Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 43304-43376 [2020-15179]
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Federal Register / Vol. 85, No. 137 / Thursday, July 16, 2020 / Rules and Regulations
COUNCIL ON ENVIRONMENTAL
QUALITY
40 CFR Parts 1500, 1501, 1502, 1503,
1504, 1505, 1506, 1507, 1508, 1515,
1516, 1517, and 1518
[CEQ–2019–0003]
RIN 0331–AA03
Update to the Regulations
Implementing the Procedural
Provisions of the National
Environmental Policy Act
Council on Environmental
Quality.
ACTION: Final rule.
AGENCY:
The Council on
Environmental Quality (CEQ) issues this
final rule to update its regulations for
Federal agencies to implement the
National Environmental Policy Act
(NEPA). CEQ has not comprehensively
updated its regulations since their
promulgation in 1978, more than four
decades ago. This final rule
comprehensively updates, modernizes,
and clarifies the regulations to facilitate
more efficient, effective, and timely
NEPA reviews by Federal agencies in
connection with proposals for agency
action. The rule will improve
interagency coordination in the
environmental review process, promote
earlier public involvement, increase
transparency, and enhance the
participation of States, Tribes, and
localities. The amendments will
advance the original goals of the CEQ
regulations to reduce paperwork and
delays, and promote better decisions
consistent with the national
environmental policy set forth in
section 101 of NEPA.
DATES: This is a major rule subject to
congressional review. The effective date
is September 14, 2020. However, if
congressional review has changed the
effective date, CEQ will publish a
document in the Federal Register to
establish the actual effective date or to
terminate the rule.
ADDRESSES: CEQ has established a
docket for this action under docket
number CEQ–2019–0003. All
documents in the docket are listed on
www.regulations.gov.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Viktoria Z. Seale, Chief of Staff and
General Counsel, 202–395–5750, NEPAUpdate@ceq.eop.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. National Environmental Policy Act
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B. Council on Environmental Quality
Regulations, Guidance, and Reports
1. Regulatory History
2. CEQ Guidance and Reports
3. Environmental Impact Statement
Timelines and Page Count Reports
C. Judicial Review of Agency NEPA
Compliance
D. Statutory Developments
E. Presidential Directives
F. Advance Notice of Proposed Rulemaking
G. Notice of Proposed Rulemaking
II. Summary of Final Rule
A. Changes Throughout Parts 1500–1508
B. Revisions To Update the Purpose,
Policy, and Mandate (Part 1500)
1. Purpose and Policy (§ 1500.1)
2. Remove and Reserve Policy (§ 1500.2)
3. NEPA Compliance (§ 1500.3)
4. Reducing Paperwork and Delay
(§§ 1500.4 and 1500.5)
5. Agency Authority (§ 1500.6)
C. Revisions to NEPA and Agency Planning
(Part 1501)
1. NEPA Thresholds (§ 1501.1)
2. Apply NEPA Early in the Process
(§ 1501.2)
3. Determine the Appropriate Level of
NEPA Review (§ 1501.3)
4. Categorical Exclusions (§ 1501.4)
5. Environmental Assessments (§ 1501.5)
6. Findings of No Significant Impact
(§ 1501.6)
7. Lead and Cooperating Agencies
(§§ 1501.7 and 1501.8)
8. Scoping (§ 1501.9)
9. Time Limits (§ 1501.10)
10. Tiering (§ 1501.11)
11. Incorporation by Reference (§ 1501.12)
D. Revisions to Environmental Impact
Statements (Part 1502)
1. Purpose of Environmental Impact
Statement (§ 1502.1)
2. Implementation (§ 1502.2)
3. Statutory Requirements for Statements
(§ 1502.3)
4. Major Federal Actions Requiring the
Preparation of Environmental Impact
Statements (§ 1502.4)
5. Timing (§ 1502.5)
6. Interdisciplinary Preparation (§ 1502.6)
7. Page Limits (§ 1502.7)
8. Writing (§ 1502.8)
9. Draft, Final and Supplemental
Statements (§ 1502.9)
10. Recommended Format (§ 1502.10)
11. Cover (§ 1502.11)
12. Summary (§ 1502.12)
13. Purpose and Need (§ 1502.13)
14. Alternatives Including the Proposed
Action (§ 1502.14)
15. Affected Environment (§ 1502.15)
16. Environmental Consequences
(§ 1502.16)
17. Submitted Alternatives, Information,
and Analyses (§ 1502.17)
18. List of Preparers (§ 1502.18)
19. Appendix (§ 1502.19)
20. Publication of the Environmental
Impact Statement (§ 1502.20)
21. Incomplete or Unavailable Information
(§ 1502.21)
22. Cost-Benefit Analysis (§ 1502.22)
23. Methodology and Scientific Accuracy
(§ 1502.23)
24. Environmental Review and
Consultation Requirements (§ 1502.24)
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E. Revisions to Commenting on
Environmental Impact Statements (Part
1503)
1. Inviting Comments and Requesting
Information and Analyses (§ 1503.1)
2. Duty To Comment (§ 1503.2)
3. Specificity of Comments and
Information (§ 1503.3)
4. Response to Comments (§ 1503.4)
F. Revisions to Pre-Decisional Referrals to
the Council of Proposed Federal Actions
Determined To Be Environmentally
Unsatisfactory (Part 1504)
1. Purpose (§ 1504.1)
2. Criterial for Referral (§ 1504.2)
3. Procedure for Referrals and Response
(§ 1504.3)
G. Revisions to NEPA and Agency Decision
Making (Part 1505)
1. Remove and Reserve Agency
Decisionmaking Procedures (§ 1505.1)
2. Record of Decision in Cases Requiring
Environmental Impact Statements
(§ 1505.2)
3. Implementing the Decision (§ 1505.3)
H. Revisions to Other Requirements of
NEPA (Part 1506)
1. Limitations on Actions During NEPA
Process (§ 1506.1)
2. Elimination of Duplication With State,
Tribal, and Local Procedures (§ 1506.2)
3. Adoption (§ 1506.3)
4. Combining Documents (§ 1506.4)
5. Agency Responsibility for
Environmental Documents (§ 1506.5)
6. Public Involvement (§ 1506.6)
7. Further Guidance (§ 1506.7)
8. Proposals for Legislation (§ 1506.8)
9. Proposals for Regulations (§ 1506.9)
10. Filing Requirements (§ 1506.10)
11. Timing of Agency Action (§ 1506.11)
12. Emergencies (§ 1506.12)
13. Effective Date (§ 1506.13)
I. Revisions to Agency Compliance (Part
1507)
1. Compliance (§ 1507.1)
2. Agency Capability To Comply (§ 1507.2)
3. Agency NEPA Procedures (§ 1507.3)
4. Agency NEPA Program Information
(§ 1507.4)
J. Revisions to Definitions (Part 1508)
1. Clarifying the Meaning of ‘‘Act’’
2. Definition of ‘‘Affecting’’
3. New Definition of ‘‘Authorization’’
4. Clarifying the Meaning of ‘‘Categorical
Exclusion’’
5. Clarifying the Meaning of ‘‘Cooperating
Agency’’
6. Definition of ‘‘Council’’
7. Definition of ‘‘Cumulative Impact’’ and
Clarifying the Meaning of ‘‘Effects’’
8. Clarifying the Meaning of
‘‘Environmental Assessment’’
9. Clarifying the Meaning of
‘‘Environmental Document’’
10. Clarifying the Meaning of
‘‘Environmental Impact Statement’’
11. Clarifying the Meaning of ‘‘Federal
Agency’’
12. Clarifying the Meaning of ‘‘Finding of
No Significant Impact’’
13. Clarifying the Meaning of ‘‘Human
Environment’’
14. Definition of ‘‘Jurisdiction by Law’’
15. Clarifying the Meaning of ‘‘Lead
Agency’’
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16. Clarifying the Meaning of ‘‘Legislation’’
17. Clarifying the Meaning of ‘‘Major
Federal Action’’
18. Definition of ‘‘Matter’’
19. Clarifying the Meaning of ‘‘Mitigation’’
20. Definition of ‘‘NEPA Process’’
21. Clarifying the Meaning of ‘‘Notice of
Intent’’
22. New Definition of ‘‘Page’’
23. New Definition of ‘‘Participating
Agency’’
24. Clarifying the Meaning of ‘‘Proposal’’
25. New Definition of ‘‘Publish and
Publication’’
26. New Definition of ‘‘Reasonable
Alternatives’’
27. New Definition of ‘‘Reasonably
Foreseeable’’
28. Definition of ‘‘Referring Agency’’
29. Definition of ‘‘Scope’’
30. New Definition of ‘‘Senior Agency
Official’’
31. Definition of ‘‘Special Expertise’’
32. Striking the Definition of
‘‘Significantly’’
33. Clarifying the Meaning of ‘‘Tiering’’
K. CEQ Guidance Documents
III. Rulemaking Analyses and Notices
A. Executive Order 12866, Regulatory
Planning and Review and Executive
Order 13563, Improving Regulation and
Regulatory Review
B. Executive Order 13771, Reducing
Regulation and Controlling Regulatory
Costs
C. Regulatory Flexibility Act and Executive
Order 13272, Proper Consideration of
Small Entities in Agency Rulemaking
D. Congressional Review Act
E. National Environmental Policy Act
F. Endangered Species Act
G. Executive Order 13132, Federalism
H. Executive Order 13175, Consultation
and Coordination With Indian Tribal
Governments
I. Executive Order 12898, Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
J. Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
K. Executive Order 12988, Civil Justice
Reform
L. Unfunded Mandates Reform Act
M. Paperwork Reduction Act
I. Background
President Nixon signed the National
Environmental Policy Act of 1969, 42
U.S.C. 4321 et seq., (NEPA or the Act)
into law on January 1, 1970. The
Council on Environmental Quality
(CEQ) initially issued interim guidelines
for implementing NEPA in 1970, revised
those guidelines in 1971 and 1973, and
subsequently promulgated its
regulations implementing NEPA in
1978. The original goals of those
regulations were to reduce paperwork
and delays, and promote better
decisions consistent with the national
environmental policy established by the
Act.
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Since the promulgation of the 1978
regulations, however, the NEPA process
has become increasingly complicated
and can involve excessive paperwork
and lengthy delays. The regulations
have been challenging to navigate with
related provisions scattered throughout,
and include definitions and provisions
that have led to confusion and generated
extensive litigation. The complexity of
the regulations has given rise to CEQ’s
issuance of more than 30 guidance
documents to assist Federal agencies in
understanding and complying with
NEPA. Agencies also have developed
procedures and practices to improve
their implementation of NEPA.
Additionally, Presidents have issued
directives, and Congress has enacted
legislation to reduce delays and
expedite the implementation of NEPA
and the CEQ regulations, including for
transportation, water, and other types of
infrastructure projects.
Despite these efforts, the NEPA
process continues to slow or prevent the
development of important infrastructure
and other projects that require Federal
permits or approvals, as well as
rulemakings and other proposed
actions. Agency practice has also
continued to evolve over the past four
decades, but many of the most efficient
and effective practices have not been
incorporated into the CEQ regulations.
Further, a wide range of judicial
decisions, including those issued by the
Supreme Court, evaluating Federal
agencies’ compliance with NEPA have
construed and interpreted key
provisions of the statute and CEQ’s
regulations. CEQ’s guidance, agency
practice, more recent presidential
directives and statutory developments,
and the body of case law related to
NEPA implementation have not been
harmonized or codified in CEQ’s
regulations.
As discussed further below, NEPA
implementation and related litigation
can be lengthy and significantly delay
major infrastructure and other projects.1
For example, CEQ has found that NEPA
reviews for Federal Highway
Administration projects, on average take
more than seven years to proceed from
a notice of intent (NOI) to prepare an
environmental impact statement (EIS) to
issuance of a record of decision (ROD).
This is a dramatic departure from CEQ’s
prediction in 1981 that Federal agencies
would be able to complete most EISs,
the most intensive review of a project’s
environmental impacts under NEPA, in
12 months or less.2 In its most recent
infra sec. I.B.3 and I.C.
Most Asked Questions Concerning CEQ’s
National Environmental Policy Act Regulations, 46
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1 See
2 Forty
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review, CEQ found that, across the
Federal Government, the average time
for completion of an EIS and issuance
of a ROD was 4.5 years and the median
was 3.5 years.3 CEQ determined that
one quarter of EISs took less than 2.2
years, and one quarter of the EISs took
more than 6 years. And these timelines
do not necessarily include further
delays associated with litigation over
the legal sufficiency of the NEPA
process or its resulting documentation.
Although other factors may contribute
to project delays, the frequency and
consistency of multi-year review
processes for EISs for projects across the
Federal Government leaves no doubt
that NEPA implementation and related
litigation is a significant factor.4 It is
critical to improve NEPA
implementation, not just for major
projects, but because tens of thousands
of projects and activities are subject to
NEPA every year, many of which are
important to modernizing our Nation’s
infrastructure.5
As noted above, an extensive body of
case law interpreting NEPA and CEQ’s
implementing regulations drives much
of agencies’ modern day practice.
Though courts have correctly
recognized that NEPA requires agencies
to follow certain procedures and not to
reach particular substantive results, the
accretion of cases has not necessarily
clarified implementation of the law. In
light of the litigation risk such a
situation presents, agencies have
responded by generating voluminous
studies analyzing impacts and
alternatives well beyond the point
where useful information is being
produced and utilized by decision
makers. In its most recent review, CEQ
found that final EISs averaged 661 pages
in length, and the median document
was 447 pages.6 One quarter were 748
pages or longer. The page count and
document length data do not include
FR 18026 (Mar. 23, 1981) (‘‘Forty Questions’’),
https://www.energy.gov/nepa/downloads/fortymost-asked-questions-concerning-ceqs-nationalenvironmental-policy-act. ‘‘The Council has advised
agencies that under the new NEPA regulations even
large complex energy projects would require only
about 12 months for the completion of the entire
EIS process. For most major actions, this period is
well within the planning time that is needed in any
event, apart from NEPA.’’ Id. at Question 35.
3 See infra sec. I.B.3.
4 See also, Philip K. Howard, Common Good, Two
Years, Not Ten: Redesigning Infrastructure
Approvals (Sept. 2015) (‘‘Two Years, Not Ten’’),
https://www.commongood.org/wp-content/uploads/
2017/07/2YearsNot10Years.pdf.
5 As discussed in sections II.D and II.C.5, CEQ
estimates that Federal agencies complete 176 EISs
and 10,000 environmental assessments each year. In
addition, CEQ estimates that agencies apply
categorical exclusions to 100,000 actions annually.
See infra sec. II.C.4.
6 See infra sec. I.B.3.
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appendices. The average modern EIS is
more than 4 times as long as the 150
pages contemplated by the 1978
regulations.
By adopting these regulations
following so many decades of NEPA
practice, implementation, and litigation,
CEQ is acting now to enhance the
efficiency of the process based on its
decades of experience overseeing
Federal agency practice, and clarifying a
number of key NEPA terms and
requirements that have frequently been
subject to litigation. The modifications
and refinements reflected in the final
rule will contribute to greater certainty
and predictability in NEPA
implementation, and thus eliminate at
least in some measure the unnecessary
and burdensome delays that have
hampered national infrastructure and
other important projects.
In June 2018, CEQ issued an advance
notice of proposed rulemaking
(ANPRM) requesting comment on
potential updates and clarifications to
the CEQ regulations.7 On January 10,
2020, CEQ published a notice of
proposed rulemaking 8 (NPRM or
proposed rule) in the Federal Register
proposing to update its regulations for
implementing the procedural provisions
of NEPA.
Following the publication of the
NPRM, CEQ received approximately
1,145,571 comments on the proposed
rule.9 A majority of the comments
(approximately 1,136,755) were the
result of mass mail campaigns, which
are comments with multiple signatories
or groups of comments that are identical
or very similar in form and content.
CEQ received approximately 8,587
unique public comments of which 2,359
were substantive comments raising a
variety of issues related to the
rulemaking and contents of the
proposed rule, including procedural,
legal, and technical issues. Finally, 229
comments were duplicate or nongermane submissions, or contained only
supporting materials.
The background section below
summarizes NEPA, the CEQ regulations,
and developments since CEQ issued
those regulations. Specifically, section
7 83
FR 28591 (June 20, 2018).
FR 1684 (Jan. 10, 2020).
9 In the NPRM, CEQ listed several methods for
members of the public to submit written comments,
including submittal to the docket on
regulations.gov, by fax, or by mail. In addition, CEQ
also included an email address (NEPA-Update@
ceq.eop.gov) in the NPRM for further information.
While the NPRM did not list this email address
among the several methods for the public to provide
comments, CEQ has considered comments received
through this email address during the public
comment period and included them in the docket
on regulations.gov.
8 85
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I.A provides a brief summary of the
NEPA statute. Section I.B describes the
history of CEQ’s regulations
implementing NEPA and provides an
overview of CEQ’s numerous guidance
documents and reports issued
subsequent to the regulations. Section
I.C discusses the role of the courts in
interpreting NEPA. Section I.D provides
a brief overview of Congress’s efforts,
and section I.E describes the initiatives
of multiple administrations to reduce
delays and improve implementation of
NEPA. Finally, sections I.F and I.G
provides the background on this
rulemaking, including the ANPRM and
the NPRM.
In section II, CEQ provides a summary
of the final rule, including changes CEQ
made from the proposed rule, which
comprehensively updates and
substantially revises CEQ’s prior
regulations. This final rule modernizes
and clarifies the CEQ regulations to
facilitate more efficient, effective, and
timely NEPA reviews by Federal
agencies by simplifying regulatory
requirements, codifying certain
guidance and case law relevant to these
regulations, revising the regulations to
reflect current technologies and agency
practices, eliminating obsolete
provisions, and improving the format
and readability of the regulations. CEQ’s
revisions include provisions intended to
promote timely submission of relevant
information to ensure consideration of
such information by agencies. CEQ’s
revisions will provide greater clarity for
Federal agencies, States, Tribes,
localities, and the public, and advance
the original goals of the CEQ regulations
to reduce paperwork and delays and
promote better decisions consistent with
the national environmental policy set
forth in section 101 of NEPA.
CEQ provides a summary of the
comments received on the proposed
rule and responses in the document
titled ‘‘Update to the Regulations
Implementing the Procedural Provisions
of the National Environmental Policy
Act Final Rule Response to
Comments’’ 10 (‘‘Final Rule Response to
Comments’’). This document organizes
the comments by the parts and sections
of the proposed rule that the comment
addresses, and includes a subsection on
other general or crosscutting topics.
Ultimately, the purpose of the NEPA
process is to ensure informed decision
making by Federal agencies with regard
to the potential environmental effects of
10 The Update to the Regulations Implementing
the Procedural Provisions of the National
Environmental Policy Act Final Rule Response to
Comments document is available under
‘‘Supporting Documents’’ in the docket on
regulations.gov under docket ID CEQ–2019–0003.
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proposed major Federal actions and to
make the public aware of the agency’s
decision-making process. When
effective and well managed, the NEPA
process results in more informative
documentation, enhanced coordination,
resolution of conflicts, and improved
environmental outcomes. With this final
rule, CEQ codifies effective agency
practice and provides clarity on the
requirements of the NEPA process.
A. National Environmental Policy Act
Congress enacted NEPA to establish a
national policy for the environment,
provide for the establishment of CEQ,
and for other purposes. Section 101 of
NEPA sets forth a national policy ‘‘to
use all practicable means and measures,
including financial and technical
assistance, in a manner calculated to
foster and promote the general welfare,
to create and maintain conditions under
which man and nature can exist in
productive harmony, and [to] fulfill the
social, economic, and other
requirements of present and future
generations of Americans.’’ 42 U.S.C.
4331(a). Section 102 of NEPA
establishes procedural requirements,
applying that national policy to
proposals for major Federal actions
significantly affecting the quality of the
human environment by requiring
Federal agencies to prepare a detailed
statement on: (1) The environmental
impact of the proposed action; (2) any
adverse environmental effects that
cannot be avoided; (3) alternatives to the
proposed action; (4) the relationship
between local short-term uses of man’s
environment and the maintenance and
enhancement of long-term productivity;
and (5) any irreversible and irretrievable
commitments of resources that would be
involved in the proposed action. 42
U.S.C. 4332(2)(C). NEPA also
established CEQ as an agency within the
Executive Office of the President to
administer Federal agency
implementation of NEPA. 42 U.S.C.
4332(2)(B), (C), (I), 4342, 4344; see also
Dep’t of Transp. v. Pub. Citizen, 541
U.S. 752, 757 (2004); Warm Springs
Dam Task Force v. Gribble, 417 U.S.
1301, 1309–10 (Douglas, J. Circuit
Justice 1974).
NEPA does not mandate particular
results or substantive outcomes. Rather,
NEPA requires Federal agencies to
consider environmental impacts of
proposed actions as part of agencies’
decision-making processes.
Additionally, NEPA does not include a
private right of action and specifies no
remedies. Challenges to agency action
alleging noncompliance with NEPA
procedures are brought under the
Administrative Procedure Act (APA). 5
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U.S.C. 551 et seq. Accordingly, NEPA
cases proceed as APA cases. Limitations
on APA cases and remedies thus apply
to the adjudication of NEPA disputes.
B. Council on Environmental Quality
Regulations, Guidance, and Reports
1. Regulatory History
In 1970, President Nixon issued
Executive Order (E.O.) 11514, titled
‘‘Protection and Enhancement of
Environmental Quality,’’ which directed
CEQ to ‘‘[i]ssue guidelines to Federal
agencies for the preparation of detailed
statements on proposals for legislation
and other Federal actions affecting the
environment, as required by section
102(2)(C) of the Act.’’ 11 CEQ issued
interim guidelines in April of 1970 and
revised them in 1971 and 1973.12
In 1977, President Carter issued E.O.
11991, titled ‘‘Relating to Protection and
Enhancement of Environmental
Quality.’’ 13 E.O. 11991 amended section
3(h) of E.O. 11514, directing CEQ to
‘‘[i]ssue regulations to Federal agencies
for the implementation of the
procedural provisions of [NEPA] . . . to
make the environmental impact
statement process more useful to
decision[ ]makers and the public; and to
reduce paperwork and the accumulation
of extraneous background data, in order
to emphasize the need to focus on real
environmental issues and alternatives,’’
and to ‘‘require [environmental] impact
statements to be concise, clear, and to
the point, and supported by evidence
that agencies have made the necessary
environmental analyses.’’ E.O. 11991
also amended section 2 of E.O. 11514,
requiring agency compliance with the
regulations issued by CEQ. The
Executive order was based on the
President’s constitutional and statutory
authority, including NEPA, the
Environmental Quality Improvement
Act, 42 U.S.C. 4371 et seq., and section
309 of the Clean Air Act, 42 U.S.C.
7609. The President has a constitutional
duty to ensure that the ‘‘Laws be
faithfully executed,’’ U.S. Const. art. II,
sec. 3, which may be delegated to
appropriate officials. 3 U.S.C. 301. In
signing E.O. 11991, the President
delegated this authority to CEQ.14
11 35
FR 4247 (Mar. 7, 1970), sec. 3(h).
35 FR 7390 (May 12, 1970) (interim
guidelines); 36 FR 7724 (Apr. 23, 1971) (final
guidelines); 38 FR 10856 (May 2, 1973) (proposed
revisions to guidelines); 38 FR 20550 (Aug. 1, 1973)
(revised guidelines).
13 42 FR 26967 (May 25, 1977).
14 The Presidential directive was consistent with
the recommendation of the Commission on Federal
Paperwork that the President require the
development of consistent regulations and
definitions and ensure coordination among agencies
in the implementation of Environmental Impact
12 See
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In 1978, CEQ promulgated its
‘‘National Environmental Policy Act,
Regulations, Implementation of
Procedural Provisions,’’ 40 CFR parts
1500–1508 (‘‘CEQ regulations’’ or
‘‘NEPA regulations’’), ‘‘[t]o reduce
paperwork, to reduce delays, and at the
same time to produce better decisions
[that] further the national policy to
protect and enhance the quality of the
human environment.’’ 15 The Supreme
Court has explained that E.O. 11991
requires all ‘‘heads of [F]ederal agencies
to comply’’ with the ‘‘single set of
uniform, mandatory regulations’’ that
CEQ issued to implement NEPA’s
provisions. Andrus v. Sierra Club, 442
U.S. 347, 357 (1979).
The Supreme Court has afforded the
CEQ regulations ‘‘substantial
deference.’’ Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 355
(1989) (citing Andrus, 442 U.S. at 358);
Pub. Citizen, 541 U.S. at 757 (‘‘The
[CEQ], established by NEPA with
authority to issue regulations
interpreting it, has promulgated
regulations to guide [F]ederal agencies
in determining what actions are subject
to that statutory requirement.’’ (citing 40
CFR 1500.3)). The new regulations are
intended to embody CEQ’s
interpretation of NEPA for Chevron
purposes and to operate as legislative
rules.16 See Chevron U.S.A., Inc. v. Nat.
Res. Def. Council, Inc., 467 U.S. 837,
842–43 (1984); see also Nat’l Cable &
Telecomm. Ass’n v. Brand X internet
Servs., 545 U.S. 967, 980–86 (2005)
(applying Chevron deference to Federal
Communications Commission
regulations); United States v. Mead
Corp., 533 U.S. 218, 227–30 (2001)
(properly promulgated agency
regulations addressing ambiguities or
gaps in a statute qualify for Chevron
deference when agencies possess the
authority to issue regulations
interpreting the statute). The Supreme
Statement preparation. See The Report of the
Commission on Federal Paperwork, Environmental
Impact Statements 16 (Feb. 25, 1977).
15 43 FR 55978 (Nov. 29, 1978); see also 44 FR
873 (Jan. 3, 1979) (technical corrections), and 43 FR
25230 (June 9, 1978) (proposed rule).
16 Even without expressly invoking Chevron here
and noting that CEQ intends these regulations to
operate as legislative rules, Chevron would still
apply. See Guedes v. ATF, 920 F.3d 1, 23 (D.C. Cir.
2019) (‘‘And for this Rule in particular, another
telltale sign of the agency’s belief that it was
promulgating a rule entitled to Chevron deference
is the Rule’s invocation of Chevron by name. To be
sure, an agency of course need not expressly invoke
the Chevron framework to obtain Chevron
deference: ‘Chevron is a standard of judicial review,
not of agency action.’ SoundExchange[, Inc. v.
Copyright Royalty Bd.,] 904 F.3d [41,] 54 [(D.C. Cir.
2018)]. Still, the Bureau’s invocation of Chevron
here is powerful evidence of its intent to engage in
an exercise of interpretive authority warranting
Chevron treatment.’’) (emphasis in original).
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Court has held that NEPA is a
procedural statute that serves the twin
aims of ensuring that agencies consider
the significant environmental
consequences of their proposed actions
and inform the public about their
decision making. Balt. Gas & Elec. Co.
v. Nat. Res. Def. Council, Inc., 462 U.S.
87, 97 (1983) (citing Vt. Yankee Nuclear
Power Corp. v. Nat. Res. Def. Council,
Inc., 435 U.S. 519, 553 (1978);
Weinberger v. Catholic Action of Haw./
Peace Educ. Project, 454 U.S. 139, 143
(1981)).
Furthermore, in describing the role of
NEPA in agencies’ decision-making
processes, the Supreme Court has
stated, ‘‘Congress in enacting NEPA,
however, did not require agencies to
elevate environmental concerns over
other appropriate
considerations.’’ 17 Balt. Gas & Elec. Co.,
462 U.S. at 97 (citing Strycker’s Bay
Neighborhood Council v. Karlen, 444
U.S. 223, 227 (1980) (per curiam)).
Instead, NEPA requires agencies to
analyze the environmental
consequences before taking a major
Federal action. Id. (citing Kleppe v.
Sierra Club, 427 U.S. 390, 410 n.21
(1976)). The Supreme Court has
recognized that agencies have limited
time and resources and that ‘‘[t]he scope
of the agency’s inquiries must remain
manageable if NEPA’s goal of ‘[insuring]
a fully informed and well-considered
decision,’ . . . is to be accomplished.’’
Metro. Edison Co. v. People Against
Nuclear Energy, 460 U.S. 766, 776
(1983) (quoting Vt. Yankee, 435 U.S. at
558).
CEQ has substantively amended its
NEPA regulations only once, at 40 CFR
1502.22, to replace the ‘‘worst case’’
analysis requirement with a provision
for the consideration of incomplete or
unavailable information regarding
reasonably foreseeable significant
adverse effects.18 CEQ found that the
amended 40 CFR 1502.22 would
‘‘generate information and discussion
on those consequences of greatest
concern to the public and of greatest
relevance to the agency’s decision,’’ 19
rather than distorting the decisionmaking process by overemphasizing
highly speculative harms.20 The
Supreme Court found this reasoning to
17 Section 101 of NEPA provides that it is the
Federal Government’s policy ‘‘to use all practicable
means and measures . . . to create and maintain
conditions under which man and nature can exist
in productive harmony, and [to] fulfill the social,
economic, and other requirements of present and
future generations of Americans.’’ 42 U.S.C. 4331(a)
(emphasis added).
18 51 FR 15618 (Apr. 25, 1986).
19 50 FR 32234, 32237 (Aug. 9, 1985).
20 51 FR 15618, 15620 (Apr. 25, 1986).
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be a well-considered basis for the
change, and that the new regulation was
entitled to substantial deference.
Methow Valley, 490 U.S. at 356.
The NEPA regulations direct Federal
agencies to adopt their own
implementing procedures, as necessary,
in consultation with CEQ. 40 CFR
1507.3. Under this regulation, over 85
Federal agencies and their subunits
have developed such procedures.21
2. CEQ Guidance and Reports
Over the past four decades, numerous
questions have been raised regarding
appropriate implementation of NEPA
and the CEQ regulations. Soon after the
issuance of the CEQ regulations and in
response to CEQ’s review of NEPA
implementation and input from Federal,
State, and local officials, including
NEPA practitioners, CEQ issued the
‘‘Forty Most Asked Questions
Concerning CEQ’s National
Environmental Policy Act
Regulations’’ 22 in 1981 (‘‘Forty
Questions’’). This guidance covered a
wide range of topics including
alternatives, coordination among
applicants, lead and cooperating
agencies, and integration of NEPA
documents with analysis for other
environmental statutes. In addition,
CEQ has periodically examined the
effectiveness of the NEPA process and
issued a number of reports on NEPA
implementation. In some instances,
these reports led to additional guidance.
These documents have been intended to
provide guidance and clarifications with
respect to various aspects of the
implementation of NEPA and the
definitions in the CEQ regulations, and
to increase the efficiency and
effectiveness of the environmental
review process.23
In January 1997, CEQ issued ‘‘The
National Environmental Policy Act: A
Study of Its Effectiveness After Twentyfive Years.’’ 24 In that report, CEQ
acknowledged that NEPA has ensured
that agencies adequately analyze the
potential environmental consequences
of their actions and bring the public into
the decision-making processes of
Federal agencies. However, CEQ also
identified matters of concern to
participants in the study, including
concerns with overly lengthy
documents that may not enhance or
21 A list of agency NEPA procedures is available
at https://ceq.doe.gov/laws-regulations/agency_
implementing_procedures.html.
22 Forty Questions, supra note 2.
23 See https://www.energy.gov/nepa/ceqguidance-documents.
24 https://ceq.doe.gov/docs/ceq-publications/
nepa25fn.pdf.
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improve decision making,25 and
concerns that agencies may seek to
‘‘ ‘litigation-proof’ documents,
increasing costs and time but not
necessarily quality.’’ 26 The report
further stated that ‘‘[o]ther matters of
concern to participants in the Study
were the length of NEPA processes, the
extensive detail of NEPA analyses, and
the sometimes confusing overlay of
other laws and regulations.’’ 27 The
participants in the study identified five
elements of the NEPA process’
collaborative framework (strategic
planning, public information and input,
interagency coordination,
interdisciplinary place-based decision
making, and science-based flexible
management) as critical to effective and
efficient NEPA implementation.
In 2002, the Chairman of CEQ
established a NEPA task force,
composed of Federal agency officials, to
examine NEPA implementation by
focusing on (1) technology and
information management and security;
(2) Federal and intergovernmental
collaboration; (3) programmatic analyses
and tiering; (4) adaptive management
and monitoring; (5) categorical
exclusions (CEs); and (6) environmental
assessments (EAs). In 2003, the task
force issued a report 28 recommending
actions to improve and modernize the
NEPA process, leading to additional
guidance documents and handbooks.
Over the past 4 decades, CEQ has
issued over 30 documents on a wide
variety of topics to provide guidance
and clarifications to assist Federal
agencies in more efficiently and
effectively implementing the NEPA
regulations.29 While CEQ has sought to
25 Id.
at iii.
26 Id.
27 Id. In the 50 years since the passage of NEPA,
Congress has amended or enacted a number of other
environmental laws that may also apply to
proposed Federal agency actions, such as the
Endangered Species Act, the Clean Water Act, the
Clean Air Act, and other substantive statutes. See
discussion infra sec. I.D. Consistent with 40 CFR
1502.25, longstanding agency practice has been to
use the NEPA process as the umbrella procedural
statute, integrating compliance with these laws into
the NEPA review and discussing them in the NEPA
document. However, this practice sometimes leads
to confusion as to whether an agency does an
analysis to comply with NEPA or another,
potentially substantive, environmental law.
28 See The NEPA Task Force Report to the
Council on Environmental Quality, Modernizing
NEPA Implementation (Sept. 2003) (‘‘NEPA Task
Force Report’’), https://ceq.doe.gov/docs/ceqpublications/report/finalreport.pdf.
29 See, e.g., Emergencies and the National
Environmental Policy Act (Oct. 2016)
(‘‘Emergencies Guidance’’), https://ceq.doe.gov/
docs/nepa-practice/Emergencies_and_NEPA.pdf;
Effective Use of Programmatic NEPA Reviews (Dec.
18, 2014) (‘‘Programmatic Guidance’’), https://
ceq.doe.gov/docs/ceq-regulations-and-guidance/
Effective_Use_of_Programmatic_NEPA_Reviews_
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provide clarity and direction related to
implementation of the regulations and
the Act through the issuance of
guidance, agencies continue to face
implementation challenges. Further, the
documentation and timelines for
completing environmental reviews can
be very lengthy, and the process can be
complex and costly.
In 2018, CEQ and the Office of
Management and Budget (OMB) issued
a memorandum titled ‘‘One Federal
Decision Framework for the
Environmental Review and
Authorization Process for Major
Infrastructure Projects under E.O.
13807’’ (‘‘OFD Framework
Guidance’’).30 CEQ and OMB issued this
guidance pursuant to E.O. 13807, titled
‘‘Establishing Discipline and
Accountability in the Environmental
Review and Permitting Process for
Infrastructure Projects,’’ 31 to improve
agency coordination for infrastructure
Final_Dec2014_searchable.pdf; NEPA and NHPA: A
Handbook for Integrating NEPA and Section 106
(Mar. 2013), https://ceq.doe.gov/publications/nepahandbooks.html; Memorandum on Environmental
Conflict Resolution (Nov. 28, 2005), as expanded by
Memorandum on Environmental Collaboration and
Conflict Resolution (Sept. 7, 2012), https://
ceq.doe.gov/nepa-practice/environmentalcollaboration-and-conflict-resolution.html; Final
Guidance on Improving the Process for Preparing
Efficient and Timely Environmental Reviews Under
the National Environmental Policy Act, 77 FR
14473 (Mar. 12, 2012) (‘‘Timely Environmental
Reviews Guidance’’), https://ceq.doe.gov/docs/ceqregulations-and-guidance/Improving_NEPA_
Efficiencies_06Mar2012.pdf; Final Guidance for
Federal Departments and Agencies on the
Appropriate Use of Mitigation and Monitoring and
Clarifying the Appropriate Use of Mitigated
Findings of No Significant Impact, 76 FR 3843 (Jan.
21, 2011) (‘‘Mitigation Guidance’’), https://
ceq.doe.gov/docs/ceq-regulations-and-guidance/
Mitigation_and_Monitoring_Guidance_
14Jan2011.pdf; Council on Environmental Quality,
Final Guidance for Federal Departments and
Agencies on Establishing, Applying, and Revising
Categorical Exclusions under the National
Environmental Policy Act, 75 FR 75628 (Dec. 6,
2010) (‘‘CE Guidance’’), https://ceq.doe.gov/docs/
ceq-regulations-and-guidance/NEPA_CE_
Guidance_Nov232010.pdf; Letter from the Hon.
James L. Connaughton, Chairman, Council on
Environmental Quality, to the Hon. Norman Y.
Mineta, Secretary, Department of Transportation
(May 12, 2003) (‘‘Connaughton Letter’’), https://
ceq.doe.gov/docs/ceq-regulations-and-guidance/
CEQ-DOT_PurposeNeed_May-2013.pdf;
Considering Cumulative Effects Under the National
Environmental Policy Act (Jan. 1997) (‘‘Cumulative
Effects Guidance’’), https://ceq.doe.gov/
publications/cumulative_effects.html;
Environmental Justice: Guidance under the
National Environmental Policy Act (Dec. 10, 1997)
(‘‘EJ Guidance’’), https://ceq.doe.gov/docs/ceqregulations-and-guidance/regs/ej/justice.pdf; Forty
Questions, supra note 2. CEQ also issued a resource
for the public, A Citizen’s Guide to the NEPA:
Having Your Voice Heard (Dec. 2007), https://
ceq.doe.gov/get-involved/citizens_guide_to_
nepa.html.
30 M–18–13 (Mar. 20, 2018), https://
www.whitehouse.gov/wp-content/uploads/2018/04/
M-18-13.pdf.
31 82 FR 40463 (Aug. 24, 2017).
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projects requiring an EIS and permits or
other authorizations from multiple
agencies and to improve the timeliness
of the environmental review process.
See E.O. 13807, infra sec. I.E. Consistent
with the OFD Framework Guidance,
supra note 30, Federal agencies signed
a memorandum of understanding
committing to implement the One
Federal Decision (OFD) policy for major
infrastructure projects, including by
committing to establishing a joint
schedule for such projects, preparation
of a single EIS and joint ROD, elevation
of delays and dispute resolution, and
setting a goal of completing
environmental reviews for such projects
within two years.32 Subsequently, CEQ
and OMB issued guidance for the
Secretary of Transportation regarding
the applicability of the OFD policy to
States under the Surface Transportation
Project Delivery Program,33 and for the
Secretary of Housing and Urban
Development (HUD) regarding the
applicability of the OFD policy to
entities assuming HUD environmental
review responsibilities.34 CEQ also has
provided direction to the Federal Energy
Regulatory Commission (FERC) relating
to the requirement for joint RODs under
the OFD policy.35
3. Environmental Impact Statement
Timelines and Page Count Reports
CEQ also has conducted reviews and
prepared reports on the length of time
it takes for agencies to prepare EISs and
the length of these documents. These
reviews found that the process for
preparing EISs is taking much longer
than CEQ advised, and that the
documents are far longer than the CEQ
regulations and guidance recommended.
In December 2018, CEQ issued a report
compiling information relating to the
timelines for preparing EISs during the
period of 2010–2017, and the NPRM
included a summary of the report. CEQ
32 See Memorandum of Understanding
Implementing One Federal Decision under
Executive Order 13807 (2018), https://
www.whitehouse.gov/wp-content/uploads/2018/04/
MOU-One-Federal-Decision-m-18-13-Part-2-1.pdf.
33 Guidance on the Applicability of E.O. 13807 to
States with NEPA Assignment Authority Under the
Surface Transportation Project Delivery Program,
M–19–11 (Feb. 26, 2019), https://
www.whitehouse.gov/wp-content/uploads/2017/11/
20190226OMB-CEQ327.pdf.
34 Guidance on the Applicability of E.O. 13807 to
Responsible Entities Assuming Department of
Housing and Urban Development Environmental
Review Responsibilities, M–19–20 (June 28, 2019),
https://www.whitehouse.gov/wp-content/uploads/
2019/06/M-19-20.pdf.
35 See Letter from the Hon. Mary B. Neumayr,
Chairman, Council on Environmental Quality, to
the Hon. Neil Chatterjee, Chairman, Federal Energy
Regulatory Comm’n (Aug. 22, 2019), https://
www.whitehouse.gov/wp-content/uploads/2017/11/
20190822FERCOFDLetter.pdf.
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has since updated this analysis to
include EISs completed in 2018, and
this section reflects the updated data.36
While CEQ’s Forty Questions states
that the time for an EIS, even for a
complex project, should not exceed 1
year,37 CEQ found that, across the
Federal Government, the average time
for completion of an EIS and issuance
of a ROD was 4.5 years and the median
was 3.5 years. One quarter of the EISs
took less than 2.2 years, and one quarter
of the EISs took more than 6 years.
As reflected in the timelines report,
the period from publication of a NOI to
prepare an EIS to the notice of
availability of the draft EIS took, on
average, 58.4 percent of the total time,
while preparing the final EIS, including
addressing comments received on the
draft EIS, took, on average, 32.2 percent
of the total time. The period from the
final EIS to publication of the ROD took,
on average, 9.4 percent of the total time.
This report recognized that EIS
timelines vary widely and many factors
may influence the timing of the
document, including variations in the
scope and complexity of the actions,
variations in the extent of work done
prior to issuance of the NOI, and
suspension of EIS activities due to
external factors.
Additionally, in July 2019, CEQ
issued a report on the length, by page
count, of EISs (excluding appendices)
finalized during the period of 2013–
2017, and the NPRM included a
summary of the report. CEQ has since
updated this analysis to include EISs
completed in 2018, and this section
reflects the updated data.
While the CEQ regulations include
recommended page limits for the text of
final EISs of normally less than 150
pages, or normally less than 300 pages
for proposals of ‘‘unusual scope or
complexity,’’ 40 CFR 1502.7, CEQ found
that many EISs are significantly longer.
In particular, CEQ found that across all
Federal agencies, draft EISs averaged
575 pages in total, with a median
document length of 397 pages.38 One
quarter of the draft EISs were 279 pages
or shorter, and one quarter were 621
pages or longer. For final EISs, the
average document length was 661 pages,
and the median document length was
447 pages. One quarter of the final EISs
were 286 pages or shorter, and one
36 See Council on Environmental Quality,
Environmental Impact Statement Timelines (2010–
2018), (June 12, 2020), https://ceq.doe.gov/nepapractice/eis-timelines.html.
37 Forty Questions, supra note 2, at Question 35.
38 See Council on Environmental Quality, Length
of Environmental Impact Statements (2013–2018),
(June 12, 2020) (‘‘CEQ Length of EISs Report’’),
https://ceq.doe.gov/nepa-practice/eis-length.html.
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43309
quarter were 748 pages or longer. On
average, the change in document length
from draft EIS to final EIS was an
additional 86 pages or a 15 percent
increase.
With respect to final EISs, CEQ found
that approximately 7 percent were 150
pages or shorter, and 27 percent were
300 pages or shorter.39 Similar to the
conclusions of its EIS timelines study,
CEQ noted that a number of factors may
influence the length of EISs, including
variation in the scope and complexity of
the decisions that the EIS is designed to
inform, the degree to which NEPA
documentation is used to document
compliance with other statutes, and
considerations relating to potential legal
challenges. Moreover, variation in EIS
length may reflect differences in
management, oversight, and contracting
practices among agencies that could
result in longer documents.
While there can be many factors
affecting the timelines and length of
EISs, CEQ has concluded that revisions
to the CEQ regulations to advance more
timely reviews and reduce unnecessary
paperwork are warranted. CEQ has
determined that improvements to
agency processes, such as earlier
solicitation of information from States,
Tribes, and local governments and the
public, and improved coordination in
the development of EISs, can achieve
more useful and timely documents to
support agency decision making.
C. Judicial Review of Agency NEPA
Compliance
NEPA is the most litigated
environmental statute in the United
States.40 Over the past 50 years, Federal
courts have issued an extensive body of
case law addressing appropriate
implementation and interpretation of
NEPA and the CEQ regulations.41 The
Supreme Court has directly addressed
NEPA in 17 decisions, and the U.S.
district and appellate courts issue
approximately 100 to 140 decisions
39 The page counts compiled for 2010–2017
include the text of the EIS as well as supporting
content to which the page limit in 40 CFR 1502.7
does not apply. For 2018, CEQ analyzed the data
to determine the length of the text of the EISs and
found that 19 percent of the final EISs were 150
pages or shorter and 51 percent were 300 pages or
shorter.
40 James E. Salzman and Barton H. Thompson, Jr.,
Environmental Law and Policy 340 (5th ed. 2019)
(‘‘Perhaps surprisingly, there have been thousands
of NEPA suits. It might seem strange that NEPA’s
seemingly innocuous requirement of preparing an
EIS has led to more lawsuits than any other
environmental statute.’’).
41 The 2019 edition of NEPA Law and Litigation
includes a 115–page Table of Cases decisions
construing NEPA. See Daniel R. Mandelker et al.,
NEPA Law and Litigation, Table of Cases (2d ed.
2019).
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each year interpreting NEPA. The
Supreme Court has construed NEPA and
the CEQ regulations in light of a ‘‘rule
of reason,’’ which ensures that agencies
determine whether and to what extent
to prepare an EIS based on the
usefulness of information to the
decision-making process. See Marsh v.
Or. Nat. Res. Council, 490 U.S. 360,
373–74 (1989). ‘‘Although [NEPA]
procedures are almost certain to affect
the agency’s substantive decision, it is
now well settled that NEPA itself does
not mandate particular results, but
simply prescribes the necessary
process.’’ Methow Valley, 490 U.S. at
350 (citing Strycker’s Bay Neighborhood
Council, Inc., 444 U.S. at 227–28; Vt.
Yankee, 435 U.S. at 558; see also Pub.
Citizen, 541 U.S. at 756–57 (‘‘NEPA
imposes only procedural requirements
on [F]ederal agencies with a particular
focus on requiring agencies to undertake
analyses of the environmental impact of
their proposals and actions.’’ (citing
Methow Valley, 490 U.S. at 349–50)).
The thousands of decisions interpreting
NEPA and the current CEQ regulations
being amended here drive much of
agencies’ modern-day practice. A
challenge for agencies is that courts
have interpreted key terms and
requirements differently, adding to the
complexity of environmental reviews.
For example, in 2018 and 2019, the U.S.
Courts of Appeals issued 56 substantive
decisions on a range of topics, including
assessment of impacts, sufficiency of
alternatives, whether an agency’s action
qualified as Federal action, and purpose
and need statements.42 As discussed
below, the final rule codifies
longstanding case law in some
instances, and, in other instances,
clarifies the meaning of the regulations
where there is a lack of uniformity in
judicial interpretation of NEPA and the
CEQ regulations.
D. Statutory Developments
Since the enactment of NEPA in 1970,
Congress has amended or enacted a
large number of substantive
environmental statutes. These have
included significant amendments to the
Clean Water Act and Clean Air Act,
establishment of new Federal land
management standards and planning
processes for National forests, public
42 National Association of Environmental
Professionals, 2019 Annual NEPA Report of the
National Environmental Policy Act (NEPA) Practice
(2020) at 30–31, https://naep.memberclicks.net/
assets/annual-report/2019_NEPA_Annual_Report/
NEPA_Annual_Report_2019.pdf; National
Association of Environmental Professionals, 2018
Annual NEPA Report of the National
Environmental Policy Act (NEPA) Practice (2019) at
41–51, https://naep.memberclicks.net/assets/
documents/2019/NEPA_Annual_Report_2018.pdf.
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lands, and coastal zones, and statutory
requirements to conserve fish, wildlife,
and plant species.43 Additionally, the
consideration of the effects on historic
properties under the National Historic
Preservation Act is typically integrated
into the NEPA review.44 NEPA has
served as the umbrella procedural
statute, integrating these laws into
NEPA reviews and discussing them in
NEPA documents.
Over the past two decades and
multiple administrations, Congress has
also undertaken efforts to facilitate more
efficient environmental reviews by
Federal agencies, and has enacted a
number of statutes aimed at improving
the implementation of NEPA, including
in the context of infrastructure projects.
In particular, Congress has enacted
legislation to improve coordination
among agencies, integrate NEPA with
other environmental reviews, and bring
more transparency to the NEPA process.
In 2005, Congress enacted 23 U.S.C.
139, ‘‘Efficient environmental reviews
for project decisionmaking,’’ a
streamlined environmental review
process for highway, transit, and
multimodal transportation projects (the
‘‘section 139 process’’), in the Safe,
Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for
Users (SAFETEA–LU), Public Law 109–
59, sec. 6002(a), 119 Stat. 1144, 1857.
Congress amended section 139 with
additional provisions designed to
improve the NEPA process in the 2012
Moving Ahead for Progress in the 21st
Century Act (MAP–21), Public Law
112–141, sec. 1305–1309, 126 Stat. 405,
and the 2015 Fixing America’s Surface
Transportation (FAST) Act, Public Law
114–94, sec. 1304, 129 Stat. 1312, 1378.
Section 139 provides for an
environmental review process that is
based on and codifies many aspects of
the NEPA regulations, including
provisions relating to lead and
cooperating agencies, concurrent
environmental reviews in a single NEPA
document, coordination on the
development of the purpose and need
statement and reasonable alternatives,
and adoption of environmental
documents. Further, section 139
provides for referral to CEQ for issue
resolution, similar to part 1504 of the
NEPA regulations, and allows for the
use of errata sheets, consistent with 40
CFR 1503.4(c).45
When Congress enacted section 2045
of the Water Resources Development
Act of 2007, Public Law 110–114, 121
Stat. 1041, 1103, it created a similar
environmental review provision for
water resources development projects
by the U.S. Army Corps of Engineers
(Corps). 33 U.S.C. 2348.46 This project
acceleration provision also requires a
coordinated environmental review
process, provides for dispute resolution,
and codifies aspects of the NEPA
regulations such as lead and cooperating
agencies, concurrent environmental
reviews, and the establishment of CEs.
Section 2348(o) also directs the Corps to
consult with CEQ on the development
of guidance for implementing this
provision.
In 2015 Congress enacted Title 41 of
the FAST Act (FAST–41), to provide for
a more efficient environmental review
and permitting process for ‘‘covered
projects.’’ See Public Law 114–94, sec.
41001–41014, 129 Stat. 1312, 1741 (42
U.S.C. 4370m—4370m–12). These are
projects that require Federal
environmental review under NEPA, are
expected to exceed $200 million, and
involve the construction of
infrastructure for certain energy
production, electricity transmission,
water resource projects, broadband,
pipelines, manufacturing, and other
sectors. Id. FAST–41 codified certain
roles and responsibilities required by
the NEPA regulations. In particular,
FAST–41 imports the concepts of lead
and cooperating agencies, and the
different levels of NEPA analysis—EISs,
EAs, and CEs. Consistent with 40 CFR
1501.5(e) through (f), CEQ is required to
resolve any dispute over designation of
a facilitating or lead agency for a
covered project. 42 U.S.C. 4370m–
2(a)(6)(B). Section 4370m–4 codified
several requirements from the CEQ
43 See, e.g., the Clean Air Act, 42 U.S.C. 7401–
7671q; Clean Water Act, 33 U.S.C. 1251–1388;
Coastal Zone Management Act, 16 U.S.C. 1451–
1466; Federal Land Policy and Management Act, 43
U.S.C. 1701–1787; Forest and Rangeland Renewable
Resources Planning Act of 1974, 16 U.S.C. 1600–
1614; Magnuson-Stevens Fishery Conservation and
Management Act, 16 U.S.C. 1801–1884; Endangered
Species Act, 16 U.S.C. 1531–1544; Oil Pollution Act
of 1990, 33 U.S.C. 2701–2762; Surface Mining
Control and Reclamation Act of 1977, 30 U.S.C.
1201, 1202, and 1211; and Comprehensive
Environmental Response, Compensation, and
Liability Act, 42 U.S.C. 9601–9675.
44 Similar to NEPA, section 106 (54 U.S.C.
306108) of the National Historic Preservation Act is
a procedural statute.
45 To facilitate the NEPA process for
transportation projects subject to section 139, the
statute specifically calls for development of a
coordination plan, including development of a
schedule, and publicly tracking the implementation
of that schedule through use of the Permitting
Dashboard. See infra sec. I.E. In addition, the
section 139 process provides for ‘‘participating’’
agencies, which are any agencies invited to
participate in the environmental review process.
Section 139 also requires, to the maximum extent
practicable, issuance of a combined final EIS and
ROD.
46 Congress significantly revised this provision in
the Water Resources Reform and Development Act
of 2014, Public Law 113–121, sec. 1005(a)(1), 128
Stat. 1193 1199.
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regulations, including the requirement
for concurrent environmental reviews,
which is consistent with 40 CFR
1500.2(c), 1501.7(a)(6), and 1502.25(a),
and the tools of adoption, incorporation
by reference, supplementation, and use
of State documents, consistent with 40
CFR 1506.3, 1502.21, 1502.9(c), and
1506.2.47 Finally, 42 U.S.C. 4370m–4
addresses interagency coordination on
key aspects of the NEPA process,
including scoping (40 CFR 1501.7),
identification of the range of reasonable
alternatives for study in an EIS (40 CFR
1502.14), and the public comment
process (40 CFR part 1503).
To ensure a timely NEPA process so
that important infrastructure projects
can move forward, Congress has also
established shorter statutes of
limitations for challenges to certain
types of projects. SAFETEA–LU created
a 180-day statute of limitations for
highway or public transportation capital
projects, which MAP–21 later reduced
to 150 days. 23 U.S.C. 139(l). The Water
Resources Reform and Development Act
of 2014 established a three-year statute
of limitations for judicial review of any
permits, licenses, or other approvals for
water resources development project
studies. 33 U.S.C. 2348(k). Most recently
in FAST–41, Congress established a
two-year statute of limitations for
covered projects. 42 U.S.C. 4370m–6.
There are a number of additional
instances where Congress has enacted
legislation to facilitate more timely
environmental reviews. For example,
similar to the provisions described
above, there are other statutes where
Congress has called for a coordinated
and concurrent environmental review.
See, e.g., 33 U.S.C. 408(b) (concurrent
review for river and harbor permits); 49
U.S.C. 40128 (coordination on
environmental reviews for air tour
management plans for national parks);
49 U.S.C. 47171 (expedited and
coordinated environmental review
process for airport capacity
enhancement projects).
Additionally, Congress has
established or directed agencies to
establish CEs to facilitate NEPA
compliance. See, e.g., 16 U.S.C. 6554(d)
47 For covered projects, section 4370m–4
authorizes lead agencies to adopt or incorporate by
reference existing environmental analyses and
documentation prepared under State laws and
procedures if the analyses and documentation meet
certain requirements. 42 U.S.C. 4370m–4(b)(1)(A)(i).
This provision also requires that the lead agency,
in consultation with CEQ, determine that the
analyses and documentation were prepared using a
process that allowed for public participation and
consideration of alternatives, environmental
consequences, and other required analyses that are
substantially equivalent to what a Federal agency
would have prepared pursuant to NEPA. Id.
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(applied silvicultural assessment and
research treatments); 16 U.S.C. 6591d
(hazardous fuels reduction projects to
carry out forest restoration treatments);
16 U.S.C. 6591e (vegetation
management activity in greater sagegrouse or mule deer habitat); 33 U.S.C.
2349 (actions to repair, reconstruct, or
rehabilitate water resources projects in
response to emergencies); 42 U.S.C.
15942 (certain activities for the purpose
of exploration or development of oil or
gas); 43 U.S.C. 1772(c)(5) (development
and approval of vegetation management,
facility inspection, and operation and
maintenance plans); MAP–21, Public
Law 112–141, sec. 1315 (actions to
repair or reconstruct roads, highways, or
bridges damaged by emergencies), 1316
(projects within the operational right-ofway), and 1317 (projects with limited
Federal assistance); FAA Modernization
and Reform Act of 2012, Public Law
112–95, sec. 213(c), 126 Stat. 11, 46
(navigation performance and area
navigation procedures); and Omnibus
Appropriations Act, 2009, Public Law
111–8, sec. 423, 123 Stat. 524, 748 (Lake
Tahoe Basin Management Unit
hazardous fuel reduction projects).
Further, in the context of emergency
response, including economic crisis,
Congress has enacted legislation to
facilitate timely NEPA reviews or to
exempt certain actions from NEPA
review. Congress has directed the use or
development of alternative
arrangements in accordance with 40
CFR 1506.11 for reconstruction of
transportation facilities damaged in an
emergency (FAST Act, Pub. L. 114–94,
sec. 1432, 129 Stat. 1312, 1429) and for
projects by the Departments of the
Interior and Commerce to address
invasive species (Water Infrastructure
Improvements for the Nation Act, Pub.
L. 114–322, sec. 4010(e)(3), 130 Stat.
1628, 1877). Section 1609(c) of the
American Recovery and Reinvestment
Act of 2009 directed agencies to
complete environmental reviews under
NEPA on an expedited basis using the
most efficient applicable process. Public
Law 111–5, sec. 1609, 123 Stat. 115,
304.
In 2013, Congress also enacted section
429 of the Robert T. Stafford Disaster
Relief and Emergency Assistance Act
(‘‘Stafford Act’’), 42 U.S.C. 5189g, which
directed the President, in consultation
with CEQ and the Advisory Council on
Historic Preservation, to ‘‘establish an
expedited and unified interagency
review process to ensure compliance
with environmental and historic
requirements under Federal law relating
to disaster recovery projects, in order to
expedite the recovery process,
consistent with applicable law.’’ Sandy
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Recovery Improvement Act of 2013,
Public Law 113–2, sec. 1106, 127 Stat.
4, 45–46. This unified Federal
environmental and historic preservation
review (UFR) process is a framework for
coordinating Federal agency
environmental and historic preservation
reviews for disaster recovery projects
associated with presidentially declared
disasters under the Stafford Act. The
goal of the UFR process is to enhance
the ability of Federal environmental
review and authorization processes to
inform and expedite disaster recovery
decisions for grant applicants and other
potential beneficiaries of disaster
assistance by improving coordination
and consistency across Federal agencies,
and assisting agencies in better
leveraging their resources and tools.48
Finally, in some instances, Congress
has exempted actions from NEPA. In
1996, Congress enacted the Illegal
Immigration Reform and Immigrant
Responsibility Act, which authorized
the waiver of NEPA for the construction
of the physical barriers and roads
between the United States and Mexico
border when necessary to ‘‘ensure
expeditious construction.’’ Public Law
104–208, sec. 102(c), 110 Stat. 3009.49 In
2013, Congress exempted certain
disaster recovery actions or financial
assistance to restore ‘‘a facility
substantially to its condition prior to the
disaster or emergency.’’ 42 U.S.C. 5159.
In 2020, Congress enacted the
Coronavirus Aid, Relief, and Economic
Security Act, which created an
exemption from NEPA for the General
Services Administration’s acquisition of
real property and interests in real
property or improvements in real
property in response to coronavirus in
48 See generally Memorandum of Understanding
Establishing the Unified Federal Environmental and
Historic Preservation Review Process for Disaster
Recovery Projects (July 29, 2014), https://
www.fema.gov/media-library-data/1414507626204f156c4795571b85a4f8e1c1f4c4b7de1/Final_Signed_
UFR_MOU_9_24_14_508_ST.PDF.
49 The Homeland Security Act of 2002 transferred
responsibility for the construction of border barriers
from the Attorney General to the Department of
Homeland Security. Public Law 107–296, 116 Stat.
2135. In 2005, the REAL ID Act amended the waiver
authority of section 102(c) expanding the Secretary
of DHS’ authority to waive ‘‘all legal requirements’’
that the Secretary, in his or her own discretion,
determines ‘‘necessary to ensure expeditious
construction’’ of certain ‘‘barriers and roads.’’
Public Law 109–13, Div. B, tit. I, sec. 102, 119 Stat.
231, 302, 306. It also added a judicial review
provision that limited the district court’s
jurisdiction to hear any causes or claims concerning
the Secretary’s waiver authority to solely
constitutional claims. Id. sec. 102(c)(2)(A). Further,
the provision directed that any review of the district
court’s decision be raised by petition for a writ of
certiorari with the Supreme Court of the United
States. Id. sec. 102(c)(2)(C). See In re Border
Infrastructure Envtl. Litig., 284 F. Supp. 3d 1092
(S.D. Cal. 2018).
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conjunction with the provision of
additional funding to prevent, prepare
for, and respond to the coronavirus.
Public Law 116–136, Div. B.
These statutes reflect that Congress
has recognized that the environmental
review process can be more efficient
and effective, including for
infrastructure projects, and that in
certain circumstances, Congress has
determined it appropriate to exempt
certain actions from NEPA review.
Congress also has identified specific
process improvements that can
accelerate environmental reviews,
including improved interagency
coordination, concurrent reviews, and
increased transparency.
E. Presidential Directives
Over the past two decades and
multiple administrations, Presidents
also have recognized the need to
improve the environmental review
process to make it more timely and
efficient, and have directed agencies,
through Executive orders and
Presidential memoranda, to undertake
various initiatives to address these
issues. In 2002, President Bush issued
E.O. 13274 titled ‘‘Environmental
Stewardship and Transportation
Infrastructure Project Reviews,’’ 50
which stated that the development and
implementation of transportation
infrastructure projects in an efficient
and environmentally sound manner is
essential, and directed agencies to
conduct environmental reviews for
transportation projects in a timely
manner.
In 2011, President Obama’s
memorandum titled ‘‘Speeding
Infrastructure Development Through
More Efficient and Effective Permitting
and Environmental Review’’ 51 directed
certain agencies to identify up to three
high-priority infrastructure projects for
expedited environmental review and
permitting decisions to be tracked
publicly on a ‘‘centralized, online tool.’’
This requirement led to the creation of
what is now the Permitting Dashboard,
www.permits.performance.gov.
In 2012, E.O. 13604, titled ‘‘Improving
Performance of Federal Permitting and
Review of Infrastructure Projects,’’ 52
established an interagency Steering
Committee on Federal Infrastructure
Permitting and Review Process
Improvement (‘‘Steering Committee’’) to
facilitate improvements in Federal
permitting and review processes for
infrastructure projects. The Executive
order directed the Steering Committee
to develop a plan ‘‘to significantly
reduce the aggregate time required to
make Federal permitting and review
decisions on infrastructure projects
while improving outcomes for
communities and the environment.’’
Similarly, E.O. 13616, titled
‘‘Accelerating Broadband Infrastructure
Deployment,’’ 53 established an
interagency working group to, among
other things, avoid duplicative reviews
and coordinate review processes to
advance broadband deployment.
A 2013 Presidential Memorandum
titled ‘‘Modernizing Federal
Infrastructure Review and Permitting
Regulations, Policies, and
Procedures’’ 54 directed the Steering
Committee established by E.O. 13604 to
work with agencies, OMB, and CEQ to
‘‘modernize Federal infrastructure
review and permitting regulations,
policies, and procedures to significantly
reduce the aggregate time required by
the Federal Government to make
decisions in the review and permitting
of infrastructure projects, while
improving environmental and
community outcomes’’ and develop a
plan to achieve this goal. Among other
things, the memorandum directed that
the plan create process efficiencies,
including additional use of concurrent
and integrated reviews; expand
coordination with State, Tribal, and
local governments; and expand the use
of information technology tools. CEQ
and OMB led the effort to develop a
comprehensive plan to modernize the
environmental review and permitting
process while improving environmental
and community outcomes, including
budget proposals for funding and new
authorities. Following the development
of the plan, CEQ continued to work with
agencies to improve the permitting
process, including through expanded
collection of timeframe metrics on the
Permitting Dashboard. In late 2015,
these ongoing efforts were superseded
by the enactment of FAST–41, which
codified the use of the Permitting
Dashboard, established the Federal
Permitting Improvement Steering
Council (‘‘Permitting Council’’), and
established other requirements for
managing the environmental review and
permitting process for covered
infrastructure projects.
On August 15, 2017, President Trump
issued E.O. 13807 titled ‘‘Establishing
Discipline and Accountability in the
Environmental Review and Permitting
Process for Infrastructure Projects.’’ 55
50 67
FR 59449 (Sept. 23, 2002).
51 https://www.govinfo.gov/content/pkg/DCPD201100601/pdf/DCPD-201100601.pdf.
52 77 FR 18887 (Mar. 28, 2012).
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Section 5(e)(i) directed CEQ to develop
an initial list of actions to enhance and
modernize the Federal environmental
review and authorization process,
including issuing such regulations as
CEQ deems necessary to: (1) Ensure
optimal interagency coordination of
environmental review and authorization
decisions; (2) ensure that multi-agency
environmental reviews and
authorization decisions are conducted
in a manner that is concurrent,
synchronized, timely, and efficient; (3)
provide for use of prior Federal, State,
Tribal, and local environmental studies,
analysis, and decisions; and (4) ensure
that agencies apply NEPA in a manner
that reduces unnecessary burdens and
delays, including by using CEQ’s
authority to interpret NEPA to simplify
and accelerate the NEPA review
process. In response to E.O. 13807, CEQ
published an initial list of actions and
stated its intent to review its existing
NEPA regulations in order to identify
potential revisions to update and clarify
these regulations.56
F. Advance Notice of Proposed
Rulemaking
Consistent with E.O. 13807 and CEQ’s
initial list of actions, and given the
length of time since CEQ issued its
regulations, on June 20, 2018, CEQ
published an ANPRM titled ‘‘Update to
the Regulations for Implementing the
Procedural Provisions of the National
Environmental Policy Act.’’ 57 The
ANPRM requested public comments on
how CEQ could ensure a more efficient,
timely, and effective NEPA process
consistent with the Act’s national
environmental policy and provided for
a 30-day comment period.58
The ANPRM requested comment on
potential revisions to update and clarify
the NEPA regulations, and included a
list of questions on specific aspects of
the regulations. For example, with
respect to the NEPA process, the
ANPRM asked whether there are
provisions that CEQ could revise to
ensure more efficient environmental
reviews and authorization decisions,
such as facilitating agency use of
existing environmental studies, analyses
and decisions, as well as improving
interagency coordination. The ANPRM
also requested comments on the scope
of NEPA reviews, including whether
CEQ should revise, clarify, or add
definitions. The ANPRM also asked
whether additional revisions relating to
56 82
FR 43226 (Sept. 14, 2017).
FR 28591 (June 20, 2018).
58 In response to comments, CEQ extended the
comment period 31 additional days to August 20,
2018. 83 FR 32071 (July 11, 2018).
57 83
53 77
FR 36903 (June 20, 2012).
FR 30733 (May 22, 2013).
55 82 FR 40463 (Aug. 24, 2017).
54 78
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environmental documentation issued
pursuant to NEPA, including CEs, EAs,
EISs, and other documents, would be
appropriate. Finally, the ANPRM
requested general comments, including
whether there were obsolete provisions
that CEQ could update to reflect new
technologies or make the process more
efficient, or that CEQ could revise to
reduce unnecessary burdens or delays.
In response to the ANPRM, CEQ
received over 12,500 comments, which
are available for public review.59 These
included comments from a wide range
of stakeholders, including States, Tribes,
localities, environmental organizations,
trade associations, NEPA practitioners,
and interested members of the public.
While some commenters opposed any
updates to the regulations, other
commenters urged CEQ to consider
potential revisions. Though the
approaches to the update of the NEPA
regulations varied, most of the
substantive comments supported some
degree of updating of the regulations.
Many noted that overly lengthy
documents and the time required for the
NEPA process remain real and
legitimate concerns despite the NEPA
regulations’ explicit direction with
respect to reducing paperwork and
delays. In general, numerous
commenters requested that CEQ
consider revisions to modernize its
regulations, reduce unnecessary
burdens and costs, and make the NEPA
process more efficient, effective, and
timely.
G. Notice of Proposed Rulemaking
On January 9, 2020, President Trump
announced the release of CEQ’s NPRM
titled ‘‘Update to the Regulations
Implementing the Procedural Provisions
of the National Environmental Policy
Act’’ and the rule was published in the
Federal Register on January 10, 2020.60
The NPRM provided a 60-day comment
period, and the comment period ended
on March 10, 2020.
CEQ hosted two public hearings in
Denver, Colorado on February 11, 2020,
and in Washington, DC on February 25,
2020.61 CEQ also notified all federally
recognized Tribes and over 400
interested groups, including State,
Tribal, and local officials,
environmental organizations, trade
associations, NEPA practitioners, and
interested members of the public
59 See https://www.regulations.gov, docket no.
CEQ–2018–0001.
60 Supra note 8.
61 Transcripts of the two public hearings with
copies of testimony and written comments
submitted at the hearings are available in the docket
on www.regulations.gov, docket ID CEQ–2019–
0003.
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representing a broad range of diverse
views, that CEQ had issued the
proposed rule for public comment.62
Additionally, CEQ made information to
aid the public’s review of the proposed
rule available on its websites at
www.whitehouse.gov/ceq and
www.nepa.gov, including a redline
version of the proposed changes to the
regulations posted on
www.regulations.gov, along with a
presentation on the proposed rule and
other background information.63 CEQ
also conducted additional public
outreach to solicit comments, including
meetings with Tribal representatives in
Denver, Colorado, Anchorage, Alaska,
and Washington, DC.64
In response to the NPRM, CEQ
received comments from a broad range
of stakeholders on a diversity of issues
relating to the proposed rule. These
included comments from members of
Congress, State, Tribal, and local
officials, environmental organizations,
trade associations, NEPA practitioners,
and interested members of the public.
CEQ also received a large number of
campaign comments, including
comments with multiple signatories or
groups of comments that were identical
or very similar in form or content. The
comments received on the NPRM raised
a variety of issues related to the
rulemaking and contents of the
proposed rule, including procedural,
legal, and technical issues. The Final
Rule Response to Comments provides a
summary of the comments and
responses to those comments.
II. Summary of Final Rule
In this section, CEQ summarizes the
NPRM proposed changes and the final
rule, including any changes or additions
to what CEQ proposed. CEQ makes the
additions, clarifications, and updates to
its regulations based on its record
evaluating the implementation of the
NEPA regulations, suggestions in
response to the ANPRM, and comments
provided in response to the NPRM. The
revisions finalized in this rule advance
the original objectives of the 1978
regulations 65 ‘‘[t]o reduce paperwork, to
reduce delays, and at the same time to
produce better decisions [that] further
62 Notices are available under ‘‘Supporting
Documents’’ in the docket, www.regulations.gov,
docket ID CEQ–2019–0003, https://
www.regulations.gov/docketBrowser?rpp=
25&so=DESC&sb=commentDueDate&po=
0&dct=SR%2BO&D=CEQ-2019-0003.
63 Id.
64 CEQ also includes meeting summaries under
supplemental materials. Id.
65 In this final rule, CEQ uses the term ‘‘1978
regulations’’ to refer to the regulations as they exist
prior to this final rule’s amendment thereof, which
includes the 1986 amendment to 40 CFR 1502.22.
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43313
the national policy to protect and
enhance the quality of the human
environment.’’ 66
In this final rule, CEQ makes various
revisions to align the regulations with
the text of the NEPA statute, including
revisions to reflect the procedural
nature of the statute, including under
section 102(2). CEQ also revises the
regulations to ensure that environmental
documents prepared pursuant to NEPA
are concise and serve their purpose of
informing decision makers regarding
significant potential environmental
effects of proposed major Federal
actions and the public of the
environmental issues in the pending
decision-making process. CEQ makes
changes to ensure that the regulations
reflect changes in technology, increase
public participation in the process, and
facilitate the use of existing studies,
analyses, and environmental documents
prepared by States, Tribes, and local
governments.
CEQ also makes its regulations
consistent with the OFD policy
established by E.O. 13807 for multiagency review and related permitting
and other authorization decisions. The
Executive order specifically instructed
CEQ to take steps to ensure optimal
interagency coordination, including
through a concurrent, synchronized,
timely, and efficient process for
environmental reviews and
authorization decisions. In response to
the NPRM, CEQ received many
comments supporting revisions to
codify key aspects of the OFD policy in
the NEPA regulations, including by
providing greater specificity on the roles
and responsibilities of lead and
cooperating agencies. Commenters also
suggested that the regulations require
agencies to establish and adhere to
timetables for the completion of
reviews, another key element of the
OFD policy. To promote improved
interagency coordination and more
timely and efficient reviews and in
response to these comments, CEQ
codifies and generally applies a number
of key elements from the OFD policy in
this final rule. These include
development by the lead agency of a
joint schedule, procedures to elevate
delays or disputes, preparation of a
single EIS and joint ROD to the extent
practicable, and a two-year goal for
completion of environmental reviews.
Consistent with section 104 of NEPA (42
U.S.C. 4334), codification of these
policies will not limit or affect the
authority or legal responsibilities of
agencies under other statutory mandates
that may be covered by joint schedules,
66 43
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and CEQ includes language to that effect
in § 1500.6.67
CEQ also clarifies the process and
documentation required for complying
with NEPA by amending part 1501 to
add sections on threshold
considerations, determination of the
appropriate level of NEPA review, and
the application of CEs; and revising
sections in part 1501 on EAs and
findings of no significant impact
(FONSIs), and EISs in part 1502. CEQ
further revises the regulations to
promote more efficient and timely
environmental reviews, including
revisions to promote interagency
coordination by amending sections of
parts 1501, 1506, and 1507 relating to
lead, cooperating, and participating
agencies, timing of agency action,
scoping, and agency NEPA procedures.
To promote a more efficient and
timely NEPA process, CEQ amends
provisions in parts 1501, 1506, and 1507
relating to applying NEPA early in the
process, scoping, tiering, adoption, use
of current technologies, and avoiding
duplication of State, Tribal, and local
environmental reviews; revises parts
1501 and 1502 to provide for
presumptive time and page limits; and
amends part 1508 to clarify the
definitions. For example, CEQ includes
two new mechanisms to facilitate the
use of CEs when appropriate. Under
§ 1506.3(d), an agency can adopt
another agency’s determination that a
CE applies to a proposed action when
the adopting agency’s proposed action is
substantially the same. This extends the
adoption process and standards from
EISs to CE determinations.68 This allows
agencies to ‘‘piggyback’’ where more
than one agency is taking an action
related to the same project or activity.
Alternatively, to apply CEs listed in
another agency’s procedures (without
that agency already having made a
determination that a CE applies to a
substantially similar action), agencies
can establish a process in their agency
NEPA procedures to coordinate and
apply CEs listed in other agencies’
procedures.
Another efficiency included in this
final rule is the ability for agencies to
identify other requirements that serve
the function of agency compliance with
NEPA. Under §§ 1501.1 and
1507.3(d)(6), agencies may determine
that another statute’s requirements serve
the function of agency compliance with
67 In the preamble, CEQ uses the section symbol
(§ ) to refer to the final regulations as set forth in
this final rule and 40 CFR to refer to the 1978 CEQ
regulations as set forth in 40 CFR parts 1500–1508.
68 The final rule also extends the adoption
process and standards, which only applies to EISs
under the 1978 regulations, to EAs as well.
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NEPA. Alternatively, agencies may
designate in their agency NEPA
procedures one or more procedures or
documents under other statutes or
Executive orders that satisfy one or
more requirements in the NEPA
regulations, consistent with
§ 1507.3(c)(5). Finally, § 1506.9 allows
agencies to substitute processes and
documentation developed as part of the
rulemaking process for corresponding
requirements in these regulations.
As noted above, NEPA is a procedural
statute that has twin aims. The first is
to promote informed decision making,
while the second is to inform the public
about the agency’s decision making. In
this final rule, CEQ amends parts 1500,
1501, 1502, 1503, 1505, and 1508 to
ensure that agencies solicit and consider
relevant information early in the NEPA
process and have the maximum
opportunity to take that information
into account in their decision making.
In situations where an EIS is required,
this process takes place in two discrete
steps. First, § 1501.9(d) directs agencies
to include information on the proposed
action in the NOI, including its
expected impacts and alternatives, and
a request for comments from interested
parties on the potential alternatives,
information, and analyses relevant to
the proposed action. Second, § 1503.1(a)
requires agencies to request comments
on the analysis and conclusions of the
draft EIS. The purpose of these two
provisions is to bring relevant
comments, information, and analyses to
the agency’s attention, as early in the
process as possible, to enable the agency
to make maximum use of this
information.
To facilitate this process, § 1503.3
requires comments on the draft EIS to be
submitted on a timely basis and to be as
specific as possible. Similarly,
§ 1503.1(a)(3) requires agencies to invite
interested parties to comment
specifically on the alternatives,
information, and analyses submitted for
consideration in the development of the
draft EIS. Finally, § 1503.3(b) provides
that comments, information, and
analyses on the draft EIS not timely
received are deemed unexhausted and
therefore forfeited. The intent of these
amendments is two-fold: (1) To ensure
that comments are timely received and
at a level of specificity where they can
be meaningfully taken into account,
where appropriate; and (2) to prevent
unnecessary delay in the decisionmaking process.
Consistent with this intent,
§ 1500.3(b)(2) also directs agencies to
include a new section in both the draft
and final EIS that summarizes all
alternatives, information, and analyses
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submitted by interested parties in
response to the agency’s requests for
comment in the NOI and on the draft
EIS. In addition, §§ 1502.17(a)(2) and
1503.1(a)(3) direct agencies to request
comment on the summary in the draft
EIS. The purpose of these provisions is
to ensure that the agency, through
outreach to the public, has identified all
relevant information submitted by State,
Tribal, and local governments and other
public commenters. Although not a
substitute for the entire record, the
summary will assist agency decision
makers in their consideration of the
record for the proposed action. As the
Supreme Court observed in
Metropolitan Edison Co. v. People
Against Nuclear Energy, ‘‘[t]he scope of
[an] agency’s inquiries must remain
manageable if NEPA’s goal of ‘[insuring]
a fully informed and well-considered
decision’ . . . is to be accomplished.’’
460 U.S. at 776 (quoting Vt. Yankee, 435
U.S. at 558).
Finally, informed by the summary
included in the final EIS pursuant to
§§ 1500.3(b)(2) and 1502.17 and the
response to comments pursuant to
§ 1503.4, together with any other
material in the record that he or she
determines to be relevant, the decision
maker is required under § 1505.2(b) to
certify in the ROD that the agency has
considered the alternatives, information,
analyses, and objections submitted by
State, Tribal, and local governments and
public commenters for consideration in
the development of the final EIS.
Section 1505.2(b) further provides that a
decision certified in this manner is
entitled to a presumption that the
agency has adequately considered the
submitted alternatives, information, and
analyses, including the summary
thereof, in reaching its decision. This
presumption will advance the purposes
of the directive in E.O. 11991 to ensure
that EISs are supported by evidence that
agencies have performed the necessary
environmental analyses. See E.O. 11991,
sec. 1 amending E.O. 11514, sec. 3(h).
This presumption is also consistent
with the longstanding presumption of
regularity that government officials have
properly discharged their official duties.
See U.S. Postal Serv. v. Gregory, 534
U.S. 1, 10 (2001) (‘‘[W]e note that a
presumption of regularity attaches to the
actions of government agencies.’’ (citing
United States v. Chem. Found., Inc., 272
U.S. 1, 14–15 (1926)); INS v. Miranda,
459 U.S. 14, 18 (1982) (specific evidence
required to overcome presumption that
public officers have executed their
responsibilities properly); Citizens to
Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 415 (1971) (Although a
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statute prohibited Federal funds for
roads through parks absent a feasible
and prudent alternative, and although
the Secretary of Transportation
approved funds without formal
findings, the Secretary’s decisionmaking process was nevertheless
entitled to a presumption of regularity.);
Fed. Commc’ns Comm’n v. Schreiber,
381 U.S. 279, 296 (1965) (noting ‘‘the
presumption to which administrative
agencies are entitled—that they will act
properly and according to law’’); Phila.
& T. Ry. v. Stimpson, 39 U.S. (14 Pet.)
448, 458 (1840) (Where a statute
imposed certain conditions before a
corrected patent could issue, the
signatures of the President and the
Secretary of State on a corrected patent
raised a presumption that the conditions
were satisfied, despite absence of
recitals to that effect on face of patent.);
Martin v. Mott, 25 U.S. (12 Wheat.) 19,
33 (1827) (‘‘Every public officer is
presumed to act in obedience to his
duty, until the contrary is shown
. . . .’’); Udall v. Wash., Va. & Md.
Coach Co., 398 F.2d 765, 769 (D.C. Cir.
1968) (The Secretary of the Interior’s
determination that limitation of
commercial bus service was required to
preserve a parkway’s natural beauty was
entitled to presumption of validity, and
the burden was on the challenger to
overcome it.).
In light of this precedent and the
interactive process established by these
regulations, under which the agency
and interested parties exchange
information multiple times, the agency
compiles and evaluates summaries of
that information, and a public official is
required to certify the agency’s
consideration of the record, it is CEQ’s
intention that this presumption may be
rebutted only by clear and convincing
evidence that the agency has not
properly discharged its duties under the
statute.
Finally, CEQ revises the regulations to
make them easier to understand and
apply. CEQ reorganizes the regulatory
text to move topics addressed in
multiple sections and sometimes
multiple parts into consolidated
sections. CEQ simplifies and clarifies
part 1508 to focus on definitions by
moving operative requirements to the
relevant regulatory provisions. CEQ
revises the regulations to consolidate
provisions and reduce duplication.
Such consolidation, reordering, and
reorganization promotes greater clarity
and ease of use.
A. Changes Throughout Parts 1500–
1508
CEQ proposed several revisions
throughout parts 1500–1508 to provide
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consistency, improve clarity, and
correct grammatical errors. CEQ
proposed to make certain grammatical
corrections in the regulations where it
proposed other changes to the
regulations to achieve the goals of this
rulemaking, or where CEQ determined
the changes are necessary for the reader
to understand fully the meaning of the
sentence. CEQ proposed to revise
sentences from passive voice to active
voice to help identify the responsible
parties. CEQ also proposed to correct
the usage of the term ‘‘insure’’ with
‘‘ensure’’ consistent with modern usage.
‘‘Insure’’ is typically used in the context
of providing or obtaining insurance,
whereas ‘‘ensure’’ is used in the context
of making something sure, certain, or
safe. While NEPA uses the term
‘‘insure,’’ the context in which it is used
makes it clear that Congress meant
‘‘ensure’’ consistent with modern usage.
Similarly, CEQ proposed to correct the
use of ‘‘which’’ and ‘‘that’’ throughout
the rule.
CEQ proposed to add paragraph
letters to certain introductory
paragraphs where it would improve
clarity. Finally, CEQ invited comment
on whether it should make these types
of grammatical and editorial changes
throughout the rule or if there are
additional specific instances where CEQ
should make these types of changes. In
the final rule, CEQ adopts the proposed
revisions to provide consistency and
clarity and to correct grammatical errors
and makes these types of changes
throughout.
CEQ proposed to add ‘‘Tribal’’ to the
phrase ‘‘State and local’’ throughout the
rule to ensure consultation with Tribal
entities and to reflect existing NEPA
practice to coordinate or consult with
affected Tribal governments and
agencies, as necessary and appropriate
for a proposed action. CEQ also
proposed this change in response to
comments on the ANPRM supporting
expansion of the recognition of the
sovereign rights, interests, and expertise
of Tribes. CEQ proposed to eliminate
the provisions in the regulations that
limit Tribal interest to reservations. CEQ
adopts these proposals in the final rule
and makes these additions and revisions
in §§ 1500.3(b)(2)–(4), 1500.4(p),
1500.5(j), 1501.2(b)(4)(ii),
1501.3(b)(2)(iv), 1501.5(e), 1501.7(b) and
(d), 1501.8(a), 1501.9(b), 1501.10(f),
1502.5(b), 1502.16(a)(5), 1502.17(a) and
(b), 1502.20(a), 1503.1(a)(2)(i) and (ii),
1505.2(b), and 1506.1(b), 1506.2,
1506.6(b)(3)(i)–(iii), and 1508.1(e), (k),
and (w). As noted in the NPRM, these
changes are consistent with and in
support of government-to-government
consultation pursuant to E.O. 13175,
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titled ‘‘Consultation and Coordination
With Indian Tribal Governments.’’ 69
CEQ proposed several changes for
consistent use of certain terms. In
particular, CEQ proposed to change
‘‘entitlements’’ to the defined term
‘‘authorizations’’ proposed in
§ 1508.1(c) throughout the regulations
and added ‘‘authorizations’’ where
appropriate to reflect the mandate in
E.O. 13807 for better integration and
coordination of authorization decisions
and related environmental reviews. CEQ
is adopting these revisions in the final
rule in §§ 1501.2(a), 1501.7(i),
1501.9(d)(4) and (f)(4), 1502.13,
1502.24(b), 1503.3(d), and 1508.1(w).
CEQ proposed to use the term
‘‘decision maker’’ to refer to an
individual responsible for making
decisions on agency actions and ‘‘senior
agency official’’ to refer to the
individual who oversees the agency’s
overall compliance with NEPA. CEQ
adopts these changes in the final rule.
There may be multiple individuals
within certain departments or agencies
that have these responsibilities,
including where subunits have
developed agency procedures or NEPA
compliance programs.
CEQ proposed to replace ‘‘circulate’’
or ‘‘circulation’’ with ‘‘publish’’ or
‘‘publication’’ throughout the rule and
make ‘‘publish or publication’’ a defined
term in § 1508.1(y), which provides
agencies with the flexibility to make
environmental review and information
available to the public by electronic
means not available at the time of
promulgation of the CEQ regulations in
1978. As explained in the NPRM,
historically, the practice of circulation
included mailing of hard copies or
providing electronic copies on disks or
CDs. While it may be necessary to
provide a hard copy or copy on physical
media in limited circumstances,
agencies now provide most documents
in an electronic format by posting them
online and using email or other
electronic forms of communication to
notify interested or affected parties. This
change will help reduce paperwork and
delays, and modernize the NEPA
process to be more accessible to the
public. CEQ finalizes these changes in
§§ 1500.4(o), 1501.2(b)(2), 1502.9(b) and
(d)(3), 1502.20, 1503.4(b) and (c),
1506.3(b)(1) and (2), and 1506.8(c)(2).
CEQ proposed to change the term
‘‘possible’’ to ‘‘practicable’’ in the
NPRM in a number of sections of the
regulations. As noted in the NPRM,
‘‘practicable’’ is the more commonly
used term in regulations to convey the
ability for something to be done,
69 65
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considering the cost, including time
required, technical and economic
feasibility, and the purpose and need for
agency action. The term ‘‘practicable,’’
which is in the statute (42 U.S.C.
4331(a), (b)) and used many times in the
1978 regulations,70 is consistent with
notions of feasibility, which the case
law has recognized as part of the NEPA
process. See, e.g., Vt. Yankee, 435 U.S.
at 551 (‘‘alternatives must be bounded
by some notion of feasibility’’); Kleppe,
427 U.S. at 414 (‘‘[P]ractical
considerations of feasibility might well
necessitate restricting the scope’’ of an
agency’s analysis.) CEQ makes these
changes in the final rule in
§§ 1501.7(h)(1) and (2), 1501.8(b)(1),
1502.5, 1502.9(b), 1504.2, and 1506.2(b)
and (c).
Similarly, CEQ proposed to change
‘‘no later than immediately’’ to ‘‘as soon
as practicable’’ in § 1502.5(b), and CEQ
finalizes this change. Finally, CEQ
proposed to refer to the procedures
required in § 1507.3 using the term
‘‘agency NEPA procedures’’ throughout.
CEQ makes this change in the final rule.
CEQ proposed to eliminate obsolete
references and provisions in several
sections of the CEQ regulations. In
particular, CEQ proposed to remove
references to the 102 Monitor in 40 CFR
1506.6(b)(2) and 1506.7(c) because the
publication no longer exists, and OMB
Circular A–95, which was revoked
pursuant to section 7 of E.O. 12372 (47
FR 30959, July 16, 1982), including the
requirement to use State and area-wide
clearinghouses in 40 CFR 1501.4(e)(2),
1503.1(a)(2)(iii), 1505.2, and
1506.6(b)(3)(i). CEQ removes these
references in the final rule.
CEQ proposed changes to citations
and authorities in parts 1500 through
1508. CEQ is updating the authorities
sections for each part to correct the
format. CEQ also is removing crossreferences to the sections of part 1508,
‘‘Definitions,’’ and updates or inserts
new cross-references throughout the
rule to reflect revised or new sections.
CEQ makes these changes throughout
the final rule.
Finally, CEQ is reorganizing chapter V
of title 40 of the Code of Federal
Regulations to place the NEPA
regulations into a new subchapter A,
‘‘National Environmental Policy Act
Implementing Regulations,’’ and
organizing its other regulations into
their own new subchapter B,
‘‘Administrative Procedures and
Operations.’’ References to ‘‘parts 1500
through 1508’’ in the proposed rule are
referenced to ‘‘this subchapter’’ in the
70 See 40 CFR 1500.2(f), 1501.4(b), 1501.7,
1505.2(c), 1506.6(f) and 1506.12(a).
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final rule. CEQ notes that the provisions
of the NEPA regulations, which the final
rule comprehensively updates, should
be read in their entirety to understand
the requirements under the modernized
regulations.71
101 of the Act (42 U.S.C. 4331) and to
reflect that section 102(2) establishes the
procedural requirements to carry out the
policy stated in section 101. CEQ revises
§ 1500.1(a) consistent with the case law
to reflect that the purpose and function
of NEPA is satisfied if Federal agencies
B. Revisions To Update the Purpose,
have considered relevant environmental
Policy, and Mandate (Part 1500)
information and the public has been
In part 1500, CEQ proposed several
informed regarding the decision-making
revisions to update the policy and
process, and to reflect that NEPA does
mandate sections of the regulations to
not mandate particular results or
reflect statutory, judicial, policy, and
substantive outcomes. Marsh, 490 U.S.
other developments since the CEQ
at 373–74; Vt. Yankee, 435 U.S. at 558.
regulations were issued in 1978. CEQ
CEQ replaces the vague reference to
includes the proposed changes with
‘‘action-forcing’’ provisions ensuring
some revisions in the final rule.
that Federal agencies act ‘‘according to
the letter and spirit of the Act’’ (as well
1. Purpose and Policy (§ 1500.1)
as consistently with their organic and
In the NPRM, CEQ proposed to retitle
program-specific governing statutes)
and revise § 1500.1, ‘‘Purpose and
with a more specific reference to the
policy,’’ to align this section with the
consideration of environmental impacts
statutory text of NEPA and certain case
of their actions in agency decisions.
law, and reflect the procedural
These changes codify the Supreme
requirements of section 102(2) (42
Court’s interpretation of section 102 in
U.S.C. 4332(2)). These changes also are
consistent with the President’s directive two important respects: Section 102
to CEQ to ‘‘[i]ssue regulations to Federal ‘‘ensures that the agency, in reaching its
decision, will have available, and will
agencies for the implementation of the
carefully consider, detailed information
procedural provisions of the Act (42
concerning significant environmental
U.S.C. 4332(2)).’’ E.O. 11514, as
amended by E.O. 11991, sec. 3(h). Many impacts; it also guarantees that the
relevant information will be made
commenters supported these revisions
available to the larger audience that may
to promote more efficient and timely
also play a role in both the decision[reviews under NEPA, while others
opposed the changes and requested that ]making process and the
implementation of that decision.’’
CEQ maintain the existing language.
CEQ revises this section in the final rule Methow Valley, 490 U.S. at 349; see also
Winter v. Nat. Res. Def. Council, Inc.,
consistent with its proposal.
Section 1500.1 provides that NEPA is 555 U.S. 7, 23 (2008); Pub. Citizen, 541
U.S. at 756–58.
a procedural statute intended to ensure
Federal agencies consider the
Consistent with CEQ’s proposal in the
environmental impacts of their actions
NPRM, CEQ revises § 1500.1(b) to
in the decision-making process. The
describe the NEPA regulations as
Supreme Court has made clear that
revised in this final rule. In particular,
NEPA is a procedural statute that does
CEQ revises this paragraph to reflect
not mandate particular results; ‘‘[r]ather, that the regulations include direction to
NEPA imposes only procedural
Federal agencies to determine what
requirements on [F]ederal agencies with actions are subject to NEPA’s procedural
a particular focus on requiring agencies
requirements and the level of NEPA
to undertake analyses of the
review, where applicable. The revisions
environmental impact of their proposals also ensure that Federal agencies
and actions.’’ Pub. Citizen, 541 U.S. at
identify and consider relevant
756–57 (citing Methow Valley, 490 U.S.
environmental information early in the
at 349–50); see also Vt. Yankee, 435 U.S. process in order to promote informed
at 558 (‘‘NEPA does set forth significant decision making. These revisions reduce
substantive goals for the Nation, but its
unnecessary burdens and delays
mandate to the agencies is essentially
consistent with E.O. 13807 and the
procedural.’’).
purposes of the regulations as originally
As proposed in the NPRM, CEQ
promulgated in 1978. These
revises § 1500.1(a) to summarize section amendments emphasize that the policy
of integrating NEPA with other
71 While the final rule retains, in large part, the
environmental reviews is to promote
numbering scheme used in the 1978 regulations, the
concurrent and timely reviews and
final rule comprehensively updates the prior
decision making consistent with
regulations. The new regulations should be
consulted and reviewed to ensure application is
statutes, Executive orders, and CEQ
consistent with the modernized provisions.
guidance. See, e.g., 42 U.S.C. 5189g; 23
Assumptions should not be made concerning the
U.S.C. 139; 42 U.S.C. 4370m et seq.;
degree of change to, similarity to, or any
interpretation of the prior version of the regulations. E.O. 13604; E.O. 13807; Mitigation
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Guidance, supra note 29, and Timely
Environmental Reviews Guidance,
supra note 29.
2. Remove and Reserve Policy (§ 1500.2)
CEQ proposed to remove and reserve
40 CFR 1500.2, ‘‘Policy.’’ The section
included language that is identical or
similar to language in E.O. 11514, as
amended. That Executive order directed
CEQ to develop regulations that would
make the ‘‘[EIS] process more useful to
decision makers and the public; and
. . . reduce paperwork and the
accumulation of extraneous background
data, in order to emphasize the need to
focus on real environmental issues and
alternatives.’’ See E.O. 11514, as
amended by E.O. 11991, sec. 3(h). The
Executive order also directed CEQ to
require EISs to be ‘‘concise, clear and to
the point, and supported by evidence
that agencies have made the necessary
environmental analyses.’’ Id. CEQ
proposed to remove this section because
it is duplicative of other sections of the
regulations, thereby eliminating
redundancy. CEQ is making this change
in the final rule.
Specifically, 40 CFR 1500.2(a)
restated the statutory text in section 102
of NEPA (42 U.S.C. 4332) and is
duplicative of language in § 1500.6,
‘‘Agency authority,’’ requiring each
agency to interpret the provisions of
NEPA as a supplement to its existing
authority and as a mandate to view
policies and missions in light of the
Act’s national environmental objectives.
Paragraph (b) required agencies to
implement procedures to make the
NEPA process more useful to decision
makers and the public; reduce
paperwork and accumulation of
extraneous background data; emphasize
relevant environmental issues and
alternatives; and make EISs concise,
clear, and to the point and supported by
evidence that thy have made the
necessary analyses. This paragraph is
duplicative of language in § 1502.1,
‘‘Purpose of environmental impact
statement,’’ and paragraphs (c) through
(i) of § 1500.4, ‘‘Reducing paperwork.’’
Paragraph (c) of 40 CFR 1500.2,
requiring agencies to integrate NEPA
requirements with other planning and
review procedures to run concurrently
rather than consecutively, is duplicative
of language in § 1502.24,
‘‘Environmental review and
consultation requirements,’’ § 1501.2,
‘‘Apply NEPA early in the process,’’
§ 1501.9, ‘‘Scoping,’’ and § 1500.4,
‘‘Reducing paperwork.’’ Paragraph (d)
encouraging public involvement is
duplicative of sections that direct
agencies to provide notice and
information to and seek comment from
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the public regarding proposed actions
and environmental documents,
including provisions in § 1506.6,
‘‘Public involvement,’’ § 1501.9,
‘‘Scoping,’’ and § 1503.1, ‘‘Inviting
comments and requesting information
and analyses.’’ 72 Paragraph (e), which
required agencies to use the NEPA
process to identify and assess
reasonable alternatives to proposed
actions that will avoid or minimize
adverse effects, is duplicative of
language in § 1502.1, ‘‘Purpose of
environmental impact statement,’’ and
paragraph (c) of § 1505.2, ‘‘Record of
decision in cases requiring
environmental impact statements.’’
Paragraph (f) of 40 CFR 1500.2
required agencies to use all practicable
means, consistent with 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. The
rule specifically directs agencies to
consider reasonable alternatives to
avoid or minimize adverse
environmental impacts in § 1502.1,
‘‘Purpose of environmental impact
statement.’’ The final rule also provides
direction to agencies about the relevant
environmental information to be
considered in the decision-making
process, including potential adverse
effects and alternatives, and expressly
directs agencies to identify alternatives
considered (§§ 1502.14 and 1502.16),
and to state in their RODs whether they
have adopted all practicable means to
avoid or minimize environmental harm
from the alternative selected (§ 1505.2).
3. NEPA Compliance (§ 1500.3)
CEQ proposed numerous changes and
additions to § 1500.3, ‘‘NEPA
compliance,’’ including the addition of
paragraph headings to improve
readability. In paragraph (a),
‘‘Mandate,’’ CEQ proposed to update the
authorities under which it issues the
regulations. CEQ adds these references,
including to E.O. 13807, in the final
rule. In the NPRM, CEQ proposed to add
a sentence to this paragraph regarding
72 Section 1506.6 includes detailed provisions
directing agencies to facilitate public involvement,
including by providing the public with notice
regarding actions, holding or sponsoring public
hearings, and providing notice of NEPA-related
hearings, public meetings, and other opportunities
for public involvement, and the availability of
environmental documents. Section 1501.9 requires
agencies to issue a public notice regarding proposed
actions for which the agencies will be preparing an
EIS and to include specific information for, and to
solicit information from the public regarding such
proposed actions. Section 1503 provides direction
to agencies regarding inviting comments from the
public and requesting information and analyses.
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agency NEPA procedures not imposing
additional procedures or requirements
beyond those set forth in the
regulations. To address confusion
expressed by some commenters, CEQ
does not include this sentence in the
final rule because it includes this
requirement in § 1507.3, ‘‘Agency NEPA
procedures.’’
CEQ proposed to add a new paragraph
(b), ‘‘Exhaustion,’’ to summarize public
comment requirements and an
exhaustion requirement. Specifically,
CEQ proposed in paragraph (b)(1) to
require that, in a NOI to prepare an EIS,
agencies request comments from
interested parties on the potential
effects of and potential alternatives to
proposed actions, and also request that
interested parties identify any relevant
information, studies, or analyses of any
kind concerning such effects. CEQ
includes this provision in the final rule
to ensure that agencies solicit and
consider relevant information early in
the development of an EIS.
In paragraph (b)(2) of § 1500.3, CEQ
proposed to require that the EIS include
a summary of all the comments received
for consideration in developing the EIS.
CEQ includes this provision in the final
rule with some changes. For consistency
with the language in § 1502.17, the final
rule specifies that the draft and final
EISs must include a summary of ‘‘all
alternatives, information, and analyses.’’
Also, in response to comments
requesting clarification on the meaning
of ‘‘public commenters,’’ the final rule
changes this phrase in paragraphs (b)(2)
and (3) of § 1500.3 and in § 1502.17 to
‘‘State, Tribal, and local governments
and other public commenters’’ for
consistency with §§ 1501.9 and 1506.6
and to clarify that public commenters
includes governments as well as other
commenters such as organizations,
associations, and individuals.
In paragraph (b)(3) of § 1500.3, CEQ
proposed to require that public
commenters timely submit comments
on draft EISs and any information on
environmental impacts or alternatives to
a proposed action to ensure informed
decision making by Federal agencies.
CEQ further proposed to provide that
comments not timely raised and
information not provided shall be
deemed unexhausted and forfeited. This
reinforces the principle that parties may
not raise claims based on issues they
themselves did not raise during the
public comment period. See, e.g., Pub.
Citizen, 541 U.S. at 764–65 (finding
claims forfeited because respondents
had not raised particular objections to
the EA in their comments); Karst Envtl.
Educ. & Prot., Inc. v. Fed. Highway
Admin., 559 Fed. Appx. 421, 426–27
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(6th Cir. 2014) (concluding that
comments did not raise issue with
‘‘sufficient clarity’’ to alert the Federal
Highway Administration to concerns);
Friends of the Norbeck v. U.S. Forest
Serv., 661 F.3d 969, 974 (8th Cir. 2011)
(concluding that comments were
insufficient to give the Forest Service an
opportunity to consider claim and that
judicial review was therefore improper);
Exxon Mobil Corp. v. U.S. EPA, 217
F.3d 1246, 1249 (9th Cir. 2000)
(arguments not raised in comments are
waived); Ass’n of Mfrs. v. Dep’t of the
Interior, 134 F.3d 1095, 1111 (D.C. Cir.
1998) (failure to raise argument in
rulemaking constitutes failure to
exhaust administrative remedies).
Finally, CEQ proposed to require that
the public raise any objections to the
submitted alternatives, information, and
analyses section within 30 days of the
notice of availability of the final EIS.
The final rule includes paragraph
(b)(3) with some modifications. The
final rule requires State, Tribal, and
local governments and other public
commenters to submit comments within
the comment periods provided under
§ 1503.1 and that comments be as
specific as possible under § 1503.3. The
rule specifies that comments or
objections of any kind not submitted
‘‘shall be forfeited as unexhausted’’ to
clarify any ambiguity about forfeiture
and exhaustion. CEQ received
comments opposing the proposal to
require the public to raise objections to
the submitted alternatives, information,
and analyses section within 30 days of
the notice of availability of the final EIS.
The final rule does not include the
proposed mandatory 30-day comment
period. However, § 1506.11 retains from
the 1978 regulations the 30-day waiting
period prior to issuance of the ROD,
subject to limited exceptions, and under
§ 1503.1(b), agencies may solicit
comments on the final EIS if they so
choose. Each commenter should put its
own comments into the record as soon
as practicable to ensure that the agency
has adequate time to consider the
commenter’s input as part of the
agency’s decision-making process.
Finally, to ensure commenters timely
identify issues, CEQ expresses its
intention that commenters rely on their
own comments and not those submitted
by other commenters in any subsequent
litigation, except where otherwise
provided by law.
CEQ also proposed in paragraph (b)(4)
of § 1500.3 to require that the agency
decision maker certify in the ROD that
the agency has considered all of the
alternatives, information, and analyses
submitted by public commenters based
on the summary in the EIS. CEQ
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includes this section in the final rule
with some modifications. The final rule
requires the decision maker, informed
by the final EIS (including the public
comments, summary thereof, and
responses thereto) and other relevant
material in the record, certify that she or
he considered the alternatives,
information, and analyses submitted by
States, Tribes, and local governments
and other public commenters. Relevant
material includes both the draft and
final EIS as well as any supporting
materials incorporated by reference or
appended to the document. The final
rule does not specify the decision maker
‘‘for the lead agency’’ to account for
multiple decision makers, consistent
with the OFD policy.
CEQ proposed to add a new paragraph
(c), ‘‘Review of NEPA compliance,’’ to
§ 1500.3 to reflect the development of
case law since the promulgation of the
CEQ regulations. Specifically, CEQ
proposed to revise the sentence
regarding timing of judicial review to
strike references to the filing of an EIS
or FONSI and replace them with the
issuance of a signed ROD or the taking
of another final agency action. CEQ
includes this change in the final rule.
Judicial review of NEPA compliance for
agency actions can occur only under the
APA, which requires finality. 5 U.S.C.
704. A private right of action to enforce
NEPA, which is lacking, would be
required to review non-final agency
action. In addition, non-final agency
action may not be fit for judicial review
as a matter of prudential standing. See
Abbott Labs v. Gardner, 387 U.S. 136,
148–49 (1967). Under the APA, judicial
review does not occur until an agency
has taken final agency action. Bennett v.
Spear, 520 U.S. 154, 177–78 (1997)
(‘‘[T]he action must mark the
‘consummation’ of the agency’s
decision[-]making process—it must not
be of a merely tentative or interlocutory
nature. And second, the action must be
one by which ‘rights or obligations have
been determined’ or from which ‘legal
consequences will flow’’’ (citations
omitted)). Because NEPA’s procedural
requirements apply to proposals for
agency action, judicial review should
not occur until the agency has
completed its decision-making process,
and there are ‘‘direct and appreciable
legal consequences.’’ Id. at 178. Final
agency action for judicial review
purposes is not necessarily when the
agency publishes the final EIS, issues a
FONSI, or makes the determination to
categorically exclude an action.
CEQ also proposed in paragraph (c) to
clarify that any allegation of
noncompliance be resolved as
expeditiously as possible, and that
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agencies may structure their decision
making to allow private parties to seek
agency stays or provide for efficient
mechanisms, such as imposition of
bonds, for seeking, granting, and
imposing conditions on stays. The final
rule clarifies that it is CEQ’s intention
that any allegation of noncompliance be
resolved as expeditiously as possible.
The final rule also clarifies that agencies
may structure their procedures
consistent with their organic statutes,
and as part of implementing the
exhaustion provisions in paragraph (b)
of § 1500.3, to include an appropriate
bond or other security requirement to
protect against harms associated with
delays.
Consistent with their statutory
authorities, agencies may impose, as
appropriate, bond and security
requirements or other conditions as part
of their administrative processes,
including administrative appeals, and a
prerequisite to staying their decisions,
as courts do under rule 18 of the Federal
Rules of Appellate Procedure and other
rules.73 See, e.g., Fed. R. App. P. 18(b);
Fed. R. App. P. 8(a)(2)(E); Fed. R. Civ.
P. 65(c); Fed. R. Civ. P. 62(b); Fed. R.
Civ. P. 62(d). CEQ notes that there is no
‘‘NEPA exception’’ that exempts
litigants bringing NEPA claims from
otherwise applicable bond or security
requirements or other appropriate
conditions, and that some courts have
imposed substantial bond requirements
in NEPA cases. See, e.g., Save Our
Sonoran, Inc. v. Flowers, 408 F.3d 1113,
1125–26 (9th Cir. 2005) (concluding that
district court’s imposition of a $50,000
bond was appropriate and supported by
the record); Stockslager v. Carroll Elec.
Co-op Corp., 528 F.2d 949 (8th Cir.
1976) (concluding that district court’s
imposition of a $10,000 bond was
appropriate).
CEQ proposed to add a new paragraph
(d), ‘‘Remedies,’’ to § 1500.3. CEQ
proposed to state explicitly that harm
from the failure to comply with NEPA
can be remedied by compliance with
NEPA’s procedural requirements, and
that CEQ’s regulations do not create a
cause of action for violation of NEPA.
The statute does not create any cause of
action, and agencies may not create
private rights of action by regulation;
‘‘[l]ike substantive [F]ederal law itself,
private rights of action to enforce
[F]ederal law must be created by
Congress.’’ Alexander v. Sandoval, 532
U.S. 275, 286 (2001) (citing Touche Ross
73 See, e.g., 26 CFR 2.6 (Bureau of Indian Affairs’
regulatory provision that allows a person that
believes he or she may suffer a measurable and
substantial financial loss as a result of the delay
caused by an appeal to request that the official
require the posting of a reasonable bond).
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& Co. v. Redington, 442 U.S. 560, 578
(1979)). This is particularly relevant
where, as here, the counterparty in any
action to enforce NEPA would be a
Federal officer or agency. See San
Carlos Apache Tribe v. United States,
417 F.3d 1091, 1096–97 (9th Cir. 2005)
(‘‘[C]reating a direct private action
against the federal government makes
little sense in light of the administrative
review scheme set out in the APA.’’).
The CEQ regulations create no
presumption that violation of NEPA is
a basis for injunctive relief or for a
finding of irreparable harm. As the
Supreme Court has held, the irreparable
harm requirement, as a prerequisite to
the issuance of preliminary or
permanent injunctive relief, is neither
eliminated nor diminished in NEPA
cases. A showing of a NEPA violation
alone does not warrant injunctive relief
and does not satisfy the irreparable
harm requirement. See Monsanto Co. v.
Geertson Seed Farms, 561 U.S. 139, 157
(2010) (‘‘[T]he statements quoted [from
prior Ninth Circuit cases] appear to
presume that an injunction is the proper
remedy for a NEPA violation except in
unusual circumstances. No such thumb
on the scales is warranted.’’); Winter,
555 U.S. at 21–22, 31–33; see also
Amoco Prod. Co. v. Vill. of Gambell, 480
U.S. 531, 544–45 (1987) (rejecting
proposition that irreparable damage is
presumed when an agency fails to
evaluate thoroughly the environmental
impact of a proposed action). Moreover,
a showing of irreparable harm in a
NEPA case does not entitle a litigant to
an injunction or a stay. See Winter, 555
U.S. at 20 (‘‘A plaintiff seeking a
preliminary injunction must establish
that he is likely to succeed on the
merits, that he is likely to suffer
irreparable harm in the absence of
preliminary relief, that the balance of
equities tips in his favor, and that an
injunction is in the public interest.’’)
(emphasis added); Geertson Seed Farms,
561 U.S. at 157 (‘‘The traditional fourfactor test applies when a plaintiff seeks
a permanent injunction to remedy a
NEPA violation . . . . An injunction
should issue only if the traditional fourfactor test is satisfied.’’).
Consistent with the Supreme Court’s
analysis in Geertson Seed Farms,
agencies (as well as applicants) should
give practical consideration to measures
that might serve to anticipate, reduce, or
eliminate possible adverse effects from
a project. To the extent such measures
are incorporated into an agency’s ROD,
they may provide grounds upon which
a court, presented with an alleged
violation of NEPA, might reasonably
conclude that injunctive relief is not
warranted because the measures prevent
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any irreparable harm from occurring.
See § 1505.3. For example, regular
inspections or requirements that
applicants obtain third-party insurance,
for example, might constitute such
measures in certain circumstances.
Inspections can reveal defects before
they cause harm. Third-party insurers,
because of their exposure to risk, have
an economic incentive to conduct
thorough inspections, facilitating
discovery of defects. Such measures
would be relevant to whether a valid
claim of irreparable harm has been
established.
CEQ also proposed to state that any
actions to review, enjoin, vacate, stay, or
alter an agency decision on the basis of
an alleged NEPA violation be raised as
soon as practicable to avoid or minimize
any costs to agencies, applicants, or any
affected third parties. As reflected in
comments received in response to the
ANPRM, delays have the potential to
result in substantial costs. CEQ also
proposed to replace the language
providing that trivial violations should
not give rise to an independent cause of
action with language that states that
minor, non-substantive errors that have
no effect on agency decision making
shall be considered harmless and shall
not invalidate an agency action.
Invalidating actions due to minor errors
does not advance the goals of the statute
and adds delays and costs. CEQ
includes paragraph (d) in the final rule
with a change to clarify that it is CEQ’s
intention that the regulations create no
presumption that violation of NEPA is
a basis for injunctive relief or for a
finding of irreparable harm. As noted
above, NEPA is a procedural statute and
any harm is thus reparable by providing
the necessary environmental
documentation in accordance with the
Act and these regulations. CEQ also
adds ‘‘vacate, or otherwise’’ to the types
of actions that may alter a decision to
address situations where there may be a
nationwide or other vacatur and ‘‘after
final agency action’’ to clarify when the
actions should be raised.
Finally, CEQ proposed to add a new
paragraph (e), ‘‘Severability,’’ to
§ 1500.3 to address the possibility that
this rule, or portions of this rule, may
be challenged in litigation. CEQ
finalizes this paragraph as proposed,
correcting the cross reference. As stated
in the NPRM, it is CEQ’s intention that
the individual sections of this rule be
severable from each other, and that if a
court stays or invalidates any sections or
portions of the regulations, this will not
affect the validity of the remainder of
the sections, which will continue to be
operative.
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43319
4. Reducing Paperwork and Delay
(§§ 1500.4 and 1500.5)
In the NPRM, CEQ proposed to
reorder the paragraphs in § 1500.4,
‘‘Reducing paperwork,’’ and § 1500.5,
‘‘Reducing delay,’’ for a more logical
ordering, consistent with the three
levels of NEPA review. CEQ also
proposed edits to §§ 1500.4 and 1500.5
for consistency with proposed edits to
the cross-referenced sections. CEQ
makes these proposed changes in the
final rule. Additionally, the final rule
revises the language in paragraphs (a)
and (b) of §§ 1500.4 and 1500.5 to make
the references to CEs and FONSIs
consistent with the language in
§§ 1501.4(a) and 1501.6(a), respectively.
CEQ also proposed conforming edits to
§ 1500.4(c) to broaden the paragraph to
include EAs by changing
‘‘environmental impact statements’’ to
‘‘environmental documents’’ and
changing ‘‘setting’’ to ‘‘meeting’’ since
page limits would be required for both
EAs and EISs. CEQ makes these changes
in the final rule and corrects the crossreference. CEQ revises paragraph (h) of
§ 1500.4 to add ‘‘e.g.’’ to the citations to
clarify that these are just examples of
the useful portions of EISs and to
correct the cross-reference to
background material from § 1502.16 to
§ 1502.1. CEQ revises the citations in
paragraph (k) of § 1500.4 to make them
sequential. Finally, CEQ revises
paragraph (d) of § 1500.5 for clarity.
5. Agency Authority (§ 1500.6)
CEQ proposed to add a savings clause
to § 1500.6, ‘‘Agency authority,’’ to
clarify that the CEQ regulations do not
limit an agency’s other authorities or
legal responsibilities. This clarification
is consistent with section 104 of NEPA
(42 U.S.C. 4334), section 2(g) of E.O.
11514, and the 1978 regulations, but
acknowledges the possibility of different
statutory authorities that may set forth
different requirements, such as
timeframes. In the final rule, CEQ makes
the proposed changes and clarifies
further that agencies interpret the
provisions of the Act as a mandate to
view the agency’s policies and missions
in the light of the Act’s national
environmental objectives, to the extent
NEPA is consistent with the agency’s
existing authority. This is consistent
with E.O. 11514, which provides that
Federal agencies shall ‘‘[i]n carrying out
their responsibilities under the Act and
this Order, comply with the [CEQ
regulations] except where such
compliance would be inconsistent with
statutory requirements.’’ E.O. 11514, as
amended by E.O. 11991, sec. 2(g). CEQ
also proposed to clarify that compliance
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with NEPA means the Act ‘‘as
interpreted’’ by the CEQ regulations.
CEQ makes this change in the final rule
in § 1500.6, as well as in §§ 1502.2(d)
and 1502.9(b), to clarify that agencies
should implement the statute through
the framework established in these
regulations. Finally, CEQ revises the
sentence explaining the meaning of the
phrase ‘‘to the fullest extent possible’’ in
section 102, to replace ‘‘unless existing
law applicable to the agency’s
operations expressly prohibits or makes
compliance impossible’’ with
‘‘consistent with § 1501.1.’’ As
discussed in section II.C.1, § 1501.1 sets
forth threshold considerations for
assessing whether NEPA applies or is
otherwise fulfilled, including
considerations related to other statutes
with which agencies must comply.
C. Revisions to NEPA and Agency
Planning (Part 1501)
CEQ proposed significant changes to
modernize and clarify part 1501. CEQ
proposed to replace the current 40 CFR
1501.1, ‘‘Purpose,’’ because it is
unnecessary and duplicative, with a
new section, ‘‘NEPA threshold
applicability analysis,’’ to address
threshold considerations of NEPA
applicability. CEQ proposed to add
additional sections to address the level
of NEPA review and CEs. CEQ further
proposed to consolidate and clarify
provisions on EAs and FONSIs, and
relocate to part 1501 from part 1502 the
provisions on tiering and incorporation
by reference. CEQ also proposed to set
presumptive time limits for the
completion of NEPA reviews, and
clarify the roles of lead and cooperating
agencies to further the OFD policy and
encourage more efficient and timely
NEPA reviews. CEQ makes many of
these changes in the final rule with
modifications as discussed further in
this section.
1. NEPA Thresholds (§ 1501.1)
Since the enactment of NEPA, courts
have examined the applicability of
NEPA to proposed agency activities and
decisions, based on a variety of
considerations. Courts have found that
NEPA is inapplicable when an agency’s
statutory obligations clearly or
fundamentally conflict with NEPA
compliance; when Congress has
established requirements under another
statute that displace NEPA compliance
in some fashion; when an agency is
carrying out a non-discretionary duty or
obligation (in whole or in part); or when
environmental review and public
participation procedures under another
statute satisfy the requirements (i.e., are
functionally equivalent) of NEPA.
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CEQ proposed a new § 1501.1 to
provide a series of considerations to
assist agencies in a threshold analysis
for determining whether NEPA applies
to a proposed activity or whether NEPA
is satisfied through another mechanism.
CEQ proposed to title this section
‘‘NEPA threshold applicability analysis’’
in the NPRM. CEQ includes this
provision in the final rule at § 1501.1,
‘‘NEPA thresholds.’’ This section
recognizes that the application of NEPA
by Congress and the courts has evolved
over the last four decades in light of
numerous other statutory requirements
implemented by Federal agencies. CEQ
reorders these considerations in the
final rule and adds a new consideration
to paragraph (a)(1)—whether another
statute expressly exempts a proposed
activity or decision from NEPA. See,
e.g., 15 U.S.C. 793(c)(1) (exempting
Environmental Protection Agency (EPA)
actions under the Clean Air Act); 33
U.S.C. 1371(c)(1) (exempting certain
EPA actions under the Clean Water Act);
42 U.S.C. 5159 (exempting certain
actions taken or assistance provided
within a Presidentially declared
emergency or disaster area); and 16
U.S.C. 3636(a) (exempting regulation of
Pacific salmon fishing).
The second consideration in
paragraph (a)(2) is whether compliance
with NEPA would clearly and
fundamentally conflict with the
requirements of another statute. See,
e.g., Flint Ridge Dev. Co. v. Scenic
Rivers Ass’n, 426 U.S. 776, 791 (1976)
(concluding that the Secretary of
Housing and Urban Development could
not comply with NEPA’s EIS
requirement because it conflicted with
requirements of the Interstate Land
Sales Full Disclosure Act). The third
consideration in paragraph (a)(3) is
whether compliance with NEPA would
be inconsistent with congressional
intent expressed in another statute. See,
e.g., Douglas County v. Babbitt, 48 F.3d
1495, 1503 (9th Cir. 1995) (holding that
NEPA was displaced by the Endangered
Species Act’s procedural requirements
for designating critical habitat); and
Merrell v. Thomas, 807 F.2d 776, 778–
80 (9th Cir. 1986) (holding that NEPA
did not apply to the EPA’s registration
of pesticides under the Federal
Insecticide, Fungicide, and Rodenticide
Act (FIFRA)).
The fourth and fifth considerations in
paragraphs (a)(4) and (5) are whether the
proposed activity or decision meets the
definition of a major Federal action
generally and whether the proposed
activity or decision does not meet the
definition because it is nondiscretionary such that the agency lacks
authority to consider environmental
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effects as part of its decision-making
process. See, e.g., Pub. Citizen, 541 U.S.
at 768–70 (concluding that, because the
Federal Motor Carrier Safety
Administration lacked discretion to
prevent the entry of Mexican trucks into
the United States, the agency did not
need to consider under NEPA the
environmental effects of Mexican
trucks’ cross-border operations that the
President authorized); Nat’l Wildlife
Fed’n v. Sec’y of the U.S. Dep’t. of
Transp., 2020 U.S. App. LEXIS 17723,
at *15–18 (6th Cir. June 5, 2010)
(applying Public Citizen and finding
NEPA not applicable as EPA lacked
discretion to reject Clean Water Act oil
spill response plans that satisfied
enumerated criteria); Citizens Against
Rails-To-Trails v. Surface Transp. Bd.,
267 F.3d 1144, 1152–54 (D.C. Cir. 2001)
(concluding that because the Surface
Transportation Board lacked significant
discretion regarding issuance of a
certificate of interim trail use under the
National Trails System Act, NEPA was
not applicable); South Dakota v.
Andrus, 614 F.2d 1190, 1193–95 (8th
Cir. 1980) (concluding that the granting
of a mineral patent for a mining claim
was a non-discretionary, ministerial act
and non-discretionary acts should be
exempt from NEPA). Consistent with
Public Citizen, 541 U.S. at 768–70,
NEPA applies to the portion of an
agency decision that is discretionary. In
Public Citizen, the Supreme Court
considered whether the Federal Motor
Carrier Safety Administration was
required to consider the effects of a nondiscretionary action in its NEPA
document and concluded that it was not
required to do so because it had no
authority to prevent the cross-border
entry of Mexican motor carriers, which
was the result of presidential action. Id.
Finally, the sixth consideration in
paragraph (a)(6) is whether the proposed
action is an action for which another
statute’s requirements serve the function
of agency compliance with NEPA. See,
e.g., Envtl. Def. Fund, Inc. v. U.S. EPA,
489 F.2d 1247, 1256–57 (D.C. Cir. 1973)
(concluding that the substantive and
procedural standards of FIFRA were
functionally equivalent to NEPA and
therefore formal compliance was not
necessary); W. Neb. Res. Council v. U.S.
EPA, 943 F.2d 867, 871–72 (8th Cir.
1991) (finding that the procedures of the
Safe Drinking Water Act were
functionally equivalent to those
required by NEPA); Cellular Phone
Taskforce v. Fed. Commc’ns Comm’n,
205 F.3d 82, 94–95 (2d Cir. 2000)
(concluding that the procedures
followed by the Federal
Communications Commission were
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functionally compliant with EA and
FONSI requirements under NEPA).
Paragraph (b) of § 1501.1 clarifies that
agencies can make this determination in
their agency NEPA procedures in
accordance with § 1507.3(d) or on a
case-by-case basis. The final rule adds a
new paragraph (b)(1) to state that
agencies may request assistance from
CEQ in making a case-by-case
determination under this section, and a
new paragraph (b)(2) to require agencies
to consult with other Federal agencies
for their concurrence when making a
determination where more than one
Federal agency administers the statute
(e.g., the Endangered Species Act
(ESA)). Agencies may document these
consultations, as appropriate. Agencies
will only apply the thresholds in this
section after consideration on a case-bycase basis, or after agencies have
determined whether and how to
incorporate them into their own agency
NEPA procedures.
Some agencies already include
information related to the applicability
of NEPA to their actions in their agency
NEPA procedures. For example, EPA’s
NEPA procedures include an
applicability provision that explains
which EPA actions NEPA does not
apply to, including actions under the
Clean Air Act and certain actions under
the Clean Water Act. See 40 CFR 6.101.
The final rule codifies the agency
practice of including this information in
agency NEPA procedures but also
provides agencies’ flexibility to make
case-by-case determinations as needed.
2. Apply NEPA Early in the Process
(§ 1501.2)
CEQ proposed to amend § 1501.2,
‘‘Apply NEPA early in the process,’’
designating the introductory paragraph
as paragraph (a) and changing ‘‘shall’’ to
‘‘should’’ and ‘‘possible’’ to
‘‘reasonable.’’ CEQ makes these changes
in the final rule. Agencies need the
discretion to structure the timing of
their NEPA processes to align with their
decision-making processes, consistent
with their statutory authorities.
Agencies also need flexibility to
determine the appropriate time to start
the NEPA process, based on the context
of the particular proposed action and
governed by the rule of reason, so that
the NEPA analysis meaningfully
informs the agency’s decision. The
appropriate time to begin the NEPA
process is dependent on when the
agency has sufficient information, and
on how it can most effectively integrate
the NEPA review into the agency’s
decision-making process. Further, some
courts have viewed this provision as a
legally enforceable standard, rather than
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an opportunity for agencies to integrate
NEPA into their decision-making
programs and processes. See, e.g., N.M.
ex rel. Richardson v. Bureau of Land
Mgmt., 565 F.3d 683 (10th Cir. 2009);
Metcalf v. Daley, 214 F.3d 1135 (9th Cir.
2000). As discussed above, only final
agency action is subject to judicial
review under the APA. CEQ’s view is
that agencies should have discretion
with respect to timing, consistent with
the regulatory provisions in §§ 1501.11
and 1502.4 for deferring NEPA analysis
to appropriate points in the decisionmaking process. As noted in the NPRM,
this change is consistent with CEQ
guidance that agencies should
‘‘concentrate on relevant environmental
analysis’’ in their EISs rather than
‘‘produc[ing] an encyclopedia of all
applicable information.’’ Timely
Environmental Reviews Guidance,
supra note 29; see also §§ 1500.4(b),
1502.2(a). Therefore, CEQ makes these
changes to clarify that agencies have
discretion to structure their NEPA
processes in accordance with the rule of
reason. CEQ also proposed to change
‘‘possible’’ to ‘‘reasonable’’ in paragraph
(b)(4)(iii) and ‘‘shall’’ to ‘‘should’’ in the
introductory paragraph of § 1502.5 for
consistency with the changes to
§ 1501.2. CEQ makes these changes in
the final rule.
CEQ also proposed to change
‘‘planning and decisions reflect
environmental values’’ to ‘‘agencies
consider environmental impacts in their
planning and decisions’’ in paragraph
(a). CEQ makes this change in the final
rule because ‘‘consider environmental
impacts’’ provides more explicit
direction to agencies and is more
consistent with the Act and the CEQ
regulations.
CEQ proposed to redesignate the
remaining paragraphs in § 1501.2 to list
out other general requirements for
agencies. In paragraph (b)(1), the final
rule removes the direct quote of NEPA
consistent with the Federal Register’s
requirements for the Code of Federal
Regualtions. In paragraph (b)(2), CEQ
proposed to clarify that agencies should
consider economic and technical
analyses along with environmental
effects. This change is consistent with
section 102(2)(B) of NEPA, which
directs agencies, in consultation with
CEQ, to identify and develop methods
and procedures to ensure environmental
amenities and values are considered
along with economic and technical
considerations in decision making. CEQ
makes this change in the final rule and
revises the second sentence in this
paragraph to qualify that agencies must
review and publish environmental
documents and appropriate analyses at
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43321
the same time as other planning
documents ‘‘whenever practicable.’’
CEQ recognizes that it is not always
practicable to publish such documents
at the same time because it can delay
publication of one or the other. Finally,
CEQ proposed to amend paragraph
(b)(4)(ii) to change ‘‘agencies’’ to
‘‘governments’’ consistent with and in
support of government-to-government
consultation pursuant to E.O. 13175 74
and E.O. 13132, ‘‘Federalism.’’ 75 CEQ
makes these changes in the final rule.
3. Determine the Appropriate Level of
NEPA Review (§ 1501.3)
As discussed in the NPRM, NEPA
requires a ‘‘detailed statement’’ for
‘‘major Federal actions significantly
affecting the quality of the human
environment.’’ 42 U.S.C. 4332(2)(C). To
determine whether an action requires
such a detailed statement, the 1978
regulations provided three levels of
review for Federal agencies to assess
proposals for agency action.
Specifically, the CEQ regulations allow
agencies to review expeditiously those
actions that normally do not have
significant effects by using CEs or, for
actions that are not likely to have
significant effects, by preparing EAs. By
using CEs and EAs whenever
appropriate, agencies then can focus
their limited resources on those actions
that are likely to have significant effects
and require the ‘‘detailed statement,’’ or
EIS, required by NEPA.
While the 1978 CEQ regulations
provided for these three levels of NEPA
review, they do not clearly set out the
decisional framework by which agencies
should assess their proposed actions
and select the appropriate level of
review. To provide this direction and
clarity, the NPRM proposed to add a
new section at § 1501.3, ‘‘Determine the
appropriate level of NEPA review.’’ The
proposal described the three levels of
NEPA review and the basis upon which
an agency makes a determination
regarding the appropriate level of
review for a proposed action. CEQ
includes the proposal in the final rule
at paragraph (a) of § 1501.3.
CEQ proposed to address the
consideration of significance in
paragraph (b) since it is central to
determining the appropriate level of
review. CEQ proposed to move the
language from 40 CFR 1508.27,
‘‘Significantly,’’ since it did not contain
a definition, but rather set forth factors
for considering whether an effect is
significant, to paragraph (b). CEQ also
proposed to eliminate most of the
74 Supra
75 64
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factors in favor of a simpler, more
flexible approach for agencies to assess
significance. Specifically, CEQ proposed
to change ‘‘context’’ to ‘‘potentially
affected environment’’ and ‘‘intensity’’
to ‘‘degree’’ to provide greater clarity as
to what agencies should consider in
assessing potential significant effects.
The phrase ‘‘potentially affected
environment’’ relates more closely to
physical, ecological, and socioeconomic aspects than ‘‘context.’’ The
final rule reorganizes several factors
formerly categorized under ‘‘intensity’’
to clarify further this distinction. The
final rule uses the term ‘‘degree’’
because some effects may not
necessarily be of an intense or severe
nature, but nonetheless should be
considered when determining
significance. While 40 CFR 1508.27
used several different words to explain
what was meant by ‘‘intensity,’’ it also
used ‘‘degree’’ numerous times.
Therefore, the consistent use of
‘‘degree’’ throughout is clearer. In the
final rule, CEQ includes these proposed
changes in paragraph (b) with some
additional revisions in response to
comments. CEQ clarifies in paragraph
(b)(1) that agencies ‘‘should’’ (rather
than ‘‘may’’) consider the affected area
specific to the proposed action,
consistent with the construction of
paragraph (b)(2), and the affected area’s
resources. The final rule includes one
example, listed species and designated
critical habitat under the Endangered
Species Act, but this could include any
type of resource such as historic,
cultural, or park lands. The final rule
also modifies the example of
significance varying with the setting,
because there was some
misunderstanding of the proposed
change from ‘‘world’’ to ‘‘Nation.’’ This
sentence merely serves as an example.
Consistent with the NPRM, paragraph
(b)(2) addresses considerations of the
degree of effects. CEQ moves short- and
long-term effects from ‘‘affected
environment’’ in (b)(1) to ‘‘degree’’ in
paragraph (b)(2)(i). CEQ proposed to
exclude consideration of controversy
(40 CFR 1508.27(b)(4)) because the
extent to which effects may be
controversial is subjective and is not
dispositive of effects’ significance.
Further, courts have interpreted
controversy to mean scientific
controversy, which the final rule
addresses within the definition of
effects, as the strength of the science
informs whether an effect is reasonably
foreseeable. The controversial nature of
a project is not relevant to assessing its
significance.
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Additionally, CEQ proposed to
remove the reference in 40 CFR
1508.27(b)(7) to ‘‘[s]ignificance cannot
be avoided by terming an action
temporary or by breaking it down into
small component parts’’ because this is
addressed in the criteria for scope in
§§ 1501.9(e) and 1502.4(a), which would
provide that agencies evaluate in a
single EIS proposals or parts of
proposals that are related closely
enough to be, in effect, a single course
of action. Commenters noted that
§§ 1501.9 and 1502.4 are applicable
only to EISs. Therefore, in the final rule
CEQ includes a sentence in paragraph
(b) stating that agencies should consider
connected actions when determining
the significance of the effects of the
proposed action.
4. Categorical Exclusions (§ 1501.4)
Under the 1978 regulations, agencies
could categorically exclude actions from
detailed review where the agency has
found in its agency NEPA procedures
that the action normally would not have
significant effects. Over the past 4
decades, Federal agencies have
developed more than 2,000 CEs.76 CEQ
estimates that each year, Federal
agencies apply CEs to approximately
100,000 Federal agency actions that
typically require little or no
documentation.77 While CEs are the
most commonly used level of NEPA
review, CEQ has addressed CE
development and implementation in
only one comprehensive guidance
document, see CE Guidance, supra note
29, and the 1978 regulations did not
address CEs in detail.
In response to the ANPRM, many
commenters requested that CEQ update
the NEPA regulations to provide more
detailed direction on the application of
CEs. To provide greater clarity, CEQ
proposed to add a new section on CEs
in proposed § 1501.4, ‘‘Categorical
exclusions,’’ to address in more detail
the process by which an agency
considers whether a proposed action is
categorically excluded under NEPA.
Proposed paragraph (a) stated that
agencies identify CEs in their NEPA
procedures. CEQ adds this paragraph to
the final rule, reiterating the
requirement in § 1507.3(e)(2)(ii) that
agencies establish CEs in their agency
76 See Council on Environmental Quality, List of
Federal Agency Categorical Exclusions (June 18,
2020), https://ceq.doe.gov/nepa-practice/
categorical-exclusions.html.
77 See, e.g., Council on Environmental Quality,
The Eleventh and Final Report on the National
Environmental Policy Act Status and Progress for
American Recovery and Reinvestment Act of 2009
Activities and Projects (Nov. 2, 2011), https://
ceq.doe.gov/docs/ceq-reports/nov2011/CEQ_ARRA_
NEPA_Report_Nov_2011.pdf.
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NEPA procedures. The NPRM proposed
in paragraph (b) to set forth the
requirement to consider extraordinary
circumstances once an agency
determines that a CE covers a proposed
action, consistent with the current
requirement in 40 CFR 1508.4. CEQ
includes this provision in the final rule,
changing the language from passive to
active voice. CEQ proposed in
paragraph (b)(1) to provide that, when
extraordinary circumstances are present,
agencies may consider whether
mitigating circumstances, such as the
design of the proposed action to avoid
effects that create extraordinary
circumstances, are sufficient to allow
the proposed action to be categorically
excluded. CEQ includes this paragraph
in the final rule, but revises it to address
confusion over whether CEQ is creating
a ‘‘mitigated CE.’’ In the final rule,
paragraph (b)(1) provides that an agency
can categorically exclude a proposed
action when an environmental resource
or condition identified as a potential
extraordinary circumstance is present if
the agency determines that there are
‘‘circumstances that lessen the impacts’’
or other conditions sufficient to avoid
significant effects. This paragraph
clarifies that agencies’ extraordinary
circumstances criteria are not intended
to necessarily preclude the application
of a CE merely because a listed factor
may be present or implicated. Courts
have rejected a ‘‘mere presence’’ test for
CEs. Sierra Club v. U.S. Forest Serv., 828
F.3d 402 (6th Cir. 2016); Sierra Club v.
Bosworth, 510 F.3d 1016 (9th Cir. 2007);
Utah Envtl. Cong. v. Bosworth, 443 F.3d
732 (10th Cir. 2006); Sw. Ctr. for
Biological Diversity v. U.S. Forest Serv.,
100 F.3d 1443, 1450 (9th Cir. 1996); cf.
Rhodes v. Johnson, 153 F.3d 785 (7th
Cir. 1998). Instead, the agency may
consider in light of the extraordinary
circumstances criteria, whether the
proposed action would take place in
such a way that it would not have
significant effects, or whether the
agency could modify the proposed
action to avoid the extraordinary
circumstances so that the action remains
eligible for categorical exclusion. While
this reflects current practice for some
agencies,78 this revision would assist
agencies as they consider whether to
categorically exclude an action that
would otherwise be considered in an EA
and FONSI.
Finally, CEQ proposed paragraph
(b)(2) to address agencies’ obligation to
prepare an EA or EIS, as appropriate, if
the agency cannot categorically exclude
78 See, e.g., Forest Service categorical exclusions,
36 CFR 220.6(b)(2); surface transportation
categorical exclusions, 23 CFR 771.116–771.118.
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a proposed action. CEQ includes this
provision in the final rule revising the
language to active voice and making it
consistent with the format of paragraph
(b).
CEQ invited comment on the
proposed revisions and asked whether it
should address any other aspects of CEs
in its regulations. CEQ also invited
comment on whether it should establish
government-wide CEs in its regulations
to address routine administrative
activities, for example, internal orders
or directives regarding agency
operations, procurement of office
supplies and travel, and rulemakings to
establish administrative processes such
as those established under the Freedom
of Information Act or Privacy Act. After
considering the comments, as discussed
in the Final Rule Response to
Comments, CEQ is not including any
additional provisions on CEs in the final
rule.
5. Environmental Assessments
(§ 1501.5)
Under the 1978 regulations, when an
agency has not categorically excluded a
proposed action, the agency can prepare
an EA to document its effects analysis.
If the analysis in the EA demonstrates
that the action’s effects would not be
significant, the agency documents its
reasoning in a FONSI, which completes
the NEPA process; otherwise, the
agency uses the EA to help prepare an
EIS. CEQ estimates that Federal agencies
prepare over 10,000 EAs each year.79
CEQ proposed to consolidate the
requirements for EAs that are scattered
throughout the 1978 regulations into a
new § 1501.5, ‘‘Environmental
assessments.’’ CEQ proposed to revise
paragraph (a) to state when agencies are
required to prepare EAs. CEQ proposed
minor clarifying edits to paragraph (b),
which states that agencies may prepare
an EA to assist in agency planning and
decision making. The NPRM proposed
to move the operative language
regarding the requirements for an EA
from the definition of EA in 40 CFR
1508.9 to paragraph (c). CEQ makes
these proposed changes in the final rule.
Under the final rule, the format for an
EA is flexible and responsive to agency
decision-making needs and the
circumstances of the particular proposal
for agency action. Requirements for
documenting the proposed action and
alternatives in an EA continue to be
79 See, e.g., Council on Environmental Quality,
Fourth Report on Cooperating Agencies in
Implementing the Procedural Requirements of the
National Environmental Policy Act, Attachment A
(Oct. 4, 2016), https://ceq.doe.gov/docs/ceq-reports/
Attachment-A-Fourth-Cooperating-Agency-Report_
Oct2016.pdf.
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more limited than EIS requirements. An
agency must briefly describe the need
for the proposed action by describing
the existing conditions, projected future
conditions, and statutory obligations
and authorities that may relate to the
proposed agency action with crossreferences to supporting documents.
The final rule continues to require
agencies to describe briefly the
proposed action and any alternatives it
is considering that would meet the need
of the proposed agency action. For
actions to protect or restore the
environment, without unresolved
conflicts concerning alternative uses of
available resources, CEQ expects
agencies to examine a narrower range of
alternatives to the proposed action.
When the action may have significant
impacts, the agency should consider
reasonable alternatives that would avoid
those impacts or otherwise mitigate
those impacts to less than significant
levels.
An agency does not need to include
a detailed discussion of each alternative
in an EA, nor does it need to include
any detailed discussion of alternatives
that it eliminated from study. While
agencies have discretion to include
more information in their EAs than is
required to determine whether to
prepare an EIS or a FONSI, they should
carefully consider their reasons and
have a clear rationale for doing so.
Agencies should focus on analyzing
material effects and alternatives, rather
than marginal details that may
unnecessarily delay the environmental
review process.
Under the final rule, an agency must
describe the environmental impacts of
its proposed action and alternatives,
providing enough information to
support a decision to prepare either a
FONSI or an EIS. The EA should focus
on whether the proposed action
(including mitigation) would
‘‘significantly’’ affect the quality of the
human environment and tailor the
length of the discussion to the relevant
effects. The agency may contrast the
impacts of the proposed action and
alternatives with the current and
expected future conditions of the
affected environment in the absence of
the action, which constitutes
consideration of a no-action alternative.
Under the final rule, agencies should
continue to list persons, relevant
agencies, and applicants involved in
preparing the EA to document agency
compliance with the requirement to
involve the public in preparing EAs to
the extent practicable, consistent with
paragraph (e). This may include
incorporation by reference of records
related to compliance with other
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43323
environmental laws such as the
National Historic Preservation Act,
Clean Water Act, Endangered Species
Act, or Clean Air Act.
CEQ adds a new paragraph (d) to the
final rule to move the language from 40
CFR 1502.5(b) regarding when to begin
preparing an EA that is required for an
application to the agency.80 Agencies
may specify in their NEPA procedures
when an application is complete such
that it can commence the NEPA process.
While the NPRM did not propose this
change, the move is consistent with
CEQ’s proposal to consolidate EA
requirements in § 1501.5.
The final rule continues to provide
that agencies may prepare EAs by and
with other agencies, applicants, and the
public. Modern information technology
can help facilitate this collaborative EA
preparation, allowing the agency to
make a coordinated but independent
evaluation of the environmental issues
and assume responsibility for the scope
and content of the EA. CEQ proposed to
move the public involvement
requirements for EAs from the current
40 CFR 1501.4(b) to § 1501.5 and change
‘‘environmental’’ to ‘‘relevant’’ agencies
to include all agencies that may
contribute information that is relevant
to the development of an EA. CEQ
makes these changes in paragraph (e) in
the final rule. CEQ also adds to and
reorders the list to ‘‘the public, State,
Tribal, and local governments, relevant
agencies, and any applicants,’’ to
address some confusion by public
commenters that interpreted relevant to
modify the public and applicants. In
addition, this revision acknowledges
that there will not be an applicant in all
instances. Consistent with the 1978
regulations, the final rule does not
specifically require publication of a
draft EA for public review and
comment, but continues to require
agencies to reasonably involve the
public prior to completion of the EA, so
that they may provide meaningful input
on those subject areas that the agency
must consider in preparing the EA.
Depending on the circumstances, the
agency could provide adequate
information through public meetings or
by a detailed scoping notice, for
example. There is no single correct
approach for public involvement.
Rather, agencies should consider the
circumstances and have discretion to
conduct public involvement tailored to
the interested public, to available means
of communications to reach the
interested and affected parties, and to
80 CEQ also retains the statement in § 1502.5(b),
as proposed, with respect to EISs.
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the particular circumstances of each
proposed action.
The NPRM proposed to establish a
presumptive 75-page limit for EAs, but
allow a senior agency official to approve
a longer length and establish a new page
limit in writing. CEQ adds this new
requirement at paragraph (f) in the final
rule. As noted in the NPRM, while
Question 36a of the Forty Questions,
supra note 2, stated that EAs should be
approximately 10 to 15 pages, in
practice, such assessments are often
longer to address compliance with other
applicable laws, and to document the
effects of mitigation to support a FONSI.
To achieve the presumptive 75-page
limit, agencies should write all NEPA
environmental documents in plain
language, follow a clear format, and
emphasize important impact analyses
and relevant information necessary for
those analyses, rather than providing
extensive background material. An EA
should have clear and concise
conclusions and may incorporate by
reference data, survey results,
inventories, and other information that
support these conclusions, so long as
this information is reasonably available
to the public.
The presumptive EA page limit
promotes more readable documents and
provides agencies flexibility to prepare
longer documents, where necessary, to
support the agency’s analysis. This
presumptive page limit is consistent
with CEQ’s guidance on EAs, which
advises agencies to avoid preparing
lengthy EAs except in unusual cases
where a proposal is so complex that a
concise document cannot meet the goals
of an EA and where it is extremely
difficult to determine whether the
proposal could cause significant effects.
Page limits will encourage agencies to
identify the relevant issues, focus on
significant environmental impacts, and
prepare concise readable documents
that will inform decision makers as well
as the public. Voluminous, unfocused
environmental documents do not
advance the goals of informed decision
making or protection of the
environment.
CEQ proposed to add a new paragraph
(f) to § 1501.5 to clarify that agencies
also may apply, as appropriate, certain
provisions in part 1502 regarding
incomplete or unavailable information,
methodology and scientific accuracy,
and environmental review and
consultation requirements to EAs. CEQ
includes this new paragraph at
§ 1501.5(g) in the final rule.
In addition to the new § 1501.5, CEQ
incorporates reference to EAs in other
sections of the regulations to codify
existing agency practice where it would
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make the NEPA process more efficient
and effective. As discussed in section
II.C.9, CEQ makes a presumptive time
limit applicable to EAs in § 1501.10.
Further, for some agencies, it is a
common practice to have lead and
cooperating agencies coordinate in the
preparation of EAs where more than one
agency may have an action on a
proposal; therefore, CEQ adds EAs to
§§ 1501.7 and 1501.8, as discussed in
section II.C.7. Finally, as discussed in
section II.C.10, CEQ proposed to add
EAs to § 1501.11, ‘‘Tiering,’’ to codify
current agency practice of using EAs
where the effects of a proposed agency
action are not likely to be significant.
These include program decisions that
may facilitate later site-specific EISs as
well as the typical use of EAs as a
second-tier document tiered from an
EIS. CEQ makes these changes in the
final rule.
6. Findings of No Significant Impact
(§ 1501.6)
When an agency determines in its EA
that an EIS is not required, it typically
prepares a FONSI. The FONSI reflects
that the agency has engaged in the
necessary review of environmental
impacts under NEPA. The FONSI shows
that the agency examined the relevant
data and explained the agency findings
by providing a rational connection
between the facts presented in the EA
and the conclusions drawn in the
finding. Any finding should clearly
identify the facts found and the
conclusions drawn by the agency based
on those facts.
In response to the ANPRM, CEQ
received comments requesting that CEQ
update its regulations to consolidate
provisions and provide more detailed
requirements for FONSIs. CEQ proposed
to consolidate the operative language of
40 CFR 1508.13, ‘‘Finding of no
significant impact’’ with 40 CFR 1501.4,
‘‘Whether to prepare an environmental
impact statement,’’ in the proposed
§ 1501.6, ‘‘Findings of no significant
impact.’’ CEQ proposed to strike
paragraph (a) as the requirements in that
paragraph are addressed in
§ 1507.3(d)(2) (§ 1507.3(e)(2) in the final
rule). As noted in section II.C.5, CEQ
proposed to move 40 CFR 1501.4(b) to
§ 1501.5, ‘‘Environmental assessments.’’
Similarly, CEQ proposed to strike 40
CFR 1501.4(d), because § 1501.9,
‘‘Scoping,’’ addresses this requirement.
CEQ makes these changes in the final
rule.
CEQ proposed to make 40 CFR
1501.4(e) the new § 1501.6(a), and revise
the language to clarify that an agency
must prepare a FONSI when it
determines that a proposed action will
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not have significant effects based on the
analysis in the EA, consistent with the
definition of FONSI. The proposed rule
had erroneously included the standard
for preparing an EA—‘‘is not likely to
have significant effects.’’ CEQ proposed
to clarify in paragraph (a)(2) that the
circumstances listed in paragraphs
(a)(2)(i) and (ii) are the situations where
the agency must make a FONSI
available for public review. CEQ makes
these changes in the final rule.
CEQ proposed to move the operative
requirement that a FONSI include the
EA or a summary from the definition of
FONSI in 40 CFR 1508.13 to a new
paragraph (b). CEQ also proposed to
change the requirement that the FONSI
include a summary of the EA to
‘‘incorporate it by reference.’’ Consistent
with § 1501.12, in order to incorporate
the EA by reference, the agency would
need to briefly summarize it. Making
this change ensures that the EA is
available to the public. CEQ makes these
changes in the final rule.
Finally, CEQ proposed a new
paragraph (c) to address mitigation,
which CEQ includes in the final rule.
The first sentence addresses mitigation
generally in a FONSI, requiring agencies
to state the authority for any mitigation
adopted and any applicable monitoring
or enforcement provisions. This
sentence applies to all FONSIs. CEQ
omits the ‘‘means of’’ mitigation from
the final rule because it is unnecessary
and many commenters misunderstood
its meaning or found it confusing. The
second sentence codifies the practice of
mitigated FONSIs, consistent with
CEQ’s Mitigation Guidance.81 This
provision requires the agency to identify
the enforceable mitigation requirements
and commitments, which are those
mitigation requirements and
commitments needed to reduce the
effects below the level of significance.82
When preparing an EA, many agencies
develop, consider, and commit to
mitigation measures to avoid, minimize,
rectify, reduce, or compensate for
potentially significant adverse
environmental impacts that would
otherwise require preparation of an EIS.
An agency can commit to mitigation
81 The Mitigation Guidance, supra note 29,
amended and supplemented the Forty Questions,
supra note 2, specifically withdrawing Question 39
insofar as it suggests that mitigation measures
developed during scoping or in an EA ‘‘[do] not
obviate the need for an EIS.’’
82 As discussed in sections I.B.1 and II.B, NEPA
is a procedural statute and does not require
adoption of a mitigation plan. However, agencies
may consider mitigation measures that would
avoid, minimize, rectify, reduce, or compensate for
potentially significant adverse environmental
impacts and may require mitigation pursuant to
substantive statutes.
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measures for a mitigated FONSI when it
can ensure that the mitigation will be
performed, when the agency expects
that resources will be available, and
when the agency has sufficient legal
authorities to ensure implementation of
the proposed mitigation measures. CEQ
does not intend this codification of CEQ
guidance to create a different standard
for analysis of mitigation for a
‘‘mitigated FONSI,’’ but to provide
clarity regarding the use of FONSIs.
7. Lead and Cooperating Agencies
(§§ 1501.7 and 1501.8)
The 1978 CEQ regulations created the
roles of lead agency and cooperating
agencies for NEPA reviews, which are
critical for actions, such as non-Federal
projects, requiring the approval or
authorization of multiple agencies.
Agencies need to coordinate and
synchronize their NEPA processes to
ensure an efficient environmental
review that does not cause delays. In
recent years, Congress and several
administrations have worked to
establish a more synchronized
procedure for multi-agency NEPA
reviews and related authorizations,
including through the development of
expedited procedures such as the
section 139 process and FAST–41. In
response to the ANPRM, CEQ received
comments requesting that CEQ update
its regulations to clarify the roles of lead
and cooperating agencies.
CEQ proposed a number of
modifications to § 1501.7, ‘‘Lead
agencies,’’ and § 1501.8, ‘‘Cooperating
agencies,’’ (40 CFR 1501.5 and 1501.6,
respectively, in the 1978 regulations) to
improve interagency coordination, make
development of NEPA documents more
efficient, and facilitate implementation
of the OFD policy. As stated in the
NPRM, CEQ intends these modifications
to improve the efficiency and outcomes
of the NEPA process—including cost
reduction, improved relationships, and
better outcomes that avoid litigation—
by promoting environmental
collaboration.83 These modifications are
consistent with Questions 14a and 14c
of the Forty Questions, supra note 2.
CEQ proposed to apply §§ 1501.7 and
1501.8 to EAs as well as EISs consistent
with agency practice. CEQ makes these
changes in the final rule, but clarifies
that the provisions apply to ‘‘complex’’
EAs and not routine EAs where
83 See, e.g., Federal Forum on Environmental
Collaboration and Conflict Resolution,
Environmental Collaboration and Conflict
Resolution (ECCR): Enhancing Agency Efficiency
and Making Government Accountable to the People
(May 2, 2018), https://ceq.doe.gov/docs/nepapractice/ECCR_Benefits_Recommendations_Report_
%205-02-018.pdf.
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involving multiple agencies could slow
down an already efficient and effective
process.84
CEQ proposed to clarify in § 1501.7(d)
that requests for lead agency
designations should be sent in writing
to the senior agency officials of the
potential lead agencies. CEQ makes this
change in the final rule. CEQ did not
propose any changes to paragraphs (e)
and (f) of § 1501.7, but makes clarifying
edits by reorganizing phrases and
changing the language to active voice in
the final rule.
Consistent with the OFD policy to
ensure coordinated and timely reviews,
CEQ proposed to add a new paragraph
(g) to § 1501.7 to require that Federal
agencies evaluate proposals involving
multiple Federal agencies in a single EIS
and issue a joint ROD 85 or single EA
and joint FONSI when practicable. CEQ
adds this paragraph to the final rule
with edits to the EA sentence to make
the language consistent with the EIS
sentence.
CEQ proposed to move language from
the cooperating agency provision, 40
CFR 1501.6(a), that addresses the lead
agency’s responsibilities with respect to
cooperating agencies to proposed
paragraph (h) in § 1501.7 so that all of
the lead agency’s responsibilities are in
a single section. CEQ also proposed to
clarify in paragraph (h)(4) that the lead
agency is responsible for determining
the purpose and need, and alternatives
in consultation with any cooperating
agencies.86 CEQ makes this move and
84 This is consistent with CEQ’s reports on
cooperating agencies, which have shown that use of
cooperating agencies for EAs has remained low.
Council on Environmental Quality, Attachment A,
The Fourth Report on Cooperating Agencies in
Implementing the Procedural Requirements of the
National Environmental Policy Act (NEPA) 1 (Oct.
2016), https://ceq.doe.gov/docs/ceq-reports/
Attachment-A-Fourth-Cooperating-Agency-Report_
Oct2016.pdf (percentage of EAs with cooperating
agencies was 6.8 percent for Fiscal Years 2012
through 2015); see also Council on Environmental
Quality, Attachment A, The Second Report on
Cooperating Agencies in Implementing the
Procedural Requirements of the National
Environmental Policy Act (NEPA) 2 (May 2012),
https://ceq.doe.gov/docs/ceq-reports/Cooperating_
Agency_Report_2005-11_Attachment_
23May2012.pdf (percentage of EAs with cooperating
agencies was 5.9 percent for Fiscal Years 2005
through 2011).
85 A ‘‘single ROD,’’ as used in E.O. 13807, is the
same as a ‘‘joint ROD,’’ which is a ROD addressing
all Federal agency actions covered in the single EIS
and necessary for a proposed project. 40 CFR
1508.25(a)(3). The regulations would provide
flexibility for circumstances where a joint ROD is
impracticable. Examples include the statutory
directive to issue a combined final EIS and ROD for
transportation actions and the FERC’s adjudicatory
process.
86 See OFD Framework Guidance, supra note 30,
sec. VIII.A.5 (‘‘The lead agency is responsible for
developing the Purpose and Need, identifying the
range of alternatives to be analyzed, identifying the
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addition in the final rule. In response to
comments, the final rule eliminates the
phrase ‘‘consistent with its
responsibility as lead agency’’ in
paragraph (h)(2) because it is nonspecific and could cause agencies to
reject germane and informative
scientific research.
CEQ proposed new paragraphs (i) and
(j) in § 1501.7, and (b)(6) and (7) in
§ 1501.8, to require development of and
adherence to a schedule for the
environmental review of and any
authorizations required for a proposed
action, and resolution of disputes and
other issues that may cause delays in
the schedule. CEQ includes these
provisions in the final rule with minor
edits for clarity. These provisions are
consistent with current practices at
agencies that have adopted elevation
procedures pursuant to various statutes
and directives, including 23 U.S.C. 139,
FAST–41, and E.O. 13807. In response
to comments, CEQ includes a new
paragraph (b)(8) in § 1501.8 requiring
cooperating agencies to jointly issue
environmental documents with the lead
agency, to the maximum extent
practicable. This addition is consistent
with the goal of interagency cooperation
and efficiency.
CEQ proposed to move the operative
language that State, Tribal, and local
agencies may serve as cooperating
agencies from the definition of
cooperating agency (40 CFR 1508.5) to
paragraph (a) of § 1501.8. Upon the
request of the lead agency, non-Federal
agencies should participate in the
environmental review process to ensure
early collaboration on proposed actions
where such entities have jurisdiction by
law or special expertise. CEQ also
proposed in paragraph (a) to codify
current practice to allow a Federal
agency to appeal to CEQ a lead agency’s
denial of a request to serve as
cooperating agency. Resolving disputes
among agencies early in the process
furthers the OFD policy and the goal of
more efficient and timely NEPA
reviews. CEQ makes these changes in
the final rule with minor edits for
clarity. Finally, CEQ proposed
clarifications and grammatical edits
throughout § 1501.8. CEQ makes these
changes in the final rule.
8. Scoping (§ 1501.9)
In response to the ANPRM, CEQ
received comments requesting that CEQ
update its regulations related to scoping,
preferred alternative and determining whether to
develop the preferred alternative to a higher level
of detail.’’); Connaughton Letter, supra note 29
(‘‘[J]oint lead or cooperating agencies should afford
substantial deference to the [ ] agency’s articulation
of purpose and need.’’)
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including comments requesting that
agencies have greater flexibility in how
to conduct scoping. CEQ proposed to
reorganize in more chronological order,
§ 1501.9, ‘‘Scoping,’’ (40 CFR 1501.7 in
the 1978 regulations), consolidate all the
requirements for the NOI and the
scoping process into the same section,
and add paragraph headings to improve
clarity. CEQ makes these changes in the
final rule with minor edits as described
further in this section.
Specifically, CEQ proposed to revise
paragraph (a) to state the general
requirement to use scoping for EISs.
Rather than requiring publication of an
NOI as a precondition to the scoping
process, CEQ proposed to modify
paragraph (a) so that agencies can begin
the scoping process as soon as the
proposed action is developed
sufficiently for meaningful agency
consideration. Some agencies refer to
this as pre-scoping under the existing
regulations to capture scoping work
done before publication of the NOI.
Rather than tying the start of scoping to
the agency’s decision to publish an NOI
to prepare an EIS, the timing and
content of the NOI would instead
become an important step in the scoping
process itself, thereby obviating the
artificial distinction between scoping
and pre-scoping. However, agencies
should not unduly delay publication of
the NOI and should be transparent
about any work done prior to
publication of the NOI. CEQ makes the
changes as proposed in the final rule.
Paragraph (b) addresses the
responsibility of the lead agency to
invite cooperating and participating
agencies as well as other likely affected
or interested persons. CEQ proposed to
add ‘‘likely’’ to this paragraph to capture
the reality that, at the scoping stage,
agencies may not know the identities of
all affected parties and that one of the
purposes of scoping is to identify
affected parties. CEQ makes this change
in the final rule. In the final rule, CEQ
strikes ‘‘on environmental grounds’’
from the parenthetical noting that likely
affected or interested persons include
those who might not agree with the
action because the clause is
unnecessarily limiting. Agencies should
invite the participation of those who do
not agree with the action irrespective of
whether it is on environmental grounds.
The NPRM proposed to move the
existing (b)(4) to paragraph (c), ‘‘Scoping
outreach.’’ CEQ proposed to broaden the
types of activities agencies might hold
during scoping, including meetings,
publishing information, and other
means of communication to provide
agencies additional flexibility in how to
reach interested or affected parties in
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the scoping process. CEQ finalizes this
change as proposed.
Paragraph (d) proposed to address the
NOI requirements. CEQ proposed a list
of what agencies must include in an
NOI to standardize NOI format, achieve
greater consistency across agencies,
provide the public with more
information and transparency, and
ensure that agencies conduct the
scoping process in a manner that
facilitates implementation of the OFD
policy for multi-agency actions,
including by proactively soliciting
comments on alternatives, impacts, and
relevant information to better inform
agency decision making. CEQ makes
these changes in the final rule with
minor edits for clarity and edits to
paragraph (d)(7) for consistency with
§§ 1500.3 and 1502.17 and to correct the
cross-reference.
CEQ proposed to move the criteria for
determining scope from the definition of
scope, 40 CFR 1508.25, to paragraph (e)
and to strike the paragraph on
‘‘cumulative actions’’ for consistency
with the proposed revisions to the
definition of ‘‘effects’’ discussed below.
CEQ makes this change in the final rule,
but does not include the reference to
‘‘similar actions’’ in proposed paragraph
(e)(1)(ii) because commenters expressed
confusion regarding whether the
determination of the scope of the
environmental documentation, as
discussed in proposed
§ 1501.9(e)(1)(i)(C) was directly related
to the discussion of the ‘‘effects of the
action’’ as effects are defined in
§ 1508.1(g). To eliminate this confusion,
CEQ strikes the language in proposed
§ 1501.9(e)(1)(i)(C) (40 CFR
1508.25(a)(3)) regarding similar actions.
Further, CEQ notes that, in cases where
the question of the consideration of
similar actions to determine the scope of
the NEPA documentation was raised,
courts noted the discretionary nature of
the language (use of the word ‘‘may’’
and ‘‘should’’ in proposed
§ 1501.9(e)(1)(i)(C) (40 CFR
1508.25(a)(3)) and have held that
determinations as to the scope of a
NEPA document based on a
consideration of similar actions was left
to the agency’s discretion. See e.g.,
Klamath-Siskiyou Wildlands Ctr. v.
Bureau of Land Mgmt., 387 F.3d 989,
1000–01 (9th Cir. 2004). CEQ also notes
that the reference to ‘‘other reasonable
courses of action’’ in paragraph (e)(2)
are within the judgement of the agency.
Agencies have discretion to address
similar actions through a single
analysis, pursuant to revised
§ 1502.4(b).
Finally, paragraph (f) addresses other
scoping responsibilities, including
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identifying and eliminating from
detailed study non-significant issues,
allocating assignments among lead and
cooperating agencies, indicating other
related NEPA documents, identifying
other environmental review
requirements, and indicating the
relationship between the environmental
review and decision-making schedule.
CEQ retains this paragraph in the final
rule as proposed with minor
grammatical edits.
9. Time Limits (§ 1501.10)
In response to the ANPRM, CEQ
received many comments on the lengthy
timelines and costs of environmental
reviews, and many suggestions for more
meaningful time limits for the
completion of the NEPA process.
Accordingly, and to promote timely
reviews, CEQ proposed to establish
presumptive time limits for EAs and
EISs consistent with E.O. 13807 and
prior CEQ guidance. In Question 35 of
the Forty Questions, supra note 2, CEQ
stated its expectation that ‘‘even large
complex energy projects would require
only about 12 months for the
completion of the entire EIS process’’
and that, for most major actions, ‘‘this
period is well within the planning time
that is needed in any event, apart from
NEPA.’’ CEQ also recognized that ‘‘some
projects will entail difficult long-term
planning and/or the acquisition of
certain data which of necessity will
require more time for the preparation of
the EIS.’’ Id. Finally, Question 35 stated
that an EA ‘‘should take no more than
3 months, and in many cases
substantially less as part of the normal
analysis and approval process for the
action.’’
Based on agency experience with the
implementation of the regulations, CEQ
proposed in § 1501.10, ‘‘Time limits,’’ to
change the introductory text to
paragraph (a) and add a new paragraph
(b) to establish a presumptive time limit
for EAs of one year and a presumptive
time limit for EISs of two years.
However, the NPRM also proposed that
a senior agency official could approve in
writing a longer period. CEQ proposed
to define the start and end dates of the
period consistent with E.O. 13807. CEQ
makes these changes in the final rule.
CEQ eliminates the sentence regarding
lead agency from paragraph (a) because
it is no longer needed given the
revisions to this section changing
‘‘agency’’ to ‘‘senior agency official.’’ In
response to comments, the final rule
also adds ‘‘FONSI’’ to paragraph (b)(1)
to clarify that the time limit for EAs is
measured from the date of decision to
prepare to the publication of an EA or
FONSI, since agencies may not publish
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the EA separately. The final rule also
clarifies that the time period is
measured from the date the agency
decides to prepare an EA, since
applicants sometimes prepare EAs on
behalf of agencies.
Consistent with CEQ and OMB
guidance, agencies should begin scoping
and development of a schedule for
timely completion of an EIS prior to
issuing an NOI and commit to
cooperate, communicate, share
information, and resolve conflicts that
could prevent meeting milestones.87
CEQ recognizes that agency capacity,
including those of cooperating and
participating agencies, may affect
timing, and that agencies should
schedule and prioritize their resources
accordingly to ensure effective
environmental analyses and public
involvement. Further, agencies have
flexibility in the management of their
internal processes to set shorter time
limits and to define the precise start and
end times for measuring the completion
time of an EA. Therefore, CEQ proposed
to retain the factors for determining time
limits in paragraph (c). CEQ proposed to
revise paragraph (c)(6) for clarity and
strike paragraph (c)(7) regarding
controversial actions because it overlaps
with numerous other factors, and
because whether or not an action is
controversial is not relevant to the
analysis under NEPA. CEQ also
proposed to retain with edits for clarity
the list of parts of the NEPA process for
which the senior agency official may set
time limits in paragraph (d). CEQ retains
paragraphs (c) and (d) in the final rule
with the changes as proposed.
CEQ proposed conforming edits to
§ 1500.5(g) to change ‘‘establishing’’ to
‘‘meeting’’ time limits and add
‘‘environmental assessment.’’ CEQ
makes these edits in the final rule.
10. Tiering (§ 1501.11)
CEQ proposed to move 40 CFR
1502.20, ‘‘Tiering,’’ to a new § 1501.11
and revise it to make clear that this
provision is applicable to both EAs and
EISs. CEQ proposed a number of
revisions in § 1501.11 to clarify when
agencies can use existing studies and
environmental analyses in the NEPA
process and when agencies would need
to supplement such studies and
analyses. The revisions clarify that
agencies do not need to conduct sitespecific analyses prior to an
irretrievable commitment of resources,
which in most cases will not be until
87 See OFD Framework Guidance, supra note 30
(‘‘[w]hile the actual schedule for any given project
may vary based upon the circumstances of the
project and applicable law, agencies should
endeavor to meet the two-year goal . . . .’’).
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the decision at the site-specific stage.
CEQ makes these changes with
additional updates in the final rule.
Specifically, the final rule splits
proposed paragraph (a) into two
paragraphs. In the new paragraph (a),
CEQ changes ‘‘are encouraged to’’ to
‘‘should’’ and moves to the end of this
paragraph the sentence stating that
tiering may also be appropriate for
different stages of actions. The new
paragraph (b) addresses the relationship
between the different levels of tiered
documents, and CEQ makes additional
edits to this paragraph for clarity.
CEQ also proposed to move the
operative language addressing specific
examples of when tiering is appropriate
from the definition of tiering in 40 CFR
1508.28 to proposed paragraph (b). CEQ
moves this language to paragraph (c) in
the final rule with the edits as proposed.
11. Incorporation by Reference
(§ 1501.12)
CEQ proposed to move 40 CFR
1502.21, ‘‘Incorporation by reference,’’
to a new § 1501.12 and change
‘‘environmental impact statements’’ to
‘‘environmental documents’’ because
this provision is applicable generally,
not just to EISs. CEQ makes this change
in the final rule. CEQ makes additional
changes in the final rule to revise
sentences from passive to active voice.
In response to comments, CEQ adds
examples to the types of material that
agencies may incorporate, including
planning studies and analyses.
D. Revisions to Environmental Impact
Statements (Part 1502)
As stated in the NPRM, the most
extensive level of NEPA analysis is an
EIS, which is the ‘‘detailed statement’’
required under section 102(2)(C) of
NEPA. When an agency prepares an EIS,
it typically issues a ROD at the
conclusion of the NEPA review. Based
on the Environmental Protection
Agency (EPA) weekly Notices of
Availability published in the Federal
Register between 2010 and 2019,
Federal agencies published
approximately 176 final EISs per year.
CEQ proposed to update the format,
page length, and timeline to complete
EISs to better achieve the purposes of
NEPA. CEQ also proposed several
changes to streamline, allow for
flexibility in, and improve the
preparation of EISs. CEQ includes
provisions in part 1502 to promote
informed decision making by agencies
and to inform the public about the
decision-making process. The final rule
continues to encourage application of
NEPA early in the process and early
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engagement with applicants for nonFederal projects.
1. Purpose of Environmental Impact
Statement (§ 1502.1)
CEQ proposed to revise § 1502.1 for
consistency with the statutory language
of NEPA and make other nonsubstantive revisions for clarity. CEQ
makes these changes in the final rule.
The final rule also retitles this section.
2. Implementation (§ 1502.2)
CEQ proposed to strike the
introductory text of § 1502.2 as
unnecessary and revise the text in
paragraphs (a) and (c) for clarity and
consistency with the language in the
rule and regulatory text generally. CEQ
makes these changes in the final rule
with minor clarifying edits. The final
rule clarifies in paragraph (d) that, in
preparing an EIS, agencies shall state
how the alternatives considered in it
and decisions based on it serve the
purposes of the statute as interpreted in
the CEQ regulations. The final rule
strikes ‘‘ultimate agency’’ in paragraph
(e) because there may be multiple
individuals within certain departments
or agencies that have decision-making
responsibilities, including where
subunits have developed agency
procedures or NEPA compliance
programs.
3. Statutory Requirements for
Statements (§ 1502.3)
CEQ proposed to revise § 1502.3 to
make it a single paragraph, remove
cross-references to the definition, and
make minor clarifying edits. CEQ makes
these changes in the final rule.
4. Major Federal Actions Requiring the
Preparation of Environmental Impact
Statements (§ 1502.4)
CEQ proposed to revise § 1502.4 to
clarify in paragraph (a) that a ‘‘properly
defined’’ proposal is one that is based
on the statutory authorities for the
proposed action. CEQ proposed to
change ‘‘broad’’ and ‘‘program’’ to
‘‘programmatic’’ in this section, as well
as §§ 1500.4(k) and 1506.1(c), since
‘‘programmatic’’ is the term commonly
used by NEPA practitioners. The NPRM
proposed further revisions to paragraph
(b), including eliminating reference to
programmatic EISs that ‘‘are sometimes
required,’’ to focus the provision on the
discretionary use of programmatic EISs
in support of clearly defined decisionmaking purposes. For consistency, CEQ
proposed to change the mandatory
language to be discretionary in proposed
paragraph (c)(3) (paragraph (b)(1)(iii) in
the final rule). As CEQ stated in its 2014
guidance, programmatic NEPA reviews
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‘‘should result in clearer and more
transparent decision[ ]making, as well as
provide a better defined and more
expeditious path toward decisions on
proposed actions.’’ 88 Other statutes or
regulations may grant discretion or
otherwise identify circumstances for
when to prepare a programmatic EIS.
See, e.g., National Forest Management
Act, 16 U.S.C. 1604(g); 36 CFR 219.16.
CEQ makes these changes in the final
rule, and reorganizes proposed
paragraphs (c) and (d) to be paragraphs
(b)(1) and (2) since these paragraphs all
address programmatic reviews. Finally,
CEQ proposed to add a new sentence to
proposed paragraph (d) (paragraph (b)(2)
in the final rule) to clarify that when
conducting programmatic reviews,
agencies may tier their analyses to defer
detailed analysis of specific program
elements until they are ripe for
decisions that would involve an
irreversible or irretrievable commitment
of resources. The final rule removes this
latter clause and simplifies it to
elements ‘‘ripe for final agency action’’
because NEPA review occurs pursuant
to the APA and ‘‘final agency action,’’
as construed in Bennett v. Spear, is the
test for when judicial review can
commence. See 520 U.S. at 177–78.
5. Timing (§ 1502.5)
For the reasons discussed in section
II.C.2 and consistent with the edits to
§ 1501.2, CEQ proposed to change
‘‘shall’’ to ‘‘should’’ in the introductory
text so that agencies can exercise their
best judgement about when to begin the
preparation of an EIS. CEQ also
proposed to revise paragraph (b) to
clarify that agencies should work with
potential applicants and applicable
agencies before applicants submit
applications. CEQ makes these changes
in the final rule. Also, as noted in
section II.C.7, CEQ revises paragraph (b)
in the final rule to only address EISs in
this section and move the discussion of
EAs to § 1501.5. Finally, CEQ adds ‘‘and
governments’’ to ‘‘State, Tribal, and
local agencies’’ to be comprehensive
and consistent with similar changes
made throughout the rule.
6. Interdisciplinary Preparation
(§ 1502.6)
CEQ proposed minor edits to § 1502.6
consistent with the global changes
discussed in section II.A. CEQ includes
these changes in the final rule and
revises this provision from passive to
active voice.
88 Programmatic
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7. Page Limits (§ 1502.7)
In response to the ANPRM, CEQ
received many comments on the length,
complexity, and readability of
environmental documents, and many
suggestions for more meaningful page
limits. As the President Carter noted in
1977 regarding issuance of E.O. 11991,
‘‘to be more useful to decision[ ]makers
and the public, [EISs] must be concise,
readable, and based upon competent
professional analysis. They must reflect
a concern with quality, not quantity. We
do not want [EISs] that are measured by
the inch or weighed by the pound.’’ 89
The core purpose of page limits from the
original regulations remains—
documents must be a reasonable length
and in a readable format so that it is
practicable for the decision maker to
read and understand the document in a
reasonable time period. If documents
are unreasonable in their length or
unwieldly, there is a risk that they will
not inform the decision maker, thereby
undermining the purposes of the Act.
As the Supreme Court noted in
Metropolitan Edison Co. v. People
Against Nuclear Energy, ‘‘[t]he scope of
the agency’s inquiries must remain
manageable if NEPA’s goal of ‘[insuring]
a fully informed and well-considered
decision,’ . . . is to be accomplished.’’
460 U.S. at 776 (quoting Vt. Yankee, 435
U.S. at 558). Therefore, CEQ proposed to
reinforce the page limits for EISs set
forth in § 1502.7, while allowing a
senior agency official to approve a
statement exceeding 300 pages when it
is useful to the decision-making process.
CEQ makes these changes in the final
rule.
As captured in CEQ’s updated report
on the length of final EISs, these
documents average over 600 pages. See
CEQ Length of EISs Report, supra note
38. While the length of an EIS will vary
based on the complexity and
significance of the proposed action and
environmental effects the EIS considers,
every EIS must be bounded by the
practical limits of the decision maker’s
ability to consider detailed information.
CEQ proposed this change to ensure that
agencies develop EISs focused on
significant effects and on the
information useful to decision makers
and the public to more successfully
implement NEPA.
CEQ intends for senior agency
officials to take responsibility for the
quantity, quality, and timelines of
environmental analyses developed in
support of the decisions of their
agencies. Therefore, the senior agency
official approving an EA or EIS in
89 The Environment—Message to the Congress,
1977 Pub. Papers 967, 985 (May 23, 1977).
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excess of the page limits should ensure
that the final environmental document
meets the informational needs of the
agency’s decision maker. For example,
the agency decision makers may have
varying levels of capacity to consider
the information presented in the
environmental document. In ensuring
that the agency provides the resources
necessary to implement NEPA, in
accordance with § 1507.2, senior agency
officials should ensure that agency staff
have the resources and competencies
necessary to produce timely, concise,
and effective environmental documents.
Decisions as to page length for these
documents are therefore closely related
to an agency’s decision as to how to
structure its decision-making process,
and for that reason must ultimately
remain within the discretion of the
agency.
8. Writing (§ 1502.8)
CEQ did not propose any changes to
§ 1502.8. In the final rule, CEQ revises
this provision to correct grammatical
errors, including revising it from passive
to active voice.
9. Draft, Final and Supplemental
Statements (§ 1502.9)
CEQ proposed to include headings for
each of the paragraphs in § 1502.9,
‘‘Draft, final, and supplemental
statements,’’ to improve readability.
CEQ proposed edits to paragraph (b) for
clarity, replacing ‘‘revised draft’’ with
‘‘supplemental draft.’’ CEQ makes these
changes in the final rule and makes
additional clarifying edits in § 1502.9,
including to revise the language from
passive to active voice.
CEQ also received many comments in
response to the ANPRM requesting
clarification regarding when
supplemental statements are required.
CEQ proposed revisions to paragraph
(d)(1) to clarify that agencies need to
update environmental documents when
there is new information or a change in
the proposed action only if a major
Federal action remains to occur and
other requirements are met. CEQ makes
this change in the final rule. As noted
in the NPRM, this revision is consistent
with Supreme Court case law holding
that a supplemental EIS is required only
‘‘[i]f there remains ‘major Federal
actio[n]’ to occur, and if the new
information is sufficient to show that
the remaining action will ‘affec[t] the
quality of the human environment’ in a
significant manner or to a significant
extent not already considered . . . .’’
Marsh, 490 U.S. at 374 (quoting 42
U.S.C. 4332(2)(C)); see also Norton v. S.
Utah Wilderness All., 542 U.S. 55, 73
(2004). For example, supplementation
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may be triggered after an agency
executes a grant agreement but before
construction is complete because the
agency has yet to provide all of the
funds under that grant agreement. On
the other hand, when an agency issues
a final rule establishing a regulatory
scheme, there is no remaining action to
occur, and therefore supplementation is
not required. If there is no further
agency action after the agency’s
decision, supplementation does not
apply because the Federal agency action
is complete. S. Utah Wilderness All.,
542 U.S. at 73 (‘‘although the ‘[a]pproval
of a [land use plan]’ is a ‘major Federal
action’ requiring an EIS . . . that action
is completed when the plan is
approved. . . . There is no ongoing
‘major Federal action’ that could require
supplementation (though BLM is
required to perform additional NEPA
analyses if a plan is amended or revised
. . . .)’’) (emphasis in original).
In order to determine whether a
supplemental analysis is required, CEQ
proposed a new paragraph (d)(4) to
provide that an agency may document
its determination of whether a
supplemental analysis is required
consistent with its agency NEPA
procedures or may, although it is not
required, do so in an EA. CEQ adds this
paragraph to the final rule, codifying the
existing practice of several Federal
agencies, such as the Department of
Transportation’s reevaluation provided
for highway, transit, and railroad
projects (23 CFR 771.129); the Bureau of
Land Management’s Determination of
NEPA Adequacy (Department of the
Interior Departmental Manual, Part 516,
Chapter 11, § 11.6); and the Corps’
Supplemental Information Report
(section 13(d) of Engineering Regulation
200–2–2).
10. Recommended Format (§ 1502.10)
CEQ proposed to revise § 1502.10 to
provide agencies with more flexibility
in formatting an EIS given that most
EISs are prepared and distributed
electronically. Specifically, CEQ
proposed to eliminate the requirement
to have a list of agencies, organizations
and persons to whom copies of the EIS
are sent since EISs are published online,
and an index, as this is no longer
necessary when most documents are
produced in an electronically searchable
format. Proposed changes to this section
would also allow agencies to use a
different format so that they may
customize EISs to address the particular
proposed action and better integrate
environmental considerations into
agency decision-making processes. CEQ
makes these changes in the final rule.
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11. Cover (§ 1502.11)
CEQ proposed to retitle and amend
§ 1502.11 to remove the reference to a
‘‘sheet’’ since agencies prepare EISs
electronically. CEQ also proposed to
add a requirement to include the
estimated cost of preparing the EIS to
the cover in new paragraph (g) to
provide transparency to the public on
the costs of EIS-level NEPA reviews. To
track costs, the NPRM proposed that
agencies must prepare an estimate of
environmental review costs, including
costs of the agency’s full-time
equivalent (FTE) personnel hours,
contractor costs, and other direct costs
related to the environmental review of
the proposed action.90 CEQ also
proposed this amendment to address the
concerns raised by the U.S. Government
Accountability Office that agencies are
not tracking the costs of NEPA analyses,
as well as the many comments CEQ
received from stakeholders regarding
the costs associated with development
of NEPA analyses.91 CEQ noted in the
NPRM that including such costs on the
cover sheet would also be consistent
with current OMB direction to Federal
agencies to track costs of environmental
reviews and authorizations for major
infrastructure projects pursuant to E.O.
13807 and would provide the public
with additional information regarding
EIS-level NEPA documents.
CEQ adds this new paragraph (g) in
the final rule with additional changes to
clarify that agencies should provide the
estimate on the final EIS, and that it
should include the costs of preparing
both the draft EIS and the final EIS. The
final rule also adds a sentence to clarify
that agencies should include the costs of
cooperating and participating agencies if
practicable. If not practicable, agencies
must so indicate. For integrated
documents where an agency is
preparing a document pursuant to
multiple environmental statutory
requirements, it may indicate that the
90 See, e.g., U.S. Department of the Interior,
Reporting Costs Associated with Developing
Environmental Impact Statements (July 23, 2018),
https://www.doi.gov/sites/doi.gov/files/uploads/
dep_sec_memo_07232018_-_reporting_costs_
associated_w_developing_environmental_impact_
statements.pdf.
91 In a 2014 report, the U.S. Government
Accountability Office found that Federal agencies
do not routinely track data on the cost of
completing NEPA analyses, and that the cost can
vary considerably, depending on the complexity
and scope of the project. U.S. Gov’t Accountability
Office, GAO–14–370, National Environmental
Policy Act: Little Information Exists on NEPA
Analyses (Apr. 15, 2014) (‘‘GAO NEPA Report’’),
https://www.gao.gov/products/GAO-14-370. The
report referenced the 2003 CEQ task force analysis
referenced above which estimated that a typical EIS
costs from $250,000 to $2 million. See NEPA Task
Force Report, supra note 28, at p. 65.
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estimate reflects costs associated with
NEPA compliance as well as
compliance with other environmental
review and authorization requirements.
Agencies can develop methodologies for
preparing these cost estimates and
include them in their implementing
procedures.
12. Summary (§ 1502.12)
CEQ proposed to change
‘‘controversy’’ to ‘‘disputed’’ in
§ 1502.12. CEQ makes this and
grammatical changes in the final rule.
This change will better align the second
clause of the sentence, ‘‘areas of
disputed issues raised by agencies and
the public,’’ with the final clause of the
sentence, ‘‘and the issues to be resolved
(including the choice among
alternatives).’’
13. Purpose and Need (§ 1502.13)
CEQ received a number of comments
in response to the ANPRM
recommending that CEQ better define
the requirements for purpose and need
statements. The focus of a purpose and
need statement is the purpose and need
for the proposed action, and agencies
should develop it based on
consideration of the relevant statutory
authority for the proposed action. The
purpose and need statement also
provides the framework in which the
agency will identify ‘‘reasonable
alternatives’’ to the proposed action.
CEQ has advised that this discussion of
purpose and need should be concise
(typically one or two paragraphs long)
and that the lead agency is responsible
for its definition. See Connaughton
Letter, supra note 29 (‘‘Thoughtful
resolution of the purpose and need
statement at the beginning of the
process will contribute to a rational
environmental review process and save
considerable delay and frustration later
in the decision[-]making process.’’). ‘‘In
situations involving two or more
agencies that have a decision to make
for the same proposed action and
responsibility to comply with NEPA or
a similar statute, it is prudent to jointly
develop a purpose and need statement
that can be utilized by both agencies. An
agreed-upon purpose and need
statement at this stage can prevent
problems later that may delay
completion of the NEPA process.’’ Id.
The lead agency is responsible for
developing the purpose and need, and
cooperating agencies should give
deference to the lead agency and
identify any substantive concerns early
in the process to ensure swift resolution.
See OFD Framework Guidance, sec.
VIII.A.5 and XII, supra note 30;
Connaughton Letter, supra note 29.
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Agencies should tailor the purpose and
need statement to meet the
authorization requirements of both the
lead and cooperating agencies.
Consistent with CEQ guidance and in
response to the ANPRM comments, CEQ
proposed to revise § 1502.13, ‘‘Purpose
and need,’’ to clarify that the statement
should focus on the purpose and need
for the proposed action. In particular,
CEQ proposed to strike ‘‘to which the
agency is responding in proposing the
alternatives including’’ to focus on the
proposed action. CEQ further proposed,
as discussed below, to address the
relationship between the proposed
action and alternatives in the definition
of reasonable alternatives and other
sections that refer to alternatives.
Additionally, CEQ proposed to add a
sentence to clarify that when an agency
is responsible for reviewing applications
for authorizations, the agency shall base
the purpose and need on the applicant’s
goals and the agency’s statutory
authority. See, e.g., Citizens Against
Burlington, Inc. v. Busey, 938 F.2d 190,
196 (D.C. Cir. 1991) (agencies must
consider the relevant factors including
the needs and goals of the applicants
and Congress’ views as expressed in the
agency’s statutory authorization). This
addition is consistent with the
definition of reasonable alternatives,
which must meet the goals of the
applicant, where applicable. CEQ
revises § 1502.13 in the final rule
consistent with the NPRM proposal.
14. Alternatives Including the Proposed
Action (§ 1502.14)
CEQ also received many comments on
the ANPRM requesting clarification
regarding ‘‘alternatives’’ under the
regulations. This section of an EIS
describes the proposed action and
alternatives in comparative form,
including their environmental impacts,
such that the decision maker and the
public can understand the basis for
choice. However, as explained in
§ 1502.16, this section of the EIS should
not duplicate the affected environment
and environmental consequences
sections, and agencies have flexibility to
combine these three sections in a
manner that clearly sets forth the basis
for decision making.
CEQ proposed changes to § 1502.14,
‘‘Alternatives including the proposed
action,’’ to simplify and clarify the
language and provide further clarity on
the scope of the alternatives analysis in
an EIS. Specifically, CEQ proposed to
revise the introductory paragraph to
remove the colloquial language,
including ‘‘heart of’’ the EIS and
‘‘sharply defining,’’ and clarify that the
alternatives section of the EIS should
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present the environmental impacts in
comparative form. CEQ makes these
changes in the final rule.
In paragraph (a), CEQ proposed to
delete ‘‘all’’ before ‘‘reasonable
alternatives’’ and add ‘‘to the proposed
action’’ afterward for clarity because
NEPA does not require consideration of
all alternatives and does not provide
specific guidance concerning the range
of alternatives an agency must consider
for each proposal. Section 102(2)(C)
provides only that an agency should
prepare a detailed statement addressing,
among other things, ‘‘alternatives to the
proposed action.’’ 42 U.S.C. 4332(2)(C).
Section 102(2)(E) requires only that
agencies ‘‘study, develop, and describe
appropriate alternatives to
recommended courses of action.’’ 42
U.S.C. 4332(2)(E). Implementing this
limited statutory direction, CEQ has
long advised that ‘‘[w]hen there are
potentially a very large number of
alternatives, only a reasonable number
of examples, covering the full spectrum
of alternatives, must be analyzed and
compared in the EIS.’’ Forty Questions,
supra note 2, at Question 1b. CEQ
makes this change in the final rule and
rephrases paragraph (a) from passive to
active voice.
As stated in the NPRM, it is CEQ’s
view that NEPA’s policy goals are
satisfied when an agency analyzes
reasonable alternatives, and that an EIS
need not include every available
alternative where the consideration of a
spectrum of alternatives allows for the
selection of any alternative within that
spectrum. The reasonableness of the
analysis of alternatives in a final EIS is
resolved not by any particular number
of alternatives considered, but by the
nature of the underlying agency action
and by the inherent practical limitations
of the decision-making process. The
discussion of environmental effects of
alternatives need not be exhaustive, but
must provide information sufficient to
permit a reasoned choice of alternatives
for the agency to evaluate available
reasonable alternatives including
significant alternatives that are called to
its attention by other agencies,
organizations, communities, or a
member of the public.92 As discussed in
section II.C.8, to aid agencies in
identification of alternatives, § 1501.9,
‘‘Scoping,’’ requires agencies to request
identification of potential alternatives in
the NOI. Analysis of alternatives also
92 Additionally, by crafting alternatives, agencies
can ‘‘bound’’ different options and develop
information on intermediate options that occupy
the logical space in between different formal
alternatives. See, e.g., H.A. Simon, ‘‘Bounded
Rationality,’’ in Utility and Probability (J. Eatwell,
M. Milgate, & P. Newman P. eds. 1990).
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may serve purposes other than NEPA
compliance, such as evaluation of the
least environmentally damaging
practicable alternative for the discharge
of dredged or fill material under section
404(b)(1) of the Clean Water Act, 33
U.S.C. 1344(b)(1).
The number of alternatives that is
appropriate for an agency to consider
will vary. For some actions, such as
where the Federal agency’s authority to
consider alternatives is limited by
statute, the range of alternatives may be
limited to the proposed action and the
no action alternative. For actions where
the Federal authority to consider a range
of alternatives is broad, the final EIS
itself should consider a broader range of
reasonable alternatives. However, a
process of narrowing alternatives is in
accord with NEPA’s ‘‘rule of reason’’
and common sense—agencies need not
reanalyze alternatives previously
rejected, particularly when an earlier
analysis of numerous reasonable
alternatives was incorporated into the
final analysis and the agency has
considered and responded to public
comment favoring other alternatives.
Furthermore, agencies should limit
alternatives to those available to the
decision maker at the time of decision.
For consistency with this change,
CEQ proposed to strike ‘‘the’’ before
‘‘reasonable alternatives’’ in § 1502.1,
and amend § 1502.16, ‘‘Environmental
consequences,’’ to clarify in proposed
paragraph (a)(1) that the discussion
must include the environmental impacts
of the ‘‘proposed action and reasonable
alternatives.’’ CEQ makes these changes
in the final rule.
In response to CEQ’s ANPRM, some
commenters urged that the regulations
should not require agencies to account
for impacts over which the agency has
no control, including those resulting
from alternatives outside its
jurisdiction. CEQ proposed to strike 40
CFR 1502.14(c) requiring consideration
of reasonable alternatives not within the
jurisdiction of the lead agency for all
EISs because it is not efficient or
reasonable to require agencies to
develop detailed analyses relating to
alternatives outside the jurisdiction of
the lead agency. CEQ removes this
paragraph in the final rule. Further, the
new definition of ‘‘reasonable
alternatives’’ excludes alternatives
outside the agency’s jurisdiction when
they would not be technically feasible
due to the agency’s lack of statutory
authority to implement that alternative.
However, an agency may discuss
reasonable alternatives not within its
jurisdiction when necessary for the
agency’s decision-making process such
as when preparing an EIS to address
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legislative EIS requirements pursuant to
§ 1506.8 and to address specific
congressional directives.
A concern raised by many ANPRM
commenters is that agencies have
limited resources and that it is
important that agencies use those
resources effectively. The provisions
inviting commenters to identify
potential alternatives will help to
inform agencies as to how many
alternatives are reasonable to consider,
and allow agencies to assess whether
any particular submitted alternative is
reasonable to consider. Analyzing a
large number of alternatives,
particularly where it is clear that only
a few alternatives would be
economically and technically feasible
and could be realistically implemented
by the applicant, can divert limited
agency resources. CEQ invited comment
on whether the regulations should
establish a presumptive maximum
number of alternatives for evaluation of
a proposed action, or alternatively for
certain categories of proposed actions.
CEQ sought comment on (1) specific
categories of actions, if any, that should
be identified for the presumption or for
exceptions to the presumption; and (2)
what the presumptive number of
alternatives should be (e.g., a maximum
of three alternatives including the no
action alternative). CEQ did not receive
sufficient information to establish a
minimum, but adds a new paragraph (f)
to the final rule to state that agencies
shall limit their consideration to a
reasonable number of alternatives. The
revisions to the regulations to promote
earlier solicitation of information and
identification of alternatives, and timely
submission of comments, will assist
agencies in establishing how many
alternatives are reasonable to consider
and assessing whether any particular
submitted alternative is reasonable to
consider.
15. Affected Environment (§ 1502.15)
CEQ proposed in § 1502.15, ‘‘Affected
environment,’’ to explicitly allow for
combining of affected environment and
environmental consequences sections to
adopt what has become a common
practice in some agencies. This revision
would ensure that the description of the
affected environment focuses on those
aspects of the environment that the
proposed action affects. CEQ makes this
change in the final rule. Additionally,
the final rule adds a clause to emphasize
that the affected environment includes
reasonably foreseeable environmental
trends and planned actions in the
affected areas. This change responds to
comments raising concerns that
eliminating the definition of cumulative
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impact (40 CFR 1508.7) would result in
less consideration of changes in the
environment. To the extent
environmental trends or planned
actions in the area(s) are reasonably
foreseeable, the agency should include
them in the discussion of the affected
environment. Consistent with current
agency practice, this also may include
non-Federal planned activities that are
reasonably foreseeable.
In response to the NPRM, commenters
expressed concerns that impacts of
climate change on a proposed project
would no longer be taken into account.
Under the final rule, agencies will
consider predictable environmental
trends in the area in the baseline
analysis of the affected environment.
Trends determined to be a consequence
of climate change would be
characterized in the baseline analysis of
the affected environment rather than as
an effect of the action. Discussion of the
affected environment should be
informative but should not be
speculative.
16. Environmental Consequences
(§ 1502.16)
CEQ proposed to reorganize
§ 1502.16, ‘‘Environmental
consequences.’’ CEQ proposed to
designate the introductory paragraph as
paragraph (a), move up the sentence that
it should not duplicate the alternatives
discussion, and create subordinate
paragraphs (a)(1) through (10) for
clarity. In paragraph (a)(1), CEQ
proposed to consolidate into one
paragraph the requirements regarding
effects scattered throughout 40 CFR
1502.16, including paragraphs (a), (b),
and (d), to include a discussion of the
effects of the proposed action and
reasonable alternatives. Also consistent
with the definition of effects, CEQ
proposed to strike references to direct,
indirect, and cumulative effects. The
combined discussion should focus on
those effects that are reasonably
foreseeable and have a reasonably close
causal relationship to the proposed
action, consistent with the proposed
revised definition of effects addressed in
§ 1508.1(g). CEQ proposed to move 40
CFR 1502.16(c) and (e) through (h) to be
paragraphs (a)(5) through (9). To align
with the statute, CEQ also proposed to
add a new paragraph (a)(10) to provide
that discussion of environmental
consequences should include, where
applicable, economic and technical
considerations consistent with section
102(2)(B) of NEPA. CEQ makes these
changes in the final rule with minor
edits to clarify that ‘‘this section’’ in
paragraph (a) refers to the
‘‘environmental consequences’’ section;
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address the dangling modifier, ‘‘their
significance,’’ in paragraph (a)(1);
correct the usage of ‘‘which’’ and ‘‘that’’
throughout; and clarify the language in
paragraph (b).
Further, CEQ proposed to move the
operative language that addresses when
agencies need to consider economic and
social effects in EISs from the definition
of human environment in 40 CFR
1508.14 to proposed § 1502.16(b). CEQ
also proposed to amend the language for
clarity, explain that the agency makes
the determination of when
consideration of economic and social
effects is interrelated with consideration
of natural or physical environmental
effects at which point the agency should
give appropriate consideration to those
effects, and strike ‘‘all of’’ as
unnecessary. CEQ makes these changes
in the final rule.
17. Submitted Alternatives, Information,
and Analyses (§ 1502.17)
To ensure agencies have considered
the alternatives, information, and
analyses submitted by the public,
including State, Tribal, and local
governments as well as individuals and
organizations, CEQ proposed to add a
new § 1502.17 to require a new
‘‘submitted alternatives, information,
and analyses’’ section in draft and final
EISs. CEQ includes this new provision
in the final rule with some
modifications to separate the
requirements for draft and final EISs, as
discussed in this section.
To ensure agencies receive and
consider relevant information as early in
the process as possible, § 1501.9,
‘‘Scoping,’’ requires agencies to
specifically solicit such information in
their notices of intent. Under § 1502.17,
agencies must include a summary in the
EIS identifying all alternatives,
information, and analyses the agency
received from State, Tribal, and local
governments and other public
commenters. In developing the
summary, agencies may refer to other
relevant sections of the EIS or to
appendices. A new paragraph (a)(1)
requires agencies to append to the draft
EIS or otherwise publish the comments
received during scoping and, consistent
with the proposed rule, paragraph (a)(2)
requires the lead agency to invite
comment on the summary. Finally,
paragraph (b) requires agencies to
prepare a summary in the final EIS
based on all comments received on the
draft EIS.
CEQ proposed to require in a new
§ 1502.18, ‘‘Certification of alternatives,
information, and analyses section,’’ that,
informed by the alternatives,
information, and analyses section
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required under § 1502.17, the decision
maker for the lead agency certify that
the agency has considered such
information and include the
certification in the ROD under proposed
§ 1505.2(e). CEQ moves this provision to
§ 1505.2(b) in the final rule, as
discussed in further detail in section
II.G.2.
18. List of Preparers (§ 1502.18)
CEQ proposed to move ‘‘List of
preparers’’ from § 1502.17 to § 1502.19
to accommodate the two new sections
addressing submitted alternatives,
information, and analyses. The final
rule moves this section to § 1502.18 and
makes minor revisions to change the
language from passive to active voice
and remove the erroneous crossreferences.
19. Appendix (§ 1502.19)
CEQ proposed to move ‘‘Appendix’’
from § 1502.18 to § 1502.20 and revise
the language for clarity. The final rule
moves this provision to § 1502.19 with
additional clarifying revisions. The final
rule also adds a new paragraph (d) to
reflect the potential appendix for
scoping comments on alternatives,
information, and analyses pursuant to
§ 1502.17(a)(1) and a new paragraph (e)
for the potential appendix of draft EIS
comments pursuant to §§ 1503.1 and
1503.4(b).
20. Publication of the Environmental
Impact Statement (§ 1502.20)
CEQ proposed to move ‘‘Circulation
of the environmental impact statement’’
from § 1502.19 to § 1502.21 and retitle it
‘‘Publication of the environmental
impact statement.’’ CEQ moves this to
§ 1502.20 in the final rule. CEQ
proposed to modernize this provision,
changing circulate to publish and
eliminating the option to circulate the
summary of an EIS given that agencies
electronically produce most EISs. CEQ
proposed to require agencies to transmit
the EIS electronically, but provide for
paper copies by request. CEQ makes
these changes in the final rule.
21. Incomplete or Unavailable
Information (§ 1502.21)
CEQ proposed several revisions to
proposed § 1502.22, ‘‘Incomplete or
unavailable information,’’ which CEQ
redesignates as § 1502.21 in the final
rule. Specifically, CEQ proposed to
further subdivide the paragraphs for
clarity and strike the word ‘‘always’’
from paragraph (a) as unnecessarily
limiting and inconsistent with the rule
of reason, and replaced the term
‘‘exorbitant’’ with ‘‘unreasonable’’ in
paragraphs (b) and (c), which is
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consistent with CEQ’s description of
‘‘overall cost’’ considerations in its 1986
promulgation of amendments to this
provision.93 CEQ reiterates that the term
‘‘overall cost’’ as used in this section
includes ‘‘financial costs and other costs
such as costs in terms of time (delay)
and personnel.’’ 94 CEQ invited
comment on whether the ‘‘overall costs’’
of obtaining incomplete of unavailable
information warrants further definition
to address whether certain costs are or
are not ‘‘unreasonable.’’ CEQ does not
include any definition in the final rule.
For clarity and in response to
comments, the final rule inserts ‘‘but
available’’ in paragraph (b) to clarify
that agencies will continue to be
required to obtain available information
essential to a reasoned choice between
alternatives where the overall costs are
not unreasonable and the means of
obtaining that information are known.95
New scientific or technical research is
unavailable information and is
addressed in § 1502.23. Where the
overall costs are unreasonable or means
of obtaining the information are not
known, agencies will continue to be
required to disclose in the EIS that
information is incomplete or
unavailable and provide additional
information to assist in analyzing the
reasonably foreseeable significant
adverse impacts. However, § 1502.23
does not require agencies to undertake
new scientific and technical research to
inform their analyses.
Finally, CEQ proposed to eliminate 40
CFR 1502.22(c) addressing the
applicability of the 1986 amendments to
this section because this paragraph is
obsolete. CEQ does not include this
provision in the final rule.
22. Cost-Benefit Analysis (§ 1502.22)
CEQ did not propose changes to the
cost-benefit analysis section other than
an update to the citation. In the final
rule, CEQ moves this provision from
§ 1502.23 to § 1502.22 and adds a
parenthetical after ‘‘section 102(2)(B) of
NEPA’’ that paraphrases the statutory
text relating to considering unquantified
environmental amenities and values
along with economic and technical
considerations. This is consistent with
the policy established in section 101(a),
which also refers to fulfilling the social,
93 51
FR at 15622 (Apr. 25, 1986).
94 Id.
95 See, e.g. Pub. Citizen, 541 U.S. at 767 (‘‘Also,
inherent in NEPA and its implementing regulations
is a ‘rule of reason,’ which ensures that agencies
determine whether and to what extent to prepare
an EIS based on the usefulness of any new potential
information to the decision[-]making process.’’); see
also Marsh, 490 U.S. at 373–74 (agencies should
apply a ‘‘rule of reason’’).
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economic, and other requirements of
present and future generations of
Americans. Finally, CEQ revises the
language for clarity, including changing
from passive to active voice.
23. Methodology and Scientific
Accuracy (§ 1502.23)
CEQ proposed revisions to update
proposed § 1502.24, which CEQ
redesigantes § 1502.23 in the final rule.
The NPRM proposed to broaden this
provision to environmental documents
and CEQ makes this change in the final
rule. CEQ proposed to clarify that
agencies must make use of reliable
existing data and resources when they
are available and appropriate. CEQ also
proposed to revise this section to allow
agencies to draw on any source of
information (such as remote sensing and
statistical modeling) that the agency
finds reliable and useful to the decisionmaking process. As noted in the NPRM,
these changes will promote the use of
reliable data, including information
gathered using modern technologies.
CEQ makes these changes in the final
rule with minor changes. The final rule
revises the sentence regarding placing
the discussion of methodology in an
appendix from singular to plural for
consistency with the rest of the language
in this section. In response to
comments, CEQ moves the proposed
sentence regarding new scientific and
technical research to a new sentence at
the end of the section and adds a
sentence clarifying that nothing in this
provision is intended to prohibit
agencies from compliance with the
requirements of other statutes pertaining
to scientific and technical research.
Agencies must continue to conduct
surveys and collect data where required
by other statutes.
24. Environmental Review and
Consultation Requirements (§ 1502.24)
CEQ proposed to revise this section to
clarify that agencies must integrate, to
the fullest extent possible, their NEPA
analysis with all other applicable
Federal environmental review laws and
Executive orders in furtherance of the
OFD policy established by E.O. 13807
and to make the environmental review
process more efficient.96 CEQ
redesignates this section in the final rule
to § 1502.24, updates a statutory
96 The Permitting Council has compiled a list of
environmental laws and Executive orders that may
apply to a proposed action. See Federal
Environmental Review and Authorization
Inventory, https://www.permits.performance.gov/
tools/federal-environmental-review-andauthorization-inventory.
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citation, and revises the text as
proposed.
E. Revisions to Commenting on
Environmental Impact Statements (Part
1503)
Section 102(2)(C) of NEPA requires
that agencies obtain views of Federal
agencies with jurisdiction by law or
expertise with respect to any
environmental impact, and also directs
that agencies make copies of the EIS and
the comments and views of appropriate
Federal, State, and local agencies
available to the President, CEQ and the
public. 42 U.S.C. 4332(2)(C). Part 1503
of the CEQ regulations include
provisions relating to inviting and
responding to comments. CEQ proposed
to modernize part 1503 given modern
technologies not available at the time of
the 1978 regulations. In particular, the
proposed regulations encouraged
agencies to use the current methods of
electronic communication both to
publish important environmental
information and to structure public
participation for greater efficiency and
inclusion of interested persons.
Additionally, CEQ proposed changes to
encourage commenters to provide
information early and to require
comments to be as specific as possible
to ensure agencies can consider them in
their decision-making process. CEQ
finalizes many of the proposed changes
with modifications as this section
discusses in further detail.
1. Inviting Comments and Requesting
Information and Analyses (§ 1503.1)
CEQ proposed to retitle and revise
§ 1503.1, ‘‘Inviting comments and
requesting information and analyses,’’ to
better reach interested and affected
parties and ensure agencies receive the
relevant information they need to
complete their analyses. CEQ proposed
to revise paragraphs (a)(2)(i) and (ii) to
include State, Tribal and local agencies
and governments to be comprehensive
and consistent with the addition of
‘‘Tribal’’ as discussed in section II.A.
CEQ proposed to eliminate the obsolete
reference to OMB Circular A–95 from
paragraph (a)(2)(iii) and move
paragraphs (a)(3) and (4) to (a)(2)(iv) and
(v), respectively, since these are
additional parties from which agencies
should request comments. CEQ also
proposed in paragraph (a)(2)(v) to give
agencies flexibility to tailor their public
involvement process to more effectively
reach interested and affected parties by
soliciting comments ‘‘in a manner
designed to inform’’ parties interested or
affected ‘‘by the proposed action.’’ CEQ
makes these changes in the final rule.
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CEQ also proposed to add a new
paragraph (a)(3) that requires agencies to
specifically invite comment on the
completeness of the submitted
alternatives, information and analyses
section (§ 1502.17). CEQ includes this
new paragraph in the final rule with
revisions to clarify that agencies should
invite comments on the submitted
alternatives, information, and analyses
generally as well as the summary
required under § 1502.17, rather than on
the completeness of the summary, as
proposed. Interested parties who may
seek to challenge the agency’s decision
have an affirmative duty to comment
during the public review period in order
for the agency to consider their
positions. See Vt. Yankee, 435 U.S. at
553.
In paragraph (b), CEQ proposed to
require agencies to provide a 30-day
comment period on the final EIS’s
submitted alternatives, information and
analyses section. As noted in the
discussion of § 1500.3(b) in section
II.B.3, CEQ does not include this
requirement in the final rule. However,
the final rule adds language that if an
agency requests comments on a final EIS
before the final decision, the agency
should set a deadline for such
comments. This provides agencies the
flexibility to request comments on a
final EIS. Agencies may use this option
where it would be helpful to inform the
agency’s decision making process.
Finally, CEQ proposed a new
paragraph (c) to require agencies to
provide for commenting using
electronic means while ensuring
accessibility to those who may not have
such access to ensure adequate notice
and opportunity to comment. CEQ
includes this proposed paragraph in the
final rule.
2. Duty To Comment (§ 1503.2)
Section 1503.2, ‘‘Duty to comment,’’
addresses the obligations of other
agencies to comment on an EIS. CEQ
proposed to clarify that this provision
applies to cooperating agencies and
agencies authorized to develop and
enforce environmental standards. CEQ
makes this change in the final rule and
makes additional revisions to change
the language from passive to active
voice.
3. Specificity of Comments and
Information (§ 1503.3)
CEQ proposed to revise paragraph (a)
and retitle § 1503.3, ‘‘Specificity of
comments and information,’’ to explain
that the purposes of comments is to
promote informed decision making and
further clarify that comments should
provide sufficient detail for the agency
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to consider the comment in its decisionmaking process. See Pub. Citizen, 541
U.S. at 764; Vt. Yankee, 435 U.S. at 553
(while ‘‘NEPA places upon an agency
the obligation to consider every
significant aspect of the environmental
impact of a proposed action, it is still
incumbent upon [parties] who wish to
participate to structure their
participation so that it is meaningful, so
that it alerts the agency to the [parties’]
position . . . .’’). CEQ also proposed in
this paragraph that comments should
explain why the issues raised are
significant to the consideration of
potential environmental impacts and
alternatives to the proposed action, as
well as economic and employment
impacts, and other impacts affecting the
quality of the human environment. In
addition, CEQ proposed in this
paragraph that comments should
reference the section or page of the draft
EIS, propose specific changes to those
parts of the statement, where possible,
and include or describe the data sources
and methodologies supporting the
proposed changes. See Vt. Yankee, 435
U.S. at 553 (‘‘[Comments] must be
significant enough to step over a
threshold requirement of materiality
before any lack of agency response or
consideration becomes a concern. The
comment cannot merely state that a
particular mistake was made . . . ; it
must show why the mistake was of
possible significance in the results
. . . .’’ (quoting Portland Cement Ass’n
v. Ruckelshaus, 486 F.2d 375, 394 (D.C.
Cir. 1973)). CEQ includes these changes
in the final rule to ensure that agencies
are alerted to all interested and affected
parties’ concerns, but changes
‘‘significant’’ to ‘‘important’’ issues in
the second sentence to avoid confusion
with significant effects. Nothing in these
revisions should be construed to limit
public comment to those members of
the public with scientific or technical
expertise, and agencies should continue
to solicit comment from all interested
and affected members of the public.
Consistent with the goal of promoting a
manageable process and a meaningful
focus on pertinent issues, CEQ also
clarifies that commenters should submit
information and raise issues as early in
the process as possible, including
during scoping to the extent practicable.
Commenters should timely submit all
comments and make their comments as
specific as possible to promote informed
and timely decision making.
CEQ also proposed a new paragraph
(b) to emphasize that comments on the
submitted alternatives, information, and
analyses section should identify any
additional alternatives, information, or
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analyses not included in the draft EIS,
and should be as specific as possible.
The proposal required comments and
objections to be raised within 30 days of
publication of the notice of availability
of the final EIS and noted that
comments and objections not provided
within those 30 days are considered
exhausted and forfeited under
§ 1500.3(b). In the final rule, CEQ
includes this paragraph with some
changes. The final rule provides that
comments should be on the submitted
alternatives, information, and analyses
themselves as well as the summary that
§ 1502.17 requires and be as specific as
possible. It further provides that
comments and objections on the draft
EIS must be raised within the comment
period provided by the agency,
consistent with § 1506.11. The final rule
does not include the 30-day comment
period, as discussed in sections II.B.3
and II.E.1; however, it provides that if
the agency requests comments on the
final EIS, comments and objections
must be raised within the comment
period. The final rule also provides that
comments and objections not provided
within the relevant comment periods
are considered unexhausted and
forfeited under § 1500.3(b).
CEQ proposed to change
‘‘commenting’’ agency to
‘‘participating’’ agency in paragraph (c),
and ‘‘entitlements’’ to ‘‘authorizations’’
in paragraph (d). CEQ makes these
changes in the final rule. Finally, CEQ
proposed to broaden paragraph (e) to
require cooperating agencies with
jurisdiction by law to specify the
mitigation measures they consider
necessary for permits, licenses, or
related requirements, including the
applicable statutory authority. CEQ
includes this change in the final rule
because it will provide greater
transparency and clarity to the lead
agency and the public when mitigation
is required under another statute.
4. Response to Comments (§ 1503.4)
In practice, the processing of
comments can require substantial time
and resources. CEQ proposed to amend
§ 1503.4, ‘‘Response to comments,’’ to
simplify and clarify in paragraph (a) that
agencies are required to consider
substantive comments timely submitted
during the public comment period. CEQ
also proposed to clarify that an agency
may respond to comments individually
or collectively. Consistent with this
revision, CEQ proposed to clarify that,
in the final EIS, agencies may respond
by a variety of means, and to strike the
detailed language in paragraph (a)(5)
relating to comments that do not
warrant further agency response. CEQ
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includes these changes with some
modifications in the final rule.
Specifically, CEQ changes
‘‘individually’’ to ‘‘individual’’ and
‘‘collectively’’ to ‘‘groups of comments’’
to clarify that agencies may respond to
individual comments or group and
respond once to a group of comments
addressing the same issue. CEQ also
modifies paragraph (a) introductory text
to make clear that the list in paragraphs
(a)(1) through (5) is how the agency may
respond to comments. Finally, CEQ
adds a clause to paragraph (a)(5) to
reinforce that agencies do not have to
respond to each comment individually.
Under the 1978 regulations, agencies
have had flexibility in how they
structure their responses to comments,
and CEQ does not consider this
clarification to be a change in position.
CEQ proposed to clarify in paragraph
(b) that agencies must append
comments and responses to EISs rather
than including them in the body of the
EIS, or otherwise publish them. Under
current practice, some agencies include
these comment responses in the EISs
themselves, which can contribute to
excessive length. See CEQ Length of
EISs Report, supra note 38. CEQ makes
this change in the final rule. As noted
in the NPRM, these changes do not
preclude an agency from summarizing
or discussing specific comments in the
EIS as well.
Finally, CEQ proposed to amend
paragraph (c) for clarity. CEQ makes the
proposed changes and additional
clarifying edits in the final rule.
F. Revisions to Pre-Decisional Referrals
to the Council of Proposed Federal
Actions Determined To Be
Environmentally Unsatisfactory (Part
1504)
CEQ proposed edits to part 1504,
‘‘Pre-decisional Referrals to the Council
of Proposed Federal Actions Determined
to be Environmentally Unsatisfactory,’’
to improve clarity, including
grammatical corrections. CEQ also
proposed to reference specifically EAs
in this part. Although infrequent,
agencies have made referrals to CEQ on
EAs. CEQ also proposed a minor
revision to the title of part 1504, striking
‘‘Predecision’’ and inserting ‘‘Predecisional.’’ CEQ makes these changes
in the final rule.
1. Purpose (§ 1504.1)
Section 1504.1, ‘‘Purpose,’’ addresses
the purpose of part 1504, including CEQ
referrals by the EPA. Section 309 of the
Clean Air Act (42 U.S.C. 7609) requires
EPA to review and comment on certain
proposed actions of other Federal
agencies and to make those comments
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public. Where appropriate, EPA may
exercise its authority under section
309(b) of the Clean Air Act and refer the
matter to CEQ, as stated in paragraph
(b). The final rule revises this paragraph
for clarity, changing it from passive to
active voice. Paragraph (c) provides that
other Federal agencies also may prepare
such reviews. In the NPRM, CEQ
proposed to change ‘‘may make’’ to
‘‘may produce’’ in this paragraph. The
final rule changes this phrase to ‘‘may
prepare’’ since ‘‘prepare’’ is the
commonly used verb in these
regulations.
2. Criterial for Referral (§ 1504.2)
CEQ proposed to change ‘‘possible’’ to
‘‘practicable’’ in the introductory
paragraph of § 1504.2, ‘‘Criteria for
referral.’’ CEQ makes this change in the
final rule as discussed in section II.A.
Consistent with the NEPA statute, CEQ
proposed to add economic and technical
considerations to paragraph (g) of
§ 1504.2, ‘‘Criteria for referrals.’’ CEQ
includes this change in the final rule.
3. Procedure for Referrals and Response
(§ 1504.3)
In § 1504.3, ‘‘Procedure for referrals
and response,’’ CEQ proposed changes
to simplify and modernize the referral
process to ensure it is timely and
efficient. CEQ proposed to change the
language in this section from passive to
active voice and make other clarifying
edits to the language. CEQ includes
these changes with some additional
clarifying edits in the final rule.
Specifically, in paragraphs (a)(1) and
(2), CEQ changes ‘‘advise’’ and ‘‘such
advice’’ to ‘‘notify’’ and ‘‘a notification’’
respectively. CEQ proposed to eliminate
the exception in paragraph (a)(2) for
statements that do not contain adequate
information to permit an assessment of
the matter’s environmental
acceptability. CEQ removes this clause
in the final rule. The referring agency
should provide the lead agency and
CEQ with as much information as
possible, including identification of
when the information is inadequate to
permit an assessment. In paragraph
(a)(4), CEQ changes ‘‘such advice’’ to
‘‘the referring agency’s views’’ in the
final rule to clarify what the referring
agency is sending to CEQ.
In paragraph (b), CEQ proposed to
change ‘‘commenting agencies’’ to
‘‘participating agencies,’’ a change CEQ
proposed throughout the rule, and to
add a timeframe for referrals of EAs.
CEQ makes these changes in the final
rule. CEQ proposed to strike from
paragraph (c)(1) the clause requiring the
referral request that no action be taken
to implement the matter until CEQ takes
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action. CEQ removes this clause in the
final rule because it is unnecessarily
limiting. Agencies should have the
flexibility to determine what they are
requesting of the lead agency when
making a referral, which may include a
request not to take any action on the
matter.
CEQ proposed to change ‘‘material
facts in controversy’’ to ‘‘disputed
material facts’’ in paragraph (c)(2)(i) for
clarity and to simplify paragraph
(c)(2)(iii) to focus on the reasons for the
referral, which may include that the
matter is environmentally
unsatisfactory. CEQ proposed to revise
paragraph (d)(2) to emphasize that the
lead agency’s response should include
both evidence and explanations, as
appropriate. CEQ proposed to revise
paragraph (e) to simplify the process
and to provide direction to applicants
regarding the submittal of their views to
the CEQ. CEQ proposed to strike the
reference to public meetings or hearings
in paragraph (f)(3) to provide more
flexibility to CEQ in how it obtains
additional views and information,
which could include a public meeting
or hearing. However, there may be
other, more effective mechanisms to
collect such information, including
through use of current technologies.
CEQ makes these changes in the final
rule.
Finally, CEQ proposed to modify
paragraph (h) to clarify that the referral
process is not a final agency action that
is judicially reviewable and to remove
the requirement that referrals be
conducted consistent with the APA
where a statute requires that an action
be determined on the record after an
opportunity for a hearing. Where other
statutes govern the referral process,
those statutes continue to apply, and
these regulations do not need to
speculate about what process might be
required. Therefore, CEQ eliminates this
language in the final rule and replaces
it with the clarification that the referral
process does not create a private right of
action because, among other
considerations, there is no final agency
action.
G. Revisions to NEPA and Agency
Decision Making (Part 1505)
1. Remove and Reserve Agency
Decisionmaking Procedures (§ 1505.1)
In the NPRM, CEQ proposed to move
the text of 40 CFR 1505.1, ‘‘Agency
decisionmaking procedures,’’ to
§ 1507.3(b). As discussed further in
section II.I.3, CEQ makes this change in
the final rule and reserves § 1505.1 for
future use.
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2. Record of Decision in Cases Requiring
Environmental Impact Statements
(§ 1505.2)
CEQ proposed to redesignate the
introductory paragraph of § 1505.2,
‘‘Record of decision in cases requiring
environmental impact statements,’’ as
paragraph (a) and revise it to require
agencies to ‘‘timely publish’’ a ROD.
CEQ also proposed to clarify that the
CEQ regulations allow for ‘‘joint’’ RODs
by two or more Federal agencies; this
change is also consistent with the OFD
policy and E.O. 13807. Finally, CEQ
proposed to remove references to OMB
Circular A–95 as noted previously in
section II.A.
CEQ proposed clarifying edits to
proposed paragraphs (a) and (c)
(paragraphs (a)(1) and (3) in the final
rule) to change from passive to active
voice for clarity. The final rule makes
these changes in paragraphs (a)(1), (2),
and (3) in the final rule. The final rule
also removes ‘‘all’’ before ‘‘alternatives’’
in paragraph (a)(2) for consistency with
the same change in § 1502.14(a).
CEQ proposed to include a
requirement in proposed paragraph (d)
to require agencies to respond to any
comments on the submitted alternatives,
information, and analyses section in the
final EIS. As discussed in sections II.B.3
and II.E.1, CEQ does not include the
proposed 30-day comment period in the
final rule; therefore, CEQ is not
including proposed § 1505.2(d) in the
final rule.
In the NPRM, proposed paragraph (e)
would require the ROD to include the
decision maker’s certification regarding
consideration of the submitted
alternatives, information, and analyses
section, which proposed § 1502.18
required. The final rule replaces what
was proposed paragraph (e) with the
language moved from proposed
§ 1502.18, ‘‘Certification of alternatives,
information, and analyses section,’’ in
paragraph (b). In the NPRM, § 1502.18
stated that, based on the alternatives,
information, and analyses section
required under § 1502.17, the decision
maker for the lead agency must certify
that the agency has considered such
information and include the
certification in the ROD under
§ 1505.2(d) (as proposed). This
provision also proposed a conclusive
presumption that the agency has
considered information summarized in
that section because it is reasonable to
presume the agency has considered
such information based on the process
to request and summarize public
comments on the submitted alternatives,
information, and analyses.
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CEQ modifies the proposed text of
§ 1502.18 in the final rule and in
paragraph (b) of § 1505.2 to clarify that
the decision maker’s certification in the
ROD is informed by the summary of
submitted alternatives, information, and
analyses in the final EIS and any other
material in the record that the decision
maker determines to be relevant. This
includes both the draft and final EIS as
well as any supporting materials
incorporated by reference or appended
to the document. The final rule also
changes ‘‘conclusive presumption’’ to a
‘‘presumption’’ and clarifies that the
agency is entitled to a presumption that
it has considered the submitted
alternatives, information, and analyses,
including the summary thereof in the
final EIS. Establishing a rebuttable
presumption will give appropriate
weight to the process that culminates in
the certification, while also allowing
some flexibility in situations where
essential information may have been
inadvertently overlooked. The
presumption and associated exhaustion
requirement also will encourage
commenters to provide the agency with
all available information prior to the
agency’s decision, rather than disclosing
information after the decision is made
or in subsequent litigation. This is
important for the decision-making
process and efficient management of
agency resources.
3. Implementing the Decision (§ 1505.3)
CEQ proposed minor edits to § 1505.3,
‘‘Implementing the decision’’ to change
‘‘commenting’’ agencies to
‘‘participating’’ in paragraph (c) and
‘‘make available to the public’’ to
‘‘publish’’ in paragraph (d). CEQ makes
these changes in the final rule.
H. Revisions to Other Requirements of
NEPA (Part 1506)
CEQ proposed a number of edits to
part 1506 to improve the NEPA process
to make it more efficient and flexible,
especially where actions involve thirdparty applicants. CEQ also proposed
several edits for clarity. CEQ finalizes
many of these proposed changes in the
final rule with some additional
clarifying edits.
1. Limitations on Actions During NEPA
Process (§ 1506.1)
CEQ proposed to add FONSIs to
paragraph (a) of § 1506.1, ‘‘Limitations
on actions during NEPA process,’’ to
clarify existing practice and judicial
determinations that the limitation on
actions applies when an agency is
preparing an EA as well as an EIS. CEQ
proposed to consolidate paragraph (d)
with paragraph (b) and revise the
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language to provide additional clarity
on what activities are allowable during
the NEPA process. Specifically, CEQ
proposed to eliminate reference to one
specific agency, broadening the
provision to all agencies and providing
that this section does not preclude
certain activities by an applicant to
support an application of Federal, State,
Tribal, or local permits or assistance. As
an example of activities an applicant
may undertake, CEQ proposed to add
‘‘acquisition of interests in land,’’ which
includes acquisitions of rights-of-way
and conservation easements. CEQ
invited comment on whether it should
make any additional changes to
§ 1506.1, including whether there are
circumstances under which an agency
may authorize irreversible and
irretrievable commitments of resources.
CEQ finalizes this provision as proposed
with minor grammatical changes, and
simplifying the references in paragraphs
(c) introductory text and (c)(2) from
programmatic environmental impact
‘‘statement’’ to ‘‘review.’’
2. Elimination of Duplication With
State, Tribal, and Local Procedures
(§ 1506.2)
CEQ proposed revisions to § 1506.2,
‘‘Elimination of duplication with State,
Tribal, and local procedures’’ to
promote efficiency and reduce
duplication between Federal and State,
Tribal, and local requirements. These
changes are consistent with the
President’s directive in E.O. 13807 to
provide for agency use, to the maximum
extent permitted by law, of
environmental studies, analysis, and
decisions in support of earlier Federal,
State, Tribal, or local environmental
reviews or authorization decisions. E.O.
13807, sec. 5(e)(i)(C). CEQ proposed to
revise paragraph (a) to acknowledge the
increasing number of State, Tribal, and
local governments conducting NEPA
reviews pursuant to assignment from
Federal agencies. See, e.g., 23 U.S.C.
327, and 25 U.S.C. 4115 and 5389(a).
CEQ makes this change in the final rule.
The revision in paragraph (a) clarifies
that Federal agencies are authorized to
cooperate with such State, Tribal, and
local agencies, and paragraph (b)
requires cooperation to reduce
duplication.
CEQ proposed to add examples to
paragraph (b) to encourage use of prior
reviews and decisions and modify
paragraph (c) to give agencies flexibility
to determine whether to cooperate in
fulfilling State, Tribal, or local EIS or
similar requirements. CEQ includes
these proposed changes in the final rule
and reorders the language to provide
additional clarity. Additionally, the
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final rule makes further changes to
paragraph (b) to remove potential
impediments for agency use of studies,
analysis, and decisions developed by
State, Tribal, and local government
agencies. Some commenters stated that
CEQ proposed to limit agency use to
only environmental studies, analysis,
and decisions and exclude socioeconomic and other information. The
final rule clarifies that agencies should
make broad use of studies, analysis, and
decisions prepared by State, Tribal, and
local agencies, as appropriate based on
other requirements including § 1502.23.
Finally, CEQ proposed to clarify in
paragraph (d) that NEPA does not
require reconciliation of inconsistencies
between the proposed action and State,
Tribal, or local plans or laws, although
the EIS should discuss the
inconsistencies. CEQ makes these
revisions in the final rule.
3. Adoption (§ 1506.3)
CEQ proposed to expand adoption to
EAs, consistent with current practice by
many agencies, and CE determinations
and clarify the process for documenting
the decision to adopt. CEQ includes
these proposed changes in the final rule
with additional revisions to align the
language for consistency in each
paragraph and better organize § 1506.3
by grouping the provisions relating to
EISs into paragraph (b), EAs in
paragraph (c), and CE determinations in
paragraph (d).
Paragraph (a) includes the general
requirement for adoption, which is that
any adoption must meet the standard for
an adequate EIS, EA, or CE
determination, as appropriate, under the
CEQ regulations. CEQ proposed to
reference EAs in this paragraph. The
final rule includes CE determinations as
well as EAs and reorders the documents
for consistency with the ordering of
paragraphs (b) through (d)—EISs, EAs
(including portions of EISs or EAs), and
CE determinations.
CEQ proposed clarifying edits in
paragraph (b) and changed references
from recirculation to republication
consistent with this change throughout
the rule. In the final rule, CEQ
subdivides paragraph (b) into
subordinate paragraphs (b)(1) and (2).
Paragraph (b)(1) addresses EISs where
the adopting agency is not a cooperating
agency. CEQ moves the cooperating
agency exception to republication to
paragraph (b)(2). Consistent with the
proposed rule, this paragraph also
clarifies that the cooperating agency
adopts such an EIS by issuing its own
ROD.
In the NPRM, proposed paragraph (f)
would allow an agency to adopt another
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agency’s determination that its CE
applies to an action if the adopting
agency’s proposed action is
substantially the same. CEQ includes
this provision in paragraph (d) of the
final rule with clarifying edits. The final
rule provides agencies the flexibility to
adopt another agency’s determination
that a CE applies to an action when the
actions are substantially the same to
address situations where a proposed
action would result in a CE
determination by one agency and an EA
and FONSI by another agency. For
example, this would be the case when
two agencies are engaging in similar
activities in similar areas like smallscale prescribed burns, ecological
restoration, and small-scale land
management practices. Another
example is when one agency’s action
may be a funding decision for a
proposed project, and another agency’s
action is to consider a permit for the
same project.
To allow agencies to use one another’s
CEs without the agency that
promulgated the CE having to take an
action, CEQ also proposed a new
§ 1507.3(e)(5), which would allow
agencies to establish a process in their
NEPA procedures to apply another
agency’s CE. CEQ notes that there was
some confusion among commenters
regarding the difference between the
adoption of CEs under § 1506.3 and the
provision in § 1507.3(f)(5) (proposed
§ 1507.3(e)(5)).97 CEQ has made
clarifying edits to address this
confusion.
The adoption process in § 1506.3(d)
first requires that an agency has applied
a CE listed in its agency NEPA
procedures. Then, the adopting agency
must verify that its proposed action is
substantially the same as the action for
which it is adopting the CE
determination. CEQ adds a sentence in
§ 1507.3(f)(5) of the final rule to clarify
that agencies may establish a separate
process for using another agency’s listed
CE and applying the CE to its proposed
actions. The final rule also requires the
adopting agency to document the
adoption. Agencies may publish, where
appropriate, such documentation or
other information relating to the
adoption.
4. Combining Documents (§ 1506.4)
CEQ proposed to amend § 1506.4,
‘‘Combining documents,’’ to encourage
agencies ‘‘to the fullest extent
practicable’’ to combine their
environmental documents with other
97 For a discussion of the differences between
these two provisions, see section I.3 of the Final
Rule Response to Comments.
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agency documents to reduce duplication
and paperwork. For example, the Corps
routinely combines EISs with feasibility
reports, and agencies may use their
NEPA documents to satisfy compliance
with section 106 of the National Historic
Preservation Act under 36 CFR 800.8.
CEQ includes the proposed revisions in
the final rule with no changes.
5. Agency Responsibility for
Environmental Documents (§ 1506.5)
As discussed in the NPRM, CEQ
proposed to revise § 1506.5, ‘‘Agency
responsibility for environmental
documents,’’ in response to ANPRM
comments urging CEQ to allow greater
flexibility for the project sponsor
(including private entities) to participate
in the preparation of NEPA documents
under the supervision of the lead
agency. CEQ proposed updates to give
agencies more flexibility with respect to
the preparation of environmental
documents while continuing to require
agencies to independently evaluate and
take responsibility for those documents.
Under the proposal, applicants and
contractors would be able to assume a
greater role in contributing information
and material to the preparation of
environmental documents, subject to
the supervision of the agency. However,
agencies would remain responsible for
taking reasonable steps to ensure the
accuracy of information prepared by
applicants and contractors. If a
contractor or applicant prepares the
document, proposed paragraph (c)(1)
would require the decision-making
agency official to provide guidance,
participate in the preparation,
independently evaluate the statement,
and take responsibility for its content.
In the final rule, CEQ retains these
concepts, but reorganizes § 1506.5 to
better communicate the requirements.
Specifically, paragraph (a) contains a
clear statement that the Federal agency
is ultimately responsible for the
environmental document irrespective of
who prepares it. While this is consistent
with the 1978 regulations, CEQ provides
this direct statement at the beginning of
the section to respond to comments that
suggested agencies would be handing
over their responsibilities to project
sponsors under the proposed rule.
Paragraph (b) introductory text and its
subordinate paragraphs capture the
requirements when a project sponsor or
contractor prepares an environmental
document, consolidating requirements
for EISs and EAs into one because there
is no longer a distinction between the
requirements for each document in this
context. Paragraph (b) allows an agency
to require an applicant to submit
environmental information for the
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agency’s use in preparing an
environmental document or to direct an
applicant or authorize a contractor to
prepare an environmental document
under the agency’s supervision. As
noted in the NPRM, CEQ intends these
changes to improve communication
between proponents of a proposal for
agency action and the officials tasked
with evaluating the effects of the action
and reasonable alternatives, to improve
the quality of NEPA documents and
efficiency of the NEPA process.
Paragraph (b)(1) requires agencies to
provide guidance to the applicant or
contractor and participate in the
preparation of the NEPA document.
Paragraph (b)(2) continues to require the
agency to independently evaluate the
information or environmental document
and take responsibility for its accuracy,
scope, and contents. Paragraph (b)(3)
requires the agency to include the
names and qualifications of the persons
who prepared the environmental
document. Adding ‘‘qualifications’’ is
consistent with § 1502.18 and is
important for transparency. For an EIS,
this information would be included in
the list of preparers as required by
§ 1502.18, but agencies have flexibility
on where to include such information in
an EA. Paragraph (b)(4) requires
contractors or applicants preparing EAs
or EISs to submit a disclosure statement
to the lead agency specifying any
financial or other interest in the
outcome of the action, but it need not
include privileged or confidential trade
secrets or other confidential business
information. In the NPRM, CEQ had
proposed to remove the requirement for
a disclosure statement. In response to
comments, CEQ is retaining this concept
in the final rule, recognizing that most
applicants will have such a financial
interest. However, as discussed above,
CEQ finds that it is appropriate to allow
applicants to prepare documents for the
sake of efficiency and because agencies
retain responsibility to oversee and take
responsibility for the final
environmental document.
6. Public Involvement (§ 1506.6)
CEQ proposed to update § 1506.6,
‘‘Public involvement,’’ to give agencies
greater flexibility to design and
customize public involvement to best
meet the specific circumstances of their
proposed actions. The NPRM proposed
revisions to paragraphs (b) and (c) to
add ‘‘other opportunities for public
engagement’’ to recognize that there are
other ways to engage with interested
and affected parties besides hearings
and meetings. CEQ finalizes these
changes in the final rule but changes
‘‘engagement’’ to ‘‘involvement’’
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consistent with the title of the section.
Additionally, the final rule adds a
sentence to these paragraphs to require
agencies to consider interested and
affected parties’ access to electronic
media, such as in rural locations or
economically distressed areas. CEQ had
proposed to state in a new paragraph
(b)(3)(x) that notice may not be limited
solely to electronic methods for actions
occurring in an area with limited access
to high-speed internet. However, CEQ is
including this more general statement in
paragraph (b) as it is a consideration for
notice generally. In paragraph (b)(1),
CEQ proposed to change the
requirement to mail notice in
paragraphs (b)(1) and (2) to the more
general requirement to ‘‘notify’’ to give
agencies the flexibility to use email or
other mechanisms to provide such
notice. CEQ makes this change in the
final rule. CEQ also eliminates the
requirement in paragraph (b)(2) to
maintain a list of organizations
reasonably expected to be interested in
actions with effects of national concern
because such a requirement is
unnecessarily prescriptive given that
agencies may collect and organize
contact information for organizations
that have requested regular notice in
another format given advances in
technology. In the proposed rule, CEQ
proposed to change paragraph (b)(3)(i)
to modify State clearinghouses to State
and local agencies, and change
paragraph (b)(3)(ii) to affected Tribal
governments. In the final rule, CEQ
modifies paragraph (b)(3)(i) to include
notice to State, Tribal, and local
agencies, and paragraph (b)(3)(ii) to
include notice to interested or affected
State, Tribal, and local governments for
consistency with § 1501.9 and part
1503. CEQ proposed a new paragraph
(b)(3)(x) to allow for notice through
electronic media. CEQ includes this
provision in the final rule, moving the
language regarding consideration of
access to paragraph (b), as noted
previously.
In addition to the changes described
above, CEQ proposed to strike the
mandatory criteria in paragraph (c) for
consideration of when to hold or
sponsor public hearings or meetings.
CEQ is removing this language in the
final rule because such criteria are
unnecessarily limiting. Agencies
consider many factors in determining
the most appropriate mechanism for
promoting public involvement,
including the particular location of the
proposed action (if one exists), the types
of effects it may have, and the needs of
interested and affected parties, and may
design their outreach in a manner that
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best engages with those parties. The
flexibility to consider relevant factors is
critical especially in light of unexpected
circumstances, such as the COVID–19
pandemic, which may require agencies
to adapt their outreach as required by
State, Tribal, and local authorities and
conditions.
Finally, CEQ proposed to simplify
paragraph (f) to require agencies to make
EISs, comments and underlying
documents available to the public
consistent with the Freedom of
Information Act (FOIA), removing the
provisos regarding interagency
memoranda and fees. Congress has
amended FOIA numerous times since
the enactment of NEPA, mostly recently
by the FOIA Improvement Act of 2016,
Public Law 114–185, 130 Stat. 538.
Additionally, the revised paragraph (f)
is consistent with the text of section
102(2)(C) of NEPA, including with
regard to fees. CEQ makes these changes
as proposed in the final rule.
7. Further Guidance (§ 1506.7)
CEQ proposed to update and
modernize § 1506.7, ‘‘Further
guidance,’’ to remove the specific
references to handbooks, memoranda,
and the 102 monitor, and replace it with
a statement that CEQ may provide
further guidance concerning NEPA and
its procedures consistent with E.O.
13807 and E.O. 13891, ‘‘Promoting the
Rule of Law Through Improved Agency
Guidance Documents.’’ 98 CEQ makes
these changes in paragraph (a) in the
final rule. This rule supersedes
preexisting CEQ guidance and materials
in many respects. CEQ intends to
publish a separate notice in the Federal
Register listing guidance it is
withdrawing. CEQ will issue new
guidance, as needed, consistent with the
final rule and Presidential directives. In
the interim, in any instances where an
interpretation of the 1978 regulations is
inconsistent with the new regulations or
this preamble’s interpretation of the
new regulations, the new regulations
and interpretations shall apply, and
CEQ includes a new paragraph (b) in the
final rule to provide this clarification.
CEQ notes that guidance does not have
the force and effect of law and is meant
to provide clarity regarding existing law
and policy.
8. Proposals for Legislation (§ 1506.8)
CEQ proposed to move the legislative
EIS requirements from the definition of
legislation in 40 CFR 1508.17 to
paragraph (a) of § 1506.8, ‘‘Proposals for
legislation,’’ and revise the section for
clarity. As noted in the NPRM, agencies
98 84
prepare legislative EISs for Congress
when they are proposing specific
actions. CEQ also invited comment on
whether the legislative EIS requirement
should be eliminated or modified
because the President proposes
legislation, and therefore it is
inconsistent with the Recommendations
Clause of the U.S. Constitution, which
provides the President shall recommend
for Congress’ consideration ‘‘such
[m]easures as he shall judge necessary
and expedient . . . .’’ U.S. Const., art.
II, § 3. The President is not a Federal
agency, 40 CFR 1508.12, and the
proposal of legislation by the President
is not an agency action. Franklin v.
Mass., 505 U.S. 788, 800–01 (1992).
In the final rule, CEQ retains the
provision, but removes the reference to
providing ‘‘significant cooperation and
support in the development’’ of
legislation and the test for significant
cooperation to more closely align this
provision with the statute. The final rule
clarifies that technical drafting
assistance is not a legislative proposal
under these regulations. Consistent with
these edits, CEQ strikes the reference to
the Wilderness Act. The mandate has
expired.99 Under the Wilderness Act, a
study was required to make a
recommendation to the President. If the
President agreed with the
recommendation, the President then
provided ‘‘advice’’ to Congress about
making a wilderness determination. The
President is not subject to NEPA in his
direct recommendations to Congress,
but agencies subject to the APA are
subject to NEPA, as appropriate,
concerning legislative proposals they
develop. This avoids the constitutional
issue. See Ashwander v. Tenn. Valley
Auth., 297 U.S. 288, 347 (1936)
(Brandeis, J., concurring); Rescue Army
v. Mun. Court of L.A., 331 U.S. 549, 569
(1947).
one or more requirements of this
subchapter, the agency may substitute it
for the corresponding requirements in
this subchapter and need not carry out
duplicative procedures or
documentation. Agencies must identify
which corresponding requirements in
this subchapter are satisfied and consult
with CEQ to confirm such
determinations.
CEQ invited comments on analyses
agencies are already conducting that, in
whole or when aggregated, can serve as
the functional equivalent of the EIS.
Aspects of the cost-benefit analysis
prepared pursuant to E.O. 12866,
‘‘Regulatory Planning and Review,’’ the
Regulatory Flexibility Act, or the
Unfunded Mandates Reform Act, may
overlap with aspects of the CEQ
regulations. Further, an agency may rely
on the procedures implementing the
requirements of a variety of statutes and
Executive orders that could meet some
or all of the requirements of this
subchapter. CEQ does not expressly
include specific analyses in the final
rule that satisfy the requirements of the
CEQ regulations. In all instances,
agencies should clearly identify how
and which specific parts of the analyses
serve the purpose of NEPA compliance,
including which requirements in the
CEQ regulations are satisfied.
9. Proposals for Regulations (§ 1506.9)
CEQ proposed to add a new § 1506.9,
‘‘Proposals for regulations,’’ to address
the analyses required for rulemakings
and to promote efficiency and reduce
duplication in the assessment of
regulatory proposals. CEQ proposed
criteria for agencies to identify analyses
that could serve as the functional
equivalent of the EIS. In response to
comments, CEQ revises this section in
the final rule. This section clarifies that
one or more procedures and
documentation prepared pursuant to
other statutory or Executive order
requirements may satisfy one or more
requirements of the CEQ regulations.
When a procedure or document satisfies
11. Timing of Agency Action (§ 1506.11)
CEQ proposed to revise paragraph (a)
of § 1506.11, ‘‘Timing of agency action,’’
to clarify the timing of EPA’s notices of
availability of EISs. In paragraph (b),
CEQ proposed to add a clause to
acknowledge statutory authorities that
provide for the issuance of a combined
final EIS and ROD. See 23 U.S.C.
139(n)(2); 49 U.S.C. 304a(b). CEQ makes
these changes in the final rule.
In proposed paragraph (c), CEQ
proposed to add introductory text and
create subordinate paragraphs to
address those situations where agencies
may make an exception to the time
provisions in paragraph (b).
Specifically, paragraph (c)(1) addresses
agencies with formal appeals processes.
Paragraph (c)(2) provides exceptions for
FR 55235 (Oct. 15, 2019).
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10. Filing Requirements (§ 1506.10)
CEQ proposed to update § 1506.10,
‘‘Filing requirements,’’ to remove the
obsolete process for filing paper copies
of EISs with EPA and EPA’s delivery of
a copy to CEQ, and instead provide for
electronic filing, consistent with EPA’s
procedures. CEQ proposed this change
to provide flexibility to adapt as EPA
changes its processes. CEQ revises this
section in the final rule, making the
proposed changes as well as phrasing
the language in active voice.
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rulemaking to protect public health or
safety. Paragraph (d) addresses timing
when an agency files the final EIS
within 90 days of the draft EIS. Finally,
paragraph (e) addresses when agencies
may extend or reduce the time periods.
The proposed rule made edits to clarify
the language in these paragraphs
without changing the substance of the
provisions. CEQ includes these changes
in the final rule and makes additional
clarifying revisions.
12. Emergencies (§ 1506.12)
Section 1506.12, ‘‘Emergencies,’’
addresses agency compliance with
NEPA when an agency has to take an
action with significant environmental
effects during emergency circumstances.
Over the last 40 years, CEQ has
developed significant experience with
NEPA in the context of emergencies and
disaster recoveries. Actions following
Hurricanes Katrina, Harvey, and
Michael, and other natural disasters,
have given CEQ the opportunity to
respond to a variety of circumstances
where alternative arrangements for
complying with NEPA are necessary.
CEQ has approved alternative
arrangements to allow a wide range of
proposed actions in emergency
circumstances including catastrophic
wildfires, threats to species and their
habitat, economic crisis, infectious
disease outbreaks, potential dam
failures, and insect infestations.100 CEQ
proposed to amend § 1506.12,
‘‘Emergencies,’’ to clarify that
alternative arrangements are still meant
to comply with section 102(2)(C)’s
requirement for a ‘‘detailed statement.’’
This amendment is consistent with
CEQ’s longstanding position that it has
no authority to exempt Federal agencies
from compliance with NEPA, but that
CEQ can appropriately provide for
exceptions to specific requirements of
CEQ’s regulations to address
extraordinary circumstances that are not
addressed by agency implementing
procedures previously approved by
CEQ. See Emergencies Guidance, supra
note 29. CEQ maintains a public
description of all pending and
completed alternative arrangements on
100 In response to the economic crisis associated
with the coronavirus outbreak, Executive Order
13927, titled ‘‘Accelerating the Nation’s Economic
Recovery From the COVID–19 Emergency by
Expediting Infrastructure Investments and Other
Activities,’’ was issued on June 4, 2020. 85 FR
35165. This Executive order directs agencies to
identify planned or potential actions to facilitate the
Nation’s economic recovery, including
identification of actions that may be subject to
emergency treatment as alternative arrangements.
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its website.101 CEQ makes this change in
the final rule.
13. Effective Date (§ 1506.13)
Finally, CEQ proposed to modify
§ 1506.13, ‘‘Effective date,’’ to clarify
that these regulations would apply to all
NEPA processes begun after the
effective date, but agencies have the
discretion to apply them to ongoing
NEPA processes. CEQ also proposed to
remove the 1979 effective date from the
introductory paragraph, and strike 40
CFR 1506.13(a) referencing the 1973
guidance and 40 CFR 1506.13(b)
regarding actions begun before January
1, 1970 because they are obsolete. This
final rule makes these changes.
I. Revisions to Agency Compliance (Part
1507)
CEQ proposed modifications to part
1507, which addresses agency
compliance with NEPA, to consolidate
provisions relating to agency procedures
from elsewhere in the CEQ regulations,
and add a new section to address the
dissemination of information about
agency NEPA programs. CEQ makes
these changes in the final rule with
some modifications to the proposed rule
as discussed in the following sections.
1. Compliance (§ 1507.1)
CEQ proposed a change to § 1507.1,
‘‘Compliance,’’ to strike the second
sentence regarding agency flexibility in
adapting its implementing procedures to
the requirements of other applicable
laws for consistency with changes to
paragraphs (a) and (b) of § 1507.3,
‘‘Agency NEPA procedures.’’ This
change is also consistent with the
direction of the President to Federal
agencies to ‘‘comply with the
regulations issued by the Council except
where such compliance would be
inconsistent with statutory
requirements.’’ E.O. 11514, as amended
by E.O. 11991, sec. 2(g). CEQ makes this
change in the final rule. Under the final
rule, § 1507.1 requires all Federal
agencies to comply with the CEQ
regulations as set forth in parts 1500
through 1508.
2. Agency Capability To Comply
(§ 1507.2)
CEQ proposed edits to the
introductory paragraph of § 1507.2,
‘‘Agency capability to comply,’’ to
clarify its meaning, which is to allow
agencies to use the resources (including
personnel and financial resources) of
other parties, including agencies and
applicants, and to specifically require
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agencies to account for the contributions
of these other parties in complying with
NEPA. This section also requires
agencies to have their own capacity to
comply with NEPA and the
implementing regulations. This includes
staff with the expertise to independently
evaluate environmental documents,
including those prepared by applicants
and contractors. CEQ makes these
clarifying edits in the final rule.
Additionally, CEQ proposed to revise
paragraph (a) to make the senior agency
official responsible for overall agency
compliance with NEPA, including
coordination, communication, and
resolution of implementation issues.
CEQ is finalizing this change. Under the
final rule, the senior agency official is
an official of assistant secretary rank or
higher (or equivalent) with
responsibilities consistent with the
responsibilities of senior agency
officials in E.O. 13807 to whom agencies
elevate anticipated missed or extended
permitting timetable milestones. The
senior agency official is responsible for
addressing disputes among lead and
cooperating agencies and enforcing page
and time limits. The senior agency
official also is responsible for ensuring
all environmental documents—even
exceptionally lengthy ones—are
provided to Federal agency decision
makers in a timely, readable, and useful
format. See §§ 1501.5(f), 1501.7(d),
1501.8(b)(6) and (c), 1501.10, 1502.7,
1507.2, 1508.1(dd).
CEQ proposed to amend paragraph (c)
to emphasize agency cooperation, which
includes commenting on environmental
documents on which an agency is
cooperating. CEQ makes this change in
the final rule. CEQ revises paragraph (d)
in response to comments to strike the
second sentence, which created
confusion regarding the reach of section
102(2)(E) of NEPA. Finally, CEQ
proposed to add references to E.O.
11991, which amended E.O. 11514, and
E.O. 13807 in paragraph (f) to codify
agencies’ responsibility to comply with
the orders. CEQ makes both of these
changes in the final rule.
3. Agency NEPA Procedures (§ 1507.3)
Agency NEPA procedures set forth the
process by which agencies comply with
NEPA and the CEQ regulations in the
context of their particular programs and
processes. In developing their
procedures, agencies should strive to
identify and apply efficiencies, such as
use of applicable CEs, adoption of prior
NEPA analyses, and incorporation by
reference to prior relevant Federal,
State, Tribal, and local analyses,
wherever practicable. To facilitate
effective and efficient procedures, CEQ
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proposed to consolidate all of the
requirements for agency NEPA
procedures in § 1507.3, as discussed in
detail below.
In the final rule, CEQ adds a new
paragraph (a) to clarify the applicability
of these regulations in the interim
period between the effective date of the
final rule and when the agencies
complete updates to their agency NEPA
procedures for consistency with these
regulations. Consistent with § 1506.13,
‘‘Effective date,’’ which makes the
regulations applicable to NEPA reviews
begun after the effective date of the final
rule, paragraph (a) of § 1507.3 requires
agencies to apply these regulations to
new reviews unless there is a clear and
fundamental conflict with an applicable
statute. For NEPA reviews in process
that agencies began before the final
rule’s effective date, agencies may
choose whether to apply the revised
regulations or proceed under the 1978
regulations and their existing agency
NEPA procedures. Agencies should
clearly indicate to interested and
affected parties which procedures it is
applying for each proposed action. The
final rule does not require agencies to
withdraw their existing agency NEPA
procedures upon the effective date, but
agencies should conduct a consistency
review of their procedures in order to
proceed appropriately on new proposed
actions.
Paragraph (a) also provides that
agencies’ existing CEs are consistent
with the subchapter. CEQ adds this
language to ensure CEs remain available
for agencies’ use to ensure a smooth
transition period while they work to
update their existing agency procedures,
including their CEs, as necessary. This
change allows agencies to continue to
use their existing CEs for ongoing
activities as well as proposed actions
that begin after the effective date of the
CEQ final rule, and clarifies that
revisions to existing CEs are not
required within 12 months of the
publication date of the final rule.
Agencies must still consider whether
extraordinary circumstances are present
and should rely upon any extraordinary
circumstances listed in their agency
NEPA procedures as an integral part of
an agency’s process for applying CEs.
In paragraph (b) (proposed paragraph
(a)), CEQ proposed to provide agencies
the later of one year after publication of
the final rule or nine months after the
establishment of an agency to develop
or revise proposed agency NEPA
procedures, as necessary, to implement
the CEQ regulations and eliminate any
inconsistencies with the revised
regulations. CEQ includes this sentence
in the final rule with a correction to the
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deadline—the deadline is calculated
from the effective date, not the
publication date. CEQ notes that this
provision references ‘‘proposed
procedures,’’ and agencies need not
finalize them by this date. The final rule
strikes a balance between minimizing
the disruption to ongoing environmental
reviews while also requiring agencies to
revise their procedures in a timely
manner to ensure future reviews are
consistent with the final rule. Agencies
have the flexibility to address the
requirements of the CEQ regulations as
they relate to their programs and need
not state them verbatim in their
procedures. In addition, CEQ proposed
to clarify that, except as otherwise
provided by law or for agency
efficiency, agency NEPA procedures
shall not impose additional procedures
or requirements beyond those set forth
in the CEQ regulations. CEQ includes
this language in the final rule, changing
the order of the phrases, changing
‘‘provided by law’’ to ‘‘required by law’’
to enhance clarity, and adding a crossreference to paragraph (c), which
references efficiencies. This change is
consistent with the direction of the
President to Federal agencies in E.O.
11514 to comply with the CEQ
regulations issued except where such
compliance would be inconsistent with
statutory requirements. E.O. 11514, as
amended by E.O. 11991, sec. 2(g).
Finally, the final rule eliminates the
sentence from 40 CFR 1507.3(a)
prohibiting agencies from paraphrasing
the CEQ regulations because it is
unnecessarily limiting on agencies.
Agencies have the flexibility to address
the requirements of the CEQ regulations
as they relate to their programs and
need not state them verbatim in their
procedures.
Consistent with its proposal, the final
rule requires agencies to develop or
revise, as necessary, proposed
procedures to implement these
regulations. In the NPRM, CEQ
proposed to subdivide 40 CFR 1507.3(a)
into subordinate paragraphs (a)(1) and
(2) for additional clarity because each of
these paragraphs have an independent
requirement. CEQ finalizes this change
as paragraphs (b)(1) and (2) in the final
rule. Paragraph (b)(1) addresses the
requirement for agencies to consult with
CEQ when developing or revising
proposed procedures. Paragraph (b)(2)
requires agencies to publish proposed
agency NEPA procedures for public
review and comment. After agencies
address these comments, CEQ must
determine that the agency NEPA
procedures conform to and are
consistent with NEPA and the CEQ
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regulations. CEQ proposed to eliminate
the recommendation to agencies to issue
explanatory guidance and the
requirement to review their policies and
procedures. CEQ makes this change in
the final rule because it is redundant to
the proposed language in paragraph (b)
requiring agencies to update their
procedures to implement the final rule.
The NPRM proposed to move the
provisions in § 1505.1, ‘‘Agency
decision making procedures,’’ to
proposed § 1507.3(b). The final rule
moves these provisions to paragraph (c).
As stated in the NPRM, consistent with
the proposed edits to § 1500.1, CEQ
proposed to revise this paragraph to
clarify that agencies should ensure
decisions are made in accordance with
the Act’s procedural requirements and
policy of integrating NEPA with other
environmental reviews to promote
efficient and timely decision making.
CEQ includes these edits in the final
rule, along with an additional edit to
change passive to active voice. CEQ
does not include proposed paragraph
(b)(1) (40 CFR 1505.1(a)) in the final rule
because the phrase ‘‘[i]mplementing
procedures under section 102(2) of
NEPA to achieve the requirements of
section 101 and 102(1)’’ could be read
to suggest that agencies could interpret
NEPA in a manner that would impose
more burdens than the requirements of
the final rule. Including this provision
in the final rule would be inconsistent
with the language in paragraph (b) that
limits agency NEPA procedures to the
requirements in these regulations unless
otherwise required by law or for agency
efficiency. Finally, CEQ corrects the
reference in paragraph (c)(4) to EIS,
changing it to ‘‘environmental
documents’’ consistent with the rest of
the paragraph.
CEQ proposed a new paragraph (b)(6)
to direct agencies to set forth in their
NEPA procedures requirements to
combine their NEPA documents with
other agency documents, especially
where the same or similar analyses are
required for compliance with other
requirements. As stated in the NPRM,
many agencies implement statutes that
call for consideration of alternatives to
the agency proposal, including the no
action alternative, the effects of the
agencies’ proposal and alternatives, and
public involvement. Agencies can use
their NEPA procedures to align
compliance with NEPA and these other
statutory authorities to integrate NEPA’s
goals for informed decision making with
agencies’ specific statutory
requirements. This approach is
consistent with some agency practice.
See, e.g., 36 CFR part 220; Forest
Service Handbook 1909.15 (U.S.
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Service NEPA procedures). More
agencies could use it to achieve greater
efficiency and reduce unnecessary
duplication. Additionally the NPRM
proposed to allow agencies to designate
analyses or processes that serve as the
functional equivalent of NEPA
compliance.
CEQ includes this provision in the
final rule at paragraph (c)(5) with
revisions to clarify that agencies may
designate and rely on one or more
procedures or documents under other
statutes or Executive orders as satisfying
some or all of the requirements in the
CEQ regulations. While courts have held
that agencies do not need to conduct
NEPA analyses under a number of
statutes that are ‘‘functionally
equivalent,’’ including the Clean Air
Act, the Ocean Dumping Act, the
Federal Insecticide, Fungicide, and
Rodenticide Act, the Resource
Conservation and Recovery Act, and the
Comprehensive Environmental
Response, Compensation, and Liability
Act,102 the final rule recognizes that
agencies may substitute processes or
documentation prepared pursuant to
other statutes or Executive orders to
satisfy one or more requirements in the
CEQ regulations to reduce duplication.
Agencies must identify the respective
requirements in this subchapter that are
satisfied by other statutes or Executive
orders.
Furthermore, CEQ proposed to add a
new paragraph to allow agencies to
identify activities or decisions that are
not subject to NEPA, consistent with
§ 1501.1, in their agency NEPA
procedures. CEQ adds this provision to
paragraph (d) in the final rule. The final
102 See Portland Cement Ass’n, 486 F.2d at 387
(finding an exemption from NEPA for Clean Air Act
section 111); see also Envtl. Def. Fund, Inc, 489 F.2d
at 1254–56 (concluding that the standards of FIFRA
provide the functional equivalent of NEPA);
Cellular Phone Taskforce, 205 F.3d at 94–95
(concluding that the procedures followed by the
Federal Communications Commission were
functionally compliant with NEPA’s EA and FONSI
requirements); W. Neb. Res. Council, 943 F.2d at
871–72 (concluding that EPA’s procedures and
analysis under the Safe Drinking Water Act were
functionally equivalent to NEPA); Wyo. v.
Hathaway, 525 F.2d 66, 71–72 (10th Cir. 1975)
(concluding that EPA need not prepare an EIS
before cancelling or suspending registrations of
three chemical toxins used to control coyotes under
FIFRA); State of Ala. ex rel. Siegelman v. U.S. EPA,
911 F.2d 499, 504–05 (11th Cir. 1990) (holding that
EPA did not need to comply with NEPA when
issuing a final operating permit under the Resource
Conservation and Recovery Act); Envtl. Def. Fund,
Inc. v. Blum, 458 F. Supp. 650, 661–62 (D.D.C.
1978) (EPA need not prepare an EIS before granting
an emergency exemption to a state to use an
unregistered pesticide); State of Md. v. Train, 415
F. Supp. 116, 121–22 (D. Md. 1976) (Ocean
Dumping Act functional equivalent of NEPA). For
further discussion, see section J.3 of the Final Rule
Response to Comments.
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rule uses ‘‘should’’ instead of ‘‘may’’ to
encourage agencies to make these
identifications in their agency NEPA
procedures. The final rule also replaces
‘‘actions’’ with ‘‘activities or decisions’’
to avoid confusion with the definition of
‘‘action’’ in § 1508.1(q). CEQ includes
this list in the final rule consistent with
the changes in § 1501.1 as discussed in
section II.C.1, with minor revisions to
improve readability and a reordering of
the provisions consistent with the
reordering of the provisions in § 1501.1.
Paragraph (e) (proposed paragraph
(d)) maintains much of the language
from 40 CFR 1507.3(b). CEQ proposed to
add parenthetical descriptions of the
cross-references in proposed paragraph
(d)(1), and CEQ includes these in the
final rule at paragraph (e)(1). CEQ
proposed to revise paragraph (d)(2)(ii),
which requires agencies to identify CEs
in their agency NEPA procedures, move
the requirement for extraordinary
circumstances from the definition of
CEs in 40 CFR 1508.4, and require
agencies to identify in their procedures
when documentation of a CE
determination is required. CEQ also
proposed to add language to proposed
paragraph (e) to codify existing agency
practice to publish notices when an
agency pauses an EIS or withdraws an
NOI. CEQ includes this provision with
the proposed revisions in the final rule
at paragraph (f)(3). Finally, CEQ
proposed to move from 40 CFR
1502.9(c)(3) to proposed paragraph
(d)(3) the requirement to include
procedures for introducing a
supplement into its formal
administrative record and clarify that
this includes EAs and EISs. CEQ
includes this provision in the final rule
at paragraph (e)(3).
Paragraphs (f)(1) through (3)
(proposed paragraphs (e)(1) through (3))
maintain much of the language from 40
CFR 1507.3(c) through (e). In proposed
paragraph (e)(1), CEQ proposed to revise
the language to active voice and
encourage, rather than just allow,
agencies to organize environmental
documents in such a way as to make
unclassified portions of environmental
documents available to the public. CEQ
makes these revisions in the final rule
in paragraph (f)(1). CEQ also modifies
paragraph (f)(2) to add a reference to the
requirements of lead and cooperating
agencies. CEQ adds this example
consistent with the addition to
§ 1506.11(b) referencing statutory
provisions for combining a final EIS and
ROD. This is also consistent with CEQ’s
goal of improving coordination between
lead and cooperating agencies and
providing efficient processes to allow
for integration of the NEPA review with
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reviews conducted under other statutes.
This allows for altering time periods to
facilitate issuance of a combined FEIS
and ROD. Additionally, CEQ proposed
to move the language allowing agencies
to adopt procedures to combine their EA
process with their scoping process from
40 CFR 1501.7(b)(3) to paragraph (e)(4).
CEQ makes this change in the final rule
at paragraph (f)(4).
Finally, CEQ proposed in paragraph
(e)(5) to allow agencies to establish a
process in their agency NEPA
procedures to apply the CEs of other
agencies. CEQ also invited comment on
whether to set forth this process in these
regulations. In the final rule, CEQ
includes the provision to allow agencies
to establish a process in paragraph (f)(5)
with some changes. CEQ includes
clarifying language to address the
confusion commenters had as to
differences between this section and
adoption of a CE determination under
§ 1506.3. An agency’s process must
provide for consultation with the agency
that listed the CE in its NEPA
procedures to ensure that the planned
use of the CE is consistent with the
originating agency’s intent and
practice.103 The process should ensure
documentation of the consultation and
identify to the public those CEs the
agency may use for its proposed actions.
Consistent with § 1507.4, agencies could
post such information on their websites.
Then, an agency may apply the CE to its
proposed actions, including proposed
projects or activities or groups of
proposed projects or activities.
4. Agency NEPA Program Information
(§ 1507.4)
CEQ proposed to add a new § 1507.4,
‘‘Agency NEPA program information,’’
to provide the means of publishing
information on ongoing NEPA reviews
and agency records relating to NEPA
reviews. CEQ is finalizing this provision
as proposed with no changes. As stated
in the NPRM, this provision requires
agencies in their NEPA procedures to
provide for a website or other means of
publishing certain information on
ongoing NEPA reviews and maintaining
and permitting public access to agency
records relating to NEPA reviews.
Section 1507.4 promotes transparency
and efficiency in the NEPA process, and
improves interagency coordination by
103 The use of another agency’s CE under a
process in the agency’s NEPA procedures is an
option separate from the adoption, under
§ 1506.3(f), of another agency’s determination that
its CE applies to a particular action that is
substantially the same as the adopting agency’s
proposed action. An agency may adopt another
agency’s CE determination for a particular action
regardless of whether its procedures provide a
process for application of other agencies’ CEs.
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ensuring that information is more
readily available to other agencies and
the public. As discussed in the NPRM,
opportunities exist for agencies to
combine existing geospatial data,
including remotely sensed images, and
analyses to streamline environmental
review and better coordinate
development of environmental
documents for multi-agency projects,
consistent with the OFD policy. One
option involves creating a single NEPA
application that facilitates consolidation
of existing datasets and can run several
relevant geographic information system
(GIS) analyses to help standardize the
production of robust analytical results.
This application could have a publicfacing component modeled along the
lines of EPA’s NEPAssist,104 which
would aid prospective project sponsors
with site selection and project design
and increase public transparency. The
application could link to the Permitting
Dashboard to help facilitate project
tracking and flexibilities under
§§ 1506.5 and 1506.6. CEQ invited
comment on this proposal, including
comment on whether additional
regulatory changes could help facilitate
streamlined GIS analysis to help
agencies comply with NEPA. While
some commenters supported the
development of a single NEPA
application, others identified challenges
to ensuring databases are useful, as well
as privacy and security concerns. CEQ
did not receive sufficient comment to
lead CEQ to make additional regulatory
changes to facilitate streamlined GIS
analysis to help agencies comply with
NEPA, and the final rule does not
contain any changes from the proposal.
J. Revisions to Definitions (Part 1508)
NEPA does not itself include a set of
definitions provided by Congress. CEQ,
in the 1978 regulations, established a set
of definitions for NEPA and the CEQ
regulations. In this final rule, CEQ has
clarified or supplemented the
definitions as discussed below and
further described in the Final Rule
Response to Comments at section K. As
noted above, see Public Citizen, 541
U.S. at 757; Methow Valley, 490 U.S. at
355 (citing Andrus, 442 U.S. at 358);
Brand X, 545 U.S. at 980–86; and Mead
Corp., 533 U.S. at 227–30, CEQ has the
authority to interpret NEPA. See, e.g.,
Barnhart v. Walton, 535 U.S. 212, 218
(2002) (‘‘[S]ilence, after all, normally
creates ambiguity. It does not resolve
it.’’). Existing NEPA case law inevitably
104 https://nepassisttool.epa.gov/nepassist/
nepamap.aspx. See also the Marine Cadastre, which
provides consolidated GIS information for offshore
actions, https://marinecadastre.gov/.
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rests directly on interpretive choices
made in the 1978 regulations or on cases
that themselves through some chain of
prior cases also trace to the 1978
regulations. Yet consistent with
Chevron, CEQ’s NEPA regulations are
subject to change. See also Brand X, 545
U.S. 967.
CEQ’s intention to make use of its
interpretive authority under Chevron is
particularly applicable as to part 1508
where CEQ defines or revises key terms
in the NEPA statute and the CEQ
regulations. As a result, this confers on
CEQ an even greater degree of latitude
to elucidate the meaning of the statute’s
terms in these regulations—the same
basic authority exercised by CEQ back
in 1978 in the original form of the NEPA
regulations. See, e.g., Demski v. U.S.
Dep’t of Labor, 419 F.3d 488, 491 (6th
Cir. 2005) (‘‘In the absence of a
congressional definition or an explicit
delegation of congressional authority to
the agency, we determine how the
agency responsible for implementing
the statute . . . understands the term,
and, under Chevron . . . we determine
whether such an understanding is a
‘reasonable interpretation’ of the
statute.’’ (citing Chevron, 467 U.S. at
844)); London v. Polishook, 189 F.3d
196, 200 (2d Cir. 1999) (‘‘[J]udicial
deference does apply to the guidelines
that [the] Department’s Office of Labor–
Management Standards Enforcement
has developed and set out in its LMRDA
Interpretive Manual § 030.425—
guidelines to which [the D.C. Circuit in
Martoche] deferred in the absence of a
clear definition of ‘political subdivision’
in the Act or in its legislative history.’’);
Hawaii Gov’t Employees Ass’n, Am.
Fed’n of State, Cty. & Mun. Employees,
Local 152 v. Martoche, 915 F.2d 718,
721 (D.C. Cir. 1990) (‘‘With some
imprecision in the statutory text [as to
an undefined term] and a nearly total
lack of elucidation in the legislative
history, the situation is squarely one in
which Congress implicitly left a gap for
the agency to fill.’’) (internal citation
and quotation marks omitted). See also
Perez v. Commissioner, 144 T.C. 51, 59
(2015); Saha Thai Steel Pipe (Pub.) Co.
v. United States, 33 C.I.T. 1541, 1547
(Ct. of Int’l Trade 2009).105 In
promulgating new or revised definitions
and other changes to the NEPA
regulations, CEQ has considered the
105 ‘‘Although NEPA’s statutory text specifies
when an agency must comply with NEPA’s
procedural mandate; it is the Council on
Environmental Quality Regulations (‘CEQ’)
regulations which dictate the how, providing the
framework by which all [F]ederal agencies comply
with NEPA.’’ Dine’ Citizens Against Ruining Our
Environment v. Klein, 747 F. Supp. 2d 1234, 1248
(D. Colo. 2010) (emphasis in original).
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ordinary meaning of the terms used by
Congress in the statute.
As discussed in the NPRM, CEQ
proposed significant revisions to part
1508. CEQ proposed to move the
operative language, which is regulatory
language that provides instruction or
guidance, included throughout the
regulations in this section to the
relevant substantive sections of the
regulations. Consistent with this change,
CEQ proposed to retitle part 1508 from
‘‘Terminology and Index’’ to
‘‘Definitions.’’ 106 CEQ also proposed to
clarify the definitions of a number of
key NEPA terms in order to reduce
ambiguity, both through modification of
existing definitions and the addition of
new definitions. CEQ proposed to
eliminate individual section numbers
for each term in favor of a single section
of defined terms in the revised § 1508.1.
Finally, CEQ proposed to remove
citations to the specific definition
sections throughout the rule. CEQ
makes these changes in the final rule.
1. Clarifying the Meaning of ‘‘Act’’
CEQ proposed in paragraph (a) to add
‘‘NEPA’’ as a defined term with the
same meaning as ‘‘Act.’’ CEQ makes this
change in the final rule.
2. Definition of ‘‘Affecting’’
CEQ did not propose to make any
change to the defined term ‘‘affecting’’
in paragraph (b). CEQ does not make
any changes to this definition in the
final rule.
3. New Definition of ‘‘Authorization’’
CEQ proposed to define the term
‘‘authorization’’ in paragraph (c) to refer
to the types of activities that might be
required for permitting a proposed
action, in particular infrastructure
projects. This definition is consistent
with the definition included in FAST–
41 and E.O. 13807. CEQ proposed to
replace the word ‘‘entitlement’’ with
‘‘authorization’’ throughout the rule.
CEQ adds this definition and makes
these changes in the final rule.
4. Clarifying the Meaning of
‘‘Categorical Exclusion’’
CEQ proposed to revise the definition
of ‘‘categorical exclusion’’ in paragraph
(d) by inserting ‘‘normally’’ to clarify
that there may be situations where an
action may have significant effects on
account of extraordinary circumstances.
106 CEQ has maintained an index in the Code of
Federal Regulations, but this is not a part of the
regulations. CEQ does not intend to continue to
maintain such an index because it is no longer
necessary given that the regulations are typically
accessed electronically and the regulations’
organization has been significantly improved.
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CEQ also proposed to strike
‘‘individually or cumulatively’’ for
consistency with the proposed revisions
to the definition of ‘‘effects’’ as
discussed in this section. CEQ proposed
conforming edits in §§ 1500.4(a) and
1500.5(a). As noted in section II.I.3, CEQ
proposed to move the requirement to
provide for extraordinary circumstances
in agency procedures to
§ 1507.3(d)(2)(ii) (§ 1507.3(e)(2)(ii) in the
final rule). CEQ makes these changes in
the final rule. CEQ notes that the
definition of ‘‘categorical exclusion’’
only applies to those CEs created by an
agency in its agency NEPA procedures
and does not apply to ‘‘legislative’’ CEs
created by Congress, which are
governed by the terms of the specific
statute and statutory interpretation of
the agency charged with the
implementation of the statute.
5. Clarifying the Meaning of
‘‘Cooperating Agency’’
CEQ proposed to amend the
definition of ‘‘cooperating agency’’ in
paragraph (e) to make clear that a State,
Tribal, or local agency may be a
cooperating agency when the lead
agency agrees, and to move the
corresponding operative language
allowing a State, Tribal, or local agency
to become a cooperating agency with the
lead agency’s agreement to paragraph (a)
of § 1501.8, ‘‘Cooperating agencies.’’
CEQ also proposed to remove the
sentence cross-referencing the
cooperating agency section in part 1501
and stating that the selection and
responsibilities of a cooperating agency
are described there because it is
unnecessary and does not define the
term. CEQ makes these changes in the
final rule.
6. Definition of ‘‘Council’’
CEQ did not propose any changes to
the definition of ‘‘Council’’ in paragraph
(f). CEQ also invited comment on
whether to update references to
‘‘Council’’ in the regulations to ‘‘CEQ’’
throughout the rule. CEQ did not
receive sufficient comments on this
proposal; therefore, CEQ does not make
this change in the final rule.
7. Definition of ‘‘Cumulative Impact’’
and Clarifying the Meaning of ‘‘Effects’’
CEQ proposed to remove the
definition of ‘‘cumulative impact’’ and
revise the definition of ‘‘effects’’ in
paragraph (g). As noted in the NPRM,
many commenters to the ANPRM urged
CEQ to refine the definition based on
concerns that it creates confusion, and
that the terms ‘‘indirect’’ and
‘‘cumulative’’ have been interpreted
expansively resulting in excessive
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documentation about speculative effects
and leading to frequent litigation.
Commenters also raised concerns that
this has expanded the scope of NEPA
analysis without serving NEPA’s
purpose of informed decision making.
Commenters stressed that the focus of
the effects analysis should be on those
effects that are reasonably foreseeable,
related to the proposed action under
consideration, and subject to the
agency’s jurisdiction and control.
Commenters also noted that NEPA
practitioners often struggle with
describing cumulative impacts despite a
number of publications that address the
topic.
While NEPA refers to environmental
impacts and environmental effects, it
does not subdivide the terms into direct,
indirect, or cumulative. Nor are the
terms ‘‘direct,’’ ‘‘indirect,’’ or
‘‘cumulative’’ included in the text of the
statute. CEQ created those concepts and
included them in the 1978 regulations.
To address commenters’ concerns and
reduce confusion and unnecessary
litigation, CEQ proposed to simplify the
definition of effects by striking the
specific references to direct, indirect,
and cumulative effects and providing
clarity on the bounds of effects
consistent with the Supreme Court’s
holding in Public Citizen, 541 U.S. at
767–68. Under the proposed definition,
effects must be reasonably foreseeable
and have a reasonably close causal
relationship to the proposed action or
alternatives; a ‘‘but for’’ causal
relationship is insufficient to make an
agency responsible for a particular effect
under NEPA. This close causal
relationship is analogous to proximate
cause in tort law. Id. at 767; see also
Metro. Edison Co., 460 U.S. at 774
(interpreting section 102 of NEPA to
require ‘‘a reasonably close causal
relationship between a change in the
physical environment and the effect at
issue’’ and stating ‘‘[t]his requirement is
like the familiar doctrine of proximate
cause from tort law.’’). CEQ sought
comment on whether to include in the
definition of effects the concept that the
close causal relationship is ‘‘analogous
to proximate cause in tort law,’’ and if
so, how CEQ could provide additional
clarity regarding the meaning of this
phrase.
In the final rule, CEQ revises the
definition of effects consistent with the
proposal, with some additional edits.
First, to eliminate the circularity in the
definition, CEQ changes the beginning
of the definition from ‘‘means effects of’’
to ‘‘means changes to the human
environment from’’ the proposed action
or alternatives. This change also
associates the definition of effects with
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the definition of human environment,
which continues to cross-reference to
the definition of effects in the final rule.
It also makes clear that, when the
regulations use the term ‘‘effects,’’ it
means effects on the human
environment. This responds to
comments suggesting CEQ add ‘‘on the
human environment’’ after ‘‘effects’’ in
various sections of the rule.
The final rule also consolidates the
first two sentences of the definition to
clarify that, for purposes of this
definition, ‘‘effects that occur’’ at the
‘‘same time and place as the proposed
action or alternatives,’’ or that ‘‘are later
in time or farther removed in distance’’
must nevertheless be reasonably
foreseeable and have a reasonably close
causal relationship to the proposed
action or alternatives. As a separate
sentence that only referenced reasonable
foreseeability, there was ambiguity as to
whether a reasonably close causal
relationship was required. Additionally,
the final rule adds a clause to clarify
that the consideration of time and place
or distance are relative to the proposed
action or alternatives.
CEQ proposed to strike the definition
of ‘‘cumulative impact’’ and the terms
‘‘direct’’ and ‘‘indirect’’ in order to focus
agency time and resources on
considering whether the proposed
action causes an effect rather than on
categorizing the type of effect. As stated
in the NPRM, CEQ intends the revisions
to simplify the definition to focus
agencies on consideration of effects that
are reasonably foreseeable and have a
reasonably close causal relationship to
the proposed action. In practice,
agencies have devoted substantial
resources to categorizing effects as
direct, indirect, or cumulative, which,
as noted above, are not terms referenced
in the NEPA statute. CEQ eliminates
these references in the final rule.
To further assist agencies in their
assessment of significant effects, CEQ
also proposed to clarify that agencies
should not consider effects significant if
they are remote in time, geographically
remote, or the result of a lengthy causal
chain. See, e.g., Pub. Citizen, 541 U.S.
at 767–68 (‘‘In particular, ‘courts must
look to the underlying policies or
legislative intent in order to draw a
manageable line between those causal
changes that may make an actor
responsible for an effect and those that
do not.’ ’’ (quoting Metro. Edison Co.,
460 U.S. at 774 n.7)); Metro. Edison Co.,
460 U.S. at 774 (noting effects may not
fall within section 102 of NEPA because
‘‘the causal chain is too attenuated’’).
CEQ revises this sentence in the final
rule to add ‘‘generally’’ to reflect the fact
that there may occasionally be a
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circumstance where an effect that is
remote in time, geographically remote,
or the product of a lengthy causal chain
is reasonably foreseeable and has a
reasonably close causal relationship to
the proposed action.
Further, CEQ proposed to codify a key
holding of Public Citizen relating to the
definition of effects to make clear that
effects do not include effects that the
agency has no authority to prevent or
that would happen even without the
agency action, because they would not
have a sufficiently close causal
connection to the proposed action. For
example, this would include effects that
would constitute an intervening and
superseding cause under familiar
principles of tort law. See, e.g., Sierra
Club v. FERC, 827 F.3d 36, 47–48 (D.C.
Cir. 2016) (NEPA case incorporating
these principles) (‘‘[C]ritical to
triggering that chain of events is the
intervening action of the Department of
Energy in granting an export license.
The Department’s independent decision
to allow exports—a decision over which
the Commission has no regulatory
authority—breaks the NEPA causal
chain and absolves the Commission of
responsibility to include in its NEPA
analysis considerations that it ‘could not
act on’ and for which it cannot be ‘the
legally relevant cause.’’’ (quoting Pub.
Citizen, 541 U.S. at 769)). As discussed
in the NPRM, this clarification will help
agencies better understand what effects
they need to analyze and discuss,
helping to reduce delays and paperwork
with unnecessary analyses. CEQ
includes this language in the final rule
as proposed.
In addition, CEQ proposed a change
in position to state that analysis of
cumulative effects, as defined in the
1978 regulations, is not required under
NEPA. Categorizing and determining the
geographic and temporal scope of such
effects has been difficult and can divert
agencies from focusing their time and
resources on the most significant effects.
Past CEQ guidance has not been
successful in dispelling ambiguity.
Excessively lengthy documentation that
does not focus on the most meaningful
issues for the decision maker’s
consideration can lead to encyclopedic
documents that include information that
is irrelevant or inconsequential to the
decision-making process. Instead,
agencies should focus their efforts on
analyzing effects that are most likely to
be potentially significant and effects
that would occur as a result of the
agency’s decision, rather than effects
that would be the result of intervening
and superseding causes. Agencies are
not expected to conduct exhaustive
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research on identifying and categorizing
actions beyond the agency’s control.
CEQ intended the proposed
elimination of the definition of
cumulative impact to focus agencies on
analysis of effects that are reasonably
foreseeable and have a reasonably close
causal relationship to the proposed
action. Cumulative effects analysis has
been interpreted so expansively as to
undermine informed decision making,
and led agencies to conduct analyses to
include effects that are not reasonably
foreseeable or do not have a reasonably
close causal relationship to the
proposed action or alternatives. CEQ
also invited comment on whether to
include an affirmative statement that
consideration of indirect effects is not
required; the final rule does not include
additional direction to agencies specific
to indirect effects.
CEQ received many comments on
cumulative effects. In the final rule, to
provide further clarification, CEQ
includes a new provision at paragraph
(g)(3) that states that the analysis of
effects shall be consistent with the
definition of effects, and that
cumulative impact, defined in 40 CFR
1508.7 (1978), is repealed. This
language explains how agencies should
apply the definition of effects with
respect to environmental documents
and other provisions in the final rule.
Specifically, analyses are bound by the
definition of effects as set forth in
§ 1508.1(g)(1) and (2) and should not go
beyond the definition of effects set forth
in those two paragraphs. The final rule
provides considerable flexibility to
agencies to structure the analysis of
effects based on the circumstances of
their programs.
In response to the NPRM, commenters
stated that agencies would no longer
consider the impacts of a proposed
action on climate change. The rule does
not preclude consideration of the
impacts of a proposed action on any
particular aspect of the human
environment. The analysis of the
impacts on climate change will depend
on the specific circumstances of the
proposed action. As discussed above,
under the final rule, agencies will
consider predictable trends in the area
in the baseline analysis of the affected
environment.
8. Clarifying the Meaning of
‘‘Environmental Assessment’’
CEQ proposed to revise the definition
of ‘‘environmental assessment’’ in
paragraph (h), describing the purpose
for the document and moving all of the
operative language setting forth the
requirements for an EA from the
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definition to proposed § 1501.5. CEQ
makes this change in the final rule.
9. Clarifying the Meaning of
‘‘Environmental Document’’
CEQ proposed to remove the crossreferences from the definition of
‘‘environmental document’’ in
paragraph (i). CEQ makes this change in
the final rule.
10. Clarifying the Meaning of
‘‘Environmental Impact Statement’’
CEQ proposed to change ‘‘the Act’’ to
‘‘NEPA’’ in the definition of
‘‘environmental impact statement’’ in
paragraph (j). CEQ makes this change in
the final rule.
11. Clarifying the Meaning of ‘‘Federal
Agency’’
CEQ proposed to amend the
definition of ‘‘Federal agency’’ in
paragraph (k) to broaden it to include
States, Tribes, and units of local
government to the extent that they have
assumed NEPA responsibilities from a
Federal agency pursuant to statute. As
stated in the NPRM, since the issuance
of the CEQ regulations, Congress has
authorized assumption of NEPA
responsibilities in other contexts
besides the Housing and Community
Development Act of 1974, Public Law
93–383, sec. 104(h), 88 Stat. 633, 640, 42
U.S.C. 5304. See, e.g., Surface
Transportation Project Delivery
Program, 23 U.S.C. 327. This change
acknowledges these programs and helps
clarify roles and responsibilities. CEQ
makes this change and minor clarifying
edits in the final rule.
12. Clarifying the Meaning of ‘‘Finding
of No Significant Impact’’
CEQ proposed to revise the definition
of ‘‘finding of no significant impact’’ in
paragraph (l) to insert the word
‘‘categorically’’ into the phrase ‘‘not
otherwise excluded,’’ change the crossreference to the new section addressing
CEs at § 1501.4, and move the operative
language requiring a FONSI to include
an EA or a summary of it and allowing
incorporation by reference of the EA to
§ 1501.6, which addresses the
requirements of a FONSI. CEQ makes
these revisions in the final rule.
13. Clarifying the Meaning of ‘‘Human
Environment’’
CEQ proposed to change ‘‘people’’ to
‘‘present and future generations of
Americans’’ consistent with section
101(a) of NEPA to the definition of
human environment in paragraph (m).
CEQ also proposed to move the
operative language stating that
economic or social effects by themselves
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do not require preparation of an EIS to
§ 1502.16(b), which is the section of the
regulations that addresses when
agencies should consider economic or
social effects in an EIS. CEQ makes
these changes in the final rule to assist
agencies in understanding and
implementing the statute and
regulations.
14. Definition of ‘‘Jurisdiction by Law’’
The NPRM did not propose any
changes to the definition of jurisdiction
by law in paragraph (n). CEQ did not
revise this definition in the final rule.
15. Clarifying the Meaning of ‘‘Lead
Agency’’
CEQ proposed to amend the
definition of lead agency in paragraph
(o) to clarify that this term includes joint
lead agencies, which are an acceptable
practice. CEQ makes this change in the
final rule.
16. Clarifying the Meaning of
‘‘Legislation’’
CEQ proposed to move the operative
language regarding the test for
significant cooperation and the
principle that only the agency with
primary responsibility will prepare a
legislative EIS to § 1506.8. CEQ also
proposed to strike the example of
treaties, because the President is not a
Federal agency, and therefore a request
for ratification of a treaty would not be
subject to NEPA. CEQ makes these
changes in the final rule, striking the
references to ‘‘significant cooperation
and support,’’ in paragraph (p) to
narrow the definition to comport with
the NEPA statute, as discussed in
section II.H.8.
17. Clarifying the Meaning of ‘‘Major
Federal Action’’
CEQ received many comments on the
ANPRM requesting clarification of the
definition of major Federal action. For
example, CEQ received comments
proposing that non-Federal projects
should not be considered major Federal
actions based on a very minor Federal
role. Commenters also recommended
that CEQ clarify the definition to
exclude decisions where agencies do
not have discretion to consider and
potentially modify their actions based
on the environmental review.
CEQ proposed to amend the first
sentence of the definition in paragraph
(q) to clarify that an action meets the
definition if it is subject to Federal
control and responsibility, and it has
effects that may be significant. CEQ
proposed to replace ‘‘major’’ effects with
‘‘significant’’ in this sentence to align
with the NEPA statute. In the final rule,
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CEQ revises the definition to remove
reference to significance. CEQ also
revises the definition to remove the
circularity in the definition, changing
‘‘means an action’’ to ‘‘means an activity
or decision’’ that is subject to Federal
control and responsibility.
i. Independent Meaning of ‘‘Major’’
CEQ proposed to strike the second
sentence of the definition, which
provides ‘‘Major reinforces but does not
have a meaning independent of
significantly.’’ CEQ makes this change
in the final rule. This is a change in
position as compared to CEQ’s earlier
interpretation of NEPA and, in
finalizing this change, CEQ intends to
correct this longstanding
misconstruction of the NEPA statute.
The statutory aim of NEPA is to focus
on ‘‘major Federal actions significantly
affecting the quality of the human
environment,’’ 42 U.S.C. 4332(2)(C),
rather than on non-major Federal
actions that simply have some degree of
Federal involvement. Under the 1978
regulations, however, the word ‘‘major’’
was rendered virtually meaningless.
CEQ makes this change because all
words of a statute must be given
meaning consistent with longstanding
principles of statutory interpretation.
See, e.g., Bennett, 520 U.S. at 173 (‘‘It is
the cardinal principle of statutory
construction . . . that it is our duty to
give effect, if possible, to every clause
and word of a statute . . . rather than
to emasculate an entire section.’’)
(internal quotations and citations
omitted) (quoting United States v.
Menasche, 348 U.S. 528, 538 (1955)).
Although the 1978 regulations treated
the terms ‘‘major’’ and ‘‘significantly’’ as
interchangeable, there is an important
distinction between the two terms and
how they apply in the NEPA process.
‘‘Major’’ refers to the type of action,
including the role of the Federal agency
and its control over any environmental
impacts. ‘‘Significant’’ relates to the
effects stemming from the action,
including consideration of the affected
area, resources, and the degree of the
effects. In the statute, ‘‘major’’ occurs
twice, and in both instances is a
modifier of ‘‘Federal action’’—in section
102(2)(C) in the phrase ‘‘other major
Federal actions significantly affecting
the quality of the human environment,’’
and section 102(2)(D) in the phrase,
‘‘any major Federal action funded under
a program of grants to States.’’ NEPA
also uses ‘‘significant’’ or ‘‘significantly’’
twice as a modifier of the similar words
‘‘affecting’’ in section 102(2)(C) and
‘‘impacts’’ in section 102(2)(D)(iv).
The legislative history of NEPA also
reflects that Congress used the term
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‘‘major’’ independent of ‘‘significantly,’’
and provided that, for major actions,
agencies should make a determination
as to whether the proposal would have
a significant environmental impact.
Specifically, the Senate Report for the
National Environmental Policy Act of
1969 (Senate Report) states, ‘‘Each
agency which proposes any major
actions, such as project proposals,
proposals for new legislation,
regulations, policy statements, or
expansion or revision of ongoing
programs, shall make a determination
as to whether the proposal would have
a significant effect upon the quality of
the human environment.’’ S. Rep. No.
91–296, at 20 (1969) (emphasis
added).107 Further, the Senate Report
shows that OMB’s predecessor, the
Bureau of the Budget, submitted
comments on the legislation to provide
the views of the Executive Office of the
President and recommended that
Congress revise the text of the bill to
include two separate modifiers: ‘‘major’’
before Federal actions and
‘‘significantly’’ before affecting the
quality of the human environment. See
id. at 30 (Bureau of the Budget’s markup
returned to the Senate on July 7, 1969).
The enacted legislation included these
revisions. While CEQ followed the Eight
Circuit’s approach in Minnesota Public
Interest Research Group v. Butz, 498
F.2d 1314, 1321–22 (8th Cir. 1974), in
the 1978 regulations, other courts had
interpreted ‘‘major’’ and ‘‘significantly’’
as having independent meaning before
CEQ issued its 1978 regulations. See
NAACP v. Med. Ctr., Inc., 584 F.2d 619,
629 (3d Cir. 1978) (analyzing the
Secretary’s ministerial approval of a
capital expenditure under a framework
that first considered whether there had
been agency action, and then whether
that action was ‘‘major’’); Hanly v.
Mitchell, 460 F.2d 640, 644–45 (2d Cir.
1972) (‘‘There is no doubt that the Act
contemplates some agency action that
does not require an impact statement
because the action is minor and has so
little effect on the environment as to be
insignificant.’’ (internal citations
omitted)); Scherr v. Volpe, 466 F.2d
1027, 1033 (7th Cir. 1972) (finding that
a highway project qualifies as major
before turning to the second step of
whether the project would have a
significant effect); Julius v. City of Cedar
Rapids, 349 F. Supp. 88, 90 (N.D. Iowa
1972) (finding that a lane widening
project was not a major Federal action);
Goose Hollow Foothills League v.
Romney, 334 F. Supp. 877, 879 (D. Or.
1971) (discussing whether a proposed
107 https://ceq.doe.gov/docs/laws-regulations/
Senate-Report-on-NEPA.pdf.
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building project was ‘‘major’’); SW
Neighborhood Assembly v. Eckard, 445
F. Supp. 1195, 1199 (D.D.C. 1978) (‘‘The
phrase ‘major Federal action’ has been
construed by the Courts to require an
inquiry into such questions as the
amount of federal funds expended by
the action, the number of people
affected, the length of time consumed,
and the extent of government planning
involved.’’ (citing Hanly, 460 F.2d at
644)); Nat. Res. Def. Council v. Grant,
341 F. Supp. 356, 366 (E.D.N.C. 1972)
(‘‘Certainly, an administrative agency
[such] as the Soil Conservation Service
may make a decision that a particular
project is not major, or that it does not
significantly affect the quality of the
human environment, and, that,
therefore, the agency is not required to
file an impact statement.’’). Moreover, as
discussed further below, over the past
four decades, in a number of cases,
courts have determined that NEPA does
not apply to actions with minimal
Federal involvement or funding. Under
the revised definition, these would be
non-major Federal actions.
In the final rule, CEQ reorganizes the
remainder of the definition of major
Federal action into subordinate
paragraphs. Paragraph (q)(1) provides a
list of activities or decisions that are not
included within the definition.
ii. Extraterritoriality
In the NPRM, CEQ requested
comment on whether to clarify that
major Federal action does not include
extraterritorial actions because NEPA
does not apply extraterritorially,
consistent with Kiobel v. Royal Dutch
Petroleum Co., 569 U.S. 108, 115–16
(2013), in light of the ordinary
presumption against extraterritorial
application when a statute does not
clearly indicate that extraterritorial
application is intended by Congress. In
the final rule, CEQ revises the definition
of ‘‘Major Federal action’’ in a new
paragraph (q)(1)(i) to exclude
extraterritorial activities or decisions,
which mean activities or decisions with
effects located entirely outside the
jurisdiction of the United States.108
The Supreme Court has stated that
‘‘[i]t is a longstanding principle of
American law ‘that legislation of
Congress, unless a contrary intent
appears, is meant to apply only within
the territorial jurisdiction of the United
108 The Restatement of Foreign Relations Law
provides that the areas within the territorial
jurisdiction of the United States include ‘‘its land,
internal waters, territorial sea, the adjacent airspace,
and other places over which the United States has
sovereignty or some measure of legislative control.’’
Restatement (Fourth) of Foreign Relations Law sec.
404 (2018).
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States.’ ’’ EEOC v. Arabian Am. Oil Co.
(Aramco), 499 U.S. 244, 248 (1991)
(quoting Foley Bros. v. Filardo, Inc., 336
U.S. 281, 285 (1949)). During the past
decade, the Supreme Court has
considered the application of the
presumption to a variety of Federal
statutes.109 As the Supreme Court has
stated, the presumption ‘‘rests on the
perception that Congress ordinarily
legislates with respect to domestic, not
foreign matters.’’ Morrison, 561 U.S. at
255 (citing Smith v. United States, 507
U.S. 197, 204 n.5 (1993)). ‘‘Thus, ‘unless
there is the affirmative intention of the
Congress clearly expressed’ to give a
statute extraterritorial effect, ‘we must
presume it is primarily concerned with
domestic conditions.’ ’’ Morrison, 561
U.S. at 255 (citing Aramco, 499 U.S. at
248). The Supreme Court has held,
including in more recent decisions, that
the presumption applies regardless of
whether there is a risk of conflict
between the U.S. statute and a foreign
law. Morrison, 561 U.S. at 255 (citing
Sale v. Haitian Ctrs. Council, Inc., 509
U.S. 155, 173–74 (1993)); RJR Nabisco,
136 S. Ct. at 2100; see also Smith, 507
U.S. at 204 n.5.
The Supreme Court has established a
two-step framework for analyzing
whether the presumption against
extraterritoriality applies to a Federal
statute.110 Under this framework, the
first step is to ask whether the
presumption against extraterritoriality
has been rebutted because ‘‘the statute
gives a clear, affirmative indication that
it applies extraterritorially.’’ RJR
Nabisco, 136 S. Ct. at 2101. If the
presumption has not been rebutted, the
second step is to determine whether the
case involves a domestic application of
the statute, and courts have done this by
looking to the statute’s ‘‘focus.’’ 111
Under the two-step framework, CEQ
has determined that because the
legislative history and statutory text of
109 See RJR Nabisco, Inc. v. European Cmty., 136
S. Ct. 2090 (2016) (Racketeer Influenced and
Corrupt Organizations Act); Kiobel, 569 U.S. at 115–
16 (Alien Tort Statute); Morrison v. Nat’l Austl.
Bank Ltd., 561 U.S. 247, 255 (2010) (Securities and
Exchange Act of 1934); WesternGeco LLC v. ION
Geophysical Corp., 138 S. Ct. 2129 (2018) (Patent
Act).
110 See RJR Nabisco, 136 S. Ct. at 2101 (citing
Morrison, 561 U.S. at 267 n.9; Kiobel, 569 U.S. 108);
see also WesternGeco LLC, 138 S. Ct. 2129.
111 Id. (‘‘If the conduct relevant to the statute’s
focus occurred in the United States, then the case
involves a permissible domestic application even if
other conduct occurred abroad; but if the conduct
relevant to the focus occurred in a foreign country,
then the case involves an impermissible
extraterritorial application regardless of any other
conduct that occurred in U.S. territory.’’). This twostep framework for analyzing extraterritoriality
issues is also reflected in the Restatement of Foreign
Relations Law. See Restatement (Fourth) of Foreign
Relations Law sec. 404 (2018).
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section 102(2)(C) gives no clear
indication that it applies
extraterritorially, the presumption
against extraterritoriality has not been
rebutted. The plain language of section
102(2)(C) does not require it to be
applied to actions occurring outside the
jurisdiction of the United States.112 The
only reference in the Act to
international considerations is in
section 102(2)(F), which refers to
‘‘international cooperation’’ and the
‘‘worldwide and long-range character of
environmental problems,’’ and directs
agencies to ‘‘where consistent with the
foreign policy of the United States, lend
appropriate support to initiatives,
resolutions, and programs designed to
maximize international cooperation’’ to
protect the environment. 42 U.S.C.
4332(2)(F). International cooperation is
inherently voluntary and not part of the
mandatory analysis required under the
statute, and this provision does not
indicate in any way that the
requirements of section 102(2)(C) to
prepare detailed statements applies
outside of U.S. territorial jurisdiction.
The limited legislative history of section
102(2)(C) similarly does not include
discussion of application of the
requirements of section 102(2)(C) to
extraterritorial actions.113
Under the two-step framework, CEQ
has also considered the purpose of
section 102(2)(C), which is to ensure
that a Federal agency, as part of its
decision making process, considers the
potential environmental impacts of
proposed actions. The focus of
congressional concern is the proposed
action and its potential environmental
effects. The effects of a proposed action
may occur both within U.S. territorial
jurisdiction as well as outside that
jurisdiction. To the extent effects of a
proposed action occur entirely outside
the territorial jurisdiction of the United
States, the application of section
102(2)(C) would not be permissible,
consistent with the Supreme Court’s
holding that where the conduct relevant
to the statute’s focus occurred in the
United States, then ‘‘the case involves a
112 Section 102(2)(C) directs Federal agencies to
provide a detailed statement for major Federal
actions significantly affecting the quality of the
human environment, and requires the responsible
official to consult with and obtain the comments of
Federal agencies with jurisdiction or special
expertise, as well as to make copies of the statement
and comments and views of Federal, state and local
agencies available to the President, CEQ and the
public. 42 U.S.C. 4332(2)(C). Nothing in the text
states that this section was intended to require the
preparation of detailed statements for actions
located outside the United States.
113 See also Nat. Res. Def. Council v. Nuclear
Regulatory Comm’n, 647 F. 2d 1345, 1367 (D.C. Cir.
1981) (‘‘NEPA’s legislative history illuminates
nothing in regard to extraterritorial application.’’).
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permissible domestic application even if
other conduct occurred abroad; but if
the conduct relevant to the focus
occurred in a foreign country, then the
case involves an impermissible
extraterritorial application regardless of
any other conduct that occurred in U.S.
territory.’’ RJR Nabisco, 136 S. Ct. at
2101. Therefore, CEQ provides in
paragraph (q)(1)(i) of the final rule that
NEPA does not apply to ‘‘agency
activities or decisions with effects
located entirely outside of the
jurisdiction of the United States.’’
iii. Non-Discretionary Activities or
Decisions
In the NPRM, CEQ proposed to clarify
that the definition does not include nondiscretionary activities or decisions
made in accordance with the agency’s
statutory authority. The Supreme Court
has held that analysis of a proposed
action’s effects under NEPA is not
required where an agency has limited
statutory authority and ‘‘simply lacks
the power to act on whatever
information might be contained in the
EIS.’’ Pub. Citizen, 541 U.S. at 768; see
also South Dakota, 614 F.2d at 1193
(holding that the Department of the
Interior’s issuance of a mineral patent
that was a ministerial act did not come
within NEPA); Milo Cmty. Hosp. v.
Weinberger, 525 F.2d 144, 148 (1st Cir.
1975) (NEPA analysis of impacts not
required when agency was under a
statutory duty to take the proposed
action of terminating a hospital). CEQ
includes this clarification in paragraph
(q)(1)(ii).
iv. Final Agency Action and Failure To
Act
CEQ proposed to strike the statement
that major Federal action includes a
failure to act and instead clarify that the
definition excludes activities or
decisions that do not result in final
agency action under the APA. The basis
for including only final agency actions
is the statutory text of the APA, which
provides a right to judicial review of all
‘‘final agency action[s] for which there
is no other adequate remedy in a court.’’
5 U.S.C. 704. CEQ includes this
clarification in paragraph (q)(1)(iii) of
the final rule and includes ‘‘or other
statute that also includes a finality
requirement’’ because CEQ recognizes
that other statutes may also contain
finality requirements beyond those of
the APA. As the NPRM noted, NEPA
applies when agencies are considering a
proposal for decision. In the case of a
‘‘failure to act,’’ there is no proposed
action and therefore there are no
alternatives that the agency may
consider. S. Utah Wilderness All., 542
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U.S. at 70–73. Judicial review is
available only when an agency fails to
take a discrete action it is required to
take. Id. In omitting the reference to a
failure to act from the definition of
‘‘major Federal action,’’ CEQ does not
contradict the definition of ‘‘agency
action’’ under the APA at 5 U.S.C.
551(13), and recognizes that the APA
may compel agency action that is
required but has been unreasonably
withheld. If an agency is compelled to
take such agency action, it should
prepare a NEPA analysis at that time, as
appropriate.
v. Enforcement Actions
In the final rule, CEQ moves the
exclusion of judicial or administrative
civil or criminal enforcement actions
from 40 CFR 1508.18(a) to paragraph
(q)(1)(iv) of § 1508.1. CEQ did not
propose changes to this language in the
NPRM. In the final rule, CEQ moves this
language and revises it consistent with
the format of the list in paragraph (q)(1).
vi. General Revenue Sharing Funds
CEQ proposed to strike the specific
reference to the State and Local Fiscal
Assistance Act of 1972 from 40 CFR
1508.18(a) and clarify that general
revenue sharing funds do not meet the
definition of major Federal action
because the agency has no discretion.
CEQ includes this change in paragraph
(q)(1)(v) in the final rule.
vii. Minimal Federal Funding or
Involvement
CEQ proposed to clarify that nonFederal projects with minimal Federal
funding or minimal Federal
involvement such that the agency
cannot control the outcome of the
project are not major Federal actions.
The language in paragraph (q)(1)(vi) of
the final rule is consistent with the
holdings of relevant circuit court cases
that have addressed this issue. See
Rattlesnake Coal. v. U.S. EPA, 509 F.3d
1095, 1101 (9th Cir. 2007) (Federal
funding comprising six percent of the
estimated implementation budget not
enough to federalize implementation of
entire project); New Jersey Dep’t of
Envtl. Prot. & Energy v. Long Island
Power Auth., 30 F.3d 403, 417 (3d Cir.
1994) (‘‘Federal approval of a private
party’s project, where that approval is
not required for the project to go
forward, does not constitute a major
Federal action.’’); United States v. S.
Fla. Water Mgmt. Dist., 28 F.3d 1563,
1572 (11th Cir. 1994) (‘‘The touchstone
of major [F]ederal activity constitutes a
[F]ederal agency’s authority to influence
nonfederal activity. ‘The [F]ederal
agency must possess actual power to
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43347
control the nonfederal activity.’ ’’
(quoting Sierra Club v. Hodel, 848 F.2d
1068, 1089 (10th Cir. 1988), overruled
on other grounds by Vill. of Los Ranchos
de Albuquerque v. Marsh, 956 F.2d 970
(10th Cir. 1992)); Sugarloaf Citizens
Ass’n v. FERC, 959 F.2d 508, 512 (4th
Cir. 1992); Save Barton Creek Ass’n v.
Fed. Highway Admin., 950 F.2d 1129,
1134–35 (5th Cir. 1992); Macht v.
Skinner, 916 F.2d 13, 20 (D.C. Cir. 1990)
(funding for planning and studies not
enough to federalize a project); Vill. of
Los Ranchos de Albuquerque v.
Barnhart, 906 F.2d 1477, 1482 (10th Cir.
1990); Sierra Club v. Penfold, 857 F.2d
1307, 1314 (9th Cir. 1998) (finding that
the Bureau of Land Management’s
review of Notice mines, which do not
require agency approval before
commencement of mining, is ‘‘only a
marginal [F]ederal action rather than a
major action’’); Winnebago Tribe of Neb.
v. Ray, 621 F. 2d 269, 272 (8th Cir.
1980) (‘‘Factual or veto control,
however, must be distinguished from
legal control or ‘enablement’’’ (citing
Med. Ctr., Inc., 584 F.2d 619)); Atlanta
Coal. on the Transp. Crisis v. Atlanta
Reg’l Comm’n, 599 F.2d 1333, 1347 (5th
Cir. 1979); Ctr. for Biological Diversity v.
HUD, 541 F. Supp. 2d 1091, 1099 (D.
Ariz. 2008), aff’d, Ctr. for Biological
Diversity v. HUD, No. 09–16400, 359
Fed. Appx. 781, 2009 WL 4912592 (9th
Cir. Nov. 25, 2009) (unreported); see
also Touret v. NASA, 485 F. Supp. 2d
38 (D.R.I. 2007).
As discussed in the NPRM, in these
circumstances, there is no practical
reason for an agency to conduct a NEPA
analysis because the agency could not
influence the outcome of its action to
address the effects of the project. For
example, this might include a very
small percentage of Federal funding
provided only to help design an
infrastructure project that is otherwise
funded through private or local funds.
This change would help to reduce costs
and delays by more clearly defining the
kinds of actions that are appropriately
within the scope of NEPA. The final
rule includes these criteria in paragraph
(q)(1)(vi) to make clear that these
projects are ones where the agency does
not exercise sufficient control and
responsibility over the outcome of the
project.
CEQ expects that agencies will further
define these non-major actions, for
which the agency does not exercise
sufficient control and responsibility
over the outcome of the project, in their
agency NEPA procedures pursuant to
§ 1507.3(d)(4). For example, agencies
that exercise trust responsibilities over
activities or decisions that occur on or
involve land held in trust by the United
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States for the benefit of an Indian Tribe,
or are held in fee subject to a restriction
against alienation, may define those
activities or decisions that involve
minimal Federal funding or
involvement. In such circumstances, the
Federal Government does not exercise
sufficient control and responsibility
over the effects of actions on Indian
lands, and a ‘‘but for’’ causal
relationship of requiring Federal
approval for such actions is insufficient
to make an agency responsible for any
particular effects from such actions.
In the NPRM, CEQ also invited
comment on whether there should be a
threshold (percentage or dollar figure)
for ‘‘minimal Federal funding,’’ and if
so, what would be an appropriate
threshold and the basis for such a
threshold. CEQ did not receive
sufficient information to establish such
a threshold in the final rule.
viii. Loans and Loan Guarantees
CEQ also proposed to exclude loans,
loan guarantees, and other forms of
financial assistance where the Federal
agency does not exercise sufficient
control and responsibility over the
effects of the action. CEQ includes this
in the final rule in paragraph (q)(1)(vii),
changing ‘‘action’’ to ‘‘such assistance’’
to remove the ambiguity with the use of
the defined term in the definition. CEQ
proposed to also exclude the farm
ownership and operating loan
guarantees provided by the Farm
Service Agency (FSA) of the U.S.
Department of Agriculture pursuant to 7
U.S.C. 1925 and 1941 through 1949, and
the business loan guarantee programs of
the Small Business Administration
(SBA), 15 U.S.C. 636(a), 636(m), and 695
through 697f. CEQ includes these as
examples of loan guarantees in
paragraph (q)(1)(vii) and makes one
correction to the citation to SBA’s
business loan guarantee programs,
changing the final section cited from
697f to 697g.
By guaranteeing loans, FSA is not
lending Federal funds; a ‘‘guaranteed
loan’’ under FSA regulations is defined
in 7 CFR 761.2(b) as a ‘‘loan made and
serviced by a lender for which the
Agency has entered into a Lender’s
Agreement and for which the Agency
has issued a Loan Guarantee.’’ The FSA
loan guarantees are limited statutorily to
an amount not to exceed $1.75 million
(with allowance for inflation). See 7
U.S.C. 1925 and 1943. For fiscal year
2019, the average loan amount for a
guaranteed operating loan is $289,393;
and the average for a guaranteed farm
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ownership loan is $516,859.114 The
relatively modest amounts of these loan
guarantees suggest that these are not
‘‘major’’ within the meaning of the
NEPA statute and for that reason CEQ
makes this result clear in a specific
application of its definition of ‘‘major
Federal action.’’ In determining whether
Federal funding federalizes a nonFederal action, courts have considered
whether the proportion of Federal funds
in relation to funds from other sources
is ‘‘significant.’’ See, e.g., Ka Makani ‘O
Kohala Ohana Inc. v. Dep’t of Water
Supply, 295 F.3d 955, 960 (9th Cir.
2002) (‘‘While significant [F]ederal
funding can turn what would otherwise
be a [S]tate or local project into a major
Federal action, consideration must be
given to a great disparity in the
expenditures forecast for the [S]tate [and
county] and [F]ederal portions of the
entire program. . . . In the present case,
the sum total of all of the [F]ederal
funding that was ever offered . . . is
less than two percent of the estimated
total project cost.’’ (alteration in
original) (internal quotation marks and
citation omitted)); Friends of the Earth,
Inc. v. Coleman, 518 F.2d 323, 329 (9th
Cir. 1975) (holding Federal funding
amounting to 10 percent of the total
project cost not adequate to federalize
project under NEPA); Sancho v. Dep’t of
Energy, 578 F. Supp. 2d 1258, 1266–68
(D. Haw. 2008) (Federal provision of
less than 10 percent of project costs not
sufficient to federalize project);
Landmark West! v. U.S. Postal Serv.,
840 F. Supp. 994, 1009 (S.D.N.Y. 1993),
aff’d, 41 F.3d 1500 (2d Cir. 1994)
(holding U.S. Postal Service’s role in
private development of new skyscraper
was not sufficient to federalize the
project).
Furthermore, FSA loan guarantee
programs do not provide any Federal
funding to the participating borrower.
Rather, FSA’s role is limited to
providing a guaranty to the private
lender; no Federal funds are expended
unless the borrower defaults on the
private third-party loan, and the lender
is unable to recover its debt through
foreclosure of its collateral. In the event
of default, the guarantee is paid to the
lender, not to lender’s borrower. FSA
rarely makes guaranteed loan loss claim
payments because delinquency rates are
very low, ranging from between 0.98
and 1.87 percent from 2005 to 2019, and
114 See Executive Summary for Farm Loan
Programs in Fiscal Year 2019, https://
www.fsa.usda.gov/Assets/USDA-FSA-Public/
usdafiles/Farm-Loan-Programs/pdfs/program-data/
FY2019_Executive_Summary.pdf. See generally
https://www.fsa.usda.gov/programs-and-services/
farm-loan-programs/program-data/index.
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1.62 percent in 2019.115 The FSA
guaranteed loan loss rates have ranged
between 0.2 and 0.6 percent during the
same time period.116
For purposes of triggering NEPA,
‘‘[t]he mere possibility of [F]ederal
funding in the future is too tenuous to
convert a local project into [F]ederal
action.’’ Pres. Pittsburgh v. Conturo,
2011 U.S. Dist. LEXIS 101756, at *13
(W.D. Pa. 2011). Indeed, in Sancho, the
court observed that ‘‘analysis of the
‘major Federal action’ requirement in
NEPA must focus upon [F]ederal funds
that have already been distributed.
Federal funds that have only been
budgeted or allocated toward a project
cannot be considered because they are
not an ‘irreversible and irretrievable
commitment of resources.’ ’’ Sancho,
578 F. Supp. 2d at 1267 (internal
citation omitted). The court further
stated that ‘‘[t]he expectation of
receiving future funds will not
transform a local or state project into a
federal project. . . . Regardless of the
percentage, consideration of the
budgeted future federal funds is not ripe
for consideration in the ‘major Federal
action’ analysis.’’ Id. Other district
courts have also found that, to federalize
a project, the Federal funding must be
more than ‘‘the passive deferral of a
payment’’ and must be provided
‘‘primarily to directly further a policy
goal of the funding agency.’’ Hamrick v.
GSA, 107 F. Supp. 3d 910, 926 (C.D. Ill.
2015) (citing Landmark West!, 840 F.
Supp. at 1007).
FSA’s role is to protect the financial
interests of the United States, and its
relationship is with the lender not the
borrower. 7 CFR 762.103(a). FSA’s
involvement is primarily to ensure the
financial stability of the loan and ensure
proper loan servicing by the lender.
Therefore, the context of these FSA
regulations does not involve NEPA and
is not compliance-driven but only
meant to ensure that, in the event of a
default, the loan proceeds are disbursed
by the lender, used properly, and that
the project is completed and operating
so as to produce income necessary for
the loan to be repaid.
If a lender violates one of FSA’s
regulations, FSA’s only remedy is not to
pay the loss claim in the event of a
liquidation. FSA does not possess
control or actual decision-making
authority over the lender’s issuance of
the loan, the funded facility, or
operations of the borrower. Courts have
115 See Guaranteed Loan Executive Summary, as
of FY 2019, https://www.fsa.usda.gov/Assets/
USDA-FSA-Public/usdafiles/Farm-Loan-Programs/
pdfs/program-data/FLP_Guaranteed_Loan_
Servicing_Executive_Summary.pdf.
116 Id.
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recognized Federal agencies do not have
sufficient control over loan guarantees
to trigger NEPA. See, e.g., Ctr. for
Biological Diversity, 541 F. Supp. 2d
1091, aff’d, Ctr. for Biological Diversity,
No. 08–16400, 359 F. Appx. 781 (‘‘The
agencies guarantee loans issued by
private lenders to qualified borrowers,
but do not approve or undertake any of
the development projects at issue. The
agencies’ loan guarantees have such a
remote and indirect relationship to the
watershed problems allegedly stemming
from the urban development that they
cannot be held to be a legal cause of any
effects on the protected species for
purposes of either the ESA or the
NEPA.’’ Ctr. for Biological Diversity, No.
08–16400, 359 F. Appx. at 783). ‘‘The
[F]ederal agency must possess actual
power to control the nonfederal
activity.’’ Hodel, 848 F.2d at 1089,
overruled on other grounds by Vill. of
Los Ranchos de Albuquerque v. Marsh,
956 F.2d 970.
SBA’s business loan programs include
general business loan programs (7(a)
Program), authorized by section 7(a) of
the Small Business Act, 15 U.S.C.
636(a); the microloan demonstration
loan program (Microloan Program),
authorized by section 7(m) of the Small
Business Act, 15 U.S.C. 636(m); and the
development company program (504
Program), which is a jobs-creation
program, authorized by Title V of the
Small Business Investment Act of 1958,
15 U.S.C. 695–697g. Under all of these
programs, SBA does not recruit or work
with the borrower, or service the loan
unless, following a default in payment,
the lender has collected all that it can
under the loan.
Under the 7(a) Program, SBA
guarantees a percentage of the loan
amount extended by a commercial
lender to encourage such lenders to
make loans to eligible small businesses.
The lender seeks and receives the
guaranty, not the applicant small
business. In over 80 percent of loans
stemming from the 7(a) Program, the
lender approves the loan without SBA’s
prior review and approval through the
7(a) Program’s Preferred Lender Program
(‘‘PLP program’’).117 Further, SBA does
117 Pursuant to the Small Business Act, under the
PLP program, SBA delegates responsibility to
experienced and qualified lenders to issue an SBA
guarantee on a loan without prior approval by SBA.
The PLP program is defined as a ‘‘program
established by the Administrator . . . under which
a written agreement between the lender and the
Administration delegates to the lender . . .
complete authority to make and close loans with a
guarantee from the Administration without
obtaining the prior specific approval of the
Administration . . . .’’ 15 U.S.C. 636(a)(2)(C)(iii).
Thus, PLP program lenders have delegated
authority to make SBA-guaranteed loans without
any approval from SBA.
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not expend Federal funds unless there
is a default by the borrower in paying
the loan; in such cases, SBA reimburses
the lender in accordance with SBA’s
guarantee percentage. The maximum
amount for a standard loan under the
7(a) program is $5 million, while
various 7(a) loans have lesser maximum
amounts of $500,000 or less.118
Under the Microloan Program,
recipient entities can obtain loans, up to
$50,000, for certain, limited purposes.
SBA provides funds to designated
intermediary lenders, which are nonprofit, community-based organizations.
Each of the lenders has its own lending
and credit requirements, and the lenders
extend the microloan financing.
Recipients only may use the funds for
working capital, inventory or supplies,
furniture or fixtures, or machinery or
equipment. They cannot purchase real
estate or pay existing debt.
Under the 504 Program, small
businesses can obtain long-term, fixedrate financing to acquire or improve
capital assets. Certified Development
Companies (CDCs), which are private,
mostly non-profit, corporations certified
by SBA to promote local and
community economic development,
implement the program. Typically, a
504 Program project is funded by three
sources: (1) A loan, secured with a
senior lien, from a private-sector lender
for 50 percent of the project costs; (2) an
equity contribution from the borrower of
at least 10 percent of the project costs;
and (3) a loan covering up to 40 percent
of the total costs, which is funded by
proceeds from the sale to investors of an
SBA-guaranteed debenture issued by a
CDC.119 The 504’s Premier Certified
Lender Program (‘‘PCLP program’’)
provides for only limited SBA review of
eligibility, and SBA delegates the
responsibility to CDCs to issue an SBA
guarantee of debenture for eligible loans
without prior approval by SBA. 15
U.S.C. 697e.120 Under the 504 program,
the maximum loan amount is $5
million, although small manufacturers
or certain energy projects, including
energy efficiency or renewable
generation projects, may qualify for a
$5.5 million debenture.121 SBA does not
expend Federal funds unless there is a
default by the borrower in paying the
U.S.C. 636(a).
the 504 program, SBA guarantees payments
of debentures, which are bonds sold to investors.
The proceeds from the sale of the debentures are
used to fund the underlying loans to borrowers.
120 Congress has mandated that guaranteed loans
made by PCLPs shall not include SBA ‘‘review of
decisions by the lender involving creditworthiness,
loan closing, or compliance with legal requirements
imposed by law or regulation.’’ 15 U.S.C. 697e(e)(2).
121 15 U.S.C. 696(2)(A).
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119 In
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debenture-funded loan, in which case
SBA pays the outstanding balance owed
on the debenture to the investors. SBA
expends Federal funds on its loan
guarantee programs only when expected
losses from defaults exceed expected fee
collections. Section 7(a) and 504 loan
program delinquency rates are 0.8
percent and 0.7 percent as of July 2019
respectively.122
CEQ has determined that FSA and
SBA do not have sufficient control and
responsibility over the underlying
activities to meet the definition of major
Federal action. The issuance of loan
guarantees to a non-Federal lender to
back a percentage of a loan that the
lender decides to make to a private,
third-party borrower is insufficient
control or authority over the underlying
project. See Rattlesnake Coal., 509 F.3d
at 1102 (‘‘The United States must
maintain decision making authority
over the local plan in order for it to
become a major [F]ederal action.’’); Ka
Makani, 295 F.3d at 961 (‘‘Because the
final decision-making power remained
at all times with [the State agency], we
conclude that the [Federal agency]
involvement was not sufficient to
constitute ‘major [F]ederal action.’ ’’
(quoting Barnhart, 906 F.2d at 1482)); S.
Fla. Water Mgmt. Dist., 28 F.3d at 1572
(‘‘The [F]ederal agency must possess
actual power to control the nonfederal
activity.’’ (citation omitted)).
CEQ also invited comment on
whether any other types of financial
instruments should be considered nonmajor Federal actions and the basis for
such exclusion. CEQ did not receive
sufficient comments to make any
additional changes to the definition of
major Federal action with respect to
other financial instruments.
ix. Other Changes to Major Federal
Action
In the final rule, paragraphs (q)(2) and
(3) include the examples of activities
and decisions that are in 40 CFR
1508.18(a) and (b). CEQ invited
comment on whether it should change
‘‘partly’’ to ‘‘predominantly’’ in
paragraph (q)(2) for consistency with the
edits to the introductory text regarding
‘‘minimal Federal funding.’’ CEQ does
not make this change in the final rule.
CEQ notes that ‘‘continuing’’ activities
in paragraph (q)(2) refers to situations
where a major Federal action remains to
occur, consistent with § 1502.9(d) and
Norton v. Southern Utah Wilderness
Alliance. 542 U.S. at 73.
122 See SBA Fiscal Year 2019 Agency Financial
Report at 22, available at https://www.sba.gov/
document/report--agency-financial-report.
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CEQ proposed to insert
‘‘implementation of’’ before ‘‘treaties’’ in
proposed paragraph (q)(2)(i) to clarify
that the major Federal action is not the
treaty itself, but rather an agency’s
action to implement that treaty. CEQ
makes this change in § 1508.1(q)(3)(i) of
the final rule and clarifies that this
includes an agency’s action to
implement a treaty pursuant to statute
or regulation. CEQ also changes
‘‘pursuant to’’ to ‘‘under’’ the APA and
adds a reference to ‘‘other statutes’’ after
the APA. While agencies conduct the
rulemaking process pursuant to the
APA, they also may do so under the
authority of the specific statutes.
CEQ proposed to strike ‘‘guide’’ from
proposed paragraph (q)(2)(ii) because
guidance is non-binding. CEQ makes
this change in the final rule in
§ 1508.1(q)(3)(ii).
Finally, CEQ invited comment in the
NPRM on whether CEQ should further
revise the definition of ‘‘major Federal
action’’ to exclude other per se
categories of activities or to further
address what NEPA analysts have called
‘‘the small handle problem.’’ 123 CEQ
did not receive sufficient information to
make any additional changes.
18. Definition of ‘‘Matter’’
The NPRM did not propose any
changes to the definition of matter in
paragraph (r). CEQ did not revise this
definition in the final rule.
19. Clarifying the Meaning of
‘‘Mitigation’’
CEQ proposed to amend the
definition of ‘‘mitigation’’ to define the
term and clarify that NEPA does not
require adoption of any particular
mitigation measure, consistent with
Methow Valley, 490 U.S. at 352–53. In
Methow Valley, the Supreme Court held
that NEPA and the CEQ regulations
require ‘‘that mitigation be discussed in
sufficient detail to ensure that
environmental consequences have been
fairly evaluated,’’ but do not establish ‘‘a
substantive requirement that a complete
mitigation plan be actually formulated
and adopted’’ before the agency can
make its decision. Id. at 352.
CEQ also proposed to amend the
definition of ‘‘mitigation’’ to make clear
that mitigation must have a nexus to the
effects of the proposed action, is limited
to those actions that have an effect on
the environment, and does not include
actions that do not have an effect on the
environment. This change will make the
123 See Daniel R. Mandelker et al., NEPA Law and
Litigation, sec. 8:20 (2d ed. 2019) (‘‘This problem
is sometimes called the ‘small handle’ problem
because [F]ederal action may be only be a ‘small
handle’ on a non[-F]ederal project.’’).
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NEPA process more effective by
clarifying that mitigation measures must
actually be designed to mitigate the
effects of the proposed action. This
amended definition is consistent with
CEQ’s Mitigation Guidance, supra note
29.
Under that guidance, if an agency
believes that the proposed action will
provide net environmental benefits
through use of compensatory mitigation,
the agency should incorporate by
reference the documents that
demonstrate that the proposed
mitigation will be new or in addition to
actions that would occur under the noaction alternative, and the financial,
legal, and management commitments for
the mitigation. Use of well-established
mitigation banks and similar
compensatory mitigation legal
structures should provide the necessary
substantiation for the agency’s findings
on the effectiveness (nexus to effects of
the action, proportionality, and
durability) of the mitigation. Other
actions may be effectively mitigated
through use of environmental
management systems that provide a
structure of procedures and policies to
systematically identify, evaluate, and
manage environmental impacts of an
action during its implementation.124
CEQ makes the proposed changes in
the final rule with minor edits to
improve clarity. Specifically, CEQ
replaces ‘‘reasonably foreseeable
impacts to the human environment’’
with ‘‘effects’’ to more precisely refer to
the defined term ‘‘effects.’’ In response
to comments, CEQ also adds ‘‘or
alternatives’’ after ‘‘proposed action’’ to
clarify that mitigation measures mean
measures to avoid, minimize, or
compensate for effects caused by a
proposed action or its alternatives. CEQ
also replaces ‘‘the effects of a proposed
action’’ with ‘‘those effects’’ to reduce
wordiness and provide additional
clarity.
20. Definition of ‘‘NEPA Process’’
The NPRM did not propose any
changes to the definition of NEPA
process in paragraph (t). CEQ did not
revise this definition in the final rule.
21. Clarifying the Meaning of ‘‘Notice of
Intent’’
CEQ proposed to revise the definition
of ‘‘notice of intent’’ in paragraph (u) to
move the operative requirements for
what agencies must include in the
notices to § 1501.9(d) and add the word
124 See Council on Environmental Quality,
Aligning National Environmental Policy Act
Processes with Environmental Management
Systems (Apr. 2007), https://ceq.doe.gov/docs/ceqpublications/NEPA_EMS_Guide_final_Apr2007.pdf.
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‘‘public’’ to clarify that the NOI is a
public notice. CEQ makes these changes
in the final rule.
22. New Definition of ‘‘Page’’
CEQ proposed a new definition of
‘‘page’’ in paragraph (v) to provide a
word count (500 words) for a more
standard functional definition of ‘‘page’’
for page count and other NEPA
purposes. CEQ adds this definition as
proposed to the final rule. As discussed
in the NPRM, this change updates NEPA
for modern electronic publishing and
internet formatting, in which the
number of words per page can vary
widely depending on format. It also
ensures some uniformity in document
length while allowing unrestricted use
of the graphic display of quantitative
information, tables, photos, maps, and
other geographic information that can
provide a much more effective means of
conveying information about
environmental effects. This change
supports the original CEQ page limits as
a means of ensuring that environmental
documents are readable and useful to
decision makers.
23. New Definition of ‘‘Participating
Agency’’
CEQ proposed to add the concept of
a participating agency to the CEQ
regulations in paragraph (w). CEQ
proposed to define participating agency
consistent with the definition in FAST–
41 and 23 U.S.C. 139. CEQ proposed to
add participating agencies to § 1501.7(i)
regarding the schedule and replace the
term ‘‘commenting’’ agencies with
‘‘participating’’ agencies throughout.
CEQ adds this definition as proposed to
the final rule.
24. Clarifying the Meaning of
‘‘Proposal’’
CEQ proposed clarifying edits to the
definition of proposal in paragraph (x)
and to strike the operative language
regarding timing of an EIS because it is
already addressed in § 1502.5. CEQ
makes these changes in the final rule.
25. New Definition of ‘‘Publish and
Publication’’
CEQ proposed to define publish and
publication in paragraph (y) to provide
agencies with the flexibility to make
environmental reviews and information
available to the public by electronic
means. The 1978 regulations predate
personal computers and a wide range of
technologies now used by agencies such
as the modern internet and GIS mapping
tools. To ensure that agencies do not
exclude the affected public from the
NEPA process due to a lack of resources
(often referred to as the ‘‘digital
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divide’’), the definition retains a
provision for printed environmental
documents where necessary for effective
public participation. CEQ adds this
definition as proposed in the final rule.
28. Definition of ‘‘Referring Agency’’
CEQ proposed a grammatical edit to
the definition of referring agency in
paragraph (bb). CEQ makes this change
in the final rule.
26. New Definition of ‘‘Reasonable
Alternatives’’
29. Definition of ‘‘Scope’’
CEQ proposed to move the operative
language from paragraph (cc), which
tells agencies how to determine the
scope of an EIS, to § 1501.9(e). CEQ
makes this change in the final rule.
Several ANPRM commenters asked
CEQ to include a new definition of
‘‘reasonable alternatives’’ in the
regulations with emphasis on how
technical and economic feasibility
should be evaluated. CEQ proposed a
new definition of ‘‘reasonable
alternatives’’ in paragraph (z) to provide
that reasonable alternatives must be
technically and economically feasible
and meet the purpose and need of the
proposed action. See, e.g., Vt. Yankee,
435 U.S. at 551 (‘‘alternatives must be
bounded by some notion of feasibility’’).
CEQ also proposed to define reasonable
alternatives as ‘‘a reasonable range of
alternatives’’ to codify Questions 1a and
1b in the Forty Questions, supra note 2.
Agencies are not required to give
detailed consideration to alternatives
that are unlikely to be implemented
because they are infeasible, ineffective,
or inconsistent with the purpose and
need for agency action.
Finally, CEQ proposed to clarify that
a reasonable alternative must also
consider the goals of the applicant when
the agency’s action involves a nonFederal entity. These changes will help
reduce paperwork and delays by
helping to clarify the range of
alternatives that agencies must consider.
Where the agency action is in response
to an application for permit or other
authorization, the agency should
consider the applicant’s goals based on
the agency’s statutory authorization to
act, as well as other congressional
directives, in defining the proposed
action’s purpose and need. CEQ adds
this definition as proposed in the final
rule.
27. New Definition of ‘‘Reasonably
Foreseeable’’
CEQ received comments on the
ANPRM requesting that the regulations
provide a definition of ‘‘reasonably
foreseeable.’’ CEQ proposed to define
‘‘reasonably foreseeable’’ in paragraph
(aa) consistent with the ordinary person
standard—that is what a person of
ordinary prudence in the position of the
agency decision maker would consider
in reaching a decision. Sierra Club v.
Marsh, 976 F.2d 763, 767 (1st Cir. 1992).
CEQ adds this definition as proposed in
the final rule.
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30. New Definition of ‘‘Senior Agency
Official’’
CEQ proposed to define the new term
‘‘senior agency official’’ in paragraph
(dd) to provide for agency officials that
are responsible for the agency’s NEPA
compliance. As reflected in comments,
implementation of NEPA can require
significant agency resources. Without
senior agency official leadership and
effective management of NEPA reviews,
the process can be lengthy, costly, and
subject to uncertainty and delays. CEQ
seeks to advance efficiencies to ensure
that agencies use their limited resources
to effectively consider environmental
impacts and support timely and
informed decision making by the
Federal Government. CEQ adds this
definition with some changes in the
final rule. Specifically, CEQ does not
include the phrase ‘‘and representing
agency analysis of the effects of agency
actions on the human environmental in
agency decision-making processes’’
because the duties and responsibilities
of the ‘‘senior agency official,’’
including representing the agency, are
discussed in various provisions of the
subchapter. See §§ 1501.5(f), 1501.7(d),
1501.8(b)(6) and (c), 1501.10, 1502.7,
1507.2.
31. Definition of ‘‘Special Expertise’’
The NPRM did not propose any
changes to the definition of special
expertise in paragraph (ee). CEQ did not
revise this definition in the final rule.
32. Striking the Definition of
‘‘Significantly’’
Because 40 CFR 1508.27 did not
define ‘‘significantly,’’ but rather set out
factors for agencies to consider in
assessing whether a particular effect is
significant, CEQ proposed to strike this
definition and discuss significance in
§ 1501.3(b), as described in section
II.C.3. CEQ makes this change in the
final rule.
33. Clarifying the Meaning of ‘‘Tiering’’
CEQ proposed to amend the
definition of ‘‘tiering’’ in paragraph (ff)
to make clear that agencies may use EAs
at the programmatic stage as well as the
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43351
subsequent stages. This clarifies that
agencies have flexibility in structuring
programmatic NEPA reviews and
associated tiering. CEQ proposed to
move the operative language describing
how any agency determines when and
how to tier from 40 CFR 1508.28 to
§ 1501.11(b). CEQ makes these changes
in the final rule.
K. CEQ Guidance Documents
In the proposed rule, CEQ stated that
if the proposal was adopted as a final
rule, it would supersede any previous
CEQ NEPA guidance and handbooks.
With this final rule, CEQ clarifies that
it will provide notice in the Federal
Register listing withdrawn guidance.
CEQ will issue updated or new
guidance consistent with Presidential
directives. CEQ also intends to update
the Citizen’s Guide to NEPA.125
III. Rulemaking Analyses and Notices
A. Executive Order 12866, Regulatory
Planning and Review and Executive
Order 13563, Improving Regulation and
Regulatory Review
E.O. 12866 126 directs agencies to
assess all costs and benefits of available
regulatory alternatives, and if regulation
is necessary, to select regulatory
approaches that maximize net benefits,
including potential economic,
environmental, public health and safety
effects, and other advantages;
distributive impacts; and equity. E.O.
13563 127 reaffirms E.O. 12866, and
directs agencies to use a process that
provides for public participation in
developing rules; promotes
coordination, simplification, and
harmonization; and reduces burdens
and maintains flexibility.
Section 3(f) of E.O. 12866 sets forth
the four categories of regulatory action
that meet the definition of a significant
regulatory action. The first category
includes rules that have an annual effect
on the economy of $100 million or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, Tribal, or local governments or
communities. Some commenters stated
that this rulemaking would have such
an effect, and therefore CEQ should
have prepared a regulatory impact
statement. Commenters noted, for
example, proposed changes to the
definition of effects, alternatives
analysis, and overall effect on the
number of Federal actions subject to
NEPA as examples of impacts
125 Supra
note 29.
FR 51735 (Oct. 4, 1993).
127 76 FR 3821 (Jan. 21, 2011).
126 58
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contributing to an impact of over $100
million on the public.
CEQ agrees that this an economically
significant action. However, many of the
changes made in this rule codify longstanding practices and case law that
have developed since CEQ issued the
1978 regulations. Under OMB Circular
A–4, ‘‘Regulatory Analysis’’ (Sept. 17,
2003),128 the ‘‘no action’’ baseline is
‘‘what the world will be like if the
proposed rule is not adopted.’’ Changes
to the regulations based on longstanding guidance and Supreme Court
case law would be included in the
baseline for the rule; therefore, their
codification would generate marginal
cost savings. Similarly, changes that
clarify or otherwise improve the ability
to interpret and implement the
regulations would have little to no
quantifiable impact. The appendix to
the Regulatory Impact Analysis for the
Final Rule, Update to the Regulations
Implementing the Procedural Provisions
of the National Environmental Policy
Act 129 (‘‘RIA Appendix’’) provides a
summary of the anticipated economic
and environmental impacts associated
with the changes in the final rule. In
evaluating economic and environmental
impacts, CEQ has considered the statute
and Supreme Court case law, and the
1978 regulations. As discussed
throughout Section II and the Final Rule
Response to Comments, CEQ has made
revisions to better align the regulations
with the statute, codify Supreme Court
case law and current agency practice,
improve the timeliness and efficiency of
the NEPA process, and make other
changes to improve the clarity and
readability of the regulations.
The revisions to CEQ’s regulations are
anticipated to significantly lower
administrative costs as a result of
changes to reduce unnecessary
paperwork. Government-wide, the
average number of pages for a final EIS
is approximately 661 pages. The final
rule includes numerous changes to
reduce the duplication of paperwork
and establishes presumptive page limits
for EAs of 75 pages, and for EISs of 150
pages (or 300 pages for proposals of
unusual scope or complexity).130
However, agencies may request longer
page limits with approval from a senior
agency official and include additional
128 68
FR 58366 (Oct. 10, 2003).
Regulatory Impact Analysis for the Final
Rule, Update to the Regulations Implementing the
Procedural Provisions of the National
Environmental Policy Act is available under
‘‘Supporting Documents’’ in the docket on
regulations.gov under docket ID CEQ–2019–0003.
130 The 1978 regulations recommended the same
page limits for EISs but did not include provisions
requiring agencies to meet those page limits. 40 CFR
1502.7.
129 The
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material as appendices. The final rule
also makes numerous changes to
improve the efficiency of the NEPA
process and establishes presumptive
time limits for EAs of one year and for
EISs of two years, which may be
extended with approval of a senior
agency official. CEQ expects the final
rule to reduce the length of EAs and
EISs, and the time for completing and
these analyses, and to lower
administrative costs government-wide.
A total of 1,276 EISs were completed
from 2010 through 2018, and the
median EIS completion time was 3.5
years with only 257 EISs completed in
2 years or less.131 Based on the
efficiencies and presumptive time limit
for EISs in the final rule, the length of
time to complete the 1019 EISs that took
longer than 2 years could be reduced by
58 percent, assuming a 2-year
completion time for all of those actions.
Applying this potential time savings to
the total administrative cost to prepare
those EISs taking in excess of 2 years
could result in roughly $744 million in
savings over the 9-year time period for
an annualized savings of roughly $83
million (2016 adjusted dollars).132 The
amount of time required to prepare an
EIS does not necessarily correlate with
the total cost. However, for those EISs
taking over two years to prepare,
comparing the anticipated time savings
with the respective administrative costs
provides insight into the potential cost
savings that an agency may generate
under the final rule. Additionally, CEQ
notes that there may be cost savings
related to the preparation of EAs and
application of CEs. While the cost of
these actions is significantly lower,
agencies conduct such reviews in much
larger numbers than EISs.
Agencies have not routinely tracked
costs of completing NEPA analyses.133
With implementation of this final rule,
in particular § 1502.11(g), agencies will
be required to provide the estimated
total cost of preparing an EIS. CEQ
131 See Council on Environmental Quality, EIS
Timeline Data Excel Workbook, (June 12, 2020),
https://ceq.doe.gov/docs/nepa-practice/CEQ_EIS_
Timeline_Data_2020-6-12.xlsx.
132 This calculation uses the mid-point ($1.125
million) of the $250,000 to $2 million cost range
found in the NEPA Task Force report and assumes
a 58 percent reduction in costs for those EISs taking
longer than 2 years. NEPA Task Force Report,
supra, note 28. This number is similar to the cost
data from the Department of Energy, which found
a median EIS cost of $1.4 million. GAO NEPA
Report, supra, note 91.
133 As noted above, a 2014 U.S. Government
Accountability Office report found that Federal
agencies do not routinely track data on the cost of
completing NEPA analyses, and that the cost can
vary considerably, depending on the complexity
and scope of the project. GAO NEPA Report, supra
note 91.
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expects this will begin to address the
data gap that currently exists relating to
the administrative costs of NEPA
compliance.
CEQ expects these and other changes
in the final rule to catalyze economic
benefits by expediting some reviews,
including through improved
coordination and management and less
focus on non-significant impacts.
Commenters from industry on both the
ANPRM and proposed rule frequently
discussed that delays under the 1978
regulations resulted in higher costs;
however, these costs are difficult to
quantify. One estimate in 2015 found
that the cost of a 6-year delay in
infrastructure projects across the
electricity transmission, power
generation, inland waterways, roads and
bridges, rail, and water (both drinking
and wastewater) sectors is $3.7
trillion,134 which was subsequently
updated to $3.9 trillion in 2018.135
There may be underlying permits and
consultations (e.g., the Endangered
Species Act) and other issues that
contribute to a delay and therefore
allocating a portion of the cost to the
NEPA process would be challenging.
NEPA is a procedural statute
requiring agencies to disclose and
consider potential environmental effects
in their decision-making processes. The
final rule does not alter any substantive
environmental law or regulation such as
the Clean Air Act, the Clean Water Act,
and the Endangered Species Act. Under
the final rule, agencies will continue to
consider all significant impacts to the
environment. Although some may view
the changes in the final rule as reducing
the number or scope of analyses, CEQ
has determined that, using a baseline of
the statutory requirements of NEPA and
Supreme Court case law, there are no
adverse environmental impacts (see RIA
Appendix).
OMB has determined that this final
rule is an economically significant
regulatory action because it may have an
annual effect on the economy of $100
million or more associated with lower
administrative costs and reduced
paperwork and delays in the
environmental review process. This rule
sets forth the government-wide process
for implementing NEPA in a consistent
and coordinated manner. The rule will
also require agencies to update their
existing NEPA procedures for
134 Two
Years, Not Ten, supra note 4.
Release, Common Good, Common Good
Updates the Cost of US Infrastructure Delays Costs
Have Risen $200 Billion Over Five Years to Nearly
$3.9 Trillion (May 2018), https://
www.commongood.org/wp-content/uploads/2018/
05/Two-Years-Update.pdf.
135 Press
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consistency with the changes set forth
in this final rule.
B. Executive Order 13771, Reducing
Regulation and Controlling Regulatory
Costs
Under E.O. 13771,136 agencies must
identify for elimination two prior
regulations for every one regulation
issued, and promulgate regulations
consistent with a regulatory budget.
This rule is a deregulatory action under
E.O. 13771 and OMB’s guidance
implementing E.O. 13771, titled
‘‘Reducing Regulation and Controlling
Regulatory Costs’’ (April 5, 2017).137
CEQ anticipates that the changes made
in this rule will reduce unnecessary
paperwork and expedite some reviews
through improved coordination and
management.
C. Regulatory Flexibility Act and
Executive Order 13272, Proper
Consideration of Small Entities in
Agency Rulemaking
The Regulatory Flexibility Act, as
amended, (RFA), 5 U.S.C. 601 et seq.,
and E.O. 13272 138 require agencies to
assess the impacts of proposed and final
rules on small entities. Under the RFA,
small entities include small businesses,
small organizations, and small
governmental jurisdictions. An agency
must prepare a regulatory flexibility
analysis at the proposed and final rule
stages unless it determines and certifies
that the rule, if promulgated, would not
have a significant economic impact on
a substantial number of small entities. 5
U.S.C. 605(b). An agency need not
perform an analysis of small entity
impacts when a rule does not directly
regulate small entities. See Mid-Tex
Electric Coop., Inc. v. FERC, 773 F.2d
327 (D.C. Cir. 1985). This rule does not
directly regulate small entities. Rather,
it applies to Federal agencies and sets
forth the process for their compliance
with NEPA. As noted above, NEPA is a
procedural statute requiring agencies to
disclose and consider potential
environmental effects in their decisionmaking processes, and does not alter
any substantive environmental law or
regulation. Under the final rule,
agencies will continue to consider all
significant impacts to the environment.
A few commenters asserted that the
rule would impact small entities,
including small businesses that provide
services relating to the preparation of
NEPA documents, outdoor recreation
businesses, and other related small
136 82
FR 9339 (Feb. 3, 2017).
at https://www.whitehouse.gov/
sites/whitehouse.gov/files/omb/memoranda/2017/
M-17-21-OMB.pdf.
138 67 FR 53461 (Aug. 16, 2002).
137 Available
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businesses. To the extent that the rule
may affect small entities, this
rulemaking will make the NEPA process
more efficient and consistent and clarify
the procedural requirements, which
CEQ expects to directly benefit Federal
agencies and indirectly benefit all other
entities engaged in the process,
including applicants seeking a Federal
permit and those engaged in NEPA
compliance activities. In addition, CEQ
expects that small businesses and
farmers seeking SBA or FSA guaranteed
loans will indirectly benefit from the
clarifying revisions in the final rule to
the definition of major Federal action.
Accordingly, CEQ hereby certifies that
the rule will not have a significant
economic impact on a substantial
number of small entities.
D. Congressional Review Act
Before a rule can take effect, the
Congressional Review Act (CRA)
requires agencies to submit to the House
of Representatives, Senate, and
Comptroller General a report containing
a copy of the rule and a statement
identifying whether it is a ‘‘major rule.’’
5 U.S.C. 801. OMB determines if a final
rule constitutes a major rule. The CRA
defines a major rule as any rule that the
Administrator of OMB’s Office of
Information and Regulatory Affairs finds
has resulted in or is likely to result in—
(A) an annual effect on the economy of
$100,000,000 or more; (B) a major
increase in costs or prices for
consumers, individual industries,
Federal, State, or local government
agencies, or geographic regions, or (C)
significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
enterprises to compete with foreignbased enterprises in domestic and
export markets. 5 U.S.C. 804(2).
OMB has determined that this final
rule is a major rule for purposes of the
Congressional Review Act. CEQ will
submit a report, including the final rule,
to both houses of Congress and the
Government Accountability Office for
review.
E. 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. 43 FR at 25232.
The NPRM for the 1978 regulations
stated ‘‘the impacts of procedural
regulations of this kind are not
susceptible to detailed analysis beyond
that set out in the assessment.’’ Id.
Similarly, in 1986, while CEQ stated in
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43353
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 environmental
assessment. 51 FR at 15619. The special
environmental assessment issued in
1986 made a finding of no significant
environmental impact, and there was no
finding made for the assessment of the
1978 regulations.
Some commenters expressed the view
that CEQ failed to comply with NEPA
when publishing the proposed rule that
precedes this final rule, and CEQ should
have prepared an EA or EIS. The
commenters stated that section
102(2)(C) of NEPA requires
environmental review of major Federal
actions. By not conducting an
environmental review under NEPA,
commenters stated that CEQ violated its
own regulations and past practices in
prior regulations. Other commenters
stated that NEPA review was required if
the proposed rule ‘‘created the
possibility’’ of significant impacts on
the environment. They asserted that the
proposed rule was a ‘‘sweeping rewrite’’ of the 1978 regulations that
would alter Federal agencies’
consideration of environmental effects
of proposed projects. Aspects of the
proposed rule that were referenced in
this regard include expanded use of
CEs, narrow definitions of significance
and effects, weakened alternatives
analysis, and reduced public
participation and agency accountability.
Commenters asserted that the
consequence of these changes is
truncated analysis, a less informed
public, and less mitigation.
CEQ disagrees with commenters. CEQ
prepared a special assessment on its
prior rules for illustrative purposes.
Those long-prior voluntary decisions do
not forever establish that CEQ has an
obligation to apply the CEQ’s
regulations to changes to those
regulations. As noted above, CEQ has
the authority to promulgate and revise
its regulations consistent with Chevron
and other applicable case law.
This rule would not authorize any
activity or commit resources to a project
that may affect the environment. Similar
to the 1978 regulations, these
regulations do not concern any
particular environmental media, nor are
the regulations tied to a specific
environmental setting. Rather, these
regulations apply generally to Federal
actions affecting the environment. No
action under the regulations or specific
issue or problem is singled out for
special consideration. See Council on
Environmental Quality, Special
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Environmental Assessment of
Regulations Proposed Under E.O. 11991
to Implement the Procedural Provisions
of the National Environmental Policy
Act, p. 6 (1978). Further, as stated by
CEQ when it proposed the regulations
in 1978, procedural rules of this kind
are not susceptible to detailed analysis.
43 FR at 25232.
Even if CEQ were required to prepare
an EA, it likely would result in a FONSI.
CEQ has reviewed the changes made in
this final rule and determined that they
would not result in environmental
impacts. See RIA Appendix. For reasons
explained in the respective areas of this
preamble and further summarized in the
RIA Appendix, CEQ disagrees that the
clarifications and changes to the
processes that Federal agencies follow
when relying on CEs, analyzing
alternatives, and engaging the public
will themselves result in any
environmental impacts, let alone
potentially significant impacts. This
thorough review, in combination with
the aforementioned circumstances of the
special environmental assessments
prepared for the 1978 and 1986
regulations, and the procedural nature
of these regulations, reinforces CEQ’s
view that an EA is neither required nor
necessary.
Moreover, preparing an EA for the
final rule would not meaningfully
inform CEQ or the public. The
clarifications and changes in the final
rule are entirely procedural and will
help to inform the processes used by
Federal agencies to evaluate the
environmental effects of their proposed
actions in the future.
For reasons explained in the
respective areas of this preamble and
further summarized in the RIA
Appendix, CEQ disagrees that changes
relating to CEs, analysis of alternatives,
public participation, and agency
responsibilities will have environmental
impacts, let alone potentially significant
ones.
In addition, commenters referenced
several court opinions in support of
their view that an agency’s
interpretation of a statute can be subject
to NEPA review when that
interpretation can lead to subsequent,
significant effects on the environment,
including Citizens for Better Forestry v.
U.S. Dep’t of Agric., 481 F. Supp. 2d
1059 (N.D. Cal. 2007) and Sierra Club v.
Bosworth, 510 F. 3d 1016 (9th Cir.
2007). Commenters stated that CEQ was
required to request comment on the
appropriate scope of the environmental
review of the proposed rule and then
prepare, and notice for public comment,
an EIS before or in tandem with its
publication.
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The circumstances in this rule are
distinctly different from the case law
referenced by commenters. Citizens for
Better Forestry pertains to the
misapplication of an existing CE, where
the court found that the agency
improperly expanded the scope of an
existing CE when applying it to a
National Forest Management Act
rulemaking. 481 F. Supp. at 1086. In
Sierra Club v. Bosworth, the court
agreed with previous cases finding that
the promulgation of agency NEPA
procedures, including the establishment
of new CEs, did not itself require
preparation of an EA or EIS, but that
agencies need only comply with CEQ
regulations setting forth procedural
requirements, including consultation
with CEQ, and Federal Register
publication for public comment (40 CFR
1507.3). 510 F.3d at 1022. The court,
however, found that the record relied on
by the U.S. Forest Service to develop
and justify a CE was deficient. Id. at
1026–30. Neither of the circumstances
in those cases is comparable to the
circumstances of this rule. Further, in
another relevant case, Heartwood v. U.S.
Forest Service, the court found that
neither NEPA nor the CEQ regulations
required the agency to conduct an EA or
an EIS prior to the promulgation of its
procedures creating a CE. 230 F.3d 947,
954–55 (7th Cir. 2000).
This rule serves as the primary
regulation from which agencies develop
procedures to implement the statute. To
prepare an EIS, as some commenters
had requested, would necessitate that
CEQ apply the 1978 regulations to a rule
that revises those same regulations.
There is no indication that the statute
contemplated such circumstances, and
CEQ is not aware of other examples in
law where the revisions to procedural
rules were subject to the requirements of
the rule that those same rules replaced.
Further, the 1978 regulations do not
require agencies to prepare a NEPA
analysis before establishing or updating
agency procedures for implementing
NEPA. Since this rule would not
authorize any activity or commit
resources to a project that may affect the
environment, preparation of an
environmental review is not required.
F. Endangered Species Act
Under the ESA, the promulgation of
regulations can be a discretionary
agency action subject to section 7 of the
ESA. CEQ has determined that updating
its regulations implementing the
procedural provisions of NEPA has ‘‘no
effect’’ on listed species and critical
habitat. Therefore, ESA section 7
consultation is not required.
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Commenters stated that consultation
with the Fish and Wildlife Service and
the National Marine Fisheries Service is
required because the rule may affect or
may adversely affect species listed
under the ESA. In support of this point,
commenters referenced proposed
changes to the definition of ‘‘effects’’
and ‘‘significantly,’’ development of
alternatives, and obligations for agencies
to obtain information. Commenters
noted that a programmatic consultation
may be appropriate where an agency
promulgates regulations that may affect
endangered species. Other commenters
believe that the rule is contrary to
section 7(a)(1) of ESA, which imposes a
specific obligation upon all federal
agencies to carry out programs to
conserve endangered and threatened
species. Commenters stated that the
proposed changes eliminate or
otherwise weaken requirements
pertaining to the assessment of impacts
and, in doing so, CEQ fails to satisfy
responsibilities under section 7(a)(1).
CEQ disagrees that the
aforementioned regulatory changes
‘‘may affect’’ listed species or critical
habitat. Initially, it is important to note
that commenters are conflating ESA and
NEPA. As courts have stated numerous
times, these are two different statutes
with different standards and definitions
and, in fact, different underlying
policies. As discussed in section II.B.1,
the Supreme Court has stated that NEPA
is a procedural statute. In contrast, the
ESA is principally focused on imposing
substantive duties on Federal agencies
and the public. Regardless of how
definitions or other procedures under
NEPA are changed under this regulation
or any other regulatory process, it will
not change the requirements for Federal
agencies under the ESA or its
implementing regulations.
This rulemaking is procedural in
nature, and therefore does not make any
final determination regarding the level
of NEPA analysis required for particular
actions. CEQ’s approach is consistent
with the approach taken by other
Federal agencies that similarly make
determinations of no effect on listed
species and critical habitat when
establishing or updating agency NEPA
procedures. CEQ also notes that neither
the 1978 regulations nor the 1986
amendments indicate that CEQ
consulted under ESA section 7(a)(2).
Setting aside the procedural nature of
this rule, CEQ reviewed it to determine
if it ‘‘may affect’’ listed species or their
designated critical habitat. CEQ has
closely reviewed the impacts of all the
changes made to the 1978 regulations,
as summarized in the RIA Appendix
and described in greater detail in the
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respective responses to comments. None
of the changes to the 1978 regulations
are anticipated to have environmental
impacts, including potential effects to
listed species and critical habitat. For
example, under § 1501.3 of the final
rule, agencies should continue to
consider listed species and designated
habitat when making a determination of
significance with respect to the level of
NEPA review.
Contrary to several comments, the
final rule does not ignore cumulative
effects on listed species. Rather, the
final rule includes a definition of effects
that comports with Supreme Court case
law to encompass all effects that are
reasonably foreseeable and have a
reasonably close causal relationship to
the proposed action or alternatives. In
general, the changes improve the
timeliness and efficiency of the NEPA
process while retaining requirements to
analyze all activities and environmental
impacts covered within the scope of the
statute. To the extent the rule modifies
the 1978 regulations, the changes do not
diminish the quality and depth of
environmental review relative to the
baseline, which is defined as how NEPA
is conducted under applicable Supreme
Court case law.
Neither the ESA regulations nor the
ESA Section 7 Consultation Handbook
(1998) require the action agency to
request concurrence from the Fish and
Wildlife Service and National Marine
Fisheries Service for determinations that
an action will have no effect on listed
species or their critical habitat. The final
rule does not change the obligations of
Federal agencies under the ESA; as
noted above, importantly, all of the
requirements under section 7 and
associated implementing regulations
and policies continue to apply
regardless of whether NEPA analysis is
triggered or the form of the NEPA
documentation. For the aforementioned
reasons, CEQ has determined that the
final rule will have no effect on ESA
listed species and designated critical
habitat.
To the extent commenters imply that,
under the authority of ESA section
7(a)(1), CEQ can regulate Federal action
agencies with regard to the ESA, this is
not accurate. For example, CEQ does not
have the authority, under the guise of
NEPA, to dictate to Federal action
agencies that they may only choose an
alternative that has the most
conservation value for listed species or
designated critical habitat.
All Federal agencies continue to be
subject to the ESA and its requirements.
Further, as described in detail in the
RIA Appendix and in Final Rule
Response to Comments on specific
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changes, none of the changes to the
1978 regulations are anticipated to have
environmental impacts, including
potential effects to listed species and
critical habitat. In general, the changes
improve the timeliness and efficiency of
the NEPA process while retaining
requirements to analyze all
environmental impacts covered within
the ambit of the statute. CEQ notes that
the rulemaking is procedural in nature,
and therefore does not make any final
determination regarding the level of
NEPA analysis required for particular
actions.
G. 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.139
Policies that have federalism
implications include regulations that
have substantial direct effects on the
States, on the relationship between the
national government and the States, or
on the distribution of power and
responsibilities among the various
levels of government. This rule does not
have federalism implications because it
applies to Federal agencies, not States.
However, CEQ notes that States may
elect to assume NEPA responsibilities
under Federal statutes. CEQ received
comments in response to the NPRM
from a number of States, including those
that have assumed NEPA
responsibilities, and considered these
comments in development of the final
rule.
H. 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.140 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. While
the rule is not a regulatory policy that
has Tribal implications, the rule does, in
part, respond to Tribal government
comments concerning Tribal sovereign
rights, interests, and the expertise of
Tribes in the NEPA process and the CEQ
regulations implementing NEPA.
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140 Supra
note 75.
note 69.
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Several commenters stated that it is
inaccurate for CEQ to conclude that the
rule ‘‘is not a regulatory policy that has
Tribal implications,’’ under E.O. 13175.
Commenters noted that NEPA uniquely
and substantially impacts Tribes, and
Tribal lands are ordinarily held in
Federal trust. Commenters also stated
that through NEPA and its
implementing regulations, Tribes often
engage with the Federal agency on
projects located within the Tribes’
ancestral lands, including on projects
that may affect cultural resources,
sacred sites, and other resources.
Commenters noted Tribal nations
routinely participate in the NEPA
process as participating, cooperating, or
sometimes lead agencies. Further, the
proposed regulations specifically
contain provisions that explicitly
reference Tribal nations.
Commenters stated that consultation
is required by the Presidential
Memorandum for the Heads of
Executive Departments and Agencies on
Tribal Consultation dated November 5,
2009,141 which supplements E.O. 13175
and requested formal consultation and
additional meetings in their region with
CEQ on the proposed rule. Commenters
stated that the Tribal meetings CEQ held
were insufficient in number or capacity
for meaningful consultation. Other
commenters stated that consultation
should start at the outset of the process,
and some reference comments provided
on the need for consultation during the
ANPRM process. Some commenters
stated that CEQ should withdraw the
proposed rule, and others asked that
CEQ postpone or extend the comment
period for the rulemaking in order to
engage in consultation with Tribal
governments in order to make the
regulatory framework more responsive
to Tribal needs.
The final rule does not meet the
criteria in E.O. 13175 that require
government-to-government
consultation. This rule does not impose
substantial direct compliance costs on
Tribal governments (section 5(b)) and
does not preempt Tribal law (section
5(c)). However, CEQ solicited and
received numerous Tribal governmental
and organizational public comments
during the rulemaking process. The
comments received through the ANPRM
informed the development of CEQ’s
proposed rule. For the proposed rule,
CEQ provided for a 60-day public
comment period, which is consistent
with the length of the comment period
provided by CEQ for the original 1978
proposed regulations, as well as the
APA and E.O. 12866. CEQ notified all
141 74
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Tribal leaders of federally recognized
Tribes by email or mail of the proposed
rule and invited comments. CEQ
conducted additional Tribal outreach to
solicit comments from Tribal leaders
and members through three listening
sessions held in Denver, Colorado,
Anchorage, Alaska, and Washington,
DC. CEQ made information to aid the
Tribes and the public’s review available
on its websites at www.whitehouse.gov/
ceq and www.nepa.gov, including a
redline version of the proposed changes,
a presentation on the proposed rule, and
other background information.
One commenter argued that CEQ
made a ‘‘substantive’’ decision to forego
Tribal consultation that it must support
with substantial evidence in the
administrative record under the APA.
While compliance with E.O. 13175 is
not subject to judicial review, the final
rule explains how CEQ received
meaningful and timely input from
Tribal leaders and members.
In its ANPRM, CEQ included a
specific question regarding the
representation of Tribal governments in
the NEPA process. See ANPRM
Question 18 (‘‘Are there ways in which
the role of [T]ribal governments in the
NEPA process should be clarified in
CEQ’s NEPA regulations, and if so,
how?’’). More generally, CEQ’s ANPRM
sought the views of Tribal governments
and others on regulatory revisions that
CEQ could propose to improve Tribal
participation in Federal NEPA
processes. See ANPRM Question 2
(‘‘Should CEQ’s NEPA regulations be
revised to make the NEPA process more
efficient by better facilitating agency use
of environmental studies, analysis, and
decisions conducted in earlier Federal,
State, Tribal or local environmental
reviews or authorization decisions, and
if so, how?’’). As discussed in section
II.A, CEQ is amending its regulations in
the final rule to further support
coordination with Tribal governments
and agencies and analysis of a proposed
action’s potential effects on Tribal
lands, resources, or areas of historic
significance as an important part of
Federal agency decision making.
I. Executive Order 12898, Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
E.O. 12898 requires agencies to make
achieving environmental justice part of
their missions by identifying and
addressing, as appropriate,
disproportionately high and adverse
human health or environmental effects
of its programs, policies, and activities
on minority populations and low-
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income populations.142 CEQ has
analyzed this final rule and determined
that it would not cause
disproportionately high and adverse
human health or environmental effects
on minority populations and lowincome populations. 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 agencies can consider, as
needed, environmental justice issues.
Several commenters disagreed with
CEQ’s determination that the proposed
rule would not cause disproportionately
high and adverse human health or
environmental effects on minority
populations and low-income
populations. Commenters stated NEPA’s
mandate to consider environmental
effects, E.O. 12898, agency guidance,
and case law establish that agencies
cannot ignore the impacts of their
actions on low-income and minority
communities, and that CEQ is
relinquishing its responsibility to
oversee compliance with E.O. 12898
and NEPA. Further, commenters
contended that CEQ’s failure to analyze
how the proposed rule and its
implementation would affect E.O.
12898’s mandates would render the
regulations arbitrary and capricious, and
exceed the agency’s statutory authority.
Commenters stated that CEQ provided
no explanation or analysis of how the
development and implementation of
this rule would affect implementation of
E.O. 12898 and, consequently,
environmental justice communities.
Commenters noted the fundamental
proposed changes to nearly every step of
the NEPA review process will
disproportionately impact
environmental justice communities and
will reduce or limit opportunities for
such communities to understand the
effects of proposed projects and to
participate in the NEPA review process.
NEPA is a procedural statute that does
not presuppose any particular
substantive outcomes. In addition, CEQ
has reviewed the changes in this final
rule and has determined that they
would not result in environmental
impacts. See RIA Appendix. CEQ
disagrees that the final rule will have
disproportionately high and adverse
human health or environmental effects
on minority populations and lowincome population. Rather, the final
rule modernizes and clarifies the
procedures that NEPA contemplates.
Among other things, this will give
agencies greater flexibility to design and
customize public involvement to best
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FR 7629 (Feb. 16, 1994).
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Fmt 4701
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address the specific circumstances of
their proposed actions. The final rule
expands the already wide range of tools
agencies may use when providing notice
to potentially affected communities and
inviting public involvement. CEQ has
made further changes to § 1506.6 in the
final rule to clarify that agencies should
consider the public’s access to
electronic media when selecting
appropriate methods for providing
public notice and involvement. The
final rule also better informs the public
by extending the scoping period so that
it may occur prior to publication of the
NOI, where appropriate, and increasing
the specificity of the NOI.
Commenters also raised concerns that
CEQ did not follow the E.O. 12898
directive to ensure that environmental
justice communities can meaningfully
participate in public processes and
Federal agency decision making,
including making public information
and hearings ‘‘readily accessible.’’
Commenters stated that CEQ failed to
follow this directive in designing its
rulemaking process, and in fact,
excluded environmental justice
communities from the process. Further,
commenters stated that, over 20 years
ago, CEQ acknowledged that traditional
notice and comment procedures may be
insufficient to engage environmental
justice communities. These barriers may
range from agency failure to provide
translation of documents to the
scheduling of meetings at times and in
places that are not convenient to
working families. Commenters stated
that CEQ failed to mention
environmental justice communities in
its opening statement during the
Washington, DC hearing.
Commenters also stated that CEQ
failed to take note of the thousands of
comments submitted in response to the
ANPRM raising concerns about the
health and environment of
environmental justice communities that
could come from limiting opportunities
to gain access to information about
projects and to comment. Commenters
stated that if CEQ’s rulemaking process
was more inclusive and expansive it
would enable some valuable
clarifications in the regulations of how
environmental justice impacts should be
taken more definitively into account in
NEPA reviews. Commenters also stated
that the proposed rule changes show no
particular interest in better clarifying
this important aspect of environmental
review, and show no evidence of
interest in bettering environmental
justice impact assessment.
In response to the ANPRM, CEQ
received over 12,500 comments,
including from those representing
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environmental justice organizations.
The diverse range of public comments
informed CEQ’s development of the
proposed rule to improve interagency
coordination in the environmental
review process, promote earlier public
involvement, increase transparency, and
enhance the participation of States,
Tribes, and localities.
In issuing the NPRM, CEQ took a
number of further actions to hear from
the public and to encourage all
interested stakeholders to submit
comments. These actions included
notifying and inviting comment from all
federally recognized Tribes and over
400 interested groups, including States,
localities, environmental organizations,
trade associations, NEPA practitioners,
and other interested members of the
public, representing a broad range of
diverse views. Additionally, CEQ made
information to aid the public’s review
available on its websites at
www.whitehouse.gov/ceq and
www.nepa.gov, including a redline
version of the proposed changes to the
regulations, along with a presentation
on the proposed rule and other
background information.
CEQ engaged in extensive public
outreach with the benefit of modern
technologies and rulemaking
procedures. CEQ held two public
hearings each with morning, afternoon,
and evening sessions, in Denver,
Colorado on February 11, 2020, and in
Washington, DC on February 25, 2020.
Both hearings had diverse
representation from stakeholders,
including many speaking on behalf of
environmental justice communities or
about their concerns. CEQ also attended
the National Environmental Justice
Advisory Committee (NEJAC) meeting
in Jacksonville, Florida to brief NEJAC
members and the public on the
proposed rule and to answer questions.
CEQ also conducted additional public
outreach to solicit comments and
receive input, including Tribal
engagement in Denver, Colorado,
Anchorage, Alaska and Washington, DC.
Agencies must prepare a Statement of
Energy Effects for significant energy
actions under E.O. 13211.143 This final
rule 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.
143 66
K. Executive Order 12988, Civil Justice
Reform
40 CFR Part 1517
Sunshine Act.
Under section 3(a) E.O. 12988,144
agencies must review their proposed
regulations to eliminate drafting errors
and ambiguities, draft them to minimize
litigation, and provide a clear legal
standard for affected conduct. Section
3(b) provides a list of specific issues for
review to conduct the reviews required
by section 3(a). CEQ has conducted this
review and determined that this final
rule complies with the requirements of
E.O. 12988.
40 CFR Part 1518
Accounting, Administrative practice
and procedure, Environmental impact
statements.
L. Unfunded Mandates Reform Act
Section 201 of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C.
1531) requires Federal agencies to assess
the effects of their regulatory actions on
State, Tribal, and local governments,
and the private sector to the extent that
such regulations incorporate
requirements specifically set forth in
law. Before promulgating a rule that
may result in the expenditure by a State,
Tribal, or local government, in the
aggregate, or by the private sector of
$100 million, adjusted annually for
inflation, in any one year, an agency
must prepare a written statement that
assesses the effects on State, Tribal, and
local governments and the private
sector. 2 U.S.C. 1532. This final rule
applies to Federal agencies and would
not result in expenditures of $100
million or more for State, Tribal, and
local governments, in the aggregate, or
the private sector in any 1 year. This
action also does 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. 1531–38.
M. Paperwork Reduction Act
This final rule does not impose any
new information collection burden that
would require additional review or
approval by OMB under the Paperwork
Reduction Act (PRA), 44 U.S.C. 3501 et
seq.
List of Subjects
40 CFR Parts 1500, 1501, 1502, 1503,
1504, 1505, 1506, 1507, and 1508
J. Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
Administrative practice and
procedure, Environmental impact
statements, Environmental protection,
Natural resources.
40 CFR Part 1515
Freedom of information.
40 CFR Part 1516
FR 28355 (May 22, 2001).
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Privacy.
144 61
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Mary B. Neumayr,
Chairman.
For the reasons stated in the
preamble, and under the authority of 42
U.S.C. 4321–4347; 42 U.S.C. 4371–4375;
42 U.S.C. 7609; 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; and E.O.
13807, 82 FR 40463, 3 CFR, 2017,
Comp., p. 369, the Council on
Environmental Quality amends chapter
V in title 40 of the Code of Federal
Regulations as follows:
PARTS 1500 THROUGH 1508
[DESIGNATED AS SUBCHAPTER A]
1. Designate parts 1500 through 1508
as subchapter A and add a heading for
newly designated subchapter A to read
as follows:
■
Subchapter A—National Environmental
Policy Act Implementing Regulations
■
2. Revise part 1500 to read as follows:
PART 1500—PURPOSE AND POLICY
Sec.
1500.1
1500.2
1500.3
1500.4
1500.5
1500.6
Purpose and policy.
[Reserved].
NEPA compliance.
Reducing paperwork.
Reducing delay.
Agency authority.
Authority: 42 U.S.C. 4321–4347; 42 U.S.C.
4371–4375; 42 U.S.C. 7609; 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; and E.O. 13807, 82
FR 40463, 3 CFR, 2017, Comp., p. 369.
§ 1500.1
Purpose and policy.
(a) The National Environmental
Policy Act (NEPA) is a procedural
statute intended to ensure Federal
agencies consider the environmental
impacts of their actions in the decisionmaking process. Section 101 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 man and nature can exist in
productive harmony, and fulfill the
social, economic, and other
requirements of present and future
generations of Americans. Section
102(2) of NEPA establishes the
procedural requirements to carry out the
policy stated in section 101 of NEPA. In
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particular, it requires Federal agencies
to provide a detailed statement on
proposals for major Federal actions
significantly affecting the quality of the
human environment. The purpose and
function of NEPA is satisfied if Federal
agencies have considered relevant
environmental information, and the
public has been informed regarding the
decision-making process. NEPA does
not mandate particular results or
substantive outcomes. NEPA’s purpose
is not to generate paperwork or
litigation, but to provide for informed
decision making and foster excellent
action.
(b) The regulations in this subchapter
implement section 102(2) of NEPA.
They provide direction to Federal
agencies to determine what actions are
subject to NEPA’s procedural
requirements and the level of NEPA
review where applicable. The
regulations in this subchapter are
intended to ensure that relevant
environmental information is identified
and considered early in the process in
order to ensure informed decision
making by Federal agencies. The
regulations in this subchapter are also
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.
§ 1500.2
[Reserved]
§ 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), except
where compliance would be
inconsistent with other statutory
requirements. 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.);
section 309 of the Clean Air Act, as
amended (42 U.S.C. 7609); 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);
and Executive Order 13807, Establishing
Discipline and Accountability in the
Environmental Review and Permitting
Process for Infrastructure Projects
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(August 15, 2017). 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 law.
(b) Exhaustion. (1) To ensure
informed decision making and reduce
delays, agencies shall include a request
for comments on potential alternatives
and impacts, and identification of any
relevant information, studies, or
analyses of any kind concerning impacts
affecting the quality of the human
environment in the notice of intent to
prepare an environmental impact
statement (§ 1501.9(d)(7) of this
chapter).
(2) The draft and final environmental
impact statements shall include a
summary of all alternatives,
information, and analyses submitted by
State, Tribal, and local governments and
other public commenters for
consideration by the lead and
cooperating agencies in developing the
draft and final environmental impact
statements (§ 1502.17 of this chapter).
(3) For consideration by the lead and
cooperating agencies, State, Tribal, and
local governments and other public
commenters must submit comments
within the comment periods provided,
and comments shall be as specific as
possible (§§ 1503.1 and 1503.3 of this
chapter). Comments or objections of any
kind not submitted, including those
based on submitted alternatives,
information, and analyses, shall be
forfeited as unexhausted.
(4) Informed by the submitted
alternatives, information, and analyses,
including the summary in the final
environmental impact statement
(§ 1502.17 of this chapter) and the
agency’s response to comments in the
final environmental impact statement
(§ 1503.4 of this chapter), together with
any other material in the record that he
or she determines relevant, the decision
maker shall certify in the record of
decision that the agency considered all
of the alternatives, information, and
analyses, and objections submitted by
States, Tribal, and local governments
and other public commenters for
consideration by the lead and
cooperating agencies in developing the
environmental impact statement
(§ 1505.2(b) of this chapter).
(c) 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. It is the Council’s intention that
any allegation of noncompliance with
NEPA and the regulations in this
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subchapter should be resolved as
expeditiously as possible. Consistent
with their organic statutes, and as part
of implementing the exhaustion
provisions in paragraph (b) of this
section, agencies may structure their
procedures to include an appropriate
bond or other security requirement.
(d) Remedies. Harm from the failure
to comply with NEPA can be remedied
by compliance with NEPA’s procedural
requirements as interpreted in the
regulations in this subchapter. It is the
Council’s intention that the regulations
in this subchapter create no
presumption that violation of NEPA is
a basis for injunctive relief or for a
finding of irreparable harm. The
regulations in this subchapter do not
create a cause of action or right of action
for violation of NEPA, which contains
no such cause of action or right of
action. It is the Council’s intention that
any actions to review, enjoin, stay,
vacate, or otherwise alter an agency
decision on the basis of an alleged
NEPA violation be raised as soon as
practicable after final agency action to
avoid or minimize any costs to agencies,
applicants, or any affected third parties.
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.
(e) 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.
§ 1500.4
Reducing paperwork.
Agencies shall reduce excessive
paperwork by:
(a) Using categorical exclusions to
define categories of actions that
normally do not have a significant effect
on the human environment and
therefore do not require preparation of
an environmental impact statement
(§ 1501.4 of this chapter).
(b) Using a finding of no significant
impact when an action not otherwise
excluded will not have a significant
effect on the human environment and
therefore does not require preparation of
an environmental impact statement
(§ 1501.6 of this chapter).
(c) Reducing the length of
environmental documents by means
such as meeting appropriate page limits
(§§ 1501.5(f) and 1502.7 of this chapter).
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(d) Preparing analytic and concise
environmental impact statements
(§ 1502.2 of this chapter).
(e) Discussing only briefly issues
other than significant ones (§ 1502.2(b)
of this chapter).
(f) Writing environmental impact
statements in plain language (§ 1502.8 of
this chapter).
(g) Following a clear format for
environmental impact statements
(§ 1502.10 of this chapter).
(h) Emphasizing the portions of the
environmental impact statement that are
useful to decision makers and the public
(e.g., §§ 1502.14 and 1502.15 of this
chapter) and reducing emphasis on
background material (§ 1502.1 of this
chapter).
(i) Using the scoping process, not only
to identify significant environmental
issues deserving of study, but also to
deemphasize insignificant issues,
narrowing the scope of the
environmental impact statement process
accordingly (§ 1501.9 of this chapter).
(j) Summarizing the environmental
impact statement (§ 1502.12 of this
chapter).
(k) Using programmatic, policy, or
plan environmental impact statements
and tiering from statements of broad
scope to those of narrower scope, to
eliminate repetitive discussions of the
same issues (§§ 1501.11 and 1502.4 of
this chapter).
(l) Incorporating by reference
(§ 1501.12 of this chapter).
(m) Integrating NEPA requirements
with other environmental review and
consultation requirements (§ 1502.24 of
this chapter).
(n) Requiring comments to be as
specific as possible (§ 1503.3 of this
chapter).
(o) Attaching and publishing only
changes to the draft environmental
impact statement, rather than rewriting
and publishing the entire statement
when changes are minor (§ 1503.4(c) of
this chapter).
(p) Eliminating duplication with
State, Tribal, and local procedures, by
providing for joint preparation of
environmental documents where
practicable (§ 1506.2 of this chapter),
and with other Federal procedures, by
providing that an agency may adopt
appropriate environmental documents
prepared by another agency (§ 1506.3 of
this chapter).
(q) Combining environmental
documents with other documents
(§ 1506.4 of this chapter).
§ 1500.5
Reducing delay.
Agencies shall reduce delay by:
(a) Using categorical exclusions to
define categories of actions that
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normally do not have a significant effect
on the human environment (§ 1501.4 of
this chapter) and therefore do not
require preparation of an 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
(§ 1501.6 of this chapter) and therefore
does not require preparation of an
environmental impact statement.
(c) Integrating the NEPA process into
early planning (§ 1501.2 of this chapter).
(d) Engaging in interagency
cooperation before or as the
environmental assessment or
environmental impact statement is
prepared, rather than awaiting
submission of comments on a
completed document (§§ 1501.7 and
1501.8 of this chapter).
(e) Ensuring the swift and fair
resolution of lead agency disputes
(§ 1501.7 of this chapter).
(f) Using the scoping process for an
early identification of what are and
what are not the real issues (§ 1501.9 of
this chapter).
(g) Meeting appropriate time limits for
the environmental assessment and
environmental impact statement
processes (§ 1501.10 of this chapter).
(h) Preparing environmental impact
statements early in the process (§ 1502.5
of this chapter).
(i) Integrating NEPA requirements
with other environmental review and
consultation requirements (§ 1502.24 of
this chapter).
(j) Eliminating duplication with State,
Tribal, and local procedures by
providing for joint preparation of
environmental documents where
practicable (§ 1506.2 of this chapter) and
with other Federal procedures by
providing that agencies may jointly
prepare or adopt appropriate
environmental documents prepared by
another agency (§ 1506.3 of this
chapter).
(k) Combining environmental
documents with other documents
(§ 1506.4 of this chapter).
(l) Using accelerated procedures for
proposals for legislation (§ 1506.8 of this
chapter).
§ 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
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43359
with the purposes and provisions of the
Act as interpreted by 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, consistent with § 1501.1 of
this chapter. Nothing contained in the
regulations in this subchapter is
intended or should be construed to limit
an agency’s other authorities or legal
responsibilities.
■ 3. Revise part 1501 to read as follows:
PART 1501—NEPA AND AGENCY
PLANNING
Sec.
1501.1 NEPA thresholds.
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 agencies.
1501.8 Cooperating agencies.
1501.9 Scoping.
1501.10 Time limits.
1501.11 Tiering.
1501.12 Incorporation by reference.
Authority: 42 U.S.C. 4321–4347; 42 U.S.C.
4371–4375; 42 U.S.C. 7609; E.O. 11514, 35
FR 4247, 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; and
E.O. 13807, 82 FR 40463, 3 CFR, 2017,
Comp., p. 369.
§ 1501.1
NEPA thresholds.
(a) In assessing whether NEPA applies
or is otherwise fulfilled, Federal
agencies should determine:
(1) Whether the proposed activity or
decision is expressly exempt from
NEPA under another statute;
(2) Whether compliance with NEPA
would clearly and fundamentally
conflict with the requirements of
another statute;
(3) Whether compliance with NEPA
would be inconsistent with
Congressional intent expressed in
another statute;
(4) Whether the proposed activity or
decision is a major Federal action;
(5) Whether the proposed activity or
decision, in whole or in part, is a nondiscretionary action for which the
agency lacks authority to consider
environmental effects as part of its
decision-making process; and
(6) Whether the proposed action is an
action for which another statute’s
requirements serve the function of
agency compliance with the Act.
(b) Federal agencies may make
determinations under this section in
their agency NEPA procedures
(§ 1507.3(d) of this chapter) or on an
individual basis, as appropriate.
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(1) Federal agencies may seek the
Council’s assistance in making an
individual determination under this
section.
(2) An agency shall consult with other
Federal agencies concerning their
concurrence in statutory determinations
made under this section where more
than one Federal agency administers the
statute.
§ 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 which may have
an impact on man’s environment, as
specified by § 1507.2(a) of this chapter.
(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.
(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)(E) of NEPA.
(4) Provide for actions subject to
NEPA that are planned by private
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 private
persons and organizations when their
involvement is reasonably foreseeable.
(iii) The Federal agency commences
its NEPA process at the earliest
reasonable time (§§ 1501.5(d) and
1502.5(b) of this chapter).
§ 1501.3 Determine the appropriate level of
NEPA review.
(a) In assessing the appropriate level
of NEPA review, Federal agencies
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should determine whether the proposed
action:
(1) Normally does not have significant
effects and is categorically excluded
(§ 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
(§ 1501.5); or
(3) Is likely to have significant effects
and is therefore appropriate for an
environmental impact statement (part
1502 of this chapter).
(b) In considering whether the effects
of the proposed action are significant,
agencies shall analyze the potentially
affected environment and degree of the
effects of the action. Agencies should
consider connected actions consistent
with § 1501.9(e)(1).
(1) In considering the potentially
affected environment, agencies should
consider, as appropriate to the specific
action, the affected area (national,
regional, or local) and its resources,
such as listed species and designated
critical habitat under the Endangered
Species Act. Significance varies with
the setting of the proposed action. For
instance, in the case of a site-specific
action, significance would usually
depend only upon the effects in the
local area.
(2) In considering the degree of the
effects, agencies should consider the
following, as appropriate to the specific
action:
(i) Both short- and long-term effects.
(ii) Both beneficial and adverse
effects.
(iii) Effects on public health and
safety.
(iv) Effects that would violate Federal,
State, Tribal, or local law protecting the
environment.
§ 1501.4
Categorical exclusions.
(a) For efficiency, agencies shall
identify in their agency NEPA
procedures (§ 1507.3(e)(2)(ii) of this
chapter) categories of actions that
normally do not have a significant effect
on the human environment, and
therefore do not require preparation of
an environmental assessment or
environmental impact statement.
(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 is
present, the agency nevertheless may
categorically exclude the proposed
action if the agency determines that
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there are circumstances that lessen the
impacts or other conditions sufficient to
avoid significant effects.
(2) If the agency cannot categorically
exclude the proposed action, the agency
shall prepare an environmental
assessment or environmental impact
statement, as appropriate.
§ 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 (§ 1501.4) is
applicable or has decided to prepare an
environmental impact statement.
(b) An agency may prepare an
environmental assessment on any action
in order 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; and
(2) Briefly discuss the purpose and
need for the proposed action,
alternatives as required by section
102(2)(E) of NEPA, and the
environmental impacts of the proposed
action and alternatives, and include a
listing of agencies and persons
consulted.
(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) Agencies shall involve the public,
State, Tribal, and local governments,
relevant agencies, and any applicants, to
the extent practicable in preparing
environmental assessments.
(f) The text of an environmental
assessment shall be no more than 75
pages, not including appendices, unless
a senior agency official approves in
writing an assessment to exceed 75
pages and establishes a new page limit.
(g) Agencies may apply the following
provisions to environmental
assessments:
(1) Section 1502.21 of this chapter—
Incomplete or unavailable information;
(2) Section 1502.23 of this chapter—
Methodology and scientific accuracy;
and
(3) Section 1502.24 of this chapter—
Environmental review and consultation
requirements.
§ 1501.6
Findings of no significant impact.
(a) An agency shall prepare a finding
of no significant impact if the agency
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determines, based on the environmental
assessment, not to prepare an
environmental impact statement
because the proposed action will not
have significant effects.
(1) The agency shall make the finding
of no significant impact available to the
affected public as specified in
§ 1506.6(b) of this chapter.
(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 § 1507.3 of
this chapter; 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
(§ 1501.9(f)(3)). If the 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 impacts based on
mitigation, the mitigated finding of no
significant impact shall state any
enforceable mitigation requirements or
commitments that will be undertaken to
avoid significant impacts.
§ 1501.7
Lead agencies.
(a) A lead agency shall supervise the
preparation of an environmental impact
statement or a complex 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, including at least one Federal
agency, may act as joint lead agencies to
prepare an environmental impact
statement or environmental assessment
(§ 1506.2 of this chapter).
(c) If an action falls within the
provisions of paragraph (a) of this
section, the potential lead agencies shall
determine, by letter or memorandum,
which agency will be the lead agency
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and which 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.
(5) Sequence of agency’s involvement.
(d) Any Federal agency, or any State,
Tribal, or local agency or private person
substantially affected by the absence of
lead agency designation, may make a
written request to the senior agency
officials of the potential lead agencies
that a lead agency be designated.
(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, any of the agencies or
persons concerned may file a request
with the Council asking it to determine
which Federal agency shall be the lead
agency. A copy of the request shall be
transmitted 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 within 20 days after a request
is filed with the Council. As soon as
possible, but not later than 20 days after
receiving the request and all responses
to it, the Council shall determine 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 issue 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 should evaluate
the proposal in a single environmental
assessment and, where appropriate,
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43361
issue a joint finding of no significant
impact.
(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) Use the environmental analysis
and proposals of cooperating agencies
with jurisdiction by law or special
expertise, to the maximum extent
practicable.
(3) Meet with a cooperating agency at
the latter’s request.
(4) Determine the purpose and need,
and alternatives in consultation with
any cooperating agency.
(i) The lead agency shall develop a
schedule, setting milestones for all
environmental reviews and
authorizations required for
implementation of the action, in
consultation with any applicant and all
joint lead, cooperating, and
participating agencies, as soon as
practicable.
(j) If the lead agency anticipates that
a milestone will be missed, it shall
notify appropriate officials at the
responsible agencies. As soon as
practicable, the responsible agencies
shall elevate the issue to the appropriate
officials of the responsible agencies for
timely resolution.
§ 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. 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 § 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 § 1501.9).
(3) On request of the lead agency,
assume responsibility for developing
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
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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 (§ 1501.7(i)),
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 and limit its
comments to those matters for which it
has jurisdiction by law or special
expertise with respect to any
environmental issue consistent with
§ 1503.2 of this chapter.
(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.
§ 1501.9
Scoping.
(a) Generally. Agencies shall use an
early and open process to determine the
scope of issues for analysis in an
environmental impact statement,
including identifying the significant
issues and eliminating from further
study non-significant issues. Scoping
may begin as soon as practicable after
the proposal for action is sufficiently
developed for agency consideration.
Scoping may include appropriate preapplication procedures or work
conducted prior to publication of the
notice of intent.
(b) Invite cooperating and
participating agencies. As part of the
scoping process, 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 § 1507.3(f)(1) of this chapter.
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(c) Scoping outreach. 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. Such a scoping
meeting will often be appropriate when
the impacts of a particular action are
confined to specific sites.
(d) 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, except as provided in
§ 1507.3(f)(3) of this chapter. An agency
also may publish notice in accordance
with § 1506.6 of this chapter. 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
impacts;
(4) Anticipated permits and other
authorizations;
(5) A schedule for the decisionmaking process;
(6) A description of the public
scoping process, including any scoping
meeting(s);
(7) A request for identification of
potential alternatives, information, and
analyses relevant to the proposed action
(see § 1502.17 of this chapter); and
(8) Contact information for a person
within the agency who can answer
questions about the proposed action and
the environmental impact statement.
(e) Determination of scope. As part of
the scoping process, the lead agency
shall determine the scope and the
significant issues to be analyzed in
depth in the environmental impact
statement. To determine the scope of
environmental impact statements,
agencies shall consider:
(1) Actions (other than unconnected
single actions) that may be connected
actions, which means that they are
closely related and therefore should be
discussed in the same impact statement.
Actions are connected if they:
(i) Automatically trigger other actions
that may require environmental impact
statements;
(ii) Cannot or will not proceed unless
other actions are taken previously or
simultaneously; or
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(iii) Are interdependent parts of a
larger action and depend on the larger
action for their justification.
(2) Alternatives, which include the no
action alternative; other reasonable
courses of action; and mitigation
measures (not in the proposed action).
(3) Impacts.
(f) 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
significant or have been covered by
prior environmental review(s) (§ 1506.3
of this chapter), narrowing the
discussion of these issues in the
statement to a brief presentation of why
they will not have a significant effect on
the human environment 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 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 § 1502.24 of this chapter.
(5) Indicate the relationship between
the timing of the preparation of
environmental analyses and the
agencies’ tentative planning and
decision-making schedule.
(g) Revisions. An agency shall revise
the determinations made under
paragraphs (b), (c), (e), and (f) of this
section if substantial changes are made
later in the proposed action, or if
significant new circumstances or
information arise which bear on the
proposal or its impacts.
§ 1501.10
Time limits.
(a) To ensure that agencies conduct
NEPA reviews as efficiently and
expeditiously as practicable, Federal
agencies should set time limits
appropriate to individual actions or
types of actions (consistent with the
time intervals required by § 1506.11 of
this chapter).
(b) To ensure timely decision making,
agencies shall complete:
(1) Environmental assessments within
1 year unless a senior agency official of
the lead agency approves a longer
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period in writing and establishes a new
time limit. One year is measured from
the date of agency decision to prepare
an environmental assessment to the
publication of an environmental
assessment or a finding of no significant
impact.
(2) Environmental impact statements
within 2 years unless a senior agency
official of the lead agency approves a
longer period in writing and establishes
a new time limit. Two years is measured
from the date of the issuance of the
notice of intent to the date a record of
decision is signed.
(c) The senior agency official may
consider the following factors in
determining time limits:
(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) Other time limits imposed on the
agency by law, regulations, or Executive
order.
(d) The senior agency official may set
overall time limits or limits for each
constituent part of the NEPA process,
which may include:
(1) Decision on whether to prepare an
environmental impact statement (if not
already decided).
(2) Determination of the scope of the
environmental impact statement.
(3) Preparation of the draft
environmental impact statement.
(4) Review of any comments on the
draft environmental impact statement
from the public and agencies.
(5) Preparation of the final
environmental impact statement.
(6) Review of any comments on the
final environmental impact statement.
(7) Decision on the action based in
part on the environmental impact
statement.
(e) The 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.
(f) State, Tribal, or local agencies or
members of the public may request a
Federal agency to set time limits.
§ 1501.11
Tiering.
(a) Agencies 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
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from consideration issues already
decided or not yet ripe at each level of
environmental review. Tiering may also
be appropriate for different stages of
actions.
(b) When an agency has prepared an
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 entire
program or policy (such as a project- or
site-specific action), the tiered
document needs only to 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. The tiered document shall state
where the earlier document is available.
(c) Tiering is appropriate when the
sequence from an environmental impact
statement or environmental assessment
is:
(1) 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.
(2) 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 lead
agency to focus on the issues that are
ripe for decision and exclude from
consideration issues already decided or
not yet ripe.
§ 1501.12
Incorporation by reference.
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 and briefly describe its
content. Agencies may not incorporate
material by reference unless it is
reasonably available for inspection by
potentially interested persons within
the time allowed for comment. Agencies
shall not incorporate by reference
material based on proprietary data that
is not available for review and
comment.
■
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4. Revise part 1502 to read as follows:
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43363
PART 1502—ENVIRONMENTAL
IMPACT STATEMENT
Sec.
1502.1 Purpose of environmental impact
statement.
1502.2 Implementation.
1502.3 Statutory requirements for
statements.
1502.4 Major Federal actions requiring the
preparation of environmental impact
statements.
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 submitted alternatives,
information, and analyses.
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; 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; and E.O. 13807, 82
FR 40463, 3 CFR, 2017, Comp., p. 369.
§ 1502.1 Purpose of environmental impact
statement.
The primary purpose of an
environmental impact statement
prepared pursuant to section 102(2)(C)
of NEPA is to ensure agencies consider
the environmental impacts of their
actions in decision making. It shall
provide full and fair discussion of
significant environmental impacts and
shall inform decision makers and the
public of reasonable alternatives that
would avoid or minimize adverse
impacts or enhance the quality of the
human environment. Agencies shall
focus on significant environmental
issues and alternatives and shall reduce
paperwork and the accumulation of
extraneous background data. 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 a
document that informs Federal agency
decision making and the public.
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Implementation.
(a) Environmental impact statements
shall not be encyclopedic.
(b) Environmental impact statements
shall discuss impacts in proportion to
their significance. There shall be only
brief discussion of other than significant
issues. As in a 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 analytic, 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 project size.
(d) Environmental impact statements
shall state how alternatives considered
in it and decisions based on it will or
will not achieve the requirements of
sections 101 and 102(1) of NEPA as
interpreted in the regulations in this
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 selection of
alternatives before making a final
decision (see also § 1506.1 of this
chapter).
(g) Environmental impact statements
shall serve as the means of assessing the
environmental impact of proposed
agency actions, rather than justifying
decisions already made.
§ 1502.3 Statutory requirements for
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.
§ 1502.4 Major Federal actions requiring
the preparation of environmental impact
statements.
(a) Agencies shall define the proposal
that is the subject of an environmental
impact statement based on the statutory
authorities for the proposed action.
Agencies shall use the criteria for scope
(§ 1501.9(e) of this chapter) to determine
which proposal(s) shall be the subject of
a particular statement. Agencies shall
evaluate in a single environmental
impact statement proposals or parts of
proposals that are related to each other
closely enough to be, in effect, a single
course of action.
(b) Environmental impact statements
may be prepared for programmatic
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Federal actions, such as the adoption of
new agency programs. When agencies
prepare such statements, they should be
relevant to the program decision and
timed to coincide with meaningful
points in agency planning and decision
making.
(1) When preparing statements on
programmatic actions (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) Generically, including actions that
have relevant similarities, such as
common timing, impacts, alternatives,
methods of implementation, 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. Statements on
such programs should be available
before the program has reached a stage
of investment or commitment to
implementation likely to determine
subsequent development or restrict later
alternatives.
(2) Agencies shall as appropriate
employ scoping (§ 1501.9 of this
chapter), tiering (§ 1501.11 of this
chapter), and other methods listed in
§§ 1500.4 and 1500.5 of this chapter to
relate programmatic and narrow actions
and to avoid duplication and delay.
Agencies may tier their environmental
analyses to defer detailed analysis of
environmental impacts of specific
program elements until such program
elements are ripe for final agency action.
§ 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 (§§ 1501.2 of this chapter 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 (go/
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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 application. Federal
agencies should work 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 statements.
(d) For informal rulemaking, the draft
environmental impact statement shall
normally accompany the proposed rule.
§ 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 (§ 1501.9 of this
chapter).
§ 1502.7
Page limits.
The text of final environmental
impact statements (paragraphs (a)(4)
through (6) of § 1502.10) shall be 150
pages or fewer and, for proposals of
unusual scope or complexity, shall be
300 pages or fewer unless a senior
agency official of the lead agency
approves in writing a statement to
exceed 300 pages and establishes a new
page limit.
§ 1502.8
Writing.
Agencies shall write environmental
impact statements in plain language and
may use appropriate graphics 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.
§ 1502.9 Draft, final, and supplemental
statements.
(a) Generally. Except for proposals for
legislation as provided in § 1506.8 of
this chapter, agencies shall prepare
environmental impact statements in two
stages and, where necessary,
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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 (§ 1501.9 of
this chapter). The lead agency shall
work with the cooperating agencies and
shall obtain comments as required in
part 1503 of this chapter. To the fullest
extent practicable, the draft statement
must meet the requirements established
for final statements in section 102(2)(C)
of NEPA as interpreted in the
regulations in this subchapter. If 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 impacts of the
alternatives including the proposed
action.
(c) Final environmental impact
statements. Final environmental impact
statements shall address comments as
required in part 1503 of this chapter. 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 significant new
circumstances or information relevant to
environmental concerns and bearing on
the proposed action or its impacts.
(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 (§ 1501.9 of this chapter)) as a
draft and final statement, as is
appropriate to the stage of the statement
involved, unless the Council approves
alternative procedures (§ 1506.12 of this
chapter).
(4) May find that changes to the
proposed action or new circumstances
or information relevant to
environmental concerns are not
significant and therefore do not require
a supplement. The agency should
document the finding consistent with its
agency NEPA procedures (§ 1507.3 of
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this chapter), or, if necessary, in a
finding of no significant impact
supported by an environmental
assessment.
§ 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.
(2) Summary.
(3) Table of contents.
(4) Purpose of and need for action.
(5) Alternatives including the
proposed action (sections 102(2)(C)(iii)
and 102(2)(E) of NEPA).
(6) Affected environment and
environmental consequences (especially
sections 102(2)(C)(i), (ii), (iv), and (v) of
NEPA).
(7) Submitted alternatives,
information, and analyses.
(8) List of preparers.
(9) Appendices (if any).
(b) If an agency uses a different
format, it shall include paragraphs (a)(1)
through (8) of this section, as further
described in §§ 1502.11 through
1502.19, in any appropriate format.
§ 1502.11
Cover.
The cover shall not exceed one page
and include:
(a) A list of the responsible agencies,
including the lead agency 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 EPA under § 1506.11
of this chapter).
(g) For the final environmental impact
statement, the estimated total cost to
prepare both the draft and final
environmental impact statement,
including the costs of agency full-time
equivalent (FTE) personnel hours,
contractor costs, and other direct costs.
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If practicable and noted where not
practicable, agencies also should
include costs incurred by cooperating
and participating agencies, applicants,
and contractors.
§ 1502.12
Summary.
Each environmental impact statement
shall contain a summary that adequately
and accurately summarizes the
statement. The summary shall stress the
major conclusions, areas of disputed
issues raised by agencies and the public,
and the issues to be resolved (including
the choice among alternatives). The
summary normally will not exceed 15
pages.
§ 1502.13
Purpose and need.
The statement shall briefly specify the
underlying purpose and need for the
proposed action. When an agency’s
statutory duty is to review an
application for authorization, the agency
shall base the purpose and need on the
goals of the applicant and the agency’s
authority.
§ 1502.14 Alternatives including the
proposed action.
The alternatives section should
present the environmental impacts of
the proposed action and the alternatives
in comparative form based on the
information and analysis presented in
the sections on the affected environment
(§ 1502.15) and the environmental
consequences (§ 1502.16). In this
section, agencies shall:
(a) Evaluate reasonable alternatives to
the proposed action, and, for
alternatives that the agency eliminated
from detailed study, briefly discuss the
reasons for their elimination.
(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) Limit their consideration to a
reasonable number of alternatives.
§ 1502.15
Affected environment.
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). The
environmental impact statement may
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combine the description with evaluation
of the environmental consequences
(§ 1502.16), and it shall be no longer
than is necessary to understand the
effects of the alternatives. Data and
analyses in a statement shall be
commensurate with the importance of
the impact, 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.
§ 1502.16
Environmental consequences.
(a) The environmental consequences
section forms the scientific and analytic
basis for the comparisons under
§ 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
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
§ 1502.14. The discussion shall include:
(1) The environmental impacts of the
proposed action and reasonable
alternatives to the proposed action and
the significance of those impacts. The
comparison of the proposed action and
reasonable alternatives shall be based on
this discussion of the impacts.
(2) Any adverse environmental effects
that cannot be avoided should the
proposal be implemented.
(3) The relationship between shortterm uses of man’s environment and the
maintenance and enhancement of longterm productivity.
(4) Any irreversible or irretrievable
commitments of resources that would be
involved in the proposal should it be
implemented.
(5) Possible conflicts between the
proposed action and the objectives of
Federal, regional, State, Tribal, and local
land use plans, policies and controls for
the area concerned. (§ 1506.2(d) of this
chapter)
(6) Energy requirements and
conservation potential of various
alternatives and mitigation measures.
(7) Natural or depletable resource
requirements and conservation potential
of various alternatives and mitigation
measures.
(8) 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.
(9) Means to mitigate adverse
environmental impacts (if not fully
covered under § 1502.14(e)).
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(10) Where applicable, economic and
technical considerations, including the
economic benefits of the proposed
action.
(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 and give
appropriate consideration to these
effects on the human environment.
§ 1502.17 Summary of submitted
alternatives, information, and analyses.
(a) The draft environmental impact
statement shall include a summary that
identifies all alternatives, information,
and analyses submitted by State, Tribal,
and local governments and other public
commenters during the scoping process
for consideration by the lead and
cooperating agencies in developing the
environmental impact statement.
(1) The agency shall append to the
draft environmental impact statement or
otherwise publish all comments (or
summaries thereof where the response
has been exceptionally voluminous)
received during the scoping process that
identified alternatives, information, and
analyses for the agency’s consideration.
(2) Consistent with § 1503.1(a)(3) of
this chapter, the lead agency shall invite
comment on the summary identifying
all submitted alternatives, information,
and analyses in the draft environmental
impact statement.
(b) The final environmental impact
statement shall include a summary that
identifies all alternatives, information,
and analyses submitted by State, Tribal,
and local governments and other public
commenters for consideration by the
lead and cooperating agencies in
developing the final environmental
impact statement.
§ 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 significant 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.
§ 1502.19
Appendix.
If an agency prepares an appendix,
the agency shall publish it with the
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environmental impact statement, and it
shall consist of:
(a) Material prepared in connection
with an environmental impact statement
(as distinct from material that is not so
prepared and is incorporated by
reference (§ 1501.12 of this chapter)).
(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 alternatives, information, and
analyses for the agency’s consideration.
(e) For final environmental impact
statements, the comment summaries
and responses consistent with § 1503.4
of this chapter.
§ 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 § 1503.4(c) of this chapter.
The agency shall transmit the entire
statement electronically (or in paper
copy, if so 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.
§ 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 but available
information relevant to reasonably
foreseeable significant adverse impacts
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.
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(c) If the information relevant to
reasonably foreseeable significant
adverse impacts 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 impacts on the
human environment;
(3) A summary of existing credible
scientific evidence that is relevant to
evaluating the reasonably foreseeable
significant adverse impacts on the
human environment; and
(4) The agency’s evaluation of such
impacts based upon theoretical
approaches or research methods
generally accepted in the scientific
community.
(d) For the purposes of this section,
‘‘reasonably foreseeable’’ includes
impacts that have catastrophic
consequences, even if their probability
of occurrence is low, provided that the
analysis of the impacts is supported by
credible scientific evidence, is not based
on pure conjecture, and is within the
rule of reason.
§ 1502.22
Cost-benefit analysis.
If the agency is considering a costbenefit 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.
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§ 1502.23 Methodology and scientific
accuracy.
§ 1503.1 Inviting comments and
requesting information and analyses.
Agencies shall ensure the professional
integrity, including scientific integrity,
of the discussions and analyses in
environmental documents. Agencies
shall make use of reliable existing data
and resources. Agencies may make use
of any reliable data sources, such as
remotely gathered information or
statistical models. They 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. Agencies are not required
to undertake new scientific and
technical research to inform their
analyses. Nothing in this section is
intended to prohibit agencies from
compliance with the requirements of
other statutes pertaining to scientific
and technical research.
(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.
(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.
(3) Invite comment specifically on the
submitted alternatives, information, and
analyses and the summary thereof
(§ 1502.17 of this chapter).
(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 § 1506.11 of this
chapter.
(c) An agency shall provide for
electronic submission of public
comments, with reasonable measures to
ensure the comment process is
accessible to affected persons.
§ 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.
■ 5. Revise part 1503 to read as follows:
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; 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; E.O. 13807, 82 FR
40463, 3 CFR, 2017, Comp., p. 369.
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§ 1503.2
Duty to comment.
Cooperating agencies and agencies
that are authorized to develop and
enforce environmental standards shall
comment on statements within their
jurisdiction, expertise, or authority
within the time period specified for
comment in § 1506.11 of this chapter. 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.
§ 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,
may address either the adequacy of the
statement or the merits of the
alternatives discussed or both, and shall
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provide as much detail as necessary to
meaningfully participate and fully
inform the agency of the commenter’s
position. Comments should explain why
the issues raised are important to the
consideration of potential
environmental impacts and alternatives
to the proposed action, as well as
economic and employment impacts, and
other impacts affecting the quality of the
human environment. Comments should
reference the corresponding section or
page number of the draft environmental
impact statement, propose specific
changes to those parts of the statement,
where possible, and include or describe
the data sources and methodologies
supporting the proposed changes.
(b) Comments on the submitted
alternatives, information, and analyses
and summary thereof (§ 1502.17 of this
chapter) should be as specific as
possible. Comments and objections of
any kind shall be raised within the
comment period on the draft
environmental impact statement
provided by the agency, consistent with
§ 1506.11 of this chapter. If the agency
requests comments on the final
environmental impact statement before
the final decision, consistent with
§ 1503.1(b), comments and objections of
any kind shall be raised within the
comment period provided by the
agency. Comments and objections of any
kind not provided within the comment
period(s) shall be considered
unexhausted and forfeited, consistent
with § 1500.3(b) of this chapter.
(c) When a participating agency
criticizes a lead agency’s predictive
methodology, the participating agency
should describe the alternative
methodology that it prefers and why.
(d) A cooperating agency shall specify
in its comments whether it needs
additional information to fulfill other
applicable environmental reviews 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
site-specific effects associated with the
granting or approving by that
cooperating agency of necessary Federal
permits, licenses, or authorizations.
(e) When a cooperating agency with
jurisdiction by law specifies mitigation
measures it considers necessary to allow
the agency to grant or approve
applicable permit, license, or related
requirements or concurrences, the
cooperating agency shall cite to its
applicable statutory authority.
§ 1503.4
Response to comments.
(a) An agency preparing a final
environmental impact statement shall
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consider substantive comments timely
submitted during the public comment
period. The agency may 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.
(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, only the
comments, the responses, and the
changes and not the final statement
need be published (§ 1502.20 of this
chapter). The agency shall file the entire
document with a new cover sheet with
the Environmental Protection Agency as
the final statement (§ 1506.10 of this
chapter).
■ 6. Revise part 1504 to read as follows:
PART 1504—PRE–DECISIONAL
REFERRALS TO THE COUNCIL OF
PROPOSED FEDERAL ACTIONS
DETERMINED TO BE
ENVIRONMENTALLY
UNSATISFACTORY
Sec.
1504.1
1504.2
1504.3
Purpose.
Criteria for referral.
Procedure for referrals and response.
Authority: 42 U.S.C. 4321–4347; 42 U.S.C.
4371–4375; 42 U.S.C. 7609; 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; E.O. 13807, 82 FR
40463, 3 CFR, 2017, Comp., p. 369.
§ 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.
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(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 (hereafter ‘‘environmental
referrals’’).
(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 reviews
must be made available to the President,
the Council, and the public.
§ 1504.2
Criteria for referral.
Environmental referrals should be
made 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 impacts,
considering:
(a) Possible violation of national
environmental standards or policies;
(b) Severity;
(c) Geographical scope;
(d) Duration;
(e) Importance as precedents;
(f) Availability of environmentally
preferable alternatives; and
(g) Economic and technical
considerations, including the economic
costs of delaying or impeding the
decision making of the agencies
involved in the action.
§ 1504.3 Procedure for referrals and
response.
(a) 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
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(4) Send copies of the referring
agency’s views to the Council.
(b) 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.
(c) 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.
(d) 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.
(e) Applicants may provide views in
writing to the Council no later than the
response.
(f) No later than 25 days after receipt
of both the referral and any response or
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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.
(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.
(g) The Council shall take no longer
than 60 days to complete the actions
specified in paragraph (f)(2), (3), or (5)
of this section.
(h) 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.
■ 7. Revise part 1505 to read as follows:
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; 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; and E.O. 13807, 82
FR 40463, 3 CFR, 2017, Comp., p. 369.
§ 1505.1
[Reserved]
§ 1505.2 Record of decision in cases
requiring environmental impact statements.
(a) At the time of its decision
(§ 1506.11 of this chapter) or, if
appropriate, its recommendation to
Congress, each agency shall prepare and
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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:
(1) State the decision.
(2) Identify alternatives considered by
the agency in reaching its decision,
specifying the alternative or alternatives
considered environmentally preferable.
An agency may discuss preferences
among alternatives based on relevant
factors including economic and
technical considerations and agency
statutory missions. An 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.
(3) State whether the agency has
adopted all practicable means to avoid
or minimize environmental harm from
the alternative selected, and if not, why
the agency did not. The agency shall
adopt and summarize, where applicable,
a monitoring and enforcement program
for any enforceable mitigation
requirements or commitments.
(b) Informed by the summary of the
submitted alternatives, information, and
analyses in the final environmental
impact statement (§ 1502.17(b) of this
chapter), together with any other
material in the record that he or she
determines to be relevant, the decision
maker shall certify in the record of
decision that the agency has considered
all of the alternatives, information,
analyses, and objections submitted by
State, Tribal, and local governments and
public commenters for consideration by
the lead and cooperating agencies in
developing the environmental impact
statement. Agency environmental
impact statements certified in
accordance with this section are entitled
to a presumption that the agency has
considered the submitted alternatives,
information, and analyses, including the
summary thereof, in the final
environmental impact statement
(§ 1502.17(b)).
§ 1505.3
Implementing the decision.
Agencies may provide for monitoring
to assure that their decisions are carried
out and should do so in important cases.
Mitigation (§ 1505.2(a)(3)) 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:
(a) Include appropriate conditions in
grants, permits, or other approvals.
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(b) Condition funding of actions on
mitigation.
(c) Upon request, inform cooperating
or participating agencies on progress in
carrying out mitigation measures that
they have proposed and were adopted
by the agency making the decision.
(d) Upon request, publish the results
of relevant monitoring.
■ 8. Revise part 1506 to read as follows:
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 Public involvement.
1506.7 Further guidance.
1506.8 Proposals for legislation.
1506.9 Proposals for regulations.
1506.10 Filing requirements.
1506.11 Timing of agency action.
1506.12 Emergencies.
1506.13 Effective date.
Authority: 42 U.S.C. 4321–4347; 42 U.S.C.
4371–4375; 42 U.S.C. 7609; 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; and E.O. 13807, 82
FR 40463, 3 CFR, 2017, Comp., p. 369.
§ 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 § 1501.6 of this
chapter, or record of decision, as
provided in § 1505.2 of this chapter, no
action concerning the proposal may be
taken that would:
(1) Have an adverse environmental
impact; or
(2) Limit the choice of reasonable
alternatives.
(b) If any 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,
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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.
(c) While work on a required
programmatic environmental review is
in progress and the action is not covered
by an existing programmatic review,
agencies shall not 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.
§ 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)(D) 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
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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.
§ 1506.3
Adoption.
(a) Generally. An agency may adopt a
Federal draft or final environmental
impact statement, environmental
assessment, or portion thereof, or
categorical exclusion determination
provided that the statement, assessment,
portion thereof, or determination meets
the standards for an adequate statement,
assessment, or determination under the
regulations in this subchapter.
(b) Environmental impact statements.
(1) If the actions covered by the original
environmental impact statement and the
proposed action are substantially the
same, the adopting agency shall
republish it as a final statement
consistent with § 1506.10. If the actions
are not substantially the same, the
adopting agency shall treat the
statement as a draft and republish it,
consistent with § 1506.10.
(2) Notwithstanding paragraph (b)(1)
of this section, a cooperating agency
may adopt in its record of decision
without republishing the environmental
impact statement of a lead agency when,
after an independent review of the
statement, the cooperating agency
concludes that its comments and
suggestions have been satisfied.
(c) Environmental assessments. If the
actions covered by the original
environmental assessment and the
proposed action are substantially the
same, the adopting agency may adopt
the environmental assessment in its
finding of no significant impact and
provide notice consistent with § 1501.6
of this chapter.
(d) Categorical exclusions. An agency
may adopt another agency’s
determination that a categorical
exclusion applies to a proposed action
if the action covered by the original
categorical exclusion determination and
the adopting agency’s proposed action
are substantially the same. The agency
shall document the adoption.
(e) Identification of certain
circumstances. The adopting agency
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shall specify if one of the following
circumstances is present:
(1) The agency is adopting an
assessment or statement that is not final
within the agency that prepared it.
(2) The action assessed in the
assessment or statement is the subject of
a referral under part 1504 of this
chapter.
(3) The assessment or statement’s
adequacy is the subject of a judicial
action that is not final.
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 any agency from requesting
any person, including the applicant, to
submit information to it or to prohibit
any person from submitting information
to any agency for use in preparing
environmental documents.
§ 1506.4
§ 1506.6
Combining documents.
Agencies should combine, to the
fullest extent practicable, any
environmental document with any other
agency document to reduce duplication
and paperwork.
§ 1506.5 Agency responsibility for
environmental documents.
(a) Responsibility. The agency is
responsible for the accuracy, scope
(§ 1501.9(e) of this chapter), and content
of environmental documents prepared
by the agency or by an applicant or
contractor under the supervision of the
agency.
(b) Information. 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 direct an applicant or
authorize a contractor to prepare an
environmental document under the
supervision of the agency.
(1) The agency should assist the
applicant by outlining the types of
information required or, for the
preparation of environmental
documents, shall provide guidance to
the applicant or contractor and
participate in their preparation.
(2) The agency shall independently
evaluate the information submitted or
the environmental document and shall
be responsible for its accuracy, scope,
and contents.
(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
an applicant or contractor, such as in
the list of preparers for environmental
impact statements (§ 1502.18 of this
chapter). It is the intent of this
paragraph (b)(3) that acceptable work
not be redone, but that it be verified by
the agency.
(4) Contractors or applicants
preparing environmental assessments or
environmental impact statements shall
submit a disclosure statement to the
lead agency that specifies any financial
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Public involvement.
Agencies shall:
(a) Make diligent efforts to involve the
public in preparing and implementing
their NEPA procedures (§ 1507.3 of this
chapter).
(b) Provide public notice of NEPArelated hearings, public meetings, and
other opportunities for public
involvement, and the availability of
environmental documents so as to
inform those persons and agencies who
may be interested or affected by their
proposed actions. When selecting
appropriate methods for providing
public notice, agencies shall consider
the ability of affected persons and
agencies to access electronic media.
(1) In all cases, the agency shall notify
those who have requested notice on an
individual action.
(2) In the case of an action with effects
of national concern, notice shall include
publication in the Federal Register. An
agency may notify organizations that
have requested regular notice.
(3) In the case of an action with effects
primarily of local concern, the notice
may include:
(i) Notice to State, Tribal, and local
agencies that may be interested or
affected by the proposed action.
(ii) Notice to interested or affected
State, Tribal, and local governments.
(iii) Following the affected State or
Tribe’s public notice procedures for
comparable actions.
(iv) Publication in local newspapers
(in papers of general circulation rather
than legal papers).
(v) Notice through other local media.
(vi) Notice to potentially interested
community organizations including
small business associations.
(vii) Publication in newsletters that
may be expected to reach potentially
interested persons.
(viii) Direct mailing to owners and
occupants of nearby or affected
property.
(ix) Posting of notice on and off site
in the area where the action is to be
located.
(x) Notice through electronic media
(e.g., a project or agency website, email,
or social media).
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(c) Hold or sponsor public hearings,
public meetings, or other opportunities
for public involvement whenever
appropriate or in accordance with
statutory requirements applicable to the
agency. Agencies may conduct public
hearings and public meetings by means
of electronic communication except
where another format is required by
law. When selecting appropriate
methods for public involvement,
agencies shall consider the ability of
affected entities to access electronic
media.
(d) Solicit appropriate information
from the public.
(e) Explain in its procedures where
interested persons can get information
or status reports on environmental
impact statements and other elements of
the NEPA process.
(f) 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).
§ 1506.7
Further guidance.
(a) The Council may provide further
guidance concerning NEPA and its
procedures consistent with Executive
Order 13807, Establishing Discipline
and Accountability in the
Environmental Review and Permitting
Process for Infrastructure Projects
(August 5, 2017), Executive Order
13891, Promoting the Rule of Law
Through Improved Agency Guidance
Documents (October 9, 2019), and any
other applicable Executive orders.
(b) To the extent that Council
guidance issued prior to September 14,
2020 is in conflict with this subchapter,
the provisions of this subchapter apply.
§ 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
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later in order 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 §§ 1503.1 of
this chapter 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.
§ 1506.9
Proposals for regulations.
Where the proposed action is the
promulgation of a rule or regulation,
procedures and documentation
pursuant to other statutory or Executive
order requirements may satisfy one or
more requirements of this subchapter.
When a procedure or document satisfies
one or more requirements of this
subchapter, the agency may substitute it
for the corresponding requirements in
this subchapter and need not carry out
duplicative procedures or
documentation. Agencies shall identify
which corresponding requirements in
this subchapter are satisfied and consult
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with the Council to confirm such
determinations.
§ 1506.10
Filing requirements.
(a) Agencies shall file environmental
impact statements together with
comments and responses with the
Environmental Protection Agency
(EPA), Office of Federal Activities,
consistent with EPA’s procedures.
(b) Agencies shall file statements with
the EPA no earlier than they are also
transmitted to participating agencies
and made available to the public. EPA
may issue guidelines to agencies to
implement its responsibilities under
this section and § 1506.11.
§ 1506.11
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 may not make or issue
a record of decision under § 1505.2 of
this chapter 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
proposed action in the following
circumstances:
(1) Some agencies have a formally
established appeal process after
publication of the final environmental
impact statement that allows other
agencies or the public to take appeals on
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 appeal 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 appeal and provide notification
consistent with § 1506.10; or
(2) An agency engaged in rulemaking
under the Administrative Procedure Act
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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 § 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 decision-making period and the 90day period 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 § 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.
(§ 1507.3(f)(2) of this chapter) 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, EPA may not
extend it for more than 30 days. When
the Environmental Protection Agency
reduces or extends any period of time it
shall notify the Council.
§ 1506.12
Emergencies.
Where emergency circumstances
make it necessary to take an action with
significant environmental impact
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. Other actions remain subject
to NEPA review.
§ 1506.13
Effective date.
The regulations in this subchapter
apply to any NEPA process begun after
September 14, 2020. An agency may
apply the regulations in this subchapter
to ongoing activities and environmental
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documents begun before September 14,
2020.
■ 9. Revise part 1507 to read as follows:
PART 1507—AGENCY COMPLIANCE
Sec.
1507.1
1507.2
1507.3
1507.4
Compliance.
Agency capability to comply.
Agency NEPA procedures.
Agency NEPA program information.
Authority: 42 U.S.C. 4321–4347; 42 U.S.C.
4371–4375; 42 U.S.C. 7609; 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; and E.O. 13807, 82
FR 40463, 3 CFR, 2017, Comp., p. 369.
§ 1507.1
Compliance.
All agencies of the Federal
Government shall comply with the
regulations in this subchapter.
§ 1507.2
§ 1507.3
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) Fulfill the requirements of section
102(2)(A) of NEPA to utilize a
systematic, interdisciplinary approach
that 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.
Agencies shall designate a senior agency
official to be responsible for overall
review of agency NEPA compliance,
including resolving implementation
issues.
(b) 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.
(c) 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.
(d) 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)(E) of
NEPA.
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(e) Comply with the requirements of
section 102(2)(H) of NEPA that the
agency initiate and utilize ecological
information in the planning and
development of resource-oriented
projects.
(f) Fulfill the requirements of sections
102(2)(F), 102(2)(G), and 102(2)(I), of
NEPA, 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, and
Executive Order 13807, Establishing
Discipline and Accountability in the
Environmental Review and Permitting
for Infrastructure Projects.
Agency NEPA procedures.
(a) Where existing agency NEPA
procedures are inconsistent with the
regulations in this subchapter, the
regulations in this subchapter shall
apply, consistent with § 1506.13 of this
chapter, unless there is a clear and
fundamental conflict with the
requirements of another statute. The
Council has determined that the
categorical exclusions contained in
agency NEPA procedures as of
September 14, 2020 are consistent with
this subchapter.
(b) No more than 12 months after
September 14, 2020, or 9 months after
the establishment of an agency,
whichever comes later, each agency
shall develop or revise, as necessary,
proposed procedures to implement the
regulations in this subchapter, including
to eliminate any inconsistencies with
the regulations in this subchapter. When
the agency is a department, it may be
efficient for major subunits (with the
consent of the department) to adopt
their own procedures. Except for agency
efficiency (see paragraph (c) of this
section) or as otherwise required by law,
agency NEPA procedures shall not
impose additional procedures or
requirements beyond those set forth in
the regulations in this subchapter.
(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 adopting their final
procedures. The Council shall complete
its review within 30 days of the receipt
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of the proposed final procedures. Once
in effect, the agency shall publish its
NEPA procedures and ensure that they
are readily available to the public.
(c) Agencies shall adopt, as necessary,
agency NEPA procedures to improve
agency efficiency and ensure that
agencies make decisions in accordance
with the Act’s procedural requirements.
Such procedures shall include:
(1) Designating the major decision
points for the agency’s principal
programs likely to have a significant
effect on the human environment and
assuring that the NEPA process begins
at the earliest reasonable time,
consistent with § 1501.2 of this chapter,
and aligns with the corresponding
decision points.
(2) Requiring that relevant
environmental documents, comments,
and responses be part of the record in
formal rulemaking or adjudicatory
proceedings.
(3) Requiring that relevant
environmental documents, comments,
and responses accompany the proposal
through existing agency review
processes so that decision makers use
the statement in making decisions.
(4) Requiring 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) Requiring the combination of
environmental documents with other
agency documents. Agencies may
designate and rely on one or more
procedures or documents under other
statutes or Executive orders as satisfying
some or all of the requirements in this
subchapter, and substitute such
procedures and documentation to
reduce duplication. When an agency
substitutes one or more procedures or
documents for the requirements in this
subchapter, the agency shall identify the
respective requirements that are
satisfied.
(d) Agency procedures should
identify those activities or decisions that
are not subject to NEPA, including:
(1) Activities or decisions expressly
exempt from NEPA under another
statute;
(2) Activities or decisions where
compliance with NEPA would clearly
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and fundamentally conflict with the
requirements of another statute;
(3) Activities or decisions where
compliance with NEPA would be
inconsistent with Congressional intent
expressed in another statute;
(4) Activities or decisions that are
non-major Federal actions;
(5) Activities or decisions that are
non-discretionary actions, in whole or
in part, for which the agency lacks
authority to consider environmental
effects as part of its decision-making
process; and
(6) Actions where the agency has
determined that another statute’s
requirements serve the function of
agency compliance with the Act.
(e) Agency procedures shall comply
with the regulations in this subchapter
except where compliance would be
inconsistent with statutory requirements
and shall include:
(1) Those procedures required by
§§ 1501.2(b)(4) (assistance to applicants)
and 1506.6(e) of this chapter (status
information).
(2) Specific criteria for and
identification of those typical classes of
action:
(i) Which normally do require
environmental impact statements.
(ii) Which normally do not require
either an environmental impact
statement or an environmental
assessment and do not have a significant
effect on the human environment
(categorical exclusions (§ 1501.4 of this
chapter)). Any procedures under this
section shall provide for extraordinary
circumstances in which a normally
excluded action may have a significant
environmental effect. Agency NEPA
procedures shall identify when
documentation of a categorical
exclusion determination is required.
(iii) Which normally require
environmental assessments but not
necessarily environmental impact
statements.
(3) Procedures for introducing a
supplement to an environmental
assessment or environmental impact
statement into its formal administrative
record, if such a record exists.
(f) Agency procedures may:
(1) 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
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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.
(2) Provide for periods of time other
than those presented in § 1506.11 of this
chapter when necessary to comply with
other specific statutory requirements,
including requirements of lead or
cooperating agencies.
(3) Provide that, where there is a
lengthy period between the agency’s
decision to prepare an environmental
impact statement and the time of actual
preparation, the agency may publish the
notice of intent required by § 1501.9(d)
of this chapter at a reasonable time in
advance of preparation of the draft
statement. Agency procedures shall
provide for publication of supplemental
notices to inform the public of a pause
in its preparation of an environmental
impact statement and for any agency
decision to withdraw its notice of intent
to prepare an environmental impact
statement.
(4) Adopt procedures to combine its
environmental assessment process with
its scoping process.
(5) Establish a process that allows the
agency to use a categorical exclusion
listed in another agency’s NEPA
procedures after consulting with that
agency to ensure the use of the
categorical exclusion is appropriate. The
process should ensure documentation of
the consultation and identify to the
public those categorical exclusions the
agency may use for its proposed actions.
Then, the agency may apply the
categorical exclusion to its proposed
actions.
§ 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 means to make
available environmental documents,
relevant notices, and other relevant
information for use by agencies,
applicants, and interested persons. Such
means of publication may include:
(1) Agency planning and
environmental documents that guide
agency management and provide for
public involvement in agency planning
processes;
(2) A directory of pending and final
environmental documents;
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(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, including use of shared
databases or application programming
interface, in their implementation of
NEPA and related authorities.
■ 10. Revise part 1508 to read as
follows:
PART 1508—DEFINITIONS
Sec.
1508.1
1508.2
Definitions.
[Reserved]
Authority: 42 U.S.C. 4321–4347; 42 U.S.C.
4371–4375; 42 U.S.C. 7609; 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; and E.O. 13807, 82
FR 40463, 3 CFR, 2017, Comp., p. 369.
§ 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 the agency has
determined, in its agency NEPA
procedures (§ 1507.3 of this chapter),
normally do not have a significant effect
on the human environment.
(e) Cooperating agency means any
Federal agency (and a State, Tribal, or
local agency with agreement of the lead
agency) other than a lead agency that
has jurisdiction by law or special
expertise with respect to any
environmental impact involved in a
proposal (or a reasonable alternative) for
legislation or other major Federal action
that may significantly affect the quality
of the human environment.
(f) Council means the Council on
Environmental Quality established by
title II of the Act.
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(g) Effects or impacts means changes
to the human environment from the
proposed action or alternatives that are
reasonably foreseeable and have a
reasonably close causal relationship to
the proposed action or alternatives,
including those effects that occur at the
same time and place as the proposed
action or alternatives and may include
effects that are later in time or farther
removed in distance from the proposed
action or alternatives.
(1) Effects include ecological (such as
the effects on natural resources and on
the components, structures, and
functioning of affected ecosystems),
aesthetic, historic, cultural, economic
(such as the effects on employment),
social, or health effects. Effects may also
include those resulting from actions that
may have both beneficial and
detrimental effects, even if on balance
the agency believes that the effect will
be beneficial.
(2) A ‘‘but for’’ causal relationship is
insufficient to make an agency
responsible for a particular effect under
NEPA. Effects should generally not be
considered if they are remote in time,
geographically remote, or the product of
a lengthy causal chain. Effects do not
include those effects that the agency has
no ability to prevent due to its limited
statutory authority or would occur
regardless of the proposed action.
(3) An agency’s analysis of effects
shall be consistent with this paragraph
(g). Cumulative impact, defined in 40
CFR 1508.7 (1978), is repealed.
(h) Environmental assessment means
a concise public document prepared by
a Federal agency to aid an agency’s
compliance with the Act and support its
determination of whether to prepare an
environmental impact statement or a
finding of no significant impact, as
provided in § 1501.6 of this chapter.
(i) Environmental document means an
environmental assessment,
environmental impact statement,
finding of no significant impact, or
notice of intent.
(j) Environmental impact statement
means a detailed written statement as
required by section 102(2)(C) of NEPA.
(k) 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.
(l) Finding of no significant impact
means a document by a Federal agency
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briefly presenting the reasons why an
action, not otherwise categorically
excluded (§ 1501.4 of this chapter), will
not have a significant effect on the
human environment and for which an
environmental impact statement
therefore will not be prepared.
(m) Human environment means
comprehensively the natural and
physical environment and the
relationship of present and future
generations of Americans with that
environment. (See also the definition of
‘‘effects’’ in paragraph (g) of this
section.)
(n) Jurisdiction by law means agency
authority to approve, veto, or finance all
or part of the proposal.
(o) Lead agency means the agency or
agencies, in the case of joint lead
agencies, preparing or having taken
primary responsibility for preparing the
environmental impact statement.
(p) 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.
(q) Major Federal action or action
means an activity or decision subject to
Federal control and responsibility
subject to the following:
(1) Major Federal action does not
include the following activities or
decisions:
(i) Extraterritorial activities or
decisions, which means agency
activities or decisions with effects
located entirely outside of the
jurisdiction of the United States;
(ii) Activities or decisions that are
non-discretionary and made in
accordance with the agency’s statutory
authority;
(iii) Activities or decisions that do not
result in final agency action under the
Administrative Procedure Act or other
statute that also includes a finality
requirement;
(iv) Judicial or administrative civil or
criminal enforcement actions;
(v) Funding assistance solely in the
form of general revenue sharing funds
with no Federal agency control over the
subsequent use of such funds;
(vi) Non-Federal projects with
minimal Federal funding or minimal
Federal involvement where the agency
does not exercise sufficient control and
responsibility over the outcome of the
project; and
(vii) Loans, loan guarantees, or other
forms of financial assistance where the
Federal agency does not exercise
sufficient control and responsibility
over the effects of such assistance (for
example, action does not include farm
ownership and operating loan
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guarantees by the Farm Service Agency
pursuant to 7 U.S.C. 1925 and 1941
through 1949 and business loan
guarantees by the Small Business
Administration pursuant to 15 U.S.C.
636(a), 636(m), and 695 through 697g).
(2) Major Federal actions may include
new and continuing activities, including
projects and programs entirely or partly
financed, assisted, conducted, regulated,
or approved by Federal agencies; new or
revised agency rules, regulations, plans,
policies, or procedures; and legislative
proposals (§ 1506.8 of this chapter).
(3) Major Federal actions tend to fall
within one of the following categories:
(i) 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 which
will result in or substantially alter
agency programs.
(ii) 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.
(iii) Adoption of programs, such as a
group of concerted actions to implement
a specific policy or plan; systematic and
connected agency decisions allocating
agency resources to implement a
specific statutory program or executive
directive.
(iv) Approval of specific projects,
such as construction or management
activities located in a defined
geographic area. Projects include actions
approved by permit or other regulatory
decision as well as Federal and federally
assisted activities.
(r) Matter includes for purposes of
part 1504 of this chapter:
(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.
(s) 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 nexus to those
effects. While NEPA requires
consideration of mitigation, it does not
mandate the form or adoption of any
mitigation. Mitigation includes:
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(1) Avoiding the impact altogether by
not taking a certain action or parts of an
action.
(2) Minimizing impacts by limiting
the degree or magnitude of the action
and its implementation.
(3) Rectifying the impact by repairing,
rehabilitating, or restoring the affected
environment.
(4) Reducing or eliminating the
impact over time by preservation and
maintenance operations during the life
of the action.
(5) Compensating for the impact by
replacing or providing substitute
resources or environments.
(t) NEPA process means all measures
necessary for compliance with the
requirements of section 2 and title I of
NEPA.
(u) Notice of intent means a public
notice that an agency will prepare and
consider an environmental impact
statement.
(v) Page means 500 words and does
not include explanatory maps,
diagrams, graphs, tables, and other
means of graphically displaying
quantitative or geospatial information.
(w) Participating agency means a
Federal, State, Tribal, or local agency
participating in an environmental
review or authorization of an action.
(x) 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
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meaningfully evaluate its effects. A
proposal may exist in fact as well as by
agency declaration that one exists.
(y) 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 § 1507.3
of this chapter.
(z) Reasonable alternatives means a
reasonable range of alternatives that are
technically and economically feasible,
meet the purpose and need for the
proposed action, and, where applicable,
meet the goals of the applicant.
(aa) Reasonably foreseeable means
sufficiently likely to occur such that a
person of ordinary prudence would take
it into account in reaching a decision.
(bb) 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.
(cc) Scope consists of the range of
actions, alternatives, and impacts to be
considered in an environmental impact
statement. The scope of an individual
statement may depend on its
relationships to other statements
(§ 1501.11 of this chapter).
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(dd) 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.
(ee) Special expertise means statutory
responsibility, agency mission, or
related program experience.
(ff) Tiering refers to the coverage of
general matters in broader
environmental impact statements or
environmental assessments (such as
national program or policy statements)
with subsequent narrower statements or
environmental analyses (such as
regional or basin-wide program
statements or ultimately site-specific
statements) incorporating by reference
the general discussions and
concentrating solely on the issues
specific to the statement subsequently
prepared.
§ 1508.2
[Reserved]
PARTS 1515 THROUGH 1518
[DESIGNATED AS SUBCHAPTER B]
11. Designate parts 1515 through 1518
as subchapter B and add a heading for
newly designated subchapter B to read
as follows:
■
Subchapter B—Administrative Procedures
and Operations
[FR Doc. 2020–15179 Filed 7–15–20; 4:15 pm]
BILLING CODE 3225–F0–P
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]]>Agencies
[Federal Register Volume 85, Number 137 (Thursday, July 16, 2020)]
[Rules and Regulations]
[Pages 43304-43376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15179]
[[Page 43303]]
Vol. 85
Thursday,
No. 137
July 16, 2020
Part II
Council on Environmental Quality
-----------------------------------------------------------------------
40 CFR Parts 1500, 1501, 1502, et al.
Update to the Regulations Implementing the Procedural Provisions of the
National Environmental Policy Act; Final Rule
Federal Register / Vol. 85, No. 137 / Thursday, July 16, 2020 / Rules
and Regulations
[[Page 43304]]
-----------------------------------------------------------------------
COUNCIL ON ENVIRONMENTAL QUALITY
40 CFR Parts 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, 1508,
1515, 1516, 1517, and 1518
[CEQ-2019-0003]
RIN 0331-AA03
Update to the Regulations Implementing the Procedural Provisions
of the National Environmental Policy Act
AGENCY: Council on Environmental Quality.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Council on Environmental Quality (CEQ) issues this final
rule to update its regulations for Federal agencies to implement the
National Environmental Policy Act (NEPA). CEQ has not comprehensively
updated its regulations since their promulgation in 1978, more than
four decades ago. This final rule comprehensively updates, modernizes,
and clarifies the regulations to facilitate more efficient, effective,
and timely NEPA reviews by Federal agencies in connection with
proposals for agency action. The rule will improve interagency
coordination in the environmental review process, promote earlier
public involvement, increase transparency, and enhance the
participation of States, Tribes, and localities. The amendments will
advance the original goals of the CEQ regulations to reduce paperwork
and delays, and promote better decisions consistent with the national
environmental policy set forth in section 101 of NEPA.
DATES: This is a major rule subject to congressional review. The
effective date is September 14, 2020. However, if congressional review
has changed the effective date, CEQ will publish a document in the
Federal Register to establish the actual effective date or to terminate
the rule.
ADDRESSES: CEQ has established a docket for this action under docket
number CEQ-2019-0003. All documents in the docket are listed on
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Viktoria Z. Seale, Chief of Staff and
General Counsel, 202-395-5750, [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. National Environmental Policy Act
B. Council on Environmental Quality Regulations, Guidance, and
Reports
1. Regulatory History
2. CEQ Guidance and Reports
3. Environmental Impact Statement Timelines and Page Count
Reports
C. Judicial Review of Agency NEPA Compliance
D. Statutory Developments
E. Presidential Directives
F. Advance Notice of Proposed Rulemaking
G. Notice of Proposed Rulemaking
II. Summary of Final Rule
A. Changes Throughout Parts 1500-1508
B. Revisions To Update the Purpose, Policy, and Mandate (Part
1500)
1. Purpose and Policy (Sec. 1500.1)
2. Remove and Reserve Policy (Sec. 1500.2)
3. NEPA Compliance (Sec. 1500.3)
4. Reducing Paperwork and Delay (Sec. Sec. 1500.4 and 1500.5)
5. Agency Authority (Sec. 1500.6)
C. Revisions to NEPA and Agency Planning (Part 1501)
1. NEPA Thresholds (Sec. 1501.1)
2. Apply NEPA Early in the Process (Sec. 1501.2)
3. Determine the Appropriate Level of NEPA Review (Sec. 1501.3)
4. Categorical Exclusions (Sec. 1501.4)
5. Environmental Assessments (Sec. 1501.5)
6. Findings of No Significant Impact (Sec. 1501.6)
7. Lead and Cooperating Agencies (Sec. Sec. 1501.7 and 1501.8)
8. Scoping (Sec. 1501.9)
9. Time Limits (Sec. 1501.10)
10. Tiering (Sec. 1501.11)
11. Incorporation by Reference (Sec. 1501.12)
D. Revisions to Environmental Impact Statements (Part 1502)
1. Purpose of Environmental Impact Statement (Sec. 1502.1)
2. Implementation (Sec. 1502.2)
3. Statutory Requirements for Statements (Sec. 1502.3)
4. Major Federal Actions Requiring the Preparation of
Environmental Impact Statements (Sec. 1502.4)
5. Timing (Sec. 1502.5)
6. Interdisciplinary Preparation (Sec. 1502.6)
7. Page Limits (Sec. 1502.7)
8. Writing (Sec. 1502.8)
9. Draft, Final and Supplemental Statements (Sec. 1502.9)
10. Recommended Format (Sec. 1502.10)
11. Cover (Sec. 1502.11)
12. Summary (Sec. 1502.12)
13. Purpose and Need (Sec. 1502.13)
14. Alternatives Including the Proposed Action (Sec. 1502.14)
15. Affected Environment (Sec. 1502.15)
16. Environmental Consequences (Sec. 1502.16)
17. Submitted Alternatives, Information, and Analyses (Sec.
1502.17)
18. List of Preparers (Sec. 1502.18)
19. Appendix (Sec. 1502.19)
20. Publication of the Environmental Impact Statement (Sec.
1502.20)
21. Incomplete or Unavailable Information (Sec. 1502.21)
22. Cost-Benefit Analysis (Sec. 1502.22)
23. Methodology and Scientific Accuracy (Sec. 1502.23)
24. Environmental Review and Consultation Requirements (Sec.
1502.24)
E. Revisions to Commenting on Environmental Impact Statements
(Part 1503)
1. Inviting Comments and Requesting Information and Analyses
(Sec. 1503.1)
2. Duty To Comment (Sec. 1503.2)
3. Specificity of Comments and Information (Sec. 1503.3)
4. Response to Comments (Sec. 1503.4)
F. Revisions to Pre-Decisional Referrals to the Council of
Proposed Federal Actions Determined To Be Environmentally
Unsatisfactory (Part 1504)
1. Purpose (Sec. 1504.1)
2. Criterial for Referral (Sec. 1504.2)
3. Procedure for Referrals and Response (Sec. 1504.3)
G. Revisions to NEPA and Agency Decision Making (Part 1505)
1. Remove and Reserve Agency Decisionmaking Procedures (Sec.
1505.1)
2. Record of Decision in Cases Requiring Environmental Impact
Statements (Sec. 1505.2)
3. Implementing the Decision (Sec. 1505.3)
H. Revisions to Other Requirements of NEPA (Part 1506)
1. Limitations on Actions During NEPA Process (Sec. 1506.1)
2. Elimination of Duplication With State, Tribal, and Local
Procedures (Sec. 1506.2)
3. Adoption (Sec. 1506.3)
4. Combining Documents (Sec. 1506.4)
5. Agency Responsibility for Environmental Documents (Sec.
1506.5)
6. Public Involvement (Sec. 1506.6)
7. Further Guidance (Sec. 1506.7)
8. Proposals for Legislation (Sec. 1506.8)
9. Proposals for Regulations (Sec. 1506.9)
10. Filing Requirements (Sec. 1506.10)
11. Timing of Agency Action (Sec. 1506.11)
12. Emergencies (Sec. 1506.12)
13. Effective Date (Sec. 1506.13)
I. Revisions to Agency Compliance (Part 1507)
1. Compliance (Sec. 1507.1)
2. Agency Capability To Comply (Sec. 1507.2)
3. Agency NEPA Procedures (Sec. 1507.3)
4. Agency NEPA Program Information (Sec. 1507.4)
J. Revisions to Definitions (Part 1508)
1. Clarifying the Meaning of ``Act''
2. Definition of ``Affecting''
3. New Definition of ``Authorization''
4. Clarifying the Meaning of ``Categorical Exclusion''
5. Clarifying the Meaning of ``Cooperating Agency''
6. Definition of ``Council''
7. Definition of ``Cumulative Impact'' and Clarifying the
Meaning of ``Effects''
8. Clarifying the Meaning of ``Environmental Assessment''
9. Clarifying the Meaning of ``Environmental Document''
10. Clarifying the Meaning of ``Environmental Impact Statement''
11. Clarifying the Meaning of ``Federal Agency''
12. Clarifying the Meaning of ``Finding of No Significant
Impact''
13. Clarifying the Meaning of ``Human Environment''
14. Definition of ``Jurisdiction by Law''
15. Clarifying the Meaning of ``Lead Agency''
[[Page 43305]]
16. Clarifying the Meaning of ``Legislation''
17. Clarifying the Meaning of ``Major Federal Action''
18. Definition of ``Matter''
19. Clarifying the Meaning of ``Mitigation''
20. Definition of ``NEPA Process''
21. Clarifying the Meaning of ``Notice of Intent''
22. New Definition of ``Page''
23. New Definition of ``Participating Agency''
24. Clarifying the Meaning of ``Proposal''
25. New Definition of ``Publish and Publication''
26. New Definition of ``Reasonable Alternatives''
27. New Definition of ``Reasonably Foreseeable''
28. Definition of ``Referring Agency''
29. Definition of ``Scope''
30. New Definition of ``Senior Agency Official''
31. Definition of ``Special Expertise''
32. Striking the Definition of ``Significantly''
33. Clarifying the Meaning of ``Tiering''
K. CEQ Guidance Documents
III. Rulemaking Analyses and Notices
A. Executive Order 12866, Regulatory Planning and Review and
Executive Order 13563, Improving Regulation and Regulatory Review
B. Executive Order 13771, Reducing Regulation and Controlling
Regulatory Costs
C. Regulatory Flexibility Act and Executive Order 13272, Proper
Consideration of Small Entities in Agency Rulemaking
D. Congressional Review Act
E. National Environmental Policy Act
F. Endangered Species Act
G. Executive Order 13132, Federalism
H. Executive Order 13175, Consultation and Coordination With
Indian Tribal Governments
I. Executive Order 12898, Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
J. Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
K. Executive Order 12988, Civil Justice Reform
L. Unfunded Mandates Reform Act
M. Paperwork Reduction Act
I. Background
President Nixon signed the National Environmental Policy Act of
1969, 42 U.S.C. 4321 et seq., (NEPA or the Act) into law on January 1,
1970. The Council on Environmental Quality (CEQ) initially issued
interim guidelines for implementing NEPA in 1970, revised those
guidelines in 1971 and 1973, and subsequently promulgated its
regulations implementing NEPA in 1978. The original goals of those
regulations were to reduce paperwork and delays, and promote better
decisions consistent with the national environmental policy established
by the Act.
Since the promulgation of the 1978 regulations, however, the NEPA
process has become increasingly complicated and can involve excessive
paperwork and lengthy delays. The regulations have been challenging to
navigate with related provisions scattered throughout, and include
definitions and provisions that have led to confusion and generated
extensive litigation. The complexity of the regulations has given rise
to CEQ's issuance of more than 30 guidance documents to assist Federal
agencies in understanding and complying with NEPA. Agencies also have
developed procedures and practices to improve their implementation of
NEPA. Additionally, Presidents have issued directives, and Congress has
enacted legislation to reduce delays and expedite the implementation of
NEPA and the CEQ regulations, including for transportation, water, and
other types of infrastructure projects.
Despite these efforts, the NEPA process continues to slow or
prevent the development of important infrastructure and other projects
that require Federal permits or approvals, as well as rulemakings and
other proposed actions. Agency practice has also continued to evolve
over the past four decades, but many of the most efficient and
effective practices have not been incorporated into the CEQ
regulations. Further, a wide range of judicial decisions, including
those issued by the Supreme Court, evaluating Federal agencies'
compliance with NEPA have construed and interpreted key provisions of
the statute and CEQ's regulations. CEQ's guidance, agency practice,
more recent presidential directives and statutory developments, and the
body of case law related to NEPA implementation have not been
harmonized or codified in CEQ's regulations.
As discussed further below, NEPA implementation and related
litigation can be lengthy and significantly delay major infrastructure
and other projects.\1\ For example, CEQ has found that NEPA reviews for
Federal Highway Administration projects, on average take more than
seven years to proceed from a notice of intent (NOI) to prepare an
environmental impact statement (EIS) to issuance of a record of
decision (ROD). This is a dramatic departure from CEQ's prediction in
1981 that Federal agencies would be able to complete most EISs, the
most intensive review of a project's environmental impacts under NEPA,
in 12 months or less.\2\ In its most recent review, CEQ found that,
across the Federal Government, the average time for completion of an
EIS and issuance of a ROD was 4.5 years and the median was 3.5
years.\3\ CEQ determined that one quarter of EISs took less than 2.2
years, and one quarter of the EISs took more than 6 years. And these
timelines do not necessarily include further delays associated with
litigation over the legal sufficiency of the NEPA process or its
resulting documentation.
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\1\ See infra sec. I.B.3 and I.C.
\2\ 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. ``The Council has advised agencies that under the new NEPA
regulations even large complex energy projects would require only
about 12 months for the completion of the entire EIS process. For
most major actions, this period is well within the planning time
that is needed in any event, apart from NEPA.'' Id. at Question 35.
\3\ See infra sec. I.B.3.
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Although other factors may contribute to project delays, the
frequency and consistency of multi-year review processes for EISs for
projects across the Federal Government leaves no doubt that NEPA
implementation and related litigation is a significant factor.\4\ It is
critical to improve NEPA implementation, not just for major projects,
but because tens of thousands of projects and activities are subject to
NEPA every year, many of which are important to modernizing our
Nation's infrastructure.\5\
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\4\ See also, Philip K. Howard, Common Good, Two Years, Not Ten:
Redesigning Infrastructure Approvals (Sept. 2015) (``Two Years, Not
Ten''), https://www.commongood.org/wp-content/uploads/2017/07/2YearsNot10Years.pdf.
\5\ As discussed in sections II.D and II.C.5, CEQ estimates that
Federal agencies complete 176 EISs and 10,000 environmental
assessments each year. In addition, CEQ estimates that agencies
apply categorical exclusions to 100,000 actions annually. See infra
sec. II.C.4.
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As noted above, an extensive body of case law interpreting NEPA and
CEQ's implementing regulations drives much of agencies' modern day
practice. Though courts have correctly recognized that NEPA requires
agencies to follow certain procedures and not to reach particular
substantive results, the accretion of cases has not necessarily
clarified implementation of the law. In light of the litigation risk
such a situation presents, agencies have responded by generating
voluminous studies analyzing impacts and alternatives well beyond the
point where useful information is being produced and utilized by
decision makers. In its most recent review, CEQ found that final EISs
averaged 661 pages in length, and the median document was 447 pages.\6\
One quarter were 748 pages or longer. The page count and document
length data do not include
[[Page 43306]]
appendices. The average modern EIS is more than 4 times as long as the
150 pages contemplated by the 1978 regulations.
---------------------------------------------------------------------------
\6\ See infra sec. I.B.3.
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By adopting these regulations following so many decades of NEPA
practice, implementation, and litigation, CEQ is acting now to enhance
the efficiency of the process based on its decades of experience
overseeing Federal agency practice, and clarifying a number of key NEPA
terms and requirements that have frequently been subject to litigation.
The modifications and refinements reflected in the final rule will
contribute to greater certainty and predictability in NEPA
implementation, and thus eliminate at least in some measure the
unnecessary and burdensome delays that have hampered national
infrastructure and other important projects.
In June 2018, CEQ issued an advance notice of proposed rulemaking
(ANPRM) requesting comment on potential updates and clarifications to
the CEQ regulations.\7\ On January 10, 2020, CEQ published a notice of
proposed rulemaking \8\ (NPRM or proposed rule) in the Federal Register
proposing to update its regulations for implementing the procedural
provisions of NEPA.
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\7\ 83 FR 28591 (June 20, 2018).
\8\ 85 FR 1684 (Jan. 10, 2020).
---------------------------------------------------------------------------
Following the publication of the NPRM, CEQ received approximately
1,145,571 comments on the proposed rule.\9\ A majority of the comments
(approximately 1,136,755) were the result of mass mail campaigns, which
are comments with multiple signatories or groups of comments that are
identical or very similar in form and content. CEQ received
approximately 8,587 unique public comments of which 2,359 were
substantive comments raising a variety of issues related to the
rulemaking and contents of the proposed rule, including procedural,
legal, and technical issues. Finally, 229 comments were duplicate or
non-germane submissions, or contained only supporting materials.
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\9\ In the NPRM, CEQ listed several methods for members of the
public to submit written comments, including submittal to the docket
on regulations.gov, by fax, or by mail. In addition, CEQ also
included an email address ([email protected]) in the NPRM for
further information. While the NPRM did not list this email address
among the several methods for the public to provide comments, CEQ
has considered comments received through this email address during
the public comment period and included them in the docket on
regulations.gov.
---------------------------------------------------------------------------
The background section below summarizes NEPA, the CEQ regulations,
and developments since CEQ issued those regulations. Specifically,
section I.A provides a brief summary of the NEPA statute. Section I.B
describes the history of CEQ's regulations implementing NEPA and
provides an overview of CEQ's numerous guidance documents and reports
issued subsequent to the regulations. Section I.C discusses the role of
the courts in interpreting NEPA. Section I.D provides a brief overview
of Congress's efforts, and section I.E describes the initiatives of
multiple administrations to reduce delays and improve implementation of
NEPA. Finally, sections I.F and I.G provides the background on this
rulemaking, including the ANPRM and the NPRM.
In section II, CEQ provides a summary of the final rule, including
changes CEQ made from the proposed rule, which comprehensively updates
and substantially revises CEQ's prior regulations. This final rule
modernizes and clarifies the CEQ regulations to facilitate more
efficient, effective, and timely NEPA reviews by Federal agencies by
simplifying regulatory requirements, codifying certain guidance and
case law relevant to these regulations, revising the regulations to
reflect current technologies and agency practices, eliminating obsolete
provisions, and improving the format and readability of the
regulations. CEQ's revisions include provisions intended to promote
timely submission of relevant information to ensure consideration of
such information by agencies. CEQ's revisions will provide greater
clarity for Federal agencies, States, Tribes, localities, and the
public, and advance the original goals of the CEQ regulations to reduce
paperwork and delays and promote better decisions consistent with the
national environmental policy set forth in section 101 of NEPA.
CEQ provides a summary of the comments received on the proposed
rule and responses in the document titled ``Update to the Regulations
Implementing the Procedural Provisions of the National Environmental
Policy Act Final Rule Response to Comments'' \10\ (``Final Rule
Response to Comments''). This document organizes the comments by the
parts and sections of the proposed rule that the comment addresses, and
includes a subsection on other general or crosscutting topics.
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\10\ The Update to the Regulations Implementing the Procedural
Provisions of the National Environmental Policy Act Final Rule
Response to Comments document is available under ``Supporting
Documents'' in the docket on regulations.gov under docket ID CEQ-
2019-0003.
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Ultimately, the purpose of the NEPA process is to ensure informed
decision making by Federal agencies with regard to the potential
environmental effects of proposed major Federal actions and to make the
public aware of the agency's decision-making process. When effective
and well managed, the NEPA process results in more informative
documentation, enhanced coordination, resolution of conflicts, and
improved environmental outcomes. With this final rule, CEQ codifies
effective agency practice and provides clarity on the requirements of
the NEPA process.
A. National Environmental Policy Act
Congress enacted NEPA to establish a national policy for the
environment, provide for the establishment of CEQ, and for other
purposes. Section 101 of NEPA sets forth a national policy ``to use all
practicable means and measures, including financial and technical
assistance, in a manner calculated to foster and promote the general
welfare, to create and maintain conditions under which man and nature
can exist in productive harmony, and [to] fulfill the social, economic,
and other requirements of present and future generations of
Americans.'' 42 U.S.C. 4331(a). Section 102 of NEPA establishes
procedural requirements, applying that national policy to proposals for
major Federal actions significantly affecting the quality of the human
environment by requiring Federal agencies to prepare a detailed
statement on: (1) The environmental impact of the proposed action; (2)
any adverse environmental effects that cannot be avoided; (3)
alternatives to the proposed action; (4) the relationship between local
short-term uses of man's environment and the maintenance and
enhancement of long-term productivity; and (5) any irreversible and
irretrievable commitments of resources that would be involved in the
proposed action. 42 U.S.C. 4332(2)(C). NEPA also established CEQ as an
agency within the Executive Office of the President to administer
Federal agency implementation of NEPA. 42 U.S.C. 4332(2)(B), (C), (I),
4342, 4344; see also Dep't of Transp. v. Pub. Citizen, 541 U.S. 752,
757 (2004); Warm Springs Dam Task Force v. Gribble, 417 U.S. 1301,
1309-10 (Douglas, J. Circuit Justice 1974).
NEPA does not mandate particular results or substantive outcomes.
Rather, NEPA requires Federal agencies to consider environmental
impacts of proposed actions as part of agencies' decision-making
processes. Additionally, NEPA does not include a private right of
action and specifies no remedies. Challenges to agency action alleging
noncompliance with NEPA procedures are brought under the Administrative
Procedure Act (APA). 5
[[Page 43307]]
U.S.C. 551 et seq. Accordingly, NEPA cases proceed as APA cases.
Limitations on APA cases and remedies thus apply to the adjudication of
NEPA disputes.
B. Council on Environmental Quality Regulations, Guidance, and Reports
1. Regulatory History
In 1970, President Nixon issued Executive Order (E.O.) 11514,
titled ``Protection and Enhancement of Environmental Quality,'' which
directed CEQ to ``[i]ssue guidelines to Federal agencies for the
preparation of detailed statements on proposals for legislation and
other Federal actions affecting the environment, as required by section
102(2)(C) of the Act.'' \11\ CEQ issued interim guidelines in April of
1970 and revised them in 1971 and 1973.\12\
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\11\ 35 FR 4247 (Mar. 7, 1970), sec. 3(h).
\12\ See 35 FR 7390 (May 12, 1970) (interim guidelines); 36 FR
7724 (Apr. 23, 1971) (final guidelines); 38 FR 10856 (May 2, 1973)
(proposed revisions to guidelines); 38 FR 20550 (Aug. 1, 1973)
(revised guidelines).
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In 1977, President Carter issued E.O. 11991, titled ``Relating to
Protection and Enhancement of Environmental Quality.'' \13\ E.O. 11991
amended section 3(h) of E.O. 11514, directing CEQ to ``[i]ssue
regulations to Federal agencies for the implementation of the
procedural provisions of [NEPA] . . . to make the environmental impact
statement process more useful to decision[ ]makers and the public; and
to reduce paperwork and the accumulation of extraneous background data,
in order to emphasize the need to focus on real environmental issues
and alternatives,'' and to ``require [environmental] impact statements
to be concise, clear, and to the point, and supported by evidence that
agencies have made the necessary environmental analyses.'' E.O. 11991
also amended section 2 of E.O. 11514, requiring agency compliance with
the regulations issued by CEQ. The Executive order was based on the
President's constitutional and statutory authority, including NEPA, the
Environmental Quality Improvement Act, 42 U.S.C. 4371 et seq., and
section 309 of the Clean Air Act, 42 U.S.C. 7609. The President has a
constitutional duty to ensure that the ``Laws be faithfully executed,''
U.S. Const. art. II, sec. 3, which may be delegated to appropriate
officials. 3 U.S.C. 301. In signing E.O. 11991, the President delegated
this authority to CEQ.\14\
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\13\ 42 FR 26967 (May 25, 1977).
\14\ The Presidential directive was consistent with the
recommendation of the Commission on Federal Paperwork that the
President require the development of consistent regulations and
definitions and ensure coordination among agencies in the
implementation of Environmental Impact Statement preparation. See
The Report of the Commission on Federal Paperwork, Environmental
Impact Statements 16 (Feb. 25, 1977).
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In 1978, CEQ promulgated its ``National Environmental Policy Act,
Regulations, Implementation of Procedural Provisions,'' 40 CFR parts
1500-1508 (``CEQ regulations'' or ``NEPA regulations''), ``[t]o reduce
paperwork, to reduce delays, and at the same time to produce better
decisions [that] further the national policy to protect and enhance the
quality of the human environment.'' \15\ The Supreme Court has
explained that E.O. 11991 requires all ``heads of [F]ederal agencies to
comply'' with the ``single set of uniform, mandatory regulations'' that
CEQ issued to implement NEPA's provisions. Andrus v. Sierra Club, 442
U.S. 347, 357 (1979).
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\15\ 43 FR 55978 (Nov. 29, 1978); see also 44 FR 873 (Jan. 3,
1979) (technical corrections), and 43 FR 25230 (June 9, 1978)
(proposed rule).
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The Supreme Court has afforded the CEQ regulations ``substantial
deference.'' Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
355 (1989) (citing Andrus, 442 U.S. at 358); Pub. Citizen, 541 U.S. at
757 (``The [CEQ], established by NEPA with authority to issue
regulations interpreting it, has promulgated regulations to guide
[F]ederal agencies in determining what actions are subject to that
statutory requirement.'' (citing 40 CFR 1500.3)). The new regulations
are intended to embody CEQ's interpretation of NEPA for Chevron
purposes and to operate as legislative rules.\16\ See Chevron U.S.A.,
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); see
also Nat'l Cable & Telecomm. Ass'n v. Brand X internet Servs., 545 U.S.
967, 980-86 (2005) (applying Chevron deference to Federal
Communications Commission regulations); United States v. Mead Corp.,
533 U.S. 218, 227-30 (2001) (properly promulgated agency regulations
addressing ambiguities or gaps in a statute qualify for Chevron
deference when agencies possess the authority to issue regulations
interpreting the statute). The Supreme Court has held that NEPA is a
procedural statute that serves the twin aims of ensuring that agencies
consider the significant environmental consequences of their proposed
actions and inform the public about their decision making. Balt. Gas &
Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983)
(citing Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc.,
435 U.S. 519, 553 (1978); Weinberger v. Catholic Action of Haw./Peace
Educ. Project, 454 U.S. 139, 143 (1981)).
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\16\ Even without expressly invoking Chevron here and noting
that CEQ intends these regulations to operate as legislative rules,
Chevron would still apply. See Guedes v. ATF, 920 F.3d 1, 23 (D.C.
Cir. 2019) (``And for this Rule in particular, another telltale sign
of the agency's belief that it was promulgating a rule entitled to
Chevron deference is the Rule's invocation of Chevron by name. To be
sure, an agency of course need not expressly invoke the Chevron
framework to obtain Chevron deference: `Chevron is a standard of
judicial review, not of agency action.' SoundExchange[, Inc. v.
Copyright Royalty Bd.,] 904 F.3d [41,] 54 [(D.C. Cir. 2018)]. Still,
the Bureau's invocation of Chevron here is powerful evidence of its
intent to engage in an exercise of interpretive authority warranting
Chevron treatment.'') (emphasis in original).
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Furthermore, in describing the role of NEPA in agencies' decision-
making processes, the Supreme Court has stated, ``Congress in enacting
NEPA, however, did not require agencies to elevate environmental
concerns over other appropriate considerations.'' \17\ Balt. Gas &
Elec. Co., 462 U.S. at 97 (citing Strycker's Bay Neighborhood Council
v. Karlen, 444 U.S. 223, 227 (1980) (per curiam)). Instead, NEPA
requires agencies to analyze the environmental consequences before
taking a major Federal action. Id. (citing Kleppe v. Sierra Club, 427
U.S. 390, 410 n.21 (1976)). The Supreme Court has recognized that
agencies have limited time and resources and that ``[t]he scope of the
agency's inquiries must remain manageable if NEPA's goal of `[insuring]
a fully informed and well-considered decision,' . . . is to be
accomplished.'' Metro. Edison Co. v. People Against Nuclear Energy, 460
U.S. 766, 776 (1983) (quoting Vt. Yankee, 435 U.S. at 558).
---------------------------------------------------------------------------
\17\ Section 101 of NEPA provides that it is the Federal
Government's policy ``to use all practicable means and measures . .
. to create and maintain conditions under which man and nature can
exist in productive harmony, and [to] fulfill the social, economic,
and other requirements of present and future generations of
Americans.'' 42 U.S.C. 4331(a) (emphasis added).
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CEQ has substantively amended its NEPA regulations only once, at 40
CFR 1502.22, to replace the ``worst case'' analysis requirement with a
provision for the consideration of incomplete or unavailable
information regarding reasonably foreseeable significant adverse
effects.\18\ CEQ found that the amended 40 CFR 1502.22 would ``generate
information and discussion on those consequences of greatest concern to
the public and of greatest relevance to the agency's decision,'' \19\
rather than distorting the decision-making process by overemphasizing
highly speculative harms.\20\ The Supreme Court found this reasoning to
[[Page 43308]]
be a well-considered basis for the change, and that the new regulation
was entitled to substantial deference. Methow Valley, 490 U.S. at 356.
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\18\ 51 FR 15618 (Apr. 25, 1986).
\19\ 50 FR 32234, 32237 (Aug. 9, 1985).
\20\ 51 FR 15618, 15620 (Apr. 25, 1986).
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The NEPA regulations direct Federal agencies to adopt their own
implementing procedures, as necessary, in consultation with CEQ. 40 CFR
1507.3. Under this regulation, over 85 Federal agencies and their
subunits have developed such procedures.\21\
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\21\ A list of agency NEPA procedures is available at https://ceq.doe.gov/laws-regulations/agency_implementing_procedures.html.
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2. CEQ Guidance and Reports
Over the past four decades, numerous questions have been raised
regarding appropriate implementation of NEPA and the CEQ regulations.
Soon after the issuance of the CEQ regulations and in response to CEQ's
review of NEPA implementation and input from Federal, State, and local
officials, including NEPA practitioners, CEQ issued the ``Forty Most
Asked Questions Concerning CEQ's National Environmental Policy Act
Regulations'' \22\ in 1981 (``Forty Questions''). This guidance covered
a wide range of topics including alternatives, coordination among
applicants, lead and cooperating agencies, and integration of NEPA
documents with analysis for other environmental statutes. In addition,
CEQ has periodically examined the effectiveness of the NEPA process and
issued a number of reports on NEPA implementation. In some instances,
these reports led to additional guidance. These documents have been
intended to provide guidance and clarifications with respect to various
aspects of the implementation of NEPA and the definitions in the CEQ
regulations, and to increase the efficiency and effectiveness of the
environmental review process.\23\
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\22\ Forty Questions, supra note 2.
\23\ See https://www.energy.gov/nepa/ceq-guidance-documents.
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In January 1997, CEQ issued ``The National Environmental Policy
Act: A Study of Its Effectiveness After Twenty-five Years.'' \24\ In
that report, CEQ acknowledged that NEPA has ensured that agencies
adequately analyze the potential environmental consequences of their
actions and bring the public into the decision-making processes of
Federal agencies. However, CEQ also identified matters of concern to
participants in the study, including concerns with overly lengthy
documents that may not enhance or improve decision making,\25\ and
concerns that agencies may seek to `` `litigation-proof' documents,
increasing costs and time but not necessarily quality.'' \26\ The
report further stated that ``[o]ther matters of concern to participants
in the Study were the length of NEPA processes, the extensive detail of
NEPA analyses, and the sometimes confusing overlay of other laws and
regulations.'' \27\ The participants in the study identified five
elements of the NEPA process' collaborative framework (strategic
planning, public information and input, interagency coordination,
interdisciplinary place-based decision making, and science-based
flexible management) as critical to effective and efficient NEPA
implementation.
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\24\ https://ceq.doe.gov/docs/ceq-publications/nepa25fn.pdf.
\25\ Id. at iii.
\26\ Id.
\27\ Id. In the 50 years since the passage of NEPA, Congress has
amended or enacted a number of other environmental laws that may
also apply to proposed Federal agency actions, such as the
Endangered Species Act, the Clean Water Act, the Clean Air Act, and
other substantive statutes. See discussion infra sec. I.D.
Consistent with 40 CFR 1502.25, longstanding agency practice has
been to use the NEPA process as the umbrella procedural statute,
integrating compliance with these laws into the NEPA review and
discussing them in the NEPA document. However, this practice
sometimes leads to confusion as to whether an agency does an
analysis to comply with NEPA or another, potentially substantive,
environmental law.
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In 2002, the Chairman of CEQ established a NEPA task force,
composed of Federal agency officials, to examine NEPA implementation by
focusing on (1) technology and information management and security; (2)
Federal and intergovernmental collaboration; (3) programmatic analyses
and tiering; (4) adaptive management and monitoring; (5) categorical
exclusions (CEs); and (6) environmental assessments (EAs). In 2003, the
task force issued a report \28\ recommending actions to improve and
modernize the NEPA process, leading to additional guidance documents
and handbooks.
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\28\ See The NEPA Task Force Report to the Council on
Environmental Quality, Modernizing NEPA Implementation (Sept. 2003)
(``NEPA Task Force Report''), https://ceq.doe.gov/docs/ceq-publications/report/finalreport.pdf.
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Over the past 4 decades, CEQ has issued over 30 documents on a wide
variety of topics to provide guidance and clarifications to assist
Federal agencies in more efficiently and effectively implementing the
NEPA regulations.\29\ While CEQ has sought to provide clarity and
direction related to implementation of the regulations and the Act
through the issuance of guidance, agencies continue to face
implementation challenges. Further, the documentation and timelines for
completing environmental reviews can be very lengthy, and the process
can be complex and costly.
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\29\ See, e.g., Emergencies and the National Environmental
Policy Act (Oct. 2016) (``Emergencies Guidance''), https://ceq.doe.gov/docs/nepa-practice/Emergencies_and_NEPA.pdf; Effective
Use of Programmatic NEPA Reviews (Dec. 18, 2014) (``Programmatic
Guidance''), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Effective_Use_of_Programmatic_NEPA_Reviews_Final_Dec2014_searchable.pdf; NEPA and NHPA: A Handbook for Integrating NEPA and Section 106
(Mar. 2013), https://ceq.doe.gov/publications/nepa-handbooks.html;
Memorandum on Environmental Conflict Resolution (Nov. 28, 2005), as
expanded by Memorandum on Environmental Collaboration and Conflict
Resolution (Sept. 7, 2012), https://ceq.doe.gov/nepa-practice/environmental-collaboration-and-conflict-resolution.html; Final
Guidance on Improving the Process for Preparing Efficient and Timely
Environmental Reviews Under the National Environmental Policy Act,
77 FR 14473 (Mar. 12, 2012) (``Timely Environmental Reviews
Guidance''), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Improving_NEPA_Efficiencies_06Mar2012.pdf; Final Guidance for
Federal Departments and Agencies on the Appropriate Use of
Mitigation and Monitoring and Clarifying the Appropriate Use of
Mitigated Findings of No Significant Impact, 76 FR 3843 (Jan. 21,
2011) (``Mitigation Guidance''), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf; Council on
Environmental Quality, Final Guidance for Federal Departments and
Agencies on Establishing, Applying, and Revising Categorical
Exclusions under the National Environmental Policy Act, 75 FR 75628
(Dec. 6, 2010) (``CE Guidance''), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf; Letter from
the Hon. James L. Connaughton, Chairman, Council on Environmental
Quality, to the Hon. Norman Y. Mineta, Secretary, Department of
Transportation (May 12, 2003) (``Connaughton Letter''), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/CEQ-DOT_PurposeNeed_May-2013.pdf; Considering Cumulative Effects Under
the National Environmental Policy Act (Jan. 1997) (``Cumulative
Effects Guidance''), https://ceq.doe.gov/publications/cumulative_effects.html; Environmental Justice: Guidance under the
National Environmental Policy Act (Dec. 10, 1997) (``EJ Guidance''),
https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ej/justice.pdf; Forty Questions, supra note 2. CEQ also issued a
resource for the public, A Citizen's Guide to the NEPA: Having Your
Voice Heard (Dec. 2007), https://ceq.doe.gov/get-involved/citizens_guide_to_nepa.html.
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In 2018, CEQ and the Office of Management and Budget (OMB) issued a
memorandum titled ``One Federal Decision Framework for the
Environmental Review and Authorization Process for Major Infrastructure
Projects under E.O. 13807'' (``OFD Framework Guidance'').\30\ CEQ and
OMB issued this guidance pursuant to E.O. 13807, titled ``Establishing
Discipline and Accountability in the Environmental Review and
Permitting Process for Infrastructure Projects,'' \31\ to improve
agency coordination for infrastructure
[[Page 43309]]
projects requiring an EIS and permits or other authorizations from
multiple agencies and to improve the timeliness of the environmental
review process. See E.O. 13807, infra sec. I.E. Consistent with the OFD
Framework Guidance, supra note 30, Federal agencies signed a memorandum
of understanding committing to implement the One Federal Decision (OFD)
policy for major infrastructure projects, including by committing to
establishing a joint schedule for such projects, preparation of a
single EIS and joint ROD, elevation of delays and dispute resolution,
and setting a goal of completing environmental reviews for such
projects within two years.\32\ Subsequently, CEQ and OMB issued
guidance for the Secretary of Transportation regarding the
applicability of the OFD policy to States under the Surface
Transportation Project Delivery Program,\33\ and for the Secretary of
Housing and Urban Development (HUD) regarding the applicability of the
OFD policy to entities assuming HUD environmental review
responsibilities.\34\ CEQ also has provided direction to the Federal
Energy Regulatory Commission (FERC) relating to the requirement for
joint RODs under the OFD policy.\35\
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\30\ M-18-13 (Mar. 20, 2018), https://www.whitehouse.gov/wp-content/uploads/2018/04/M-18-13.pdf.
\31\ 82 FR 40463 (Aug. 24, 2017).
\32\ See Memorandum of Understanding Implementing One Federal
Decision under Executive Order 13807 (2018), https://www.whitehouse.gov/wp-content/uploads/2018/04/MOU-One-Federal-Decision-m-18-13-Part-2-1.pdf.
\33\ Guidance on the Applicability of E.O. 13807 to States with
NEPA Assignment Authority Under the Surface Transportation Project
Delivery Program, M-19-11 (Feb. 26, 2019), https://www.whitehouse.gov/wp-content/uploads/2017/11/20190226OMB-CEQ327.pdf.
\34\ Guidance on the Applicability of E.O. 13807 to Responsible
Entities Assuming Department of Housing and Urban Development
Environmental Review Responsibilities, M-19-20 (June 28, 2019),
https://www.whitehouse.gov/wp-content/uploads/2019/06/M-19-20.pdf.
\35\ See Letter from the Hon. Mary B. Neumayr, Chairman, Council
on Environmental Quality, to the Hon. Neil Chatterjee, Chairman,
Federal Energy Regulatory Comm'n (Aug. 22, 2019), https://www.whitehouse.gov/wp-content/uploads/2017/11/20190822FERCOFDLetter.pdf.
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3. Environmental Impact Statement Timelines and Page Count Reports
CEQ also has conducted reviews and prepared reports on the length
of time it takes for agencies to prepare EISs and the length of these
documents. These reviews found that the process for preparing EISs is
taking much longer than CEQ advised, and that the documents are far
longer than the CEQ regulations and guidance recommended. In December
2018, CEQ issued a report compiling information relating to the
timelines for preparing EISs during the period of 2010-2017, and the
NPRM included a summary of the report. CEQ has since updated this
analysis to include EISs completed in 2018, and this section reflects
the updated data.\36\
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\36\ See Council on Environmental Quality, Environmental Impact
Statement Timelines (2010-2018), (June 12, 2020), https://ceq.doe.gov/nepa-practice/eis-timelines.html.
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While CEQ's Forty Questions states that the time for an EIS, even
for a complex project, should not exceed 1 year,\37\ CEQ found that,
across the Federal Government, the average time for completion of an
EIS and issuance of a ROD was 4.5 years and the median was 3.5 years.
One quarter of the EISs took less than 2.2 years, and one quarter of
the EISs took more than 6 years.
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\37\ Forty Questions, supra note 2, at Question 35.
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As reflected in the timelines report, the period from publication
of a NOI to prepare an EIS to the notice of availability of the draft
EIS took, on average, 58.4 percent of the total time, while preparing
the final EIS, including addressing comments received on the draft EIS,
took, on average, 32.2 percent of the total time. The period from the
final EIS to publication of the ROD took, on average, 9.4 percent of
the total time. This report recognized that EIS timelines vary widely
and many factors may influence the timing of the document, including
variations in the scope and complexity of the actions, variations in
the extent of work done prior to issuance of the NOI, and suspension of
EIS activities due to external factors.
Additionally, in July 2019, CEQ issued a report on the length, by
page count, of EISs (excluding appendices) finalized during the period
of 2013-2017, and the NPRM included a summary of the report. CEQ has
since updated this analysis to include EISs completed in 2018, and this
section reflects the updated data.
While the CEQ regulations include recommended page limits for the
text of final EISs of normally less than 150 pages, or normally less
than 300 pages for proposals of ``unusual scope or complexity,'' 40 CFR
1502.7, CEQ found that many EISs are significantly longer. In
particular, CEQ found that across all Federal agencies, draft EISs
averaged 575 pages in total, with a median document length of 397
pages.\38\ One quarter of the draft EISs were 279 pages or shorter, and
one quarter were 621 pages or longer. For final EISs, the average
document length was 661 pages, and the median document length was 447
pages. One quarter of the final EISs were 286 pages or shorter, and one
quarter were 748 pages or longer. On average, the change in document
length from draft EIS to final EIS was an additional 86 pages or a 15
percent increase.
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\38\ See Council on Environmental Quality, Length of
Environmental Impact Statements (2013-2018), (June 12, 2020) (``CEQ
Length of EISs Report''), https://ceq.doe.gov/nepa-practice/eis-length.html.
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With respect to final EISs, CEQ found that approximately 7 percent
were 150 pages or shorter, and 27 percent were 300 pages or
shorter.\39\ Similar to the conclusions of its EIS timelines study, CEQ
noted that a number of factors may influence the length of EISs,
including variation in the scope and complexity of the decisions that
the EIS is designed to inform, the degree to which NEPA documentation
is used to document compliance with other statutes, and considerations
relating to potential legal challenges. Moreover, variation in EIS
length may reflect differences in management, oversight, and
contracting practices among agencies that could result in longer
documents.
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\39\ The page counts compiled for 2010-2017 include the text of
the EIS as well as supporting content to which the page limit in 40
CFR 1502.7 does not apply. For 2018, CEQ analyzed the data to
determine the length of the text of the EISs and found that 19
percent of the final EISs were 150 pages or shorter and 51 percent
were 300 pages or shorter.
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While there can be many factors affecting the timelines and length
of EISs, CEQ has concluded that revisions to the CEQ regulations to
advance more timely reviews and reduce unnecessary paperwork are
warranted. CEQ has determined that improvements to agency processes,
such as earlier solicitation of information from States, Tribes, and
local governments and the public, and improved coordination in the
development of EISs, can achieve more useful and timely documents to
support agency decision making.
C. Judicial Review of Agency NEPA Compliance
NEPA is the most litigated environmental statute in the United
States.\40\ Over the past 50 years, Federal courts have issued an
extensive body of case law addressing appropriate implementation and
interpretation of NEPA and the CEQ regulations.\41\ The Supreme Court
has directly addressed NEPA in 17 decisions, and the U.S. district and
appellate courts issue approximately 100 to 140 decisions
[[Page 43310]]
each year interpreting NEPA. The Supreme Court has construed NEPA and
the CEQ regulations in light of a ``rule of reason,'' which ensures
that agencies determine whether and to what extent to prepare an EIS
based on the usefulness of information to the decision-making process.
See Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 373-74 (1989).
``Although [NEPA] procedures are almost certain to affect the agency's
substantive decision, it is now well settled that NEPA itself does not
mandate particular results, but simply prescribes the necessary
process.'' Methow Valley, 490 U.S. at 350 (citing Strycker's Bay
Neighborhood Council, Inc., 444 U.S. at 227-28; Vt. Yankee, 435 U.S. at
558; see also Pub. Citizen, 541 U.S. at 756-57 (``NEPA imposes only
procedural requirements on [F]ederal agencies with a particular focus
on requiring agencies to undertake analyses of the environmental impact
of their proposals and actions.'' (citing Methow Valley, 490 U.S. at
349-50)). The thousands of decisions interpreting NEPA and the current
CEQ regulations being amended here drive much of agencies' modern-day
practice. A challenge for agencies is that courts have interpreted key
terms and requirements differently, adding to the complexity of
environmental reviews. For example, in 2018 and 2019, the U.S. Courts
of Appeals issued 56 substantive decisions on a range of topics,
including assessment of impacts, sufficiency of alternatives, whether
an agency's action qualified as Federal action, and purpose and need
statements.\42\ As discussed below, the final rule codifies
longstanding case law in some instances, and, in other instances,
clarifies the meaning of the regulations where there is a lack of
uniformity in judicial interpretation of NEPA and the CEQ regulations.
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\40\ James E. Salzman and Barton H. Thompson, Jr., Environmental
Law and Policy 340 (5th ed. 2019) (``Perhaps surprisingly, there
have been thousands of NEPA suits. It might seem strange that NEPA's
seemingly innocuous requirement of preparing an EIS has led to more
lawsuits than any other environmental statute.'').
\41\ The 2019 edition of NEPA Law and Litigation includes a 115-
page Table of Cases decisions construing NEPA. See Daniel R.
Mandelker et al., NEPA Law and Litigation, Table of Cases (2d ed.
2019).
\42\ National Association of Environmental Professionals, 2019
Annual NEPA Report of the National Environmental Policy Act (NEPA)
Practice (2020) at 30-31, https://naep.memberclicks.net/assets/annual-report/2019_NEPA_Annual_Report/NEPA_Annual_Report_2019.pdf;
National Association of Environmental Professionals, 2018 Annual
NEPA Report of the National Environmental Policy Act (NEPA) Practice
(2019) at 41-51, https://naep.memberclicks.net/assets/documents/2019/NEPA_Annual_Report_2018.pdf.
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D. Statutory Developments
Since the enactment of NEPA in 1970, Congress has amended or
enacted a large number of substantive environmental statutes. These
have included significant amendments to the Clean Water Act and Clean
Air Act, establishment of new Federal land management standards and
planning processes for National forests, public lands, and coastal
zones, and statutory requirements to conserve fish, wildlife, and plant
species.\43\ Additionally, the consideration of the effects on historic
properties under the National Historic Preservation Act is typically
integrated into the NEPA review.\44\ NEPA has served as the umbrella
procedural statute, integrating these laws into NEPA reviews and
discussing them in NEPA documents.
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\43\ See, e.g., the Clean Air Act, 42 U.S.C. 7401-7671q; Clean
Water Act, 33 U.S.C. 1251-1388; Coastal Zone Management Act, 16
U.S.C. 1451-1466; Federal Land Policy and Management Act, 43 U.S.C.
1701-1787; Forest and Rangeland Renewable Resources Planning Act of
1974, 16 U.S.C. 1600-1614; Magnuson-Stevens Fishery Conservation and
Management Act, 16 U.S.C. 1801-1884; Endangered Species Act, 16
U.S.C. 1531-1544; Oil Pollution Act of 1990, 33 U.S.C. 2701-2762;
Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1201,
1202, and 1211; and Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. 9601-9675.
\44\ Similar to NEPA, section 106 (54 U.S.C. 306108) of the
National Historic Preservation Act is a procedural statute.
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Over the past two decades and multiple administrations, Congress
has also undertaken efforts to facilitate more efficient environmental
reviews by Federal agencies, and has enacted a number of statutes aimed
at improving the implementation of NEPA, including in the context of
infrastructure projects. In particular, Congress has enacted
legislation to improve coordination among agencies, integrate NEPA with
other environmental reviews, and bring more transparency to the NEPA
process.
In 2005, Congress enacted 23 U.S.C. 139, ``Efficient environmental
reviews for project decisionmaking,'' a streamlined environmental
review process for highway, transit, and multimodal transportation
projects (the ``section 139 process''), in the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users
(SAFETEA-LU), Public Law 109-59, sec. 6002(a), 119 Stat. 1144, 1857.
Congress amended section 139 with additional provisions designed to
improve the NEPA process in the 2012 Moving Ahead for Progress in the
21st Century Act (MAP-21), Public Law 112-141, sec. 1305-1309, 126
Stat. 405, and the 2015 Fixing America's Surface Transportation (FAST)
Act, Public Law 114-94, sec. 1304, 129 Stat. 1312, 1378. Section 139
provides for an environmental review process that is based on and
codifies many aspects of the NEPA regulations, including provisions
relating to lead and cooperating agencies, concurrent environmental
reviews in a single NEPA document, coordination on the development of
the purpose and need statement and reasonable alternatives, and
adoption of environmental documents. Further, section 139 provides for
referral to CEQ for issue resolution, similar to part 1504 of the NEPA
regulations, and allows for the use of errata sheets, consistent with
40 CFR 1503.4(c).\45\
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\45\ To facilitate the NEPA process for transportation projects
subject to section 139, the statute specifically calls for
development of a coordination plan, including development of a
schedule, and publicly tracking the implementation of that schedule
through use of the Permitting Dashboard. See infra sec. I.E. In
addition, the section 139 process provides for ``participating''
agencies, which are any agencies invited to participate in the
environmental review process. Section 139 also requires, to the
maximum extent practicable, issuance of a combined final EIS and
ROD.
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When Congress enacted section 2045 of the Water Resources
Development Act of 2007, Public Law 110-114, 121 Stat. 1041, 1103, it
created a similar environmental review provision for water resources
development projects by the U.S. Army Corps of Engineers (Corps). 33
U.S.C. 2348.\46\ This project acceleration provision also requires a
coordinated environmental review process, provides for dispute
resolution, and codifies aspects of the NEPA regulations such as lead
and cooperating agencies, concurrent environmental reviews, and the
establishment of CEs. Section 2348(o) also directs the Corps to consult
with CEQ on the development of guidance for implementing this
provision.
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\46\ Congress significantly revised this provision in the Water
Resources Reform and Development Act of 2014, Public Law 113-121,
sec. 1005(a)(1), 128 Stat. 1193 1199.
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In 2015 Congress enacted Title 41 of the FAST Act (FAST-41), to
provide for a more efficient environmental review and permitting
process for ``covered projects.'' See Public Law 114-94, sec. 41001-
41014, 129 Stat. 1312, 1741 (42 U.S.C. 4370m--4370m-12). These are
projects that require Federal environmental review under NEPA, are
expected to exceed $200 million, and involve the construction of
infrastructure for certain energy production, electricity transmission,
water resource projects, broadband, pipelines, manufacturing, and other
sectors. Id. FAST-41 codified certain roles and responsibilities
required by the NEPA regulations. In particular, FAST-41 imports the
concepts of lead and cooperating agencies, and the different levels of
NEPA analysis--EISs, EAs, and CEs. Consistent with 40 CFR 1501.5(e)
through (f), CEQ is required to resolve any dispute over designation of
a facilitating or lead agency for a covered project. 42 U.S.C. 4370m-
2(a)(6)(B). Section 4370m-4 codified several requirements from the CEQ
[[Page 43311]]
regulations, including the requirement for concurrent environmental
reviews, which is consistent with 40 CFR 1500.2(c), 1501.7(a)(6), and
1502.25(a), and the tools of adoption, incorporation by reference,
supplementation, and use of State documents, consistent with 40 CFR
1506.3, 1502.21, 1502.9(c), and 1506.2.\47\ Finally, 42 U.S.C. 4370m-4
addresses interagency coordination on key aspects of the NEPA process,
including scoping (40 CFR 1501.7), identification of the range of
reasonable alternatives for study in an EIS (40 CFR 1502.14), and the
public comment process (40 CFR part 1503).
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\47\ For covered projects, section 4370m-4 authorizes lead
agencies to adopt or incorporate by reference existing environmental
analyses and documentation prepared under State laws and procedures
if the analyses and documentation meet certain requirements. 42
U.S.C. 4370m-4(b)(1)(A)(i). This provision also requires that the
lead agency, in consultation with CEQ, determine that the analyses
and documentation were prepared using a process that allowed for
public participation and consideration of alternatives,
environmental consequences, and other required analyses that are
substantially equivalent to what a Federal agency would have
prepared pursuant to NEPA. Id.
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To ensure a timely NEPA process so that important infrastructure
projects can move forward, Congress has also established shorter
statutes of limitations for challenges to certain types of projects.
SAFETEA-LU created a 180-day statute of limitations for highway or
public transportation capital projects, which MAP-21 later reduced to
150 days. 23 U.S.C. 139(l). The Water Resources Reform and Development
Act of 2014 established a three-year statute of limitations for
judicial review of any permits, licenses, or other approvals for water
resources development project studies. 33 U.S.C. 2348(k). Most recently
in FAST-41, Congress established a two-year statute of limitations for
covered projects. 42 U.S.C. 4370m-6.
There are a number of additional instances where Congress has
enacted legislation to facilitate more timely environmental reviews.
For example, similar to the provisions described above, there are other
statutes where Congress has called for a coordinated and concurrent
environmental review. See, e.g., 33 U.S.C. 408(b) (concurrent review
for river and harbor permits); 49 U.S.C. 40128 (coordination on
environmental reviews for air tour management plans for national
parks); 49 U.S.C. 47171 (expedited and coordinated environmental review
process for airport capacity enhancement projects).
Additionally, Congress has established or directed agencies to
establish CEs to facilitate NEPA compliance. See, e.g., 16 U.S.C.
6554(d) (applied silvicultural assessment and research treatments); 16
U.S.C. 6591d (hazardous fuels reduction projects to carry out forest
restoration treatments); 16 U.S.C. 6591e (vegetation management
activity in greater sage-grouse or mule deer habitat); 33 U.S.C. 2349
(actions to repair, reconstruct, or rehabilitate water resources
projects in response to emergencies); 42 U.S.C. 15942 (certain
activities for the purpose of exploration or development of oil or
gas); 43 U.S.C. 1772(c)(5) (development and approval of vegetation
management, facility inspection, and operation and maintenance plans);
MAP-21, Public Law 112-141, sec. 1315 (actions to repair or reconstruct
roads, highways, or bridges damaged by emergencies), 1316 (projects
within the operational right-of-way), and 1317 (projects with limited
Federal assistance); FAA Modernization and Reform Act of 2012, Public
Law 112-95, sec. 213(c), 126 Stat. 11, 46 (navigation performance and
area navigation procedures); and Omnibus Appropriations Act, 2009,
Public Law 111-8, sec. 423, 123 Stat. 524, 748 (Lake Tahoe Basin
Management Unit hazardous fuel reduction projects).
Further, in the context of emergency response, including economic
crisis, Congress has enacted legislation to facilitate timely NEPA
reviews or to exempt certain actions from NEPA review. Congress has
directed the use or development of alternative arrangements in
accordance with 40 CFR 1506.11 for reconstruction of transportation
facilities damaged in an emergency (FAST Act, Pub. L. 114-94, sec.
1432, 129 Stat. 1312, 1429) and for projects by the Departments of the
Interior and Commerce to address invasive species (Water Infrastructure
Improvements for the Nation Act, Pub. L. 114-322, sec. 4010(e)(3), 130
Stat. 1628, 1877). Section 1609(c) of the American Recovery and
Reinvestment Act of 2009 directed agencies to complete environmental
reviews under NEPA on an expedited basis using the most efficient
applicable process. Public Law 111-5, sec. 1609, 123 Stat. 115, 304.
In 2013, Congress also enacted section 429 of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (``Stafford
Act''), 42 U.S.C. 5189g, which directed the President, in consultation
with CEQ and the Advisory Council on Historic Preservation, to
``establish an expedited and unified interagency review process to
ensure compliance with environmental and historic requirements under
Federal law relating to disaster recovery projects, in order to
expedite the recovery process, consistent with applicable law.'' Sandy
Recovery Improvement Act of 2013, Public Law 113-2, sec. 1106, 127
Stat. 4, 45-46. This unified Federal environmental and historic
preservation review (UFR) process is a framework for coordinating
Federal agency environmental and historic preservation reviews for
disaster recovery projects associated with presidentially declared
disasters under the Stafford Act. The goal of the UFR process is to
enhance the ability of Federal environmental review and authorization
processes to inform and expedite disaster recovery decisions for grant
applicants and other potential beneficiaries of disaster assistance by
improving coordination and consistency across Federal agencies, and
assisting agencies in better leveraging their resources and tools.\48\
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\48\ See generally Memorandum of Understanding Establishing the
Unified Federal Environmental and Historic Preservation Review
Process for Disaster Recovery Projects (July 29, 2014), https://www.fema.gov/media-library-data/1414507626204-f156c4795571b85a4f8e1c1f4c4b7de1/Final_Signed_UFR_MOU_9_24_14_508_ST.PDF.
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Finally, in some instances, Congress has exempted actions from
NEPA. In 1996, Congress enacted the Illegal Immigration Reform and
Immigrant Responsibility Act, which authorized the waiver of NEPA for
the construction of the physical barriers and roads between the United
States and Mexico border when necessary to ``ensure expeditious
construction.'' Public Law 104-208, sec. 102(c), 110 Stat. 3009.\49\ In
2013, Congress exempted certain disaster recovery actions or financial
assistance to restore ``a facility substantially to its condition prior
to the disaster or emergency.'' 42 U.S.C. 5159. In 2020, Congress
enacted the Coronavirus Aid, Relief, and Economic Security Act, which
created an exemption from NEPA for the General Services
Administration's acquisition of real property and interests in real
property or improvements in real property in response to coronavirus in
[[Page 43312]]
conjunction with the provision of additional funding to prevent,
prepare for, and respond to the coronavirus. Public Law 116-136, Div.
B.
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\49\ The Homeland Security Act of 2002 transferred
responsibility for the construction of border barriers from the
Attorney General to the Department of Homeland Security. Public Law
107-296, 116 Stat. 2135. In 2005, the REAL ID Act amended the waiver
authority of section 102(c) expanding the Secretary of DHS'
authority to waive ``all legal requirements'' that the Secretary, in
his or her own discretion, determines ``necessary to ensure
expeditious construction'' of certain ``barriers and roads.'' Public
Law 109-13, Div. B, tit. I, sec. 102, 119 Stat. 231, 302, 306. It
also added a judicial review provision that limited the district
court's jurisdiction to hear any causes or claims concerning the
Secretary's waiver authority to solely constitutional claims. Id.
sec. 102(c)(2)(A). Further, the provision directed that any review
of the district court's decision be raised by petition for a writ of
certiorari with the Supreme Court of the United States. Id. sec.
102(c)(2)(C). See In re Border Infrastructure Envtl. Litig., 284 F.
Supp. 3d 1092 (S.D. Cal. 2018).
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These statutes reflect that Congress has recognized that the
environmental review process can be more efficient and effective,
including for infrastructure projects, and that in certain
circumstances, Congress has determined it appropriate to exempt certain
actions from NEPA review. Congress also has identified specific process
improvements that can accelerate environmental reviews, including
improved interagency coordination, concurrent reviews, and increased
transparency.
E. Presidential Directives
Over the past two decades and multiple administrations, Presidents
also have recognized the need to improve the environmental review
process to make it more timely and efficient, and have directed
agencies, through Executive orders and Presidential memoranda, to
undertake various initiatives to address these issues. In 2002,
President Bush issued E.O. 13274 titled ``Environmental Stewardship and
Transportation Infrastructure Project Reviews,'' \50\ which stated that
the development and implementation of transportation infrastructure
projects in an efficient and environmentally sound manner is essential,
and directed agencies to conduct environmental reviews for
transportation projects in a timely manner.
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\50\ 67 FR 59449 (Sept. 23, 2002).
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In 2011, President Obama's memorandum titled ``Speeding
Infrastructure Development Through More Efficient and Effective
Permitting and Environmental Review'' \51\ directed certain agencies to
identify up to three high-priority infrastructure projects for
expedited environmental review and permitting decisions to be tracked
publicly on a ``centralized, online tool.'' This requirement led to the
creation of what is now the Permitting Dashboard,
www.permits.performance.gov.
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\51\ https://www.govinfo.gov/content/pkg/DCPD-201100601/pdf/DCPD-201100601.pdf.
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In 2012, E.O. 13604, titled ``Improving Performance of Federal
Permitting and Review of Infrastructure Projects,'' \52\ established an
interagency Steering Committee on Federal Infrastructure Permitting and
Review Process Improvement (``Steering Committee'') to facilitate
improvements in Federal permitting and review processes for
infrastructure projects. The Executive order directed the Steering
Committee to develop a plan ``to significantly reduce the aggregate
time required to make Federal permitting and review decisions on
infrastructure projects while improving outcomes for communities and
the environment.'' Similarly, E.O. 13616, titled ``Accelerating
Broadband Infrastructure Deployment,'' \53\ established an interagency
working group to, among other things, avoid duplicative reviews and
coordinate review processes to advance broadband deployment.
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\52\ 77 FR 18887 (Mar. 28, 2012).
\53\ 77 FR 36903 (June 20, 2012).
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A 2013 Presidential Memorandum titled ``Modernizing Federal
Infrastructure Review and Permitting Regulations, Policies, and
Procedures'' \54\ directed the Steering Committee established by E.O.
13604 to work with agencies, OMB, and CEQ to ``modernize Federal
infrastructure review and permitting regulations, policies, and
procedures to significantly reduce the aggregate time required by the
Federal Government to make decisions in the review and permitting of
infrastructure projects, while improving environmental and community
outcomes'' and develop a plan to achieve this goal. Among other things,
the memorandum directed that the plan create process efficiencies,
including additional use of concurrent and integrated reviews; expand
coordination with State, Tribal, and local governments; and expand the
use of information technology tools. CEQ and OMB led the effort to
develop a comprehensive plan to modernize the environmental review and
permitting process while improving environmental and community
outcomes, including budget proposals for funding and new authorities.
Following the development of the plan, CEQ continued to work with
agencies to improve the permitting process, including through expanded
collection of timeframe metrics on the Permitting Dashboard. In late
2015, these ongoing efforts were superseded by the enactment of FAST-
41, which codified the use of the Permitting Dashboard, established the
Federal Permitting Improvement Steering Council (``Permitting
Council''), and established other requirements for managing the
environmental review and permitting process for covered infrastructure
projects.
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\54\ 78 FR 30733 (May 22, 2013).
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On August 15, 2017, President Trump issued E.O. 13807 titled
``Establishing Discipline and Accountability in the Environmental
Review and Permitting Process for Infrastructure Projects.'' \55\
Section 5(e)(i) directed CEQ to develop an initial list of actions to
enhance and modernize the Federal environmental review and
authorization process, including issuing such regulations as CEQ deems
necessary to: (1) Ensure optimal interagency coordination of
environmental review and authorization decisions; (2) ensure that
multi-agency environmental reviews and authorization decisions are
conducted in a manner that is concurrent, synchronized, timely, and
efficient; (3) provide for use of prior Federal, State, Tribal, and
local environmental studies, analysis, and decisions; and (4) ensure
that agencies apply NEPA in a manner that reduces unnecessary burdens
and delays, including by using CEQ's authority to interpret NEPA to
simplify and accelerate the NEPA review process. In response to E.O.
13807, CEQ published an initial list of actions and stated its intent
to review its existing NEPA regulations in order to identify potential
revisions to update and clarify these regulations.\56\
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\55\ 82 FR 40463 (Aug. 24, 2017).
\56\ 82 FR 43226 (Sept. 14, 2017).
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F. Advance Notice of Proposed Rulemaking
Consistent with E.O. 13807 and CEQ's initial list of actions, and
given the length of time since CEQ issued its regulations, on June 20,
2018, CEQ published an ANPRM titled ``Update to the Regulations for
Implementing the Procedural Provisions of the National Environmental
Policy Act.'' \57\ The ANPRM requested public comments on how CEQ could
ensure a more efficient, timely, and effective NEPA process consistent
with the Act's national environmental policy and provided for a 30-day
comment period.\58\
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\57\ 83 FR 28591 (June 20, 2018).
\58\ In response to comments, CEQ extended the comment period 31
additional days to August 20, 2018. 83 FR 32071 (July 11, 2018).
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The ANPRM requested comment on potential revisions to update and
clarify the NEPA regulations, and included a list of questions on
specific aspects of the regulations. For example, with respect to the
NEPA process, the ANPRM asked whether there are provisions that CEQ
could revise to ensure more efficient environmental reviews and
authorization decisions, such as facilitating agency use of existing
environmental studies, analyses and decisions, as well as improving
interagency coordination. The ANPRM also requested comments on the
scope of NEPA reviews, including whether CEQ should revise, clarify, or
add definitions. The ANPRM also asked whether additional revisions
relating to
[[Page 43313]]
environmental documentation issued pursuant to NEPA, including CEs,
EAs, EISs, and other documents, would be appropriate. Finally, the
ANPRM requested general comments, including whether there were obsolete
provisions that CEQ could update to reflect new technologies or make
the process more efficient, or that CEQ could revise to reduce
unnecessary burdens or delays.
In response to the ANPRM, CEQ received over 12,500 comments, which
are available for public review.\59\ These included comments from a
wide range of stakeholders, including States, Tribes, localities,
environmental organizations, trade associations, NEPA practitioners,
and interested members of the public. While some commenters opposed any
updates to the regulations, other commenters urged CEQ to consider
potential revisions. Though the approaches to the update of the NEPA
regulations varied, most of the substantive comments supported some
degree of updating of the regulations. Many noted that overly lengthy
documents and the time required for the NEPA process remain real and
legitimate concerns despite the NEPA regulations' explicit direction
with respect to reducing paperwork and delays. In general, numerous
commenters requested that CEQ consider revisions to modernize its
regulations, reduce unnecessary burdens and costs, and make the NEPA
process more efficient, effective, and timely.
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\59\ See https://www.regulations.gov, docket no. CEQ-2018-0001.
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G. Notice of Proposed Rulemaking
On January 9, 2020, President Trump announced the release of CEQ's
NPRM titled ``Update to the Regulations Implementing the Procedural
Provisions of the National Environmental Policy Act'' and the rule was
published in the Federal Register on January 10, 2020.\60\ The NPRM
provided a 60-day comment period, and the comment period ended on March
10, 2020.
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\60\ Supra note 8.
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CEQ hosted two public hearings in Denver, Colorado on February 11,
2020, and in Washington, DC on February 25, 2020.\61\ CEQ also notified
all federally recognized Tribes and over 400 interested groups,
including State, Tribal, and local officials, environmental
organizations, trade associations, NEPA practitioners, and interested
members of the public representing a broad range of diverse views, that
CEQ had issued the proposed rule for public comment.\62\ Additionally,
CEQ made information to aid the public's review of the proposed rule
available on its websites at www.whitehouse.gov/ceq and www.nepa.gov,
including a redline version of the proposed changes to the regulations
posted on www.regulations.gov, along with a presentation on the
proposed rule and other background information.\63\ CEQ also conducted
additional public outreach to solicit comments, including meetings with
Tribal representatives in Denver, Colorado, Anchorage, Alaska, and
Washington, DC.\64\
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\61\ Transcripts of the two public hearings with copies of
testimony and written comments submitted at the hearings are
available in the docket on www.regulations.gov, docket ID CEQ-2019-
0003.
\62\ Notices are available under ``Supporting Documents'' in the
docket, www.regulations.gov, docket ID CEQ-2019-0003, https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&dct=SR%2BO&D=CEQ-2019-0003.
\63\ Id.
\64\ CEQ also includes meeting summaries under supplemental
materials. Id.
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In response to the NPRM, CEQ received comments from a broad range
of stakeholders on a diversity of issues relating to the proposed rule.
These included comments from members of Congress, State, Tribal, and
local officials, environmental organizations, trade associations, NEPA
practitioners, and interested members of the public. CEQ also received
a large number of campaign comments, including comments with multiple
signatories or groups of comments that were identical or very similar
in form or content. The comments received on the NPRM raised a variety
of issues related to the rulemaking and contents of the proposed rule,
including procedural, legal, and technical issues. The Final Rule
Response to Comments provides a summary of the comments and responses
to those comments.
II. Summary of Final Rule
In this section, CEQ summarizes the NPRM proposed changes and the
final rule, including any changes or additions to what CEQ proposed.
CEQ makes the additions, clarifications, and updates to its regulations
based on its record evaluating the implementation of the NEPA
regulations, suggestions in response to the ANPRM, and comments
provided in response to the NPRM. The revisions finalized in this rule
advance the original objectives of the 1978 regulations \65\ ``[t]o
reduce paperwork, to reduce delays, and at the same time to produce
better decisions [that] further the national policy to protect and
enhance the quality of the human environment.'' \66\
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\65\ In this final rule, CEQ uses the term ``1978 regulations''
to refer to the regulations as they exist prior to this final rule's
amendment thereof, which includes the 1986 amendment to 40 CFR
1502.22.
\66\ 43 FR 55978 (Nov. 29, 1978).
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In this final rule, CEQ makes various revisions to align the
regulations with the text of the NEPA statute, including revisions to
reflect the procedural nature of the statute, including under section
102(2). CEQ also revises the regulations to ensure that environmental
documents prepared pursuant to NEPA are concise and serve their purpose
of informing decision makers regarding significant potential
environmental effects of proposed major Federal actions and the public
of the environmental issues in the pending decision-making process. CEQ
makes changes to ensure that the regulations reflect changes in
technology, increase public participation in the process, and
facilitate the use of existing studies, analyses, and environmental
documents prepared by States, Tribes, and local governments.
CEQ also makes its regulations consistent with the OFD policy
established by E.O. 13807 for multi-agency review and related
permitting and other authorization decisions. The Executive order
specifically instructed CEQ to take steps to ensure optimal interagency
coordination, including through a concurrent, synchronized, timely, and
efficient process for environmental reviews and authorization
decisions. In response to the NPRM, CEQ received many comments
supporting revisions to codify key aspects of the OFD policy in the
NEPA regulations, including by providing greater specificity on the
roles and responsibilities of lead and cooperating agencies. Commenters
also suggested that the regulations require agencies to establish and
adhere to timetables for the completion of reviews, another key element
of the OFD policy. To promote improved interagency coordination and
more timely and efficient reviews and in response to these comments,
CEQ codifies and generally applies a number of key elements from the
OFD policy in this final rule. These include development by the lead
agency of a joint schedule, procedures to elevate delays or disputes,
preparation of a single EIS and joint ROD to the extent practicable,
and a two-year goal for completion of environmental reviews. Consistent
with section 104 of NEPA (42 U.S.C. 4334), codification of these
policies will not limit or affect the authority or legal
responsibilities of agencies under other statutory mandates that may be
covered by joint schedules,
[[Page 43314]]
and CEQ includes language to that effect in Sec. 1500.6.\67\
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\67\ In the preamble, CEQ uses the section symbol (Sec. ) to
refer to the final regulations as set forth in this final rule and
40 CFR to refer to the 1978 CEQ regulations as set forth in 40 CFR
parts 1500-1508.
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CEQ also clarifies the process and documentation required for
complying with NEPA by amending part 1501 to add sections on threshold
considerations, determination of the appropriate level of NEPA review,
and the application of CEs; and revising sections in part 1501 on EAs
and findings of no significant impact (FONSIs), and EISs in part 1502.
CEQ further revises the regulations to promote more efficient and
timely environmental reviews, including revisions to promote
interagency coordination by amending sections of parts 1501, 1506, and
1507 relating to lead, cooperating, and participating agencies, timing
of agency action, scoping, and agency NEPA procedures.
To promote a more efficient and timely NEPA process, CEQ amends
provisions in parts 1501, 1506, and 1507 relating to applying NEPA
early in the process, scoping, tiering, adoption, use of current
technologies, and avoiding duplication of State, Tribal, and local
environmental reviews; revises parts 1501 and 1502 to provide for
presumptive time and page limits; and amends part 1508 to clarify the
definitions. For example, CEQ includes two new mechanisms to facilitate
the use of CEs when appropriate. Under Sec. 1506.3(d), an agency can
adopt another agency's determination that a CE applies to a proposed
action when the adopting agency's proposed action is substantially the
same. This extends the adoption process and standards from EISs to CE
determinations.\68\ This allows agencies to ``piggyback'' where more
than one agency is taking an action related to the same project or
activity. Alternatively, to apply CEs listed in another agency's
procedures (without that agency already having made a determination
that a CE applies to a substantially similar action), agencies can
establish a process in their agency NEPA procedures to coordinate and
apply CEs listed in other agencies' procedures.
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\68\ The final rule also extends the adoption process and
standards, which only applies to EISs under the 1978 regulations, to
EAs as well.
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Another efficiency included in this final rule is the ability for
agencies to identify other requirements that serve the function of
agency compliance with NEPA. Under Sec. Sec. 1501.1 and 1507.3(d)(6),
agencies may determine that another statute's requirements serve the
function of agency compliance with NEPA. Alternatively, agencies may
designate in their agency NEPA procedures one or more procedures or
documents under other statutes or Executive orders that satisfy one or
more requirements in the NEPA regulations, consistent with Sec.
1507.3(c)(5). Finally, Sec. 1506.9 allows agencies to substitute
processes and documentation developed as part of the rulemaking process
for corresponding requirements in these regulations.
As noted above, NEPA is a procedural statute that has twin aims.
The first is to promote informed decision making, while the second is
to inform the public about the agency's decision making. In this final
rule, CEQ amends parts 1500, 1501, 1502, 1503, 1505, and 1508 to ensure
that agencies solicit and consider relevant information early in the
NEPA process and have the maximum opportunity to take that information
into account in their decision making.
In situations where an EIS is required, this process takes place in
two discrete steps. First, Sec. 1501.9(d) directs agencies to include
information on the proposed action in the NOI, including its expected
impacts and alternatives, and a request for comments from interested
parties on the potential alternatives, information, and analyses
relevant to the proposed action. Second, Sec. 1503.1(a) requires
agencies to request comments on the analysis and conclusions of the
draft EIS. The purpose of these two provisions is to bring relevant
comments, information, and analyses to the agency's attention, as early
in the process as possible, to enable the agency to make maximum use of
this information.
To facilitate this process, Sec. 1503.3 requires comments on the
draft EIS to be submitted on a timely basis and to be as specific as
possible. Similarly, Sec. 1503.1(a)(3) requires agencies to invite
interested parties to comment specifically on the alternatives,
information, and analyses submitted for consideration in the
development of the draft EIS. Finally, Sec. 1503.3(b) provides that
comments, information, and analyses on the draft EIS not timely
received are deemed unexhausted and therefore forfeited. The intent of
these amendments is two-fold: (1) To ensure that comments are timely
received and at a level of specificity where they can be meaningfully
taken into account, where appropriate; and (2) to prevent unnecessary
delay in the decision-making process.
Consistent with this intent, Sec. 1500.3(b)(2) also directs
agencies to include a new section in both the draft and final EIS that
summarizes all alternatives, information, and analyses submitted by
interested parties in response to the agency's requests for comment in
the NOI and on the draft EIS. In addition, Sec. Sec. 1502.17(a)(2) and
1503.1(a)(3) direct agencies to request comment on the summary in the
draft EIS. The purpose of these provisions is to ensure that the
agency, through outreach to the public, has identified all relevant
information submitted by State, Tribal, and local governments and other
public commenters. Although not a substitute for the entire record, the
summary will assist agency decision makers in their consideration of
the record for the proposed action. As the Supreme Court observed in
Metropolitan Edison Co. v. People Against Nuclear Energy, ``[t]he scope
of [an] agency's inquiries must remain manageable if NEPA's goal of
`[insuring] a fully informed and well-considered decision' . . . is to
be accomplished.'' 460 U.S. at 776 (quoting Vt. Yankee, 435 U.S. at
558).
Finally, informed by the summary included in the final EIS pursuant
to Sec. Sec. 1500.3(b)(2) and 1502.17 and the response to comments
pursuant to Sec. 1503.4, together with any other material in the
record that he or she determines to be relevant, the decision maker is
required under Sec. 1505.2(b) to certify in the ROD that the agency
has considered the alternatives, information, analyses, and objections
submitted by State, Tribal, and local governments and public commenters
for consideration in the development of the final EIS. Section
1505.2(b) further provides that a decision certified in this manner is
entitled to a presumption that the agency has adequately considered the
submitted alternatives, information, and analyses, including the
summary thereof, in reaching its decision. This presumption will
advance the purposes of the directive in E.O. 11991 to ensure that EISs
are supported by evidence that agencies have performed the necessary
environmental analyses. See E.O. 11991, sec. 1 amending E.O. 11514,
sec. 3(h). This presumption is also consistent with the longstanding
presumption of regularity that government officials have properly
discharged their official duties. See U.S. Postal Serv. v. Gregory, 534
U.S. 1, 10 (2001) (``[W]e note that a presumption of regularity
attaches to the actions of government agencies.'' (citing United States
v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)); INS v. Miranda, 459
U.S. 14, 18 (1982) (specific evidence required to overcome presumption
that public officers have executed their responsibilities properly);
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415
(1971) (Although a
[[Page 43315]]
statute prohibited Federal funds for roads through parks absent a
feasible and prudent alternative, and although the Secretary of
Transportation approved funds without formal findings, the Secretary's
decision-making process was nevertheless entitled to a presumption of
regularity.); Fed. Commc'ns Comm'n v. Schreiber, 381 U.S. 279, 296
(1965) (noting ``the presumption to which administrative agencies are
entitled--that they will act properly and according to law''); Phila. &
T. Ry. v. Stimpson, 39 U.S. (14 Pet.) 448, 458 (1840) (Where a statute
imposed certain conditions before a corrected patent could issue, the
signatures of the President and the Secretary of State on a corrected
patent raised a presumption that the conditions were satisfied, despite
absence of recitals to that effect on face of patent.); Martin v. Mott,
25 U.S. (12 Wheat.) 19, 33 (1827) (``Every public officer is presumed
to act in obedience to his duty, until the contrary is shown . . .
.''); Udall v. Wash., Va. & Md. Coach Co., 398 F.2d 765, 769 (D.C. Cir.
1968) (The Secretary of the Interior's determination that limitation of
commercial bus service was required to preserve a parkway's natural
beauty was entitled to presumption of validity, and the burden was on
the challenger to overcome it.).
In light of this precedent and the interactive process established
by these regulations, under which the agency and interested parties
exchange information multiple times, the agency compiles and evaluates
summaries of that information, and a public official is required to
certify the agency's consideration of the record, it is CEQ's intention
that this presumption may be rebutted only by clear and convincing
evidence that the agency has not properly discharged its duties under
the statute.
Finally, CEQ revises the regulations to make them easier to
understand and apply. CEQ reorganizes the regulatory text to move
topics addressed in multiple sections and sometimes multiple parts into
consolidated sections. CEQ simplifies and clarifies part 1508 to focus
on definitions by moving operative requirements to the relevant
regulatory provisions. CEQ revises the regulations to consolidate
provisions and reduce duplication. Such consolidation, reordering, and
reorganization promotes greater clarity and ease of use.
A. Changes Throughout Parts 1500-1508
CEQ proposed several revisions throughout parts 1500-1508 to
provide consistency, improve clarity, and correct grammatical errors.
CEQ proposed to make certain grammatical corrections in the regulations
where it proposed other changes to the regulations to achieve the goals
of this rulemaking, or where CEQ determined the changes are necessary
for the reader to understand fully the meaning of the sentence. CEQ
proposed to revise sentences from passive voice to active voice to help
identify the responsible parties. CEQ also proposed to correct the
usage of the term ``insure'' with ``ensure'' consistent with modern
usage. ``Insure'' is typically used in the context of providing or
obtaining insurance, whereas ``ensure'' is used in the context of
making something sure, certain, or safe. While NEPA uses the term
``insure,'' the context in which it is used makes it clear that
Congress meant ``ensure'' consistent with modern usage. Similarly, CEQ
proposed to correct the use of ``which'' and ``that'' throughout the
rule.
CEQ proposed to add paragraph letters to certain introductory
paragraphs where it would improve clarity. Finally, CEQ invited comment
on whether it should make these types of grammatical and editorial
changes throughout the rule or if there are additional specific
instances where CEQ should make these types of changes. In the final
rule, CEQ adopts the proposed revisions to provide consistency and
clarity and to correct grammatical errors and makes these types of
changes throughout.
CEQ proposed to add ``Tribal'' to the phrase ``State and local''
throughout the rule to ensure consultation with Tribal entities and to
reflect existing NEPA practice to coordinate or consult with affected
Tribal governments and agencies, as necessary and appropriate for a
proposed action. CEQ also proposed this change in response to comments
on the ANPRM supporting expansion of the recognition of the sovereign
rights, interests, and expertise of Tribes. CEQ proposed to eliminate
the provisions in the regulations that limit Tribal interest to
reservations. CEQ adopts these proposals in the final rule and makes
these additions and revisions in Sec. Sec. 1500.3(b)(2)-(4),
1500.4(p), 1500.5(j), 1501.2(b)(4)(ii), 1501.3(b)(2)(iv), 1501.5(e),
1501.7(b) and (d), 1501.8(a), 1501.9(b), 1501.10(f), 1502.5(b),
1502.16(a)(5), 1502.17(a) and (b), 1502.20(a), 1503.1(a)(2)(i) and
(ii), 1505.2(b), and 1506.1(b), 1506.2, 1506.6(b)(3)(i)-(iii), and
1508.1(e), (k), and (w). As noted in the NPRM, these changes are
consistent with and in support of government-to-government consultation
pursuant to E.O. 13175, titled ``Consultation and Coordination With
Indian Tribal Governments.'' \69\
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\69\ 65 FR 67249 (Nov. 9, 2000).
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CEQ proposed several changes for consistent use of certain terms.
In particular, CEQ proposed to change ``entitlements'' to the defined
term ``authorizations'' proposed in Sec. 1508.1(c) throughout the
regulations and added ``authorizations'' where appropriate to reflect
the mandate in E.O. 13807 for better integration and coordination of
authorization decisions and related environmental reviews. CEQ is
adopting these revisions in the final rule in Sec. Sec. 1501.2(a),
1501.7(i), 1501.9(d)(4) and (f)(4), 1502.13, 1502.24(b), 1503.3(d), and
1508.1(w).
CEQ proposed to use the term ``decision maker'' to refer to an
individual responsible for making decisions on agency actions and
``senior agency official'' to refer to the individual who oversees the
agency's overall compliance with NEPA. CEQ adopts these changes in the
final rule. There may be multiple individuals within certain
departments or agencies that have these responsibilities, including
where subunits have developed agency procedures or NEPA compliance
programs.
CEQ proposed to replace ``circulate'' or ``circulation'' with
``publish'' or ``publication'' throughout the rule and make ``publish
or publication'' a defined term in Sec. 1508.1(y), which provides
agencies with the flexibility to make environmental review and
information available to the public by electronic means not available
at the time of promulgation of the CEQ regulations in 1978. As
explained in the NPRM, historically, the practice of circulation
included mailing of hard copies or providing electronic copies on disks
or CDs. While it may be necessary to provide a hard copy or copy on
physical media in limited circumstances, agencies now provide most
documents in an electronic format by posting them online and using
email or other electronic forms of communication to notify interested
or affected parties. This change will help reduce paperwork and delays,
and modernize the NEPA process to be more accessible to the public. CEQ
finalizes these changes in Sec. Sec. 1500.4(o), 1501.2(b)(2),
1502.9(b) and (d)(3), 1502.20, 1503.4(b) and (c), 1506.3(b)(1) and (2),
and 1506.8(c)(2).
CEQ proposed to change the term ``possible'' to ``practicable'' in
the NPRM in a number of sections of the regulations. As noted in the
NPRM, ``practicable'' is the more commonly used term in regulations to
convey the ability for something to be done,
[[Page 43316]]
considering the cost, including time required, technical and economic
feasibility, and the purpose and need for agency action. The term
``practicable,'' which is in the statute (42 U.S.C. 4331(a), (b)) and
used many times in the 1978 regulations,\70\ is consistent with notions
of feasibility, which the case law has recognized as part of the NEPA
process. See, e.g., Vt. Yankee, 435 U.S. at 551 (``alternatives must be
bounded by some notion of feasibility''); Kleppe, 427 U.S. at 414
(``[P]ractical considerations of feasibility might well necessitate
restricting the scope'' of an agency's analysis.) CEQ makes these
changes in the final rule in Sec. Sec. 1501.7(h)(1) and (2),
1501.8(b)(1), 1502.5, 1502.9(b), 1504.2, and 1506.2(b) and (c).
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\70\ See 40 CFR 1500.2(f), 1501.4(b), 1501.7, 1505.2(c),
1506.6(f) and 1506.12(a).
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Similarly, CEQ proposed to change ``no later than immediately'' to
``as soon as practicable'' in Sec. 1502.5(b), and CEQ finalizes this
change. Finally, CEQ proposed to refer to the procedures required in
Sec. 1507.3 using the term ``agency NEPA procedures'' throughout. CEQ
makes this change in the final rule.
CEQ proposed to eliminate obsolete references and provisions in
several sections of the CEQ regulations. In particular, CEQ proposed to
remove references to the 102 Monitor in 40 CFR 1506.6(b)(2) and
1506.7(c) because the publication no longer exists, and OMB Circular A-
95, which was revoked pursuant to section 7 of E.O. 12372 (47 FR 30959,
July 16, 1982), including the requirement to use State and area-wide
clearinghouses in 40 CFR 1501.4(e)(2), 1503.1(a)(2)(iii), 1505.2, and
1506.6(b)(3)(i). CEQ removes these references in the final rule.
CEQ proposed changes to citations and authorities in parts 1500
through 1508. CEQ is updating the authorities sections for each part to
correct the format. CEQ also is removing cross-references to the
sections of part 1508, ``Definitions,'' and updates or inserts new
cross-references throughout the rule to reflect revised or new
sections. CEQ makes these changes throughout the final rule.
Finally, CEQ is reorganizing chapter V of title 40 of the Code of
Federal Regulations to place the NEPA regulations into a new subchapter
A, ``National Environmental Policy Act Implementing Regulations,'' and
organizing its other regulations into their own new subchapter B,
``Administrative Procedures and Operations.'' References to ``parts
1500 through 1508'' in the proposed rule are referenced to ``this
subchapter'' in the final rule. CEQ notes that the provisions of the
NEPA regulations, which the final rule comprehensively updates, should
be read in their entirety to understand the requirements under the
modernized regulations.\71\
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\71\ While the final rule retains, in large part, the numbering
scheme used in the 1978 regulations, the final rule comprehensively
updates the prior regulations. The new regulations should be
consulted and reviewed to ensure application is consistent with the
modernized provisions. Assumptions should not be made concerning the
degree of change to, similarity to, or any interpretation of the
prior version of the regulations.
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B. Revisions To Update the Purpose, Policy, and Mandate (Part 1500)
In part 1500, CEQ proposed several revisions to update the policy
and mandate sections of the regulations to reflect statutory, judicial,
policy, and other developments since the CEQ regulations were issued in
1978. CEQ includes the proposed changes with some revisions in the
final rule.
1. Purpose and Policy (Sec. 1500.1)
In the NPRM, CEQ proposed to retitle and revise Sec. 1500.1,
``Purpose and policy,'' to align this section with the statutory text
of NEPA and certain case law, and reflect the procedural requirements
of section 102(2) (42 U.S.C. 4332(2)). These changes also are
consistent with the President's directive to CEQ to ``[i]ssue
regulations to Federal agencies for the implementation of the
procedural provisions of the Act (42 U.S.C. 4332(2)).'' E.O. 11514, as
amended by E.O. 11991, sec. 3(h). Many commenters supported these
revisions to promote more efficient and timely reviews under NEPA,
while others opposed the changes and requested that CEQ maintain the
existing language. CEQ revises this section in the final rule
consistent with its proposal.
Section 1500.1 provides that NEPA is a procedural statute intended
to ensure Federal agencies consider the environmental impacts of their
actions in the decision-making process. The Supreme Court has made
clear that NEPA is a procedural statute that does not mandate
particular results; ``[r]ather, NEPA imposes only procedural
requirements on [F]ederal agencies with a particular focus on requiring
agencies to undertake analyses of the environmental impact of their
proposals and actions.'' Pub. Citizen, 541 U.S. at 756-57 (citing
Methow Valley, 490 U.S. at 349-50); see also Vt. Yankee, 435 U.S. at
558 (``NEPA does set forth significant substantive goals for the
Nation, but its mandate to the agencies is essentially procedural.'').
As proposed in the NPRM, CEQ revises Sec. 1500.1(a) to summarize
section 101 of the Act (42 U.S.C. 4331) and to reflect that section
102(2) establishes the procedural requirements to carry out the policy
stated in section 101. CEQ revises Sec. 1500.1(a) consistent with the
case law to reflect that the purpose and function of NEPA is satisfied
if Federal agencies have considered relevant environmental information
and the public has been informed regarding the decision-making process,
and to reflect that NEPA does not mandate particular results or
substantive outcomes. Marsh, 490 U.S. at 373-74; Vt. Yankee, 435 U.S.
at 558. CEQ replaces the vague reference to ``action-forcing''
provisions ensuring that Federal agencies act ``according to the letter
and spirit of the Act'' (as well as consistently with their organic and
program-specific governing statutes) with a more specific reference to
the consideration of environmental impacts of their actions in agency
decisions. These changes codify the Supreme Court's interpretation of
section 102 in two important respects: Section 102 ``ensures that the
agency, in reaching its decision, will have available, and will
carefully consider, detailed information concerning significant
environmental impacts; it also guarantees that the relevant information
will be made available to the larger audience that may also play a role
in both the decision[-]making process and the implementation of that
decision.'' Methow Valley, 490 U.S. at 349; see also Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 23 (2008); Pub. Citizen, 541 U.S.
at 756-58.
Consistent with CEQ's proposal in the NPRM, CEQ revises Sec.
1500.1(b) to describe the NEPA regulations as revised in this final
rule. In particular, CEQ revises this paragraph to reflect that the
regulations include direction to Federal agencies to determine what
actions are subject to NEPA's procedural requirements and the level of
NEPA review, where applicable. The revisions also ensure that Federal
agencies identify and consider relevant environmental information early
in the process in order to promote informed decision making. These
revisions reduce unnecessary burdens and delays consistent with E.O.
13807 and the purposes of the regulations as originally promulgated in
1978. These amendments emphasize that the policy of integrating NEPA
with other environmental reviews is to promote concurrent and timely
reviews and decision making consistent with statutes, Executive orders,
and CEQ guidance. See, e.g., 42 U.S.C. 5189g; 23 U.S.C. 139; 42 U.S.C.
4370m et seq.; E.O. 13604; E.O. 13807; Mitigation
[[Page 43317]]
Guidance, supra note 29, and Timely Environmental Reviews Guidance,
supra note 29.
2. Remove and Reserve Policy (Sec. 1500.2)
CEQ proposed to remove and reserve 40 CFR 1500.2, ``Policy.'' The
section included language that is identical or similar to language in
E.O. 11514, as amended. That Executive order directed CEQ to develop
regulations that would make the ``[EIS] process more useful to decision
makers and the public; and . . . reduce paperwork and the accumulation
of extraneous background data, in order to emphasize the need to focus
on real environmental issues and alternatives.'' See E.O. 11514, as
amended by E.O. 11991, sec. 3(h). The Executive order also directed CEQ
to require EISs to be ``concise, clear and to the point, and supported
by evidence that agencies have made the necessary environmental
analyses.'' Id. CEQ proposed to remove this section because it is
duplicative of other sections of the regulations, thereby eliminating
redundancy. CEQ is making this change in the final rule.
Specifically, 40 CFR 1500.2(a) restated the statutory text in
section 102 of NEPA (42 U.S.C. 4332) and is duplicative of language in
Sec. 1500.6, ``Agency authority,'' requiring each agency to interpret
the provisions of NEPA as a supplement to its existing authority and as
a mandate to view policies and missions in light of the Act's national
environmental objectives. Paragraph (b) required agencies to implement
procedures to make the NEPA process more useful to decision makers and
the public; reduce paperwork and accumulation of extraneous background
data; emphasize relevant environmental issues and alternatives; and
make EISs concise, clear, and to the point and supported by evidence
that thy have made the necessary analyses. This paragraph is
duplicative of language in Sec. 1502.1, ``Purpose of environmental
impact statement,'' and paragraphs (c) through (i) of Sec. 1500.4,
``Reducing paperwork.''
Paragraph (c) of 40 CFR 1500.2, requiring agencies to integrate
NEPA requirements with other planning and review procedures to run
concurrently rather than consecutively, is duplicative of language in
Sec. 1502.24, ``Environmental review and consultation requirements,''
Sec. 1501.2, ``Apply NEPA early in the process,'' Sec. 1501.9,
``Scoping,'' and Sec. 1500.4, ``Reducing paperwork.'' Paragraph (d)
encouraging public involvement is duplicative of sections that direct
agencies to provide notice and information to and seek comment from the
public regarding proposed actions and environmental documents,
including provisions in Sec. 1506.6, ``Public involvement,'' Sec.
1501.9, ``Scoping,'' and Sec. 1503.1, ``Inviting comments and
requesting information and analyses.'' \72\ Paragraph (e), which
required agencies to use the NEPA process to identify and assess
reasonable alternatives to proposed actions that will avoid or minimize
adverse effects, is duplicative of language in Sec. 1502.1, ``Purpose
of environmental impact statement,'' and paragraph (c) of Sec. 1505.2,
``Record of decision in cases requiring environmental impact
statements.''
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\72\ Section 1506.6 includes detailed provisions directing
agencies to facilitate public involvement, including by providing
the public with notice regarding actions, holding or sponsoring
public hearings, and providing notice of NEPA-related hearings,
public meetings, and other opportunities for public involvement, and
the availability of environmental documents. Section 1501.9 requires
agencies to issue a public notice regarding proposed actions for
which the agencies will be preparing an EIS and to include specific
information for, and to solicit information from the public
regarding such proposed actions. Section 1503 provides direction to
agencies regarding inviting comments from the public and requesting
information and analyses.
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Paragraph (f) of 40 CFR 1500.2 required agencies to use all
practicable means, consistent with 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. The
rule specifically directs agencies to consider reasonable alternatives
to avoid or minimize adverse environmental impacts in Sec. 1502.1,
``Purpose of environmental impact statement.'' The final rule also
provides direction to agencies about the relevant environmental
information to be considered in the decision-making process, including
potential adverse effects and alternatives, and expressly directs
agencies to identify alternatives considered (Sec. Sec. 1502.14 and
1502.16), and to state in their RODs whether they have adopted all
practicable means to avoid or minimize environmental harm from the
alternative selected (Sec. 1505.2).
3. NEPA Compliance (Sec. 1500.3)
CEQ proposed numerous changes and additions to Sec. 1500.3, ``NEPA
compliance,'' including the addition of paragraph headings to improve
readability. In paragraph (a), ``Mandate,'' CEQ proposed to update the
authorities under which it issues the regulations. CEQ adds these
references, including to E.O. 13807, in the final rule. In the NPRM,
CEQ proposed to add a sentence to this paragraph regarding agency NEPA
procedures not imposing additional procedures or requirements beyond
those set forth in the regulations. To address confusion expressed by
some commenters, CEQ does not include this sentence in the final rule
because it includes this requirement in Sec. 1507.3, ``Agency NEPA
procedures.''
CEQ proposed to add a new paragraph (b), ``Exhaustion,'' to
summarize public comment requirements and an exhaustion requirement.
Specifically, CEQ proposed in paragraph (b)(1) to require that, in a
NOI to prepare an EIS, agencies request comments from interested
parties on the potential effects of and potential alternatives to
proposed actions, and also request that interested parties identify any
relevant information, studies, or analyses of any kind concerning such
effects. CEQ includes this provision in the final rule to ensure that
agencies solicit and consider relevant information early in the
development of an EIS.
In paragraph (b)(2) of Sec. 1500.3, CEQ proposed to require that
the EIS include a summary of all the comments received for
consideration in developing the EIS. CEQ includes this provision in the
final rule with some changes. For consistency with the language in
Sec. 1502.17, the final rule specifies that the draft and final EISs
must include a summary of ``all alternatives, information, and
analyses.'' Also, in response to comments requesting clarification on
the meaning of ``public commenters,'' the final rule changes this
phrase in paragraphs (b)(2) and (3) of Sec. 1500.3 and in Sec.
1502.17 to ``State, Tribal, and local governments and other public
commenters'' for consistency with Sec. Sec. 1501.9 and 1506.6 and to
clarify that public commenters includes governments as well as other
commenters such as organizations, associations, and individuals.
In paragraph (b)(3) of Sec. 1500.3, CEQ proposed to require that
public commenters timely submit comments on draft EISs and any
information on environmental impacts or alternatives to a proposed
action to ensure informed decision making by Federal agencies. CEQ
further proposed to provide that comments not timely raised and
information not provided shall be deemed unexhausted and forfeited.
This reinforces the principle that parties may not raise claims based
on issues they themselves did not raise during the public comment
period. See, e.g., Pub. Citizen, 541 U.S. at 764-65 (finding claims
forfeited because respondents had not raised particular objections to
the EA in their comments); Karst Envtl. Educ. & Prot., Inc. v. Fed.
Highway Admin., 559 Fed. Appx. 421, 426-27
[[Page 43318]]
(6th Cir. 2014) (concluding that comments did not raise issue with
``sufficient clarity'' to alert the Federal Highway Administration to
concerns); Friends of the Norbeck v. U.S. Forest Serv., 661 F.3d 969,
974 (8th Cir. 2011) (concluding that comments were insufficient to give
the Forest Service an opportunity to consider claim and that judicial
review was therefore improper); Exxon Mobil Corp. v. U.S. EPA, 217 F.3d
1246, 1249 (9th Cir. 2000) (arguments not raised in comments are
waived); Ass'n of Mfrs. v. Dep't of the Interior, 134 F.3d 1095, 1111
(D.C. Cir. 1998) (failure to raise argument in rulemaking constitutes
failure to exhaust administrative remedies). Finally, CEQ proposed to
require that the public raise any objections to the submitted
alternatives, information, and analyses section within 30 days of the
notice of availability of the final EIS.
The final rule includes paragraph (b)(3) with some modifications.
The final rule requires State, Tribal, and local governments and other
public commenters to submit comments within the comment periods
provided under Sec. 1503.1 and that comments be as specific as
possible under Sec. 1503.3. The rule specifies that comments or
objections of any kind not submitted ``shall be forfeited as
unexhausted'' to clarify any ambiguity about forfeiture and exhaustion.
CEQ received comments opposing the proposal to require the public to
raise objections to the submitted alternatives, information, and
analyses section within 30 days of the notice of availability of the
final EIS. The final rule does not include the proposed mandatory 30-
day comment period. However, Sec. 1506.11 retains from the 1978
regulations the 30-day waiting period prior to issuance of the ROD,
subject to limited exceptions, and under Sec. 1503.1(b), agencies may
solicit comments on the final EIS if they so choose. Each commenter
should put its own comments into the record as soon as practicable to
ensure that the agency has adequate time to consider the commenter's
input as part of the agency's decision-making process. Finally, to
ensure commenters timely identify issues, CEQ expresses its intention
that commenters rely on their own comments and not those submitted by
other commenters in any subsequent litigation, except where otherwise
provided by law.
CEQ also proposed in paragraph (b)(4) of Sec. 1500.3 to require
that the agency decision maker certify in the ROD that the agency has
considered all of the alternatives, information, and analyses submitted
by public commenters based on the summary in the EIS. CEQ includes this
section in the final rule with some modifications. The final rule
requires the decision maker, informed by the final EIS (including the
public comments, summary thereof, and responses thereto) and other
relevant material in the record, certify that she or he considered the
alternatives, information, and analyses submitted by States, Tribes,
and local governments and other public commenters. Relevant material
includes both the draft and final EIS as well as any supporting
materials incorporated by reference or appended to the document. The
final rule does not specify the decision maker ``for the lead agency''
to account for multiple decision makers, consistent with the OFD
policy.
CEQ proposed to add a new paragraph (c), ``Review of NEPA
compliance,'' to Sec. 1500.3 to reflect the development of case law
since the promulgation of the CEQ regulations. Specifically, CEQ
proposed to revise the sentence regarding timing of judicial review to
strike references to the filing of an EIS or FONSI and replace them
with the issuance of a signed ROD or the taking of another final agency
action. CEQ includes this change in the final rule. Judicial review of
NEPA compliance for agency actions can occur only under the APA, which
requires finality. 5 U.S.C. 704. A private right of action to enforce
NEPA, which is lacking, would be required to review non-final agency
action. In addition, non-final agency action may not be fit for
judicial review as a matter of prudential standing. See Abbott Labs v.
Gardner, 387 U.S. 136, 148-49 (1967). Under the APA, judicial review
does not occur until an agency has taken final agency action. Bennett
v. Spear, 520 U.S. 154, 177-78 (1997) (``[T]he action must mark the
`consummation' of the agency's decision[-]making process--it must not
be of a merely tentative or interlocutory nature. And second, the
action must be one by which `rights or obligations have been
determined' or from which `legal consequences will flow''' (citations
omitted)). Because NEPA's procedural requirements apply to proposals
for agency action, judicial review should not occur until the agency
has completed its decision-making process, and there are ``direct and
appreciable legal consequences.'' Id. at 178. Final agency action for
judicial review purposes is not necessarily when the agency publishes
the final EIS, issues a FONSI, or makes the determination to
categorically exclude an action.
CEQ also proposed in paragraph (c) to clarify that any allegation
of noncompliance be resolved as expeditiously as possible, and that
agencies may structure their decision making to allow private parties
to seek agency stays or provide for efficient mechanisms, such as
imposition of bonds, for seeking, granting, and imposing conditions on
stays. The final rule clarifies that it is CEQ's intention that any
allegation of noncompliance be resolved as expeditiously as possible.
The final rule also clarifies that agencies may structure their
procedures consistent with their organic statutes, and as part of
implementing the exhaustion provisions in paragraph (b) of Sec.
1500.3, to include an appropriate bond or other security requirement to
protect against harms associated with delays.
Consistent with their statutory authorities, agencies may impose,
as appropriate, bond and security requirements or other conditions as
part of their administrative processes, including administrative
appeals, and a prerequisite to staying their decisions, as courts do
under rule 18 of the Federal Rules of Appellate Procedure and other
rules.\73\ See, e.g., Fed. R. App. P. 18(b); Fed. R. App. P.
8(a)(2)(E); Fed. R. Civ. P. 65(c); Fed. R. Civ. P. 62(b); Fed. R. Civ.
P. 62(d). CEQ notes that there is no ``NEPA exception'' that exempts
litigants bringing NEPA claims from otherwise applicable bond or
security requirements or other appropriate conditions, and that some
courts have imposed substantial bond requirements in NEPA cases. See,
e.g., Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1125-26 (9th
Cir. 2005) (concluding that district court's imposition of a $50,000
bond was appropriate and supported by the record); Stockslager v.
Carroll Elec. Co-op Corp., 528 F.2d 949 (8th Cir. 1976) (concluding
that district court's imposition of a $10,000 bond was appropriate).
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\73\ See, e.g., 26 CFR 2.6 (Bureau of Indian Affairs' regulatory
provision that allows a person that believes he or she may suffer a
measurable and substantial financial loss as a result of the delay
caused by an appeal to request that the official require the posting
of a reasonable bond).
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CEQ proposed to add a new paragraph (d), ``Remedies,'' to Sec.
1500.3. CEQ proposed to state explicitly that harm from the failure to
comply with NEPA can be remedied by compliance with NEPA's procedural
requirements, and that CEQ's regulations do not create a cause of
action for violation of NEPA. The statute does not create any cause of
action, and agencies may not create private rights of action by
regulation; ``[l]ike substantive [F]ederal law itself, private rights
of action to enforce [F]ederal law must be created by Congress.''
Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (citing Touche Ross
[[Page 43319]]
& Co. v. Redington, 442 U.S. 560, 578 (1979)). This is particularly
relevant where, as here, the counterparty in any action to enforce NEPA
would be a Federal officer or agency. See San Carlos Apache Tribe v.
United States, 417 F.3d 1091, 1096-97 (9th Cir. 2005) (``[C]reating a
direct private action against the federal government makes little sense
in light of the administrative review scheme set out in the APA.'').
The CEQ regulations create no presumption that violation of NEPA is
a basis for injunctive relief or for a finding of irreparable harm. As
the Supreme Court has held, the irreparable harm requirement, as a
prerequisite to the issuance of preliminary or permanent injunctive
relief, is neither eliminated nor diminished in NEPA cases. A showing
of a NEPA violation alone does not warrant injunctive relief and does
not satisfy the irreparable harm requirement. See Monsanto Co. v.
Geertson Seed Farms, 561 U.S. 139, 157 (2010) (``[T]he statements
quoted [from prior Ninth Circuit cases] appear to presume that an
injunction is the proper remedy for a NEPA violation except in unusual
circumstances. No such thumb on the scales is warranted.''); Winter,
555 U.S. at 21-22, 31-33; see also Amoco Prod. Co. v. Vill. of Gambell,
480 U.S. 531, 544-45 (1987) (rejecting proposition that irreparable
damage is presumed when an agency fails to evaluate thoroughly the
environmental impact of a proposed action). Moreover, a showing of
irreparable harm in a NEPA case does not entitle a litigant to an
injunction or a stay. See Winter, 555 U.S. at 20 (``A plaintiff seeking
a preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor,
and that an injunction is in the public interest.'') (emphasis added);
Geertson Seed Farms, 561 U.S. at 157 (``The traditional four-factor
test applies when a plaintiff seeks a permanent injunction to remedy a
NEPA violation . . . . An injunction should issue only if the
traditional four-factor test is satisfied.'').
Consistent with the Supreme Court's analysis in Geertson Seed
Farms, agencies (as well as applicants) should give practical
consideration to measures that might serve to anticipate, reduce, or
eliminate possible adverse effects from a project. To the extent such
measures are incorporated into an agency's ROD, they may provide
grounds upon which a court, presented with an alleged violation of
NEPA, might reasonably conclude that injunctive relief is not warranted
because the measures prevent any irreparable harm from occurring. See
Sec. 1505.3. For example, regular inspections or requirements that
applicants obtain third-party insurance, for example, might constitute
such measures in certain circumstances. Inspections can reveal defects
before they cause harm. Third-party insurers, because of their exposure
to risk, have an economic incentive to conduct thorough inspections,
facilitating discovery of defects. Such measures would be relevant to
whether a valid claim of irreparable harm has been established.
CEQ also proposed to state that any actions to review, enjoin,
vacate, stay, or alter an agency decision on the basis of an alleged
NEPA violation be raised as soon as practicable to avoid or minimize
any costs to agencies, applicants, or any affected third parties. As
reflected in comments received in response to the ANPRM, delays have
the potential to result in substantial costs. CEQ also proposed to
replace the language providing that trivial violations should not give
rise to an independent cause of action with language that states that
minor, non-substantive errors that have no effect on agency decision
making shall be considered harmless and shall not invalidate an agency
action. Invalidating actions due to minor errors does not advance the
goals of the statute and adds delays and costs. CEQ includes paragraph
(d) in the final rule with a change to clarify that it is CEQ's
intention that the regulations create no presumption that violation of
NEPA is a basis for injunctive relief or for a finding of irreparable
harm. As noted above, NEPA is a procedural statute and any harm is thus
reparable by providing the necessary environmental documentation in
accordance with the Act and these regulations. CEQ also adds ``vacate,
or otherwise'' to the types of actions that may alter a decision to
address situations where there may be a nationwide or other vacatur and
``after final agency action'' to clarify when the actions should be
raised.
Finally, CEQ proposed to add a new paragraph (e), ``Severability,''
to Sec. 1500.3 to address the possibility that this rule, or portions
of this rule, may be challenged in litigation. CEQ finalizes this
paragraph as proposed, correcting the cross reference. As stated in the
NPRM, it is CEQ's intention that the individual sections of this rule
be severable from each other, and that if a court stays or invalidates
any sections or portions of the regulations, this will not affect the
validity of the remainder of the sections, which will continue to be
operative.
4. Reducing Paperwork and Delay (Sec. Sec. 1500.4 and 1500.5)
In the NPRM, CEQ proposed to reorder the paragraphs in Sec.
1500.4, ``Reducing paperwork,'' and Sec. 1500.5, ``Reducing delay,''
for a more logical ordering, consistent with the three levels of NEPA
review. CEQ also proposed edits to Sec. Sec. 1500.4 and 1500.5 for
consistency with proposed edits to the cross-referenced sections. CEQ
makes these proposed changes in the final rule. Additionally, the final
rule revises the language in paragraphs (a) and (b) of Sec. Sec.
1500.4 and 1500.5 to make the references to CEs and FONSIs consistent
with the language in Sec. Sec. 1501.4(a) and 1501.6(a), respectively.
CEQ also proposed conforming edits to Sec. 1500.4(c) to broaden the
paragraph to include EAs by changing ``environmental impact
statements'' to ``environmental documents'' and changing ``setting'' to
``meeting'' since page limits would be required for both EAs and EISs.
CEQ makes these changes in the final rule and corrects the cross-
reference. CEQ revises paragraph (h) of Sec. 1500.4 to add ``e.g.'' to
the citations to clarify that these are just examples of the useful
portions of EISs and to correct the cross-reference to background
material from Sec. 1502.16 to Sec. 1502.1. CEQ revises the citations
in paragraph (k) of Sec. 1500.4 to make them sequential. Finally, CEQ
revises paragraph (d) of Sec. 1500.5 for clarity.
5. Agency Authority (Sec. 1500.6)
CEQ proposed to add a savings clause to Sec. 1500.6, ``Agency
authority,'' to clarify that the CEQ regulations do not limit an
agency's other authorities or legal responsibilities. This
clarification is consistent with section 104 of NEPA (42 U.S.C. 4334),
section 2(g) of E.O. 11514, and the 1978 regulations, but acknowledges
the possibility of different statutory authorities that may set forth
different requirements, such as timeframes. In the final rule, CEQ
makes the proposed changes and clarifies further that agencies
interpret the provisions of the Act as a mandate to view the agency's
policies and missions in the light of the Act's national environmental
objectives, to the extent NEPA is consistent with the agency's existing
authority. This is consistent with E.O. 11514, which provides that
Federal agencies shall ``[i]n carrying out their responsibilities under
the Act and this Order, comply with the [CEQ regulations] except where
such compliance would be inconsistent with statutory requirements.''
E.O. 11514, as amended by E.O. 11991, sec. 2(g). CEQ also proposed to
clarify that compliance
[[Page 43320]]
with NEPA means the Act ``as interpreted'' by the CEQ regulations. CEQ
makes this change in the final rule in Sec. 1500.6, as well as in
Sec. Sec. 1502.2(d) and 1502.9(b), to clarify that agencies should
implement the statute through the framework established in these
regulations. Finally, CEQ revises the sentence explaining the meaning
of the phrase ``to the fullest extent possible'' in section 102, to
replace ``unless existing law applicable to the agency's operations
expressly prohibits or makes compliance impossible'' with ``consistent
with Sec. 1501.1.'' As discussed in section II.C.1, Sec. 1501.1 sets
forth threshold considerations for assessing whether NEPA applies or is
otherwise fulfilled, including considerations related to other statutes
with which agencies must comply.
C. Revisions to NEPA and Agency Planning (Part 1501)
CEQ proposed significant changes to modernize and clarify part
1501. CEQ proposed to replace the current 40 CFR 1501.1, ``Purpose,''
because it is unnecessary and duplicative, with a new section, ``NEPA
threshold applicability analysis,'' to address threshold considerations
of NEPA applicability. CEQ proposed to add additional sections to
address the level of NEPA review and CEs. CEQ further proposed to
consolidate and clarify provisions on EAs and FONSIs, and relocate to
part 1501 from part 1502 the provisions on tiering and incorporation by
reference. CEQ also proposed to set presumptive time limits for the
completion of NEPA reviews, and clarify the roles of lead and
cooperating agencies to further the OFD policy and encourage more
efficient and timely NEPA reviews. CEQ makes many of these changes in
the final rule with modifications as discussed further in this section.
1. NEPA Thresholds (Sec. 1501.1)
Since the enactment of NEPA, courts have examined the applicability
of NEPA to proposed agency activities and decisions, based on a variety
of considerations. Courts have found that NEPA is inapplicable when an
agency's statutory obligations clearly or fundamentally conflict with
NEPA compliance; when Congress has established requirements under
another statute that displace NEPA compliance in some fashion; when an
agency is carrying out a non-discretionary duty or obligation (in whole
or in part); or when environmental review and public participation
procedures under another statute satisfy the requirements (i.e., are
functionally equivalent) of NEPA.
CEQ proposed a new Sec. 1501.1 to provide a series of
considerations to assist agencies in a threshold analysis for
determining whether NEPA applies to a proposed activity or whether NEPA
is satisfied through another mechanism. CEQ proposed to title this
section ``NEPA threshold applicability analysis'' in the NPRM. CEQ
includes this provision in the final rule at Sec. 1501.1, ``NEPA
thresholds.'' This section recognizes that the application of NEPA by
Congress and the courts has evolved over the last four decades in light
of numerous other statutory requirements implemented by Federal
agencies. CEQ reorders these considerations in the final rule and adds
a new consideration to paragraph (a)(1)--whether another statute
expressly exempts a proposed activity or decision from NEPA. See, e.g.,
15 U.S.C. 793(c)(1) (exempting Environmental Protection Agency (EPA)
actions under the Clean Air Act); 33 U.S.C. 1371(c)(1) (exempting
certain EPA actions under the Clean Water Act); 42 U.S.C. 5159
(exempting certain actions taken or assistance provided within a
Presidentially declared emergency or disaster area); and 16 U.S.C.
3636(a) (exempting regulation of Pacific salmon fishing).
The second consideration in paragraph (a)(2) is whether compliance
with NEPA would clearly and fundamentally conflict with the
requirements of another statute. See, e.g., Flint Ridge Dev. Co. v.
Scenic Rivers Ass'n, 426 U.S. 776, 791 (1976) (concluding that the
Secretary of Housing and Urban Development could not comply with NEPA's
EIS requirement because it conflicted with requirements of the
Interstate Land Sales Full Disclosure Act). The third consideration in
paragraph (a)(3) is whether compliance with NEPA would be inconsistent
with congressional intent expressed in another statute. See, e.g.,
Douglas County v. Babbitt, 48 F.3d 1495, 1503 (9th Cir. 1995) (holding
that NEPA was displaced by the Endangered Species Act's procedural
requirements for designating critical habitat); and Merrell v. Thomas,
807 F.2d 776, 778-80 (9th Cir. 1986) (holding that NEPA did not apply
to the EPA's registration of pesticides under the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA)).
The fourth and fifth considerations in paragraphs (a)(4) and (5)
are whether the proposed activity or decision meets the definition of a
major Federal action generally and whether the proposed activity or
decision does not meet the definition because it is non-discretionary
such that the agency lacks authority to consider environmental effects
as part of its decision-making process. See, e.g., Pub. Citizen, 541
U.S. at 768-70 (concluding that, because the Federal Motor Carrier
Safety Administration lacked discretion to prevent the entry of Mexican
trucks into the United States, the agency did not need to consider
under NEPA the environmental effects of Mexican trucks' cross-border
operations that the President authorized); Nat'l Wildlife Fed'n v.
Sec'y of the U.S. Dep't. of Transp., 2020 U.S. App. LEXIS 17723, at
*15-18 (6th Cir. June 5, 2010) (applying Public Citizen and finding
NEPA not applicable as EPA lacked discretion to reject Clean Water Act
oil spill response plans that satisfied enumerated criteria); Citizens
Against Rails-To-Trails v. Surface Transp. Bd., 267 F.3d 1144, 1152-54
(D.C. Cir. 2001) (concluding that because the Surface Transportation
Board lacked significant discretion regarding issuance of a certificate
of interim trail use under the National Trails System Act, NEPA was not
applicable); South Dakota v. Andrus, 614 F.2d 1190, 1193-95 (8th Cir.
1980) (concluding that the granting of a mineral patent for a mining
claim was a non-discretionary, ministerial act and non-discretionary
acts should be exempt from NEPA). Consistent with Public Citizen, 541
U.S. at 768-70, NEPA applies to the portion of an agency decision that
is discretionary. In Public Citizen, the Supreme Court considered
whether the Federal Motor Carrier Safety Administration was required to
consider the effects of a non-discretionary action in its NEPA document
and concluded that it was not required to do so because it had no
authority to prevent the cross-border entry of Mexican motor carriers,
which was the result of presidential action. Id.
Finally, the sixth consideration in paragraph (a)(6) is whether the
proposed action is an action for which another statute's requirements
serve the function of agency compliance with NEPA. See, e.g., Envtl.
Def. Fund, Inc. v. U.S. EPA, 489 F.2d 1247, 1256-57 (D.C. Cir. 1973)
(concluding that the substantive and procedural standards of FIFRA were
functionally equivalent to NEPA and therefore formal compliance was not
necessary); W. Neb. Res. Council v. U.S. EPA, 943 F.2d 867, 871-72 (8th
Cir. 1991) (finding that the procedures of the Safe Drinking Water Act
were functionally equivalent to those required by NEPA); Cellular Phone
Taskforce v. Fed. Commc'ns Comm'n, 205 F.3d 82, 94-95 (2d Cir. 2000)
(concluding that the procedures followed by the Federal Communications
Commission were
[[Page 43321]]
functionally compliant with EA and FONSI requirements under NEPA).
Paragraph (b) of Sec. 1501.1 clarifies that agencies can make this
determination in their agency NEPA procedures in accordance with Sec.
1507.3(d) or on a case-by-case basis. The final rule adds a new
paragraph (b)(1) to state that agencies may request assistance from CEQ
in making a case-by-case determination under this section, and a new
paragraph (b)(2) to require agencies to consult with other Federal
agencies for their concurrence when making a determination where more
than one Federal agency administers the statute (e.g., the Endangered
Species Act (ESA)). Agencies may document these consultations, as
appropriate. Agencies will only apply the thresholds in this section
after consideration on a case-by-case basis, or after agencies have
determined whether and how to incorporate them into their own agency
NEPA procedures.
Some agencies already include information related to the
applicability of NEPA to their actions in their agency NEPA procedures.
For example, EPA's NEPA procedures include an applicability provision
that explains which EPA actions NEPA does not apply to, including
actions under the Clean Air Act and certain actions under the Clean
Water Act. See 40 CFR 6.101. The final rule codifies the agency
practice of including this information in agency NEPA procedures but
also provides agencies' flexibility to make case-by-case determinations
as needed.
2. Apply NEPA Early in the Process (Sec. 1501.2)
CEQ proposed to amend Sec. 1501.2, ``Apply NEPA early in the
process,'' designating the introductory paragraph as paragraph (a) and
changing ``shall'' to ``should'' and ``possible'' to ``reasonable.''
CEQ makes these changes in the final rule. Agencies need the discretion
to structure the timing of their NEPA processes to align with their
decision-making processes, consistent with their statutory authorities.
Agencies also need flexibility to determine the appropriate time to
start the NEPA process, based on the context of the particular proposed
action and governed by the rule of reason, so that the NEPA analysis
meaningfully informs the agency's decision. The appropriate time to
begin the NEPA process is dependent on when the agency has sufficient
information, and on how it can most effectively integrate the NEPA
review into the agency's decision-making process. Further, some courts
have viewed this provision as a legally enforceable standard, rather
than an opportunity for agencies to integrate NEPA into their decision-
making programs and processes. See, e.g., N.M. ex rel. Richardson v.
Bureau of Land Mgmt., 565 F.3d 683 (10th Cir. 2009); Metcalf v. Daley,
214 F.3d 1135 (9th Cir. 2000). As discussed above, only final agency
action is subject to judicial review under the APA. CEQ's view is that
agencies should have discretion with respect to timing, consistent with
the regulatory provisions in Sec. Sec. 1501.11 and 1502.4 for
deferring NEPA analysis to appropriate points in the decision-making
process. As noted in the NPRM, this change is consistent with CEQ
guidance that agencies should ``concentrate on relevant environmental
analysis'' in their EISs rather than ``produc[ing] an encyclopedia of
all applicable information.'' Timely Environmental Reviews Guidance,
supra note 29; see also Sec. Sec. 1500.4(b), 1502.2(a). Therefore, CEQ
makes these changes to clarify that agencies have discretion to
structure their NEPA processes in accordance with the rule of reason.
CEQ also proposed to change ``possible'' to ``reasonable'' in paragraph
(b)(4)(iii) and ``shall'' to ``should'' in the introductory paragraph
of Sec. 1502.5 for consistency with the changes to Sec. 1501.2. CEQ
makes these changes in the final rule.
CEQ also proposed to change ``planning and decisions reflect
environmental values'' to ``agencies consider environmental impacts in
their planning and decisions'' in paragraph (a). CEQ makes this change
in the final rule because ``consider environmental impacts'' provides
more explicit direction to agencies and is more consistent with the Act
and the CEQ regulations.
CEQ proposed to redesignate the remaining paragraphs in Sec.
1501.2 to list out other general requirements for agencies. In
paragraph (b)(1), the final rule removes the direct quote of NEPA
consistent with the Federal Register's requirements for the Code of
Federal Regualtions. In paragraph (b)(2), CEQ proposed to clarify that
agencies should consider economic and technical analyses along with
environmental effects. This change is consistent with section 102(2)(B)
of NEPA, which directs agencies, in consultation with CEQ, to identify
and develop methods and procedures to ensure environmental amenities
and values are considered along with economic and technical
considerations in decision making. CEQ makes this change in the final
rule and revises the second sentence in this paragraph to qualify that
agencies must review and publish environmental documents and
appropriate analyses at the same time as other planning documents
``whenever practicable.'' CEQ recognizes that it is not always
practicable to publish such documents at the same time because it can
delay publication of one or the other. Finally, CEQ proposed to amend
paragraph (b)(4)(ii) to change ``agencies'' to ``governments''
consistent with and in support of government-to-government consultation
pursuant to E.O. 13175 \74\ and E.O. 13132, ``Federalism.'' \75\ CEQ
makes these changes in the final rule.
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\74\ Supra note 69.
\75\ 64 FR 43255 (Aug. 10, 1999).
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3. Determine the Appropriate Level of NEPA Review (Sec. 1501.3)
As discussed in the NPRM, NEPA requires a ``detailed statement''
for ``major Federal actions significantly affecting the quality of the
human environment.'' 42 U.S.C. 4332(2)(C). To determine whether an
action requires such a detailed statement, the 1978 regulations
provided three levels of review for Federal agencies to assess
proposals for agency action. Specifically, the CEQ regulations allow
agencies to review expeditiously those actions that normally do not
have significant effects by using CEs or, for actions that are not
likely to have significant effects, by preparing EAs. By using CEs and
EAs whenever appropriate, agencies then can focus their limited
resources on those actions that are likely to have significant effects
and require the ``detailed statement,'' or EIS, required by NEPA.
While the 1978 CEQ regulations provided for these three levels of
NEPA review, they do not clearly set out the decisional framework by
which agencies should assess their proposed actions and select the
appropriate level of review. To provide this direction and clarity, the
NPRM proposed to add a new section at Sec. 1501.3, ``Determine the
appropriate level of NEPA review.'' The proposal described the three
levels of NEPA review and the basis upon which an agency makes a
determination regarding the appropriate level of review for a proposed
action. CEQ includes the proposal in the final rule at paragraph (a) of
Sec. 1501.3.
CEQ proposed to address the consideration of significance in
paragraph (b) since it is central to determining the appropriate level
of review. CEQ proposed to move the language from 40 CFR 1508.27,
``Significantly,'' since it did not contain a definition, but rather
set forth factors for considering whether an effect is significant, to
paragraph (b). CEQ also proposed to eliminate most of the
[[Page 43322]]
factors in favor of a simpler, more flexible approach for agencies to
assess significance. Specifically, CEQ proposed to change ``context''
to ``potentially affected environment'' and ``intensity'' to ``degree''
to provide greater clarity as to what agencies should consider in
assessing potential significant effects. The phrase ``potentially
affected environment'' relates more closely to physical, ecological,
and socio-economic aspects than ``context.'' The final rule reorganizes
several factors formerly categorized under ``intensity'' to clarify
further this distinction. The final rule uses the term ``degree''
because some effects may not necessarily be of an intense or severe
nature, but nonetheless should be considered when determining
significance. While 40 CFR 1508.27 used several different words to
explain what was meant by ``intensity,'' it also used ``degree''
numerous times. Therefore, the consistent use of ``degree'' throughout
is clearer. In the final rule, CEQ includes these proposed changes in
paragraph (b) with some additional revisions in response to comments.
CEQ clarifies in paragraph (b)(1) that agencies ``should'' (rather than
``may'') consider the affected area specific to the proposed action,
consistent with the construction of paragraph (b)(2), and the affected
area's resources. The final rule includes one example, listed species
and designated critical habitat under the Endangered Species Act, but
this could include any type of resource such as historic, cultural, or
park lands. The final rule also modifies the example of significance
varying with the setting, because there was some misunderstanding of
the proposed change from ``world'' to ``Nation.'' This sentence merely
serves as an example. Consistent with the NPRM, paragraph (b)(2)
addresses considerations of the degree of effects. CEQ moves short- and
long-term effects from ``affected environment'' in (b)(1) to ``degree''
in paragraph (b)(2)(i). CEQ proposed to exclude consideration of
controversy (40 CFR 1508.27(b)(4)) because the extent to which effects
may be controversial is subjective and is not dispositive of effects'
significance. Further, courts have interpreted controversy to mean
scientific controversy, which the final rule addresses within the
definition of effects, as the strength of the science informs whether
an effect is reasonably foreseeable. The controversial nature of a
project is not relevant to assessing its significance.
Additionally, CEQ proposed to remove the reference in 40 CFR
1508.27(b)(7) to ``[s]ignificance cannot be avoided by terming an
action temporary or by breaking it down into small component parts''
because this is addressed in the criteria for scope in Sec. Sec.
1501.9(e) and 1502.4(a), which would provide that agencies evaluate in
a single EIS proposals or parts of proposals that are related closely
enough to be, in effect, a single course of action. Commenters noted
that Sec. Sec. 1501.9 and 1502.4 are applicable only to EISs.
Therefore, in the final rule CEQ includes a sentence in paragraph (b)
stating that agencies should consider connected actions when
determining the significance of the effects of the proposed action.
4. Categorical Exclusions (Sec. 1501.4)
Under the 1978 regulations, agencies could categorically exclude
actions from detailed review where the agency has found in its agency
NEPA procedures that the action normally would not have significant
effects. Over the past 4 decades, Federal agencies have developed more
than 2,000 CEs.\76\ CEQ estimates that each year, Federal agencies
apply CEs to approximately 100,000 Federal agency actions that
typically require little or no documentation.\77\ While CEs are the
most commonly used level of NEPA review, CEQ has addressed CE
development and implementation in only one comprehensive guidance
document, see CE Guidance, supra note 29, and the 1978 regulations did
not address CEs in detail.
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\76\ See Council on Environmental Quality, List of Federal
Agency Categorical Exclusions (June 18, 2020), https://ceq.doe.gov/nepa-practice/categorical-exclusions.html.
\77\ See, e.g., Council on Environmental Quality, The Eleventh
and Final Report on the National Environmental Policy Act Status and
Progress for American Recovery and Reinvestment Act of 2009
Activities and Projects (Nov. 2, 2011), https://ceq.doe.gov/docs/ceq-reports/nov2011/CEQ_ARRA_NEPA_Report_Nov_2011.pdf.
---------------------------------------------------------------------------
In response to the ANPRM, many commenters requested that CEQ update
the NEPA regulations to provide more detailed direction on the
application of CEs. To provide greater clarity, CEQ proposed to add a
new section on CEs in proposed Sec. 1501.4, ``Categorical
exclusions,'' to address in more detail the process by which an agency
considers whether a proposed action is categorically excluded under
NEPA.
Proposed paragraph (a) stated that agencies identify CEs in their
NEPA procedures. CEQ adds this paragraph to the final rule, reiterating
the requirement in Sec. 1507.3(e)(2)(ii) that agencies establish CEs
in their agency NEPA procedures. The NPRM proposed in paragraph (b) to
set forth the requirement to consider extraordinary circumstances once
an agency determines that a CE covers a proposed action, consistent
with the current requirement in 40 CFR 1508.4. CEQ includes this
provision in the final rule, changing the language from passive to
active voice. CEQ proposed in paragraph (b)(1) to provide that, when
extraordinary circumstances are present, agencies may consider whether
mitigating circumstances, such as the design of the proposed action to
avoid effects that create extraordinary circumstances, are sufficient
to allow the proposed action to be categorically excluded. CEQ includes
this paragraph in the final rule, but revises it to address confusion
over whether CEQ is creating a ``mitigated CE.'' In the final rule,
paragraph (b)(1) provides that an agency can categorically exclude a
proposed action when an environmental resource or condition identified
as a potential extraordinary circumstance is present if the agency
determines that there are ``circumstances that lessen the impacts'' or
other conditions sufficient to avoid significant effects. This
paragraph clarifies that agencies' extraordinary circumstances criteria
are not intended to necessarily preclude the application of a CE merely
because a listed factor may be present or implicated. Courts have
rejected a ``mere presence'' test for CEs. Sierra Club v. U.S. Forest
Serv., 828 F.3d 402 (6th Cir. 2016); Sierra Club v. Bosworth, 510 F.3d
1016 (9th Cir. 2007); Utah Envtl. Cong. v. Bosworth, 443 F.3d 732 (10th
Cir. 2006); Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100
F.3d 1443, 1450 (9th Cir. 1996); cf. Rhodes v. Johnson, 153 F.3d 785
(7th Cir. 1998). Instead, the agency may consider in light of the
extraordinary circumstances criteria, whether the proposed action would
take place in such a way that it would not have significant effects, or
whether the agency could modify the proposed action to avoid the
extraordinary circumstances so that the action remains eligible for
categorical exclusion. While this reflects current practice for some
agencies,\78\ this revision would assist agencies as they consider
whether to categorically exclude an action that would otherwise be
considered in an EA and FONSI.
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\78\ See, e.g., Forest Service categorical exclusions, 36 CFR
220.6(b)(2); surface transportation categorical exclusions, 23 CFR
771.116-771.118.
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Finally, CEQ proposed paragraph (b)(2) to address agencies'
obligation to prepare an EA or EIS, as appropriate, if the agency
cannot categorically exclude
[[Page 43323]]
a proposed action. CEQ includes this provision in the final rule
revising the language to active voice and making it consistent with the
format of paragraph (b).
CEQ invited comment on the proposed revisions and asked whether it
should address any other aspects of CEs in its regulations. CEQ also
invited comment on whether it should establish government-wide CEs in
its regulations to address routine administrative activities, for
example, internal orders or directives regarding agency operations,
procurement of office supplies and travel, and rulemakings to establish
administrative processes such as those established under the Freedom of
Information Act or Privacy Act. After considering the comments, as
discussed in the Final Rule Response to Comments, CEQ is not including
any additional provisions on CEs in the final rule.
5. Environmental Assessments (Sec. 1501.5)
Under the 1978 regulations, when an agency has not categorically
excluded a proposed action, the agency can prepare an EA to document
its effects analysis. If the analysis in the EA demonstrates that the
action's effects would not be significant, the agency documents its
reasoning in a FONSI, which completes the NEPA process; otherwise, the
agency uses the EA to help prepare an EIS. CEQ estimates that Federal
agencies prepare over 10,000 EAs each year.\79\
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\79\ See, e.g., Council on Environmental Quality, Fourth Report
on Cooperating Agencies in Implementing the Procedural Requirements
of the National Environmental Policy Act, Attachment A (Oct. 4,
2016), https://ceq.doe.gov/docs/ceq-reports/Attachment-A-Fourth-Cooperating-Agency-Report_Oct2016.pdf.
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CEQ proposed to consolidate the requirements for EAs that are
scattered throughout the 1978 regulations into a new Sec. 1501.5,
``Environmental assessments.'' CEQ proposed to revise paragraph (a) to
state when agencies are required to prepare EAs. CEQ proposed minor
clarifying edits to paragraph (b), which states that agencies may
prepare an EA to assist in agency planning and decision making. The
NPRM proposed to move the operative language regarding the requirements
for an EA from the definition of EA in 40 CFR 1508.9 to paragraph (c).
CEQ makes these proposed changes in the final rule.
Under the final rule, the format for an EA is flexible and
responsive to agency decision-making needs and the circumstances of the
particular proposal for agency action. Requirements for documenting the
proposed action and alternatives in an EA continue to be more limited
than EIS requirements. An agency must briefly describe the need for the
proposed action by describing the existing conditions, projected future
conditions, and statutory obligations and authorities that may relate
to the proposed agency action with cross-references to supporting
documents. The final rule continues to require agencies to describe
briefly the proposed action and any alternatives it is considering that
would meet the need of the proposed agency action. For actions to
protect or restore the environment, without unresolved conflicts
concerning alternative uses of available resources, CEQ expects
agencies to examine a narrower range of alternatives to the proposed
action. When the action may have significant impacts, the agency should
consider reasonable alternatives that would avoid those impacts or
otherwise mitigate those impacts to less than significant levels.
An agency does not need to include a detailed discussion of each
alternative in an EA, nor does it need to include any detailed
discussion of alternatives that it eliminated from study. While
agencies have discretion to include more information in their EAs than
is required to determine whether to prepare an EIS or a FONSI, they
should carefully consider their reasons and have a clear rationale for
doing so. Agencies should focus on analyzing material effects and
alternatives, rather than marginal details that may unnecessarily delay
the environmental review process.
Under the final rule, an agency must describe the environmental
impacts of its proposed action and alternatives, providing enough
information to support a decision to prepare either a FONSI or an EIS.
The EA should focus on whether the proposed action (including
mitigation) would ``significantly'' affect the quality of the human
environment and tailor the length of the discussion to the relevant
effects. The agency may contrast the impacts of the proposed action and
alternatives with the current and expected future conditions of the
affected environment in the absence of the action, which constitutes
consideration of a no-action alternative.
Under the final rule, agencies should continue to list persons,
relevant agencies, and applicants involved in preparing the EA to
document agency compliance with the requirement to involve the public
in preparing EAs to the extent practicable, consistent with paragraph
(e). This may include incorporation by reference of records related to
compliance with other environmental laws such as the National Historic
Preservation Act, Clean Water Act, Endangered Species Act, or Clean Air
Act.
CEQ adds a new paragraph (d) to the final rule to move the language
from 40 CFR 1502.5(b) regarding when to begin preparing an EA that is
required for an application to the agency.\80\ Agencies may specify in
their NEPA procedures when an application is complete such that it can
commence the NEPA process. While the NPRM did not propose this change,
the move is consistent with CEQ's proposal to consolidate EA
requirements in Sec. 1501.5.
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\80\ CEQ also retains the statement in Sec. 1502.5(b), as
proposed, with respect to EISs.
---------------------------------------------------------------------------
The final rule continues to provide that agencies may prepare EAs
by and with other agencies, applicants, and the public. Modern
information technology can help facilitate this collaborative EA
preparation, allowing the agency to make a coordinated but independent
evaluation of the environmental issues and assume responsibility for
the scope and content of the EA. CEQ proposed to move the public
involvement requirements for EAs from the current 40 CFR 1501.4(b) to
Sec. 1501.5 and change ``environmental'' to ``relevant'' agencies to
include all agencies that may contribute information that is relevant
to the development of an EA. CEQ makes these changes in paragraph (e)
in the final rule. CEQ also adds to and reorders the list to ``the
public, State, Tribal, and local governments, relevant agencies, and
any applicants,'' to address some confusion by public commenters that
interpreted relevant to modify the public and applicants. In addition,
this revision acknowledges that there will not be an applicant in all
instances. Consistent with the 1978 regulations, the final rule does
not specifically require publication of a draft EA for public review
and comment, but continues to require agencies to reasonably involve
the public prior to completion of the EA, so that they may provide
meaningful input on those subject areas that the agency must consider
in preparing the EA. Depending on the circumstances, the agency could
provide adequate information through public meetings or by a detailed
scoping notice, for example. There is no single correct approach for
public involvement. Rather, agencies should consider the circumstances
and have discretion to conduct public involvement tailored to the
interested public, to available means of communications to reach the
interested and affected parties, and to
[[Page 43324]]
the particular circumstances of each proposed action.
The NPRM proposed to establish a presumptive 75-page limit for EAs,
but allow a senior agency official to approve a longer length and
establish a new page limit in writing. CEQ adds this new requirement at
paragraph (f) in the final rule. As noted in the NPRM, while Question
36a of the Forty Questions, supra note 2, stated that EAs should be
approximately 10 to 15 pages, in practice, such assessments are often
longer to address compliance with other applicable laws, and to
document the effects of mitigation to support a FONSI. To achieve the
presumptive 75-page limit, agencies should write all NEPA environmental
documents in plain language, follow a clear format, and emphasize
important impact analyses and relevant information necessary for those
analyses, rather than providing extensive background material. An EA
should have clear and concise conclusions and may incorporate by
reference data, survey results, inventories, and other information that
support these conclusions, so long as this information is reasonably
available to the public.
The presumptive EA page limit promotes more readable documents and
provides agencies flexibility to prepare longer documents, where
necessary, to support the agency's analysis. This presumptive page
limit is consistent with CEQ's guidance on EAs, which advises agencies
to avoid preparing lengthy EAs except in unusual cases where a proposal
is so complex that a concise document cannot meet the goals of an EA
and where it is extremely difficult to determine whether the proposal
could cause significant effects. Page limits will encourage agencies to
identify the relevant issues, focus on significant environmental
impacts, and prepare concise readable documents that will inform
decision makers as well as the public. Voluminous, unfocused
environmental documents do not advance the goals of informed decision
making or protection of the environment.
CEQ proposed to add a new paragraph (f) to Sec. 1501.5 to clarify
that agencies also may apply, as appropriate, certain provisions in
part 1502 regarding incomplete or unavailable information, methodology
and scientific accuracy, and environmental review and consultation
requirements to EAs. CEQ includes this new paragraph at Sec. 1501.5(g)
in the final rule.
In addition to the new Sec. 1501.5, CEQ incorporates reference to
EAs in other sections of the regulations to codify existing agency
practice where it would make the NEPA process more efficient and
effective. As discussed in section II.C.9, CEQ makes a presumptive time
limit applicable to EAs in Sec. 1501.10. Further, for some agencies,
it is a common practice to have lead and cooperating agencies
coordinate in the preparation of EAs where more than one agency may
have an action on a proposal; therefore, CEQ adds EAs to Sec. Sec.
1501.7 and 1501.8, as discussed in section II.C.7. Finally, as
discussed in section II.C.10, CEQ proposed to add EAs to Sec. 1501.11,
``Tiering,'' to codify current agency practice of using EAs where the
effects of a proposed agency action are not likely to be significant.
These include program decisions that may facilitate later site-specific
EISs as well as the typical use of EAs as a second-tier document tiered
from an EIS. CEQ makes these changes in the final rule.
6. Findings of No Significant Impact (Sec. 1501.6)
When an agency determines in its EA that an EIS is not required, it
typically prepares a FONSI. The FONSI reflects that the agency has
engaged in the necessary review of environmental impacts under NEPA.
The FONSI shows that the agency examined the relevant data and
explained the agency findings by providing a rational connection
between the facts presented in the EA and the conclusions drawn in the
finding. Any finding should clearly identify the facts found and the
conclusions drawn by the agency based on those facts.
In response to the ANPRM, CEQ received comments requesting that CEQ
update its regulations to consolidate provisions and provide more
detailed requirements for FONSIs. CEQ proposed to consolidate the
operative language of 40 CFR 1508.13, ``Finding of no significant
impact'' with 40 CFR 1501.4, ``Whether to prepare an environmental
impact statement,'' in the proposed Sec. 1501.6, ``Findings of no
significant impact.'' CEQ proposed to strike paragraph (a) as the
requirements in that paragraph are addressed in Sec. 1507.3(d)(2)
(Sec. 1507.3(e)(2) in the final rule). As noted in section II.C.5, CEQ
proposed to move 40 CFR 1501.4(b) to Sec. 1501.5, ``Environmental
assessments.'' Similarly, CEQ proposed to strike 40 CFR 1501.4(d),
because Sec. 1501.9, ``Scoping,'' addresses this requirement. CEQ
makes these changes in the final rule.
CEQ proposed to make 40 CFR 1501.4(e) the new Sec. 1501.6(a), and
revise the language to clarify that an agency must prepare a FONSI when
it determines that a proposed action will not have significant effects
based on the analysis in the EA, consistent with the definition of
FONSI. The proposed rule had erroneously included the standard for
preparing an EA--``is not likely to have significant effects.'' CEQ
proposed to clarify in paragraph (a)(2) that the circumstances listed
in paragraphs (a)(2)(i) and (ii) are the situations where the agency
must make a FONSI available for public review. CEQ makes these changes
in the final rule.
CEQ proposed to move the operative requirement that a FONSI include
the EA or a summary from the definition of FONSI in 40 CFR 1508.13 to a
new paragraph (b). CEQ also proposed to change the requirement that the
FONSI include a summary of the EA to ``incorporate it by reference.''
Consistent with Sec. 1501.12, in order to incorporate the EA by
reference, the agency would need to briefly summarize it. Making this
change ensures that the EA is available to the public. CEQ makes these
changes in the final rule.
Finally, CEQ proposed a new paragraph (c) to address mitigation,
which CEQ includes in the final rule. The first sentence addresses
mitigation generally in a FONSI, requiring agencies to state the
authority for any mitigation adopted and any applicable monitoring or
enforcement provisions. This sentence applies to all FONSIs. CEQ omits
the ``means of'' mitigation from the final rule because it is
unnecessary and many commenters misunderstood its meaning or found it
confusing. The second sentence codifies the practice of mitigated
FONSIs, consistent with CEQ's Mitigation Guidance.\81\ This provision
requires the agency to identify the enforceable mitigation requirements
and commitments, which are those mitigation requirements and
commitments needed to reduce the effects below the level of
significance.\82\ When preparing an EA, many agencies develop,
consider, and commit to mitigation measures to avoid, minimize,
rectify, reduce, or compensate for potentially significant adverse
environmental impacts that would otherwise require preparation of an
EIS. An agency can commit to mitigation
[[Page 43325]]
measures for a mitigated FONSI when it can ensure that the mitigation
will be performed, when the agency expects that resources will be
available, and when the agency has sufficient legal authorities to
ensure implementation of the proposed mitigation measures. CEQ does not
intend this codification of CEQ guidance to create a different standard
for analysis of mitigation for a ``mitigated FONSI,'' but to provide
clarity regarding the use of FONSIs.
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\81\ The Mitigation Guidance, supra note 29, amended and
supplemented the Forty Questions, supra note 2, specifically
withdrawing Question 39 insofar as it suggests that mitigation
measures developed during scoping or in an EA ``[do] not obviate the
need for an EIS.''
\82\ As discussed in sections I.B.1 and II.B, NEPA is a
procedural statute and does not require adoption of a mitigation
plan. However, agencies may consider mitigation measures that would
avoid, minimize, rectify, reduce, or compensate for potentially
significant adverse environmental impacts and may require mitigation
pursuant to substantive statutes.
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7. Lead and Cooperating Agencies (Sec. Sec. 1501.7 and 1501.8)
The 1978 CEQ regulations created the roles of lead agency and
cooperating agencies for NEPA reviews, which are critical for actions,
such as non-Federal projects, requiring the approval or authorization
of multiple agencies. Agencies need to coordinate and synchronize their
NEPA processes to ensure an efficient environmental review that does
not cause delays. In recent years, Congress and several administrations
have worked to establish a more synchronized procedure for multi-agency
NEPA reviews and related authorizations, including through the
development of expedited procedures such as the section 139 process and
FAST-41. In response to the ANPRM, CEQ received comments requesting
that CEQ update its regulations to clarify the roles of lead and
cooperating agencies.
CEQ proposed a number of modifications to Sec. 1501.7, ``Lead
agencies,'' and Sec. 1501.8, ``Cooperating agencies,'' (40 CFR 1501.5
and 1501.6, respectively, in the 1978 regulations) to improve
interagency coordination, make development of NEPA documents more
efficient, and facilitate implementation of the OFD policy. As stated
in the NPRM, CEQ intends these modifications to improve the efficiency
and outcomes of the NEPA process--including cost reduction, improved
relationships, and better outcomes that avoid litigation--by promoting
environmental collaboration.\83\ These modifications are consistent
with Questions 14a and 14c of the Forty Questions, supra note 2. CEQ
proposed to apply Sec. Sec. 1501.7 and 1501.8 to EAs as well as EISs
consistent with agency practice. CEQ makes these changes in the final
rule, but clarifies that the provisions apply to ``complex'' EAs and
not routine EAs where involving multiple agencies could slow down an
already efficient and effective process.\84\
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\83\ See, e.g., Federal Forum on Environmental Collaboration and
Conflict Resolution, Environmental Collaboration and Conflict
Resolution (ECCR): Enhancing Agency Efficiency and Making Government
Accountable to the People (May 2, 2018), https://ceq.doe.gov/docs/nepa-practice/ECCR_Benefits_Recommendations_Report_%205-02-018.pdf.
\84\ This is consistent with CEQ's reports on cooperating
agencies, which have shown that use of cooperating agencies for EAs
has remained low. Council on Environmental Quality, Attachment A,
The Fourth Report on Cooperating Agencies in Implementing the
Procedural Requirements of the National Environmental Policy Act
(NEPA) 1 (Oct. 2016), https://ceq.doe.gov/docs/ceq-reports/Attachment-A-Fourth-Cooperating-Agency-Report_Oct2016.pdf
(percentage of EAs with cooperating agencies was 6.8 percent for
Fiscal Years 2012 through 2015); see also Council on Environmental
Quality, Attachment A, The Second Report on Cooperating Agencies in
Implementing the Procedural Requirements of the National
Environmental Policy Act (NEPA) 2 (May 2012), https://ceq.doe.gov/docs/ceq-reports/Cooperating_Agency_Report_2005-11_Attachment_23May2012.pdf (percentage of EAs with cooperating
agencies was 5.9 percent for Fiscal Years 2005 through 2011).
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CEQ proposed to clarify in Sec. 1501.7(d) that requests for lead
agency designations should be sent in writing to the senior agency
officials of the potential lead agencies. CEQ makes this change in the
final rule. CEQ did not propose any changes to paragraphs (e) and (f)
of Sec. 1501.7, but makes clarifying edits by reorganizing phrases and
changing the language to active voice in the final rule.
Consistent with the OFD policy to ensure coordinated and timely
reviews, CEQ proposed to add a new paragraph (g) to Sec. 1501.7 to
require that Federal agencies evaluate proposals involving multiple
Federal agencies in a single EIS and issue a joint ROD \85\ or single
EA and joint FONSI when practicable. CEQ adds this paragraph to the
final rule with edits to the EA sentence to make the language
consistent with the EIS sentence.
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\85\ A ``single ROD,'' as used in E.O. 13807, is the same as a
``joint ROD,'' which is a ROD addressing all Federal agency actions
covered in the single EIS and necessary for a proposed project. 40
CFR 1508.25(a)(3). The regulations would provide flexibility for
circumstances where a joint ROD is impracticable. Examples include
the statutory directive to issue a combined final EIS and ROD for
transportation actions and the FERC's adjudicatory process.
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CEQ proposed to move language from the cooperating agency
provision, 40 CFR 1501.6(a), that addresses the lead agency's
responsibilities with respect to cooperating agencies to proposed
paragraph (h) in Sec. 1501.7 so that all of the lead agency's
responsibilities are in a single section. CEQ also proposed to clarify
in paragraph (h)(4) that the lead agency is responsible for determining
the purpose and need, and alternatives in consultation with any
cooperating agencies.\86\ CEQ makes this move and addition in the final
rule. In response to comments, the final rule eliminates the phrase
``consistent with its responsibility as lead agency'' in paragraph
(h)(2) because it is non-specific and could cause agencies to reject
germane and informative scientific research.
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\86\ See OFD Framework Guidance, supra note 30, sec. VIII.A.5
(``The lead agency is responsible for developing the Purpose and
Need, identifying the range of alternatives to be analyzed,
identifying the preferred alternative and determining whether to
develop the preferred alternative to a higher level of detail.'');
Connaughton Letter, supra note 29 (``[J]oint lead or cooperating
agencies should afford substantial deference to the [ ] agency's
articulation of purpose and need.'')
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CEQ proposed new paragraphs (i) and (j) in Sec. 1501.7, and (b)(6)
and (7) in Sec. 1501.8, to require development of and adherence to a
schedule for the environmental review of and any authorizations
required for a proposed action, and resolution of disputes and other
issues that may cause delays in the schedule. CEQ includes these
provisions in the final rule with minor edits for clarity. These
provisions are consistent with current practices at agencies that have
adopted elevation procedures pursuant to various statutes and
directives, including 23 U.S.C. 139, FAST-41, and E.O. 13807. In
response to comments, CEQ includes a new paragraph (b)(8) in Sec.
1501.8 requiring cooperating agencies to jointly issue environmental
documents with the lead agency, to the maximum extent practicable. This
addition is consistent with the goal of interagency cooperation and
efficiency.
CEQ proposed to move the operative language that State, Tribal, and
local agencies may serve as cooperating agencies from the definition of
cooperating agency (40 CFR 1508.5) to paragraph (a) of Sec. 1501.8.
Upon the request of the lead agency, non-Federal agencies should
participate in the environmental review process to ensure early
collaboration on proposed actions where such entities have jurisdiction
by law or special expertise. CEQ also proposed in paragraph (a) to
codify current practice to allow a Federal agency to appeal to CEQ a
lead agency's denial of a request to serve as cooperating agency.
Resolving disputes among agencies early in the process furthers the OFD
policy and the goal of more efficient and timely NEPA reviews. CEQ
makes these changes in the final rule with minor edits for clarity.
Finally, CEQ proposed clarifications and grammatical edits throughout
Sec. 1501.8. CEQ makes these changes in the final rule.
8. Scoping (Sec. 1501.9)
In response to the ANPRM, CEQ received comments requesting that CEQ
update its regulations related to scoping,
[[Page 43326]]
including comments requesting that agencies have greater flexibility in
how to conduct scoping. CEQ proposed to reorganize in more
chronological order, Sec. 1501.9, ``Scoping,'' (40 CFR 1501.7 in the
1978 regulations), consolidate all the requirements for the NOI and the
scoping process into the same section, and add paragraph headings to
improve clarity. CEQ makes these changes in the final rule with minor
edits as described further in this section.
Specifically, CEQ proposed to revise paragraph (a) to state the
general requirement to use scoping for EISs. Rather than requiring
publication of an NOI as a precondition to the scoping process, CEQ
proposed to modify paragraph (a) so that agencies can begin the scoping
process as soon as the proposed action is developed sufficiently for
meaningful agency consideration. Some agencies refer to this as pre-
scoping under the existing regulations to capture scoping work done
before publication of the NOI. Rather than tying the start of scoping
to the agency's decision to publish an NOI to prepare an EIS, the
timing and content of the NOI would instead become an important step in
the scoping process itself, thereby obviating the artificial
distinction between scoping and pre-scoping. However, agencies should
not unduly delay publication of the NOI and should be transparent about
any work done prior to publication of the NOI. CEQ makes the changes as
proposed in the final rule.
Paragraph (b) addresses the responsibility of the lead agency to
invite cooperating and participating agencies as well as other likely
affected or interested persons. CEQ proposed to add ``likely'' to this
paragraph to capture the reality that, at the scoping stage, agencies
may not know the identities of all affected parties and that one of the
purposes of scoping is to identify affected parties. CEQ makes this
change in the final rule. In the final rule, CEQ strikes ``on
environmental grounds'' from the parenthetical noting that likely
affected or interested persons include those who might not agree with
the action because the clause is unnecessarily limiting. Agencies
should invite the participation of those who do not agree with the
action irrespective of whether it is on environmental grounds.
The NPRM proposed to move the existing (b)(4) to paragraph (c),
``Scoping outreach.'' CEQ proposed to broaden the types of activities
agencies might hold during scoping, including meetings, publishing
information, and other means of communication to provide agencies
additional flexibility in how to reach interested or affected parties
in the scoping process. CEQ finalizes this change as proposed.
Paragraph (d) proposed to address the NOI requirements. CEQ
proposed a list of what agencies must include in an NOI to standardize
NOI format, achieve greater consistency across agencies, provide the
public with more information and transparency, and ensure that agencies
conduct the scoping process in a manner that facilitates implementation
of the OFD policy for multi-agency actions, including by proactively
soliciting comments on alternatives, impacts, and relevant information
to better inform agency decision making. CEQ makes these changes in the
final rule with minor edits for clarity and edits to paragraph (d)(7)
for consistency with Sec. Sec. 1500.3 and 1502.17 and to correct the
cross-reference.
CEQ proposed to move the criteria for determining scope from the
definition of scope, 40 CFR 1508.25, to paragraph (e) and to strike the
paragraph on ``cumulative actions'' for consistency with the proposed
revisions to the definition of ``effects'' discussed below. CEQ makes
this change in the final rule, but does not include the reference to
``similar actions'' in proposed paragraph (e)(1)(ii) because commenters
expressed confusion regarding whether the determination of the scope of
the environmental documentation, as discussed in proposed Sec.
1501.9(e)(1)(i)(C) was directly related to the discussion of the
``effects of the action'' as effects are defined in Sec. 1508.1(g). To
eliminate this confusion, CEQ strikes the language in proposed Sec.
1501.9(e)(1)(i)(C) (40 CFR 1508.25(a)(3)) regarding similar actions.
Further, CEQ notes that, in cases where the question of the
consideration of similar actions to determine the scope of the NEPA
documentation was raised, courts noted the discretionary nature of the
language (use of the word ``may'' and ``should'' in proposed Sec.
1501.9(e)(1)(i)(C) (40 CFR 1508.25(a)(3)) and have held that
determinations as to the scope of a NEPA document based on a
consideration of similar actions was left to the agency's discretion.
See e.g., Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387
F.3d 989, 1000-01 (9th Cir. 2004). CEQ also notes that the reference to
``other reasonable courses of action'' in paragraph (e)(2) are within
the judgement of the agency. Agencies have discretion to address
similar actions through a single analysis, pursuant to revised Sec.
1502.4(b).
Finally, paragraph (f) addresses other scoping responsibilities,
including identifying and eliminating from detailed study non-
significant issues, allocating assignments among lead and cooperating
agencies, indicating other related NEPA documents, identifying other
environmental review requirements, and indicating the relationship
between the environmental review and decision-making schedule. CEQ
retains this paragraph in the final rule as proposed with minor
grammatical edits.
9. Time Limits (Sec. 1501.10)
In response to the ANPRM, CEQ received many comments on the lengthy
timelines and costs of environmental reviews, and many suggestions for
more meaningful time limits for the completion of the NEPA process.
Accordingly, and to promote timely reviews, CEQ proposed to establish
presumptive time limits for EAs and EISs consistent with E.O. 13807 and
prior CEQ guidance. In Question 35 of the Forty Questions, supra note
2, CEQ stated its expectation that ``even large complex energy projects
would require only about 12 months for the completion of the entire EIS
process'' and that, for most major actions, ``this period is well
within the planning time that is needed in any event, apart from
NEPA.'' CEQ also recognized that ``some projects will entail difficult
long-term planning and/or the acquisition of certain data which of
necessity will require more time for the preparation of the EIS.'' Id.
Finally, Question 35 stated that an EA ``should take no more than 3
months, and in many cases substantially less as part of the normal
analysis and approval process for the action.''
Based on agency experience with the implementation of the
regulations, CEQ proposed in Sec. 1501.10, ``Time limits,'' to change
the introductory text to paragraph (a) and add a new paragraph (b) to
establish a presumptive time limit for EAs of one year and a
presumptive time limit for EISs of two years. However, the NPRM also
proposed that a senior agency official could approve in writing a
longer period. CEQ proposed to define the start and end dates of the
period consistent with E.O. 13807. CEQ makes these changes in the final
rule. CEQ eliminates the sentence regarding lead agency from paragraph
(a) because it is no longer needed given the revisions to this section
changing ``agency'' to ``senior agency official.'' In response to
comments, the final rule also adds ``FONSI'' to paragraph (b)(1) to
clarify that the time limit for EAs is measured from the date of
decision to prepare to the publication of an EA or FONSI, since
agencies may not publish
[[Page 43327]]
the EA separately. The final rule also clarifies that the time period
is measured from the date the agency decides to prepare an EA, since
applicants sometimes prepare EAs on behalf of agencies.
Consistent with CEQ and OMB guidance, agencies should begin scoping
and development of a schedule for timely completion of an EIS prior to
issuing an NOI and commit to cooperate, communicate, share information,
and resolve conflicts that could prevent meeting milestones.\87\ CEQ
recognizes that agency capacity, including those of cooperating and
participating agencies, may affect timing, and that agencies should
schedule and prioritize their resources accordingly to ensure effective
environmental analyses and public involvement. Further, agencies have
flexibility in the management of their internal processes to set
shorter time limits and to define the precise start and end times for
measuring the completion time of an EA. Therefore, CEQ proposed to
retain the factors for determining time limits in paragraph (c). CEQ
proposed to revise paragraph (c)(6) for clarity and strike paragraph
(c)(7) regarding controversial actions because it overlaps with
numerous other factors, and because whether or not an action is
controversial is not relevant to the analysis under NEPA. CEQ also
proposed to retain with edits for clarity the list of parts of the NEPA
process for which the senior agency official may set time limits in
paragraph (d). CEQ retains paragraphs (c) and (d) in the final rule
with the changes as proposed.
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\87\ See OFD Framework Guidance, supra note 30 (``[w]hile the
actual schedule for any given project may vary based upon the
circumstances of the project and applicable law, agencies should
endeavor to meet the two-year goal . . . .'').
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CEQ proposed conforming edits to Sec. 1500.5(g) to change
``establishing'' to ``meeting'' time limits and add ``environmental
assessment.'' CEQ makes these edits in the final rule.
10. Tiering (Sec. 1501.11)
CEQ proposed to move 40 CFR 1502.20, ``Tiering,'' to a new Sec.
1501.11 and revise it to make clear that this provision is applicable
to both EAs and EISs. CEQ proposed a number of revisions in Sec.
1501.11 to clarify when agencies can use existing studies and
environmental analyses in the NEPA process and when agencies would need
to supplement such studies and analyses. The revisions clarify that
agencies do not need to conduct site-specific analyses prior to an
irretrievable commitment of resources, which in most cases will not be
until the decision at the site-specific stage. CEQ makes these changes
with additional updates in the final rule.
Specifically, the final rule splits proposed paragraph (a) into two
paragraphs. In the new paragraph (a), CEQ changes ``are encouraged to''
to ``should'' and moves to the end of this paragraph the sentence
stating that tiering may also be appropriate for different stages of
actions. The new paragraph (b) addresses the relationship between the
different levels of tiered documents, and CEQ makes additional edits to
this paragraph for clarity.
CEQ also proposed to move the operative language addressing
specific examples of when tiering is appropriate from the definition of
tiering in 40 CFR 1508.28 to proposed paragraph (b). CEQ moves this
language to paragraph (c) in the final rule with the edits as proposed.
11. Incorporation by Reference (Sec. 1501.12)
CEQ proposed to move 40 CFR 1502.21, ``Incorporation by
reference,'' to a new Sec. 1501.12 and change ``environmental impact
statements'' to ``environmental documents'' because this provision is
applicable generally, not just to EISs. CEQ makes this change in the
final rule. CEQ makes additional changes in the final rule to revise
sentences from passive to active voice. In response to comments, CEQ
adds examples to the types of material that agencies may incorporate,
including planning studies and analyses.
D. Revisions to Environmental Impact Statements (Part 1502)
As stated in the NPRM, the most extensive level of NEPA analysis is
an EIS, which is the ``detailed statement'' required under section
102(2)(C) of NEPA. When an agency prepares an EIS, it typically issues
a ROD at the conclusion of the NEPA review. Based on the Environmental
Protection Agency (EPA) weekly Notices of Availability published in the
Federal Register between 2010 and 2019, Federal agencies published
approximately 176 final EISs per year. CEQ proposed to update the
format, page length, and timeline to complete EISs to better achieve
the purposes of NEPA. CEQ also proposed several changes to streamline,
allow for flexibility in, and improve the preparation of EISs. CEQ
includes provisions in part 1502 to promote informed decision making by
agencies and to inform the public about the decision-making process.
The final rule continues to encourage application of NEPA early in the
process and early engagement with applicants for non-Federal projects.
1. Purpose of Environmental Impact Statement (Sec. 1502.1)
CEQ proposed to revise Sec. 1502.1 for consistency with the
statutory language of NEPA and make other non-substantive revisions for
clarity. CEQ makes these changes in the final rule. The final rule also
retitles this section.
2. Implementation (Sec. 1502.2)
CEQ proposed to strike the introductory text of Sec. 1502.2 as
unnecessary and revise the text in paragraphs (a) and (c) for clarity
and consistency with the language in the rule and regulatory text
generally. CEQ makes these changes in the final rule with minor
clarifying edits. The final rule clarifies in paragraph (d) that, in
preparing an EIS, agencies shall state how the alternatives considered
in it and decisions based on it serve the purposes of the statute as
interpreted in the CEQ regulations. The final rule strikes ``ultimate
agency'' in paragraph (e) because there may be multiple individuals
within certain departments or agencies that have decision-making
responsibilities, including where subunits have developed agency
procedures or NEPA compliance programs.
3. Statutory Requirements for Statements (Sec. 1502.3)
CEQ proposed to revise Sec. 1502.3 to make it a single paragraph,
remove cross-references to the definition, and make minor clarifying
edits. CEQ makes these changes in the final rule.
4. Major Federal Actions Requiring the Preparation of Environmental
Impact Statements (Sec. 1502.4)
CEQ proposed to revise Sec. 1502.4 to clarify in paragraph (a)
that a ``properly defined'' proposal is one that is based on the
statutory authorities for the proposed action. CEQ proposed to change
``broad'' and ``program'' to ``programmatic'' in this section, as well
as Sec. Sec. 1500.4(k) and 1506.1(c), since ``programmatic'' is the
term commonly used by NEPA practitioners. The NPRM proposed further
revisions to paragraph (b), including eliminating reference to
programmatic EISs that ``are sometimes required,'' to focus the
provision on the discretionary use of programmatic EISs in support of
clearly defined decision-making purposes. For consistency, CEQ proposed
to change the mandatory language to be discretionary in proposed
paragraph (c)(3) (paragraph (b)(1)(iii) in the final rule). As CEQ
stated in its 2014 guidance, programmatic NEPA reviews
[[Page 43328]]
``should result in clearer and more transparent decision[ ]making, as
well as provide a better defined and more expeditious path toward
decisions on proposed actions.'' \88\ Other statutes or regulations may
grant discretion or otherwise identify circumstances for when to
prepare a programmatic EIS. See, e.g., National Forest Management Act,
16 U.S.C. 1604(g); 36 CFR 219.16. CEQ makes these changes in the final
rule, and reorganizes proposed paragraphs (c) and (d) to be paragraphs
(b)(1) and (2) since these paragraphs all address programmatic reviews.
Finally, CEQ proposed to add a new sentence to proposed paragraph (d)
(paragraph (b)(2) in the final rule) to clarify that when conducting
programmatic reviews, agencies may tier their analyses to defer
detailed analysis of specific program elements until they are ripe for
decisions that would involve an irreversible or irretrievable
commitment of resources. The final rule removes this latter clause and
simplifies it to elements ``ripe for final agency action'' because NEPA
review occurs pursuant to the APA and ``final agency action,'' as
construed in Bennett v. Spear, is the test for when judicial review can
commence. See 520 U.S. at 177-78.
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\88\ Programmatic Guidance, supra note 29, at 7.
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5. Timing (Sec. 1502.5)
For the reasons discussed in section II.C.2 and consistent with the
edits to Sec. 1501.2, CEQ proposed to change ``shall'' to ``should''
in the introductory text so that agencies can exercise their best
judgement about when to begin the preparation of an EIS. CEQ also
proposed to revise paragraph (b) to clarify that agencies should work
with potential applicants and applicable agencies before applicants
submit applications. CEQ makes these changes in the final rule. Also,
as noted in section II.C.7, CEQ revises paragraph (b) in the final rule
to only address EISs in this section and move the discussion of EAs to
Sec. 1501.5. Finally, CEQ adds ``and governments'' to ``State, Tribal,
and local agencies'' to be comprehensive and consistent with similar
changes made throughout the rule.
6. Interdisciplinary Preparation (Sec. 1502.6)
CEQ proposed minor edits to Sec. 1502.6 consistent with the global
changes discussed in section II.A. CEQ includes these changes in the
final rule and revises this provision from passive to active voice.
7. Page Limits (Sec. 1502.7)
In response to the ANPRM, CEQ received many comments on the length,
complexity, and readability of environmental documents, and many
suggestions for more meaningful page limits. As the President Carter
noted in 1977 regarding issuance of E.O. 11991, ``to be more useful to
decision[ ]makers and the public, [EISs] must be concise, readable, and
based upon competent professional analysis. They must reflect a concern
with quality, not quantity. We do not want [EISs] that are measured by
the inch or weighed by the pound.'' \89\ The core purpose of page
limits from the original regulations remains--documents must be a
reasonable length and in a readable format so that it is practicable
for the decision maker to read and understand the document in a
reasonable time period. If documents are unreasonable in their length
or unwieldly, there is a risk that they will not inform the decision
maker, thereby undermining the purposes of the Act. As the Supreme
Court noted in Metropolitan Edison Co. v. People Against Nuclear
Energy, ``[t]he scope of the agency's inquiries must remain manageable
if NEPA's goal of `[insuring] a fully informed and well-considered
decision,' . . . is to be accomplished.'' 460 U.S. at 776 (quoting Vt.
Yankee, 435 U.S. at 558). Therefore, CEQ proposed to reinforce the page
limits for EISs set forth in Sec. 1502.7, while allowing a senior
agency official to approve a statement exceeding 300 pages when it is
useful to the decision-making process. CEQ makes these changes in the
final rule.
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\89\ The Environment--Message to the Congress, 1977 Pub. Papers
967, 985 (May 23, 1977).
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As captured in CEQ's updated report on the length of final EISs,
these documents average over 600 pages. See CEQ Length of EISs Report,
supra note 38. While the length of an EIS will vary based on the
complexity and significance of the proposed action and environmental
effects the EIS considers, every EIS must be bounded by the practical
limits of the decision maker's ability to consider detailed
information. CEQ proposed this change to ensure that agencies develop
EISs focused on significant effects and on the information useful to
decision makers and the public to more successfully implement NEPA.
CEQ intends for senior agency officials to take responsibility for
the quantity, quality, and timelines of environmental analyses
developed in support of the decisions of their agencies. Therefore, the
senior agency official approving an EA or EIS in excess of the page
limits should ensure that the final environmental document meets the
informational needs of the agency's decision maker. For example, the
agency decision makers may have varying levels of capacity to consider
the information presented in the environmental document. In ensuring
that the agency provides the resources necessary to implement NEPA, in
accordance with Sec. 1507.2, senior agency officials should ensure
that agency staff have the resources and competencies necessary to
produce timely, concise, and effective environmental documents.
Decisions as to page length for these documents are therefore closely
related to an agency's decision as to how to structure its decision-
making process, and for that reason must ultimately remain within the
discretion of the agency.
8. Writing (Sec. 1502.8)
CEQ did not propose any changes to Sec. 1502.8. In the final rule,
CEQ revises this provision to correct grammatical errors, including
revising it from passive to active voice.
9. Draft, Final and Supplemental Statements (Sec. 1502.9)
CEQ proposed to include headings for each of the paragraphs in
Sec. 1502.9, ``Draft, final, and supplemental statements,'' to improve
readability. CEQ proposed edits to paragraph (b) for clarity, replacing
``revised draft'' with ``supplemental draft.'' CEQ makes these changes
in the final rule and makes additional clarifying edits in Sec.
1502.9, including to revise the language from passive to active voice.
CEQ also received many comments in response to the ANPRM requesting
clarification regarding when supplemental statements are required. CEQ
proposed revisions to paragraph (d)(1) to clarify that agencies need to
update environmental documents when there is new information or a
change in the proposed action only if a major Federal action remains to
occur and other requirements are met. CEQ makes this change in the
final rule. As noted in the NPRM, this revision is consistent with
Supreme Court case law holding that a supplemental EIS is required only
``[i]f there remains `major Federal actio[n]' to occur, and if the new
information is sufficient to show that the remaining action will
`affec[t] the quality of the human environment' in a significant manner
or to a significant extent not already considered . . . .'' Marsh, 490
U.S. at 374 (quoting 42 U.S.C. 4332(2)(C)); see also Norton v. S. Utah
Wilderness All., 542 U.S. 55, 73 (2004). For example, supplementation
[[Page 43329]]
may be triggered after an agency executes a grant agreement but before
construction is complete because the agency has yet to provide all of
the funds under that grant agreement. On the other hand, when an agency
issues a final rule establishing a regulatory scheme, there is no
remaining action to occur, and therefore supplementation is not
required. If there is no further agency action after the agency's
decision, supplementation does not apply because the Federal agency
action is complete. S. Utah Wilderness All., 542 U.S. at 73 (``although
the `[a]pproval of a [land use plan]' is a `major Federal action'
requiring an EIS . . . that action is completed when the plan is
approved. . . . There is no ongoing `major Federal action' that could
require supplementation (though BLM is required to perform additional
NEPA analyses if a plan is amended or revised . . . .)'') (emphasis in
original).
In order to determine whether a supplemental analysis is required,
CEQ proposed a new paragraph (d)(4) to provide that an agency may
document its determination of whether a supplemental analysis is
required consistent with its agency NEPA procedures or may, although it
is not required, do so in an EA. CEQ adds this paragraph to the final
rule, codifying the existing practice of several Federal agencies, such
as the Department of Transportation's reevaluation provided for
highway, transit, and railroad projects (23 CFR 771.129); the Bureau of
Land Management's Determination of NEPA Adequacy (Department of the
Interior Departmental Manual, Part 516, Chapter 11, Sec. 11.6); and
the Corps' Supplemental Information Report (section 13(d) of
Engineering Regulation 200-2-2).
10. Recommended Format (Sec. 1502.10)
CEQ proposed to revise Sec. 1502.10 to provide agencies with more
flexibility in formatting an EIS given that most EISs are prepared and
distributed electronically. Specifically, CEQ proposed to eliminate the
requirement to have a list of agencies, organizations and persons to
whom copies of the EIS are sent since EISs are published online, and an
index, as this is no longer necessary when most documents are produced
in an electronically searchable format. Proposed changes to this
section would also allow agencies to use a different format so that
they may customize EISs to address the particular proposed action and
better integrate environmental considerations into agency decision-
making processes. CEQ makes these changes in the final rule.
11. Cover (Sec. 1502.11)
CEQ proposed to retitle and amend Sec. 1502.11 to remove the
reference to a ``sheet'' since agencies prepare EISs electronically.
CEQ also proposed to add a requirement to include the estimated cost of
preparing the EIS to the cover in new paragraph (g) to provide
transparency to the public on the costs of EIS-level NEPA reviews. To
track costs, the NPRM proposed that agencies must prepare an estimate
of environmental review costs, including costs of the agency's full-
time equivalent (FTE) personnel hours, contractor costs, and other
direct costs related to the environmental review of the proposed
action.\90\ CEQ also proposed this amendment to address the concerns
raised by the U.S. Government Accountability Office that agencies are
not tracking the costs of NEPA analyses, as well as the many comments
CEQ received from stakeholders regarding the costs associated with
development of NEPA analyses.\91\ CEQ noted in the NPRM that including
such costs on the cover sheet would also be consistent with current OMB
direction to Federal agencies to track costs of environmental reviews
and authorizations for major infrastructure projects pursuant to E.O.
13807 and would provide the public with additional information
regarding EIS-level NEPA documents.
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\90\ See, e.g., U.S. Department of the Interior, Reporting Costs
Associated with Developing Environmental Impact Statements (July 23,
2018), https://www.doi.gov/sites/doi.gov/files/uploads/dep_sec_memo_07232018_-_reporting_costs_associated_w_developing_environmental_impact_statements.pdf.
\91\ In a 2014 report, the U.S. Government Accountability Office
found that Federal agencies do not routinely track data on the cost
of completing NEPA analyses, and that the cost can vary
considerably, depending on the complexity and scope of the project.
U.S. Gov't Accountability Office, GAO-14-370, National Environmental
Policy Act: Little Information Exists on NEPA Analyses (Apr. 15,
2014) (``GAO NEPA Report''), https://www.gao.gov/products/GAO-14-370. The report referenced the 2003 CEQ task force analysis
referenced above which estimated that a typical EIS costs from
$250,000 to $2 million. See NEPA Task Force Report, supra note 28,
at p. 65.
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CEQ adds this new paragraph (g) in the final rule with additional
changes to clarify that agencies should provide the estimate on the
final EIS, and that it should include the costs of preparing both the
draft EIS and the final EIS. The final rule also adds a sentence to
clarify that agencies should include the costs of cooperating and
participating agencies if practicable. If not practicable, agencies
must so indicate. For integrated documents where an agency is preparing
a document pursuant to multiple environmental statutory requirements,
it may indicate that the estimate reflects costs associated with NEPA
compliance as well as compliance with other environmental review and
authorization requirements. Agencies can develop methodologies for
preparing these cost estimates and include them in their implementing
procedures.
12. Summary (Sec. 1502.12)
CEQ proposed to change ``controversy'' to ``disputed'' in Sec.
1502.12. CEQ makes this and grammatical changes in the final rule. This
change will better align the second clause of the sentence, ``areas of
disputed issues raised by agencies and the public,'' with the final
clause of the sentence, ``and the issues to be resolved (including the
choice among alternatives).''
13. Purpose and Need (Sec. 1502.13)
CEQ received a number of comments in response to the ANPRM
recommending that CEQ better define the requirements for purpose and
need statements. The focus of a purpose and need statement is the
purpose and need for the proposed action, and agencies should develop
it based on consideration of the relevant statutory authority for the
proposed action. The purpose and need statement also provides the
framework in which the agency will identify ``reasonable alternatives''
to the proposed action. CEQ has advised that this discussion of purpose
and need should be concise (typically one or two paragraphs long) and
that the lead agency is responsible for its definition. See Connaughton
Letter, supra note 29 (``Thoughtful resolution of the purpose and need
statement at the beginning of the process will contribute to a rational
environmental review process and save considerable delay and
frustration later in the decision[-]making process.''). ``In situations
involving two or more agencies that have a decision to make for the
same proposed action and responsibility to comply with NEPA or a
similar statute, it is prudent to jointly develop a purpose and need
statement that can be utilized by both agencies. An agreed-upon purpose
and need statement at this stage can prevent problems later that may
delay completion of the NEPA process.'' Id. The lead agency is
responsible for developing the purpose and need, and cooperating
agencies should give deference to the lead agency and identify any
substantive concerns early in the process to ensure swift resolution.
See OFD Framework Guidance, sec. VIII.A.5 and XII, supra note 30;
Connaughton Letter, supra note 29.
[[Page 43330]]
Agencies should tailor the purpose and need statement to meet the
authorization requirements of both the lead and cooperating agencies.
Consistent with CEQ guidance and in response to the ANPRM comments,
CEQ proposed to revise Sec. 1502.13, ``Purpose and need,'' to clarify
that the statement should focus on the purpose and need for the
proposed action. In particular, CEQ proposed to strike ``to which the
agency is responding in proposing the alternatives including'' to focus
on the proposed action. CEQ further proposed, as discussed below, to
address the relationship between the proposed action and alternatives
in the definition of reasonable alternatives and other sections that
refer to alternatives. Additionally, CEQ proposed to add a sentence to
clarify that when an agency is responsible for reviewing applications
for authorizations, the agency shall base the purpose and need on the
applicant's goals and the agency's statutory authority. See, e.g.,
Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C.
Cir. 1991) (agencies must consider the relevant factors including the
needs and goals of the applicants and Congress' views as expressed in
the agency's statutory authorization). This addition is consistent with
the definition of reasonable alternatives, which must meet the goals of
the applicant, where applicable. CEQ revises Sec. 1502.13 in the final
rule consistent with the NPRM proposal.
14. Alternatives Including the Proposed Action (Sec. 1502.14)
CEQ also received many comments on the ANPRM requesting
clarification regarding ``alternatives'' under the regulations. This
section of an EIS describes the proposed action and alternatives in
comparative form, including their environmental impacts, such that the
decision maker and the public can understand the basis for choice.
However, as explained in Sec. 1502.16, this section of the EIS should
not duplicate the affected environment and environmental consequences
sections, and agencies have flexibility to combine these three sections
in a manner that clearly sets forth the basis for decision making.
CEQ proposed changes to Sec. 1502.14, ``Alternatives including the
proposed action,'' to simplify and clarify the language and provide
further clarity on the scope of the alternatives analysis in an EIS.
Specifically, CEQ proposed to revise the introductory paragraph to
remove the colloquial language, including ``heart of'' the EIS and
``sharply defining,'' and clarify that the alternatives section of the
EIS should present the environmental impacts in comparative form. CEQ
makes these changes in the final rule.
In paragraph (a), CEQ proposed to delete ``all'' before
``reasonable alternatives'' and add ``to the proposed action''
afterward for clarity because NEPA does not require consideration of
all alternatives and does not provide specific guidance concerning the
range of alternatives an agency must consider for each proposal.
Section 102(2)(C) provides only that an agency should prepare a
detailed statement addressing, among other things, ``alternatives to
the proposed action.'' 42 U.S.C. 4332(2)(C). Section 102(2)(E) requires
only that agencies ``study, develop, and describe appropriate
alternatives to recommended courses of action.'' 42 U.S.C. 4332(2)(E).
Implementing this limited statutory direction, CEQ has long advised
that ``[w]hen there are potentially a very large number of
alternatives, only a reasonable number of examples, covering the full
spectrum of alternatives, must be analyzed and compared in the EIS.''
Forty Questions, supra note 2, at Question 1b. CEQ makes this change in
the final rule and rephrases paragraph (a) from passive to active
voice.
As stated in the NPRM, it is CEQ's view that NEPA's policy goals
are satisfied when an agency analyzes reasonable alternatives, and that
an EIS need not include every available alternative where the
consideration of a spectrum of alternatives allows for the selection of
any alternative within that spectrum. The reasonableness of the
analysis of alternatives in a final EIS is resolved not by any
particular number of alternatives considered, but by the nature of the
underlying agency action and by the inherent practical limitations of
the decision-making process. The discussion of environmental effects of
alternatives need not be exhaustive, but must provide information
sufficient to permit a reasoned choice of alternatives for the agency
to evaluate available reasonable alternatives including significant
alternatives that are called to its attention by other agencies,
organizations, communities, or a member of the public.\92\ As discussed
in section II.C.8, to aid agencies in identification of alternatives,
Sec. 1501.9, ``Scoping,'' requires agencies to request identification
of potential alternatives in the NOI. Analysis of alternatives also may
serve purposes other than NEPA compliance, such as evaluation of the
least environmentally damaging practicable alternative for the
discharge of dredged or fill material under section 404(b)(1) of the
Clean Water Act, 33 U.S.C. 1344(b)(1).
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\92\ Additionally, by crafting alternatives, agencies can
``bound'' different options and develop information on intermediate
options that occupy the logical space in between different formal
alternatives. See, e.g., H.A. Simon, ``Bounded Rationality,'' in
Utility and Probability (J. Eatwell, M. Milgate, & P. Newman P. eds.
1990).
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The number of alternatives that is appropriate for an agency to
consider will vary. For some actions, such as where the Federal
agency's authority to consider alternatives is limited by statute, the
range of alternatives may be limited to the proposed action and the no
action alternative. For actions where the Federal authority to consider
a range of alternatives is broad, the final EIS itself should consider
a broader range of reasonable alternatives. However, a process of
narrowing alternatives is in accord with NEPA's ``rule of reason'' and
common sense--agencies need not reanalyze alternatives previously
rejected, particularly when an earlier analysis of numerous reasonable
alternatives was incorporated into the final analysis and the agency
has considered and responded to public comment favoring other
alternatives. Furthermore, agencies should limit alternatives to those
available to the decision maker at the time of decision.
For consistency with this change, CEQ proposed to strike ``the''
before ``reasonable alternatives'' in Sec. 1502.1, and amend Sec.
1502.16, ``Environmental consequences,'' to clarify in proposed
paragraph (a)(1) that the discussion must include the environmental
impacts of the ``proposed action and reasonable alternatives.'' CEQ
makes these changes in the final rule.
In response to CEQ's ANPRM, some commenters urged that the
regulations should not require agencies to account for impacts over
which the agency has no control, including those resulting from
alternatives outside its jurisdiction. CEQ proposed to strike 40 CFR
1502.14(c) requiring consideration of reasonable alternatives not
within the jurisdiction of the lead agency for all EISs because it is
not efficient or reasonable to require agencies to develop detailed
analyses relating to alternatives outside the jurisdiction of the lead
agency. CEQ removes this paragraph in the final rule. Further, the new
definition of ``reasonable alternatives'' excludes alternatives outside
the agency's jurisdiction when they would not be technically feasible
due to the agency's lack of statutory authority to implement that
alternative. However, an agency may discuss reasonable alternatives not
within its jurisdiction when necessary for the agency's decision-making
process such as when preparing an EIS to address
[[Page 43331]]
legislative EIS requirements pursuant to Sec. 1506.8 and to address
specific congressional directives.
A concern raised by many ANPRM commenters is that agencies have
limited resources and that it is important that agencies use those
resources effectively. The provisions inviting commenters to identify
potential alternatives will help to inform agencies as to how many
alternatives are reasonable to consider, and allow agencies to assess
whether any particular submitted alternative is reasonable to consider.
Analyzing a large number of alternatives, particularly where it is
clear that only a few alternatives would be economically and
technically feasible and could be realistically implemented by the
applicant, can divert limited agency resources. CEQ invited comment on
whether the regulations should establish a presumptive maximum number
of alternatives for evaluation of a proposed action, or alternatively
for certain categories of proposed actions. CEQ sought comment on (1)
specific categories of actions, if any, that should be identified for
the presumption or for exceptions to the presumption; and (2) what the
presumptive number of alternatives should be (e.g., a maximum of three
alternatives including the no action alternative). CEQ did not receive
sufficient information to establish a minimum, but adds a new paragraph
(f) to the final rule to state that agencies shall limit their
consideration to a reasonable number of alternatives. The revisions to
the regulations to promote earlier solicitation of information and
identification of alternatives, and timely submission of comments, will
assist agencies in establishing how many alternatives are reasonable to
consider and assessing whether any particular submitted alternative is
reasonable to consider.
15. Affected Environment (Sec. 1502.15)
CEQ proposed in Sec. 1502.15, ``Affected environment,'' to
explicitly allow for combining of affected environment and
environmental consequences sections to adopt what has become a common
practice in some agencies. This revision would ensure that the
description of the affected environment focuses on those aspects of the
environment that the proposed action affects. CEQ makes this change in
the final rule. Additionally, the final rule adds a clause to emphasize
that the affected environment includes reasonably foreseeable
environmental trends and planned actions in the affected areas. This
change responds to comments raising concerns that eliminating the
definition of cumulative impact (40 CFR 1508.7) would result in less
consideration of changes in the environment. To the extent
environmental trends or planned actions in the area(s) are reasonably
foreseeable, the agency should include them in the discussion of the
affected environment. Consistent with current agency practice, this
also may include non-Federal planned activities that are reasonably
foreseeable.
In response to the NPRM, commenters expressed concerns that impacts
of climate change on a proposed project would no longer be taken into
account. Under the final rule, agencies will consider predictable
environmental trends in the area in the baseline analysis of the
affected environment. Trends determined to be a consequence of climate
change would be characterized in the baseline analysis of the affected
environment rather than as an effect of the action. Discussion of the
affected environment should be informative but should not be
speculative.
16. Environmental Consequences (Sec. 1502.16)
CEQ proposed to reorganize Sec. 1502.16, ``Environmental
consequences.'' CEQ proposed to designate the introductory paragraph as
paragraph (a), move up the sentence that it should not duplicate the
alternatives discussion, and create subordinate paragraphs (a)(1)
through (10) for clarity. In paragraph (a)(1), CEQ proposed to
consolidate into one paragraph the requirements regarding effects
scattered throughout 40 CFR 1502.16, including paragraphs (a), (b), and
(d), to include a discussion of the effects of the proposed action and
reasonable alternatives. Also consistent with the definition of
effects, CEQ proposed to strike references to direct, indirect, and
cumulative effects. The combined discussion should focus on those
effects that are reasonably foreseeable and have a reasonably close
causal relationship to the proposed action, consistent with the
proposed revised definition of effects addressed in Sec. 1508.1(g).
CEQ proposed to move 40 CFR 1502.16(c) and (e) through (h) to be
paragraphs (a)(5) through (9). To align with the statute, CEQ also
proposed to add a new paragraph (a)(10) to provide that discussion of
environmental consequences should include, where applicable, economic
and technical considerations consistent with section 102(2)(B) of NEPA.
CEQ makes these changes in the final rule with minor edits to clarify
that ``this section'' in paragraph (a) refers to the ``environmental
consequences'' section; address the dangling modifier, ``their
significance,'' in paragraph (a)(1); correct the usage of ``which'' and
``that'' throughout; and clarify the language in paragraph (b).
Further, CEQ proposed to move the operative language that addresses
when agencies need to consider economic and social effects in EISs from
the definition of human environment in 40 CFR 1508.14 to proposed Sec.
1502.16(b). CEQ also proposed to amend the language for clarity,
explain that the agency makes the determination of when consideration
of economic and social effects is interrelated with consideration of
natural or physical environmental effects at which point the agency
should give appropriate consideration to those effects, and strike
``all of'' as unnecessary. CEQ makes these changes in the final rule.
17. Submitted Alternatives, Information, and Analyses (Sec. 1502.17)
To ensure agencies have considered the alternatives, information,
and analyses submitted by the public, including State, Tribal, and
local governments as well as individuals and organizations, CEQ
proposed to add a new Sec. 1502.17 to require a new ``submitted
alternatives, information, and analyses'' section in draft and final
EISs. CEQ includes this new provision in the final rule with some
modifications to separate the requirements for draft and final EISs, as
discussed in this section.
To ensure agencies receive and consider relevant information as
early in the process as possible, Sec. 1501.9, ``Scoping,'' requires
agencies to specifically solicit such information in their notices of
intent. Under Sec. 1502.17, agencies must include a summary in the EIS
identifying all alternatives, information, and analyses the agency
received from State, Tribal, and local governments and other public
commenters. In developing the summary, agencies may refer to other
relevant sections of the EIS or to appendices. A new paragraph (a)(1)
requires agencies to append to the draft EIS or otherwise publish the
comments received during scoping and, consistent with the proposed
rule, paragraph (a)(2) requires the lead agency to invite comment on
the summary. Finally, paragraph (b) requires agencies to prepare a
summary in the final EIS based on all comments received on the draft
EIS.
CEQ proposed to require in a new Sec. 1502.18, ``Certification of
alternatives, information, and analyses section,'' that, informed by
the alternatives, information, and analyses section
[[Page 43332]]
required under Sec. 1502.17, the decision maker for the lead agency
certify that the agency has considered such information and include the
certification in the ROD under proposed Sec. 1505.2(e). CEQ moves this
provision to Sec. 1505.2(b) in the final rule, as discussed in further
detail in section II.G.2.
18. List of Preparers (Sec. 1502.18)
CEQ proposed to move ``List of preparers'' from Sec. 1502.17 to
Sec. 1502.19 to accommodate the two new sections addressing submitted
alternatives, information, and analyses. The final rule moves this
section to Sec. 1502.18 and makes minor revisions to change the
language from passive to active voice and remove the erroneous cross-
references.
19. Appendix (Sec. 1502.19)
CEQ proposed to move ``Appendix'' from Sec. 1502.18 to Sec.
1502.20 and revise the language for clarity. The final rule moves this
provision to Sec. 1502.19 with additional clarifying revisions. The
final rule also adds a new paragraph (d) to reflect the potential
appendix for scoping comments on alternatives, information, and
analyses pursuant to Sec. 1502.17(a)(1) and a new paragraph (e) for
the potential appendix of draft EIS comments pursuant to Sec. Sec.
1503.1 and 1503.4(b).
20. Publication of the Environmental Impact Statement (Sec. 1502.20)
CEQ proposed to move ``Circulation of the environmental impact
statement'' from Sec. 1502.19 to Sec. 1502.21 and retitle it
``Publication of the environmental impact statement.'' CEQ moves this
to Sec. 1502.20 in the final rule. CEQ proposed to modernize this
provision, changing circulate to publish and eliminating the option to
circulate the summary of an EIS given that agencies electronically
produce most EISs. CEQ proposed to require agencies to transmit the EIS
electronically, but provide for paper copies by request. CEQ makes
these changes in the final rule.
21. Incomplete or Unavailable Information (Sec. 1502.21)
CEQ proposed several revisions to proposed Sec. 1502.22,
``Incomplete or unavailable information,'' which CEQ redesignates as
Sec. 1502.21 in the final rule. Specifically, CEQ proposed to further
subdivide the paragraphs for clarity and strike the word ``always''
from paragraph (a) as unnecessarily limiting and inconsistent with the
rule of reason, and replaced the term ``exorbitant'' with
``unreasonable'' in paragraphs (b) and (c), which is consistent with
CEQ's description of ``overall cost'' considerations in its 1986
promulgation of amendments to this provision.\93\ CEQ reiterates that
the term ``overall cost'' as used in this section includes ``financial
costs and other costs such as costs in terms of time (delay) and
personnel.'' \94\ CEQ invited comment on whether the ``overall costs''
of obtaining incomplete of unavailable information warrants further
definition to address whether certain costs are or are not
``unreasonable.'' CEQ does not include any definition in the final
rule.
---------------------------------------------------------------------------
\93\ 51 FR at 15622 (Apr. 25, 1986).
\94\ Id.
---------------------------------------------------------------------------
For clarity and in response to comments, the final rule inserts
``but available'' in paragraph (b) to clarify that agencies will
continue to be required to obtain available information essential to a
reasoned choice between alternatives where the overall costs are not
unreasonable and the means of obtaining that information are known.\95\
New scientific or technical research is unavailable information and is
addressed in Sec. 1502.23. Where the overall costs are unreasonable or
means of obtaining the information are not known, agencies will
continue to be required to disclose in the EIS that information is
incomplete or unavailable and provide additional information to assist
in analyzing the reasonably foreseeable significant adverse impacts.
However, Sec. 1502.23 does not require agencies to undertake new
scientific and technical research to inform their analyses.
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\95\ See, e.g. Pub. Citizen, 541 U.S. at 767 (``Also, inherent
in NEPA and its implementing regulations is a `rule of reason,'
which ensures that agencies determine whether and to what extent to
prepare an EIS based on the usefulness of any new potential
information to the decision[-]making process.''); see also Marsh,
490 U.S. at 373-74 (agencies should apply a ``rule of reason'').
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Finally, CEQ proposed to eliminate 40 CFR 1502.22(c) addressing the
applicability of the 1986 amendments to this section because this
paragraph is obsolete. CEQ does not include this provision in the final
rule.
22. Cost-Benefit Analysis (Sec. 1502.22)
CEQ did not propose changes to the cost-benefit analysis section
other than an update to the citation. In the final rule, CEQ moves this
provision from Sec. 1502.23 to Sec. 1502.22 and adds a parenthetical
after ``section 102(2)(B) of NEPA'' that paraphrases the statutory text
relating to considering unquantified environmental amenities and values
along with economic and technical considerations. This is consistent
with the policy established in section 101(a), which also refers to
fulfilling the social, economic, and other requirements of present and
future generations of Americans. Finally, CEQ revises the language for
clarity, including changing from passive to active voice.
23. Methodology and Scientific Accuracy (Sec. 1502.23)
CEQ proposed revisions to update proposed Sec. 1502.24, which CEQ
redesigantes Sec. 1502.23 in the final rule. The NPRM proposed to
broaden this provision to environmental documents and CEQ makes this
change in the final rule. CEQ proposed to clarify that agencies must
make use of reliable existing data and resources when they are
available and appropriate. CEQ also proposed to revise this section to
allow agencies to draw on any source of information (such as remote
sensing and statistical modeling) that the agency finds reliable and
useful to the decision-making process. As noted in the NPRM, these
changes will promote the use of reliable data, including information
gathered using modern technologies. CEQ makes these changes in the
final rule with minor changes. The final rule revises the sentence
regarding placing the discussion of methodology in an appendix from
singular to plural for consistency with the rest of the language in
this section. In response to comments, CEQ moves the proposed sentence
regarding new scientific and technical research to a new sentence at
the end of the section and adds a sentence clarifying that nothing in
this provision is intended to prohibit agencies from compliance with
the requirements of other statutes pertaining to scientific and
technical research. Agencies must continue to conduct surveys and
collect data where required by other statutes.
24. Environmental Review and Consultation Requirements (Sec. 1502.24)
CEQ proposed to revise this section to clarify that agencies must
integrate, to the fullest extent possible, their NEPA analysis with all
other applicable Federal environmental review laws and Executive orders
in furtherance of the OFD policy established by E.O. 13807 and to make
the environmental review process more efficient.\96\ CEQ redesignates
this section in the final rule to Sec. 1502.24, updates a statutory
[[Page 43333]]
citation, and revises the text as proposed.
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\96\ The Permitting Council has compiled a list of environmental
laws and Executive orders that may apply to a proposed action. See
Federal Environmental Review and Authorization Inventory, https://www.permits.performance.gov/tools/federal-environmental-review-and-authorization-inventory.
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E. Revisions to Commenting on Environmental Impact Statements (Part
1503)
Section 102(2)(C) of NEPA requires that agencies obtain views of
Federal agencies with jurisdiction by law or expertise with respect to
any environmental impact, and also directs that agencies make copies of
the EIS and the comments and views of appropriate Federal, State, and
local agencies available to the President, CEQ and the public. 42
U.S.C. 4332(2)(C). Part 1503 of the CEQ regulations include provisions
relating to inviting and responding to comments. CEQ proposed to
modernize part 1503 given modern technologies not available at the time
of the 1978 regulations. In particular, the proposed regulations
encouraged agencies to use the current methods of electronic
communication both to publish important environmental information and
to structure public participation for greater efficiency and inclusion
of interested persons. Additionally, CEQ proposed changes to encourage
commenters to provide information early and to require comments to be
as specific as possible to ensure agencies can consider them in their
decision-making process. CEQ finalizes many of the proposed changes
with modifications as this section discusses in further detail.
1. Inviting Comments and Requesting Information and Analyses (Sec.
1503.1)
CEQ proposed to retitle and revise Sec. 1503.1, ``Inviting
comments and requesting information and analyses,'' to better reach
interested and affected parties and ensure agencies receive the
relevant information they need to complete their analyses. CEQ proposed
to revise paragraphs (a)(2)(i) and (ii) to include State, Tribal and
local agencies and governments to be comprehensive and consistent with
the addition of ``Tribal'' as discussed in section II.A. CEQ proposed
to eliminate the obsolete reference to OMB Circular A-95 from paragraph
(a)(2)(iii) and move paragraphs (a)(3) and (4) to (a)(2)(iv) and (v),
respectively, since these are additional parties from which agencies
should request comments. CEQ also proposed in paragraph (a)(2)(v) to
give agencies flexibility to tailor their public involvement process to
more effectively reach interested and affected parties by soliciting
comments ``in a manner designed to inform'' parties interested or
affected ``by the proposed action.'' CEQ makes these changes in the
final rule.
CEQ also proposed to add a new paragraph (a)(3) that requires
agencies to specifically invite comment on the completeness of the
submitted alternatives, information and analyses section (Sec.
1502.17). CEQ includes this new paragraph in the final rule with
revisions to clarify that agencies should invite comments on the
submitted alternatives, information, and analyses generally as well as
the summary required under Sec. 1502.17, rather than on the
completeness of the summary, as proposed. Interested parties who may
seek to challenge the agency's decision have an affirmative duty to
comment during the public review period in order for the agency to
consider their positions. See Vt. Yankee, 435 U.S. at 553.
In paragraph (b), CEQ proposed to require agencies to provide a 30-
day comment period on the final EIS's submitted alternatives,
information and analyses section. As noted in the discussion of Sec.
1500.3(b) in section II.B.3, CEQ does not include this requirement in
the final rule. However, the final rule adds language that if an agency
requests comments on a final EIS before the final decision, the agency
should set a deadline for such comments. This provides agencies the
flexibility to request comments on a final EIS. Agencies may use this
option where it would be helpful to inform the agency's decision making
process.
Finally, CEQ proposed a new paragraph (c) to require agencies to
provide for commenting using electronic means while ensuring
accessibility to those who may not have such access to ensure adequate
notice and opportunity to comment. CEQ includes this proposed paragraph
in the final rule.
2. Duty To Comment (Sec. 1503.2)
Section 1503.2, ``Duty to comment,'' addresses the obligations of
other agencies to comment on an EIS. CEQ proposed to clarify that this
provision applies to cooperating agencies and agencies authorized to
develop and enforce environmental standards. CEQ makes this change in
the final rule and makes additional revisions to change the language
from passive to active voice.
3. Specificity of Comments and Information (Sec. 1503.3)
CEQ proposed to revise paragraph (a) and retitle Sec. 1503.3,
``Specificity of comments and information,'' to explain that the
purposes of comments is to promote informed decision making and further
clarify that comments should provide sufficient detail for the agency
to consider the comment in its decision-making process. See Pub.
Citizen, 541 U.S. at 764; Vt. Yankee, 435 U.S. at 553 (while ``NEPA
places upon an agency the obligation to consider every significant
aspect of the environmental impact of a proposed action, it is still
incumbent upon [parties] who wish to participate to structure their
participation so that it is meaningful, so that it alerts the agency to
the [parties'] position . . . .''). CEQ also proposed in this paragraph
that comments should explain why the issues raised are significant to
the consideration of potential environmental impacts and alternatives
to the proposed action, as well as economic and employment impacts, and
other impacts affecting the quality of the human environment. In
addition, CEQ proposed in this paragraph that comments should reference
the section or page of the draft EIS, propose specific changes to those
parts of the statement, where possible, and include or describe the
data sources and methodologies supporting the proposed changes. See Vt.
Yankee, 435 U.S. at 553 (``[Comments] must be significant enough to
step over a threshold requirement of materiality before any lack of
agency response or consideration becomes a concern. The comment cannot
merely state that a particular mistake was made . . . ; it must show
why the mistake was of possible significance in the results . . . .''
(quoting Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 394 (D.C.
Cir. 1973)). CEQ includes these changes in the final rule to ensure
that agencies are alerted to all interested and affected parties'
concerns, but changes ``significant'' to ``important'' issues in the
second sentence to avoid confusion with significant effects. Nothing in
these revisions should be construed to limit public comment to those
members of the public with scientific or technical expertise, and
agencies should continue to solicit comment from all interested and
affected members of the public. Consistent with the goal of promoting a
manageable process and a meaningful focus on pertinent issues, CEQ also
clarifies that commenters should submit information and raise issues as
early in the process as possible, including during scoping to the
extent practicable. Commenters should timely submit all comments and
make their comments as specific as possible to promote informed and
timely decision making.
CEQ also proposed a new paragraph (b) to emphasize that comments on
the submitted alternatives, information, and analyses section should
identify any additional alternatives, information, or
[[Page 43334]]
analyses not included in the draft EIS, and should be as specific as
possible. The proposal required comments and objections to be raised
within 30 days of publication of the notice of availability of the
final EIS and noted that comments and objections not provided within
those 30 days are considered exhausted and forfeited under Sec.
1500.3(b). In the final rule, CEQ includes this paragraph with some
changes. The final rule provides that comments should be on the
submitted alternatives, information, and analyses themselves as well as
the summary that Sec. 1502.17 requires and be as specific as possible.
It further provides that comments and objections on the draft EIS must
be raised within the comment period provided by the agency, consistent
with Sec. 1506.11. The final rule does not include the 30-day comment
period, as discussed in sections II.B.3 and II.E.1; however, it
provides that if the agency requests comments on the final EIS,
comments and objections must be raised within the comment period. The
final rule also provides that comments and objections not provided
within the relevant comment periods are considered unexhausted and
forfeited under Sec. 1500.3(b).
CEQ proposed to change ``commenting'' agency to ``participating''
agency in paragraph (c), and ``entitlements'' to ``authorizations'' in
paragraph (d). CEQ makes these changes in the final rule. Finally, CEQ
proposed to broaden paragraph (e) to require cooperating agencies with
jurisdiction by law to specify the mitigation measures they consider
necessary for permits, licenses, or related requirements, including the
applicable statutory authority. CEQ includes this change in the final
rule because it will provide greater transparency and clarity to the
lead agency and the public when mitigation is required under another
statute.
4. Response to Comments (Sec. 1503.4)
In practice, the processing of comments can require substantial
time and resources. CEQ proposed to amend Sec. 1503.4, ``Response to
comments,'' to simplify and clarify in paragraph (a) that agencies are
required to consider substantive comments timely submitted during the
public comment period. CEQ also proposed to clarify that an agency may
respond to comments individually or collectively. Consistent with this
revision, CEQ proposed to clarify that, in the final EIS, agencies may
respond by a variety of means, and to strike the detailed language in
paragraph (a)(5) relating to comments that do not warrant further
agency response. CEQ includes these changes with some modifications in
the final rule. Specifically, CEQ changes ``individually'' to
``individual'' and ``collectively'' to ``groups of comments'' to
clarify that agencies may respond to individual comments or group and
respond once to a group of comments addressing the same issue. CEQ also
modifies paragraph (a) introductory text to make clear that the list in
paragraphs (a)(1) through (5) is how the agency may respond to
comments. Finally, CEQ adds a clause to paragraph (a)(5) to reinforce
that agencies do not have to respond to each comment individually.
Under the 1978 regulations, agencies have had flexibility in how they
structure their responses to comments, and CEQ does not consider this
clarification to be a change in position.
CEQ proposed to clarify in paragraph (b) that agencies must append
comments and responses to EISs rather than including them in the body
of the EIS, or otherwise publish them. Under current practice, some
agencies include these comment responses in the EISs themselves, which
can contribute to excessive length. See CEQ Length of EISs Report,
supra note 38. CEQ makes this change in the final rule. As noted in the
NPRM, these changes do not preclude an agency from summarizing or
discussing specific comments in the EIS as well.
Finally, CEQ proposed to amend paragraph (c) for clarity. CEQ makes
the proposed changes and additional clarifying edits in the final rule.
F. Revisions to Pre-Decisional Referrals to the Council of Proposed
Federal Actions Determined To Be Environmentally Unsatisfactory (Part
1504)
CEQ proposed edits to part 1504, ``Pre-decisional Referrals to the
Council of Proposed Federal Actions Determined to be Environmentally
Unsatisfactory,'' to improve clarity, including grammatical
corrections. CEQ also proposed to reference specifically EAs in this
part. Although infrequent, agencies have made referrals to CEQ on EAs.
CEQ also proposed a minor revision to the title of part 1504, striking
``Predecision'' and inserting ``Pre-decisional.'' CEQ makes these
changes in the final rule.
1. Purpose (Sec. 1504.1)
Section 1504.1, ``Purpose,'' addresses the purpose of part 1504,
including CEQ referrals by the EPA. Section 309 of the Clean Air Act
(42 U.S.C. 7609) requires EPA to review and comment on certain proposed
actions of other Federal agencies and to make those comments public.
Where appropriate, EPA may exercise its authority under section 309(b)
of the Clean Air Act and refer the matter to CEQ, as stated in
paragraph (b). The final rule revises this paragraph for clarity,
changing it from passive to active voice. Paragraph (c) provides that
other Federal agencies also may prepare such reviews. In the NPRM, CEQ
proposed to change ``may make'' to ``may produce'' in this paragraph.
The final rule changes this phrase to ``may prepare'' since ``prepare''
is the commonly used verb in these regulations.
2. Criterial for Referral (Sec. 1504.2)
CEQ proposed to change ``possible'' to ``practicable'' in the
introductory paragraph of Sec. 1504.2, ``Criteria for referral.'' CEQ
makes this change in the final rule as discussed in section II.A.
Consistent with the NEPA statute, CEQ proposed to add economic and
technical considerations to paragraph (g) of Sec. 1504.2, ``Criteria
for referrals.'' CEQ includes this change in the final rule.
3. Procedure for Referrals and Response (Sec. 1504.3)
In Sec. 1504.3, ``Procedure for referrals and response,'' CEQ
proposed changes to simplify and modernize the referral process to
ensure it is timely and efficient. CEQ proposed to change the language
in this section from passive to active voice and make other clarifying
edits to the language. CEQ includes these changes with some additional
clarifying edits in the final rule. Specifically, in paragraphs (a)(1)
and (2), CEQ changes ``advise'' and ``such advice'' to ``notify'' and
``a notification'' respectively. CEQ proposed to eliminate the
exception in paragraph (a)(2) for statements that do not contain
adequate information to permit an assessment of the matter's
environmental acceptability. CEQ removes this clause in the final rule.
The referring agency should provide the lead agency and CEQ with as
much information as possible, including identification of when the
information is inadequate to permit an assessment. In paragraph (a)(4),
CEQ changes ``such advice'' to ``the referring agency's views'' in the
final rule to clarify what the referring agency is sending to CEQ.
In paragraph (b), CEQ proposed to change ``commenting agencies'' to
``participating agencies,'' a change CEQ proposed throughout the rule,
and to add a timeframe for referrals of EAs. CEQ makes these changes in
the final rule. CEQ proposed to strike from paragraph (c)(1) the clause
requiring the referral request that no action be taken to implement the
matter until CEQ takes
[[Page 43335]]
action. CEQ removes this clause in the final rule because it is
unnecessarily limiting. Agencies should have the flexibility to
determine what they are requesting of the lead agency when making a
referral, which may include a request not to take any action on the
matter.
CEQ proposed to change ``material facts in controversy'' to
``disputed material facts'' in paragraph (c)(2)(i) for clarity and to
simplify paragraph (c)(2)(iii) to focus on the reasons for the
referral, which may include that the matter is environmentally
unsatisfactory. CEQ proposed to revise paragraph (d)(2) to emphasize
that the lead agency's response should include both evidence and
explanations, as appropriate. CEQ proposed to revise paragraph (e) to
simplify the process and to provide direction to applicants regarding
the submittal of their views to the CEQ. CEQ proposed to strike the
reference to public meetings or hearings in paragraph (f)(3) to provide
more flexibility to CEQ in how it obtains additional views and
information, which could include a public meeting or hearing. However,
there may be other, more effective mechanisms to collect such
information, including through use of current technologies. CEQ makes
these changes in the final rule.
Finally, CEQ proposed to modify paragraph (h) to clarify that the
referral process is not a final agency action that is judicially
reviewable and to remove the requirement that referrals be conducted
consistent with the APA where a statute requires that an action be
determined on the record after an opportunity for a hearing. Where
other statutes govern the referral process, those statutes continue to
apply, and these regulations do not need to speculate about what
process might be required. Therefore, CEQ eliminates this language in
the final rule and replaces it with the clarification that the referral
process does not create a private right of action because, among other
considerations, there is no final agency action.
G. Revisions to NEPA and Agency Decision Making (Part 1505)
1. Remove and Reserve Agency Decisionmaking Procedures (Sec. 1505.1)
In the NPRM, CEQ proposed to move the text of 40 CFR 1505.1,
``Agency decisionmaking procedures,'' to Sec. 1507.3(b). As discussed
further in section II.I.3, CEQ makes this change in the final rule and
reserves Sec. 1505.1 for future use.
2. Record of Decision in Cases Requiring Environmental Impact
Statements (Sec. 1505.2)
CEQ proposed to redesignate the introductory paragraph of Sec.
1505.2, ``Record of decision in cases requiring environmental impact
statements,'' as paragraph (a) and revise it to require agencies to
``timely publish'' a ROD. CEQ also proposed to clarify that the CEQ
regulations allow for ``joint'' RODs by two or more Federal agencies;
this change is also consistent with the OFD policy and E.O. 13807.
Finally, CEQ proposed to remove references to OMB Circular A-95 as
noted previously in section II.A.
CEQ proposed clarifying edits to proposed paragraphs (a) and (c)
(paragraphs (a)(1) and (3) in the final rule) to change from passive to
active voice for clarity. The final rule makes these changes in
paragraphs (a)(1), (2), and (3) in the final rule. The final rule also
removes ``all'' before ``alternatives'' in paragraph (a)(2) for
consistency with the same change in Sec. 1502.14(a).
CEQ proposed to include a requirement in proposed paragraph (d) to
require agencies to respond to any comments on the submitted
alternatives, information, and analyses section in the final EIS. As
discussed in sections II.B.3 and II.E.1, CEQ does not include the
proposed 30-day comment period in the final rule; therefore, CEQ is not
including proposed Sec. 1505.2(d) in the final rule.
In the NPRM, proposed paragraph (e) would require the ROD to
include the decision maker's certification regarding consideration of
the submitted alternatives, information, and analyses section, which
proposed Sec. 1502.18 required. The final rule replaces what was
proposed paragraph (e) with the language moved from proposed Sec.
1502.18, ``Certification of alternatives, information, and analyses
section,'' in paragraph (b). In the NPRM, Sec. 1502.18 stated that,
based on the alternatives, information, and analyses section required
under Sec. 1502.17, the decision maker for the lead agency must
certify that the agency has considered such information and include the
certification in the ROD under Sec. 1505.2(d) (as proposed). This
provision also proposed a conclusive presumption that the agency has
considered information summarized in that section because it is
reasonable to presume the agency has considered such information based
on the process to request and summarize public comments on the
submitted alternatives, information, and analyses.
CEQ modifies the proposed text of Sec. 1502.18 in the final rule
and in paragraph (b) of Sec. 1505.2 to clarify that the decision
maker's certification in the ROD is informed by the summary of
submitted alternatives, information, and analyses in the final EIS and
any other material in the record that the decision maker determines to
be relevant. This includes both the draft and final EIS as well as any
supporting materials incorporated by reference or appended to the
document. The final rule also changes ``conclusive presumption'' to a
``presumption'' and clarifies that the agency is entitled to a
presumption that it has considered the submitted alternatives,
information, and analyses, including the summary thereof in the final
EIS. Establishing a rebuttable presumption will give appropriate weight
to the process that culminates in the certification, while also
allowing some flexibility in situations where essential information may
have been inadvertently overlooked. The presumption and associated
exhaustion requirement also will encourage commenters to provide the
agency with all available information prior to the agency's decision,
rather than disclosing information after the decision is made or in
subsequent litigation. This is important for the decision-making
process and efficient management of agency resources.
3. Implementing the Decision (Sec. 1505.3)
CEQ proposed minor edits to Sec. 1505.3, ``Implementing the
decision'' to change ``commenting'' agencies to ``participating'' in
paragraph (c) and ``make available to the public'' to ``publish'' in
paragraph (d). CEQ makes these changes in the final rule.
H. Revisions to Other Requirements of NEPA (Part 1506)
CEQ proposed a number of edits to part 1506 to improve the NEPA
process to make it more efficient and flexible, especially where
actions involve third-party applicants. CEQ also proposed several edits
for clarity. CEQ finalizes many of these proposed changes in the final
rule with some additional clarifying edits.
1. Limitations on Actions During NEPA Process (Sec. 1506.1)
CEQ proposed to add FONSIs to paragraph (a) of Sec. 1506.1,
``Limitations on actions during NEPA process,'' to clarify existing
practice and judicial determinations that the limitation on actions
applies when an agency is preparing an EA as well as an EIS. CEQ
proposed to consolidate paragraph (d) with paragraph (b) and revise the
[[Page 43336]]
language to provide additional clarity on what activities are allowable
during the NEPA process. Specifically, CEQ proposed to eliminate
reference to one specific agency, broadening the provision to all
agencies and providing that this section does not preclude certain
activities by an applicant to support an application of Federal, State,
Tribal, or local permits or assistance. As an example of activities an
applicant may undertake, CEQ proposed to add ``acquisition of interests
in land,'' which includes acquisitions of rights-of-way and
conservation easements. CEQ invited comment on whether it should make
any additional changes to Sec. 1506.1, including whether there are
circumstances under which an agency may authorize irreversible and
irretrievable commitments of resources. CEQ finalizes this provision as
proposed with minor grammatical changes, and simplifying the references
in paragraphs (c) introductory text and (c)(2) from programmatic
environmental impact ``statement'' to ``review.''
2. Elimination of Duplication With State, Tribal, and Local Procedures
(Sec. 1506.2)
CEQ proposed revisions to Sec. 1506.2, ``Elimination of
duplication with State, Tribal, and local procedures'' to promote
efficiency and reduce duplication between Federal and State, Tribal,
and local requirements. These changes are consistent with the
President's directive in E.O. 13807 to provide for agency use, to the
maximum extent permitted by law, of environmental studies, analysis,
and decisions in support of earlier Federal, State, Tribal, or local
environmental reviews or authorization decisions. E.O. 13807, sec.
5(e)(i)(C). CEQ proposed to revise paragraph (a) to acknowledge the
increasing number of State, Tribal, and local governments conducting
NEPA reviews pursuant to assignment from Federal agencies. See, e.g.,
23 U.S.C. 327, and 25 U.S.C. 4115 and 5389(a). CEQ makes this change in
the final rule. The revision in paragraph (a) clarifies that Federal
agencies are authorized to cooperate with such State, Tribal, and local
agencies, and paragraph (b) requires cooperation to reduce duplication.
CEQ proposed to add examples to paragraph (b) to encourage use of
prior reviews and decisions and modify paragraph (c) to give agencies
flexibility to determine whether to cooperate in fulfilling State,
Tribal, or local EIS or similar requirements. CEQ includes these
proposed changes in the final rule and reorders the language to provide
additional clarity. Additionally, the final rule makes further changes
to paragraph (b) to remove potential impediments for agency use of
studies, analysis, and decisions developed by State, Tribal, and local
government agencies. Some commenters stated that CEQ proposed to limit
agency use to only environmental studies, analysis, and decisions and
exclude socio-economic and other information. The final rule clarifies
that agencies should make broad use of studies, analysis, and decisions
prepared by State, Tribal, and local agencies, as appropriate based on
other requirements including Sec. 1502.23. Finally, CEQ proposed to
clarify in paragraph (d) that NEPA does not require reconciliation of
inconsistencies between the proposed action and State, Tribal, or local
plans or laws, although the EIS should discuss the inconsistencies. CEQ
makes these revisions in the final rule.
3. Adoption (Sec. 1506.3)
CEQ proposed to expand adoption to EAs, consistent with current
practice by many agencies, and CE determinations and clarify the
process for documenting the decision to adopt. CEQ includes these
proposed changes in the final rule with additional revisions to align
the language for consistency in each paragraph and better organize
Sec. 1506.3 by grouping the provisions relating to EISs into paragraph
(b), EAs in paragraph (c), and CE determinations in paragraph (d).
Paragraph (a) includes the general requirement for adoption, which
is that any adoption must meet the standard for an adequate EIS, EA, or
CE determination, as appropriate, under the CEQ regulations. CEQ
proposed to reference EAs in this paragraph. The final rule includes CE
determinations as well as EAs and reorders the documents for
consistency with the ordering of paragraphs (b) through (d)--EISs, EAs
(including portions of EISs or EAs), and CE determinations.
CEQ proposed clarifying edits in paragraph (b) and changed
references from recirculation to republication consistent with this
change throughout the rule. In the final rule, CEQ subdivides paragraph
(b) into subordinate paragraphs (b)(1) and (2). Paragraph (b)(1)
addresses EISs where the adopting agency is not a cooperating agency.
CEQ moves the cooperating agency exception to republication to
paragraph (b)(2). Consistent with the proposed rule, this paragraph
also clarifies that the cooperating agency adopts such an EIS by
issuing its own ROD.
In the NPRM, proposed paragraph (f) would allow an agency to adopt
another agency's determination that its CE applies to an action if the
adopting agency's proposed action is substantially the same. CEQ
includes this provision in paragraph (d) of the final rule with
clarifying edits. The final rule provides agencies the flexibility to
adopt another agency's determination that a CE applies to an action
when the actions are substantially the same to address situations where
a proposed action would result in a CE determination by one agency and
an EA and FONSI by another agency. For example, this would be the case
when two agencies are engaging in similar activities in similar areas
like small-scale prescribed burns, ecological restoration, and small-
scale land management practices. Another example is when one agency's
action may be a funding decision for a proposed project, and another
agency's action is to consider a permit for the same project.
To allow agencies to use one another's CEs without the agency that
promulgated the CE having to take an action, CEQ also proposed a new
Sec. 1507.3(e)(5), which would allow agencies to establish a process
in their NEPA procedures to apply another agency's CE. CEQ notes that
there was some confusion among commenters regarding the difference
between the adoption of CEs under Sec. 1506.3 and the provision in
Sec. 1507.3(f)(5) (proposed Sec. 1507.3(e)(5)).\97\ CEQ has made
clarifying edits to address this confusion.
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\97\ For a discussion of the differences between these two
provisions, see section I.3 of the Final Rule Response to Comments.
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The adoption process in Sec. 1506.3(d) first requires that an
agency has applied a CE listed in its agency NEPA procedures. Then, the
adopting agency must verify that its proposed action is substantially
the same as the action for which it is adopting the CE determination.
CEQ adds a sentence in Sec. 1507.3(f)(5) of the final rule to clarify
that agencies may establish a separate process for using another
agency's listed CE and applying the CE to its proposed actions. The
final rule also requires the adopting agency to document the adoption.
Agencies may publish, where appropriate, such documentation or other
information relating to the adoption.
4. Combining Documents (Sec. 1506.4)
CEQ proposed to amend Sec. 1506.4, ``Combining documents,'' to
encourage agencies ``to the fullest extent practicable'' to combine
their environmental documents with other
[[Page 43337]]
agency documents to reduce duplication and paperwork. For example, the
Corps routinely combines EISs with feasibility reports, and agencies
may use their NEPA documents to satisfy compliance with section 106 of
the National Historic Preservation Act under 36 CFR 800.8. CEQ includes
the proposed revisions in the final rule with no changes.
5. Agency Responsibility for Environmental Documents (Sec. 1506.5)
As discussed in the NPRM, CEQ proposed to revise Sec. 1506.5,
``Agency responsibility for environmental documents,'' in response to
ANPRM comments urging CEQ to allow greater flexibility for the project
sponsor (including private entities) to participate in the preparation
of NEPA documents under the supervision of the lead agency. CEQ
proposed updates to give agencies more flexibility with respect to the
preparation of environmental documents while continuing to require
agencies to independently evaluate and take responsibility for those
documents. Under the proposal, applicants and contractors would be able
to assume a greater role in contributing information and material to
the preparation of environmental documents, subject to the supervision
of the agency. However, agencies would remain responsible for taking
reasonable steps to ensure the accuracy of information prepared by
applicants and contractors. If a contractor or applicant prepares the
document, proposed paragraph (c)(1) would require the decision-making
agency official to provide guidance, participate in the preparation,
independently evaluate the statement, and take responsibility for its
content.
In the final rule, CEQ retains these concepts, but reorganizes
Sec. 1506.5 to better communicate the requirements. Specifically,
paragraph (a) contains a clear statement that the Federal agency is
ultimately responsible for the environmental document irrespective of
who prepares it. While this is consistent with the 1978 regulations,
CEQ provides this direct statement at the beginning of the section to
respond to comments that suggested agencies would be handing over their
responsibilities to project sponsors under the proposed rule.
Paragraph (b) introductory text and its subordinate paragraphs
capture the requirements when a project sponsor or contractor prepares
an environmental document, consolidating requirements for EISs and EAs
into one because there is no longer a distinction between the
requirements for each document in this context. Paragraph (b) allows an
agency to require an applicant to submit environmental information for
the agency's use in preparing an environmental document or to direct an
applicant or authorize a contractor to prepare an environmental
document under the agency's supervision. As noted in the NPRM, CEQ
intends these changes to improve communication between proponents of a
proposal for agency action and the officials tasked with evaluating the
effects of the action and reasonable alternatives, to improve the
quality of NEPA documents and efficiency of the NEPA process.
Paragraph (b)(1) requires agencies to provide guidance to the
applicant or contractor and participate in the preparation of the NEPA
document. Paragraph (b)(2) continues to require the agency to
independently evaluate the information or environmental document and
take responsibility for its accuracy, scope, and contents. Paragraph
(b)(3) requires the agency to include the names and qualifications of
the persons who prepared the environmental document. Adding
``qualifications'' is consistent with Sec. 1502.18 and is important
for transparency. For an EIS, this information would be included in the
list of preparers as required by Sec. 1502.18, but agencies have
flexibility on where to include such information in an EA. Paragraph
(b)(4) requires contractors or applicants preparing EAs or EISs to
submit a disclosure statement to the lead agency specifying any
financial or other interest in the outcome of the action, but it need
not include privileged or confidential trade secrets or other
confidential business information. In the NPRM, CEQ had proposed to
remove the requirement for a disclosure statement. In response to
comments, CEQ is retaining this concept in the final rule, recognizing
that most applicants will have such a financial interest. However, as
discussed above, CEQ finds that it is appropriate to allow applicants
to prepare documents for the sake of efficiency and because agencies
retain responsibility to oversee and take responsibility for the final
environmental document.
6. Public Involvement (Sec. 1506.6)
CEQ proposed to update Sec. 1506.6, ``Public involvement,'' to
give agencies greater flexibility to design and customize public
involvement to best meet the specific circumstances of their proposed
actions. The NPRM proposed revisions to paragraphs (b) and (c) to add
``other opportunities for public engagement'' to recognize that there
are other ways to engage with interested and affected parties besides
hearings and meetings. CEQ finalizes these changes in the final rule
but changes ``engagement'' to ``involvement'' consistent with the title
of the section. Additionally, the final rule adds a sentence to these
paragraphs to require agencies to consider interested and affected
parties' access to electronic media, such as in rural locations or
economically distressed areas. CEQ had proposed to state in a new
paragraph (b)(3)(x) that notice may not be limited solely to electronic
methods for actions occurring in an area with limited access to high-
speed internet. However, CEQ is including this more general statement
in paragraph (b) as it is a consideration for notice generally. In
paragraph (b)(1), CEQ proposed to change the requirement to mail notice
in paragraphs (b)(1) and (2) to the more general requirement to
``notify'' to give agencies the flexibility to use email or other
mechanisms to provide such notice. CEQ makes this change in the final
rule. CEQ also eliminates the requirement in paragraph (b)(2) to
maintain a list of organizations reasonably expected to be interested
in actions with effects of national concern because such a requirement
is unnecessarily prescriptive given that agencies may collect and
organize contact information for organizations that have requested
regular notice in another format given advances in technology. In the
proposed rule, CEQ proposed to change paragraph (b)(3)(i) to modify
State clearinghouses to State and local agencies, and change paragraph
(b)(3)(ii) to affected Tribal governments. In the final rule, CEQ
modifies paragraph (b)(3)(i) to include notice to State, Tribal, and
local agencies, and paragraph (b)(3)(ii) to include notice to
interested or affected State, Tribal, and local governments for
consistency with Sec. 1501.9 and part 1503. CEQ proposed a new
paragraph (b)(3)(x) to allow for notice through electronic media. CEQ
includes this provision in the final rule, moving the language
regarding consideration of access to paragraph (b), as noted
previously.
In addition to the changes described above, CEQ proposed to strike
the mandatory criteria in paragraph (c) for consideration of when to
hold or sponsor public hearings or meetings. CEQ is removing this
language in the final rule because such criteria are unnecessarily
limiting. Agencies consider many factors in determining the most
appropriate mechanism for promoting public involvement, including the
particular location of the proposed action (if one exists), the types
of effects it may have, and the needs of interested and affected
parties, and may design their outreach in a manner that
[[Page 43338]]
best engages with those parties. The flexibility to consider relevant
factors is critical especially in light of unexpected circumstances,
such as the COVID-19 pandemic, which may require agencies to adapt
their outreach as required by State, Tribal, and local authorities and
conditions.
Finally, CEQ proposed to simplify paragraph (f) to require agencies
to make EISs, comments and underlying documents available to the public
consistent with the Freedom of Information Act (FOIA), removing the
provisos regarding interagency memoranda and fees. Congress has amended
FOIA numerous times since the enactment of NEPA, mostly recently by the
FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538.
Additionally, the revised paragraph (f) is consistent with the text of
section 102(2)(C) of NEPA, including with regard to fees. CEQ makes
these changes as proposed in the final rule.
7. Further Guidance (Sec. 1506.7)
CEQ proposed to update and modernize Sec. 1506.7, ``Further
guidance,'' to remove the specific references to handbooks, memoranda,
and the 102 monitor, and replace it with a statement that CEQ may
provide further guidance concerning NEPA and its procedures consistent
with E.O. 13807 and E.O. 13891, ``Promoting the Rule of Law Through
Improved Agency Guidance Documents.'' \98\ CEQ makes these changes in
paragraph (a) in the final rule. This rule supersedes preexisting CEQ
guidance and materials in many respects. CEQ intends to publish a
separate notice in the Federal Register listing guidance it is
withdrawing. CEQ will issue new guidance, as needed, consistent with
the final rule and Presidential directives. In the interim, in any
instances where an interpretation of the 1978 regulations is
inconsistent with the new regulations or this preamble's interpretation
of the new regulations, the new regulations and interpretations shall
apply, and CEQ includes a new paragraph (b) in the final rule to
provide this clarification. CEQ notes that guidance does not have the
force and effect of law and is meant to provide clarity regarding
existing law and policy.
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\98\ 84 FR 55235 (Oct. 15, 2019).
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8. Proposals for Legislation (Sec. 1506.8)
CEQ proposed to move the legislative EIS requirements from the
definition of legislation in 40 CFR 1508.17 to paragraph (a) of Sec.
1506.8, ``Proposals for legislation,'' and revise the section for
clarity. As noted in the NPRM, agencies prepare legislative EISs for
Congress when they are proposing specific actions. CEQ also invited
comment on whether the legislative EIS requirement should be eliminated
or modified because the President proposes legislation, and therefore
it is inconsistent with the Recommendations Clause of the U.S.
Constitution, which provides the President shall recommend for
Congress' consideration ``such [m]easures as he shall judge necessary
and expedient . . . .'' U.S. Const., art. II, Sec. 3. The President is
not a Federal agency, 40 CFR 1508.12, and the proposal of legislation
by the President is not an agency action. Franklin v. Mass., 505 U.S.
788, 800-01 (1992).
In the final rule, CEQ retains the provision, but removes the
reference to providing ``significant cooperation and support in the
development'' of legislation and the test for significant cooperation
to more closely align this provision with the statute. The final rule
clarifies that technical drafting assistance is not a legislative
proposal under these regulations. Consistent with these edits, CEQ
strikes the reference to the Wilderness Act. The mandate has
expired.\99\ Under the Wilderness Act, a study was required to make a
recommendation to the President. If the President agreed with the
recommendation, the President then provided ``advice'' to Congress
about making a wilderness determination. The President is not subject
to NEPA in his direct recommendations to Congress, but agencies subject
to the APA are subject to NEPA, as appropriate, concerning legislative
proposals they develop. This avoids the constitutional issue. See
Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis,
J., concurring); Rescue Army v. Mun. Court of L.A., 331 U.S. 549, 569
(1947).
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\99\ 16 U.S.C. 1132(b)-(c).
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9. Proposals for Regulations (Sec. 1506.9)
CEQ proposed to add a new Sec. 1506.9, ``Proposals for
regulations,'' to address the analyses required for rulemakings and to
promote efficiency and reduce duplication in the assessment of
regulatory proposals. CEQ proposed criteria for agencies to identify
analyses that could serve as the functional equivalent of the EIS. In
response to comments, CEQ revises this section in the final rule. This
section clarifies that one or more procedures and documentation
prepared pursuant to other statutory or Executive order requirements
may satisfy one or more requirements of the CEQ regulations. When a
procedure or document satisfies one or more requirements of this
subchapter, the agency may substitute it for the corresponding
requirements in this subchapter and need not carry out duplicative
procedures or documentation. Agencies must identify which corresponding
requirements in this subchapter are satisfied and consult with CEQ to
confirm such determinations.
CEQ invited comments on analyses agencies are already conducting
that, in whole or when aggregated, can serve as the functional
equivalent of the EIS. Aspects of the cost-benefit analysis prepared
pursuant to E.O. 12866, ``Regulatory Planning and Review,'' the
Regulatory Flexibility Act, or the Unfunded Mandates Reform Act, may
overlap with aspects of the CEQ regulations. Further, an agency may
rely on the procedures implementing the requirements of a variety of
statutes and Executive orders that could meet some or all of the
requirements of this subchapter. CEQ does not expressly include
specific analyses in the final rule that satisfy the requirements of
the CEQ regulations. In all instances, agencies should clearly identify
how and which specific parts of the analyses serve the purpose of NEPA
compliance, including which requirements in the CEQ regulations are
satisfied.
10. Filing Requirements (Sec. 1506.10)
CEQ proposed to update Sec. 1506.10, ``Filing requirements,'' to
remove the obsolete process for filing paper copies of EISs with EPA
and EPA's delivery of a copy to CEQ, and instead provide for electronic
filing, consistent with EPA's procedures. CEQ proposed this change to
provide flexibility to adapt as EPA changes its processes. CEQ revises
this section in the final rule, making the proposed changes as well as
phrasing the language in active voice.
11. Timing of Agency Action (Sec. 1506.11)
CEQ proposed to revise paragraph (a) of Sec. 1506.11, ``Timing of
agency action,'' to clarify the timing of EPA's notices of availability
of EISs. In paragraph (b), CEQ proposed to add a clause to acknowledge
statutory authorities that provide for the issuance of a combined final
EIS and ROD. See 23 U.S.C. 139(n)(2); 49 U.S.C. 304a(b). CEQ makes
these changes in the final rule.
In proposed paragraph (c), CEQ proposed to add introductory text
and create subordinate paragraphs to address those situations where
agencies may make an exception to the time provisions in paragraph (b).
Specifically, paragraph (c)(1) addresses agencies with formal appeals
processes. Paragraph (c)(2) provides exceptions for
[[Page 43339]]
rulemaking to protect public health or safety. Paragraph (d) addresses
timing when an agency files the final EIS within 90 days of the draft
EIS. Finally, paragraph (e) addresses when agencies may extend or
reduce the time periods. The proposed rule made edits to clarify the
language in these paragraphs without changing the substance of the
provisions. CEQ includes these changes in the final rule and makes
additional clarifying revisions.
12. Emergencies (Sec. 1506.12)
Section 1506.12, ``Emergencies,'' addresses agency compliance with
NEPA when an agency has to take an action with significant
environmental effects during emergency circumstances. Over the last 40
years, CEQ has developed significant experience with NEPA in the
context of emergencies and disaster recoveries. Actions following
Hurricanes Katrina, Harvey, and Michael, and other natural disasters,
have given CEQ the opportunity to respond to a variety of circumstances
where alternative arrangements for complying with NEPA are necessary.
CEQ has approved alternative arrangements to allow a wide range of
proposed actions in emergency circumstances including catastrophic
wildfires, threats to species and their habitat, economic crisis,
infectious disease outbreaks, potential dam failures, and insect
infestations.\100\ CEQ proposed to amend Sec. 1506.12,
``Emergencies,'' to clarify that alternative arrangements are still
meant to comply with section 102(2)(C)'s requirement for a ``detailed
statement.'' This amendment is consistent with CEQ's longstanding
position that it has no authority to exempt Federal agencies from
compliance with NEPA, but that CEQ can appropriately provide for
exceptions to specific requirements of CEQ's regulations to address
extraordinary circumstances that are not addressed by agency
implementing procedures previously approved by CEQ. See Emergencies
Guidance, supra note 29. CEQ maintains a public description of all
pending and completed alternative arrangements on its website.\101\ CEQ
makes this change in the final rule.
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\100\ In response to the economic crisis associated with the
coronavirus outbreak, Executive Order 13927, titled ``Accelerating
the Nation's Economic Recovery From the COVID-19 Emergency by
Expediting Infrastructure Investments and Other Activities,'' was
issued on June 4, 2020. 85 FR 35165. This Executive order directs
agencies to identify planned or potential actions to facilitate the
Nation's economic recovery, including identification of actions that
may be subject to emergency treatment as alternative arrangements.
\101\ https://ceq.doe.gov/nepa-practice/alternative_arrangements.html.
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13. Effective Date (Sec. 1506.13)
Finally, CEQ proposed to modify Sec. 1506.13, ``Effective date,''
to clarify that these regulations would apply to all NEPA processes
begun after the effective date, but agencies have the discretion to
apply them to ongoing NEPA processes. CEQ also proposed to remove the
1979 effective date from the introductory paragraph, and strike 40 CFR
1506.13(a) referencing the 1973 guidance and 40 CFR 1506.13(b)
regarding actions begun before January 1, 1970 because they are
obsolete. This final rule makes these changes.
I. Revisions to Agency Compliance (Part 1507)
CEQ proposed modifications to part 1507, which addresses agency
compliance with NEPA, to consolidate provisions relating to agency
procedures from elsewhere in the CEQ regulations, and add a new section
to address the dissemination of information about agency NEPA programs.
CEQ makes these changes in the final rule with some modifications to
the proposed rule as discussed in the following sections.
1. Compliance (Sec. 1507.1)
CEQ proposed a change to Sec. 1507.1, ``Compliance,'' to strike
the second sentence regarding agency flexibility in adapting its
implementing procedures to the requirements of other applicable laws
for consistency with changes to paragraphs (a) and (b) of Sec. 1507.3,
``Agency NEPA procedures.'' This change is also consistent with the
direction of the President to Federal agencies to ``comply with the
regulations issued by the Council except where such compliance would be
inconsistent with statutory requirements.'' E.O. 11514, as amended by
E.O. 11991, sec. 2(g). CEQ makes this change in the final rule. Under
the final rule, Sec. 1507.1 requires all Federal agencies to comply
with the CEQ regulations as set forth in parts 1500 through 1508.
2. Agency Capability To Comply (Sec. 1507.2)
CEQ proposed edits to the introductory paragraph of Sec. 1507.2,
``Agency capability to comply,'' to clarify its meaning, which is to
allow agencies to use the resources (including personnel and financial
resources) of other parties, including agencies and applicants, and to
specifically require agencies to account for the contributions of these
other parties in complying with NEPA. This section also requires
agencies to have their own capacity to comply with NEPA and the
implementing regulations. This includes staff with the expertise to
independently evaluate environmental documents, including those
prepared by applicants and contractors. CEQ makes these clarifying
edits in the final rule.
Additionally, CEQ proposed to revise paragraph (a) to make the
senior agency official responsible for overall agency compliance with
NEPA, including coordination, communication, and resolution of
implementation issues. CEQ is finalizing this change. Under the final
rule, the senior agency official is an official of assistant secretary
rank or higher (or equivalent) with responsibilities consistent with
the responsibilities of senior agency officials in E.O. 13807 to whom
agencies elevate anticipated missed or extended permitting timetable
milestones. The senior agency official is responsible for addressing
disputes among lead and cooperating agencies and enforcing page and
time limits. The senior agency official also is responsible for
ensuring all environmental documents--even exceptionally lengthy ones--
are provided to Federal agency decision makers in a timely, readable,
and useful format. See Sec. Sec. 1501.5(f), 1501.7(d), 1501.8(b)(6)
and (c), 1501.10, 1502.7, 1507.2, 1508.1(dd).
CEQ proposed to amend paragraph (c) to emphasize agency
cooperation, which includes commenting on environmental documents on
which an agency is cooperating. CEQ makes this change in the final
rule. CEQ revises paragraph (d) in response to comments to strike the
second sentence, which created confusion regarding the reach of section
102(2)(E) of NEPA. Finally, CEQ proposed to add references to E.O.
11991, which amended E.O. 11514, and E.O. 13807 in paragraph (f) to
codify agencies' responsibility to comply with the orders. CEQ makes
both of these changes in the final rule.
3. Agency NEPA Procedures (Sec. 1507.3)
Agency NEPA procedures set forth the process by which agencies
comply with NEPA and the CEQ regulations in the context of their
particular programs and processes. In developing their procedures,
agencies should strive to identify and apply efficiencies, such as use
of applicable CEs, adoption of prior NEPA analyses, and incorporation
by reference to prior relevant Federal, State, Tribal, and local
analyses, wherever practicable. To facilitate effective and efficient
procedures, CEQ
[[Page 43340]]
proposed to consolidate all of the requirements for agency NEPA
procedures in Sec. 1507.3, as discussed in detail below.
In the final rule, CEQ adds a new paragraph (a) to clarify the
applicability of these regulations in the interim period between the
effective date of the final rule and when the agencies complete updates
to their agency NEPA procedures for consistency with these regulations.
Consistent with Sec. 1506.13, ``Effective date,'' which makes the
regulations applicable to NEPA reviews begun after the effective date
of the final rule, paragraph (a) of Sec. 1507.3 requires agencies to
apply these regulations to new reviews unless there is a clear and
fundamental conflict with an applicable statute. For NEPA reviews in
process that agencies began before the final rule's effective date,
agencies may choose whether to apply the revised regulations or proceed
under the 1978 regulations and their existing agency NEPA procedures.
Agencies should clearly indicate to interested and affected parties
which procedures it is applying for each proposed action. The final
rule does not require agencies to withdraw their existing agency NEPA
procedures upon the effective date, but agencies should conduct a
consistency review of their procedures in order to proceed
appropriately on new proposed actions.
Paragraph (a) also provides that agencies' existing CEs are
consistent with the subchapter. CEQ adds this language to ensure CEs
remain available for agencies' use to ensure a smooth transition period
while they work to update their existing agency procedures, including
their CEs, as necessary. This change allows agencies to continue to use
their existing CEs for ongoing activities as well as proposed actions
that begin after the effective date of the CEQ final rule, and
clarifies that revisions to existing CEs are not required within 12
months of the publication date of the final rule. Agencies must still
consider whether extraordinary circumstances are present and should
rely upon any extraordinary circumstances listed in their agency NEPA
procedures as an integral part of an agency's process for applying CEs.
In paragraph (b) (proposed paragraph (a)), CEQ proposed to provide
agencies the later of one year after publication of the final rule or
nine months after the establishment of an agency to develop or revise
proposed agency NEPA procedures, as necessary, to implement the CEQ
regulations and eliminate any inconsistencies with the revised
regulations. CEQ includes this sentence in the final rule with a
correction to the deadline--the deadline is calculated from the
effective date, not the publication date. CEQ notes that this provision
references ``proposed procedures,'' and agencies need not finalize them
by this date. The final rule strikes a balance between minimizing the
disruption to ongoing environmental reviews while also requiring
agencies to revise their procedures in a timely manner to ensure future
reviews are consistent with the final rule. Agencies have the
flexibility to address the requirements of the CEQ regulations as they
relate to their programs and need not state them verbatim in their
procedures. In addition, CEQ proposed to clarify that, except as
otherwise provided by law or for agency efficiency, agency NEPA
procedures shall not impose additional procedures or requirements
beyond those set forth in the CEQ regulations. CEQ includes this
language in the final rule, changing the order of the phrases, changing
``provided by law'' to ``required by law'' to enhance clarity, and
adding a cross-reference to paragraph (c), which references
efficiencies. This change is consistent with the direction of the
President to Federal agencies in E.O. 11514 to comply with the CEQ
regulations issued except where such compliance would be inconsistent
with statutory requirements. E.O. 11514, as amended by E.O. 11991, sec.
2(g). Finally, the final rule eliminates the sentence from 40 CFR
1507.3(a) prohibiting agencies from paraphrasing the CEQ regulations
because it is unnecessarily limiting on agencies. Agencies have the
flexibility to address the requirements of the CEQ regulations as they
relate to their programs and need not state them verbatim in their
procedures.
Consistent with its proposal, the final rule requires agencies to
develop or revise, as necessary, proposed procedures to implement these
regulations. In the NPRM, CEQ proposed to subdivide 40 CFR 1507.3(a)
into subordinate paragraphs (a)(1) and (2) for additional clarity
because each of these paragraphs have an independent requirement. CEQ
finalizes this change as paragraphs (b)(1) and (2) in the final rule.
Paragraph (b)(1) addresses the requirement for agencies to consult with
CEQ when developing or revising proposed procedures. Paragraph (b)(2)
requires agencies to publish proposed agency NEPA procedures for public
review and comment. After agencies address these comments, CEQ must
determine that the agency NEPA procedures conform to and are consistent
with NEPA and the CEQ regulations. CEQ proposed to eliminate the
recommendation to agencies to issue explanatory guidance and the
requirement to review their policies and procedures. CEQ makes this
change in the final rule because it is redundant to the proposed
language in paragraph (b) requiring agencies to update their procedures
to implement the final rule.
The NPRM proposed to move the provisions in Sec. 1505.1, ``Agency
decision making procedures,'' to proposed Sec. 1507.3(b). The final
rule moves these provisions to paragraph (c). As stated in the NPRM,
consistent with the proposed edits to Sec. 1500.1, CEQ proposed to
revise this paragraph to clarify that agencies should ensure decisions
are made in accordance with the Act's procedural requirements and
policy of integrating NEPA with other environmental reviews to promote
efficient and timely decision making. CEQ includes these edits in the
final rule, along with an additional edit to change passive to active
voice. CEQ does not include proposed paragraph (b)(1) (40 CFR
1505.1(a)) in the final rule because the phrase ``[i]mplementing
procedures under section 102(2) of NEPA to achieve the requirements of
section 101 and 102(1)'' could be read to suggest that agencies could
interpret NEPA in a manner that would impose more burdens than the
requirements of the final rule. Including this provision in the final
rule would be inconsistent with the language in paragraph (b) that
limits agency NEPA procedures to the requirements in these regulations
unless otherwise required by law or for agency efficiency. Finally, CEQ
corrects the reference in paragraph (c)(4) to EIS, changing it to
``environmental documents'' consistent with the rest of the paragraph.
CEQ proposed a new paragraph (b)(6) to direct agencies to set forth
in their NEPA procedures requirements to combine their NEPA documents
with other agency documents, especially where the same or similar
analyses are required for compliance with other requirements. As stated
in the NPRM, many agencies implement statutes that call for
consideration of alternatives to the agency proposal, including the no
action alternative, the effects of the agencies' proposal and
alternatives, and public involvement. Agencies can use their NEPA
procedures to align compliance with NEPA and these other statutory
authorities to integrate NEPA's goals for informed decision making with
agencies' specific statutory requirements. This approach is consistent
with some agency practice. See, e.g., 36 CFR part 220; Forest Service
Handbook 1909.15 (U.S.
[[Page 43341]]
Department of Agriculture Forest Service NEPA procedures). More
agencies could use it to achieve greater efficiency and reduce
unnecessary duplication. Additionally the NPRM proposed to allow
agencies to designate analyses or processes that serve as the
functional equivalent of NEPA compliance.
CEQ includes this provision in the final rule at paragraph (c)(5)
with revisions to clarify that agencies may designate and rely on one
or more procedures or documents under other statutes or Executive
orders as satisfying some or all of the requirements in the CEQ
regulations. While courts have held that agencies do not need to
conduct NEPA analyses under a number of statutes that are
``functionally equivalent,'' including the Clean Air Act, the Ocean
Dumping Act, the Federal Insecticide, Fungicide, and Rodenticide Act,
the Resource Conservation and Recovery Act, and the Comprehensive
Environmental Response, Compensation, and Liability Act,\102\ the final
rule recognizes that agencies may substitute processes or documentation
prepared pursuant to other statutes or Executive orders to satisfy one
or more requirements in the CEQ regulations to reduce duplication.
Agencies must identify the respective requirements in this subchapter
that are satisfied by other statutes or Executive orders.
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\102\ See Portland Cement Ass'n, 486 F.2d at 387 (finding an
exemption from NEPA for Clean Air Act section 111); see also Envtl.
Def. Fund, Inc, 489 F.2d at 1254-56 (concluding that the standards
of FIFRA provide the functional equivalent of NEPA); Cellular Phone
Taskforce, 205 F.3d at 94-95 (concluding that the procedures
followed by the Federal Communications Commission were functionally
compliant with NEPA's EA and FONSI requirements); W. Neb. Res.
Council, 943 F.2d at 871-72 (concluding that EPA's procedures and
analysis under the Safe Drinking Water Act were functionally
equivalent to NEPA); Wyo. v. Hathaway, 525 F.2d 66, 71-72 (10th Cir.
1975) (concluding that EPA need not prepare an EIS before cancelling
or suspending registrations of three chemical toxins used to control
coyotes under FIFRA); State of Ala. ex rel. Siegelman v. U.S. EPA,
911 F.2d 499, 504-05 (11th Cir. 1990) (holding that EPA did not need
to comply with NEPA when issuing a final operating permit under the
Resource Conservation and Recovery Act); Envtl. Def. Fund, Inc. v.
Blum, 458 F. Supp. 650, 661-62 (D.D.C. 1978) (EPA need not prepare
an EIS before granting an emergency exemption to a state to use an
unregistered pesticide); State of Md. v. Train, 415 F. Supp. 116,
121-22 (D. Md. 1976) (Ocean Dumping Act functional equivalent of
NEPA). For further discussion, see section J.3 of the Final Rule
Response to Comments.
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Furthermore, CEQ proposed to add a new paragraph to allow agencies
to identify activities or decisions that are not subject to NEPA,
consistent with Sec. 1501.1, in their agency NEPA procedures. CEQ adds
this provision to paragraph (d) in the final rule. The final rule uses
``should'' instead of ``may'' to encourage agencies to make these
identifications in their agency NEPA procedures. The final rule also
replaces ``actions'' with ``activities or decisions'' to avoid
confusion with the definition of ``action'' in Sec. 1508.1(q). CEQ
includes this list in the final rule consistent with the changes in
Sec. 1501.1 as discussed in section II.C.1, with minor revisions to
improve readability and a reordering of the provisions consistent with
the reordering of the provisions in Sec. 1501.1.
Paragraph (e) (proposed paragraph (d)) maintains much of the
language from 40 CFR 1507.3(b). CEQ proposed to add parenthetical
descriptions of the cross-references in proposed paragraph (d)(1), and
CEQ includes these in the final rule at paragraph (e)(1). CEQ proposed
to revise paragraph (d)(2)(ii), which requires agencies to identify CEs
in their agency NEPA procedures, move the requirement for extraordinary
circumstances from the definition of CEs in 40 CFR 1508.4, and require
agencies to identify in their procedures when documentation of a CE
determination is required. CEQ also proposed to add language to
proposed paragraph (e) to codify existing agency practice to publish
notices when an agency pauses an EIS or withdraws an NOI. CEQ includes
this provision with the proposed revisions in the final rule at
paragraph (f)(3). Finally, CEQ proposed to move from 40 CFR
1502.9(c)(3) to proposed paragraph (d)(3) the requirement to include
procedures for introducing a supplement into its formal administrative
record and clarify that this includes EAs and EISs. CEQ includes this
provision in the final rule at paragraph (e)(3).
Paragraphs (f)(1) through (3) (proposed paragraphs (e)(1) through
(3)) maintain much of the language from 40 CFR 1507.3(c) through (e).
In proposed paragraph (e)(1), CEQ proposed to revise the language to
active voice and encourage, rather than just allow, agencies to
organize environmental documents in such a way as to make unclassified
portions of environmental documents available to the public. CEQ makes
these revisions in the final rule in paragraph (f)(1). CEQ also
modifies paragraph (f)(2) to add a reference to the requirements of
lead and cooperating agencies. CEQ adds this example consistent with
the addition to Sec. 1506.11(b) referencing statutory provisions for
combining a final EIS and ROD. This is also consistent with CEQ's goal
of improving coordination between lead and cooperating agencies and
providing efficient processes to allow for integration of the NEPA
review with reviews conducted under other statutes. This allows for
altering time periods to facilitate issuance of a combined FEIS and
ROD. Additionally, CEQ proposed to move the language allowing agencies
to adopt procedures to combine their EA process with their scoping
process from 40 CFR 1501.7(b)(3) to paragraph (e)(4). CEQ makes this
change in the final rule at paragraph (f)(4).
Finally, CEQ proposed in paragraph (e)(5) to allow agencies to
establish a process in their agency NEPA procedures to apply the CEs of
other agencies. CEQ also invited comment on whether to set forth this
process in these regulations. In the final rule, CEQ includes the
provision to allow agencies to establish a process in paragraph (f)(5)
with some changes. CEQ includes clarifying language to address the
confusion commenters had as to differences between this section and
adoption of a CE determination under Sec. 1506.3. An agency's process
must provide for consultation with the agency that listed the CE in its
NEPA procedures to ensure that the planned use of the CE is consistent
with the originating agency's intent and practice.\103\ The process
should ensure documentation of the consultation and identify to the
public those CEs the agency may use for its proposed actions.
Consistent with Sec. 1507.4, agencies could post such information on
their websites. Then, an agency may apply the CE to its proposed
actions, including proposed projects or activities or groups of
proposed projects or activities.
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\103\ The use of another agency's CE under a process in the
agency's NEPA procedures is an option separate from the adoption,
under Sec. 1506.3(f), of another agency's determination that its CE
applies to a particular action that is substantially the same as the
adopting agency's proposed action. An agency may adopt another
agency's CE determination for a particular action regardless of
whether its procedures provide a process for application of other
agencies' CEs.
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4. Agency NEPA Program Information (Sec. 1507.4)
CEQ proposed to add a new Sec. 1507.4, ``Agency NEPA program
information,'' to provide the means of publishing information on
ongoing NEPA reviews and agency records relating to NEPA reviews. CEQ
is finalizing this provision as proposed with no changes. As stated in
the NPRM, this provision requires agencies in their NEPA procedures to
provide for a website or other means of publishing certain information
on ongoing NEPA reviews and maintaining and permitting public access to
agency records relating to NEPA reviews.
Section 1507.4 promotes transparency and efficiency in the NEPA
process, and improves interagency coordination by
[[Page 43342]]
ensuring that information is more readily available to other agencies
and the public. As discussed in the NPRM, opportunities exist for
agencies to combine existing geospatial data, including remotely sensed
images, and analyses to streamline environmental review and better
coordinate development of environmental documents for multi-agency
projects, consistent with the OFD policy. One option involves creating
a single NEPA application that facilitates consolidation of existing
datasets and can run several relevant geographic information system
(GIS) analyses to help standardize the production of robust analytical
results. This application could have a public-facing component modeled
along the lines of EPA's NEPAssist,\104\ which would aid prospective
project sponsors with site selection and project design and increase
public transparency. The application could link to the Permitting
Dashboard to help facilitate project tracking and flexibilities under
Sec. Sec. 1506.5 and 1506.6. CEQ invited comment on this proposal,
including comment on whether additional regulatory changes could help
facilitate streamlined GIS analysis to help agencies comply with NEPA.
While some commenters supported the development of a single NEPA
application, others identified challenges to ensuring databases are
useful, as well as privacy and security concerns. CEQ did not receive
sufficient comment to lead CEQ to make additional regulatory changes to
facilitate streamlined GIS analysis to help agencies comply with NEPA,
and the final rule does not contain any changes from the proposal.
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\104\ https://nepassisttool.epa.gov/nepassist/nepamap.aspx. See
also the Marine Cadastre, which provides consolidated GIS
information for offshore actions, https://marinecadastre.gov/.
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J. Revisions to Definitions (Part 1508)
NEPA does not itself include a set of definitions provided by
Congress. CEQ, in the 1978 regulations, established a set of
definitions for NEPA and the CEQ regulations. In this final rule, CEQ
has clarified or supplemented the definitions as discussed below and
further described in the Final Rule Response to Comments at section K.
As noted above, see Public Citizen, 541 U.S. at 757; Methow Valley, 490
U.S. at 355 (citing Andrus, 442 U.S. at 358); Brand X, 545 U.S. at 980-
86; and Mead Corp., 533 U.S. at 227-30, CEQ has the authority to
interpret NEPA. See, e.g., Barnhart v. Walton, 535 U.S. 212, 218 (2002)
(``[S]ilence, after all, normally creates ambiguity. It does not
resolve it.''). Existing NEPA case law inevitably rests directly on
interpretive choices made in the 1978 regulations or on cases that
themselves through some chain of prior cases also trace to the 1978
regulations. Yet consistent with Chevron, CEQ's NEPA regulations are
subject to change. See also Brand X, 545 U.S. 967.
CEQ's intention to make use of its interpretive authority under
Chevron is particularly applicable as to part 1508 where CEQ defines or
revises key terms in the NEPA statute and the CEQ regulations. As a
result, this confers on CEQ an even greater degree of latitude to
elucidate the meaning of the statute's terms in these regulations--the
same basic authority exercised by CEQ back in 1978 in the original form
of the NEPA regulations. See, e.g., Demski v. U.S. Dep't of Labor, 419
F.3d 488, 491 (6th Cir. 2005) (``In the absence of a congressional
definition or an explicit delegation of congressional authority to the
agency, we determine how the agency responsible for implementing the
statute . . . understands the term, and, under Chevron . . . we
determine whether such an understanding is a `reasonable
interpretation' of the statute.'' (citing Chevron, 467 U.S. at 844));
London v. Polishook, 189 F.3d 196, 200 (2d Cir. 1999) (``[J]udicial
deference does apply to the guidelines that [the] Department's Office
of Labor-Management Standards Enforcement has developed and set out in
its LMRDA Interpretive Manual Sec. 030.425--guidelines to which [the
D.C. Circuit in Martoche] deferred in the absence of a clear definition
of `political subdivision' in the Act or in its legislative
history.''); Hawaii Gov't Employees Ass'n, Am. Fed'n of State, Cty. &
Mun. Employees, Local 152 v. Martoche, 915 F.2d 718, 721 (D.C. Cir.
1990) (``With some imprecision in the statutory text [as to an
undefined term] and a nearly total lack of elucidation in the
legislative history, the situation is squarely one in which Congress
implicitly left a gap for the agency to fill.'') (internal citation and
quotation marks omitted). See also Perez v. Commissioner, 144 T.C. 51,
59 (2015); Saha Thai Steel Pipe (Pub.) Co. v. United States, 33 C.I.T.
1541, 1547 (Ct. of Int'l Trade 2009).\105\ In promulgating new or
revised definitions and other changes to the NEPA regulations, CEQ has
considered the ordinary meaning of the terms used by Congress in the
statute.
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\105\ ``Although NEPA's statutory text specifies when an agency
must comply with NEPA's procedural mandate; it is the Council on
Environmental Quality Regulations (`CEQ') regulations which dictate
the how, providing the framework by which all [F]ederal agencies
comply with NEPA.'' Dine' Citizens Against Ruining Our Environment
v. Klein, 747 F. Supp. 2d 1234, 1248 (D. Colo. 2010) (emphasis in
original).
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As discussed in the NPRM, CEQ proposed significant revisions to
part 1508. CEQ proposed to move the operative language, which is
regulatory language that provides instruction or guidance, included
throughout the regulations in this section to the relevant substantive
sections of the regulations. Consistent with this change, CEQ proposed
to retitle part 1508 from ``Terminology and Index'' to ``Definitions.''
\106\ CEQ also proposed to clarify the definitions of a number of key
NEPA terms in order to reduce ambiguity, both through modification of
existing definitions and the addition of new definitions. CEQ proposed
to eliminate individual section numbers for each term in favor of a
single section of defined terms in the revised Sec. 1508.1. Finally,
CEQ proposed to remove citations to the specific definition sections
throughout the rule. CEQ makes these changes in the final rule.
---------------------------------------------------------------------------
\106\ CEQ has maintained an index in the Code of Federal
Regulations, but this is not a part of the regulations. CEQ does not
intend to continue to maintain such an index because it is no longer
necessary given that the regulations are typically accessed
electronically and the regulations' organization has been
significantly improved.
---------------------------------------------------------------------------
1. Clarifying the Meaning of ``Act''
CEQ proposed in paragraph (a) to add ``NEPA'' as a defined term
with the same meaning as ``Act.'' CEQ makes this change in the final
rule.
2. Definition of ``Affecting''
CEQ did not propose to make any change to the defined term
``affecting'' in paragraph (b). CEQ does not make any changes to this
definition in the final rule.
3. New Definition of ``Authorization''
CEQ proposed to define the term ``authorization'' in paragraph (c)
to refer to the types of activities that might be required for
permitting a proposed action, in particular infrastructure projects.
This definition is consistent with the definition included in FAST-41
and E.O. 13807. CEQ proposed to replace the word ``entitlement'' with
``authorization'' throughout the rule. CEQ adds this definition and
makes these changes in the final rule.
4. Clarifying the Meaning of ``Categorical Exclusion''
CEQ proposed to revise the definition of ``categorical exclusion''
in paragraph (d) by inserting ``normally'' to clarify that there may be
situations where an action may have significant effects on account of
extraordinary circumstances.
[[Page 43343]]
CEQ also proposed to strike ``individually or cumulatively'' for
consistency with the proposed revisions to the definition of
``effects'' as discussed in this section. CEQ proposed conforming edits
in Sec. Sec. 1500.4(a) and 1500.5(a). As noted in section II.I.3, CEQ
proposed to move the requirement to provide for extraordinary
circumstances in agency procedures to Sec. 1507.3(d)(2)(ii) (Sec.
1507.3(e)(2)(ii) in the final rule). CEQ makes these changes in the
final rule. CEQ notes that the definition of ``categorical exclusion''
only applies to those CEs created by an agency in its agency NEPA
procedures and does not apply to ``legislative'' CEs created by
Congress, which are governed by the terms of the specific statute and
statutory interpretation of the agency charged with the implementation
of the statute.
5. Clarifying the Meaning of ``Cooperating Agency''
CEQ proposed to amend the definition of ``cooperating agency'' in
paragraph (e) to make clear that a State, Tribal, or local agency may
be a cooperating agency when the lead agency agrees, and to move the
corresponding operative language allowing a State, Tribal, or local
agency to become a cooperating agency with the lead agency's agreement
to paragraph (a) of Sec. 1501.8, ``Cooperating agencies.'' CEQ also
proposed to remove the sentence cross-referencing the cooperating
agency section in part 1501 and stating that the selection and
responsibilities of a cooperating agency are described there because it
is unnecessary and does not define the term. CEQ makes these changes in
the final rule.
6. Definition of ``Council''
CEQ did not propose any changes to the definition of ``Council'' in
paragraph (f). CEQ also invited comment on whether to update references
to ``Council'' in the regulations to ``CEQ'' throughout the rule. CEQ
did not receive sufficient comments on this proposal; therefore, CEQ
does not make this change in the final rule.
7. Definition of ``Cumulative Impact'' and Clarifying the Meaning of
``Effects''
CEQ proposed to remove the definition of ``cumulative impact'' and
revise the definition of ``effects'' in paragraph (g). As noted in the
NPRM, many commenters to the ANPRM urged CEQ to refine the definition
based on concerns that it creates confusion, and that the terms
``indirect'' and ``cumulative'' have been interpreted expansively
resulting in excessive documentation about speculative effects and
leading to frequent litigation. Commenters also raised concerns that
this has expanded the scope of NEPA analysis without serving NEPA's
purpose of informed decision making. Commenters stressed that the focus
of the effects analysis should be on those effects that are reasonably
foreseeable, related to the proposed action under consideration, and
subject to the agency's jurisdiction and control. Commenters also noted
that NEPA practitioners often struggle with describing cumulative
impacts despite a number of publications that address the topic.
While NEPA refers to environmental impacts and environmental
effects, it does not subdivide the terms into direct, indirect, or
cumulative. Nor are the terms ``direct,'' ``indirect,'' or
``cumulative'' included in the text of the statute. CEQ created those
concepts and included them in the 1978 regulations.
To address commenters' concerns and reduce confusion and
unnecessary litigation, CEQ proposed to simplify the definition of
effects by striking the specific references to direct, indirect, and
cumulative effects and providing clarity on the bounds of effects
consistent with the Supreme Court's holding in Public Citizen, 541 U.S.
at 767-68. Under the proposed definition, effects must be reasonably
foreseeable and have a reasonably close causal relationship to the
proposed action or alternatives; a ``but for'' causal relationship is
insufficient to make an agency responsible for a particular effect
under NEPA. This close causal relationship is analogous to proximate
cause in tort law. Id. at 767; see also Metro. Edison Co., 460 U.S. at
774 (interpreting section 102 of NEPA to require ``a reasonably close
causal relationship between a change in the physical environment and
the effect at issue'' and stating ``[t]his requirement is like the
familiar doctrine of proximate cause from tort law.''). CEQ sought
comment on whether to include in the definition of effects the concept
that the close causal relationship is ``analogous to proximate cause in
tort law,'' and if so, how CEQ could provide additional clarity
regarding the meaning of this phrase.
In the final rule, CEQ revises the definition of effects consistent
with the proposal, with some additional edits. First, to eliminate the
circularity in the definition, CEQ changes the beginning of the
definition from ``means effects of'' to ``means changes to the human
environment from'' the proposed action or alternatives. This change
also associates the definition of effects with the definition of human
environment, which continues to cross-reference to the definition of
effects in the final rule. It also makes clear that, when the
regulations use the term ``effects,'' it means effects on the human
environment. This responds to comments suggesting CEQ add ``on the
human environment'' after ``effects'' in various sections of the rule.
The final rule also consolidates the first two sentences of the
definition to clarify that, for purposes of this definition, ``effects
that occur'' at the ``same time and place as the proposed action or
alternatives,'' or that ``are later in time or farther removed in
distance'' must nevertheless be reasonably foreseeable and have a
reasonably close causal relationship to the proposed action or
alternatives. As a separate sentence that only referenced reasonable
foreseeability, there was ambiguity as to whether a reasonably close
causal relationship was required. Additionally, the final rule adds a
clause to clarify that the consideration of time and place or distance
are relative to the proposed action or alternatives.
CEQ proposed to strike the definition of ``cumulative impact'' and
the terms ``direct'' and ``indirect'' in order to focus agency time and
resources on considering whether the proposed action causes an effect
rather than on categorizing the type of effect. As stated in the NPRM,
CEQ intends the revisions to simplify the definition to focus agencies
on consideration of effects that are reasonably foreseeable and have a
reasonably close causal relationship to the proposed action. In
practice, agencies have devoted substantial resources to categorizing
effects as direct, indirect, or cumulative, which, as noted above, are
not terms referenced in the NEPA statute. CEQ eliminates these
references in the final rule.
To further assist agencies in their assessment of significant
effects, CEQ also proposed to clarify that agencies should not consider
effects significant if they are remote in time, geographically remote,
or the result of a lengthy causal chain. See, e.g., Pub. Citizen, 541
U.S. at 767-68 (``In particular, `courts must look to the underlying
policies or legislative intent in order to draw a manageable line
between those causal changes that may make an actor responsible for an
effect and those that do not.' '' (quoting Metro. Edison Co., 460 U.S.
at 774 n.7)); Metro. Edison Co., 460 U.S. at 774 (noting effects may
not fall within section 102 of NEPA because ``the causal chain is too
attenuated''). CEQ revises this sentence in the final rule to add
``generally'' to reflect the fact that there may occasionally be a
[[Page 43344]]
circumstance where an effect that is remote in time, geographically
remote, or the product of a lengthy causal chain is reasonably
foreseeable and has a reasonably close causal relationship to the
proposed action.
Further, CEQ proposed to codify a key holding of Public Citizen
relating to the definition of effects to make clear that effects do not
include effects that the agency has no authority to prevent or that
would happen even without the agency action, because they would not
have a sufficiently close causal connection to the proposed action. For
example, this would include effects that would constitute an
intervening and superseding cause under familiar principles of tort
law. See, e.g., Sierra Club v. FERC, 827 F.3d 36, 47-48 (D.C. Cir.
2016) (NEPA case incorporating these principles) (``[C]ritical to
triggering that chain of events is the intervening action of the
Department of Energy in granting an export license. The Department's
independent decision to allow exports--a decision over which the
Commission has no regulatory authority--breaks the NEPA causal chain
and absolves the Commission of responsibility to include in its NEPA
analysis considerations that it `could not act on' and for which it
cannot be `the legally relevant cause.''' (quoting Pub. Citizen, 541
U.S. at 769)). As discussed in the NPRM, this clarification will help
agencies better understand what effects they need to analyze and
discuss, helping to reduce delays and paperwork with unnecessary
analyses. CEQ includes this language in the final rule as proposed.
In addition, CEQ proposed a change in position to state that
analysis of cumulative effects, as defined in the 1978 regulations, is
not required under NEPA. Categorizing and determining the geographic
and temporal scope of such effects has been difficult and can divert
agencies from focusing their time and resources on the most significant
effects. Past CEQ guidance has not been successful in dispelling
ambiguity. Excessively lengthy documentation that does not focus on the
most meaningful issues for the decision maker's consideration can lead
to encyclopedic documents that include information that is irrelevant
or inconsequential to the decision-making process. Instead, agencies
should focus their efforts on analyzing effects that are most likely to
be potentially significant and effects that would occur as a result of
the agency's decision, rather than effects that would be the result of
intervening and superseding causes. Agencies are not expected to
conduct exhaustive research on identifying and categorizing actions
beyond the agency's control.
CEQ intended the proposed elimination of the definition of
cumulative impact to focus agencies on analysis of effects that are
reasonably foreseeable and have a reasonably close causal relationship
to the proposed action. Cumulative effects analysis has been
interpreted so expansively as to undermine informed decision making,
and led agencies to conduct analyses to include effects that are not
reasonably foreseeable or do not have a reasonably close causal
relationship to the proposed action or alternatives. CEQ also invited
comment on whether to include an affirmative statement that
consideration of indirect effects is not required; the final rule does
not include additional direction to agencies specific to indirect
effects.
CEQ received many comments on cumulative effects. In the final
rule, to provide further clarification, CEQ includes a new provision at
paragraph (g)(3) that states that the analysis of effects shall be
consistent with the definition of effects, and that cumulative impact,
defined in 40 CFR 1508.7 (1978), is repealed. This language explains
how agencies should apply the definition of effects with respect to
environmental documents and other provisions in the final rule.
Specifically, analyses are bound by the definition of effects as set
forth in Sec. 1508.1(g)(1) and (2) and should not go beyond the
definition of effects set forth in those two paragraphs. The final rule
provides considerable flexibility to agencies to structure the analysis
of effects based on the circumstances of their programs.
In response to the NPRM, commenters stated that agencies would no
longer consider the impacts of a proposed action on climate change. The
rule does not preclude consideration of the impacts of a proposed
action on any particular aspect of the human environment. The analysis
of the impacts on climate change will depend on the specific
circumstances of the proposed action. As discussed above, under the
final rule, agencies will consider predictable trends in the area in
the baseline analysis of the affected environment.
8. Clarifying the Meaning of ``Environmental Assessment''
CEQ proposed to revise the definition of ``environmental
assessment'' in paragraph (h), describing the purpose for the document
and moving all of the operative language setting forth the requirements
for an EA from the definition to proposed Sec. 1501.5. CEQ makes this
change in the final rule.
9. Clarifying the Meaning of ``Environmental Document''
CEQ proposed to remove the cross-references from the definition of
``environmental document'' in paragraph (i). CEQ makes this change in
the final rule.
10. Clarifying the Meaning of ``Environmental Impact Statement''
CEQ proposed to change ``the Act'' to ``NEPA'' in the definition of
``environmental impact statement'' in paragraph (j). CEQ makes this
change in the final rule.
11. Clarifying the Meaning of ``Federal Agency''
CEQ proposed to amend the definition of ``Federal agency'' in
paragraph (k) to broaden it to include States, Tribes, and units of
local government to the extent that they have assumed NEPA
responsibilities from a Federal agency pursuant to statute. As stated
in the NPRM, since the issuance of the CEQ regulations, Congress has
authorized assumption of NEPA responsibilities in other contexts
besides the Housing and Community Development Act of 1974, Public Law
93-383, sec. 104(h), 88 Stat. 633, 640, 42 U.S.C. 5304. See, e.g.,
Surface Transportation Project Delivery Program, 23 U.S.C. 327. This
change acknowledges these programs and helps clarify roles and
responsibilities. CEQ makes this change and minor clarifying edits in
the final rule.
12. Clarifying the Meaning of ``Finding of No Significant Impact''
CEQ proposed to revise the definition of ``finding of no
significant impact'' in paragraph (l) to insert the word
``categorically'' into the phrase ``not otherwise excluded,'' change
the cross-reference to the new section addressing CEs at Sec. 1501.4,
and move the operative language requiring a FONSI to include an EA or a
summary of it and allowing incorporation by reference of the EA to
Sec. 1501.6, which addresses the requirements of a FONSI. CEQ makes
these revisions in the final rule.
13. Clarifying the Meaning of ``Human Environment''
CEQ proposed to change ``people'' to ``present and future
generations of Americans'' consistent with section 101(a) of NEPA to
the definition of human environment in paragraph (m). CEQ also proposed
to move the operative language stating that economic or social effects
by themselves
[[Page 43345]]
do not require preparation of an EIS to Sec. 1502.16(b), which is the
section of the regulations that addresses when agencies should consider
economic or social effects in an EIS. CEQ makes these changes in the
final rule to assist agencies in understanding and implementing the
statute and regulations.
14. Definition of ``Jurisdiction by Law''
The NPRM did not propose any changes to the definition of
jurisdiction by law in paragraph (n). CEQ did not revise this
definition in the final rule.
15. Clarifying the Meaning of ``Lead Agency''
CEQ proposed to amend the definition of lead agency in paragraph
(o) to clarify that this term includes joint lead agencies, which are
an acceptable practice. CEQ makes this change in the final rule.
16. Clarifying the Meaning of ``Legislation''
CEQ proposed to move the operative language regarding the test for
significant cooperation and the principle that only the agency with
primary responsibility will prepare a legislative EIS to Sec. 1506.8.
CEQ also proposed to strike the example of treaties, because the
President is not a Federal agency, and therefore a request for
ratification of a treaty would not be subject to NEPA. CEQ makes these
changes in the final rule, striking the references to ``significant
cooperation and support,'' in paragraph (p) to narrow the definition to
comport with the NEPA statute, as discussed in section II.H.8.
17. Clarifying the Meaning of ``Major Federal Action''
CEQ received many comments on the ANPRM requesting clarification of
the definition of major Federal action. For example, CEQ received
comments proposing that non-Federal projects should not be considered
major Federal actions based on a very minor Federal role. Commenters
also recommended that CEQ clarify the definition to exclude decisions
where agencies do not have discretion to consider and potentially
modify their actions based on the environmental review.
CEQ proposed to amend the first sentence of the definition in
paragraph (q) to clarify that an action meets the definition if it is
subject to Federal control and responsibility, and it has effects that
may be significant. CEQ proposed to replace ``major'' effects with
``significant'' in this sentence to align with the NEPA statute. In the
final rule, CEQ revises the definition to remove reference to
significance. CEQ also revises the definition to remove the circularity
in the definition, changing ``means an action'' to ``means an activity
or decision'' that is subject to Federal control and responsibility.
i. Independent Meaning of ``Major''
CEQ proposed to strike the second sentence of the definition, which
provides ``Major reinforces but does not have a meaning independent of
significantly.'' CEQ makes this change in the final rule. This is a
change in position as compared to CEQ's earlier interpretation of NEPA
and, in finalizing this change, CEQ intends to correct this
longstanding misconstruction of the NEPA statute. The statutory aim of
NEPA is to focus on ``major Federal actions significantly affecting the
quality of the human environment,'' 42 U.S.C. 4332(2)(C), rather than
on non-major Federal actions that simply have some degree of Federal
involvement. Under the 1978 regulations, however, the word ``major''
was rendered virtually meaningless.
CEQ makes this change because all words of a statute must be given
meaning consistent with longstanding principles of statutory
interpretation. See, e.g., Bennett, 520 U.S. at 173 (``It is the
cardinal principle of statutory construction . . . that it is our duty
to give effect, if possible, to every clause and word of a statute . .
. rather than to emasculate an entire section.'') (internal quotations
and citations omitted) (quoting United States v. Menasche, 348 U.S.
528, 538 (1955)). Although the 1978 regulations treated the terms
``major'' and ``significantly'' as interchangeable, there is an
important distinction between the two terms and how they apply in the
NEPA process. ``Major'' refers to the type of action, including the
role of the Federal agency and its control over any environmental
impacts. ``Significant'' relates to the effects stemming from the
action, including consideration of the affected area, resources, and
the degree of the effects. In the statute, ``major'' occurs twice, and
in both instances is a modifier of ``Federal action''--in section
102(2)(C) in the phrase ``other major Federal actions significantly
affecting the quality of the human environment,'' and section 102(2)(D)
in the phrase, ``any major Federal action funded under a program of
grants to States.'' NEPA also uses ``significant'' or ``significantly''
twice as a modifier of the similar words ``affecting'' in section
102(2)(C) and ``impacts'' in section 102(2)(D)(iv).
The legislative history of NEPA also reflects that Congress used
the term ``major'' independent of ``significantly,'' and provided that,
for major actions, agencies should make a determination as to whether
the proposal would have a significant environmental impact.
Specifically, the Senate Report for the National Environmental Policy
Act of 1969 (Senate Report) states, ``Each agency which proposes any
major actions, such as project proposals, proposals for new
legislation, regulations, policy statements, or expansion or revision
of ongoing programs, shall make a determination as to whether the
proposal would have a significant effect upon the quality of the human
environment.'' S. Rep. No. 91-296, at 20 (1969) (emphasis added).\107\
Further, the Senate Report shows that OMB's predecessor, the Bureau of
the Budget, submitted comments on the legislation to provide the views
of the Executive Office of the President and recommended that Congress
revise the text of the bill to include two separate modifiers:
``major'' before Federal actions and ``significantly'' before affecting
the quality of the human environment. See id. at 30 (Bureau of the
Budget's markup returned to the Senate on July 7, 1969). The enacted
legislation included these revisions. While CEQ followed the Eight
Circuit's approach in Minnesota Public Interest Research Group v. Butz,
498 F.2d 1314, 1321-22 (8th Cir. 1974), in the 1978 regulations, other
courts had interpreted ``major'' and ``significantly'' as having
independent meaning before CEQ issued its 1978 regulations. See NAACP
v. Med. Ctr., Inc., 584 F.2d 619, 629 (3d Cir. 1978) (analyzing the
Secretary's ministerial approval of a capital expenditure under a
framework that first considered whether there had been agency action,
and then whether that action was ``major''); Hanly v. Mitchell, 460
F.2d 640, 644-45 (2d Cir. 1972) (``There is no doubt that the Act
contemplates some agency action that does not require an impact
statement because the action is minor and has so little effect on the
environment as to be insignificant.'' (internal citations omitted));
Scherr v. Volpe, 466 F.2d 1027, 1033 (7th Cir. 1972) (finding that a
highway project qualifies as major before turning to the second step of
whether the project would have a significant effect); Julius v. City of
Cedar Rapids, 349 F. Supp. 88, 90 (N.D. Iowa 1972) (finding that a lane
widening project was not a major Federal action); Goose Hollow
Foothills League v. Romney, 334 F. Supp. 877, 879 (D. Or. 1971)
(discussing whether a proposed
[[Page 43346]]
building project was ``major''); SW Neighborhood Assembly v. Eckard,
445 F. Supp. 1195, 1199 (D.D.C. 1978) (``The phrase `major Federal
action' has been construed by the Courts to require an inquiry into
such questions as the amount of federal funds expended by the action,
the number of people affected, the length of time consumed, and the
extent of government planning involved.'' (citing Hanly, 460 F.2d at
644)); Nat. Res. Def. Council v. Grant, 341 F. Supp. 356, 366 (E.D.N.C.
1972) (``Certainly, an administrative agency [such] as the Soil
Conservation Service may make a decision that a particular project is
not major, or that it does not significantly affect the quality of the
human environment, and, that, therefore, the agency is not required to
file an impact statement.''). Moreover, as discussed further below,
over the past four decades, in a number of cases, courts have
determined that NEPA does not apply to actions with minimal Federal
involvement or funding. Under the revised definition, these would be
non-major Federal actions.
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\107\ https://ceq.doe.gov/docs/laws-regulations/Senate-Report-on-NEPA.pdf.
---------------------------------------------------------------------------
In the final rule, CEQ reorganizes the remainder of the definition
of major Federal action into subordinate paragraphs. Paragraph (q)(1)
provides a list of activities or decisions that are not included within
the definition.
ii. Extraterritoriality
In the NPRM, CEQ requested comment on whether to clarify that major
Federal action does not include extraterritorial actions because NEPA
does not apply extraterritorially, consistent with Kiobel v. Royal
Dutch Petroleum Co., 569 U.S. 108, 115-16 (2013), in light of the
ordinary presumption against extraterritorial application when a
statute does not clearly indicate that extraterritorial application is
intended by Congress. In the final rule, CEQ revises the definition of
``Major Federal action'' in a new paragraph (q)(1)(i) to exclude
extraterritorial activities or decisions, which mean activities or
decisions with effects located entirely outside the jurisdiction of the
United States.\108\
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\108\ The Restatement of Foreign Relations Law provides that the
areas within the territorial jurisdiction of the United States
include ``its land, internal waters, territorial sea, the adjacent
airspace, and other places over which the United States has
sovereignty or some measure of legislative control.'' Restatement
(Fourth) of Foreign Relations Law sec. 404 (2018).
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The Supreme Court has stated that ``[i]t is a longstanding
principle of American law `that legislation of Congress, unless a
contrary intent appears, is meant to apply only within the territorial
jurisdiction of the United States.' '' EEOC v. Arabian Am. Oil Co.
(Aramco), 499 U.S. 244, 248 (1991) (quoting Foley Bros. v. Filardo,
Inc., 336 U.S. 281, 285 (1949)). During the past decade, the Supreme
Court has considered the application of the presumption to a variety of
Federal statutes.\109\ As the Supreme Court has stated, the presumption
``rests on the perception that Congress ordinarily legislates with
respect to domestic, not foreign matters.'' Morrison, 561 U.S. at 255
(citing Smith v. United States, 507 U.S. 197, 204 n.5 (1993)). ``Thus,
`unless there is the affirmative intention of the Congress clearly
expressed' to give a statute extraterritorial effect, `we must presume
it is primarily concerned with domestic conditions.' '' Morrison, 561
U.S. at 255 (citing Aramco, 499 U.S. at 248). The Supreme Court has
held, including in more recent decisions, that the presumption applies
regardless of whether there is a risk of conflict between the U.S.
statute and a foreign law. Morrison, 561 U.S. at 255 (citing Sale v.
Haitian Ctrs. Council, Inc., 509 U.S. 155, 173-74 (1993)); RJR Nabisco,
136 S. Ct. at 2100; see also Smith, 507 U.S. at 204 n.5.
---------------------------------------------------------------------------
\109\ See RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090
(2016) (Racketeer Influenced and Corrupt Organizations Act); Kiobel,
569 U.S. at 115-16 (Alien Tort Statute); Morrison v. Nat'l Austl.
Bank Ltd., 561 U.S. 247, 255 (2010) (Securities and Exchange Act of
1934); WesternGeco LLC v. ION Geophysical Corp., 138 S. Ct. 2129
(2018) (Patent Act).
---------------------------------------------------------------------------
The Supreme Court has established a two-step framework for
analyzing whether the presumption against extraterritoriality applies
to a Federal statute.\110\ Under this framework, the first step is to
ask whether the presumption against extraterritoriality has been
rebutted because ``the statute gives a clear, affirmative indication
that it applies extraterritorially.'' RJR Nabisco, 136 S. Ct. at 2101.
If the presumption has not been rebutted, the second step is to
determine whether the case involves a domestic application of the
statute, and courts have done this by looking to the statute's
``focus.'' \111\
---------------------------------------------------------------------------
\110\ See RJR Nabisco, 136 S. Ct. at 2101 (citing Morrison, 561
U.S. at 267 n.9; Kiobel, 569 U.S. 108); see also WesternGeco LLC,
138 S. Ct. 2129.
\111\ Id. (``If the conduct relevant to the statute's focus
occurred in the United States, then the case involves a permissible
domestic application even if other conduct occurred abroad; but if
the conduct relevant to the focus occurred in a foreign country,
then the case involves an impermissible extraterritorial application
regardless of any other conduct that occurred in U.S. territory.'').
This two-step framework for analyzing extraterritoriality issues is
also reflected in the Restatement of Foreign Relations Law. See
Restatement (Fourth) of Foreign Relations Law sec. 404 (2018).
---------------------------------------------------------------------------
Under the two-step framework, CEQ has determined that because the
legislative history and statutory text of section 102(2)(C) gives no
clear indication that it applies extraterritorially, the presumption
against extraterritoriality has not been rebutted. The plain language
of section 102(2)(C) does not require it to be applied to actions
occurring outside the jurisdiction of the United States.\112\ The only
reference in the Act to international considerations is in section
102(2)(F), which refers to ``international cooperation'' and the
``worldwide and long-range character of environmental problems,'' and
directs agencies to ``where consistent with the foreign policy of the
United States, lend appropriate support to initiatives, resolutions,
and programs designed to maximize international cooperation'' to
protect the environment. 42 U.S.C. 4332(2)(F). International
cooperation is inherently voluntary and not part of the mandatory
analysis required under the statute, and this provision does not
indicate in any way that the requirements of section 102(2)(C) to
prepare detailed statements applies outside of U.S. territorial
jurisdiction. The limited legislative history of section 102(2)(C)
similarly does not include discussion of application of the
requirements of section 102(2)(C) to extraterritorial actions.\113\
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\112\ Section 102(2)(C) directs Federal agencies to provide a
detailed statement for major Federal actions significantly affecting
the quality of the human environment, and requires the responsible
official to consult with and obtain the comments of Federal agencies
with jurisdiction or special expertise, as well as to make copies of
the statement and comments and views of Federal, state and local
agencies available to the President, CEQ and the public. 42 U.S.C.
4332(2)(C). Nothing in the text states that this section was
intended to require the preparation of detailed statements for
actions located outside the United States.
\113\ See also Nat. Res. Def. Council v. Nuclear Regulatory
Comm'n, 647 F. 2d 1345, 1367 (D.C. Cir. 1981) (``NEPA's legislative
history illuminates nothing in regard to extraterritorial
application.'').
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Under the two-step framework, CEQ has also considered the purpose
of section 102(2)(C), which is to ensure that a Federal agency, as part
of its decision making process, considers the potential environmental
impacts of proposed actions. The focus of congressional concern is the
proposed action and its potential environmental effects. The effects of
a proposed action may occur both within U.S. territorial jurisdiction
as well as outside that jurisdiction. To the extent effects of a
proposed action occur entirely outside the territorial jurisdiction of
the United States, the application of section 102(2)(C) would not be
permissible, consistent with the Supreme Court's holding that where the
conduct relevant to the statute's focus occurred in the United States,
then ``the case involves a
[[Page 43347]]
permissible domestic application even if other conduct occurred abroad;
but if the conduct relevant to the focus occurred in a foreign country,
then the case involves an impermissible extraterritorial application
regardless of any other conduct that occurred in U.S. territory.'' RJR
Nabisco, 136 S. Ct. at 2101. Therefore, CEQ provides in paragraph
(q)(1)(i) of the final rule that NEPA does not apply to ``agency
activities or decisions with effects located entirely outside of the
jurisdiction of the United States.''
iii. Non-Discretionary Activities or Decisions
In the NPRM, CEQ proposed to clarify that the definition does not
include non-discretionary activities or decisions made in accordance
with the agency's statutory authority. The Supreme Court has held that
analysis of a proposed action's effects under NEPA is not required
where an agency has limited statutory authority and ``simply lacks the
power to act on whatever information might be contained in the EIS.''
Pub. Citizen, 541 U.S. at 768; see also South Dakota, 614 F.2d at 1193
(holding that the Department of the Interior's issuance of a mineral
patent that was a ministerial act did not come within NEPA); Milo Cmty.
Hosp. v. Weinberger, 525 F.2d 144, 148 (1st Cir. 1975) (NEPA analysis
of impacts not required when agency was under a statutory duty to take
the proposed action of terminating a hospital). CEQ includes this
clarification in paragraph (q)(1)(ii).
iv. Final Agency Action and Failure To Act
CEQ proposed to strike the statement that major Federal action
includes a failure to act and instead clarify that the definition
excludes activities or decisions that do not result in final agency
action under the APA. The basis for including only final agency actions
is the statutory text of the APA, which provides a right to judicial
review of all ``final agency action[s] for which there is no other
adequate remedy in a court.'' 5 U.S.C. 704. CEQ includes this
clarification in paragraph (q)(1)(iii) of the final rule and includes
``or other statute that also includes a finality requirement'' because
CEQ recognizes that other statutes may also contain finality
requirements beyond those of the APA. As the NPRM noted, NEPA applies
when agencies are considering a proposal for decision. In the case of a
``failure to act,'' there is no proposed action and therefore there are
no alternatives that the agency may consider. S. Utah Wilderness All.,
542 U.S. at 70-73. Judicial review is available only when an agency
fails to take a discrete action it is required to take. Id. In omitting
the reference to a failure to act from the definition of ``major
Federal action,'' CEQ does not contradict the definition of ``agency
action'' under the APA at 5 U.S.C. 551(13), and recognizes that the APA
may compel agency action that is required but has been unreasonably
withheld. If an agency is compelled to take such agency action, it
should prepare a NEPA analysis at that time, as appropriate.
v. Enforcement Actions
In the final rule, CEQ moves the exclusion of judicial or
administrative civil or criminal enforcement actions from 40 CFR
1508.18(a) to paragraph (q)(1)(iv) of Sec. 1508.1. CEQ did not propose
changes to this language in the NPRM. In the final rule, CEQ moves this
language and revises it consistent with the format of the list in
paragraph (q)(1).
vi. General Revenue Sharing Funds
CEQ proposed to strike the specific reference to the State and
Local Fiscal Assistance Act of 1972 from 40 CFR 1508.18(a) and clarify
that general revenue sharing funds do not meet the definition of major
Federal action because the agency has no discretion. CEQ includes this
change in paragraph (q)(1)(v) in the final rule.
vii. Minimal Federal Funding or Involvement
CEQ proposed to clarify that non-Federal projects with minimal
Federal funding or minimal Federal involvement such that the agency
cannot control the outcome of the project are not major Federal
actions. The language in paragraph (q)(1)(vi) of the final rule is
consistent with the holdings of relevant circuit court cases that have
addressed this issue. See Rattlesnake Coal. v. U.S. EPA, 509 F.3d 1095,
1101 (9th Cir. 2007) (Federal funding comprising six percent of the
estimated implementation budget not enough to federalize implementation
of entire project); New Jersey Dep't of Envtl. Prot. & Energy v. Long
Island Power Auth., 30 F.3d 403, 417 (3d Cir. 1994) (``Federal approval
of a private party's project, where that approval is not required for
the project to go forward, does not constitute a major Federal
action.''); United States v. S. Fla. Water Mgmt. Dist., 28 F.3d 1563,
1572 (11th Cir. 1994) (``The touchstone of major [F]ederal activity
constitutes a [F]ederal agency's authority to influence nonfederal
activity. `The [F]ederal agency must possess actual power to control
the nonfederal activity.' '' (quoting Sierra Club v. Hodel, 848 F.2d
1068, 1089 (10th Cir. 1988), overruled on other grounds by Vill. of Los
Ranchos de Albuquerque v. Marsh, 956 F.2d 970 (10th Cir. 1992));
Sugarloaf Citizens Ass'n v. FERC, 959 F.2d 508, 512 (4th Cir. 1992);
Save Barton Creek Ass'n v. Fed. Highway Admin., 950 F.2d 1129, 1134-35
(5th Cir. 1992); Macht v. Skinner, 916 F.2d 13, 20 (D.C. Cir. 1990)
(funding for planning and studies not enough to federalize a project);
Vill. of Los Ranchos de Albuquerque v. Barnhart, 906 F.2d 1477, 1482
(10th Cir. 1990); Sierra Club v. Penfold, 857 F.2d 1307, 1314 (9th Cir.
1998) (finding that the Bureau of Land Management's review of Notice
mines, which do not require agency approval before commencement of
mining, is ``only a marginal [F]ederal action rather than a major
action''); Winnebago Tribe of Neb. v. Ray, 621 F. 2d 269, 272 (8th Cir.
1980) (``Factual or veto control, however, must be distinguished from
legal control or `enablement''' (citing Med. Ctr., Inc., 584 F.2d
619)); Atlanta Coal. on the Transp. Crisis v. Atlanta Reg'l Comm'n, 599
F.2d 1333, 1347 (5th Cir. 1979); Ctr. for Biological Diversity v. HUD,
541 F. Supp. 2d 1091, 1099 (D. Ariz. 2008), aff'd, Ctr. for Biological
Diversity v. HUD, No. 09-16400, 359 Fed. Appx. 781, 2009 WL 4912592
(9th Cir. Nov. 25, 2009) (unreported); see also Touret v. NASA, 485 F.
Supp. 2d 38 (D.R.I. 2007).
As discussed in the NPRM, in these circumstances, there is no
practical reason for an agency to conduct a NEPA analysis because the
agency could not influence the outcome of its action to address the
effects of the project. For example, this might include a very small
percentage of Federal funding provided only to help design an
infrastructure project that is otherwise funded through private or
local funds. This change would help to reduce costs and delays by more
clearly defining the kinds of actions that are appropriately within the
scope of NEPA. The final rule includes these criteria in paragraph
(q)(1)(vi) to make clear that these projects are ones where the agency
does not exercise sufficient control and responsibility over the
outcome of the project.
CEQ expects that agencies will further define these non-major
actions, for which the agency does not exercise sufficient control and
responsibility over the outcome of the project, in their agency NEPA
procedures pursuant to Sec. 1507.3(d)(4). For example, agencies that
exercise trust responsibilities over activities or decisions that occur
on or involve land held in trust by the United
[[Page 43348]]
States for the benefit of an Indian Tribe, or are held in fee subject
to a restriction against alienation, may define those activities or
decisions that involve minimal Federal funding or involvement. In such
circumstances, the Federal Government does not exercise sufficient
control and responsibility over the effects of actions on Indian lands,
and a ``but for'' causal relationship of requiring Federal approval for
such actions is insufficient to make an agency responsible for any
particular effects from such actions.
In the NPRM, CEQ also invited comment on whether there should be a
threshold (percentage or dollar figure) for ``minimal Federal
funding,'' and if so, what would be an appropriate threshold and the
basis for such a threshold. CEQ did not receive sufficient information
to establish such a threshold in the final rule.
viii. Loans and Loan Guarantees
CEQ also proposed to exclude loans, loan guarantees, and other
forms of financial assistance where the Federal agency does not
exercise sufficient control and responsibility over the effects of the
action. CEQ includes this in the final rule in paragraph (q)(1)(vii),
changing ``action'' to ``such assistance'' to remove the ambiguity with
the use of the defined term in the definition. CEQ proposed to also
exclude the farm ownership and operating loan guarantees provided by
the Farm Service Agency (FSA) of the U.S. Department of Agriculture
pursuant to 7 U.S.C. 1925 and 1941 through 1949, and the business loan
guarantee programs of the Small Business Administration (SBA), 15
U.S.C. 636(a), 636(m), and 695 through 697f. CEQ includes these as
examples of loan guarantees in paragraph (q)(1)(vii) and makes one
correction to the citation to SBA's business loan guarantee programs,
changing the final section cited from 697f to 697g.
By guaranteeing loans, FSA is not lending Federal funds; a
``guaranteed loan'' under FSA regulations is defined in 7 CFR 761.2(b)
as a ``loan made and serviced by a lender for which the Agency has
entered into a Lender's Agreement and for which the Agency has issued a
Loan Guarantee.'' The FSA loan guarantees are limited statutorily to an
amount not to exceed $1.75 million (with allowance for inflation). See
7 U.S.C. 1925 and 1943. For fiscal year 2019, the average loan amount
for a guaranteed operating loan is $289,393; and the average for a
guaranteed farm ownership loan is $516,859.\114\ The relatively modest
amounts of these loan guarantees suggest that these are not ``major''
within the meaning of the NEPA statute and for that reason CEQ makes
this result clear in a specific application of its definition of
``major Federal action.'' In determining whether Federal funding
federalizes a non-Federal action, courts have considered whether the
proportion of Federal funds in relation to funds from other sources is
``significant.'' See, e.g., Ka Makani `O Kohala Ohana Inc. v. Dep't of
Water Supply, 295 F.3d 955, 960 (9th Cir. 2002) (``While significant
[F]ederal funding can turn what would otherwise be a [S]tate or local
project into a major Federal action, consideration must be given to a
great disparity in the expenditures forecast for the [S]tate [and
county] and [F]ederal portions of the entire program. . . . In the
present case, the sum total of all of the [F]ederal funding that was
ever offered . . . is less than two percent of the estimated total
project cost.'' (alteration in original) (internal quotation marks and
citation omitted)); Friends of the Earth, Inc. v. Coleman, 518 F.2d
323, 329 (9th Cir. 1975) (holding Federal funding amounting to 10
percent of the total project cost not adequate to federalize project
under NEPA); Sancho v. Dep't of Energy, 578 F. Supp. 2d 1258, 1266-68
(D. Haw. 2008) (Federal provision of less than 10 percent of project
costs not sufficient to federalize project); Landmark West! v. U.S.
Postal Serv., 840 F. Supp. 994, 1009 (S.D.N.Y. 1993), aff'd, 41 F.3d
1500 (2d Cir. 1994) (holding U.S. Postal Service's role in private
development of new skyscraper was not sufficient to federalize the
project).
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\114\ See Executive Summary for Farm Loan Programs in Fiscal
Year 2019, https://www.fsa.usda.gov/Assets/USDA-FSA-Public/usdafiles/Farm-Loan-Programs/pdfs/program-data/FY2019_Executive_Summary.pdf. See generally https://www.fsa.usda.gov/programs-and-services/farm-loan-programs/program-data/index.
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Furthermore, FSA loan guarantee programs do not provide any Federal
funding to the participating borrower. Rather, FSA's role is limited to
providing a guaranty to the private lender; no Federal funds are
expended unless the borrower defaults on the private third-party loan,
and the lender is unable to recover its debt through foreclosure of its
collateral. In the event of default, the guarantee is paid to the
lender, not to lender's borrower. FSA rarely makes guaranteed loan loss
claim payments because delinquency rates are very low, ranging from
between 0.98 and 1.87 percent from 2005 to 2019, and 1.62 percent in
2019.\115\ The FSA guaranteed loan loss rates have ranged between 0.2
and 0.6 percent during the same time period.\116\
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\115\ See Guaranteed Loan Executive Summary, as of FY 2019,
https://www.fsa.usda.gov/Assets/USDA-FSA-Public/usdafiles/Farm-Loan-Programs/pdfs/program-data/FLP_Guaranteed_Loan_Servicing_Executive_Summary.pdf.
\116\ Id.
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For purposes of triggering NEPA, ``[t]he mere possibility of
[F]ederal funding in the future is too tenuous to convert a local
project into [F]ederal action.'' Pres. Pittsburgh v. Conturo, 2011 U.S.
Dist. LEXIS 101756, at *13 (W.D. Pa. 2011). Indeed, in Sancho, the
court observed that ``analysis of the `major Federal action'
requirement in NEPA must focus upon [F]ederal funds that have already
been distributed. Federal funds that have only been budgeted or
allocated toward a project cannot be considered because they are not an
`irreversible and irretrievable commitment of resources.' '' Sancho,
578 F. Supp. 2d at 1267 (internal citation omitted). The court further
stated that ``[t]he expectation of receiving future funds will not
transform a local or state project into a federal project. . . .
Regardless of the percentage, consideration of the budgeted future
federal funds is not ripe for consideration in the `major Federal
action' analysis.'' Id. Other district courts have also found that, to
federalize a project, the Federal funding must be more than ``the
passive deferral of a payment'' and must be provided ``primarily to
directly further a policy goal of the funding agency.'' Hamrick v. GSA,
107 F. Supp. 3d 910, 926 (C.D. Ill. 2015) (citing Landmark West!, 840
F. Supp. at 1007).
FSA's role is to protect the financial interests of the United
States, and its relationship is with the lender not the borrower. 7 CFR
762.103(a). FSA's involvement is primarily to ensure the financial
stability of the loan and ensure proper loan servicing by the lender.
Therefore, the context of these FSA regulations does not involve NEPA
and is not compliance-driven but only meant to ensure that, in the
event of a default, the loan proceeds are disbursed by the lender, used
properly, and that the project is completed and operating so as to
produce income necessary for the loan to be repaid.
If a lender violates one of FSA's regulations, FSA's only remedy is
not to pay the loss claim in the event of a liquidation. FSA does not
possess control or actual decision-making authority over the lender's
issuance of the loan, the funded facility, or operations of the
borrower. Courts have
[[Page 43349]]
recognized Federal agencies do not have sufficient control over loan
guarantees to trigger NEPA. See, e.g., Ctr. for Biological Diversity,
541 F. Supp. 2d 1091, aff'd, Ctr. for Biological Diversity, No. 08-
16400, 359 F. Appx. 781 (``The agencies guarantee loans issued by
private lenders to qualified borrowers, but do not approve or undertake
any of the development projects at issue. The agencies' loan guarantees
have such a remote and indirect relationship to the watershed problems
allegedly stemming from the urban development that they cannot be held
to be a legal cause of any effects on the protected species for
purposes of either the ESA or the NEPA.'' Ctr. for Biological
Diversity, No. 08-16400, 359 F. Appx. at 783). ``The [F]ederal agency
must possess actual power to control the nonfederal activity.'' Hodel,
848 F.2d at 1089, overruled on other grounds by Vill. of Los Ranchos de
Albuquerque v. Marsh, 956 F.2d 970.
SBA's business loan programs include general business loan programs
(7(a) Program), authorized by section 7(a) of the Small Business Act,
15 U.S.C. 636(a); the microloan demonstration loan program (Microloan
Program), authorized by section 7(m) of the Small Business Act, 15
U.S.C. 636(m); and the development company program (504 Program), which
is a jobs-creation program, authorized by Title V of the Small Business
Investment Act of 1958, 15 U.S.C. 695-697g. Under all of these
programs, SBA does not recruit or work with the borrower, or service
the loan unless, following a default in payment, the lender has
collected all that it can under the loan.
Under the 7(a) Program, SBA guarantees a percentage of the loan
amount extended by a commercial lender to encourage such lenders to
make loans to eligible small businesses. The lender seeks and receives
the guaranty, not the applicant small business. In over 80 percent of
loans stemming from the 7(a) Program, the lender approves the loan
without SBA's prior review and approval through the 7(a) Program's
Preferred Lender Program (``PLP program'').\117\ Further, SBA does not
expend Federal funds unless there is a default by the borrower in
paying the loan; in such cases, SBA reimburses the lender in accordance
with SBA's guarantee percentage. The maximum amount for a standard loan
under the 7(a) program is $5 million, while various 7(a) loans have
lesser maximum amounts of $500,000 or less.\118\
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\117\ Pursuant to the Small Business Act, under the PLP program,
SBA delegates responsibility to experienced and qualified lenders to
issue an SBA guarantee on a loan without prior approval by SBA. The
PLP program is defined as a ``program established by the
Administrator . . . under which a written agreement between the
lender and the Administration delegates to the lender . . . complete
authority to make and close loans with a guarantee from the
Administration without obtaining the prior specific approval of the
Administration . . . .'' 15 U.S.C. 636(a)(2)(C)(iii). Thus, PLP
program lenders have delegated authority to make SBA-guaranteed
loans without any approval from SBA.
\118\ 15 U.S.C. 636(a).
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Under the Microloan Program, recipient entities can obtain loans,
up to $50,000, for certain, limited purposes. SBA provides funds to
designated intermediary lenders, which are non-profit, community-based
organizations. Each of the lenders has its own lending and credit
requirements, and the lenders extend the microloan financing.
Recipients only may use the funds for working capital, inventory or
supplies, furniture or fixtures, or machinery or equipment. They cannot
purchase real estate or pay existing debt.
Under the 504 Program, small businesses can obtain long-term,
fixed-rate financing to acquire or improve capital assets. Certified
Development Companies (CDCs), which are private, mostly non-profit,
corporations certified by SBA to promote local and community economic
development, implement the program. Typically, a 504 Program project is
funded by three sources: (1) A loan, secured with a senior lien, from a
private-sector lender for 50 percent of the project costs; (2) an
equity contribution from the borrower of at least 10 percent of the
project costs; and (3) a loan covering up to 40 percent of the total
costs, which is funded by proceeds from the sale to investors of an
SBA-guaranteed debenture issued by a CDC.\119\ The 504's Premier
Certified Lender Program (``PCLP program'') provides for only limited
SBA review of eligibility, and SBA delegates the responsibility to CDCs
to issue an SBA guarantee of debenture for eligible loans without prior
approval by SBA. 15 U.S.C. 697e.\120\ Under the 504 program, the
maximum loan amount is $5 million, although small manufacturers or
certain energy projects, including energy efficiency or renewable
generation projects, may qualify for a $5.5 million debenture.\121\ SBA
does not expend Federal funds unless there is a default by the borrower
in paying the debenture-funded loan, in which case SBA pays the
outstanding balance owed on the debenture to the investors. SBA expends
Federal funds on its loan guarantee programs only when expected losses
from defaults exceed expected fee collections. Section 7(a) and 504
loan program delinquency rates are 0.8 percent and 0.7 percent as of
July 2019 respectively.\122\
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\119\ In the 504 program, SBA guarantees payments of debentures,
which are bonds sold to investors. The proceeds from the sale of the
debentures are used to fund the underlying loans to borrowers.
\120\ Congress has mandated that guaranteed loans made by PCLPs
shall not include SBA ``review of decisions by the lender involving
creditworthiness, loan closing, or compliance with legal
requirements imposed by law or regulation.'' 15 U.S.C. 697e(e)(2).
\121\ 15 U.S.C. 696(2)(A).
\122\ See SBA Fiscal Year 2019 Agency Financial Report at 22,
available at https://www.sba.gov/document/report--agency-financial-report.
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CEQ has determined that FSA and SBA do not have sufficient control
and responsibility over the underlying activities to meet the
definition of major Federal action. The issuance of loan guarantees to
a non-Federal lender to back a percentage of a loan that the lender
decides to make to a private, third-party borrower is insufficient
control or authority over the underlying project. See Rattlesnake
Coal., 509 F.3d at 1102 (``The United States must maintain decision
making authority over the local plan in order for it to become a major
[F]ederal action.''); Ka Makani, 295 F.3d at 961 (``Because the final
decision-making power remained at all times with [the State agency], we
conclude that the [Federal agency] involvement was not sufficient to
constitute `major [F]ederal action.' '' (quoting Barnhart, 906 F.2d at
1482)); S. Fla. Water Mgmt. Dist., 28 F.3d at 1572 (``The [F]ederal
agency must possess actual power to control the nonfederal activity.''
(citation omitted)).
CEQ also invited comment on whether any other types of financial
instruments should be considered non-major Federal actions and the
basis for such exclusion. CEQ did not receive sufficient comments to
make any additional changes to the definition of major Federal action
with respect to other financial instruments.
ix. Other Changes to Major Federal Action
In the final rule, paragraphs (q)(2) and (3) include the examples
of activities and decisions that are in 40 CFR 1508.18(a) and (b). CEQ
invited comment on whether it should change ``partly'' to
``predominantly'' in paragraph (q)(2) for consistency with the edits to
the introductory text regarding ``minimal Federal funding.'' CEQ does
not make this change in the final rule. CEQ notes that ``continuing''
activities in paragraph (q)(2) refers to situations where a major
Federal action remains to occur, consistent with Sec. 1502.9(d) and
Norton v. Southern Utah Wilderness Alliance. 542 U.S. at 73.
[[Page 43350]]
CEQ proposed to insert ``implementation of'' before ``treaties'' in
proposed paragraph (q)(2)(i) to clarify that the major Federal action
is not the treaty itself, but rather an agency's action to implement
that treaty. CEQ makes this change in Sec. 1508.1(q)(3)(i) of the
final rule and clarifies that this includes an agency's action to
implement a treaty pursuant to statute or regulation. CEQ also changes
``pursuant to'' to ``under'' the APA and adds a reference to ``other
statutes'' after the APA. While agencies conduct the rulemaking process
pursuant to the APA, they also may do so under the authority of the
specific statutes.
CEQ proposed to strike ``guide'' from proposed paragraph (q)(2)(ii)
because guidance is non-binding. CEQ makes this change in the final
rule in Sec. 1508.1(q)(3)(ii).
Finally, CEQ invited comment in the NPRM on whether CEQ should
further revise the definition of ``major Federal action'' to exclude
other per se categories of activities or to further address what NEPA
analysts have called ``the small handle problem.'' \123\ CEQ did not
receive sufficient information to make any additional changes.
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\123\ See Daniel R. Mandelker et al., NEPA Law and Litigation,
sec. 8:20 (2d ed. 2019) (``This problem is sometimes called the
`small handle' problem because [F]ederal action may be only be a
`small handle' on a non[-F]ederal project.'').
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18. Definition of ``Matter''
The NPRM did not propose any changes to the definition of matter in
paragraph (r). CEQ did not revise this definition in the final rule.
19. Clarifying the Meaning of ``Mitigation''
CEQ proposed to amend the definition of ``mitigation'' to define
the term and clarify that NEPA does not require adoption of any
particular mitigation measure, consistent with Methow Valley, 490 U.S.
at 352-53. In Methow Valley, the Supreme Court held that NEPA and the
CEQ regulations require ``that mitigation be discussed in sufficient
detail to ensure that environmental consequences have been fairly
evaluated,'' but do not establish ``a substantive requirement that a
complete mitigation plan be actually formulated and adopted'' before
the agency can make its decision. Id. at 352.
CEQ also proposed to amend the definition of ``mitigation'' to make
clear that mitigation must have a nexus to the effects of the proposed
action, is limited to those actions that have an effect on the
environment, and does not include actions that do not have an effect on
the environment. This change will make the NEPA process more effective
by clarifying that mitigation measures must actually be designed to
mitigate the effects of the proposed action. This amended definition is
consistent with CEQ's Mitigation Guidance, supra note 29.
Under that guidance, if an agency believes that the proposed action
will provide net environmental benefits through use of compensatory
mitigation, the agency should incorporate by reference the documents
that demonstrate that the proposed mitigation will be new or in
addition to actions that would occur under the no-action alternative,
and the financial, legal, and management commitments for the
mitigation. Use of well-established mitigation banks and similar
compensatory mitigation legal structures should provide the necessary
substantiation for the agency's findings on the effectiveness (nexus to
effects of the action, proportionality, and durability) of the
mitigation. Other actions may be effectively mitigated through use of
environmental management systems that provide a structure of procedures
and policies to systematically identify, evaluate, and manage
environmental impacts of an action during its implementation.\124\
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\124\ See Council on Environmental Quality, Aligning National
Environmental Policy Act Processes with Environmental Management
Systems (Apr. 2007), https://ceq.doe.gov/docs/ceq-publications/NEPA_EMS_Guide_final_Apr2007.pdf.
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CEQ makes the proposed changes in the final rule with minor edits
to improve clarity. Specifically, CEQ replaces ``reasonably foreseeable
impacts to the human environment'' with ``effects'' to more precisely
refer to the defined term ``effects.'' In response to comments, CEQ
also adds ``or alternatives'' after ``proposed action'' to clarify that
mitigation measures mean measures to avoid, minimize, or compensate for
effects caused by a proposed action or its alternatives. CEQ also
replaces ``the effects of a proposed action'' with ``those effects'' to
reduce wordiness and provide additional clarity.
20. Definition of ``NEPA Process''
The NPRM did not propose any changes to the definition of NEPA
process in paragraph (t). CEQ did not revise this definition in the
final rule.
21. Clarifying the Meaning of ``Notice of Intent''
CEQ proposed to revise the definition of ``notice of intent'' in
paragraph (u) to move the operative requirements for what agencies must
include in the notices to Sec. 1501.9(d) and add the word ``public''
to clarify that the NOI is a public notice. CEQ makes these changes in
the final rule.
22. New Definition of ``Page''
CEQ proposed a new definition of ``page'' in paragraph (v) to
provide a word count (500 words) for a more standard functional
definition of ``page'' for page count and other NEPA purposes. CEQ adds
this definition as proposed to the final rule. As discussed in the
NPRM, this change updates NEPA for modern electronic publishing and
internet formatting, in which the number of words per page can vary
widely depending on format. It also ensures some uniformity in document
length while allowing unrestricted use of the graphic display of
quantitative information, tables, photos, maps, and other geographic
information that can provide a much more effective means of conveying
information about environmental effects. This change supports the
original CEQ page limits as a means of ensuring that environmental
documents are readable and useful to decision makers.
23. New Definition of ``Participating Agency''
CEQ proposed to add the concept of a participating agency to the
CEQ regulations in paragraph (w). CEQ proposed to define participating
agency consistent with the definition in FAST-41 and 23 U.S.C. 139. CEQ
proposed to add participating agencies to Sec. 1501.7(i) regarding the
schedule and replace the term ``commenting'' agencies with
``participating'' agencies throughout. CEQ adds this definition as
proposed to the final rule.
24. Clarifying the Meaning of ``Proposal''
CEQ proposed clarifying edits to the definition of proposal in
paragraph (x) and to strike the operative language regarding timing of
an EIS because it is already addressed in Sec. 1502.5. CEQ makes these
changes in the final rule.
25. New Definition of ``Publish and Publication''
CEQ proposed to define publish and publication in paragraph (y) to
provide agencies with the flexibility to make environmental reviews and
information available to the public by electronic means. The 1978
regulations predate personal computers and a wide range of technologies
now used by agencies such as the modern internet and GIS mapping tools.
To ensure that agencies do not exclude the affected public from the
NEPA process due to a lack of resources (often referred to as the
``digital
[[Page 43351]]
divide''), the definition retains a provision for printed environmental
documents where necessary for effective public participation. CEQ adds
this definition as proposed in the final rule.
26. New Definition of ``Reasonable Alternatives''
Several ANPRM commenters asked CEQ to include a new definition of
``reasonable alternatives'' in the regulations with emphasis on how
technical and economic feasibility should be evaluated. CEQ proposed a
new definition of ``reasonable alternatives'' in paragraph (z) to
provide that reasonable alternatives must be technically and
economically feasible and meet the purpose and need of the proposed
action. See, e.g., Vt. Yankee, 435 U.S. at 551 (``alternatives must be
bounded by some notion of feasibility''). CEQ also proposed to define
reasonable alternatives as ``a reasonable range of alternatives'' to
codify Questions 1a and 1b in the Forty Questions, supra note 2.
Agencies are not required to give detailed consideration to
alternatives that are unlikely to be implemented because they are
infeasible, ineffective, or inconsistent with the purpose and need for
agency action.
Finally, CEQ proposed to clarify that a reasonable alternative must
also consider the goals of the applicant when the agency's action
involves a non-Federal entity. These changes will help reduce paperwork
and delays by helping to clarify the range of alternatives that
agencies must consider. Where the agency action is in response to an
application for permit or other authorization, the agency should
consider the applicant's goals based on the agency's statutory
authorization to act, as well as other congressional directives, in
defining the proposed action's purpose and need. CEQ adds this
definition as proposed in the final rule.
27. New Definition of ``Reasonably Foreseeable''
CEQ received comments on the ANPRM requesting that the regulations
provide a definition of ``reasonably foreseeable.'' CEQ proposed to
define ``reasonably foreseeable'' in paragraph (aa) consistent with the
ordinary person standard--that is what a person of ordinary prudence in
the position of the agency decision maker would consider in reaching a
decision. Sierra Club v. Marsh, 976 F.2d 763, 767 (1st Cir. 1992). CEQ
adds this definition as proposed in the final rule.
28. Definition of ``Referring Agency''
CEQ proposed a grammatical edit to the definition of referring
agency in paragraph (bb). CEQ makes this change in the final rule.
29. Definition of ``Scope''
CEQ proposed to move the operative language from paragraph (cc),
which tells agencies how to determine the scope of an EIS, to Sec.
1501.9(e). CEQ makes this change in the final rule.
30. New Definition of ``Senior Agency Official''
CEQ proposed to define the new term ``senior agency official'' in
paragraph (dd) to provide for agency officials that are responsible for
the agency's NEPA compliance. As reflected in comments, implementation
of NEPA can require significant agency resources. Without senior agency
official leadership and effective management of NEPA reviews, the
process can be lengthy, costly, and subject to uncertainty and delays.
CEQ seeks to advance efficiencies to ensure that agencies use their
limited resources to effectively consider environmental impacts and
support timely and informed decision making by the Federal Government.
CEQ adds this definition with some changes in the final rule.
Specifically, CEQ does not include the phrase ``and representing agency
analysis of the effects of agency actions on the human environmental in
agency decision-making processes'' because the duties and
responsibilities of the ``senior agency official,'' including
representing the agency, are discussed in various provisions of the
subchapter. See Sec. Sec. 1501.5(f), 1501.7(d), 1501.8(b)(6) and (c),
1501.10, 1502.7, 1507.2.
31. Definition of ``Special Expertise''
The NPRM did not propose any changes to the definition of special
expertise in paragraph (ee). CEQ did not revise this definition in the
final rule.
32. Striking the Definition of ``Significantly''
Because 40 CFR 1508.27 did not define ``significantly,'' but rather
set out factors for agencies to consider in assessing whether a
particular effect is significant, CEQ proposed to strike this
definition and discuss significance in Sec. 1501.3(b), as described in
section II.C.3. CEQ makes this change in the final rule.
33. Clarifying the Meaning of ``Tiering''
CEQ proposed to amend the definition of ``tiering'' in paragraph
(ff) to make clear that agencies may use EAs at the programmatic stage
as well as the subsequent stages. This clarifies that agencies have
flexibility in structuring programmatic NEPA reviews and associated
tiering. CEQ proposed to move the operative language describing how any
agency determines when and how to tier from 40 CFR 1508.28 to Sec.
1501.11(b). CEQ makes these changes in the final rule.
K. CEQ Guidance Documents
In the proposed rule, CEQ stated that if the proposal was adopted
as a final rule, it would supersede any previous CEQ NEPA guidance and
handbooks. With this final rule, CEQ clarifies that it will provide
notice in the Federal Register listing withdrawn guidance. CEQ will
issue updated or new guidance consistent with Presidential directives.
CEQ also intends to update the Citizen's Guide to NEPA.\125\
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\125\ Supra note 29.
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III. Rulemaking Analyses and Notices
A. Executive Order 12866, Regulatory Planning and Review and Executive
Order 13563, Improving Regulation and Regulatory Review
E.O. 12866 \126\ directs agencies to assess all costs and benefits
of available regulatory alternatives, and if regulation is necessary,
to select regulatory approaches that maximize net benefits, including
potential economic, environmental, public health and safety effects,
and other advantages; distributive impacts; and equity. E.O. 13563
\127\ reaffirms E.O. 12866, and directs agencies to use a process that
provides for public participation in developing rules; promotes
coordination, simplification, and harmonization; and reduces burdens
and maintains flexibility.
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\126\ 58 FR 51735 (Oct. 4, 1993).
\127\ 76 FR 3821 (Jan. 21, 2011).
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Section 3(f) of E.O. 12866 sets forth the four categories of
regulatory action that meet the definition of a significant regulatory
action. The first category includes rules that have an annual effect on
the economy of $100 million or adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, Tribal, or local
governments or communities. Some commenters stated that this rulemaking
would have such an effect, and therefore CEQ should have prepared a
regulatory impact statement. Commenters noted, for example, proposed
changes to the definition of effects, alternatives analysis, and
overall effect on the number of Federal actions subject to NEPA as
examples of impacts
[[Page 43352]]
contributing to an impact of over $100 million on the public.
CEQ agrees that this an economically significant action. However,
many of the changes made in this rule codify long-standing practices
and case law that have developed since CEQ issued the 1978 regulations.
Under OMB Circular A-4, ``Regulatory Analysis'' (Sept. 17, 2003),\128\
the ``no action'' baseline is ``what the world will be like if the
proposed rule is not adopted.'' Changes to the regulations based on
long-standing guidance and Supreme Court case law would be included in
the baseline for the rule; therefore, their codification would generate
marginal cost savings. Similarly, changes that clarify or otherwise
improve the ability to interpret and implement the regulations would
have little to no quantifiable impact. The appendix to the Regulatory
Impact Analysis for the Final Rule, Update to the Regulations
Implementing the Procedural Provisions of the National Environmental
Policy Act \129\ (``RIA Appendix'') provides a summary of the
anticipated economic and environmental impacts associated with the
changes in the final rule. In evaluating economic and environmental
impacts, CEQ has considered the statute and Supreme Court case law, and
the 1978 regulations. As discussed throughout Section II and the Final
Rule Response to Comments, CEQ has made revisions to better align the
regulations with the statute, codify Supreme Court case law and current
agency practice, improve the timeliness and efficiency of the NEPA
process, and make other changes to improve the clarity and readability
of the regulations.
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\128\ 68 FR 58366 (Oct. 10, 2003).
\129\ The Regulatory Impact Analysis for the Final Rule, Update
to the Regulations Implementing the Procedural Provisions of the
National Environmental Policy Act is available under ``Supporting
Documents'' in the docket on regulations.gov under docket ID CEQ-
2019-0003.
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The revisions to CEQ's regulations are anticipated to significantly
lower administrative costs as a result of changes to reduce unnecessary
paperwork. Government-wide, the average number of pages for a final EIS
is approximately 661 pages. The final rule includes numerous changes to
reduce the duplication of paperwork and establishes presumptive page
limits for EAs of 75 pages, and for EISs of 150 pages (or 300 pages for
proposals of unusual scope or complexity).\130\ However, agencies may
request longer page limits with approval from a senior agency official
and include additional material as appendices. The final rule also
makes numerous changes to improve the efficiency of the NEPA process
and establishes presumptive time limits for EAs of one year and for
EISs of two years, which may be extended with approval of a senior
agency official. CEQ expects the final rule to reduce the length of EAs
and EISs, and the time for completing and these analyses, and to lower
administrative costs government-wide.
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\130\ The 1978 regulations recommended the same page limits for
EISs but did not include provisions requiring agencies to meet those
page limits. 40 CFR 1502.7.
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A total of 1,276 EISs were completed from 2010 through 2018, and
the median EIS completion time was 3.5 years with only 257 EISs
completed in 2 years or less.\131\ Based on the efficiencies and
presumptive time limit for EISs in the final rule, the length of time
to complete the 1019 EISs that took longer than 2 years could be
reduced by 58 percent, assuming a 2-year completion time for all of
those actions. Applying this potential time savings to the total
administrative cost to prepare those EISs taking in excess of 2 years
could result in roughly $744 million in savings over the 9-year time
period for an annualized savings of roughly $83 million (2016 adjusted
dollars).\132\ The amount of time required to prepare an EIS does not
necessarily correlate with the total cost. However, for those EISs
taking over two years to prepare, comparing the anticipated time
savings with the respective administrative costs provides insight into
the potential cost savings that an agency may generate under the final
rule. Additionally, CEQ notes that there may be cost savings related to
the preparation of EAs and application of CEs. While the cost of these
actions is significantly lower, agencies conduct such reviews in much
larger numbers than EISs.
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\131\ See Council on Environmental Quality, EIS Timeline Data
Excel Workbook, (June 12, 2020), https://ceq.doe.gov/docs/nepa-practice/CEQ_EIS_Timeline_Data_2020-6-12.xlsx.
\132\ This calculation uses the mid-point ($1.125 million) of
the $250,000 to $2 million cost range found in the NEPA Task Force
report and assumes a 58 percent reduction in costs for those EISs
taking longer than 2 years. NEPA Task Force Report, supra, note 28.
This number is similar to the cost data from the Department of
Energy, which found a median EIS cost of $1.4 million. GAO NEPA
Report, supra, note 91.
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Agencies have not routinely tracked costs of completing NEPA
analyses.\133\ With implementation of this final rule, in particular
Sec. 1502.11(g), agencies will be required to provide the estimated
total cost of preparing an EIS. CEQ expects this will begin to address
the data gap that currently exists relating to the administrative costs
of NEPA compliance.
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\133\ As noted above, a 2014 U.S. Government Accountability
Office report found that Federal agencies do not routinely track
data on the cost of completing NEPA analyses, and that the cost can
vary considerably, depending on the complexity and scope of the
project. GAO NEPA Report, supra note 91.
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CEQ expects these and other changes in the final rule to catalyze
economic benefits by expediting some reviews, including through
improved coordination and management and less focus on non-significant
impacts. Commenters from industry on both the ANPRM and proposed rule
frequently discussed that delays under the 1978 regulations resulted in
higher costs; however, these costs are difficult to quantify. One
estimate in 2015 found that the cost of a 6-year delay in
infrastructure projects across the electricity transmission, power
generation, inland waterways, roads and bridges, rail, and water (both
drinking and wastewater) sectors is $3.7 trillion,\134\ which was
subsequently updated to $3.9 trillion in 2018.\135\ There may be
underlying permits and consultations (e.g., the Endangered Species Act)
and other issues that contribute to a delay and therefore allocating a
portion of the cost to the NEPA process would be challenging.
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\134\ Two Years, Not Ten, supra note 4.
\135\ Press Release, Common Good, Common Good Updates the Cost
of US Infrastructure Delays Costs Have Risen $200 Billion Over Five
Years to Nearly $3.9 Trillion (May 2018), https://www.commongood.org/wp-content/uploads/2018/05/Two-Years-Update.pdf.
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NEPA is a procedural statute requiring agencies to disclose and
consider potential environmental effects in their decision-making
processes. The final rule does not alter any substantive environmental
law or regulation such as the Clean Air Act, the Clean Water Act, and
the Endangered Species Act. Under the final rule, agencies will
continue to consider all significant impacts to the environment.
Although some may view the changes in the final rule as reducing the
number or scope of analyses, CEQ has determined that, using a baseline
of the statutory requirements of NEPA and Supreme Court case law, there
are no adverse environmental impacts (see RIA Appendix).
OMB has determined that this final rule is an economically
significant regulatory action because it may have an annual effect on
the economy of $100 million or more associated with lower
administrative costs and reduced paperwork and delays in the
environmental review process. This rule sets forth the government-wide
process for implementing NEPA in a consistent and coordinated manner.
The rule will also require agencies to update their existing NEPA
procedures for
[[Page 43353]]
consistency with the changes set forth in this final rule.
B. Executive Order 13771, Reducing Regulation and Controlling
Regulatory Costs
Under E.O. 13771,\136\ agencies must identify for elimination two
prior regulations for every one regulation issued, and promulgate
regulations consistent with a regulatory budget. This rule is a
deregulatory action under E.O. 13771 and OMB's guidance implementing
E.O. 13771, titled ``Reducing Regulation and Controlling Regulatory
Costs'' (April 5, 2017).\137\ CEQ anticipates that the changes made in
this rule will reduce unnecessary paperwork and expedite some reviews
through improved coordination and management.
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\136\ 82 FR 9339 (Feb. 3, 2017).
\137\ Available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-21-OMB.pdf.
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C. Regulatory Flexibility Act and Executive Order 13272, Proper
Consideration of Small Entities in Agency Rulemaking
The Regulatory Flexibility Act, as amended, (RFA), 5 U.S.C. 601 et
seq., and E.O. 13272 \138\ require agencies to assess the impacts of
proposed and final rules on small entities. Under the RFA, small
entities include small businesses, small organizations, and small
governmental jurisdictions. An agency must prepare a regulatory
flexibility analysis at the proposed and final rule stages unless it
determines and certifies that the rule, if promulgated, would not have
a significant economic impact on a substantial number of small
entities. 5 U.S.C. 605(b). An agency need not perform an analysis of
small entity impacts when a rule does not directly regulate small
entities. See Mid-Tex Electric Coop., Inc. v. FERC, 773 F.2d 327 (D.C.
Cir. 1985). This rule does not directly regulate small entities.
Rather, it applies to Federal agencies and sets forth the process for
their compliance with NEPA. As noted above, NEPA is a procedural
statute requiring agencies to disclose and consider potential
environmental effects in their decision-making processes, and does not
alter any substantive environmental law or regulation. Under the final
rule, agencies will continue to consider all significant impacts to the
environment.
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\138\ 67 FR 53461 (Aug. 16, 2002).
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A few commenters asserted that the rule would impact small
entities, including small businesses that provide services relating to
the preparation of NEPA documents, outdoor recreation businesses, and
other related small businesses. To the extent that the rule may affect
small entities, this rulemaking will make the NEPA process more
efficient and consistent and clarify the procedural requirements, which
CEQ expects to directly benefit Federal agencies and indirectly benefit
all other entities engaged in the process, including applicants seeking
a Federal permit and those engaged in NEPA compliance activities. In
addition, CEQ expects that small businesses and farmers seeking SBA or
FSA guaranteed loans will indirectly benefit from the clarifying
revisions in the final rule to the definition of major Federal action.
Accordingly, CEQ hereby certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
D. Congressional Review Act
Before a rule can take effect, the Congressional Review Act (CRA)
requires agencies to submit to the House of Representatives, Senate,
and Comptroller General a report containing a copy of the rule and a
statement identifying whether it is a ``major rule.'' 5 U.S.C. 801. OMB
determines if a final rule constitutes a major rule. The CRA defines a
major rule as any rule that the Administrator of OMB's Office of
Information and Regulatory Affairs finds has resulted in or is likely
to result in--(A) an annual effect on the economy of $100,000,000 or
more; (B) a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions, or (C) significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based enterprises to compete with foreign-based enterprises in
domestic and export markets. 5 U.S.C. 804(2).
OMB has determined that this final rule is a major rule for
purposes of the Congressional Review Act. CEQ will submit a report,
including the final rule, to both houses of Congress and the Government
Accountability Office for review.
E. 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. 43 FR at 25232. The NPRM for the 1978 regulations stated
``the impacts of procedural regulations of this kind are not
susceptible to detailed analysis beyond that set out in the
assessment.'' Id. 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
environmental assessment. 51 FR at 15619. The special environmental
assessment issued in 1986 made a finding of no significant
environmental impact, and there was no finding made for the assessment
of the 1978 regulations.
Some commenters expressed the view that CEQ failed to comply with
NEPA when publishing the proposed rule that precedes this final rule,
and CEQ should have prepared an EA or EIS. The commenters stated that
section 102(2)(C) of NEPA requires environmental review of major
Federal actions. By not conducting an environmental review under NEPA,
commenters stated that CEQ violated its own regulations and past
practices in prior regulations. Other commenters stated that NEPA
review was required if the proposed rule ``created the possibility'' of
significant impacts on the environment. They asserted that the proposed
rule was a ``sweeping re-write'' of the 1978 regulations that would
alter Federal agencies' consideration of environmental effects of
proposed projects. Aspects of the proposed rule that were referenced in
this regard include expanded use of CEs, narrow definitions of
significance and effects, weakened alternatives analysis, and reduced
public participation and agency accountability. Commenters asserted
that the consequence of these changes is truncated analysis, a less
informed public, and less mitigation.
CEQ disagrees with commenters. CEQ prepared a special assessment on
its prior rules for illustrative purposes. Those long-prior voluntary
decisions do not forever establish that CEQ has an obligation to apply
the CEQ's regulations to changes to those regulations. As noted above,
CEQ has the authority to promulgate and revise its regulations
consistent with Chevron and other applicable case law.
This rule would not authorize any activity or commit resources to a
project that may affect the environment. Similar to the 1978
regulations, these regulations do not concern any particular
environmental media, nor are the regulations tied to a specific
environmental setting. Rather, these regulations apply generally to
Federal actions affecting the environment. No action under the
regulations or specific issue or problem is singled out for special
consideration. See Council on Environmental Quality, Special
[[Page 43354]]
Environmental Assessment of Regulations Proposed Under E.O. 11991 to
Implement the Procedural Provisions of the National Environmental
Policy Act, p. 6 (1978). Further, as stated by CEQ when it proposed the
regulations in 1978, procedural rules of this kind are not susceptible
to detailed analysis. 43 FR at 25232.
Even if CEQ were required to prepare an EA, it likely would result
in a FONSI. CEQ has reviewed the changes made in this final rule and
determined that they would not result in environmental impacts. See RIA
Appendix. For reasons explained in the respective areas of this
preamble and further summarized in the RIA Appendix, CEQ disagrees that
the clarifications and changes to the processes that Federal agencies
follow when relying on CEs, analyzing alternatives, and engaging the
public will themselves result in any environmental impacts, let alone
potentially significant impacts. This thorough review, in combination
with the aforementioned circumstances of the special environmental
assessments prepared for the 1978 and 1986 regulations, and the
procedural nature of these regulations, reinforces CEQ's view that an
EA is neither required nor necessary.
Moreover, preparing an EA for the final rule would not meaningfully
inform CEQ or the public. The clarifications and changes in the final
rule are entirely procedural and will help to inform the processes used
by Federal agencies to evaluate the environmental effects of their
proposed actions in the future.
For reasons explained in the respective areas of this preamble and
further summarized in the RIA Appendix, CEQ disagrees that changes
relating to CEs, analysis of alternatives, public participation, and
agency responsibilities will have environmental impacts, let alone
potentially significant ones.
In addition, commenters referenced several court opinions in
support of their view that an agency's interpretation of a statute can
be subject to NEPA review when that interpretation can lead to
subsequent, significant effects on the environment, including Citizens
for Better Forestry v. U.S. Dep't of Agric., 481 F. Supp. 2d 1059 (N.D.
Cal. 2007) and Sierra Club v. Bosworth, 510 F. 3d 1016 (9th Cir. 2007).
Commenters stated that CEQ was required to request comment on the
appropriate scope of the environmental review of the proposed rule and
then prepare, and notice for public comment, an EIS before or in tandem
with its publication.
The circumstances in this rule are distinctly different from the
case law referenced by commenters. Citizens for Better Forestry
pertains to the misapplication of an existing CE, where the court found
that the agency improperly expanded the scope of an existing CE when
applying it to a National Forest Management Act rulemaking. 481 F.
Supp. at 1086. In Sierra Club v. Bosworth, the court agreed with
previous cases finding that the promulgation of agency NEPA procedures,
including the establishment of new CEs, did not itself require
preparation of an EA or EIS, but that agencies need only comply with
CEQ regulations setting forth procedural requirements, including
consultation with CEQ, and Federal Register publication for public
comment (40 CFR 1507.3). 510 F.3d at 1022. The court, however, found
that the record relied on by the U.S. Forest Service to develop and
justify a CE was deficient. Id. at 1026-30. Neither of the
circumstances in those cases is comparable to the circumstances of this
rule. Further, in another relevant case, Heartwood v. U.S. Forest
Service, the court found that neither NEPA nor the CEQ regulations
required the agency to conduct an EA or an EIS prior to the
promulgation of its procedures creating a CE. 230 F.3d 947, 954-55 (7th
Cir. 2000).
This rule serves as the primary regulation from which agencies
develop procedures to implement the statute. To prepare an EIS, as some
commenters had requested, would necessitate that CEQ apply the 1978
regulations to a rule that revises those same regulations. There is no
indication that the statute contemplated such circumstances, and CEQ is
not aware of other examples in law where the revisions to procedural
rules were subject to the requirements of the rule that those same
rules replaced. Further, the 1978 regulations do not require agencies
to prepare a NEPA analysis before establishing or updating agency
procedures for implementing NEPA. Since this rule would not authorize
any activity or commit resources to a project that may affect the
environment, preparation of an environmental review is not required.
F. Endangered Species Act
Under the ESA, the promulgation of regulations can be a
discretionary agency action subject to section 7 of the ESA. CEQ has
determined that updating its regulations implementing the procedural
provisions of NEPA has ``no effect'' on listed species and critical
habitat. Therefore, ESA section 7 consultation is not required.
Commenters stated that consultation with the Fish and Wildlife
Service and the National Marine Fisheries Service is required because
the rule may affect or may adversely affect species listed under the
ESA. In support of this point, commenters referenced proposed changes
to the definition of ``effects'' and ``significantly,'' development of
alternatives, and obligations for agencies to obtain information.
Commenters noted that a programmatic consultation may be appropriate
where an agency promulgates regulations that may affect endangered
species. Other commenters believe that the rule is contrary to section
7(a)(1) of ESA, which imposes a specific obligation upon all federal
agencies to carry out programs to conserve endangered and threatened
species. Commenters stated that the proposed changes eliminate or
otherwise weaken requirements pertaining to the assessment of impacts
and, in doing so, CEQ fails to satisfy responsibilities under section
7(a)(1).
CEQ disagrees that the aforementioned regulatory changes ``may
affect'' listed species or critical habitat. Initially, it is important
to note that commenters are conflating ESA and NEPA. As courts have
stated numerous times, these are two different statutes with different
standards and definitions and, in fact, different underlying policies.
As discussed in section II.B.1, the Supreme Court has stated that NEPA
is a procedural statute. In contrast, the ESA is principally focused on
imposing substantive duties on Federal agencies and the public.
Regardless of how definitions or other procedures under NEPA are
changed under this regulation or any other regulatory process, it will
not change the requirements for Federal agencies under the ESA or its
implementing regulations.
This rulemaking is procedural in nature, and therefore does not
make any final determination regarding the level of NEPA analysis
required for particular actions. CEQ's approach is consistent with the
approach taken by other Federal agencies that similarly make
determinations of no effect on listed species and critical habitat when
establishing or updating agency NEPA procedures. CEQ also notes that
neither the 1978 regulations nor the 1986 amendments indicate that CEQ
consulted under ESA section 7(a)(2). Setting aside the procedural
nature of this rule, CEQ reviewed it to determine if it ``may affect''
listed species or their designated critical habitat. CEQ has closely
reviewed the impacts of all the changes made to the 1978 regulations,
as summarized in the RIA Appendix and described in greater detail in
the
[[Page 43355]]
respective responses to comments. None of the changes to the 1978
regulations are anticipated to have environmental impacts, including
potential effects to listed species and critical habitat. For example,
under Sec. 1501.3 of the final rule, agencies should continue to
consider listed species and designated habitat when making a
determination of significance with respect to the level of NEPA review.
Contrary to several comments, the final rule does not ignore
cumulative effects on listed species. Rather, the final rule includes a
definition of effects that comports with Supreme Court case law to
encompass all effects that are reasonably foreseeable and have a
reasonably close causal relationship to the proposed action or
alternatives. In general, the changes improve the timeliness and
efficiency of the NEPA process while retaining requirements to analyze
all activities and environmental impacts covered within the scope of
the statute. To the extent the rule modifies the 1978 regulations, the
changes do not diminish the quality and depth of environmental review
relative to the baseline, which is defined as how NEPA is conducted
under applicable Supreme Court case law.
Neither the ESA regulations nor the ESA Section 7 Consultation
Handbook (1998) require the action agency to request concurrence from
the Fish and Wildlife Service and National Marine Fisheries Service for
determinations that an action will have no effect on listed species or
their critical habitat. The final rule does not change the obligations
of Federal agencies under the ESA; as noted above, importantly, all of
the requirements under section 7 and associated implementing
regulations and policies continue to apply regardless of whether NEPA
analysis is triggered or the form of the NEPA documentation. For the
aforementioned reasons, CEQ has determined that the final rule will
have no effect on ESA listed species and designated critical habitat.
To the extent commenters imply that, under the authority of ESA
section 7(a)(1), CEQ can regulate Federal action agencies with regard
to the ESA, this is not accurate. For example, CEQ does not have the
authority, under the guise of NEPA, to dictate to Federal action
agencies that they may only choose an alternative that has the most
conservation value for listed species or designated critical habitat.
All Federal agencies continue to be subject to the ESA and its
requirements. Further, as described in detail in the RIA Appendix and
in Final Rule Response to Comments on specific changes, none of the
changes to the 1978 regulations are anticipated to have environmental
impacts, including potential effects to listed species and critical
habitat. In general, the changes improve the timeliness and efficiency
of the NEPA process while retaining requirements to analyze all
environmental impacts covered within the ambit of the statute. CEQ
notes that the rulemaking is procedural in nature, and therefore does
not make any final determination regarding the level of NEPA analysis
required for particular actions.
G. 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.\139\ Policies that have federalism implications include
regulations that have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. This rule does not have federalism implications because it
applies to Federal agencies, not States. However, CEQ notes that States
may elect to assume NEPA responsibilities under Federal statutes. CEQ
received comments in response to the NPRM from a number of States,
including those that have assumed NEPA responsibilities, and considered
these comments in development of the final rule.
---------------------------------------------------------------------------
\139\ Supra note 75.
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H. 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.\140\ 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. While the rule is not a regulatory policy
that has Tribal implications, the rule does, in part, respond to Tribal
government comments concerning Tribal sovereign rights, interests, and
the expertise of Tribes in the NEPA process and the CEQ regulations
implementing NEPA.
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\140\ Supra note 69.
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Several commenters stated that it is inaccurate for CEQ to conclude
that the rule ``is not a regulatory policy that has Tribal
implications,'' under E.O. 13175. Commenters noted that NEPA uniquely
and substantially impacts Tribes, and Tribal lands are ordinarily held
in Federal trust. Commenters also stated that through NEPA and its
implementing regulations, Tribes often engage with the Federal agency
on projects located within the Tribes' ancestral lands, including on
projects that may affect cultural resources, sacred sites, and other
resources. Commenters noted Tribal nations routinely participate in the
NEPA process as participating, cooperating, or sometimes lead agencies.
Further, the proposed regulations specifically contain provisions that
explicitly reference Tribal nations.
Commenters stated that consultation is required by the Presidential
Memorandum for the Heads of Executive Departments and Agencies on
Tribal Consultation dated November 5, 2009,\141\ which supplements E.O.
13175 and requested formal consultation and additional meetings in
their region with CEQ on the proposed rule. Commenters stated that the
Tribal meetings CEQ held were insufficient in number or capacity for
meaningful consultation. Other commenters stated that consultation
should start at the outset of the process, and some reference comments
provided on the need for consultation during the ANPRM process. Some
commenters stated that CEQ should withdraw the proposed rule, and
others asked that CEQ postpone or extend the comment period for the
rulemaking in order to engage in consultation with Tribal governments
in order to make the regulatory framework more responsive to Tribal
needs.
---------------------------------------------------------------------------
\141\ 74 FR 57881 (Nov. 9, 2009).
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The final rule does not meet the criteria in E.O. 13175 that
require government-to-government consultation. This rule does not
impose substantial direct compliance costs on Tribal governments
(section 5(b)) and does not preempt Tribal law (section 5(c)). However,
CEQ solicited and received numerous Tribal governmental and
organizational public comments during the rulemaking process. The
comments received through the ANPRM informed the development of CEQ's
proposed rule. For the proposed rule, CEQ provided for a 60-day public
comment period, which is consistent with the length of the comment
period provided by CEQ for the original 1978 proposed regulations, as
well as the APA and E.O. 12866. CEQ notified all
[[Page 43356]]
Tribal leaders of federally recognized Tribes by email or mail of the
proposed rule and invited comments. CEQ conducted additional Tribal
outreach to solicit comments from Tribal leaders and members through
three listening sessions held in Denver, Colorado, Anchorage, Alaska,
and Washington, DC. CEQ made information to aid the Tribes and the
public's review available on its websites at www.whitehouse.gov/ceq and
www.nepa.gov, including a redline version of the proposed changes, a
presentation on the proposed rule, and other background information.
One commenter argued that CEQ made a ``substantive'' decision to
forego Tribal consultation that it must support with substantial
evidence in the administrative record under the APA. While compliance
with E.O. 13175 is not subject to judicial review, the final rule
explains how CEQ received meaningful and timely input from Tribal
leaders and members.
In its ANPRM, CEQ included a specific question regarding the
representation of Tribal governments in the NEPA process. See ANPRM
Question 18 (``Are there ways in which the role of [T]ribal governments
in the NEPA process should be clarified in CEQ's NEPA regulations, and
if so, how?''). More generally, CEQ's ANPRM sought the views of Tribal
governments and others on regulatory revisions that CEQ could propose
to improve Tribal participation in Federal NEPA processes. See ANPRM
Question 2 (``Should CEQ's NEPA regulations be revised to make the NEPA
process more efficient by better facilitating agency use of
environmental studies, analysis, and decisions conducted in earlier
Federal, State, Tribal or local environmental reviews or authorization
decisions, and if so, how?''). As discussed in section II.A, CEQ is
amending its regulations in the final rule to further support
coordination with Tribal governments and agencies and analysis of a
proposed action's potential effects on Tribal lands, resources, or
areas of historic significance as an important part of Federal agency
decision making.
I. Executive Order 12898, Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
E.O. 12898 requires agencies to make achieving environmental
justice part of their missions by identifying and addressing, as
appropriate, disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities on
minority populations and low-income populations.\142\ CEQ has analyzed
this final rule and determined that it would not cause
disproportionately high and adverse human health or environmental
effects on minority populations and low-income populations. 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 agencies can consider, as needed, environmental justice
issues.
---------------------------------------------------------------------------
\142\ 59 FR 7629 (Feb. 16, 1994).
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Several commenters disagreed with CEQ's determination that the
proposed rule would not cause disproportionately high and adverse human
health or environmental effects on minority populations and low-income
populations. Commenters stated NEPA's mandate to consider environmental
effects, E.O. 12898, agency guidance, and case law establish that
agencies cannot ignore the impacts of their actions on low-income and
minority communities, and that CEQ is relinquishing its responsibility
to oversee compliance with E.O. 12898 and NEPA. Further, commenters
contended that CEQ's failure to analyze how the proposed rule and its
implementation would affect E.O. 12898's mandates would render the
regulations arbitrary and capricious, and exceed the agency's statutory
authority.
Commenters stated that CEQ provided no explanation or analysis of
how the development and implementation of this rule would affect
implementation of E.O. 12898 and, consequently, environmental justice
communities. Commenters noted the fundamental proposed changes to
nearly every step of the NEPA review process will disproportionately
impact environmental justice communities and will reduce or limit
opportunities for such communities to understand the effects of
proposed projects and to participate in the NEPA review process.
NEPA is a procedural statute that does not presuppose any
particular substantive outcomes. In addition, CEQ has reviewed the
changes in this final rule and has determined that they would not
result in environmental impacts. See RIA Appendix. CEQ disagrees that
the final rule will have disproportionately high and adverse human
health or environmental effects on minority populations and low-income
population. Rather, the final rule modernizes and clarifies the
procedures that NEPA contemplates. Among other things, this will give
agencies greater flexibility to design and customize public involvement
to best address the specific circumstances of their proposed actions.
The final rule expands the already wide range of tools agencies may use
when providing notice to potentially affected communities and inviting
public involvement. CEQ has made further changes to Sec. 1506.6 in the
final rule to clarify that agencies should consider the public's access
to electronic media when selecting appropriate methods for providing
public notice and involvement. The final rule also better informs the
public by extending the scoping period so that it may occur prior to
publication of the NOI, where appropriate, and increasing the
specificity of the NOI.
Commenters also raised concerns that CEQ did not follow the E.O.
12898 directive to ensure that environmental justice communities can
meaningfully participate in public processes and Federal agency
decision making, including making public information and hearings
``readily accessible.'' Commenters stated that CEQ failed to follow
this directive in designing its rulemaking process, and in fact,
excluded environmental justice communities from the process. Further,
commenters stated that, over 20 years ago, CEQ acknowledged that
traditional notice and comment procedures may be insufficient to engage
environmental justice communities. These barriers may range from agency
failure to provide translation of documents to the scheduling of
meetings at times and in places that are not convenient to working
families. Commenters stated that CEQ failed to mention environmental
justice communities in its opening statement during the Washington, DC
hearing.
Commenters also stated that CEQ failed to take note of the
thousands of comments submitted in response to the ANPRM raising
concerns about the health and environment of environmental justice
communities that could come from limiting opportunities to gain access
to information about projects and to comment. Commenters stated that if
CEQ's rulemaking process was more inclusive and expansive it would
enable some valuable clarifications in the regulations of how
environmental justice impacts should be taken more definitively into
account in NEPA reviews. Commenters also stated that the proposed rule
changes show no particular interest in better clarifying this important
aspect of environmental review, and show no evidence of interest in
bettering environmental justice impact assessment.
In response to the ANPRM, CEQ received over 12,500 comments,
including from those representing
[[Page 43357]]
environmental justice organizations. The diverse range of public
comments informed CEQ's development of the proposed rule to improve
interagency coordination in the environmental review process, promote
earlier public involvement, increase transparency, and enhance the
participation of States, Tribes, and localities.
In issuing the NPRM, CEQ took a number of further actions to hear
from the public and to encourage all interested stakeholders to submit
comments. These actions included notifying and inviting comment from
all federally recognized Tribes and over 400 interested groups,
including States, localities, environmental organizations, trade
associations, NEPA practitioners, and other interested members of the
public, representing a broad range of diverse views. Additionally, CEQ
made information to aid the public's review available on its websites
at www.whitehouse.gov/ceq and www.nepa.gov, including a redline version
of the proposed changes to the regulations, along with a presentation
on the proposed rule and other background information.
CEQ engaged in extensive public outreach with the benefit of modern
technologies and rulemaking procedures. CEQ held two public hearings
each with morning, afternoon, and evening sessions, in Denver, Colorado
on February 11, 2020, and in Washington, DC on February 25, 2020. Both
hearings had diverse representation from stakeholders, including many
speaking on behalf of environmental justice communities or about their
concerns. CEQ also attended the National Environmental Justice Advisory
Committee (NEJAC) meeting in Jacksonville, Florida to brief NEJAC
members and the public on the proposed rule and to answer questions.
CEQ also conducted additional public outreach to solicit comments and
receive input, including Tribal engagement in Denver, Colorado,
Anchorage, Alaska and Washington, DC.
J. 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.\143\ This final rule is not a
``significant energy action'' because it is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy.
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\143\ 66 FR 28355 (May 22, 2001).
---------------------------------------------------------------------------
K. Executive Order 12988, Civil Justice Reform
Under section 3(a) E.O. 12988,\144\ agencies must review their
proposed regulations to eliminate drafting errors and ambiguities,
draft them to minimize litigation, and provide a clear legal standard
for affected conduct. Section 3(b) provides a list of specific issues
for review to conduct the reviews required by section 3(a). CEQ has
conducted this review and determined that this final rule complies with
the requirements of E.O. 12988.
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\144\ 61 FR 4729 (Feb. 7, 1996).
---------------------------------------------------------------------------
L. Unfunded Mandates Reform Act
Section 201 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531) requires Federal agencies to assess the effects of their
regulatory actions on State, Tribal, and local governments, and the
private sector to the extent that such regulations incorporate
requirements specifically set forth in law. Before promulgating a rule
that may result in the expenditure by a State, Tribal, or local
government, in the aggregate, or by the private sector of $100 million,
adjusted annually for inflation, in any one year, an agency must
prepare a written statement that assesses the effects on State, Tribal,
and local governments and the private sector. 2 U.S.C. 1532. This final
rule applies to Federal agencies and would not result in expenditures
of $100 million or more for State, Tribal, and local governments, in
the aggregate, or the private sector in any 1 year. This action also
does 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. 1531-38.
M. Paperwork Reduction Act
This final rule does not impose any new information collection
burden that would require additional review or approval by OMB under
the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.
List of Subjects
40 CFR Parts 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, and 1508
Administrative practice and procedure, Environmental impact
statements, Environmental protection, Natural resources.
40 CFR Part 1515
Freedom of information.
40 CFR Part 1516
Privacy.
40 CFR Part 1517
Sunshine Act.
40 CFR Part 1518
Accounting, Administrative practice and procedure, Environmental
impact statements.
Mary B. Neumayr,
Chairman.
For the reasons stated in the preamble, and under the authority of
42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C. 7609; 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; and E.O. 13807, 82 FR 40463, 3
CFR, 2017, Comp., p. 369, the Council on Environmental Quality amends
chapter V in title 40 of the Code of Federal Regulations as follows:
PARTS 1500 THROUGH 1508 [DESIGNATED AS SUBCHAPTER A]
0
1. Designate parts 1500 through 1508 as subchapter A and add a heading
for newly designated subchapter A to read as follows:
Subchapter A--National Environmental Policy Act Implementing
Regulations
0
2. Revise part 1500 to read as follows:
PART 1500--PURPOSE AND POLICY
Sec.
1500.1 Purpose and policy.
1500.2 [Reserved].
1500.3 NEPA compliance.
1500.4 Reducing paperwork.
1500.5 Reducing delay.
1500.6 Agency authority.
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; 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; and
E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
Sec. 1500.1 Purpose and policy.
(a) The National Environmental Policy Act (NEPA) is a procedural
statute intended to ensure Federal agencies consider the environmental
impacts of their actions in the decision-making process. Section 101 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
man and nature can exist in productive harmony, and fulfill the social,
economic, and other requirements of present and future generations of
Americans. Section 102(2) of NEPA establishes the procedural
requirements to carry out the policy stated in section 101 of NEPA. In
[[Page 43358]]
particular, it requires Federal agencies to provide a detailed
statement on proposals for major Federal actions significantly
affecting the quality of the human environment. The purpose and
function of NEPA is satisfied if Federal agencies have considered
relevant environmental information, and the public has been informed
regarding the decision-making process. NEPA does not mandate particular
results or substantive outcomes. NEPA's purpose is not to generate
paperwork or litigation, but to provide for informed decision making
and foster excellent action.
(b) The regulations in this subchapter implement section 102(2) of
NEPA. They provide direction to Federal agencies to determine what
actions are subject to NEPA's procedural requirements and the level of
NEPA review where applicable. The regulations in this subchapter are
intended to ensure that relevant environmental information is
identified and considered early in the process in order to ensure
informed decision making by Federal agencies. The regulations in this
subchapter are also 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.
Sec. 1500.2 [Reserved]
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), except where compliance
would be inconsistent with other statutory requirements. 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.); section 309 of the Clean Air Act, as
amended (42 U.S.C. 7609); 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); and Executive Order 13807,
Establishing Discipline and Accountability in the Environmental Review
and Permitting Process for Infrastructure Projects (August 15, 2017).
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 law.
(b) Exhaustion. (1) To ensure informed decision making and reduce
delays, agencies shall include a request for comments on potential
alternatives and impacts, and identification of any relevant
information, studies, or analyses of any kind concerning impacts
affecting the quality of the human environment in the notice of intent
to prepare an environmental impact statement (Sec. 1501.9(d)(7) of
this chapter).
(2) The draft and final environmental impact statements shall
include a summary of all alternatives, information, and analyses
submitted by State, Tribal, and local governments and other public
commenters for consideration by the lead and cooperating agencies in
developing the draft and final environmental impact statements (Sec.
1502.17 of this chapter).
(3) For consideration by the lead and cooperating agencies, State,
Tribal, and local governments and other public commenters must submit
comments within the comment periods provided, and comments shall be as
specific as possible (Sec. Sec. 1503.1 and 1503.3 of this chapter).
Comments or objections of any kind not submitted, including those based
on submitted alternatives, information, and analyses, shall be
forfeited as unexhausted.
(4) Informed by the submitted alternatives, information, and
analyses, including the summary in the final environmental impact
statement (Sec. 1502.17 of this chapter) and the agency's response to
comments in the final environmental impact statement (Sec. 1503.4 of
this chapter), together with any other material in the record that he
or she determines relevant, the decision maker shall certify in the
record of decision that the agency considered all of the alternatives,
information, and analyses, and objections submitted by States, Tribal,
and local governments and other public commenters for consideration by
the lead and cooperating agencies in developing the environmental
impact statement (Sec. 1505.2(b) of this chapter).
(c) 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. It is the Council's intention that
any allegation of noncompliance with NEPA and the regulations in this
subchapter should be resolved as expeditiously as possible. Consistent
with their organic statutes, and as part of implementing the exhaustion
provisions in paragraph (b) of this section, agencies may structure
their procedures to include an appropriate bond or other security
requirement.
(d) Remedies. Harm from the failure to comply with NEPA can be
remedied by compliance with NEPA's procedural requirements as
interpreted in the regulations in this subchapter. It is the Council's
intention that the regulations in this subchapter create no presumption
that violation of NEPA is a basis for injunctive relief or for a
finding of irreparable harm. The regulations in this subchapter do not
create a cause of action or right of action for violation of NEPA,
which contains no such cause of action or right of action. It is the
Council's intention that any actions to review, enjoin, stay, vacate,
or otherwise alter an agency decision on the basis of an alleged NEPA
violation be raised as soon as practicable after final agency action to
avoid or minimize any costs to agencies, applicants, or any affected
third parties. 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.
(e) 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 Reducing paperwork.
Agencies shall reduce excessive paperwork by:
(a) Using categorical exclusions to define categories of actions
that normally do not have a significant effect on the human environment
and therefore do not require preparation of an environmental impact
statement (Sec. 1501.4 of this chapter).
(b) Using a finding of no significant impact when an action not
otherwise excluded will not have a significant effect on the human
environment and therefore does not require preparation of an
environmental impact statement (Sec. 1501.6 of this chapter).
(c) Reducing the length of environmental documents by means such as
meeting appropriate page limits (Sec. Sec. 1501.5(f) and 1502.7 of
this chapter).
[[Page 43359]]
(d) Preparing analytic and concise environmental impact statements
(Sec. 1502.2 of this chapter).
(e) Discussing only briefly issues other than significant ones
(Sec. 1502.2(b) of this chapter).
(f) Writing environmental impact statements in plain language
(Sec. 1502.8 of this chapter).
(g) Following a clear format for environmental impact statements
(Sec. 1502.10 of this chapter).
(h) Emphasizing the portions of the environmental impact statement
that are useful to decision makers and the public (e.g., Sec. Sec.
1502.14 and 1502.15 of this chapter) and reducing emphasis on
background material (Sec. 1502.1 of this chapter).
(i) Using the scoping process, not only to identify significant
environmental issues deserving of study, but also to deemphasize
insignificant issues, narrowing the scope of the environmental impact
statement process accordingly (Sec. 1501.9 of this chapter).
(j) Summarizing the environmental impact statement (Sec. 1502.12
of this chapter).
(k) Using programmatic, policy, or plan environmental impact
statements and tiering from statements of broad scope to those of
narrower scope, to eliminate repetitive discussions of the same issues
(Sec. Sec. 1501.11 and 1502.4 of this chapter).
(l) Incorporating by reference (Sec. 1501.12 of this chapter).
(m) Integrating NEPA requirements with other environmental review
and consultation requirements (Sec. 1502.24 of this chapter).
(n) Requiring comments to be as specific as possible (Sec. 1503.3
of this chapter).
(o) 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
chapter).
(p) Eliminating duplication with State, Tribal, and local
procedures, by providing for joint preparation of environmental
documents where practicable (Sec. 1506.2 of this chapter), and with
other Federal procedures, by providing that an agency may adopt
appropriate environmental documents prepared by another agency (Sec.
1506.3 of this chapter).
(q) Combining environmental documents with other documents (Sec.
1506.4 of this chapter).
Sec. 1500.5 Reducing delay.
Agencies shall reduce delay 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 chapter) and therefore do not require preparation
of an 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 chapter) and therefore does not
require preparation of an environmental impact statement.
(c) Integrating the NEPA process into early planning (Sec. 1501.2
of this chapter).
(d) Engaging in interagency cooperation before or as the
environmental assessment or environmental impact statement is prepared,
rather than awaiting submission of comments on a completed document
(Sec. Sec. 1501.7 and 1501.8 of this chapter).
(e) Ensuring the swift and fair resolution of lead agency disputes
(Sec. 1501.7 of this chapter).
(f) Using the scoping process for an early identification of what
are and what are not the real issues (Sec. 1501.9 of this chapter).
(g) Meeting appropriate time limits for the environmental
assessment and environmental impact statement processes (Sec. 1501.10
of this chapter).
(h) Preparing environmental impact statements early in the process
(Sec. 1502.5 of this chapter).
(i) Integrating NEPA requirements with other environmental review
and consultation requirements (Sec. 1502.24 of this chapter).
(j) Eliminating duplication with State, Tribal, and local
procedures by providing for joint preparation of environmental
documents where practicable (Sec. 1506.2 of this chapter) 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 chapter).
(k) Combining environmental documents with other documents (Sec.
1506.4 of this chapter).
(l) Using accelerated procedures for proposals for legislation
(Sec. 1506.8 of this chapter).
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 as interpreted by 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, consistent with Sec. 1501.1
of this chapter. Nothing contained in the regulations in this
subchapter is intended or should be construed to limit an agency's
other authorities or legal responsibilities.
0
3. Revise part 1501 to read as follows:
PART 1501--NEPA AND AGENCY PLANNING
Sec.
1501.1 NEPA thresholds.
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 agencies.
1501.8 Cooperating agencies.
1501.9 Scoping.
1501.10 Time limits.
1501.11 Tiering.
1501.12 Incorporation by reference.
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; E.O. 11514, 35 FR 4247, 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; and E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
Sec. 1501.1 NEPA thresholds.
(a) In assessing whether NEPA applies or is otherwise fulfilled,
Federal agencies should determine:
(1) Whether the proposed activity or decision is expressly exempt
from NEPA under another statute;
(2) Whether compliance with NEPA would clearly and fundamentally
conflict with the requirements of another statute;
(3) Whether compliance with NEPA would be inconsistent with
Congressional intent expressed in another statute;
(4) Whether the proposed activity or decision is a major Federal
action;
(5) Whether the proposed activity or decision, in whole or in part,
is a non-discretionary action for which the agency lacks authority to
consider environmental effects as part of its decision-making process;
and
(6) Whether the proposed action is an action for which another
statute's requirements serve the function of agency compliance with the
Act.
(b) Federal agencies may make determinations under this section in
their agency NEPA procedures (Sec. 1507.3(d) of this chapter) or on an
individual basis, as appropriate.
[[Page 43360]]
(1) Federal agencies may seek the Council's assistance in making an
individual determination under this section.
(2) An agency shall consult with other Federal agencies concerning
their concurrence in statutory determinations made under this section
where more than one Federal agency administers the statute.
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 which may have an impact
on man's environment, as specified by Sec. 1507.2(a) of this chapter.
(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.
(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)(E) of NEPA.
(4) Provide for actions subject to NEPA that are planned by private
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 private persons 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 chapter).
Sec. 1501.3 Determine the appropriate level of NEPA review.
(a) In assessing the appropriate level of NEPA review, Federal
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
chapter).
(b) In considering whether the effects of the proposed action are
significant, agencies shall analyze the potentially affected
environment and degree of the effects of the action. Agencies should
consider connected actions consistent with Sec. 1501.9(e)(1).
(1) In considering the potentially affected environment, agencies
should consider, as appropriate to the specific action, the affected
area (national, regional, or local) and its resources, such as listed
species and designated critical habitat under the Endangered Species
Act. Significance varies with the setting of the proposed action. For
instance, in the case of a site-specific action, significance would
usually depend only upon the effects in the local area.
(2) In considering the degree of the effects, agencies should
consider the following, as appropriate to the specific action:
(i) Both short- and long-term effects.
(ii) Both beneficial and adverse effects.
(iii) Effects on public health and safety.
(iv) Effects that would violate Federal, State, Tribal, or local
law protecting the environment.
Sec. 1501.4 Categorical exclusions.
(a) For efficiency, agencies shall identify in their agency NEPA
procedures (Sec. 1507.3(e)(2)(ii) of this chapter) categories of
actions that normally do not have a significant effect on the human
environment, and therefore do not require preparation of an
environmental assessment or environmental impact statement.
(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 is present, the agency
nevertheless may categorically exclude the proposed action if the
agency determines that there are circumstances that lessen the impacts
or other conditions sufficient to avoid significant effects.
(2) If the agency cannot categorically exclude the proposed action,
the agency shall prepare an environmental assessment or environmental
impact statement, as appropriate.
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
in order 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; and
(2) Briefly discuss the purpose and need for the proposed action,
alternatives as required by section 102(2)(E) of NEPA, and the
environmental impacts of the proposed action and alternatives, and
include a listing of agencies and persons consulted.
(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) Agencies shall involve the public, State, Tribal, and local
governments, relevant agencies, and any applicants, to the extent
practicable in preparing environmental assessments.
(f) The text of an environmental assessment shall be no more than
75 pages, not including appendices, unless a senior agency official
approves in writing an assessment to exceed 75 pages and establishes a
new page limit.
(g) Agencies may apply the following provisions to environmental
assessments:
(1) Section 1502.21 of this chapter--Incomplete or unavailable
information;
(2) Section 1502.23 of this chapter--Methodology and scientific
accuracy; and
(3) Section 1502.24 of this chapter--Environmental review and
consultation requirements.
Sec. 1501.6 Findings of no significant impact.
(a) An agency shall prepare a finding of no significant impact if
the agency
[[Page 43361]]
determines, based on the environmental assessment, not to prepare an
environmental impact statement because the proposed action will not
have significant effects.
(1) The agency shall make the finding of no significant impact
available to the affected public as specified in Sec. 1506.6(b) of
this chapter.
(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 chapter; 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. 1501.9(f)(3)).
If the 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 impacts based on mitigation, the mitigated finding of no
significant impact shall state any enforceable mitigation requirements
or commitments that will be undertaken to avoid significant impacts.
Sec. 1501.7 Lead agencies.
(a) A lead agency shall supervise the preparation of an
environmental impact statement or a complex 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, including at least
one Federal agency, may act as joint lead agencies to prepare an
environmental impact statement or environmental assessment (Sec.
1506.2 of this chapter).
(c) If an action falls within the provisions of paragraph (a) of
this section, the potential lead agencies shall determine, by letter or
memorandum, which agency will be the lead agency and which 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.
(5) Sequence of agency's involvement.
(d) Any Federal agency, or any State, Tribal, or local agency or
private person substantially affected by the absence of lead agency
designation, may make a written request to the senior agency officials
of the potential lead agencies that a lead agency be designated.
(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,
any of the agencies or persons concerned may file a request with the
Council asking it to determine which Federal agency shall be the lead
agency. A copy of the request shall be transmitted 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 within 20 days
after a request is filed with the Council. As soon as possible, but not
later than 20 days after receiving the request and all responses to it,
the Council shall determine 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 issue 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 should evaluate the proposal in a single environmental
assessment and, where appropriate, issue a joint finding of no
significant impact.
(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) Use the environmental analysis and proposals of cooperating
agencies with jurisdiction by law or special expertise, to the maximum
extent practicable.
(3) Meet with a cooperating agency at the latter's request.
(4) Determine the purpose and need, and alternatives in
consultation with any cooperating agency.
(i) The lead agency shall develop a schedule, setting milestones
for all environmental reviews and authorizations required for
implementation of the action, in consultation with any applicant and
all joint lead, cooperating, and participating agencies, as soon as
practicable.
(j) If the lead agency anticipates that a milestone will be missed,
it shall notify appropriate officials at the responsible agencies. As
soon as practicable, the responsible agencies shall elevate the issue
to the appropriate officials of the responsible agencies for timely
resolution.
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. 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. 1501.9).
(3) On request of the lead agency, assume responsibility for
developing 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
[[Page 43362]]
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.
1501.7(i)), 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 and
limit its comments to those matters for which it has jurisdiction by
law or special expertise with respect to any environmental issue
consistent with Sec. 1503.2 of this chapter.
(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 Scoping.
(a) Generally. Agencies shall use an early and open process to
determine the scope of issues for analysis in an environmental impact
statement, including identifying the significant issues and eliminating
from further study non-significant 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.
(b) Invite cooperating and participating agencies. As part of the
scoping process, 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(f)(1)
of this chapter.
(c) Scoping outreach. 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. Such a scoping meeting
will often be appropriate when the impacts of a particular action are
confined to specific sites.
(d) 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, except as provided in Sec.
1507.3(f)(3) of this chapter. An agency also may publish notice in
accordance with Sec. 1506.6 of this chapter. 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 impacts;
(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 identification of potential alternatives,
information, and analyses relevant to the proposed action (see Sec.
1502.17 of this chapter); and
(8) Contact information for a person within the agency who can
answer questions about the proposed action and the environmental impact
statement.
(e) Determination of scope. As part of the scoping process, the
lead agency shall determine the scope and the significant issues to be
analyzed in depth in the environmental impact statement. To determine
the scope of environmental impact statements, agencies shall consider:
(1) Actions (other than unconnected single actions) that may be
connected actions, which means that they are closely related and
therefore should be discussed in the same impact statement. Actions are
connected if they:
(i) Automatically trigger other actions that may require
environmental impact statements;
(ii) Cannot or will not proceed unless other actions are taken
previously or simultaneously; or
(iii) Are interdependent parts of a larger action and depend on the
larger action for their justification.
(2) Alternatives, which include the no action alternative; other
reasonable courses of action; and mitigation measures (not in the
proposed action).
(3) Impacts.
(f) 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 significant or have been covered by prior environmental review(s)
(Sec. 1506.3 of this chapter), narrowing the discussion of these
issues in the statement to a brief presentation of why they will not
have a significant effect on the human environment 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 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 chapter.
(5) Indicate the relationship between the timing of the preparation
of environmental analyses and the agencies' tentative planning and
decision-making schedule.
(g) Revisions. An agency shall revise the determinations made under
paragraphs (b), (c), (e), and (f) of this section if substantial
changes are made later in the proposed action, or if significant new
circumstances or information arise which bear on the proposal or its
impacts.
Sec. 1501.10 Time limits.
(a) To ensure that agencies conduct NEPA reviews as efficiently and
expeditiously as practicable, Federal agencies should set time limits
appropriate to individual actions or types of actions (consistent with
the time intervals required by Sec. 1506.11 of this chapter).
(b) To ensure timely decision making, agencies shall complete:
(1) Environmental assessments within 1 year unless a senior agency
official of the lead agency approves a longer
[[Page 43363]]
period in writing and establishes a new time limit. One year is
measured from the date of agency decision to prepare an environmental
assessment to the publication of an environmental assessment or a
finding of no significant impact.
(2) Environmental impact statements within 2 years unless a senior
agency official of the lead agency approves a longer period in writing
and establishes a new time limit. Two years is measured from the date
of the issuance of the notice of intent to the date a record of
decision is signed.
(c) The senior agency official may consider the following factors
in determining time limits:
(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) Other time limits imposed on the agency by law, regulations, or
Executive order.
(d) The senior agency official may set overall time limits or
limits for each constituent part of the NEPA process, which may
include:
(1) Decision on whether to prepare an environmental impact
statement (if not already decided).
(2) Determination of the scope of the environmental impact
statement.
(3) Preparation of the draft environmental impact statement.
(4) Review of any comments on the draft environmental impact
statement from the public and agencies.
(5) Preparation of the final environmental impact statement.
(6) Review of any comments on the final environmental impact
statement.
(7) Decision on the action based in part on the environmental
impact statement.
(e) The 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.
(f) State, Tribal, or local agencies or members of the public may
request a Federal agency to set time limits.
Sec. 1501.11 Tiering.
(a) Agencies 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 or not
yet ripe at each level of environmental review. Tiering may also be
appropriate for different stages of actions.
(b) When an agency has prepared an 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
entire program or policy (such as a project- or site-specific action),
the tiered document needs only to 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. The tiered document shall state where the earlier document is
available.
(c) Tiering is appropriate when the sequence from an environmental
impact statement or environmental assessment is:
(1) 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.
(2) 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
lead agency to focus on the issues that are ripe for decision and
exclude from consideration issues already decided or not yet ripe.
Sec. 1501.12 Incorporation by reference.
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 and briefly describe its
content. Agencies may not incorporate material by reference unless it
is reasonably available for inspection by potentially interested
persons within the time allowed for comment. Agencies shall not
incorporate by reference material based on proprietary data that is not
available for review and comment.
0
4. Revise part 1502 to read as follows:
PART 1502--ENVIRONMENTAL IMPACT STATEMENT
Sec.
1502.1 Purpose of environmental impact statement.
1502.2 Implementation.
1502.3 Statutory requirements for statements.
1502.4 Major Federal actions requiring the preparation of
environmental impact statements.
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 submitted alternatives, information, and
analyses.
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; 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; and
E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
Sec. 1502.1 Purpose of environmental impact statement.
The primary purpose of an environmental impact statement prepared
pursuant to section 102(2)(C) of NEPA is to ensure agencies consider
the environmental impacts of their actions in decision making. It shall
provide full and fair discussion of significant environmental impacts
and shall inform decision makers and the public of reasonable
alternatives that would avoid or minimize adverse impacts or enhance
the quality of the human environment. Agencies shall focus on
significant environmental issues and alternatives and shall reduce
paperwork and the accumulation of extraneous background data.
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 a document
that informs Federal agency decision making and the public.
[[Page 43364]]
Sec. 1502.2 Implementation.
(a) Environmental impact statements shall not be encyclopedic.
(b) Environmental impact statements shall discuss impacts in
proportion to their significance. There shall be only brief discussion
of other than significant issues. As in a 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 analytic, 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 project size.
(d) Environmental impact statements shall state how alternatives
considered in it and decisions based on it will or will not achieve the
requirements of sections 101 and 102(1) of NEPA as interpreted in the
regulations in this 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 selection of
alternatives before making a final decision (see also Sec. 1506.1 of
this chapter).
(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 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 Major Federal actions requiring the preparation of
environmental impact statements.
(a) Agencies shall define the proposal that is the subject of an
environmental impact statement based on the statutory authorities for
the proposed action. Agencies shall use the criteria for scope (Sec.
1501.9(e) of this chapter) to determine which proposal(s) shall be the
subject of a particular statement. Agencies shall evaluate in a single
environmental impact statement proposals or parts of proposals that are
related to each other closely enough to be, in effect, a single course
of action.
(b) Environmental impact statements may be prepared for
programmatic Federal actions, such as the adoption of new agency
programs. When agencies prepare such statements, they should be
relevant to the program decision and timed to coincide with meaningful
points in agency planning and decision making.
(1) When preparing statements on programmatic actions (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) Generically, including actions that have relevant
similarities, such as common timing, impacts, alternatives, methods of
implementation, 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. Statements on such programs should be
available before the program has reached a stage of investment or
commitment to implementation likely to determine subsequent development
or restrict later alternatives.
(2) Agencies shall as appropriate employ scoping (Sec. 1501.9 of
this chapter), tiering (Sec. 1501.11 of this chapter), and other
methods listed in Sec. Sec. 1500.4 and 1500.5 of this chapter to
relate programmatic and narrow actions and to avoid duplication and
delay. Agencies may tier their environmental analyses to defer detailed
analysis of environmental impacts of specific program elements until
such program elements are ripe for final agency action.
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 chapter 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 (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 application. Federal agencies should
work 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 statements.
(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. 1501.9 of this chapter).
Sec. 1502.7 Page limits.
The text of final environmental impact statements (paragraphs
(a)(4) through (6) of Sec. 1502.10) shall be 150 pages or fewer and,
for proposals of unusual scope or complexity, shall be 300 pages or
fewer unless a senior agency official of the lead agency approves in
writing a statement to exceed 300 pages and establishes a new page
limit.
Sec. 1502.8 Writing.
Agencies shall write environmental impact statements in plain
language and may use appropriate graphics 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 chapter, agencies shall prepare environmental
impact statements in two stages and, where necessary,
[[Page 43365]]
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. 1501.9 of this chapter). The
lead agency shall work with the cooperating agencies and shall obtain
comments as required in part 1503 of this chapter. To the fullest
extent practicable, the draft statement must meet the requirements
established for final statements in section 102(2)(C) of NEPA as
interpreted in the regulations in this subchapter. If 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 impacts of the alternatives
including the proposed action.
(c) Final environmental impact statements. Final environmental
impact statements shall address comments as required in part 1503 of
this chapter. 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 significant new circumstances or information
relevant to environmental concerns and bearing on the proposed action
or its impacts.
(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. 1501.9 of this chapter)) 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 chapter).
(4) May find that changes to the proposed action or new
circumstances or information relevant to environmental concerns are not
significant and therefore do not require a supplement. The agency
should document the finding consistent with its agency NEPA procedures
(Sec. 1507.3 of this chapter), 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.
(2) Summary.
(3) Table of contents.
(4) Purpose of and need for action.
(5) Alternatives including the proposed action (sections
102(2)(C)(iii) and 102(2)(E) of NEPA).
(6) Affected environment and environmental consequences (especially
sections 102(2)(C)(i), (ii), (iv), and (v) of NEPA).
(7) Submitted alternatives, information, and analyses.
(8) List of preparers.
(9) Appendices (if any).
(b) If an agency uses a different format, it shall include
paragraphs (a)(1) through (8) of this section, as further described in
Sec. Sec. 1502.11 through 1502.19, in any appropriate format.
Sec. 1502.11 Cover.
The cover shall not exceed one page and include:
(a) A list of the responsible agencies, including the lead agency
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 EPA under Sec. 1506.11 of this chapter).
(g) For the final environmental impact statement, the estimated
total cost to prepare both the draft and final environmental impact
statement, including the costs of agency full-time equivalent (FTE)
personnel hours, contractor costs, and other direct costs. If
practicable and noted where not practicable, agencies also should
include costs incurred by cooperating and participating agencies,
applicants, and contractors.
Sec. 1502.12 Summary.
Each environmental impact statement shall contain a summary that
adequately and accurately summarizes the statement. The summary shall
stress the major conclusions, areas of disputed issues raised by
agencies and the public, and the issues to be resolved (including the
choice among alternatives). The summary normally will not exceed 15
pages.
Sec. 1502.13 Purpose and need.
The statement shall briefly specify the underlying purpose and need
for the proposed action. When an agency's statutory duty is to review
an application for authorization, the agency shall base the purpose and
need on the goals of the applicant and the agency's authority.
Sec. 1502.14 Alternatives including the proposed action.
The alternatives section should present the environmental impacts
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 this section, agencies shall:
(a) Evaluate reasonable alternatives to the proposed action, and,
for alternatives that the agency eliminated from detailed study,
briefly discuss the reasons for their elimination.
(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) Limit their consideration to a reasonable number of
alternatives.
Sec. 1502.15 Affected environment.
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). The
environmental impact statement may
[[Page 43366]]
combine the description with evaluation of the environmental
consequences (Sec. 1502.16), and it shall be no longer than is
necessary to understand the effects of the alternatives. Data and
analyses in a statement shall be commensurate with the importance of
the impact, 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 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 environmental impacts of the proposed action and reasonable
alternatives to the proposed action and the significance of those
impacts. The comparison of the proposed action and reasonable
alternatives shall be based on this discussion of the impacts.
(2) Any adverse environmental effects that cannot be avoided should
the proposal be implemented.
(3) The relationship between short-term uses of man's environment
and the maintenance and enhancement of long-term productivity.
(4) Any irreversible or irretrievable commitments of resources that
would be involved in the proposal should it be implemented.
(5) Possible conflicts between the proposed action and the
objectives of Federal, regional, State, Tribal, and local land use
plans, policies and controls for the area concerned. (Sec. 1506.2(d)
of this chapter)
(6) Energy requirements and conservation potential of various
alternatives and mitigation measures.
(7) Natural or depletable resource requirements and conservation
potential of various alternatives and mitigation measures.
(8) 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.
(9) Means to mitigate adverse environmental impacts (if not fully
covered under Sec. 1502.14(e)).
(10) Where applicable, economic and technical considerations,
including the economic benefits of the proposed action.
(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 and give appropriate consideration to these
effects on the human environment.
Sec. 1502.17 Summary of submitted alternatives, information, and
analyses.
(a) The draft environmental impact statement shall include a
summary that identifies all alternatives, information, and analyses
submitted by State, Tribal, and local governments and other public
commenters during the scoping process for consideration by the lead and
cooperating agencies in developing the environmental impact statement.
(1) The agency shall append to the draft environmental impact
statement or otherwise publish all comments (or summaries thereof where
the response has been exceptionally voluminous) received during the
scoping process that identified alternatives, information, and analyses
for the agency's consideration.
(2) Consistent with Sec. 1503.1(a)(3) of this chapter, the lead
agency shall invite comment on the summary identifying all submitted
alternatives, information, and analyses in the draft environmental
impact statement.
(b) The final environmental impact statement shall include a
summary that identifies all alternatives, information, and analyses
submitted by State, Tribal, and local governments and other public
commenters for consideration by the lead and cooperating agencies in
developing the final environmental impact statement.
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 significant 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:
(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 chapter)).
(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 alternatives,
information, and analyses 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 chapter. The agency shall transmit the entire
statement electronically (or in paper copy, if so 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 but available information relevant to
reasonably foreseeable significant adverse impacts 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.
[[Page 43367]]
(c) If the information relevant to reasonably foreseeable
significant adverse impacts 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
impacts on the human environment;
(3) A summary of existing credible scientific evidence that is
relevant to evaluating the reasonably foreseeable significant adverse
impacts on the human environment; and
(4) The agency's evaluation of such impacts based upon theoretical
approaches or research methods generally accepted in the scientific
community.
(d) For the purposes of this section, ``reasonably foreseeable''
includes impacts that have catastrophic consequences, even if their
probability of occurrence is low, provided that the analysis of the
impacts 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 the 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.
Agencies shall ensure the professional integrity, including
scientific integrity, of the discussions and analyses in environmental
documents. Agencies shall make use of reliable existing data and
resources. Agencies may make use of any reliable data sources, such as
remotely gathered information or statistical models. They 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.
Agencies are not required to undertake new scientific and technical
research to inform their analyses. Nothing in this section is intended
to prohibit agencies from compliance with the requirements of other
statutes pertaining to scientific and technical research.
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.
0
5. Revise part 1503 to read as follows:
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; 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; E.O.
13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
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.
(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.
(3) Invite comment specifically on the submitted alternatives,
information, and analyses and the summary thereof (Sec. 1502.17 of
this chapter).
(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. 1506.11 of this chapter.
(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 statements within
their jurisdiction, expertise, or authority within the time period
specified for comment in Sec. 1506.11 of this chapter. 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, may address either the adequacy of the statement
or the merits of the alternatives discussed or both, and shall
[[Page 43368]]
provide as much detail as necessary to meaningfully participate and
fully inform the agency of the commenter's position. Comments should
explain why the issues raised are important to the consideration of
potential environmental impacts and alternatives to the proposed
action, as well as economic and employment impacts, and other impacts
affecting the quality of the human environment. Comments should
reference the corresponding section or page number of the draft
environmental impact statement, propose specific changes to those parts
of the statement, where possible, and include or describe the data
sources and methodologies supporting the proposed changes.
(b) Comments on the submitted alternatives, information, and
analyses and summary thereof (Sec. 1502.17 of this chapter) should be
as specific as possible. Comments and objections of any kind shall be
raised within the comment period on the draft environmental impact
statement provided by the agency, consistent with Sec. 1506.11 of this
chapter. If the agency requests comments on the final environmental
impact statement before the final decision, consistent with Sec.
1503.1(b), comments and objections of any kind shall be raised within
the comment period provided by the agency. Comments and objections of
any kind not provided within the comment period(s) shall be considered
unexhausted and forfeited, consistent with Sec. 1500.3(b) of this
chapter.
(c) When a participating agency criticizes a lead agency's
predictive methodology, the participating agency should describe the
alternative methodology that it prefers and why.
(d) A cooperating agency shall specify in its comments whether it
needs additional information to fulfill other applicable environmental
reviews 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
site-specific effects associated with the granting or approving by that
cooperating agency of necessary Federal permits, licenses, or
authorizations.
(e) When a cooperating agency with jurisdiction by law specifies
mitigation measures it considers necessary to allow the agency to grant
or approve applicable permit, license, or related requirements or
concurrences, the cooperating agency shall cite to its applicable
statutory authority.
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 may 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.
(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, only the comments, the responses, and the
changes and not the final statement need be published (Sec. 1502.20 of
this chapter). The agency shall file the entire document with a new
cover sheet with the Environmental Protection Agency as the final
statement (Sec. 1506.10 of this chapter).
0
6. Revise part 1504 to read as follows:
PART 1504--PRE-DECISIONAL REFERRALS TO THE COUNCIL OF PROPOSED
FEDERAL ACTIONS DETERMINED TO BE ENVIRONMENTALLY UNSATISFACTORY
Sec.
1504.1 Purpose.
1504.2 Criteria for referral.
1504.3 Procedure for referrals and response.
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; 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; E.O.
13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
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.
(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 (hereafter ``environmental referrals'').
(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 reviews must be made available to the
President, the Council, and the public.
Sec. 1504.2 Criteria for referral.
Environmental referrals should be made 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 impacts, considering:
(a) Possible violation of national environmental standards or
policies;
(b) Severity;
(c) Geographical scope;
(d) Duration;
(e) Importance as precedents;
(f) Availability of environmentally preferable alternatives; and
(g) Economic and technical considerations, including the economic
costs of delaying or impeding the decision making of the agencies
involved in the action.
Sec. 1504.3 Procedure for referrals and response.
(a) 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
[[Page 43369]]
(4) Send copies of the referring agency's views to the Council.
(b) 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.
(c) 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.
(d) 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.
(e) Applicants may provide views in writing to the Council no later
than the response.
(f) 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.
(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.
(g) The Council shall take no longer than 60 days to complete the
actions specified in paragraph (f)(2), (3), or (5) of this section.
(h) 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.
0
7. Revise part 1505 to read as follows:
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; 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; and
E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
Sec. 1505.1 [Reserved]
Sec. 1505.2 Record of decision in cases requiring environmental
impact statements.
(a) At the time of its decision (Sec. 1506.11 of this chapter) 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:
(1) State the decision.
(2) Identify alternatives considered by the agency in reaching its
decision, specifying the alternative or alternatives considered
environmentally preferable. An agency may discuss preferences among
alternatives based on relevant factors including economic and technical
considerations and agency statutory missions. An 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.
(3) State whether the agency has adopted all practicable means to
avoid or minimize environmental harm from the alternative selected, and
if not, why the agency did not. The agency shall adopt and summarize,
where applicable, a monitoring and enforcement program for any
enforceable mitigation requirements or commitments.
(b) Informed by the summary of the submitted alternatives,
information, and analyses in the final environmental impact statement
(Sec. 1502.17(b) of this chapter), together with any other material in
the record that he or she determines to be relevant, the decision maker
shall certify in the record of decision that the agency has considered
all of the alternatives, information, analyses, and objections
submitted by State, Tribal, and local governments and public commenters
for consideration by the lead and cooperating agencies in developing
the environmental impact statement. Agency environmental impact
statements certified in accordance with this section are entitled to a
presumption that the agency has considered the submitted alternatives,
information, and analyses, including the summary thereof, in the final
environmental impact statement (Sec. 1502.17(b)).
Sec. 1505.3 Implementing the decision.
Agencies may provide for monitoring to assure that their decisions
are carried out and should do so in important cases. Mitigation (Sec.
1505.2(a)(3)) 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:
(a) Include appropriate conditions in grants, permits, or other
approvals.
[[Page 43370]]
(b) Condition funding of actions on mitigation.
(c) Upon request, inform cooperating or participating agencies on
progress in carrying out mitigation measures that they have proposed
and were adopted by the agency making the decision.
(d) Upon request, publish the results of relevant monitoring.
0
8. Revise part 1506 to read as follows:
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 Public involvement.
1506.7 Further guidance.
1506.8 Proposals for legislation.
1506.9 Proposals for regulations.
1506.10 Filing requirements.
1506.11 Timing of agency action.
1506.12 Emergencies.
1506.13 Effective date.
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; 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; and
E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
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 chapter, or record of decision, as provided in
Sec. 1505.2 of this chapter, no action concerning the proposal may be
taken that would:
(1) Have an adverse environmental impact; or
(2) Limit the choice of reasonable alternatives.
(b) If any 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.
(c) While work on a required programmatic environmental review is
in progress and the action is not covered by an existing programmatic
review, agencies shall not 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)(D) 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 Federal draft or final
environmental impact statement, environmental assessment, or portion
thereof, or categorical exclusion determination provided that the
statement, assessment, portion thereof, or determination meets the
standards for an adequate statement, assessment, or determination under
the regulations in this subchapter.
(b) Environmental impact statements. (1) If the actions covered by
the original environmental impact statement and the proposed action are
substantially the same, the adopting agency shall republish it as a
final statement consistent with Sec. 1506.10. If the actions are not
substantially the same, the adopting agency shall treat the statement
as a draft and republish it, consistent with Sec. 1506.10.
(2) Notwithstanding paragraph (b)(1) of this section, a cooperating
agency may adopt in its record of decision without republishing the
environmental impact statement of a lead agency when, after an
independent review of the statement, the cooperating agency concludes
that its comments and suggestions have been satisfied.
(c) Environmental assessments. If the actions covered by the
original environmental assessment and the proposed action are
substantially the same, the adopting agency may adopt the environmental
assessment in its finding of no significant impact and provide notice
consistent with Sec. 1501.6 of this chapter.
(d) Categorical exclusions. An agency may adopt another agency's
determination that a categorical exclusion applies to a proposed action
if the action covered by the original categorical exclusion
determination and the adopting agency's proposed action are
substantially the same. The agency shall document the adoption.
(e) Identification of certain circumstances. The adopting agency
[[Page 43371]]
shall specify if one of the following circumstances is present:
(1) The agency is adopting an assessment or statement that is not
final within the agency that prepared it.
(2) The action assessed in the assessment or statement is the
subject of a referral under part 1504 of this chapter.
(3) The assessment or 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) Responsibility. The agency is responsible for the accuracy,
scope (Sec. 1501.9(e) of this chapter), and content of environmental
documents prepared by the agency or by an applicant or contractor under
the supervision of the agency.
(b) Information. 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 direct an applicant or
authorize a contractor to prepare an environmental document under the
supervision of the agency.
(1) The agency should assist the applicant by outlining the types
of information required or, for the preparation of environmental
documents, shall provide guidance to the applicant or contractor and
participate in their preparation.
(2) The agency shall independently evaluate the information
submitted or the environmental document and shall be responsible for
its accuracy, scope, and contents.
(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 an applicant or
contractor, such as in the list of preparers for environmental impact
statements (Sec. 1502.18 of this chapter). It is the intent of this
paragraph (b)(3) that acceptable work not be redone, but that it be
verified by the agency.
(4) Contractors or applicants preparing environmental assessments
or environmental impact statements shall submit a disclosure statement
to the lead agency that specifies any 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 any agency from
requesting any person, including the applicant, to submit information
to it or to prohibit any person from submitting information to any
agency for use in preparing environmental documents.
Sec. 1506.6 Public involvement.
Agencies shall:
(a) Make diligent efforts to involve the public in preparing and
implementing their NEPA procedures (Sec. 1507.3 of this chapter).
(b) Provide public notice of NEPA-related hearings, public
meetings, and other opportunities for public involvement, and the
availability of environmental documents so as to inform those persons
and agencies who may be interested or affected by their proposed
actions. When selecting appropriate methods for providing public
notice, agencies shall consider the ability of affected persons and
agencies to access electronic media.
(1) In all cases, the agency shall notify those who have requested
notice on an individual action.
(2) In the case of an action with effects of national concern,
notice shall include publication in the Federal Register. An agency may
notify organizations that have requested regular notice.
(3) In the case of an action with effects primarily of local
concern, the notice may include:
(i) Notice to State, Tribal, and local agencies that may be
interested or affected by the proposed action.
(ii) Notice to interested or affected State, Tribal, and local
governments.
(iii) Following the affected State or Tribe's public notice
procedures for comparable actions.
(iv) Publication in local newspapers (in papers of general
circulation rather than legal papers).
(v) Notice through other local media.
(vi) Notice to potentially interested community organizations
including small business associations.
(vii) Publication in newsletters that may be expected to reach
potentially interested persons.
(viii) Direct mailing to owners and occupants of nearby or affected
property.
(ix) Posting of notice on and off site in the area where the action
is to be located.
(x) Notice through electronic media (e.g., a project or agency
website, email, or social media).
(c) Hold or sponsor public hearings, public meetings, or other
opportunities for public involvement whenever appropriate or in
accordance with statutory requirements applicable to the agency.
Agencies may conduct public hearings and public meetings by means of
electronic communication except where another format is required by
law. When selecting appropriate methods for public involvement,
agencies shall consider the ability of affected entities to access
electronic media.
(d) Solicit appropriate information from the public.
(e) Explain in its procedures where interested persons can get
information or status reports on environmental impact statements and
other elements of the NEPA process.
(f) 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).
Sec. 1506.7 Further guidance.
(a) The Council may provide further guidance concerning NEPA and
its procedures consistent with Executive Order 13807, Establishing
Discipline and Accountability in the Environmental Review and
Permitting Process for Infrastructure Projects (August 5, 2017),
Executive Order 13891, Promoting the Rule of Law Through Improved
Agency Guidance Documents (October 9, 2019), and any other applicable
Executive orders.
(b) To the extent that Council guidance issued prior to September
14, 2020 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
[[Page 43372]]
later in order 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 chapter 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 Proposals for regulations.
Where the proposed action is the promulgation of a rule or
regulation, procedures and documentation pursuant to other statutory or
Executive order requirements may satisfy one or more requirements of
this subchapter. When a procedure or document satisfies one or more
requirements of this subchapter, the agency may substitute it for the
corresponding requirements in this subchapter and need not carry out
duplicative procedures or documentation. Agencies shall identify which
corresponding requirements in this subchapter are satisfied and consult
with the Council to confirm such determinations.
Sec. 1506.10 Filing requirements.
(a) Agencies shall file environmental impact statements together
with comments and responses with the Environmental Protection Agency
(EPA), Office of Federal Activities, consistent with EPA's procedures.
(b) Agencies shall file statements with the EPA no earlier than
they are also transmitted to participating agencies and made available
to the public. EPA may issue guidelines to agencies to implement its
responsibilities under this section and Sec. 1506.11.
Sec. 1506.11 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 may not make or issue a record of
decision under Sec. 1505.2 of this chapter 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 proposed action in the following
circumstances:
(1) Some agencies have a formally established appeal process after
publication of the final environmental impact statement that allows
other agencies or the public to take appeals on 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 appeal 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 appeal and provide notification consistent with
Sec. 1506.10; 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 decision-making
period and the 90-day period 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(f)(2) of this chapter) 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,
EPA may not extend it for more than 30 days. When the Environmental
Protection Agency reduces or extends any period of time it shall notify
the Council.
Sec. 1506.12 Emergencies.
Where emergency circumstances make it necessary to take an action
with significant environmental impact 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. Other actions remain subject to
NEPA review.
Sec. 1506.13 Effective date.
The regulations in this subchapter apply to any NEPA process begun
after September 14, 2020. An agency may apply the regulations in this
subchapter to ongoing activities and environmental
[[Page 43373]]
documents begun before September 14, 2020.
0
9. Revise part 1507 to read as follows:
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; 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; and
E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
Sec. 1507.1 Compliance.
All agencies of the Federal Government shall comply with the
regulations in this subchapter.
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) Fulfill the requirements of section 102(2)(A) of NEPA to
utilize a systematic, interdisciplinary approach that 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. Agencies shall designate a senior agency
official to be responsible for overall review of agency NEPA
compliance, including resolving implementation issues.
(b) 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.
(c) 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.
(d) 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)(E) of NEPA.
(e) Comply with the requirements of section 102(2)(H) of NEPA that
the agency initiate and utilize ecological information in the planning
and development of resource-oriented projects.
(f) Fulfill the requirements of sections 102(2)(F), 102(2)(G), and
102(2)(I), of NEPA, 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,
and Executive Order 13807, Establishing Discipline and Accountability
in the Environmental Review and Permitting for Infrastructure Projects.
Sec. 1507.3 Agency NEPA procedures.
(a) Where existing agency NEPA procedures are inconsistent with the
regulations in this subchapter, the regulations in this subchapter
shall apply, consistent with Sec. 1506.13 of this chapter, unless
there is a clear and fundamental conflict with the requirements of
another statute. The Council has determined that the categorical
exclusions contained in agency NEPA procedures as of September 14, 2020
are consistent with this subchapter.
(b) No more than 12 months after September 14, 2020, or 9 months
after the establishment of an agency, whichever comes later, each
agency shall develop or revise, as necessary, proposed procedures to
implement the regulations in this subchapter, including to eliminate
any inconsistencies with the regulations in this subchapter. When the
agency is a department, it may be efficient for major subunits (with
the consent of the department) to adopt their own procedures. Except
for agency efficiency (see paragraph (c) of this section) or as
otherwise required by law, agency NEPA procedures shall not impose
additional procedures or requirements beyond those set forth in the
regulations in this subchapter.
(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 adopting their final procedures. The Council
shall complete its review within 30 days of the receipt of the proposed
final procedures. Once in effect, the agency shall publish its NEPA
procedures and ensure that they are readily available to the public.
(c) Agencies shall adopt, as necessary, agency NEPA procedures to
improve agency efficiency and ensure that agencies make decisions in
accordance with the Act's procedural requirements. Such procedures
shall include:
(1) Designating the major decision points for the agency's
principal programs likely to have a significant effect on the human
environment and assuring that the NEPA process begins at the earliest
reasonable time, consistent with Sec. 1501.2 of this chapter, and
aligns with the corresponding decision points.
(2) Requiring that relevant environmental documents, comments, and
responses be part of the record in formal rulemaking or adjudicatory
proceedings.
(3) Requiring that relevant environmental documents, comments, and
responses accompany the proposal through existing agency review
processes so that decision makers use the statement in making
decisions.
(4) Requiring 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) Requiring the combination of environmental documents with other
agency documents. Agencies may designate and rely on one or more
procedures or documents under other statutes or Executive orders as
satisfying some or all of the requirements in this subchapter, and
substitute such procedures and documentation to reduce duplication.
When an agency substitutes one or more procedures or documents for the
requirements in this subchapter, the agency shall identify the
respective requirements that are satisfied.
(d) Agency procedures should identify those activities or decisions
that are not subject to NEPA, including:
(1) Activities or decisions expressly exempt from NEPA under
another statute;
(2) Activities or decisions where compliance with NEPA would
clearly
[[Page 43374]]
and fundamentally conflict with the requirements of another statute;
(3) Activities or decisions where compliance with NEPA would be
inconsistent with Congressional intent expressed in another statute;
(4) Activities or decisions that are non-major Federal actions;
(5) Activities or decisions that are non-discretionary actions, in
whole or in part, for which the agency lacks authority to consider
environmental effects as part of its decision-making process; and
(6) Actions where the agency has determined that another statute's
requirements serve the function of agency compliance with the Act.
(e) Agency procedures shall comply with the regulations in this
subchapter except where compliance would be inconsistent with statutory
requirements and shall include:
(1) Those procedures required by Sec. Sec. 1501.2(b)(4)
(assistance to applicants) and 1506.6(e) of this chapter (status
information).
(2) Specific criteria for and identification of those typical
classes of action:
(i) Which normally do require environmental impact statements.
(ii) Which normally do not require either an environmental impact
statement or an environmental assessment and do not have a significant
effect on the human environment (categorical exclusions (Sec. 1501.4
of this chapter)). Any procedures under this section shall provide for
extraordinary circumstances in which a normally excluded action may
have a significant environmental effect. Agency NEPA procedures shall
identify when documentation of a categorical exclusion determination is
required.
(iii) Which normally require environmental assessments but not
necessarily environmental impact statements.
(3) Procedures for introducing a supplement to an environmental
assessment or environmental impact statement into its formal
administrative record, if such a record exists.
(f) Agency procedures may:
(1) 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.
(2) Provide for periods of time other than those presented in Sec.
1506.11 of this chapter when necessary to comply with other specific
statutory requirements, including requirements of lead or cooperating
agencies.
(3) Provide that, where there is a lengthy period between the
agency's decision to prepare an environmental impact statement and the
time of actual preparation, the agency may publish the notice of intent
required by Sec. 1501.9(d) of this chapter at a reasonable time in
advance of preparation of the draft statement. Agency procedures shall
provide for publication of supplemental notices to inform the public of
a pause in its preparation of an environmental impact statement and for
any agency decision to withdraw its notice of intent to prepare an
environmental impact statement.
(4) Adopt procedures to combine its environmental assessment
process with its scoping process.
(5) Establish a process that allows the agency to use a categorical
exclusion listed in another agency's NEPA procedures after consulting
with that agency to ensure the use of the categorical exclusion is
appropriate. The process should ensure documentation of the
consultation and identify to the public those categorical exclusions
the agency may use for its proposed actions. Then, the agency may apply
the categorical exclusion to its proposed actions.
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 means to make available environmental
documents, relevant notices, and other relevant information for use by
agencies, applicants, and interested persons. Such means of publication
may include:
(1) Agency planning and environmental documents that guide agency
management and provide for public involvement in agency planning
processes;
(2) A directory of pending and final 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, including use of
shared databases or application programming interface, in their
implementation of NEPA and related authorities.
0
10. Revise part 1508 to read as follows:
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; 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; and
E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
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 the
agency has determined, in its agency NEPA procedures (Sec. 1507.3 of
this chapter), normally do not have a significant effect on the human
environment.
(e) Cooperating agency means any Federal agency (and a State,
Tribal, or local agency with agreement of the lead agency) other than a
lead agency that has jurisdiction by law or special expertise with
respect to any environmental impact involved in a proposal (or a
reasonable alternative) for legislation or other major Federal action
that may significantly affect the quality of the human environment.
(f) Council means the Council on Environmental Quality established
by title II of the Act.
[[Page 43375]]
(g) Effects or impacts means changes to the human environment from
the proposed action or alternatives that are reasonably foreseeable and
have a reasonably close causal relationship to the proposed action or
alternatives, including those effects that occur at the same time and
place as the proposed action or alternatives and may include effects
that are later in time or farther removed in distance from the proposed
action or alternatives.
(1) Effects include ecological (such as the effects on natural
resources and on the components, structures, and functioning of
affected ecosystems), aesthetic, historic, cultural, economic (such as
the effects on employment), social, or health effects. Effects may also
include those resulting from actions that may have both beneficial and
detrimental effects, even if on balance the agency believes that the
effect will be beneficial.
(2) A ``but for'' causal relationship is insufficient to make an
agency responsible for a particular effect under NEPA. Effects should
generally not be considered if they are remote in time, geographically
remote, or the product of a lengthy causal chain. Effects do not
include those effects that the agency has no ability to prevent due to
its limited statutory authority or would occur regardless of the
proposed action.
(3) An agency's analysis of effects shall be consistent with this
paragraph (g). Cumulative impact, defined in 40 CFR 1508.7 (1978), is
repealed.
(h) Environmental assessment means a concise public document
prepared by a Federal agency to aid an agency's compliance with the Act
and support its determination of whether to prepare an environmental
impact statement or a finding of no significant impact, as provided in
Sec. 1501.6 of this chapter.
(i) Environmental document means an environmental assessment,
environmental impact statement, finding of no significant impact, or
notice of intent.
(j) Environmental impact statement means a detailed written
statement as required by section 102(2)(C) of NEPA.
(k) 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.
(l) Finding of no significant impact means a document by a Federal
agency briefly presenting the reasons why an action, not otherwise
categorically excluded (Sec. 1501.4 of this chapter), will not have a
significant effect on the human environment and for which an
environmental impact statement therefore will not be prepared.
(m) Human environment means comprehensively the natural and
physical environment and the relationship of present and future
generations of Americans with that environment. (See also the
definition of ``effects'' in paragraph (g) of this section.)
(n) Jurisdiction by law means agency authority to approve, veto, or
finance all or part of the proposal.
(o) Lead agency means the agency or agencies, in the case of joint
lead agencies, preparing or having taken primary responsibility for
preparing the environmental impact statement.
(p) 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.
(q) Major Federal action or action means an activity or decision
subject to Federal control and responsibility subject to the following:
(1) Major Federal action does not include the following activities
or decisions:
(i) Extraterritorial activities or decisions, which means agency
activities or decisions with effects located entirely outside of the
jurisdiction of the United States;
(ii) Activities or decisions that are non-discretionary and made in
accordance with the agency's statutory authority;
(iii) Activities or decisions that do not result in final agency
action under the Administrative Procedure Act or other statute that
also includes a finality requirement;
(iv) Judicial or administrative civil or criminal enforcement
actions;
(v) Funding assistance solely in the form of general revenue
sharing funds with no Federal agency control over the subsequent use of
such funds;
(vi) Non-Federal projects with minimal Federal funding or minimal
Federal involvement where the agency does not exercise sufficient
control and responsibility over the outcome of the project; and
(vii) Loans, loan guarantees, or other forms of financial
assistance where the Federal agency does not exercise sufficient
control and responsibility over the effects of such assistance (for
example, action does not include farm ownership and operating loan
guarantees by the Farm Service Agency pursuant to 7 U.S.C. 1925 and
1941 through 1949 and business loan guarantees by the Small Business
Administration pursuant to 15 U.S.C. 636(a), 636(m), and 695 through
697g).
(2) Major Federal actions may include new and continuing
activities, including projects and programs entirely or partly
financed, assisted, conducted, regulated, or approved by Federal
agencies; new or revised agency rules, regulations, plans, policies, or
procedures; and legislative proposals (Sec. 1506.8 of this chapter).
(3) Major Federal actions tend to fall within one of the following
categories:
(i) 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 which will result in or substantially alter agency
programs.
(ii) 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.
(iii) Adoption of programs, such as a group of concerted actions to
implement a specific policy or plan; systematic and connected agency
decisions allocating agency resources to implement a specific statutory
program or executive directive.
(iv) Approval of specific projects, such as construction or
management activities located in a defined geographic area. Projects
include actions approved by permit or other regulatory decision as well
as Federal and federally assisted activities.
(r) Matter includes for purposes of part 1504 of this chapter:
(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.
(s) 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 nexus
to those effects. While NEPA requires consideration of mitigation, it
does not mandate the form or adoption of any mitigation. Mitigation
includes:
[[Page 43376]]
(1) Avoiding the impact altogether by not taking a certain action
or parts of an action.
(2) Minimizing impacts by limiting the degree or magnitude of the
action and its implementation.
(3) Rectifying the impact by repairing, rehabilitating, or
restoring the affected environment.
(4) Reducing or eliminating the impact over time by preservation
and maintenance operations during the life of the action.
(5) Compensating for the impact by replacing or providing
substitute resources or environments.
(t) NEPA process means all measures necessary for compliance with
the requirements of section 2 and title I of NEPA.
(u) Notice of intent means a public notice that an agency will
prepare and consider an environmental impact statement.
(v) Page means 500 words and does not include explanatory maps,
diagrams, graphs, tables, and other means of graphically displaying
quantitative or geospatial information.
(w) Participating agency means a Federal, State, Tribal, or local
agency participating in an environmental review or authorization of an
action.
(x) 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.
(y) 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 chapter.
(z) Reasonable alternatives means a reasonable range of
alternatives that are technically and economically feasible, meet the
purpose and need for the proposed action, and, where applicable, meet
the goals of the applicant.
(aa) Reasonably foreseeable means sufficiently likely to occur such
that a person of ordinary prudence would take it into account in
reaching a decision.
(bb) 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.
(cc) Scope consists of the range of actions, alternatives, and
impacts to be considered in an environmental impact statement. The
scope of an individual statement may depend on its relationships to
other statements (Sec. 1501.11 of this chapter).
(dd) 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.
(ee) Special expertise means statutory responsibility, agency
mission, or related program experience.
(ff) Tiering refers to the coverage of general matters in broader
environmental impact statements or environmental assessments (such as
national program or policy statements) with subsequent narrower
statements or environmental analyses (such as regional or basin-wide
program statements or ultimately site-specific statements)
incorporating by reference the general discussions and concentrating
solely on the issues specific to the statement subsequently prepared.
Sec. 1508.2 [Reserved]
PARTS 1515 THROUGH 1518 [DESIGNATED AS SUBCHAPTER B]
0
11. Designate parts 1515 through 1518 as subchapter B and add a heading
for newly designated subchapter B to read as follows:
Subchapter B--Administrative Procedures and Operations
[FR Doc. 2020-15179 Filed 7-15-20; 4:15 pm]
BILLING CODE 3225-F0-P
