``adverse'' in the
definition, and comments on whether the approach in Sec.
1501.3(d)(2)(i) or Sec. 1508.1(kk) is preferred and the reasons why.
Finally, CEQ invites the public to submit any examples of EAs or EISs
where there were significant effects that were purely beneficial.
21. Tiering (Sec. 1508.1(mm))
CEQ proposes to revise the definition of tiering to cross reference
the process as set forth in Sec. 1501.11. CEQ is proposing this
revision to avoid any potential inconsistencies between the definition
and the provisions of Sec. 1501.11.
III. Rulemaking Analyses and Notices
A. Executive Order 12866, Regulatory Planning and Review
E.O. 12866 provides that the Office of Information and Regulatory
Affairs will review all significant rules.\107\ 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.\108\ This proposed rule is a
significant regulatory action under section 3(f)(1) of E.O. 12866 that
CEQ submitted to OMB for review. The proposed changes would improve the
CEQ regulations to benefit agencies and the public. Furthermore, an
effective NEPA process can save time and reduce overall project costs
by providing a clear process for evaluating alternatives and effects,
coordinating agencies and relevant stakeholders including the public,
and identifying and avoiding problems--including potential significant
effects--that may occur in later stages of project development.\109\
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, but CEQ has prepared a qualitative analysis in the
accompanying regulatory impact analysis.
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\107\ Regulatory Planning and Review, 58 FR 51735 (Oct. 4,
1993).
\108\ E.O. 13563, Improving Regulation and Regulatory Review, 76
FR 3821 (Jan. 21, 2011).
\109\ See generally 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.
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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, Proper Consideration of Small Entities in Agency
Rulemaking,\110\ 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 an Initial Regulatory Flexibility
Analysis unless it determines and certifies that a proposed rule, if
promulgated, would not have a significant economic impact on a
substantial number of small entities. 5 U.S.C. 605(b). The proposed
rule would not directly regulate small entities. Rather, the proposed
rule would apply to Federal agencies and set forth the process for
their compliance with NEPA. Accordingly, CEQ hereby certifies that the
proposed rule, if promulgated, would not have a significant economic
impact on a substantial number of small entities.
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\110\ 67 FR 53461 (Aug. 16, 2002).
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[[Page 49965]]
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.\111\ 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.'' \112\ Similarly, in
1986, while CEQ stated in the final rule 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 EA.\113\ The special EA issued in 1986
supported a FONSI, and there was no finding made for the assessment of
the 1978 final rule. CEQ also prepared a special EA and reached a FONSI
for the Phase 1 rulemaking.
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\111\ National Environmental Policy Act--Regulations: Proposed
Implementation of Procedural Provisions, 43 FR 25230, 25232 (June 9,
1978); see E.O. 11991, supra note 26.
\112\ National Environmental Policy Act--Regulations: Proposed
Implementation of Procedural Provisions, supra note 111, at 25232.
\113\ National Environmental Policy Act Regulations; Incomplete
or Unavailable Information, supra note 29, at 15619.
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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 EA or an EIS prior to the promulgation of its procedures
creating a CE). Nevertheless, based on past practice, CEQ has developed
a special EA and has posted it in the docket. CEQ invites comments on
the special EA.
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.\114\ 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.\115\ CEQ does not anticipate that this proposed rule has
federalism implications because it applies to Federal agencies, not
States.
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\114\ E.O. 13132, Federalism, 64 FR 43255 (Aug. 10, 1999).
\115\ Id.
---------------------------------------------------------------------------
E. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
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.\116\ 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.\117\ CEQ has assessed the impact of this
proposed rule on Indian Tribal governments and has determined
preliminarily that the proposed rule does significantly or uniquely
affect these communities and seeks comment on this preliminary
determination. CEQ engaged in government-to-government consultation
with federally recognized Tribes on the Phase 2 rulemaking. As required
by E.O. 13175, CEQ held a Tribal consultation on this rulemaking on
November 12, 2021, and will be holding additional consultations during
the public comment period.
---------------------------------------------------------------------------
\116\ E.O. 13175, supra note 53.
\117\ Id.
---------------------------------------------------------------------------
F. Executive Order 12898, Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096, Revitalizing Our Nation's Commitment to
Environmental Justice for All
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
communities of color and low-income communities.\118\ E.O. 14096
charges agencies to make achieving environmental justice part of its
mission consistent with statutory authority by identifying, analyzing,
and addressing disproportionate and adverse human health and
environmental effects and hazards of Federal activities, including
those related to climate change and cumulative impacts of environmental
and other burdens on communities with environmental justice concerns.
---------------------------------------------------------------------------
\118\ E.O. 12898, supra note 7.
---------------------------------------------------------------------------
CEQ has analyzed this proposed rule and preliminarily determined
that it would not cause disproportionate and adverse human health or
environmental effects on communities with environmental justice
concerns. This rule would set forth implementing regulations for NEPA;
it is in the agency implementation of NEPA when conducting reviews of
proposed agency actions where consideration of environmental justice
effects typically occurs. CEQ invites comment on this preliminary
determination.
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.\119\ CEQ has preliminarily 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.
---------------------------------------------------------------------------
\119\ E.O. 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use, 66 FR
28355 (May 22, 2001).
---------------------------------------------------------------------------
H. Executive Order 12988, Civil Justice Reform
Under section 3(a) of E.O. 12988, 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.\120\ Section 3(b) provides a list of specific
issues for review to conduct the reviews required by section 3(a).\121\
CEQ has conducted this review and determined that this proposed rule
complies with the requirements of E.O. 12988.
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\120\ E.O. 12988, Civil Justice Reform, 61 FR 4729, 4731 (Feb.
7, 1996).
\121\ Id.
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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 Tribal, State, 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 Tribal, State, 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 Tribal, State, and
local governments and the private sector. 2 U.S.C. 1532. This proposed
rule would apply to Federal agencies and would not result in
expenditures of $100 million or more for Tribal, State, and local
governments, in the aggregate, or the private sector in any 1 year.
This
[[Page 49966]]
proposed action also would 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 proposed rule would not impose any new information collection
burden that would require additional review or approval by OMB under
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
List of Subjects in 40 CFR Parts 1500, 1501, 1502, 1503, 1504,
1505, 1506, 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 proposes to amend 40 CFR chapter V by revising
subchapter A to read as follows:
0
1. Revise subchapter A to read as follows:
PART 1500--PURPOSE AND POLICY
Sec.
1500.1 Purpose.
1500.2 Policy.
1500.3 NEPA compliance.
1500.4 Concise and informative environmental documents.
1500.5 Efficient process.
1500.6 Agency authority.
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.
PART 1501--NEPA AND AGENCY PLANNING
Sec.
1501.1 Purpose.
1501.2 Apply NEPA early in the process.
1501.3 Determine the appropriate level of NEPA review.
1501.4 Categorical exclusions.
1501.5 Environmental assessments.
1501.6 Findings of no significant impact.
1501.7 Lead agency.
1501.8 Cooperating agencies.
1501.9 Public and governmental engagement.
1501.10 Deadlines and schedule for the NEPA process.
1501.11 Programmatic environmental documents and tiering.
1501.12 Incorporation by reference into environmental documents.
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.
PART 1502--ENVIRONMENTAL IMPACT STATEMENT
Sec.
1502.1 Purpose of environmental impact statement.
1502.2 Implementation.
1502.3 Statutory requirements for environmental impact statements.
1502.4 Scoping.
1502.5 Timing.
1502.6 Interdisciplinary preparation.
1502.7 Page limits.
1502.8 Writing.
1502.9 Draft, final, and supplemental statements.
1502.10 Recommended format.
1502.11 Cover.
1502.12 Summary.
1502.13 Purpose and need.
1502.14 Alternatives including the proposed action.
1502.15 Affected environment.
1502.16 Environmental consequences.
1502.17 Summary of scoping information.
1502.18 List of preparers.
1502.19 Appendix.
1502.20 Publication of the environmental impact statement.
1502.21 Incomplete or unavailable information.
1502.22 Cost-benefit analysis.
1502.23 Methodology and scientific accuracy.
1502.24 Environmental review and consultation requirements.
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.
PART 1503--COMMENTING ON ENVIRONMENTAL IMPACT STATEMENTS
Sec.
1503.1 Inviting comments and requesting information and analyses.
1503.2 Duty to comment.
1503.3 Specificity of comments and information.
1503.4 Response to comments.
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.
PART 1504--PRE-DECISIONAL REFERRALS TO THE COUNCIL OF PROPOSED
FEDERAL ACTIONS DETERMINED TO BE ENVIRONMENTALLY UNSATISFACTORY
Sec.
1504.1 Purpose.
1504.2 Early dispute resolution.
1504.3 Criteria and procedure for referrals and response.
PART 1505--NEPA AND AGENCY DECISION MAKING
Sec.
1505.1 [Reserved]
1505.2 Record of decision in cases requiring environmental impact
statements.
1505.3 Implementing the decision.
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.
PART 1506--OTHER REQUIREMENTS OF NEPA
Sec.
1506.1 Limitations on actions during NEPA process.
1506.2 Elimination of duplication with State, Tribal, and local
procedures.
1506.3 Adoption.
1506.4 Combining documents.
1506.5 Agency responsibility for environmental documents.
1506.6 [Reserved]
1506.7 Further guidance.
1506.8 Proposals for legislation.
1506.9 Filing requirements.
1506.10 Timing of agency action.
1506.11 Emergencies.
1506.12 Innovative approaches to NEPA reviews.
1506.13 Effective date.
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.
PART 1507--AGENCY COMPLIANCE
Sec.
1507.1 Compliance.
1507.2 Agency capability to comply.
1507.3 Agency NEPA procedures.
1507.4 Agency NEPA program information.
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.
PART 1508--DEFINITIONS
Sec.
1508.1 Definitions.
1508.2 [Reserved]
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.
PART 1500--PURPOSE AND POLICY
Sec. 1500.1 Purpose.
(a) The National Environmental Policy Act (NEPA) is the basic
national charter for protection of the environment. It establishes
policy, sets goals (section 101), and provides direction (section 102)
for carrying out the policy.
[[Page 49967]]
(1) Section 101(a) of NEPA establishes the national environmental
policy of the Federal Government to use all practicable means and
measures to foster and promote the general welfare, create and maintain
conditions under which people and nature can exist in productive
harmony, and fulfill the social, economic, and other requirements of
present and future generations. Section 101(b) of NEPA establishes the
continuing responsibility of the Federal Government to use all
practicable means, consistent with other essential considerations of
national policy, to help each generation serve as a trustee of the
environment for succeeding generations; assure for all people safe,
healthful, productive, and aesthetically and culturally pleasing
surroundings; attain the widest range of beneficial uses of the
environment without degradation, risk to health or safety, or other
undesirable and unintended consequences; preserve important historic,
cultural, and natural aspects of our national heritage, and maintain,
wherever possible, an environment which supports diversity and variety
of individual choice; achieve a balance between population and resource
use which will permit high standards of living and a wide sharing of
life's amenities; and enhance the quality of renewable resources and
approach the maximum attainable recycling of depletable resources.
(2) Section 102(2) of NEPA establishes procedural requirements to
carry out the policy and responsibilities established in section 101 of
NEPA and contains ``action-forcing'' procedural provisions to ensure
Federal agencies implement the letter and spirit of the Act. The
purpose of the regulations in this subchapter is to set forth what
Federal agencies must and should do to comply with the procedures and
achieve the goals of the Act. The President, the Federal agencies, and
the courts share responsibility for enforcing the Act so as to achieve
the policy goals of section 101.
(b) Federal agency NEPA procedures must ensure that agencies
identify, consider, and disclose to the public relevant environmental
information early in the process before decisions are made and before
actions are taken. The information should be of high quality, science-
based, and accessible. Accurate scientific analysis, expert agency
comments, and public scrutiny are essential to implementing NEPA. Most
important, environmental documents must concentrate on the issues that
are truly relevant to the action in question, rather than amassing
needless detail. The regulations in this subchapter also are intended
to ensure that Federal agencies conduct environmental reviews in a
coordinated, consistent, predictable, and timely manner, and to reduce
unnecessary burdens and delays. Finally, the regulations in this
subchapter promote concurrent environmental reviews to ensure timely
and efficient decision making.
(c) Ultimately, of course, it is not better documents but better
decisions that count. NEPA's purpose is not to generate paperwork--even
excellent paperwork--but to foster excellent action. The NEPA process
is intended to help public officials make decisions that are based on
an understanding of environmental consequences and take actions that
protect, restore, and enhance the environment. The regulations in this
subchapter provide the direction to achieve this purpose.
Sec. 1500.2 Policy.
Federal agencies shall to the fullest extent possible:
(a) Interpret and administer the policies, regulations, and public
laws of the United States in accordance with the policies set forth in
the Act and in these regulations.
(b) Implement procedures to make the NEPA process more useful to
decision makers and the public; to reduce paperwork and the
accumulation of extraneous background data; and to emphasize important
environmental issues and alternatives. Environmental documents shall be
concise, clear, and supported by evidence that agencies have conducted
the necessary environmental analyses.
(c) Integrate the requirements of NEPA with other planning and
environmental review procedures required by law or by agency practice
so that all such procedures run concurrently rather than consecutively.
(d) Encourage and facilitate public engagement in decisions that
affect the quality of the human environment, including meaningful
engagement with communities with environmental justice concerns, which
often include communities of color, low-income communities, indigenous
communities, and Tribal communities.
(e) Use the NEPA process to identify and assess the reasonable
alternatives to proposed actions that will avoid or minimize adverse
effects of these actions upon the quality of the human environment,
such as alternatives that will reduce climate change-related effects or
address adverse health and environmental effects that
disproportionately affect communities with environmental justice
concerns.
(f) Use all practicable means, consistent with the requirements of
the Act and other essential considerations of national policy, to
restore and enhance the quality of the human environment and avoid or
minimize any possible adverse effects of their actions upon the quality
of the human environment.
Sec. 1500.3 NEPA compliance.
(a) Mandate. This subchapter is applicable to and binding on all
Federal agencies for implementing the procedural provisions of the
National Environmental Policy Act of 1969, as amended (Pub. L. 91-190,
42 U.S.C. 4321 et seq.) (NEPA or the Act). The regulations in this
subchapter are issued pursuant to NEPA; the Environmental Quality
Improvement Act of 1970, as amended (Pub. L. 91-224, 42 U.S.C. 4371 et
seq.); and Executive Order 11514, Protection and Enhancement of
Environmental Quality (March 5, 1970), as amended by Executive Order
11991, Relating to the Protection and Enhancement of Environmental
Quality (May 24, 1977). The regulations in this subchapter apply to the
whole of section 102(2) of NEPA. The provisions of the Act and the
regulations in this subchapter must be read together as a whole to
comply with the Act.
(b) Review of NEPA compliance. It is the Council's intention that
judicial review of agency compliance with the regulations in this
subchapter not occur before an agency has issued the record of decision
or taken other final agency action, except with respect to claims
brought by project sponsors related to deadlines under section
107(g)(3) of NEPA. It is also the Council's intention that minor, non-
substantive errors that have no effect on agency decision making shall
be considered harmless and shall not invalidate an agency action.
(c) Severability. The sections of this subchapter are separate and
severable from one another. If any section or portion therein is stayed
or determined to be invalid, or the applicability of any section to any
person or entity is held invalid, it is the Council's intention that
the validity of the remainder of those parts shall not be affected,
with the remaining sections to continue in effect.
Sec. 1500.4 Concise and informative environmental documents.
Agencies shall prepare analytical, concise, and informative
environmental documents by:
(a) Meeting appropriate page limits (Sec. Sec. 1501.5(g) and
1502.7 of this subchapter).
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(b) Discussing only briefly issues other than important ones (e.g.,
Sec. 1502.2(b) of this subchapter).
(c) Writing environmental documents in plain language (e.g., Sec.
1502.8 of this subchapter).
(d) Following a clear format for environmental impact statements
(Sec. 1502.10 of this subchapter).
(e) Emphasizing the portions of the environmental document that are
most useful to decision makers and the public (e.g., Sec. Sec.
1502.14, 1502.15, and 1502.16 of this subchapter) and reducing emphasis
on background material (e.g., Sec. 1502.1 of this subchapter).
(f) Using the scoping process to identify important environmental
issues deserving of study and to deemphasize unimportant issues,
narrowing the scope of the environmental impact statement process (or,
where an agency elects to do so, the environmental assessment process)
accordingly (Sec. Sec. 1501.9 and 1502.4 of this subchapter).
(g) Summarizing the environmental impact statement (Sec. 1502.12
of this subchapter).
(h) Using programmatic environmental documents and tiering from
documents of broad scope to those of narrower scope, to eliminate
repetitive discussions of the same issues (Sec. 1501.11 of this
subchapter).
(i) Incorporating by reference (Sec. 1501.12 of this subchapter).
(j) Integrating NEPA requirements with other environmental review
and consultation requirements (Sec. 1502.24 of this subchapter).
(k) Requiring that comments be as specific as possible (Sec.
1503.3 of this subchapter).
(l) Attaching and publishing only changes to the draft
environmental impact statement, rather than rewriting and publishing
the entire statement, when changes are minor (Sec. 1503.4(c) of this
subchapter).
(m) Eliminating duplication with State, Tribal, and local
procedures, by providing for joint preparation of environmental
documents where practicable (Sec. 1506.2 of this subchapter), and with
other Federal procedures, by providing that an agency may adopt
appropriate environmental documents prepared by another Federal agency
(Sec. 1506.3 of this subchapter).
(n) Combining environmental documents with other documents (Sec.
1506.4 of this subchapter).
Sec. 1500.5 Efficient process.
Agencies shall improve efficiency of their NEPA processes by:
(a) Using categorical exclusions to define categories of actions
that normally do not have a significant effect on the human environment
(Sec. 1501.4 of this subchapter) and therefore do not require
preparation of an environmental assessment or environmental impact
statement.
(b) Using a finding of no significant impact when an action not
otherwise excluded will not have a significant effect on the human
environment (Sec. 1501.6 of this subchapter) and therefore does not
require preparation of an environmental impact statement.
(c) Integrating the NEPA process into early planning (Sec. 1501.2
of this subchapter).
(d) Engaging in interagency cooperation before or during the
preparation of an environmental assessment or environmental impact
statement, rather than waiting to submit comments on a completed
document (Sec. Sec. 1501.7 and 1501.8 of this subchapter).
(e) Ensuring the swift and fair resolution of lead agency disputes
(Sec. 1501.7 of this subchapter).
(f) Using the scoping process for early identification of the
important issues that require detailed analysis (Sec. 1502.4 of this
subchapter).
(g) Meeting appropriate deadlines for the environmental assessment
and environmental impact statement processes (Sec. 1501.10 of this
subchapter).
(h) Preparing environmental documents early in the process (Sec.
1502.5 and Sec. 1501.5(d) of this subchapter).
(i) Integrating NEPA requirements with other environmental review
and consultation requirements (Sec. 1502.24 of this subchapter).
(j) Eliminating duplication with State, Tribal, and local
procedures by providing for joint preparation of environmental
documents where practicable (Sec. 1506.2 of this subchapter) and with
other Federal procedures by providing that agencies may jointly prepare
or adopt appropriate environmental documents prepared by another agency
(Sec. 1506.3 of this subchapter).
(k) Combining environmental documents with other documents (Sec.
1506.4 of this subchapter).
(l) Using accelerated procedures for proposals for legislation
(Sec. 1506.8 of this subchapter).
Sec. 1500.6 Agency authority.
Each agency shall interpret the provisions of the Act as a
supplement to its existing authority and as a mandate to view policies
and missions in the light of the Act's national environmental
objectives, to the extent consistent with its existing authority.
Agencies shall review their policies, procedures, and regulations
accordingly and revise them as necessary to ensure full compliance with
the purposes and provisions of the Act and the regulations in this
subchapter. The phrase ``to the fullest extent possible'' in section
102 of NEPA means that each agency of the Federal Government shall
comply with that section unless an agency activity, decision, or action
is exempted from NEPA by law or compliance with NEPA is impossible.
PART 1501--NEPA AND AGENCY PLANNING
Sec. 1501.1 Purpose.
The purposes of this part include:
(a) Integrating the NEPA process into agency planning at an early
stage to facilitate appropriate consideration of NEPA's policies,
promote an efficient process, and reduce delay.
(b) Providing for early engagement in the environmental review
process with other agencies, State, Tribal, and local governments, and
affected or interested persons, entities, and communities before a
decision is made.
(c) Providing for the swift and fair resolution of interagency
disputes.
(d) Identifying at an early stage the important environmental
issues deserving of study, and deemphasizing unimportant issues,
narrowing the scope of the environmental review and enhancing
efficiency accordingly.
(e) Promoting accountability by establishing appropriate deadlines
and requiring schedules.
Sec. 1501.2 Apply NEPA early in the process.
(a) Agencies should integrate the NEPA process with other planning
and authorization processes at the earliest reasonable time to ensure
that agencies consider environmental impacts in their planning and
decisions, to avoid delays later in the process, and to head off
potential conflicts.
(b) Each agency shall:
(1) Comply with the mandate of section 102(2)(A) of NEPA to utilize
a systematic, interdisciplinary approach, which will ensure the
integrated use of the natural and social sciences and the environmental
design arts in planning and in decision making that may have an impact
on the human environment, as specified by Sec. 1507.2(a) of this
subchapter.
(2) Identify environmental effects and values in adequate detail so
the decision maker can appropriately consider such effects and values
alongside economic and technical analyses. Whenever practicable,
agencies shall review and publish environmental documents and
appropriate analyses at the same time as other planning documents.
[[Page 49969]]
(3) Study, develop, and describe appropriate alternatives to
recommended courses of action in any proposal that involves unresolved
conflicts concerning alternative uses of available resources, as
provided by section 102(2)(H) of NEPA.
(4) Provide for actions subject to NEPA that are planned by
applicants or other non-Federal entities before Federal involvement so
that:
(i) Policies or designated staff are available to advise potential
applicants of studies or other information foreseeably required for
later Federal action.
(ii) The Federal agency consults early with appropriate State,
Tribal, and local governments and with interested individuals and
organizations when their involvement is reasonably foreseeable.
(iii) The Federal agency commences its NEPA process at the earliest
reasonable time (Sec. Sec. 1501.5(d) and 1502.5(b) of this
subchapter).
Sec. 1501.3 Determine the appropriate level of NEPA review.
(a) Applicability. As a threshold determination, an agency shall
assess whether NEPA applies to the proposed activity or decision. In
assessing whether NEPA applies, Federal agencies should determine:
(1) Whether the proposed activity or decision is exempted from NEPA
by law;
(2) Whether compliance with NEPA would clearly and fundamentally
conflict with the requirements of another provision of law;
(3) Whether statutory provisions applicable to the agency's
proposed activity or decision make compliance with NEPA impossible; and
(4) Whether the proposed activity or decision is a major Federal
action, including whether:
(i) The proposed activity or decision is a final agency action
within the meaning of such term in chapter 5 of title 5, United States
Code (Sec. 1508.1(u)(2)(viii)); or
(ii) The proposed activity or decision is a non-discretionary
action with respect to which such agency does not have authority to
take environmental factors into consideration in determining whether to
take the proposed action (Sec. 1508.1(u)(2)(vi)).
(b) Scope of action and analysis. If the agency determines that
NEPA applies, the agency shall consider the scope of the proposed
action and its potential effects to inform the agency's determination
of the appropriate level of NEPA review. The agency shall evaluate, in
a single review, proposals or parts of proposals that are related
closely enough to be, in effect, a single course of action. The agency
also shall consider whether there are connected actions, which are
closely related Federal activities or decisions that should be
considered in the same NEPA review that:
(1) Automatically trigger other actions that may require NEPA
review;
(2) Cannot or will not proceed unless other actions are taken
previously or simultaneously; or
(3) Are interdependent parts of a larger action and depend on the
larger action for their justification.
(c) Levels of NEPA review. In assessing the appropriate level of
NEPA review, agencies may make use of any reliable data source and are
not required to undertake new scientific or technical research unless
it is essential to a reasoned choice among alternatives, and the
overall costs and timeframe of obtaining it are not unreasonable.
Agencies should determine whether the proposed action:
(1) Normally does not have significant effects and is categorically
excluded (Sec. 1501.4);
(2) Is not likely to have significant effects or the significance
of the effects is unknown and is therefore appropriate for an
environmental assessment (Sec. 1501.5); or
(3) Is likely to have significant effects and is therefore
appropriate for an environmental impact statement (part 1502 of this
subchapter).
(d) Significance determination--context and intensity. In
considering whether the effects of the proposed action are significant,
agencies shall examine both the context of an action and the intensity
of the effects.
(1) Agencies shall analyze the significance of an action in several
contexts. Agencies should consider the characteristics of the relevant
geographic area, such as proximity to unique or sensitive resources or
vulnerable communities. Depending on the scope of the action, agencies
should consider the potential global, national, regional, and local
contexts as well as the duration, including short-and long-term
effects.
(2) Agencies shall analyze the intensity of effects considering the
following factors, as applicable and in relationship to one another:
(i) Effects may be beneficial or adverse. However, only actions
with significant adverse effects require an environmental impact
statement. A significant adverse effect may exist even if the agency
considers that on balance the effects of the action will be beneficial.
Agencies should consider the duration of effects; for instance, a
proposed action may have short-term adverse effects but long-term
beneficial effects.
(ii) The degree to which the proposed action may adversely affect
public health and safety.
(iii) The degree to which the proposed action may adversely affect
unique characteristics of the geographic area such as historic or
cultural resources, park lands, Tribal sacred sites, prime farmlands,
wetlands, wild and scenic rivers, or ecologically critical areas.
(iv) Whether the action may violate relevant Federal, State,
Tribal, or local laws or other requirements or be inconsistent with
Federal, State, Tribal, or local policies designed for the protection
of the environment.
(v) The degree to which the potential effects on the human
environment are highly uncertain.
(vi) The degree to which the action may relate to other actions
with adverse environmental effects, including actions that are
individually insignificant but significant in the aggregate.
Significance cannot be avoided by terming an action temporary that is
not temporary in fact or by segmenting it into small component parts.
(vii) The degree to which the action may adversely affect resources
listed or eligible for listing in the National Register of Historic
Places.
(viii) The degree to which the action may adversely affect an
endangered or threatened species or its habitat, including habitat that
has been determined to be critical under the Endangered Species Act of
1973.
(ix) The degree to which the action may have disproportionate and
adverse effects on communities with environmental justice concerns.
(x) The degree to which the action may adversely affect rights of
Tribal Nations that have been reserved through treaties, statutes, or
Executive Orders.
Sec. 1501.4 Categorical exclusions.
(a) For efficiency and consistent with Sec. 1507.3(c)(8)(ii) of
this subchapter, agencies shall establish categorical exclusions for
categories of actions that normally do not have a significant effect on
the human environment, individually or in the aggregate, and therefore
do not require preparation of an environmental assessment or
environmental impact statement unless extraordinary circumstances exist
that make application of the categorical exclusion inappropriate,
consistent with paragraph (b) of this section. Agencies may establish
categorical exclusions individually or jointly with other agencies.
[[Page 49970]]
(b) If an agency determines that a categorical exclusion identified
in its agency NEPA procedures covers a proposed action, the agency
shall evaluate the action for extraordinary circumstances in which a
normally excluded action may have a significant effect.
(1) If an extraordinary circumstance exists, the agency
nevertheless may apply the categorical exclusion if the agency conducts
an analysis and determines that the proposed action does not in fact
have the potential to result in significant effects notwithstanding the
extraordinary circumstance or the agency modifies the action to address
the extraordinary circumstance. In such cases, the agency shall
document such determination and should publish it on the agency's
website or otherwise make it publicly available.
(2) If the agency cannot categorically exclude the proposed action,
the agency shall prepare an environmental assessment or environmental
impact statement, as appropriate.
(c) In addition to the process for establishing categorical
exclusions under Sec. 1507.3(c)(8) of this subchapter, agencies may
establish categorical exclusions through a land use plan, a decision
document supported by a programmatic environmental impact statement or
programmatic environmental assessment, or other equivalent planning or
programmatic decision, so long as the agency:
(1) Provides the Council an opportunity to review and comment prior
to public comment;
(2) Provides notification and an opportunity for public comment;
(3) Substantiates its determination that the category of actions
normally does not have significant effects, individually or in the
aggregate;
(4) Identifies extraordinary circumstances;
(5) Establishes a process for determining that a categorical
exclusion applies to a specific action or actions in the absence of
extraordinary circumstances, or, where extraordinary circumstances are
present, for determining the agency may apply the categorical exclusion
consistent with (b)(1) of this section; and
(6) Publishes a list of all categorical exclusions established
through these mechanisms on its website.
(d) Categorical exclusions established consistent with paragraph
(c) of this section or Sec. 1507.3(c)(8) may:
(1) Cover specific geographic areas or areas that share common
characteristics, e.g., habitat type;
(2) Have a limited duration;
(3) Include mitigation measures that, in the absence of
extraordinary circumstances, will ensure that any environmental effects
are not significant, so long as a process is established for monitoring
and enforcing any required mitigation measures, including through the
suspension or revocation of the relevant agency action; or
(4) Provide criteria that would cause the categorical exclusion to
expire because the agency's determination that the category of action
does not have significant effects, individually or in the aggregate, is
no longer applicable, including, as appropriate, because:
(i) The number of individual actions covered by the categorical
exclusion exceeds a specific threshold;
(ii) Individual actions covered by the categorical exclusion are
too close to one another in proximity or time; or
(iii) Environmental conditions or information upon which the
agency's determination was based have changed.
(e) An agency may apply a categorical exclusion listed in another
agency's NEPA procedures to a proposed action or a category of proposed
actions consistent with this paragraph. The agency shall:
(1) Identify the categorical exclusion listed in another agency's
NEPA procedures that covers its proposed action or a category of
proposed actions;
(2) Consult with the agency that established the categorical
exclusion to ensure that the proposed application of the categorical
exclusion is appropriate;
(3) Evaluate the proposed action or category of proposed actions
for extraordinary circumstances, consistent with paragraph (b) of this
section;
(4) Provide public notice of the categorical exclusion that the
agency plans to use for the proposed action or category of proposed
actions; and
(5) Publish the documentation of the application of the categorical
exclusion.
Sec. 1501.5 Environmental assessments.
(a) An agency shall prepare an environmental assessment for a
proposed action that is not likely to have significant effects or when
the significance of the effects is unknown unless the agency finds that
a categorical exclusion (Sec. 1501.4) is applicable or has decided to
prepare an environmental impact statement.
(b) An agency may prepare an environmental assessment on any action
to assist agency planning and decision making.
(c) An environmental assessment shall:
(1) Briefly provide sufficient evidence and analysis for
determining whether to prepare an environmental impact statement or a
finding of no significant impact;
(2) Briefly discuss the:
(i) Purpose and need for the proposed agency action;
(ii) Alternatives as required by section 102(2)(H) of NEPA; and
(iii) Environmental effects of the proposed action and
alternatives;
(3) List the Federal agencies; State, Tribal, and local governments
and agencies; or persons consulted; and
(4) Provide a unique identification number for tracking purposes,
which the agency shall reference on all associated environmental review
documents prepared for the proposed action.
(d) For applications to the agency requiring an environmental
assessment, the agency shall commence the environmental assessment as
soon as practicable after receiving the application.
(e) If an agency publishes a draft environmental assessment, the
agency shall invite public comment and consider those comments in
preparing the final environmental assessment.
(f) Agencies shall involve the public, State, Tribal, and local
governments, relevant agencies, and any applicants, to the extent
practicable in preparing environmental assessments (see Sec. 1501.9).
(g) The text of an environmental assessment shall not exceed 75
pages, not including any citations or appendices.
(h) Agencies may supplement environmental assessments if a major
Federal action remains to occur, and the agency determines
supplementation is appropriate. Agencies may reevaluate an
environmental assessment or otherwise document a finding that changes
to the proposed action or new circumstances or information relevant to
environmental concerns are not substantial, or the underlying
assumptions of the analysis remain valid.
(i) Agencies generally should apply the provisions of Sec. Sec.
1502.21 and 1502.23 to environmental assessments.
(j) As appropriate to improve efficiency and effectiveness of
environmental assessments, agencies may apply the other provisions of
part 1502 and 1503 of this subchapter, including Sec. Sec. 1502.4,
1502.22, 1502.24, and 1503.4, to environmental assessments.
Sec. 1501.6 Findings of no significant impact.
(a) An agency shall prepare a finding of no significant impact if
the agency determines, based on the environmental
[[Page 49971]]
assessment, not to prepare an environmental impact statement because
the proposed action will not have significant effects, or a mitigated
finding of no significant impact because the proposed action will not
have significant effects due to mitigation.
(1) The agency shall make the finding of no significant impact
available to the affected public as specified in Sec. 1501.9(d)(2) of
this subchapter.
(2) In the following circumstances, the agency shall make the
finding of no significant impact available for public review for 30
days before the agency makes its final determination whether to prepare
an environmental impact statement and before the action may begin:
(i) The proposed action is or is closely similar to one that
normally requires the preparation of an environmental impact statement
under the procedures adopted by the agency pursuant to Sec. 1507.3 of
this subchapter; or
(ii) The nature of the proposed action is one without precedent.
(b) The finding of no significant impact shall include the
environmental assessment or incorporate it by reference and shall note
any other environmental documents related to it (Sec. 1502.4(d)(3)).
If the environmental assessment is included, the finding need not
repeat any of the discussion in the assessment but may incorporate it
by reference.
(c) The finding of no significant impact shall state the authority
for any mitigation that the agency has adopted and any applicable
monitoring or enforcement provisions. If the agency finds no
significant effects based on mitigation, the mitigated finding of no
significant impact shall state the enforceable mitigation requirements
or commitments that will be undertaken and the authority to enforce
them, such as permit conditions, agreements, or other measures. In
addition, the agency shall prepare a monitoring and compliance plan for
any mitigation the agency relies on as a component of the proposed
action consistent with Sec. 1505.3(c) of this subchapter.
Sec. 1501.7 Lead agency.
(a) A lead agency shall supervise the preparation of an
environmental impact statement or environmental assessment if more than
one Federal agency either:
(1) Proposes or is involved in the same action; or
(2) Is involved in a group of actions directly related to each
other because of their functional interdependence or geographical
proximity.
(b) Federal, State, Tribal, or local agencies may serve as a joint
lead agency to prepare an environmental impact statement or
environmental assessment (Sec. 1506.2 of this subchapter). A joint
lead agency shall jointly fulfill the role of a lead agency.
(c) If an action falls within the provisions of paragraph (a) of
this section, the participating Federal agencies shall determine, by
letter or memorandum, which agencies will be lead or joint lead
agencies, and the lead agency shall determine which agencies will be
cooperating agencies. The agencies shall resolve the lead agency
question so as not to cause delay. If there is disagreement among the
agencies, the following factors (which are listed in order of
descending importance) shall determine lead agency designation:
(1) Magnitude of agency's involvement;
(2) Project approval or disapproval authority;
(3) Expertise concerning the action's environmental effects;
(4) Duration of agency's involvement; and
(5) Sequence of agency's involvement.
(d) Any Federal, State, Tribal, or local agency or individual
substantially affected by the absence of a lead agency designation, may
make a written request to the senior agency officials of the potential
lead agencies that a lead agency be designated. An agency that receives
a request under this paragraph shall transmit such request to each
participating Federal agency and to the Council.
(e) If Federal agencies are unable to agree on which agency will be
the lead agency or if the procedure described in paragraph (c) of this
section has not resulted in a lead agency designation within 45 days of
the written request to the senior agency officials, any of the agencies
or individuals concerned may file a request with the Council asking it
to determine which Federal agency shall be the lead agency. The Council
shall transmit a copy of the request to each potential lead agency. The
request shall consist of:
(1) A precise description of the nature and extent of the proposed
action; and
(2) A detailed statement of why each potential lead agency should
or should not be the lead agency under the criteria specified in
paragraph (c) of this section.
(f) Any potential lead agency may file a response no later than 20
days after a request is filed with the Council. As soon as possible,
but not later than 40 days after receiving the request and all
responses to it, the Council shall designate which Federal agency will
be the lead agency and which other Federal agencies will be cooperating
agencies.
(g) To the extent practicable, if a proposal will require action by
more than one Federal agency and the lead agency determines that it
requires preparation of an environmental impact statement, the lead and
cooperating agencies shall evaluate the proposal in a single
environmental impact statement and shall issue, except where
inappropriate or inefficient, a joint record of decision. To the extent
practicable, if a proposal will require action by more than one Federal
agency and the lead agency determines that it requires preparation of
an environmental assessment, the lead and cooperating agencies shall
evaluate the proposal in a single environmental assessment and issue a
joint finding of no significant impact or jointly determine to prepare
an environmental impact statement.
(h) With respect to cooperating agencies, the lead agency shall:
(1) Request the participation of each cooperating agency in the
NEPA process at the earliest practicable time;
(2) Consider any analysis or proposal created by a cooperating
agency and, to the maximum extent practicable, use the environmental
analysis and information provided by cooperating agencies;
(3) Meet with a cooperating agency at the latter's request; and
(4) Determine the purpose and need, and alternatives in
consultation with any cooperating agency.
Sec. 1501.8 Cooperating agencies.
(a) The purpose of this section is to emphasize agency cooperation
early in the NEPA process. Upon request of the lead agency, any Federal
agency with jurisdiction by law shall be a cooperating agency. In
addition, upon request of the lead agency, any other Federal agency
with special expertise with respect to any environmental issue may be a
cooperating agency. A State, Tribal, or local agency of similar
qualifications may become a cooperating agency by agreement with the
lead agency. Relevant special expertise may include Indigenous
Knowledge. An agency may request that the lead agency designate it a
cooperating agency, and a Federal agency may appeal a denial of its
request to the Council, in accordance with Sec. 1501.7(e).
(b) Each cooperating agency shall:
(1) Participate in the NEPA process at the earliest practicable
time.
(2) Participate in the scoping process (described in Sec. 1502.4).
(3) On request of the lead agency, assume responsibility for
developing
[[Page 49972]]
information and preparing environmental analyses, including portions of
the environmental impact statement or environmental assessment
concerning which the cooperating agency has special expertise.
(4) On request of the lead agency, make available staff support to
enhance the lead agency's interdisciplinary capability.
(5) Normally use its own funds. To the extent available funds
permit, the lead agency shall fund those major activities or analyses
it requests from cooperating agencies. Potential lead agencies shall
include such funding requirements in their budget requests.
(6) Consult with the lead agency in developing the schedule (Sec.
1501.10), meet the schedule, and elevate, as soon as practicable, to
the senior agency official of the lead agency any issues relating to
purpose and need, alternatives, or other issues that may affect any
agencies' ability to meet the schedule.
(7) Meet the lead agency's schedule for providing comments.
(8) To the maximum extent practicable, jointly issue environmental
documents with the lead agency.
(c) In response to a lead agency's request for assistance in
preparing the environmental documents (described in paragraph (b)(3),
(4), or (5) of this section), a cooperating agency may reply that other
program commitments preclude any involvement or the degree of
involvement requested in the action that is the subject of the
environmental impact statement or environmental assessment. The
cooperating agency shall submit a copy of this reply to the Council and
the senior agency official of the lead agency.
Sec. 1501.9 Public and governmental engagement.
(a) Purpose. Agencies conduct public engagement to inform the
public of an agency's proposed action, allow for meaningful engagement
during the NEPA process, and ensure decision makers are informed by the
views of the public. Agencies conduct governmental engagement to
identify the potentially affected Federal, State, Tribal, and local
governments, invite them to serve as cooperating agencies, as
appropriate, and ensure that participating agencies have opportunities
to engage in the environmental review process, as appropriate.
(b) Responsibility. Agencies shall determine the appropriate
methods of public and governmental engagement. For environmental impact
statements, in addition to the requirements of this section, agencies
also shall comply with the requirements for scoping set forth in Sec.
1502.4 of this subchapter.
(c) Outreach. The lead agency should:
(1) Invite the participation of likely affected Federal, State,
Tribal, and local agencies and governments, as early as practicable,
including, as appropriate, as cooperating agencies under Sec. 1501.8
of this subchapter;
(2) Conduct early engagement with likely affected or interested
members of the public (including those who might not be in accord with
the action), unless there is a limited exception under Sec.
1507.3(d)(3) of this subchapter; and
(3) Consider what methods of outreach and notification are
necessary and appropriate based on the likely affected entities; the
scope, scale, and complexity of the proposed action and alternatives;
the degree of public interest; and other relevant factors. When
selecting appropriate methods for providing public notification,
agencies shall consider the ability of affected persons and agencies to
access electronic media and the primary language of affected persons.
(d) Notification. Agencies shall:
(1) Publish notification of proposed actions they are analyzing
through an environmental impact statement.
(2) Provide public notification of NEPA-related hearings, public
meetings, and other opportunities for public engagement, and, as
appropriate, the availability of environmental documents to inform
those persons and agencies who may be interested or affected by their
proposed actions.
(i) In all cases, the agency shall notify those who have requested
notification on an individual action.
(ii) In the case of an action with effects of national concern,
notice shall include publication in the Federal Register. An agency
also may notify entities and persons who have requested regular
notification.
(iii) In the case of an action with effects primarily of local
concern, the notification may include distribution to or through:
(A) State, Tribal, and local governments and agencies that may be
interested or affected by the proposed action.
(B) Following the affected State or Tribe's public notification
procedures for comparable actions.
(C) Publication in local newspapers having general circulation.
(D) Other local media.
(E) Potentially interested community organizations including small
business associations.
(F) Publication in newsletters that may be expected to reach
potentially interested persons.
(G) Direct mailing to owners and occupants of nearby or affected
property.
(H) Posting of notification on- and off-site in the area where the
action is to be located.
(I) Electronic media (e.g., a project or agency website, dashboard,
email list, or social media). Agencies should establish email
notification lists or similar methods for the public to easily request
electronic notifications for a proposed action.
(3) Make environmental impact statements, the comments received,
and any underlying documents available to the public pursuant to the
provisions of the Freedom of Information Act, as amended (5 U.S.C.
552).
(e) Public meetings and hearings. Agencies may hold or sponsor
public hearings, public meetings, or other opportunities for public
engagement whenever appropriate or in accordance with statutory or
regulatory requirements or applicable agency NEPA procedures. Agencies
may conduct public hearings and public meetings by means of electronic
communication except where another format is required by law. When
determining the format for a public hearing or public meeting, agencies
should consider the needs of affected communities. When accepting
comments for electronic or virtual public hearings or meetings,
agencies shall allow the public to submit comments electronically, by
regular mail, or by other appropriate methods.
(f) Agency procedures. Agencies shall make diligent efforts to
engage the public in preparing and implementing their NEPA procedures
(Sec. 1507.3 of this subchapter).
Sec. 1501.10 Deadlines and schedule for the NEPA process.
(a) To ensure that agencies conduct sound NEPA reviews as
efficiently and expeditiously as practicable, Federal agencies shall
set deadlines and schedules appropriate to individual actions or types
of actions consistent with this section and the time intervals required
by Sec. 1506.10 of this subchapter. Where applicable, the lead agency
shall establish the schedule and make any necessary updates to the
schedule in consultation with and seek the concurrence of joint lead,
cooperating, and participating agencies, and in consultation with
project sponsors or applicants.
(b) To ensure timely decision making, agencies shall complete:
(1) Environmental assessments within 1 year, unless the lead agency
extends the deadline in writing and in
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consultation with any applicant or project sponsor, and establishes a
new deadline that provides only so much additional time as is necessary
to complete the environmental assessment.
(2) Environmental impact statements within 2 years, unless the lead
agency extends the deadline in writing and in consultation with any
applicant or project sponsor and establishes a new deadline that
provides only so much additional time as is necessary to complete the
environmental impact statement.
(3) The deadlines in paragraphs (b)(1) and (b)(2) of this section
are measured from the sooner of, as applicable:
(i) the date on which the agency determines that NEPA requires an
environmental impact statement or environmental assessment for the
proposed action;
(ii) the date on which the agency notifies an applicant that the
application to establish a right-of-way for the proposed action is
complete; and
(iii) the date on which the agency issues a notice of intent for
the proposed action.
(4) The lead agency shall annually submit the report to Congress on
missed deadlines for environmental assessments and environmental impact
statements required by section 107(h) of NEPA.
(c) To facilitate predictability, the lead agency shall develop a
schedule for completion of environmental impact statements and
environmental assessments as well as any authorizations required to
carry out the action. The lead agency shall set milestones for all
environmental reviews, permits, and authorizations required for
implementation of the action, in consultation with any project sponsor
or applicant and in consultation with and seek the concurrence of all
joint lead, cooperating, and participating agencies, as soon as
practicable. Schedules may vary depending on the type of action and in
consideration of other factors in paragraph (d). The lead agency should
develop a schedule that is based on its expertise reviewing similar
types of actions under NEPA. If the lead agency or any participating
agency anticipates that a milestone, including those for a review,
permit, or authorization, will not be completed, it shall notify the
agency responsible for the milestone or issuance of the review, permit,
or authorization and the lead agency, as applicable, and request that
they take appropriate measures to comply with the schedule. As soon as
practicable, the lead and any other agency affected by a potentially
missed milestone shall elevate any unresolved disputes contributing to
the missed milestone to the appropriate officials of the agencies
responsible for the missed milestone, to ensure timely resolution
within the deadlines for the individual action.
(d) The lead agency may consider the following factors in
determining the schedule and deadlines:
(1) Potential for environmental harm.
(2) Size of the proposed action.
(3) State of the art of analytic techniques.
(4) Degree of public need for the proposed action, including the
consequences of delay.
(5) Number of persons and agencies affected.
(6) Availability of relevant information.
(7) Degree to which a substantial dispute exists as to the size,
location, nature, or consequences of the proposed action and its
effects.
(8) Time limits imposed on the agency by law, regulation, or
Executive Order.
(e) The schedule for environmental impact statements shall include
the following milestones:
(1) The publication of the notice of intent;
(2) The issuance of the draft environmental impact statement;
(3) The public comment period on the draft environmental impact
statement, consistent with Sec. 1506.10 of this subchapter;
(4) The issuance of the final environmental impact statement; and
(5) The issuance of the record of decision.
(f) The schedule for environmental assessments shall include the
following milestones:
(1) Decision to prepare an environmental assessment;
(2) Issuance of the draft environmental assessment, where
applicable;
(3) The public comment period on the draft environmental
assessment, consistent with Sec. 1501.5 of this subchapter, where
applicable; and
(4) Issuance of the final environmental assessment and decision on
whether to issue a finding of no significant impact or issue a notice
of intent to prepare an environmental impact statement.
(g) An agency may designate a person (such as the project manager
or a person in the agency's office with NEPA responsibilities) to
expedite the NEPA process.
(h) For environmental impact statements, agencies shall make
schedules for completing the NEPA process publicly available, such as
on their website or another publicly accessible platform. If agencies
make subsequent changes to the schedule, agencies shall publish
revisions to the schedule and explain the basis for substantial
changes.
Sec. 1501.11 Programmatic environmental documents and tiering.
(a) Programmatic environmental document. Agencies may prepare
programmatic environmental documents, which may be either environmental
impact statements or environmental assessments, to evaluate the
environmental effects of policies, programs, plans, or groups of
related activities. When agencies prepare such documents, they should
be relevant to the agency decisions and timed to coincide with
meaningful points in agency planning and decision making. Agencies may
use programmatic environmental documents to conduct a broad or holistic
evaluation of effects or policy alternatives; evaluate widely
applicable measures; or avoid duplicative analysis for individual
actions by first considering relevant issues at a broad or programmatic
level.
(1) When preparing programmatic environmental documents (including
proposals by more than one agency), agencies may find it useful to
evaluate the proposal(s) in one of the following ways:
(i) Geographically, including actions occurring in the same general
location, such as body of water, region, or metropolitan area.
(ii) Thematically or by sector, including actions that have
relevant similarities, such as common timing, impacts, alternatives,
methods of implementation, technology, media, or subject matter.
(iii) By stage of technological development, including Federal or
federally assisted research, development, or demonstration programs for
new technologies that, if applied, could significantly affect the
quality of the human environment. Documents on such programs should be
completed before the program has reached a stage of investment or
commitment to implementation likely to determine subsequent development
or restrict later alternatives.
(2) Agency actions that may be appropriate for programmatic
documents include:
(i) Programs, policies, or plans, including land use or resource
management plans;
(ii) Regulations;
(iii) National or regional actions;
(iv) Actions that have multiple stages or phases, and are part of
an overall plan or program; or
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(v) A group of projects or related types of projects.
(3) Agencies should, as appropriate, employ scoping (Sec. 1502.4
of this subchapter), tiering (paragraph (b) of this section), and other
methods listed in Sec. Sec. 1500.4 and 1500.5 of this subchapter, to
describe the relationship between the programmatic document and related
individual actions and to avoid duplication and delay.
(b) Tiering. Where an existing environmental impact statement,
environmental assessment, or programmatic environmental document is
relevant to a later proposed action, agencies may employ tiering.
Tiering allows subsequent tiered environmental analysis to avoid
duplication and focus on issues, effects, or alternatives not fully
addressed in a programmatic document, environmental impact statement,
or environmental assessment prepared at an earlier phase or stage.
Agencies generally should tier their environmental impact statements
and environmental assessments when it would eliminate repetitive
discussions of the same issues, focus on the actual issues ripe for
decision, and exclude from consideration issues already decided.
(1) When an agency has prepared a programmatic environmental review
or other environmental impact statement or environmental assessment for
a program or policy and then prepares a subsequent statement or
assessment on an action included within the program or policy (such as
a project- or site-specific action), the tiered document shall discuss
the relationship between the tiered document and the previous review,
and summarize and incorporate by reference the issues discussed in the
broader document. The tiered document shall concentrate on the issues
specific to the subsequent action, analyzing site-, phase-, or stage-
specific conditions and reasonably foreseeable effects. The agency
shall provide for public engagement opportunities consistent with the
type of environmental document prepared and appropriate for the
location, phase, or stage. The tiered document shall state where the
earlier document is publicly available.
(2) Tiering is appropriate when the sequence from an environmental
impact statement or environmental assessment is:
(i) From a programmatic, plan, or policy environmental impact
statement or environmental assessment to a program, plan, or policy
statement or assessment of lesser or narrower scope or to a site-
specific statement or assessment.
(ii) From an environmental impact statement or environmental
assessment on a specific action at an early stage (such as need and
site selection) to a supplement (which is preferred) or a subsequent
statement or assessment at a later stage (such as environmental
mitigation). Tiering in such cases is appropriate when it helps the
agency to focus on the issues that are ripe for decision and exclude
from consideration issues already decided or not yet ripe.
(c) When an agency prepares a programmatic environmental document
for which judicial review was available, the agency may rely on the
analysis included in the programmatic environmental document in a
subsequent environmental document for related actions as follows:
(1) Within 5 years and without additional review of the analysis in
the programmatic environmental document, unless there are substantial
new circumstances or information about the significance of adverse
effects that bear on the analysis; or
(2) After 5 years, so long as the agency reevaluates the analysis
in the programmatic environmental document and any underlying
assumption to ensure reliance on the analysis remains valid. The agency
shall briefly document its reevaluation and explain why the analysis
remains valid considering any new and substantial information or
circumstances.
Sec. 1501.12 Incorporation by reference into environmental documents.
Agencies shall incorporate material, such as planning studies,
analyses, or other relevant information, into environmental documents
by reference when the effect will be to cut down on bulk without
impeding agency and public review of the action. Agencies shall cite
the incorporated material in the document, briefly describe its
content, and briefly explain the relevance of the incorporated material
to the environmental document. Agencies shall not incorporate material
by reference unless it is reasonably available for inspection, such as
on a publicly accessible website, by potentially interested persons
within the time allowed for comment. Agencies should provide digital
references, such as hyperlinks, to the incorporated material or
otherwise indicate how the public can access the material for
inspection. Agencies shall not incorporate by reference material based
on proprietary data that is not available for review and comment.
PART 1502--ENVIRONMENTAL IMPACT STATEMENT
Sec. 1502.1 Purpose of environmental impact statement.
(a) The primary purpose of an environmental impact statement
prepared pursuant to section 102(2)(C) of NEPA is to serve as an
action-forcing device by ensuring agencies consider the environmental
effects of their action in decision making, so that the policies and
goals defined in the Act are infused into the ongoing programs and
actions of the Federal Government.
(b) Environmental impact statements shall provide full and fair
discussion of significant effects and shall inform decision makers and
the public of reasonable alternatives that would avoid or minimize
adverse effects or enhance the quality of the human environment.
Agencies shall focus on important environmental issues and reasonable
alternatives and shall reduce paperwork and the accumulation of
extraneous background data.
(c) Environmental impact statements shall be concise, clear, and to
the point, and shall be supported by evidence that the agency has made
the necessary environmental analyses. An environmental impact statement
is more than a disclosure document. Federal agencies shall use
environmental impact statements in conjunction with other relevant
material to plan actions and make decisions.
Sec. 1502.2 Implementation.
To achieve the purposes set forth in Sec. 1502.1 agencies shall
prepare environmental impact statements in the following manner:
(a) Environmental impact statements shall not be encyclopedic.
(b) Environmental impact statements shall discuss effects in
proportion to their significance. There shall be only brief discussion
of other than important issues. As in an environmental assessment and
finding of no significant impact, there should be only enough
discussion to show why more study is not warranted.
(c) Environmental impact statements shall be analytical, concise,
and no longer than necessary to comply with NEPA and with the
regulations in this subchapter. Length should be proportional to
potential environmental effects and the scope and complexity of the
action.
(d) Environmental impact statements shall state how alternatives
considered in them and decisions based on them will or will not achieve
the requirements of sections 101 and 102(1) of NEPA, the regulations in
this
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subchapter, and other environmental laws and policies.
(e) The range of alternatives discussed in environmental impact
statements shall encompass those to be considered by the decision
maker.
(f) Agencies shall not commit resources prejudicing the selection
of alternatives before making a decision (see also Sec. 1506.1 of this
subchapter).
(g) Environmental impact statements shall serve as the means of
assessing the environmental impact of proposed agency actions, rather
than justifying decisions already made.
Sec. 1502.3 Statutory requirements for environmental impact
statements.
As required by section 102(2)(C) of NEPA, environmental impact
statements are to be included in every Federal agency recommendation or
report on proposals for legislation and other major Federal actions
significantly affecting the quality of the human environment.
Sec. 1502.4 Scoping.
(a) Generally. Agencies shall use an early and open process,
consistent with Sec. 1501.9 of this subchapter, to determine the scope
of issues for analysis in an environmental impact statement, including
identifying the important issues and eliminating from further study
unimportant issues. Scoping may begin as soon as practicable after the
proposal for action is sufficiently developed for agency consideration.
Scoping may include appropriate pre-application procedures or work
conducted prior to publication of the notice of intent (see Sec. Sec.
1501.3 and 1501.9 of this subchapter).
(b) Scoping outreach. When preparing an environmental impact
statement, agencies shall facilitate notification to persons and
agencies who may be interested or affected by an agency's proposed
action, consistent with Sec. 1501.9 of this subchapter. As part of the
scoping process, the lead agency may hold a scoping meeting or
meetings, publish scoping information, or use other means to
communicate with those persons or agencies who may be interested or
affected, which the agency may integrate with any other early planning
meeting.
(c) Inviting participation. As part of the scoping process, and
consistent with Sec. 1501.9 of this subchapter, the lead agency shall
invite the participation of likely affected Federal, State, Tribal, and
local agencies and governments, the proponent of the action, and other
likely affected or interested persons (including those who might not be
in accord with the action), unless there is a limited exception under
Sec. 1507.3(d)(3) of this subchapter.
(d) Additional scoping responsibilities. As part of the scoping
process, the lead agency shall:
(1) Identify and eliminate from detailed study the issues that are
not important or have been covered by prior environmental review(s)
(Sec. Sec. 1501.12 and 1506.3 of this subchapter), narrowing the
discussion of these issues in the environmental impact statement to a
brief presentation of why they will not be important or providing a
reference to their coverage elsewhere.
(2) Allocate assignments for preparation of the environmental
impact statement among the lead and cooperating agencies, with the lead
agency retaining responsibility for the statement.
(3) Indicate any public environmental assessments and other
environmental impact statements that are being or will be prepared and
are related to but are not part of the scope of the environmental
impact statement under consideration.
(4) Identify other environmental review, authorization, and
consultation requirements so the lead and cooperating agencies may
prepare other required analyses and studies concurrently and integrated
with the environmental impact statement, as provided in Sec. 1502.24
of this subchapter.
(5) Indicate the relationship between the timing of the preparation
of environmental analyses and the agencies' tentative planning and
decision-making schedule.
(e) Notice of intent. As soon as practicable after determining that
a proposal is sufficiently developed to allow for meaningful public
comment and requires an environmental impact statement, the lead agency
shall publish a notice of intent to prepare an environmental impact
statement in the Federal Register. In addition to the Federal Register
notice, an agency also may publish notification in accordance with
Sec. 1501.9 of this subchapter. The notice shall include, as
appropriate:
(1) The purpose and need for the proposed action;
(2) A preliminary description of the proposed action and
alternatives the environmental impact statement will consider;
(3) A brief summary of expected effects;
(4) Anticipated permits and other authorizations;
(5) A schedule for the decision-making process;
(6) A description of the public scoping process, including any
scoping meeting(s);
(7) A request for comment on alternatives and effects, as well as
on relevant information, studies, or analyses with respect to the
proposed action;
(8) Contact information for a person within the agency who can
answer questions about the proposed action and the environmental impact
statement;
(9) Identification of any cooperating and participating agencies,
and any information that such agencies require in the notice to
facilitate their decisions or authorizations that will rely upon the
resulting environmental impact statement; and
(10) A unique identification number for tracking purposes, which
the agency shall reference on all environmental documents prepared for
the proposed action.
(f) Notices of withdrawal or cancellation. If an agency withdraws,
cancels, or otherwise ceases the consideration of a proposed action
before completing a final environmental impact statement, the agency
shall publish a notice in the Federal Register.
(g) Revisions. An agency shall revise the determinations made under
paragraphs (b), (c), and (d) of this section if substantial changes are
made later in the proposed action, or if important new circumstances or
information arise that bear on the proposal or its effects.
Sec. 1502.5 Timing.
An agency should commence preparation of an environmental impact
statement as close as practicable to the time the agency is developing
or receives a proposal so that preparation can be completed in time for
the final statement to be included in any recommendation or report on
the proposal. The statement shall be prepared early enough so that it
can serve as an important practical contribution to the decision-making
process and will not be used to rationalize or justify decisions
already made (Sec. Sec. 1501.2 of this subchapter and 1502.2). For
instance:
(a) For projects directly undertaken by Federal agencies, the
agency shall prepare the environmental impact statement at the
feasibility analysis (e.g., go/no-go) stage and may supplement it at a
later stage, if necessary.
(b) For applications to the agency requiring an environmental
impact statement, the agency shall commence the statement as soon as
practicable after receiving the complete application. Federal agencies
should work together
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and with potential applicants and applicable State, Tribal, and local
agencies and governments prior to receipt of the application.
(c) For adjudication, the final environmental impact statement
shall normally precede the final staff recommendation and that portion
of the public hearing related to the impact study. In appropriate
circumstances, the statement may follow preliminary hearings designed
to gather information for use in the statement.
(d) For informal rulemaking, the draft environmental impact
statement shall normally accompany the proposed rule.
Sec. 1502.6 Interdisciplinary preparation.
Agencies shall prepare environmental impact statements using an
interdisciplinary approach that will ensure the integrated use of the
natural and social sciences and the environmental design arts (section
102(2)(A) of NEPA). The disciplines of the preparers shall be
appropriate to the scope and issues identified in the scoping process
(Sec. 1502.4 of this subchapter).
Sec. 1502.7 Page limits.
The text of final environmental impact statements, not including
citations or appendices, shall not exceed 150 pages except for
proposals of extraordinary complexity, which shall not exceed 300
pages.
Sec. 1502.8 Writing.
Agencies shall write environmental impact statements in plain
language and should use, as relevant, appropriate visual aids or charts
so that decision makers and the public can readily understand such
statements. Agencies should employ writers of clear prose or editors to
write, review, or edit statements, which shall be based upon the
analysis and supporting data from the natural and social sciences and
the environmental design arts.
Sec. 1502.9 Draft, final, and supplemental statements.
(a) Generally. Except for proposals for legislation as provided in
Sec. 1506.8 of this subchapter, agencies shall prepare environmental
impact statements in two stages and, where necessary, supplement them
as provided in paragraph (d)(1) of this section.
(b) Draft environmental impact statements. Agencies shall prepare
draft environmental impact statements in accordance with the scope
decided upon in the scoping process (Sec. 1502.4 of this subchapter).
The lead agency shall work with the cooperating agencies and shall
obtain comments as required in part 1503 of this subchapter. To the
fullest extent practicable, the draft statement must meet the
requirements established for final statements in section 102(2)(C) of
NEPA and in the regulations in this subchapter. If the agency
determines that a draft statement is so inadequate as to preclude
meaningful analysis, the agency shall prepare and publish a
supplemental draft of the appropriate portion. At appropriate points in
the draft statement, the agency shall discuss all major points of view
on the environmental effects of the alternatives, including the
proposed action.
(c) Final environmental impact statements. Final environmental
impact statements shall consider and respond to comments as required in
part 1503 of this subchapter. At appropriate points in the final
statement, the agency shall discuss any responsible opposing view that
was not adequately discussed in the draft statement and shall indicate
the agency's response to the issues raised.
(d) Supplemental environmental impact statements. Agencies:
(1) Shall prepare supplements to either draft or final
environmental impact statements if a major Federal action remains to
occur, and:
(i) The agency makes substantial changes to the proposed action
that are relevant to environmental concerns; or
(ii) There are substantial or important new circumstances or
information relevant to environmental concerns and bearing on the
proposed action or its effects.
(2) May also prepare supplements when the agency determines that
the purposes of the Act will be furthered by doing so.
(3) Shall prepare, publish, and file a supplement to a statement
(exclusive of scoping (Sec. 1502.4 of this subchapter)) as a draft and
final statement, as is appropriate to the stage of the statement
involved, unless the Council approves alternative procedures (Sec.
1506.12 of this subchapter).
(e) Reevaluation. An agency may reevaluate an environmental impact
statement and find that changes to the proposed action or new
circumstances or information relevant to environmental concerns are not
substantial or that the underlying assumptions of the analysis remains
valid, and therefore do not require a supplement under paragraph (d) of
this section. The agency should document the finding consistent with
its agency NEPA procedures (Sec. 1507.3 of this subchapter), or, if
necessary, in a finding of no significant impact supported by an
environmental assessment.
Sec. 1502.10 Recommended format.
(a) Agencies shall use a format for environmental impact statements
that will encourage good analysis and clear presentation of the
alternatives, including the proposed action. Agencies should use the
following standard format for environmental impact statements unless
the agency determines that there is a more effective format for
communication:
(1) Cover (Sec. 1501.11);
(2) Summary (Sec. 1502.12);
(3) Table of contents;
(4) Purpose of and need for action (Sec. 1502.13);
(5) Alternatives including the proposed action (sections
102(2)(C)(iii) and 102(2)(H) of NEPA) (Sec. 1502.14);
(6) Affected environment and environmental consequences (especially
sections 102(2)(C)(i), (ii), (iv), and (v) of NEPA) (Sec. Sec. 1502.15
and 1502.16); and
(7) Appendices (Sec. 1502.19), including the summary of scoping
information (Sec. 1502.17) and the list of preparers (Sec. 1502.18).
(b) If an agency uses a different format, it shall include
paragraph (a) of this section, as further described in Sec. Sec.
1502.11 through 1502.19, in any appropriate format.
Sec. 1502.11 Cover.
The environmental impact statement cover shall not exceed one page
and shall include:
(a) A list of the lead, joint lead and any cooperating agencies;
(b) The title of the proposed action that is the subject of the
statement (and, if appropriate, the titles of related cooperating
agency actions), together with the State(s) and county(ies) (or other
jurisdiction(s), if applicable) where the action is located;
(c) The name, address, and telephone number of the person at the
agency who can supply further information;
(d) A designation of the statement as a draft, final, or draft or
final supplement;
(e) A one-paragraph abstract of the statement;
(f) The date by which the agency must receive comments (computed in
cooperation with the Environmental Protection Agency under Sec.
1506.10 of this subchapter); and
(g) The identification number included in the notice of intent
(Sec. 1502.4(e)(10)).
Sec. 1502.12 Summary.
Each environmental impact statement shall contain a summary that
adequately and accurately summarizes the statement. The summary shall
include the major conclusions and summarize
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any disputed issues raised by agencies and the public, any issues to be
resolved, and key differences among alternatives, and identify the
environmentally preferable alternative or alternatives. Agencies shall
write the summary in plain language and should use, as relevant,
appropriate visual aids and charts. The summary normally should not
exceed 15 pages.
Sec. 1502.13 Purpose and need.
The environmental impact statement shall include a statement that
briefly summarizes the underlying purpose and need for the proposed
agency action.
Sec. 1502.14 Alternatives including the proposed action.
The alternatives section is the heart of the environmental impact
statement. The alternatives section should identify the reasonably
foreseeable environmental effects of the proposed action and the
alternatives in comparative form based on the information and analysis
presented in the sections on the affected environment (Sec. 1502.15)
and the environmental consequences (Sec. 1502.16). In doing so, the
analysis should sharply define the issues for the decision maker and
the public and provide a clear basis for choice among options. In this
section, agencies shall:
(a) Rigorously explore and objectively evaluate reasonable
alternatives to the proposed action, and, for alternatives that the
agency eliminated from detailed study, briefly discuss the reasons for
their elimination. The agency need not consider every conceivable
alternative to a proposed action; rather, it shall consider a
reasonable range of alternatives that will foster informed decision
making. Agencies also may include reasonable alternatives not within
the jurisdiction of the lead agency.
(b) Discuss each alternative considered in detail, including the
proposed action, so that reviewers may evaluate their comparative
merits.
(c) Include the no action alternative.
(d) Identify the agency's preferred alternative or alternatives, if
one or more exists, in the draft statement and identify such
alternative in the final statement unless another law prohibits the
expression of such a preference.
(e) Include appropriate mitigation measures not already included in
the proposed action or alternatives.
(f) Identify the environmentally preferable alternative or
alternatives. The environmentally preferable alternative will best
promote the national environmental policy expressed in section 101 of
NEPA by maximizing environmental benefits, such as addressing climate
change-related effects or disproportionate and adverse effects on
communities with environmental justice concerns; protecting,
preserving, or enhancing historic, cultural, Tribal, and natural
resources, including rights of Tribal Nations that have been reserved
through treaties, statutes, or Executive Orders; or causing the least
damage to the biological and physical environment. The environmentally
preferable alternative may be the proposed action, the no action
alternative, or a reasonable alternative.
Sec. 1502.15 Affected environment.
(a) The environmental impact statement shall succinctly describe
the environment of the area(s) to be affected or created by the
alternatives under consideration, including the reasonably foreseeable
environmental trends and planned actions in the area(s).
(b) Agencies should use high-quality information, including the
best available science and data, to describe reasonably foreseeable
environmental trends, including anticipated climate-related changes to
the environment, and when such information is lacking, provide relevant
information consistent with Sec. 1502.21. This description of baseline
environmental conditions and reasonably foreseeable trends should
inform the agency's analysis of environmental consequences and
mitigation measures (Sec. 1502.16).
(c) The environmental impact statement may combine the description
of the affected environment with evaluation of the environmental
consequences (Sec. 1502.16). The description should be no longer than
necessary to understand the relevant affected environment and the
effects of the alternatives. Data and analyses in a statement shall be
commensurate with the importance of the effect, with less important
material summarized, consolidated, or simply referenced. Agencies shall
avoid useless bulk in statements and shall concentrate effort and
attention on important issues. Verbose descriptions of the affected
environment are themselves no measure of the adequacy of an
environmental impact statement.
Sec. 1502.16 Environmental consequences.
(a) The environmental consequences section forms the scientific and
analytic basis for the comparisons under Sec. 1502.14. It shall
consolidate the discussions of those elements required by sections
102(2)(C)(i), (ii), (iv), and (v) of NEPA that are within the scope of
the environmental impact statement and as much of section
102(2)(C)(iii) of NEPA as is necessary to support the comparisons. This
section should not duplicate discussions in Sec. 1502.14. The
discussion shall include:
(1) The reasonably foreseeable environmental effects of the
proposed action and reasonable alternatives to the proposed action and
the significance of those effects (Sec. 1501.3 of this subchapter).
The comparison of the proposed action and reasonable alternatives shall
be based on the discussion of the effects, focusing on the significant
or important effects. The no action alternative should serve as the
baseline against which the proposed action and other alternatives are
compared.
(2) Any reasonably foreseeable adverse environmental effects that
cannot be avoided should the proposal be implemented.
(3) An analysis of the effects of the no action alternative,
including any adverse environmental effects.
(4) The relationship between short-term uses of the human
environment and the maintenance and enhancement of long-term
productivity.
(5) Any irreversible or irretrievable commitments of Federal
resources that would be involved in the proposal should it be
implemented.
(6) Possible conflicts between the proposed action and the
objectives of Federal, regional, State, Tribal, and local plans,
policies, and controls for the area concerned, including those
addressing climate change (Sec. 1506.2(d) of this subchapter).
(7) Any reasonably foreseeable climate change-related effects,
including the effects of climate change on the proposed action and
alternatives.
(8) Energy requirements and conservation potential of various
alternatives and mitigation measures.
(9) Natural or depletable resource requirements and conservation
potential of various alternatives and mitigation measures.
(10) Any relevant risk reduction, resiliency, or adaptation
measures incorporated into the proposed action or alternatives,
informed by relevant science and data on the affected environment and
expected future conditions.
(11) Urban quality, historic and cultural resources, and the design
of the built environment, including the reuse and conservation
potential of various alternatives and mitigation measures.
(12) Means to mitigate adverse environmental impacts (if not fully
covered under Sec. 1502.14(e)).
(13) Where applicable, economic and technical considerations,
including the
[[Page 49978]]
economic benefits of the proposed action.
(14) The potential for disproportionate and adverse human health
and environmental effects on communities with environmental justice
concerns.
(b) Economic or social effects by themselves do not require
preparation of an environmental impact statement. However, when the
agency determines that economic or social and natural or physical
environmental effects are interrelated, the environmental impact
statement shall discuss these effects on the human environment.
Sec. 1502.17 Summary of scoping information.
(a) The draft environmental impact statement shall include a
summary of information, including alternatives and analyses, submitted
by commenters during the scoping process for consideration by the lead
and cooperating agencies in their development of the draft
environmental impact statement.
(b) The agency shall append to the draft environmental impact
statement or otherwise make publicly available all comments (or
summaries thereof where the response has been exceptionally voluminous)
received during the scoping process.
Sec. 1502.18 List of preparers.
The environmental impact statement shall list the names, together
with their qualifications (expertise, experience, professional
disciplines), of the persons who were primarily responsible for
preparing the environmental impact statement or important background
papers, including basic components of the statement. Where possible,
the environmental impact statement shall identify the persons who are
responsible for a particular analysis, including analyses in background
papers. Normally the list will not exceed two pages.
Sec. 1502.19 Appendix.
If an agency prepares an appendix, the agency shall publish it with
the environmental impact statement, and it shall consist of, as
appropriate:
(a) Material prepared in connection with an environmental impact
statement (as distinct from material that is not so prepared and is
incorporated by reference (Sec. 1501.12 of this subchapter)).
(b) Material substantiating any analysis fundamental to the impact
statement.
(c) Material relevant to the decision to be made.
(d) For draft environmental impact statements, all comments (or
summaries thereof where the response has been exceptionally voluminous)
received during the scoping process that identified information for the
agency's consideration.
(e) For final environmental impact statements, the comment
summaries and responses consistent with Sec. 1503.4 of this chapter.
Sec. 1502.20 Publication of the environmental impact statement.
Agencies shall publish the entire draft and final environmental
impact statements and unchanged statements as provided in Sec.
1503.4(c) of this subchapter. The agency shall transmit the entire
statement electronically (or in paper copy, if requested due to
economic or other hardship) to:
(a) Any Federal agency that has jurisdiction by law or special
expertise with respect to any environmental impact involved and any
appropriate Federal, State, Tribal, or local agency authorized to
develop and enforce environmental standards.
(b) The applicant, if any.
(c) Any person, organization, or agency requesting the entire
environmental impact statement.
(d) In the case of a final environmental impact statement, any
person, organization, or agency that submitted substantive comments on
the draft.
Sec. 1502.21 Incomplete or unavailable information.
(a) When an agency is evaluating reasonably foreseeable significant
adverse effects on the human environment in an environmental impact
statement, and there is incomplete or unavailable information, the
agency shall make clear that such information is lacking.
(b) If the incomplete information relevant to reasonably
foreseeable significant adverse effects is essential to a reasoned
choice among alternatives, and the overall costs of obtaining it are
not unreasonable, the agency shall include the information in the
environmental impact statement.
(c) If the information relevant to reasonably foreseeable
significant adverse effects cannot be obtained because the overall
costs of obtaining it are unreasonable or the means to obtain it are
not known, the agency shall include within the environmental impact
statement:
(1) A statement that such information is incomplete or unavailable;
(2) A statement of the relevance of the incomplete or unavailable
information to evaluating reasonably foreseeable significant adverse
effects on the human environment;
(3) A summary of existing credible scientific evidence that is
relevant to evaluating the reasonably foreseeable significant adverse
effects on the human environment; and
(4) The agency's evaluation of such effects based upon theoretical
approaches or research methods generally accepted in the scientific
community.
(d) For the purposes of this section, ``reasonably foreseeable''
includes effects that have catastrophic consequences, even if their
probability of occurrence is low, provided that the analysis of the
effects is supported by credible scientific evidence, is not based on
pure conjecture, and is within the rule of reason.
Sec. 1502.22 Cost-benefit analysis.
If an agency is considering a cost-benefit analysis for the
proposed action relevant to the choice among alternatives with
different environmental effects, the agency shall incorporate the cost-
benefit analysis by reference or append it to the statement as an aid
in evaluating the environmental consequences. In such cases, to assess
the adequacy of compliance with section 102(2)(B) of NEPA (ensuring
appropriate consideration of unquantified environmental amenities and
values in decision making, along with economical and technical
considerations), the statement shall discuss the relationship between
that analysis and any analyses of unquantified environmental impacts,
values, and amenities. For purposes of complying with the Act, agencies
need not display the weighing of the merits and drawbacks of the
various alternatives in a monetary cost-benefit analysis and should not
do so when there are important qualitative considerations. However, an
environmental impact statement should at least indicate those
considerations, including factors not related to environmental quality,
that are likely to be relevant and important to a decision.
Sec. 1502.23 Methodology and scientific accuracy.
(a) Agencies shall ensure the professional integrity, including
scientific integrity, of the discussions and analyses in environmental
documents. Agencies shall use high-quality information, such as best
available science and reliable data, models, and resources, including
existing sources and materials, to analyze effects resulting from a
proposed action and alternatives. Agencies may use any reliable data
sources, such as remotely gathered
[[Page 49979]]
information or statistical models. Agencies should explain any relevant
assumptions or limitations of the information or the particular model
or methodology selected for use.
(b) Agencies shall identify any methodologies used and shall make
explicit reference to the scientific and other sources relied upon for
conclusions in the statement. Agencies may place discussion of
methodology in an appendix. Nothing in this section is intended to
prohibit agencies from compliance with the requirements of other
statutes pertaining to scientific and technical research.
(c) Where appropriate, agencies shall use projections when
evaluating the reasonably foreseeable effects, including climate
change-related effects. Such projections may employ mathematical or
other models that project a range of possible future outcomes, so long
as agencies disclose the relevant assumptions or limitations.
Sec. 1502.24 Environmental review and consultation requirements.
(a) To the fullest extent possible, agencies shall prepare draft
environmental impact statements concurrent and integrated with
environmental impact analyses and related surveys and studies required
by all other Federal environmental review laws and Executive orders
applicable to the proposed action, including the Fish and Wildlife
Coordination Act (16 U.S.C. 661 et seq.), the National Historic
Preservation Act of 1966 (54 U.S.C. 300101 et seq.), and the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.).
(b) The draft environmental impact statement shall list all Federal
permits, licenses, and other authorizations that must be obtained in
implementing the proposal. If it is uncertain whether a Federal permit,
license, or other authorization is necessary, the draft environmental
impact statement shall so indicate.
PART 1503--COMMENTING ON ENVIRONMENTAL IMPACT STATEMENTS
Sec. 1503.1 Inviting comments and requesting information and
analyses.
(a) After preparing a draft environmental impact statement and
before preparing a final environmental impact statement the agency
shall:
(1) Obtain the comments of any Federal agency that has jurisdiction
by law or special expertise with respect to any environmental impact
involved or is authorized to develop and enforce environmental
standards; and
(2) Request the comments of:
(i) Appropriate State, Tribal, and local agencies that are
authorized to develop and enforce environmental standards;
(ii) State, Tribal, or local governments that may be affected by
the proposed action;
(iii) Any agency that has requested it receive statements on
actions of the kind proposed;
(iv) The applicant, if any; and
(v) The public, affirmatively soliciting comments in a manner
designed to inform those persons or organizations who may be interested
in or affected by the proposed action.
(b) An agency may request comments on a final environmental impact
statement before the final decision and set a deadline for providing
such comments. Other agencies or persons may make comments consistent
with the time periods under Sec. 1506.10 of this subchapter.
(c) An agency shall provide for electronic submission of public
comments, with reasonable measures to ensure the comment process is
accessible to affected persons.
Sec. 1503.2 Duty to comment.
Cooperating agencies and agencies that are authorized to develop
and enforce environmental standards shall comment on environmental
impact statements within their jurisdiction, expertise, or authority
within the time period specified for comment in Sec. 1506.10 of this
subchapter. A Federal agency may reply that it has no comment. If a
cooperating agency is satisfied that the environmental impact statement
adequately reflects its views, it should reply that it has no comment.
Sec. 1503.3 Specificity of comments and information.
(a) To promote informed decision making, comments on an
environmental impact statement or on a proposed action shall be as
specific as possible, and may address either the adequacy of the
statement or the merits of the alternatives discussed or both. Comments
should explain why the issues raised are important to the consideration
of potential environmental effects and alternatives to the proposed
action. Where possible, comments should reference the corresponding
section or page number of the draft environmental impact statement,
propose specific changes to those parts of the statement, and describe
any data, sources, or methodologies that support the proposed changes.
(b) When a participating agency criticizes a lead agency's
predictive methodology, the participating agency should describe the
alternative methodology that it prefers and why.
(c) A cooperating agency shall specify in its comments whether it
needs additional information to fulfill other applicable environmental
review or consultation requirements and what information it needs. In
particular, it shall specify any additional information it needs to
comment adequately on the draft statement's analysis of significant
effects associated with the granting or approving by that cooperating
agency of necessary Federal permits, licenses, or authorizations.
(d) A cooperating agency with jurisdiction by law shall specify
mitigation measures it considers necessary to allow the agency to grant
or approve applicable authorizations or concurrences.
Sec. 1503.4 Response to comments.
(a) An agency preparing a final environmental impact statement
shall consider substantive comments timely submitted during the public
comment period. The agency shall respond to individual comments or
groups of comments. In the final environmental impact statement, the
agency may respond by:
(1) Modifying alternatives including the proposed action;
(2) Developing and evaluating alternatives not previously given
serious consideration by the agency;
(3) Supplementing, improving, or modifying its analyses;
(4) Making factual corrections; or
(5) Explaining why the comments do not warrant further agency
response, recognizing that agencies are not required to respond to each
comment.
(b) An agency shall append or otherwise publish all substantive
comments received on the draft statement (or summaries thereof where
the response has been exceptionally voluminous).
(c) If changes in response to comments are minor and are confined
to the responses described in paragraphs (a)(4) and (5) of this
section, an agency may write any changes on errata sheets and attach
the responses to the statement instead of rewriting the draft
statement. In such cases, the agency shall publish the final statement
(Sec. 1502.20 of this subchapter), which includes the draft statement,
the comments, responses to those comments, and errata sheets. The
agency shall file the final statement with the Environmental Protection
Agency (Sec. 1506.10 of this subchapter).
[[Page 49980]]
PART 1504--PRE-DECISIONAL REFERRALS TO THE COUNCIL OF PROPOSED
FEDERAL ACTIONS DETERMINED TO BE ENVIRONMENTALLY UNSATISFACTORY
Sec. 1504.1 Purpose.
(a) This part establishes procedures for referring to the Council
Federal interagency disagreements concerning proposed major Federal
actions that might cause unsatisfactory environmental effects. It
provides means for early resolution of such disagreements, and
encourages Federal agencies to engage with each other as early as
practicable to resolve interagency disagreements concerning proposed
major Federal actions before referring disputes to the Council. This
part also establishes procedures for Federal agencies to submit a
request to the Council to provide informal dispute resolution on NEPA
issues before formally referring disputes to the Council.
(b) Section 309 of the Clean Air Act (42 U.S.C. 7609) directs the
Administrator of the Environmental Protection Agency to review and
comment publicly on the environmental impacts of Federal activities,
including actions for which agencies prepare environmental impact
statements. If, after this review, the Administrator determines that
the matter is ``unsatisfactory from the standpoint of public health or
welfare or environmental quality,'' section 309 directs that the matter
be referred to the Council.
(c) Under section 102(2)(C) of NEPA (42 U.S.C. 4332(2)(C)), other
Federal agencies may prepare similar reviews of environmental impact
statements, including judgments on the acceptability of anticipated
environmental impacts. These agencies must make these reviews available
to the President, the Council, and the public.
Sec. 1504.2 Early dispute resolution.
(a) Federal agencies should engage in interagency coordination and
collaboration in their planning and decision-making processes and
should identify and resolve disputes concerning proposed major Federal
actions early in the NEPA process. To the extent practicable, agencies
should elevate issues to appropriate agency officials or the Council in
a timely manner that will accommodate schedules consistent with Sec.
1501.10 of this subchapter.
(b) A Federal agency may request that the Council engage in
informal dispute resolution to provide recommendations on how to
resolve an interagency dispute concerning an environmental review. In
making the request, the agency shall provide the Council with a summary
of the proposed action, information on the disputed issues, and agency
points of contact.
(c) In response to a request for informal dispute resolution, the
Council may request additional information, provide non-binding
recommendations, convene meetings of those agency decision makers
necessary to resolve disputes, or determine that informal dispute
resolution is unhelpful or inappropriate.
Sec. 1504.3 Criteria and procedure for referrals and response.
(a) Federal agencies should make environmental referrals to the
Council only after concerted, timely (as early as practicable in the
process), but unsuccessful attempts to resolve differences with the
lead agency. In determining what environmental objections to the matter
are appropriate to refer to the Council, an agency should weigh
potential adverse environmental effects, considering:
(1) Possible violation of national environmental standards or
policies;
(2) Severity;
(3) Geographical scope;
(4) Duration;
(5) Importance as precedents;
(6) Availability of environmentally preferable alternatives; and
(7) Economic and technical considerations, including the economic
costs of delaying or impeding the decision making of the agencies
involved in the action.
(b) A Federal agency making the referral to the Council shall:
(1) Notify the lead agency at the earliest possible time that it
intends to refer a matter to the Council unless a satisfactory
agreement is reached;
(2) Include such a notification whenever practicable in the
referring agency's comments on the environmental assessment or draft
environmental impact statement;
(3) Identify any essential information that is lacking and request
that the lead agency make it available at the earliest possible time;
and
(4) Send copies of the referring agency's views to the Council.
(c) The referring agency shall deliver its referral to the Council
no later than 25 days after the lead agency has made the final
environmental impact statement available to the Environmental
Protection Agency, participating agencies, and the public, and in the
case of an environmental assessment, no later than 25 days after the
lead agency makes it available. Except when the lead agency grants an
extension of this period, the Council will not accept a referral after
that date.
(d) The referral shall consist of:
(1) A copy of the letter signed by the head of the referring agency
and delivered to the lead agency informing the lead agency of the
referral and the reasons for it; and
(2) A statement supported by factual evidence leading to the
conclusion that the matter is unsatisfactory from the standpoint of
public health or welfare or environmental quality. The statement shall:
(i) Identify any disputed material facts and incorporate (by
reference if appropriate) agreed upon facts;
(ii) Identify any existing environmental requirements or policies
that would be violated by the matter;
(iii) Present the reasons for the referral;
(iv) Contain a finding by the agency whether the issue raised is of
national importance because of the threat to national environmental
resources or policies or for some other reason;
(v) Review the steps taken by the referring agency to bring its
concerns to the attention of the lead agency at the earliest possible
time; and
(vi) Give the referring agency's recommendations as to what
mitigation alternative, further study, or other course of action
(including abandonment of the matter) are necessary to remedy the
situation.
(e) No later than 25 days after the referral to the Council, the
lead agency may deliver a response to the Council and the referring
agency. If the lead agency requests more time and gives assurance that
the matter will not go forward in the interim, the Council may grant an
extension. The response shall:
(1) Address fully the issues raised in the referral;
(2) Be supported by evidence and explanations, as appropriate; and
(3) Give the lead agency's response to the referring agency's
recommendations.
(f) Applicants may provide views in writing to the Council no later
than the response.
(g) No later than 25 days after receipt of both the referral and
any response or upon being informed that there will be no response
(unless the lead agency agrees to a longer time), the Council may take
one or more of the following actions:
(1) Conclude that the process of referral and response has
successfully resolved the problem.
(2) Initiate discussions with the agencies with the objective of
mediation with referring and lead agencies.
[[Page 49981]]
(3) Obtain additional views and information.
(4) Determine that the issue is not one of national importance and
request the referring and lead agencies to pursue their decision
process.
(5) Determine that the referring and lead agencies should further
negotiate the issue, and the issue is not appropriate for Council
consideration until one or more heads of agencies report to the Council
that the agencies' disagreements are irreconcilable.
(6) Publish its findings and recommendations (including, where
appropriate, a finding that the submitted evidence does not support the
position of an agency).
(7) When appropriate, submit the referral and the response together
with the Council's recommendation to the President for action.
(h) The Council shall take no longer than 60 days to complete the
actions specified in paragraph (g)(2), (3), or (5) of this section.
(i) The referral process is not intended to create any private
rights of action or to be judicially reviewable because any voluntary
resolutions by the agency parties do not represent final agency action
and instead are only provisional and dependent on later consistent
action by the action agencies.
PART 1505--NEPA AND AGENCY DECISION MAKING
Sec. 1505.1 [Reserved]
Sec. 1505.2 Record of decision in cases requiring environmental
impact statements.
At the time of its decision (Sec. 1506.10 of this subchapter) or,
if appropriate, its recommendation to Congress, each agency shall
prepare and timely publish a concise public record of decision or joint
record of decision. The record, which each agency may integrate into
any other record it prepares, shall:
(a) State the decision.
(b) Identify alternatives considered by the agency in reaching its
decision. The agency also shall specify the environmentally preferable
alternative or alternatives (Sec. 1502.14(f) of this subchapter). The
agency may discuss preferences among alternatives based on relevant
factors, including environmental, economic, and technical
considerations and agency statutory missions. The agency shall identify
and discuss all such factors, including any essential considerations of
national policy, that the agency balanced in making its decision and
state how those considerations entered into its decision.
(c) State whether the agency has adopted all practicable means to
mitigate environmental harm from the alternative selected, and if not,
why the agency did not. When an agency includes mitigation as a
component of the proposed action and relies on implementation of that
mitigation to analyze the reasonably foreseeable environmental effects,
the mitigation shall be enforceable, such as through permit conditions,
agreements, or other measures. The agency shall identify the authority
for enforceable mitigation, and adopt a monitoring and compliance plan
consistent with Sec. 1505.3(c).
Sec. 1505.3 Implementing the decision.
(a) Agencies may provide for monitoring to assure that their
decisions are carried out and should do so in important cases.
Mitigation (Sec. 1505.2(c)) and other conditions established in the
environmental impact statement or during its review and committed as
part of the decision shall be implemented by the lead agency or other
appropriate consenting agency. The lead agency shall:
(1) Include appropriate conditions in grants, permits, or other
approvals; and
(2) Condition funding of actions on mitigation.
(b) The lead or cooperating agency should, where relevant and
appropriate, incorporate mitigation measures that address or ameliorate
significant adverse human health and environmental effects of proposed
Federal actions that disproportionately and adversely affect
communities with environmental justice concerns.
(c) The lead or cooperating agency shall prepare a monitoring and
compliance plan when the environmental assessment or environmental
impact statement relies on mitigation as a component of the proposed
action to analyze the reasonably foreseeable environmental effects,
including to determine the significance of those effects, and the
agency incorporates the mitigation into a record of decision, finding
of no significant impact, or separate document, consistent with the
following:
(1) Contents. The agency should tailor the plan to the complexity
of the mitigation committed to and include:
(i) A basic description of the mitigation measure or measures;
(ii) The parties responsible for monitoring and implementing the
mitigation;
(iii) If appropriate, how monitoring information will be made
publicly available;
(iv) The anticipated timeframe for implementing and completing
mitigation;
(v) The standards for determining compliance with the mitigation
and the consequences of non-compliance; and
(vi) How the mitigation will be funded.
(2) No ongoing Federal action. An agency does not need to
supplement its environmental impact statement or environmental
assessment or revise its record of decision or finding of no
significant impact or separate decision document based solely on new
information developed through the monitoring and compliance plan.
PART 1506--OTHER REQUIREMENTS OF NEPA
Sec. 1506.1 Limitations on actions during NEPA process.
(a) Except as provided in paragraphs (b) and (c) of this section,
until an agency issues a finding of no significant impact, as provided
in Sec. 1501.6 of this subchapter, or record of decision, as provided
in Sec. 1505.2 of this subchapter, no action concerning the proposal
may be taken that would:
(1) Have an adverse environmental effect; or
(2) Limit the choice of reasonable alternatives.
(b) If an agency is considering an application from a non-Federal
entity and is aware that the applicant is about to take an action
within the agency's jurisdiction that would meet either of the criteria
in paragraph (a) of this section, then the agency shall promptly notify
the applicant that the agency will take appropriate action to ensure
that the objectives and procedures of NEPA are achieved. This section
does not preclude development by applicants of plans or designs or
performance of other activities necessary to support an application for
Federal, State, Tribal, or local permits or assistance. An agency
considering a proposed action for Federal funding may authorize such
activities, including, but not limited to, acquisition of interests in
land (e.g., fee simple, rights-of-way, and conservation easements),
purchase of long lead-time equipment, and purchase options made by
applicants, if the agency determines that such activities would not
limit the choice of reasonable alternatives and notifies the applicant
that the agency retains discretion to select any reasonable alternative
or the no action alternative regardless of any potential prior activity
taken by the applicant prior to the conclusion of the NEPA process.
(c) While work on a programmatic environmental review is in
progress and the action is not covered by an existing programmatic
review, agencies shall not
[[Page 49982]]
undertake in the interim any major Federal action covered by the
program that may significantly affect the quality of the human
environment unless such action:
(1) Is justified independently of the program;
(2) Is itself accompanied by an adequate environmental review; and
(3) Will not prejudice the ultimate decision on the program.
Interim action prejudices the ultimate decision on the program when it
tends to determine subsequent development or limit alternatives.
Sec. 1506.2 Elimination of duplication with State, Tribal, and local
procedures.
(a) Federal agencies are authorized to cooperate with State,
Tribal, and local agencies that are responsible for preparing
environmental documents, including those prepared pursuant to section
102(2)(G) of NEPA.
(b) To the fullest extent practicable unless specifically
prohibited by law, agencies shall cooperate with State, Tribal, and
local agencies to reduce duplication between NEPA and State, Tribal,
and local requirements, including through use of studies, analysis, and
decisions developed by State, Tribal, or local agencies. Except for
cases covered by paragraph (a) of this section, such cooperation shall
include, to the fullest extent practicable:
(1) Joint planning processes.
(2) Joint environmental research and studies.
(3) Joint public hearings (except where otherwise provided by
statute).
(4) Joint environmental assessments.
(c) To the fullest extent practicable unless specifically
prohibited by law, agencies shall cooperate with State, Tribal, and
local agencies to reduce duplication between NEPA and comparable State,
Tribal, and local requirements. Such cooperation shall include, to the
fullest extent practicable, joint environmental impact statements. In
such cases, one or more Federal agencies and one or more State, Tribal,
or local agencies shall be joint lead agencies. Where State or Tribal
laws or local ordinances have environmental impact statement or similar
requirements in addition to but not in conflict with those in NEPA,
Federal agencies may cooperate in fulfilling these requirements, as
well as those of Federal laws, so that one document will comply with
all applicable laws.
(d) To better integrate environmental impact statements into State,
Tribal, or local planning processes, environmental impact statements
shall discuss any inconsistency of a proposed action with any approved
State, Tribal, or local plan or law (whether or not federally
sanctioned). Where an inconsistency exists, the statement should
describe the extent to which the agency would reconcile its proposed
action with the plan or law. While the statement should discuss any
inconsistencies, NEPA does not require reconciliation.
Sec. 1506.3 Adoption.
(a) Generally. An agency may adopt a draft or final environmental
impact statement, environmental assessment, or portion thereof, or
categorical exclusion determination, consistent with this section.
(b) Environmental impact statements. An agency may adopt a draft or
final environmental impact statement, or portion thereof, provided that
the adopting agency conducts an independent review of the statement and
concludes that it meets the standards for an adequate statement,
pursuant to the regulations in this subchapter and the adopting
agency's NEPA procedures.
(1) If the actions covered by the original environmental impact
statement and the proposed action are substantially the same, the
adopting agency shall republish and file it as a final statement
consistent with Sec. 1506.9 of this subchapter. If the actions are not
substantially the same or the adopting agency determines that the
statement requires supplementation, the adopting agency shall treat the
statement as a draft, supplement or reevaluate it as necessary, and
republish and file it, consistent with Sec. 1506.9 of this subchapter.
(2) Notwithstanding paragraph (b)(1) of this section, if a
cooperating agency does not issue a record of decision jointly or
concurrently consistent with Sec. 1505.2 of this subchapter, a
cooperating agency may issue a record of decision adopting the
environmental impact statement of a lead agency without republication.
(c) Environmental assessments. An agency may adopt an environmental
assessment, or portion thereof, if the actions covered by the original
environmental assessment and the proposed action are substantially the
same, and the assessment meets the standards for an adequate
environmental assessment under the regulations in this subchapter and
the adopting agency's NEPA procedures. If the actions are not
substantially the same or the adopting agency determines that the
environmental assessment requires supplementation, the adopting agency
may adopt the environmental assessment, and supplement or reevaluate it
as necessary, in its finding of no significant impact and provide
notice consistent with Sec. 1501.6 of this subchapter.
(d) Categorical exclusion determinations. An agency may adopt
another agency's determination that a categorical exclusion applies to
a particular proposed action if the action covered by that
determination and the adopting agency's proposed action are
substantially the same.
(1) The adopting agency shall document its adoption, including the
determination that its proposed action is substantially the same as the
action covered by the original categorical exclusion determination and
that there are no extraordinary circumstances present that require the
preparation of an environmental assessment or environmental impact
statement.
(2) The adopting agency shall publish its adoption determination on
an agency website or otherwise make it publicly available.
(e) Identification of certain circumstances. The adopting agency
shall specify if one of the following circumstances is present:
(1) The agency is adopting an environmental assessment or
environmental impact statement that is not final within the agency that
prepared it.
(2) The action assessed in the environmental assessment or
environmental impact statement is the subject of a referral under part
1504 of this subchapter.
(3) The environmental assessment or environmental impact
statement's adequacy is the subject of a judicial action that is not
final.
Sec. 1506.4 Combining documents.
Agencies should combine, to the fullest extent practicable, any
environmental document with any other agency document to reduce
duplication and paperwork.
Sec. 1506.5 Agency responsibility for environmental documents.
(a) The agency is responsible for the accuracy, scope (Sec.
1501.3(b) of this subchapter), and content of environmental documents
and shall ensure they are prepared with professional and scientific
integrity, using reliable data and resources, regardless of whether
they are prepared by the agency or a contractor under the supervision
of the agency or by the applicant or project sponsor under procedures
the agency adopts pursuant to section 107(f) of NEPA and Sec.
1507.3(c)(1) of this subchapter. The agency shall exercise its
independent judgment and briefly document its
[[Page 49983]]
determination that an environmental document meets the standards under
NEPA, the regulations in this subchapter, and the agency's NEPA
procedures.
(b) An agency may require an applicant to submit environmental
information for possible use by the agency in preparing an
environmental document. An agency also may authorize a contractor to
prepare an environmental assessment or environmental impact statement
under the supervision of the agency and may authorize a contractor to
draft a finding of no significant impact or record of decision, but the
agency is responsible for its accuracy, scope, and contents.
(1) The agency should assist the applicant by outlining the types
of information required for the preparation of environmental documents.
The agency shall provide guidance to the contractor and participate in
and supervise the document's preparation.
(2) The agency shall independently evaluate the information
submitted and the environmental document and shall be responsible for
their accuracy, scope, and contents, and document its evaluation in the
environmental document.
(3) The agency shall include in the environmental document the
names and qualifications of the persons preparing environmental
documents, and conducting the independent evaluation of any information
submitted or environmental documents prepared by a contractor, such as
in the list of preparers for environmental impact statements (Sec.
1502.18 of this subchapter). It is the intent of this paragraph (b)(3)
that acceptable work not be redone, but that it be verified by the
agency.
(4) The lead agency or cooperating agency, where appropriate, shall
prepare a disclosure statement for the contractor's execution
specifying that the contractor has no financial or other interest in
the outcome of the action. Such statement need not include privileged
or confidential trade secrets or other confidential business
information.
(5) Nothing in this section is intended to prohibit an agency from
requesting any person, including the applicant, to submit information
to it or to prohibit any person from submitting information to an
agency for use in preparing environmental documents.
Sec. 1506.6 [Reserved]
Sec. 1506.7 Further guidance.
(a) The Council may provide further guidance concerning NEPA and
its procedures.
(b) To the extent that Council guidance issued prior to [EFFECTIVE
DATE OF THE FINAL RULE] is in conflict with this subchapter, the
provisions of this subchapter apply.
Sec. 1506.8 Proposals for legislation.
(a) When developing legislation, agencies shall integrate the NEPA
process for proposals for legislation significantly affecting the
quality of the human environment with the legislative process of the
Congress. Technical drafting assistance does not by itself constitute a
legislative proposal. Only the agency that has primary responsibility
for the subject matter involved will prepare a legislative
environmental impact statement.
(b) A legislative environmental impact statement is the detailed
statement required by law to be included in an agency's recommendation
or report on a legislative proposal to Congress. A legislative
environmental impact statement shall be considered part of the formal
transmittal of a legislative proposal to Congress; however, it may be
transmitted to Congress up to 30 days later to allow time for
completion of an accurate statement that can serve as the basis for
public and Congressional debate. The statement must be available in
time for Congressional hearings and deliberations.
(c) Preparation of a legislative environmental impact statement
shall conform to the requirements of the regulations in this
subchapter, except as follows:
(1) There need not be a scoping process.
(2) Agencies shall prepare the legislative statement in the same
manner as a draft environmental impact statement and need not prepare a
final statement unless any of the following conditions exist. In such
cases, the agency shall prepare and publish the statements consistent
with Sec. Sec. 1503.1 of this subchapter and 1506.11:
(i) A Congressional committee with jurisdiction over the proposal
has a rule requiring both draft and final environmental impact
statements.
(ii) The proposal results from a study process required by statute
(such as those required by the Wild and Scenic Rivers Act (16 U.S.C.
1271 et seq.)).
(iii) Legislative approval is sought for Federal or federally
assisted construction or other projects that the agency recommends be
located at specific geographic locations. For proposals requiring an
environmental impact statement for the acquisition of space by the
General Services Administration, a draft statement shall accompany the
Prospectus or the 11(b) Report of Building Project Surveys to the
Congress, and a final statement shall be completed before site
acquisition.
(iv) The agency decides to prepare draft and final statements.
(d) Comments on the legislative statement shall be given to the
lead agency, which shall forward them along with its own responses to
the Congressional committees with jurisdiction.
Sec. 1506.9 Filing requirements.
(a) Agencies shall file environmental impact statements together
with comments and responses with the Environmental Protection Agency,
Office of Federal Activities, consistent with the Environmental
Protection Agency's procedures.
(b) Agencies shall file statements with the Environmental
Protection Agency no earlier than they are also transmitted to
participating agencies and made available to the public. The
Environmental Protection Agency may issue guidelines to agencies to
implement its responsibilities under this section and Sec. 1506.10.
(c) Agencies shall notify the Environmental Protection Agency when
they adopt an environmental impact statement consistent with Sec.
1506.3(b).
Sec. 1506.10 Timing of agency action.
(a) The Environmental Protection Agency shall publish a notice in
the Federal Register each week of the environmental impact statements
filed since its prior notice. The minimum time periods set forth in
this section are calculated from the date of publication of this
notice.
(b) Unless otherwise provided by law, including statutory
provisions for combining a final environmental impact statement and
record of decision, Federal agencies shall not make or issue a record
of decision under Sec. 1505.2 of this subchapter for the proposed
action until the later of the following dates:
(1) 90 days after publication of the notice described in paragraph
(a) of this section for a draft environmental impact statement.
(2) 30 days after publication of the notice described in paragraph
(a) of this section for a final environmental impact statement.
(c) An agency may make an exception to the rule on timing set forth
in paragraph (b) of this section for a
[[Page 49984]]
proposed action in the following circumstances:
(1) Some agencies have formally established administrative review
processes (e.g., appeals, objections, protests), which may be initiated
prior to or after filing and publication of the final environmental
impact statement with the Environmental Protection Agency, that allow
other agencies or the public to raise issues about a decision and make
their views known. In such cases where a real opportunity exists to
alter the decision, the agency may make and record the decision at the
same time it publishes the environmental impact statement. This means
that the period for administrative review of the decision and the 30-
day period set forth in paragraph (b)(2) of this section may run
concurrently. In such cases, the environmental impact statement shall
explain the timing and the public's right of administrative review and
provide notification consistent with Sec. 1506.9; or
(2) An agency engaged in rulemaking under the Administrative
Procedure Act or other statute for the purpose of protecting the public
health or safety may waive the time period in paragraph (b)(2) of this
section, publish a decision on the final rule simultaneously with
publication of the notice of the availability of the final
environmental impact statement, and provide notification consistent
with Sec. 1506.10, as described in paragraph (a) of this section.
(d) If an agency files the final environmental impact statement
within 90 days of the filing of the draft environmental impact
statement with the Environmental Protection Agency, the minimum 30-day
and 90-day periods may run concurrently. However, subject to paragraph
(e) of this section, agencies shall allow at least 45 days for comments
on draft statements.
(e) The lead agency may extend the minimum periods in paragraph (b)
of this section and provide notification consistent with Sec. 1506.10.
Upon a showing by the lead agency of compelling reasons of national
policy, the Environmental Protection Agency may reduce the minimum
periods and, upon a showing by any other Federal agency of compelling
reasons of national policy, also may extend the minimum periods, but
only after consultation with the lead agency. The lead agency may
modify the minimum periods when necessary to comply with other specific
statutory requirements (Sec. 1507.3(d)(4) of this subchapter). Failure
to file timely comments shall not be a sufficient reason for extending
a period. If the lead agency does not concur with the extension of
time, the Environmental Protection Agency may not extend it for more
than 30 days. When the Environmental Protection Agency reduces or
extends any period it shall notify the Council.
Sec. 1506.11 Emergencies.
Where emergency circumstances make it necessary to take an action
with significant effects without observing the provisions of the
regulations in this subchapter, the Federal agency taking the action
should consult with the Council about alternative arrangements for
compliance with section 102(2)(C) of NEPA. Agencies and the Council
will limit such arrangements to actions necessary to control the
immediate impacts of the emergency. Alternative arrangements do not
waive the requirement to comply with the statute, but establish an
alternative means for NEPA compliance.
Sec. 1506.12 Innovative approaches to NEPA reviews.
(a) The Council may authorize an innovative approach to NEPA
compliance that allows an agency to comply with the Act following
procedures modified from the requirements of the regulations in this
subchapter, to facilitate sound and efficient environmental review for
actions to address extreme environmental challenges consistent with
section 101 of NEPA. Examples of extreme environmental challenges may
relate to sea level rise, increased wildfire risk, or bolstering the
resilience of infrastructure to increased disaster risk due to climate
change; water scarcity; degraded water or air quality; disproportionate
and adverse effects on communities with environmental justice concerns;
imminent or reasonably foreseeable loss of historic, cultural, or
Tribal resources; species loss; and impaired ecosystem health.
(b) The Council may approve an innovative approach if it is
consistent with this section, and such approval does not waive the
requirement to comply with the statute, but establishes an alternative
means for NEPA compliance.
(c) An agency request for an innovative approach shall:
(1) Identify each provision of this subchapter from which the
agency seeks a modification and how the innovative approach the agency
proposes to ensure compliance with NEPA;
(2) Explain the extreme environmental challenge the approach would
address, why the alternative means are needed to address the challenge,
and how the alternative means would facilitate the sound and efficient
environmental review; and
(3) Consult with any potential cooperating agencies and include a
summary of their comments.
(d) The Council shall evaluate the agency's request within 60 days
to determine if it meets the requirements in this section. The Council
may:
(1) Approve the request for modification;
(2) Approve the request for modification with revisions; or
(3) Deny the request for modification.
(e) The Council shall publish on its website any request for
modification that it has approved, approved with revisions, or denied.
Sec. 1506.13 Effective date.
The regulations in this subchapter apply to any NEPA process begun
after [EFFECTIVE DATE OF THE FINAL RULE]. An agency may apply the
regulations in this subchapter to ongoing activities and environmental
documents begun before [EFFECTIVE DATE OF THE FINAL RULE].
PART 1507--AGENCY COMPLIANCE
Sec. 1507.1 Compliance.
All agencies of the Federal Government shall comply with the
regulations in this subchapter. It is the intent of these regulations
to allow each agency flexibility in adapting its implementing
procedures authorized by Sec. 1507.3 to the requirements of other
applicable laws.
Sec. 1507.2 Agency capability to comply.
Each agency shall be capable (in terms of personnel and other
resources) of complying with the requirements of NEPA and the
regulations in this subchapter. Such compliance may include use of the
resources of other agencies, applicants, and other participants in the
NEPA process, but the agency using the resources shall itself have
sufficient capability to evaluate what others do for it and account for
the contributions of others. Agencies shall:
(a) Agencies shall designate a senior agency official to be
responsible for overall review of agency NEPA compliance, including
resolving implementation issues, and a Chief Public Engagement Officer
to be responsible for facilitating community engagement across the
agency and, where appropriate, the provision of technical assistance to
communities.
(b) Fulfill the requirements of section 102(2)(A) of NEPA to
utilize a systematic, interdisciplinary approach that will ensure the
integrated use of the
[[Page 49985]]
natural and social sciences and the environmental design arts in
planning and in decision making that may have an impact on the human
environment.
(c) Identify methods and procedures required by section 102(2)(B)
of NEPA to ensure that presently unquantified environmental amenities
and values may be given appropriate consideration.
(d) Prepare adequate environmental impact statements pursuant to
section 102(2)(C) of NEPA and cooperate on the development of
statements in the areas where the agency has jurisdiction by law or
special expertise or is authorized to develop and enforce environmental
standards.
(e) Ensure environmental documents are prepared with professional
integrity, including scientific integrity, consistent with section
102(2)(D) of NEPA.
(f) Make use of reliable data and resources in carrying out their
responsibilities under NEPA, consistent with section 102(2)(E) of NEPA.
(g) Study, develop, and describe technically and economically
feasible alternatives, consistent with section 102(2)(F) of NEPA.
(h) Study, develop, and describe alternatives to recommended
courses of action in any proposal that involves unresolved conflicts
concerning alternative uses of available resources, consistent with
section 102(2)(H) of NEPA.
(i) Comply with the requirement of section 102(2)(K) of NEPA that
the agency initiate and utilize ecological information in the planning
and development of resource-oriented projects.
(j) Fulfill the requirements of sections 102(2)(I), 102(2)(J), and
102(2)(L), of NEPA, and Executive Order 11514, Protection and
Enhancement of Environmental Quality, section 2, as amended by
Executive Order 11991, Relating to Protection and Enhancement of
Environmental Quality.
Sec. 1507.3 Agency NEPA procedures.
(a) The Council has determined that the categorical exclusions
contained in agency NEPA procedures as of [EFFECTIVE DATE OF THE FINAL
RULE] are consistent with this subchapter.
(b) No more than 12 months after [EFFECTIVE DATE OF THE FINAL
RULE], 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,
facilitate efficient decision making, and ensure that agencies make
decisions in accordance with the policies and requirements of the Act.
When the agency is a department, it may be efficient for major subunits
(with the consent of the department) to adopt their own procedures.
(1) Each agency shall consult with the Council while developing or
revising its proposed procedures and before publishing them in the
Federal Register for comment. Agencies with similar programs should
consult with each other and the Council to coordinate their procedures,
especially for programs requesting similar information from applicants.
(2) Agencies shall provide an opportunity for public review and
review by the Council for conformity with the Act and the regulations
in this subchapter before issuing their final procedures. The Council
shall complete its review within 30 days of the receipt of the proposed
final procedures. Once in effect, agencies shall publish their NEPA
procedures and ensure that they are readily available to the public.
Agencies shall continue to review their policies and procedures, in
consultation with the Council, to revise them as necessary to ensure
full compliance with the purposes and provisions of the Act.
(3) The issuance or update of agency procedures is not subject to
NEPA review under this subchapter.
(c) Agency procedures shall:
(1) Designate the major decision points for the agency's programs
and actions subject to NEPA, ensuring that the NEPA process begins at
the earliest reasonable time, consistent with Sec. 1501.2 of this
subchapter, and aligns with the corresponding decision points;
(2) Require that relevant environmental documents, comments, and
responses be part of the record in rulemaking and adjudicatory
proceedings;
(3) Integrate the environmental review into the decision-making
process by requiring that relevant environmental documents, comments,
and responses accompany the proposal through existing agency review
processes so that decision makers use them in making decisions;
(4) Require that the alternatives considered by the decision maker
are encompassed by the range of alternatives discussed in the relevant
environmental documents and that the decision maker consider the
alternatives described in the environmental documents. If another
decision document accompanies the relevant environmental documents to
the decision maker, agencies are encouraged to make available to the
public before the decision is made any part of that document that
relates to the comparison of alternatives;
(5) Require the combination of environmental documents with other
agency documents to facilitate sound and efficient decision making and
avoid duplication, where consistent with applicable statutory
requirements;
(6) Include those procedures required by Sec. Sec. 1501.2(b)(4)
(assistance to applicants);
(7) Include specific criteria for and identification of those
typical classes of action that normally:
(i) Require environmental impact statements; and
(ii) Require environmental assessments but not necessarily
environmental impact statements;
(8) Establish categorical exclusions and identify extraordinary
circumstances. When establishing new or revising existing categorical
exclusions, agencies shall:
(i) Identify when documentation of a determination that a
categorical exclusion applies to a proposed action is required;
(ii) Substantiate the proposed new or revised categorical exclusion
with sufficient information to conclude that the category of actions
does not have a significant effect, individually or in the aggregate,
on the human environment and provide this substantiation in a written
record that is made publicly available as part of the notice and
comment process (Sec. 1507.3(b)(1) and (2)); and
(iii) Describe how the agency will consider extraordinary
circumstances in determining whether additional analysis in an
environmental assessment or environmental impact statement is required;
(9) Include a process for reviewing the agency's categorical
exclusions at least every 10 years;
(10) Include a process for introducing a supplement to an
environmental assessment or environmental impact statement into its
formal administrative record, if such a record exists;
(11) Explain where interested persons can get information or status
reports on environmental impact statements, environmental assessments,
and other elements of the NEPA process; and
(12) Where applicable, include procedures to allow a project
sponsor to prepare environmental assessments and environmental impact
statements under the agency's supervision consistent with Sec. 1506.5
of this subchapter.
(d) Agency procedures also may:
(1) Identify activities or decisions that are not subject to NEPA;
(2) Include processes for consideration of emergency actions that
would not result in significant effects;
[[Page 49986]]
(3) Include specific criteria for providing limited exceptions to
the provisions of the regulations in this subchapter for classified
proposals. These are proposed actions that are specifically authorized
under criteria established by an Executive order or statute to be kept
secret in the interest of national defense or foreign policy and are in
fact properly classified pursuant to such Executive order or statute.
Agencies may safeguard and restrict from public dissemination
environmental assessments and environmental impact statements that
address classified proposals in accordance with agencies' own
regulations applicable to classified information. Agencies should
organize these documents so that classified portions are included as
annexes, so that the agencies can make the unclassified portions
available to the public; and
(4) Provide for periods of time other than those presented in Sec.
1506.10 of this subchapter when necessary to comply with other specific
statutory requirements, including requirements of lead or cooperating
agencies.
Sec. 1507.4 Agency NEPA program information.
(a) To allow agencies and the public to efficiently and effectively
access information about NEPA reviews, agencies shall provide for
agency websites or other information technology tools to make available
documents, relevant notices, and other relevant information for use by
agencies, applicants, and interested persons. The website or other such
means of publication shall include the agency's NEPA procedures,
including those of subunits, and a list of environmental assessments
and environmental impact statements that are in development and
complete. As appropriate, agencies also should include:
(1) Agency planning and other documents that guide agency
management and provide for public involvement in agency planning
processes;
(2) Environmental documents;
(3) Agency policy documents, orders, terminology, and explanatory
materials regarding agency decision-making processes;
(4) Agency planning program information, plans, and planning tools;
and
(5) A database searchable by geographic information, document
status, document type, and project type.
(b) Agencies shall provide for efficient and effective interagency
coordination of their environmental program websites and other
information technology tools, such as use of shared databases or
application programming interfaces, in their implementation of NEPA and
related authorities.
PART 1508--DEFINITIONS
Sec. 1508.1 Definitions.
The following definitions apply to the regulations in this
subchapter. Federal agencies shall use these terms uniformly throughout
the Federal Government.
(a) Act or NEPA means the National Environmental Policy Act, as
amended (42 U.S.C. 4321, et seq.).
(b) Affecting means will or may have an effect on.
(c) Authorization means any license, permit, approval, finding,
determination, or other administrative decision issued by an agency
that is required or authorized under Federal law in order to implement
a proposed action.
(d) Categorical exclusion means a category of actions that an
agency has determined, in its agency NEPA procedures (Sec. 1507.3 of
this subchapter) or pursuant to Sec. 1501.4(c) of this subchapter,
normally does not have a significant effect on the human environment.
(e) Cooperating agency means any Federal, State, Tribal, or local
agency with jurisdiction by law or special expertise with respect to
any environmental impact involved in a proposal that has been
designated by the lead agency.
(f) Council means the Council on Environmental Quality established
by title II of the Act.
(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 actions with
individually minor but collectively significant effects taking place
over a period of time.
(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, such as disproportionate and adverse effects on communities
with environmental justice concerns, whether direct, indirect, or
cumulative. Effects also include climate change-related effects,
including the contribution of a proposed action and its alternatives to
climate change, and the reasonably foreseeable effects of climate
change on the proposed action and its alternatives. 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.
(h) Environmental assessment means a concise public document, for
which a Federal agency is responsible, for an action that is not likely
to have a significant effect or for which the significance of the
effects is unknown (Sec. 1501.5 of this subchapter), that is used to
support an agency's determination of whether to prepare an
environmental impact statement (part 1502 of this subchapter) or a
finding of no significant impact (Sec. 1501.6 of this subchapter).
(i) Environmental document means an environmental assessment,
environmental impact statement, documented categorical exclusion
determination, finding of no significant impact, record of decision, or
notice of intent.
(j) Environmental impact statement means a detailed written
statement that is required by section 102(2)(C) of NEPA.
(k) Environmental justice means the just treatment and meaningful
involvement of all people, regardless of income, race, color, national
origin, Tribal affiliation, or disability, in agency decision making
and other Federal activities that affect human health and the
environment so that people:
(1) Are fully protected from disproportionate and adverse human
health and environmental effects (including risks) and hazards,
including those related to climate change, the cumulative impacts of
environmental and other burdens, and the legacy of racism or other
structural or systemic barriers; and
(2) Have equitable access to a healthy, sustainable, and resilient
environment
[[Page 49987]]
in which to live, play, work, learn, grow, worship, and engage in
cultural and subsistence practices.
(l) Environmentally preferable alternative means the alternative or
alternatives that will best promote the national environmental policy
as expressed in section 101 of NEPA.
(m) Extraordinary circumstances are factors or circumstances that
indicate a normally categorically excluded action may have a
significant environmental effect. Examples of extraordinary
circumstances include potential substantial effects on sensitive
environmental resources, potential disproportionate and adverse effects
on communities with environmental justice concerns, potential
substantial effects associated with climate change, and potential
adverse effects on historic properties or cultural resources.
(n) Federal agency means all agencies of the Federal Government. It
does not mean the Congress, the Judiciary, or the President, including
the performance of staff functions for the President in his Executive
Office. For the purposes of the regulations in this subchapter, Federal
agency also includes States, units of general local government, and
Tribal governments assuming NEPA responsibilities from a Federal agency
pursuant to statute.
(o) Finding of no significant impact means a document by a Federal
agency briefly presenting the agency's determination that and reasons
why an action, not otherwise categorically excluded (Sec. 1501.4 of
this subchapter), will not have a significant effect on the human
environment and for which an environmental impact statement therefore
will not be prepared.
(p) Human environment or environment means comprehensively the
natural and physical environment and the relationship of present and
future generations with that environment. (See also the definition of
``effects'' in paragraph (g) of this section.)
(q) Joint lead agency means a Federal, State, Tribal, or local
agency designated pursuant to Sec. 1501.7(c) that shares the
responsibilities of the lead agency for preparing the environmental
impact statement or environmental assessment.
(r) Jurisdiction by law means agency authority to approve, veto, or
finance all or part of the proposal.
(s) Lead agency means the Federal agency that proposes the agency
action or is designated pursuant to Sec. 1501.7(c) for preparing or
having primary responsibility for preparing the environmental impact
statement or environmental assessment.
(t) Legislation means a bill or legislative proposal to Congress
developed by a Federal agency, but does not include requests for
appropriations or legislation recommended by the President.
(u) Major Federal action or action means an action that the agency
carrying out such action determines is subject to substantial Federal
control and responsibility.
(1) Major Federal actions generally include:
(i) Granting authorizations, including permits, licenses, rights-
of-way, or other authorizations.
(ii) Adoption of official policy, such as rules, regulations, and
interpretations adopted under the Administrative Procedure Act, 5
U.S.C. 551 et seq., or other statutes; implementation of treaties and
international conventions or agreements, including those implemented
pursuant to statute or regulation; formal documents establishing an
agency's policies that will result in or substantially alter agency
programs.
(iii) Adoption of formal plans, such as official documents prepared
or approved by Federal agencies, which prescribe alternative uses of
Federal resources, upon which future agency actions will be based.
(iv) Adoption of programs, such as a group of concerted actions to
implement a specific policy or plan; systematic and related agency
decisions allocating agency resources to implement a specific statutory
program or executive directive.
(v) Carrying out specific projects, such as construction or
management activities.
(vi) Providing financial assistance, including through grants,
cooperative agreements, loans, loan guarantees, or other forms of
financial assistance, where the agency has the authority to deny in
whole or in part the assistance due environmental effects, impose
conditions on the receipt of the financial assistance to address
environmental effects, or otherwise has sufficient control and
responsibility over the subsequent use of the financial assistance or
the effects of the activity for which the agency is providing the
financial assistance.
(2) Major Federal actions do not include the following:
(i) Non-Federal actions:
(A) With no or minimal Federal funding; or
(B) With no or minimal Federal involvement where the Federal agency
cannot control the outcome of the project;
(ii) Funding assistance solely in the form of general revenue
sharing funds that do not provide Federal agency compliance or
enforcement responsibility over the subsequent use of such funds;
(iii) Loans, loan guarantees, or other forms of financial
assistance where a Federal agency does not exercise sufficient control
and responsibility over the subsequent use of such financial assistance
or the effects of the action;
(iv) Business loan guarantees provided by the Small Business
Administration pursuant to section 7(a) or (b) and of the Small
Business Act (15 U.S.C. 636(a) and (b)), or title V of the Small
Business Investment Act of 1958 (15 U.S.C. 695 through 697g);
(v) Judicial or administrative civil or criminal enforcement
actions;
(vi) Extraterritorial activities or decisions, which means agency
activities or decisions with effects located entirely outside of the
jurisdiction of the United States;
(vii) Activities or decisions that are non-discretionary and made
in accordance with the agency's statutory authority;
(viii) Activities or decisions that are not a final agency action
within the meaning of such term under the Administrative Procedure Act;
and
(ix) Activities or decisions for projects approved by a Tribal
Nation that occur on or involve land held in trust or restricted status
by the United States for the benefit of that Tribal Nation or by the
Tribal Nation when such activities or decisions involve no Federal
funding or other Federal involvement.
(v) Matter includes for purposes of part 1504 of this subchapter:
(1) With respect to the Environmental Protection Agency, any
proposed legislation, project, action, or regulation as those terms are
used in section 309(a) of the Clean Air Act (42 U.S.C. 7609).
(2) With respect to all other agencies, any proposed major Federal
action to which section 102(2)(C) of NEPA applies.
(w) Mitigation means measures that avoid, minimize, or compensate
for effects caused by a proposed action or alternatives as described in
an environmental document or record of decision and that have a
connection to those effects. Mitigation includes, in general order of
priority:
(1) Avoiding the effect altogether by not taking a certain action
or parts of an action.
(2) Minimizing effects by limiting the degree or magnitude of the
action and its implementation.
[[Page 49988]]
(3) Rectifying the effect by repairing, rehabilitating, or
restoring the affected environment.
(4) Reducing or eliminating the effect over time by preservation
and maintenance operations during the life of the action.
(5) Compensating for the effect by replacing or providing
substitute resources or environments.
(x) NEPA process means all measures necessary for compliance with
the requirements of section 2 and title I of NEPA.
(y) Notice of intent means a public notice that an agency will
prepare and consider an environmental impact statement or environmental
assessment, as applicable.
(z) Page means 500 words and does not include citations,
explanatory maps, diagrams, graphs, tables, and other means of
graphically displaying quantitative or geospatial information.
(aa) Participating agency means a Federal, State, Tribal, or local
agency participating in an environmental review or authorization of an
action.
(bb) Participating Federal agency means a Federal agency
participating in an environmental review or authorization of an action.
(cc) Programmatic environmental document means an environmental
impact statement or environmental assessment analyzing all or some of
the environmental effects of a policy, program, plan, or group of
related actions.
(dd) Proposal means a proposed action at a stage when an agency has
a goal, is actively preparing to make a decision on one or more
alternative means of accomplishing that goal, and can meaningfully
evaluate its effects. A proposal may exist in fact as well as by agency
declaration that one exists.
(ee) Publish and publication mean methods found by the agency to
efficiently and effectively make environmental documents and
information available for review by interested persons, including
electronic publication, and adopted by agency NEPA procedures pursuant
to Sec. 1507.3 of this subchapter.
(ff) Reasonable alternatives means a reasonable range of
alternatives that are technically and economically feasible, and meet
the purpose and need for the proposed action.
(gg) Reasonably foreseeable means sufficiently likely to occur such
that a person of ordinary prudence would take it into account in
reaching a decision.
(hh) Referring agency means the Federal agency that has referred
any matter to the Council after a determination that the matter is
unsatisfactory from the standpoint of public health or welfare or
environmental quality.
(ii) Scope consists of the range and breadth of actions,
alternatives, and effects to be considered in an environmental impact
statement or environmental assessment.
(jj) Senior agency official means an official of assistant
secretary rank or higher (or equivalent) that is designated for overall
agency NEPA compliance, including resolving implementation issues.
(kk) Significant effects means adverse effects that an agency has
identified as significant based on the criteria in Sec. 1501.3(d) of
this subchapter.
(ll) Special expertise means statutory responsibility, agency
mission, or related program experience.
(mm) Tiering refers to the process described in Sec. 1501.11 of
this subchapter.
Sec. 1508.2 [Reserved]
[FR Doc. 2023-15405 Filed 7-28-23; 8:45 am]
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