National Environmental Policy Act Implementing Regulations Revisions, 55757-55769 [2021-21867]
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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Proposed Rules
in this document. The preamble to the
temporary regulations contains the
agency’s rationale and provides a
regulatory impact analysis.
Drafting Information
The principal author of this notice of
proposed rulemaking is Kari DiCecco,
Office of Associate Chief Counsel
(Employee Benefits, Exempt
Organizations and Employment Taxes).
The proposed regulations, as well as the
temporary regulations, have been
developed in coordination with
personnel from the OPM, DOL, and
HHS.
§ 54.9817–2 Independent dispute
resolution process for air ambulance
services.
[The text of proposed § 54.9817–2 is
the same as the text of § 54.9817–2T
published elsewhere in this issue of the
Federal Register].
Douglas W. O’Donnell,
Deputy Commissioner for Services and
Enforcement.
[FR Doc. 2021–21419 Filed 9–30–21; 4:15 pm]
BILLING CODE 4830–01–P
COUNCIL ON ENVIRONMENTAL
QUALITY
List of Subjects in 26 CFR Part 54
Excise taxes, Pensions, Reporting and
recordkeeping requirements.
National Environmental Policy Act
Implementing Regulations Revisions
Accordingly, 26 CFR part 54 is
proposed to be amended as follows:
Council on Environmental
Quality.
ACTION: Notice of proposed rulemaking.
AGENCY:
PART 54—PENSION EXCISE TAXES
Paragraph. 1. The general authority
citation for part 54 continues to read as
follows:
■
Authority: 26 U.S.C. 7805, unless
otherwise noted.
*
*
*
*
*
■ Par. 2. Section 54.9815–2719 is
amended by revising paragraphs (a), (c),
(d), and (g) to read as follows:
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§ 54.9815–2719 Internal claims and
appeals and external review processes.
[The text of proposed § 54.9815–
2719(a), (c), (d), and (g) is the same as
the text of § 54.9815–2719T(a), (c), (d),
and (g) published elsewhere in this
issue of the Federal Register].
■ Par. 3. Section 54.9816–1 is added to
read as follows:
[The text of proposed § 54.9816–1 is
the same as the text of § 54.9816–1T
published elsewhere in this issue of the
Federal Register].
■ Par. 4. Section 54.9816–2(a) and (b) is
added to read as follows:
[The text of proposed § 54.9816–2(a)
and (b) is the same as the text of
§ 54.9816–2T(a) and (b) published
elsewhere in this issue of the Federal
Register].
■ Par. 5. Sections 54.9816–8 and
54.9817–2 are added to read as follows:
§ 54.9816–8 Independent dispute
resolution process.
[The text of proposed § 54.9816–8 is
the same as the text of § 54.9816–8T
published elsewhere in this issue of the
Federal Register].
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[CEQ–2021–0002]
RIN 0331–AA05
Proposed Amendments to the
Regulations
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40 CFR Parts 1502, 1507, and 1508
The Council on
Environmental Quality (CEQ) is
proposing to modify certain aspects of
its regulations for implementing the
procedural provisions of the National
Environmental Policy Act (NEPA) to
generally restore regulatory provisions
that were in effect for decades before
being modified in 2020. CEQ proposes
these changes in order to better align the
provisions with CEQ’s extensive
experience implementing NEPA, in
particular its perspective on how NEPA
can best inform agency decision making,
as well as longstanding Federal agency
experience and practice, NEPA’s
statutory text and purpose, including
making decisions informed by science,
and case law interpreting NEPA’s
requirements. The proposed rule would
restore provisions addressing the
purpose and need of a proposed action,
agency NEPA procedures for
implementing CEQ’s NEPA regulations,
and the definition of ‘‘effects.’’ CEQ
invites comments on the proposed
revisions.
SUMMARY:
DATES:
Comments: CEQ must receive
comments by November 22, 2021.
Public meeting: CEQ will conduct two
online public meetings for the proposed
rule on Tuesday, October 19, 2021, from
1 to 4 p.m. EDT, and Thursday, October
21, 2021 from 5 to 8 p.m. EDT. To
register for the meetings, please visit
CEQ’s website at www.nepa.gov.
ADDRESSES: You may submit comments,
identified by docket number CEQ–
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2021–0002, by any of the following
methods:
D Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
D Fax: 202–456–6546.
D Mail: Council on Environmental
Quality, 730 Jackson Place NW,
Washington, DC 20503.
Instructions: All submissions received
must include the agency name,
‘‘Council on Environmental Quality,’’
and docket number, CEQ–2021–0002,
for this rulemaking. All comments
received will be posted without change
to https://www.regulations.gov,
including any personal information
provided. Do not submit electronically
any information you consider to be
private, Confidential Business
Information (CBI), or other information,
the disclosure of which is restricted by
statute.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Amy B. Coyle, Deputy General Counsel,
202–395–5750, Amy.B.Coyle@
ceq.eop.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On January 1, 1970, President Nixon
signed into law the National
Environmental Policy Act of 1969
(NEPA), 42 U.S.C. 4321 et seq. Congress
enacted NEPA by a unanimous vote in
the Senate and a nearly unanimous vote
in the House 1 to declare a national
policy to promote environmental
protection for present and future
generations. NEPA was established to
‘‘encourage productive and enjoyable
harmony’’ between humans and the
environment; to promote efforts that
will prevent or eliminate damage to the
environment and biosphere and
stimulate the health and welfare of
people; and to enrich the understanding
of the ecological systems and natural
resources important to the Nation. 42
U.S.C. 4321.
To achieve these objectives, NEPA
makes it the continuing policy of the
Federal Government to use all
practicable means and measures to
create and maintain conditions under
which humans and nature can exist in
productive harmony and fulfill the
social, economic, and other
requirements of present and future
1 See Linda Luther, Cong. Rsch. Serv., RL33152,
The National Environmental Policy Act:
Background and Implementation (2008), https://
crsreports.congress.gov/product/details?prodcode=
RL33152.
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generations of Americans. 42 U.S.C.
4331. NEPA directs Federal agencies to
prepare ‘‘detailed statements,’’ referred
to as environmental impact statements
(EISs), for ‘‘major Federal actions
significantly affecting the quality of the
human environment.’’ 42 U.S.C.
4332(2)(C). NEPA established the
Council on Environmental Quality
(CEQ) in the Executive Office of the
President, which advises the President
on environmental policy matters and
oversees Federal agencies’
implementation of NEPA. 42 U.S.C.
4342. In many respects, NEPA was a
statute ahead of its time, and it remains
relevant and vital today, from its
statements that decisions be grounded
in science to its recognition that
sustainability and a livable environment
are fundamental to social and economic
well-being. See, e.g., 42 U.S.C. 4331,
4332(A).
In 1970, President Nixon issued
Executive Order (E.O.) 11514, Protection
and Enhancement of Environmental
Quality, which directed CEQ to issue
guidelines for implementation of section
102(2)(C) of NEPA.2 In response, CEQ
issued interim guidelines in April 1970,
and revised the guidelines in 1971 and
1973.3 In 1977, President Carter issued
E.O. 11991, Relating to Protection and
Enhancement of Environmental Quality,
amending E.O. 11514 and directing CEQ
to issue regulations to govern
implementation of NEPA and requiring
that Federal agencies comply with those
regulations.4 CEQ promulgated
implementing procedures in 1978 at 40
CFR parts 1500 through 1508.5 The
regulations, issued 8 years after NEPA’s
enactment, reflect CEQ’s interpretation
of and expertise in NEPA, initial
interpretations of the courts, and
Federal agency experience
implementing NEPA. Consistent with
the requirement in 40 CFR 1507.3,
Federal agencies, in turn, issue and
update their own implementing
procedures to supplement CEQ’s
procedures and integrate the NEPA
process into the agencies’ specific
programs and processes. Agencies
consult with CEQ in the development of
these procedures to ensure that their
agency-specific procedures are
consistent with CEQ’s regulations. CEQ
made technical amendments to the 1978
2 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 the guidelines); 38 FR 20550 (Aug. 1,
1973) (revised guidelines).
4 42 FR 26967 (May 25, 1977).
5 43 FR 55978 (Nov. 23, 1978).
3 See
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implementing regulations in 1979 6 and
amended one provision in 1986,7 but it
left the regulations largely unchanged
for over 40 years (1978 NEPA
Regulations). As a result, CEQ and
Federal agencies have extensive
experience in implementing NEPA and
the 1978 regulations, and a large body
of agency practice and case law has
developed based on the CEQ NEPA
regulations that remained in
substantially the same form from 1978
to 2020. The fundamental principles of
informed and science-based decision
making, transparency, and public
engagement are reflected in both the
NEPA statute and CEQ’s 1978 NEPA
Regulations, and it is those core
principles that CEQ seeks to advance in
this proposed rule.
On August 15, 2017, President Trump
issued E.O. 13807, Establishing
Discipline and Accountability in the
Environmental Review and Permitting
Process for Infrastructure Projects,8
which, in part, directed CEQ to establish
and lead an interagency working group
to identify and propose changes to the
NEPA regulations.9 In response, on
January 10, 2020, CEQ published a
notice of proposed rulemaking (NPRM)
proposing broad revisions to the 1978
NEPA Regulations.10 A wide range of
stakeholders submitted more than 1.1
million comments on the proposed
rule,11 including state and local
governments, Tribes, environmental
advocacy organizations, professional
and industry associations, and other
advocacy or non-profit organizations.
Many commenters provided detailed
feedback on the legality, policy wisdom,
and potential consequences of the
proposed amendments. In keeping with
the proposed rule, the final rule
promulgated on July 16, 2020, made
wholesale revisions to the regulations
and took effect on September 14, 2020
(2020 NEPA Regulations or 2020
Rule).12
In the months that followed the
issuance of the 2020 NEPA Regulations,
five lawsuits were filed challenging the
2020 Rule.13 These cases challenge the
6 44
FR 873 (Jan. 3, 1979).
7 51 FR 15618 (Apr. 25, 1986) (amending 40 CFR
1502.22).
8 82 FR 40463 (Aug. 24, 2017).
9 Id., sec. 5(e)(iii).
10 85 FR 1684 (Jan. 10, 2020).
11 See Docket No. CEQ–2019–0003, https://
www.regulations.gov/document/CEQ-2019-00030001.
12 85 FR 43304 (July 16, 2020).
13 Wild Va. v. Council on Env’t Quality, No.
3:20cv45 (W.D. Va. 2020); Envtl. Justice Health All.
v. Council on Env’t Quality, No. 1:20cv06143
(S.D.N.Y. 2020); Alaska Cmty. Action on Toxics v.
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2020 NEPA Regulations on a variety of
grounds, including under the
Administrative Procedure Act (APA),
NEPA, and the Endangered Species Act,
contending that the rule exceeded CEQ’s
authority and that the related
rulemaking process was procedurally
and substantively defective. In response
to CEQ and joint motions, the district
courts have issued temporary stays in
each of these cases, except for Wild
Virginia v. Council on Environmental
Quality, which the district court
dismissed without prejudice on June 21,
2021,14 and is currently on appeal to the
U.S. Court of Appeals for the Fourth
Circuit.
On January 20, 2021, President Biden
issued E.O. 13990, Protecting Public
Health and the Environment and
Restoring Science to Tackle the Climate
Crisis.15 Section 1 of E.O. 13990
establishes an Administration policy to
listen to the science; improve public
health and protect our environment;
ensure access to clean air and water;
limit exposure to dangerous chemicals
and pesticides; hold polluters
accountable, including those who
disproportionately harm communities of
color and low-income communities;
reduce greenhouse gas emissions;
bolster resilience to the impacts of
climate change; restore and expand our
national treasures and monuments; and
prioritize both environmental justice
and the creation of well-paying union
jobs necessary to deliver these goals.16
Section 2 of the E.O. calls for Federal
agencies to review existing regulations
issued between January 20, 2017, and
January 20, 2021, for consistency with
the policy articulated in the E.O. and to
take appropriate action. Section 7(b)
revokes a number of E.O.s, including
E.O. 13807, and section 7(f) directs
agencies to promptly take steps to
rescind any rules or regulations
implementing or enforcing any of the
revoked E.O.s. An accompanying White
House fact sheet, published on January
Council on Env’t Quality, No. 3:20cv5199 (N.D. Cal.
2020); California v. Council on Env’t Quality, No.
3:20cv06057 (N.D. Cal. 2020); Iowa Citizens for
Cmty. Improvement v. Council on Env’t Quality, No.
1:20cv02715 (D.D.C. 2020). Additionally, in The
Clinch Coalition v. U.S. Forest Service, No.
2:21cv00003 (W.D. Va. 2020), plaintiffs challenge
the U.S. Forest Service’s NEPA implementing
procedures, which established new categorical
exclusions, and, relatedly, the 2020 Rule’s
provisions on categorical exclusions.
14 Wild Va. v. Council on Env’t Quality, No.
3:20cv45, 2021 WL 2521561 (W.D. Va. June 21,
2021).
15 86 FR 7037 (Jan. 25, 2021).
16 Id., sec. 1.
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20, 2021, specifically directs CEQ to
review the 2020 NEPA Regulations for
consistency with E.O. 13990’s
objectives.17
On January 27, 2021, the President
signed E.O. 14008, Tackling the Climate
Crisis at Home and Abroad, which
establishes a government-wide approach
to the climate crisis by reducing
greenhouse gas emissions and an
Administration policy to increase
climate resilience, transition to a cleanenergy economy, address environmental
justice and invest in disadvantaged
communities, and spur well-paying
union jobs and economic growth.18 E.O.
14008 also requires the Chair of CEQ
and the Director of the Office of
Management and Budget (OMB) to
ensure that Federal infrastructure
investments reduce climate pollution
and that Federal permitting decisions
consider the effects of greenhouse gas
emissions and climate change.19
II. CEQ’s Approach to Revising the
2020 NEPA Regulations
Consistent with E.O. 13990 and E.O.
14008, CEQ is engaged in a
comprehensive review of the 2020
NEPA Regulations to ensure that they
provide for sound and efficient
environmental review of Federal
actions, including those actions integral
to tackling the climate crisis, in a
manner that enables meaningful public
participation, respects Tribal
sovereignty, protects our Nation’s
resources, and promotes better
environmental and community
outcomes. CEQ proposes regulatory
changes in this NPRM to enhance clarity
on NEPA implementation, to better
effectuate NEPA’s statutory
requirements and purposes, to ensure
that Federal decisions are guided by
science, to better protect and enhance
the quality of the human environment,
and to provide full and fair processes
that inform the public about the
environmental effects of government
actions and enable public participation.
CEQ’s review of the 2020 NEPA
Regulations and the proposed regulatory
amendments are guided by CEQ’s and
Federal agencies’ extensive experience
implementing NEPA for the last 50
years. As part of its oversight role, CEQ
reviews every agency’s proposed new or
updated NEPA implementing
procedures. As part of this iterative
process, CEQ engages with agencies to
17 White House Fact Sheet: List of Agency Actions
for Review (Jan. 20, 2021), https://
www.whitehouse.gov/briefing-room/statementsreleases/2021/01/20/fact-sheet-list-of-agencyactions-for-review/.
18 86 FR 7619 (Feb. 1, 2021).
19 Id., sec. 213(a).
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understand their specific authorities
and programs to ensure consideration of
environmental impacts is integrated into
their decision-making processes.
Additionally, where necessary or
appropriate, CEQ engages with agencies
on NEPA reviews for specific projects or
project types. For example, CEQ has
convened interagency working groups to
ensure efficient and effective
environmental reviews for
transportation and broadband projects.
CEQ also has extensive experience
providing written guidance to Federal
agencies on a wide range of NEPArelated issues, including environmental
justice, emergency response activities,
climate change, and more.20 And, CEQ
meets regularly with external
stakeholders to understand their
perspectives on the NEPA process.
Finally, CEQ coordinates with other
Federal agencies and components of the
White House on a wide array of
environmental issues that also arise in
the NEPA context, such as endangered
species consultation or impacts to
Federal lands and waters from federally
permitted activities.
It is CEQ’s view that the 2020 NEPA
Regulations may have the effect of
limiting the scope of NEPA analysis,
with negative repercussions for
environmental protection and
environmental quality, including in
critical areas such as climate change and
environmental justice. Portions of the
2020 NEPA Regulations also may not
reflect NEPA’s statutory purposes to
‘‘encourage productive and enjoyable
harmony’’ between humans and the
environment, promote efforts that will
prevent or eliminate damage to the
environment and biosphere, and
enhance public health and welfare. See
42 U.S.C. 4321. Some changes
introduced by the 2020 NEPA
Regulations also may not support
science-based decision making or be
compatible with the Administration’s
policies to improve public health,
protect the environment, prioritize
environmental justice, provide access to
clean air and water, and reduce
greenhouse gas emissions that
contribute to climate change.21
To address these concerns, CEQ is
engaging in a series of rulemakings to
propose revisions to the 2020 NEPA
Regulations. As a preliminary step, CEQ
issued an interim final rule on June 29,
2021, amending the requirement in 40
CFR 1507.3(b) for agencies to propose
20 See https://www.energy.gov/nepa/ceqguidance-documents for a list of current CEQ
guidance documents.
21 See E.O. 13990, supra note 15, and E.O. 14008,
supra note 18.
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changes to their existing NEPA
supplemental procedures by September
14, 2021, in order to make their
procedures consistent with the 2020
NEPA Regulations.22 CEQ extended the
date by two years to avoid having
agencies propose changes to their
implementing procedures on a tight
deadline to conform to a rule that is
undergoing extensive review and will
likely change in the near future.
CEQ intends to reconsider and revise
the 2020 NEPA Regulations using a
phased approach. This NPRM initiates a
‘‘Phase 1’’ rulemaking to focus on a
discrete set of provisions. In identifying
what provisions to address in Phase 1,
CEQ focused on the provisions that (1)
pose significant near-term interpretation
or implementation challenges for
Federal agencies and would have the
most impact to agencies’ NEPA
processes during the interim period
before a ‘‘Phase 2’’ rulemaking is
complete; (2) make sense to revert to the
1978 regulatory approach for the
reasons discussed in Part III of this
preamble; and (3) CEQ is generally
unlikely to propose to further revise in
a Phase 2 rulemaking. Further, because
CEQ recently received comments on
these exact provisions through the
rulemaking process for the 2020 NEPA
Regulations, CEQ has the benefit of
voluminous public comments on these
issues, which CEQ considered in the
development of this proposed rule. In
Phase 2, CEQ intends to issue a second
NPRM to more broadly revisit the 2020
NEPA Regulations and propose further
revisions to ensure that the NEPA
process provides for efficient and
effective environmental reviews that are
consistent with the statute’s text and
purpose; provides regulatory certainty
to Federal agencies; promotes better
decision making consistent with NEPA’s
statutory requirements; and meets
environmental, climate change, and
environmental justice objectives.
III. Summary of Proposed Rule
As discussed in this section, CEQ
proposes three revisions to the 2020
NEPA Regulations in this Phase 1
rulemaking: (1) To eliminate language in
the description of purpose and need for
a proposed action when it is an agency’s
statutory duty to review applications for
authorization (40 CFR 1502.13) and
make a conforming edit to the definition
of ‘‘reasonable alternatives’’ (40 CFR
1508.1(z)); (2) to remove limitations on
agency NEPA procedures for
implementing CEQ’s NEPA Regulations
(40 CFR 1507.3); and (3) to return to the
definitions of ‘‘effects’’ in the prior,
22 86
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longstanding 1978 NEPA Regulations
(40 CFR 1508.1(g)).
CEQ proposes to amend these
provisions by generally reverting to the
language from the 1978 NEPA
Regulations that was in effect for more
than 40 years, subject to minor revisions
for clarity. In proposing to revert to
language in the 1978 Regulations, this
NPRM addresses issues similar or
identical to those the public and Federal
agencies recently had the opportunity to
consider and comment on during the
rulemaking for the 2020 NEPA
Regulations, which will facilitate an
expeditious Phase 1 rulemaking. For
each provision described in this section,
CEQ provides a high-level summary of
some of the significant issues raised in
these public comments, which CEQ
considered in the development of this
proposed rule.
A. Purpose and Need (§ 1502.13)
The purpose and need section of an
EIS sets forth the rationale for the
agency’s proposed action. Development
of the purpose and need is a vital early
step in the NEPA process that is
foundational to other elements of a
NEPA review. For example, the purpose
and need statement sets the parameters
for the range of reasonable alternatives
an agency considers and informs the
scope of effects that an agency must
analyze in an EIS. The 1978 NEPA
Regulations required that each EIS
briefly state the underlying purpose and
need to which the agency is responding
in proposing the alternatives, including
the proposed action. The 2020 NEPA
Regulations modified this provision by
adding language that requires agencies
to base the purpose and need on the
goals of an applicant and the agency’s
authority when the agency’s statutory
duty is to review an application for
authorization. The 2020 NEPA
Regulations also made a conforming
addition to the definition of ‘‘reasonable
alternatives’’ to carry over the new
language on purpose and need. Here,
CEQ proposes in § 1502.13 to revert to
the language of the 1978 NEPA
Regulations for purpose and need and
conform the definition of ‘‘reasonable
alternatives’’ in § 1508.1(z) to this
change.
CEQ proposes this change because the
language added by the 2020 NEPA
Regulations requires an agency to
always base the purpose and need on
the goals of an applicant and the
agency’s statutory authority when an
agency is reviewing an application for
authorization. This language could be
construed to require agencies to
prioritize the applicant’s goals over
other relevant factors, including the
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public interest. CEQ does not consider
this approach to reflect the best reading
of the NEPA statute or lay the
appropriate groundwork for
environmentally sound decision
making. Agencies should have
discretion to base the purpose and need
for their actions on a variety of factors,
which include the goals of the
applicant, but not to the exclusion of
other factors. For example, agencies may
consider regulatory requirements,
desired conditions on the landscape or
other environmental outcomes, and
local economic needs, as well as an
applicant’s goals. Always tailoring the
purpose and need to an applicant’s
goals when considering a request for an
authorization could prevent an agency
from considering alternatives that better
meet the policies and responsibilities
set forth in NEPA merely because they
do not meet an applicant’s stated goals.
Additionally, an applicant’s goals
themselves could be potentially
confusing or unduly narrow or
restrictive. Restoring the 1978 language
would eliminate this confusing language
and reaffirm agency discretion to
develop and rely on statements of
purpose and need that are consistent
with the agency’s decision-making
responsibilities while considering
multiple relevant factors, including the
public interest and the goals of an
applicant. This restoration would
confirm that agencies should consider a
range of alternatives that are technically
and economically feasible and meet the
purpose and need for the proposed
action but that are not unreasonably
constrained by an applicant’s stated
goals.
In adding this language, the preamble
to the 2020 Rule explained that CEQ
intended to clarify that when an agency
is responsible for reviewing applications
for authorizations, the agency must base
the purpose and need on the applicant’s
goals and the agency’s statutory
authority, citing Citizens Against
Burlington, Inc. v. Busey, 938 F.2d 190,
196 (D.C. Cir. 1991). However, this case
did not require the agency to base the
purpose and need on the applicant’s
goals; rather, the court held that the
agency’s consideration of the applicant’s
goals to develop the purpose and need
statement was not arbitrary and
capricious. However, the court did not
require that the applicant’s goals be the
sole (or even primary) factor in the
formulation of the purpose and need for
the action. See id. at 196–99.
CEQ proposes to remove the reference
to the agency’s statutory authority
because it is unnecessary and confusing.
It is unnecessary because agencies
already had a long history of developing
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purpose and need statements under the
1978 NEPA Regulations guided by their
statutory authority and the scope of the
agency decision under consideration.
The reference is confusing because it
implies that an agency’s authority is
only relevant when an agency proposes
to grant an authorization, and agencies
must also appropriately consider the
scope of their authority when evaluating
other agency actions, including those
that do not involve specific
authorizations. Therefore, CEQ proposes
to eliminate the reference to an agency’s
authority because purpose and need
statements have always been informed
by the scope of the agency’s statutory
decision-making authority irrespective
of whether the action is an application
for authorization. A reference to an
agency’s statutory authority in this one
context therefore seems unnecessary.
To promote informed decision
making, transparency, and public
engagement, a properly drawn purpose
and need statement should lead to
consideration of the reasonable
alternatives to the proposed action,
consistent with NEPA’s requirements.
See 42 U.S.C. 4332(2)(C). While a
purpose and need statement that is too
narrow is inconsistent with NEPA’s
requirement to consider alternatives to
the proposed action, so too is a
boundless analysis of alternatives.
Rather, agencies are guided by a rule of
reason in identifying the reasonable
alternatives that are technically and
economically feasible and meet the
purpose and need of a proposed action.
See, e.g., HonoluluTraffic.com v. Fed.
Transit Admin., 742 F.3d 1222, 1230
(9th Cir. 2014).
For example, a private applicant
seeking a right-of-way on Federal land
may want to site the right-of-way at a
specific location and may,
correspondingly, frame the applicant’s
goals as a right-of-way with a particular
location or route. However, the agency
with jurisdiction over the proposed
action may want to consider a range of
reasonable locations for the right-of-way
that would, for example, avoid
environmental impacts or reduce
conflicts with other programs or plans.
Inherent in the NEPA process is the
consideration of the public interest
when developing a purpose and need
statement, including analyzing
proposed actions and alternatives. As
the U.S. Court of Appeals for the
Seventh Circuit explained in Simmons
v. U.S. Army Corps of Engineers, it is
contrary to NEPA for agencies to
‘‘contrive a purpose so slender as to
define competing ‘reasonable
alternatives’ out of consideration (and
even out of existence).’’ 120 F.3d 664,
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666 (7th Cir. 1997) (citing 42 U.S.C.
4332(2)(E)). The court explained that
constricting the definition of the
project’s purpose could exclude truly
reasonable alternatives, making an EIS
incompatible with NEPA’s
requirements. Id.; see also, e.g., Nat’l
Parks & Conservation Ass’n v. Bureau of
Land Mgmt., 606 F.3d 1058, 1070 (9th
Cir. 2010) (‘‘Agencies enjoy
‘considerable discretion’ to define the
purpose and need of a project. However,
‘an agency cannot define its objectives
in unreasonably narrow terms.’’’
(internal citations omitted)).
During the rulemaking process for the
2020 NEPA Regulations, numerous
public comments addressed the purpose
and need provision. Some commenters
supported limiting the purpose and
need to the goals of the applicant in
order to narrow the number of
alternatives agencies must consider and
shorten the timeframe for the
environmental review. Other
commenters expressed the view that
this provision would result in purpose
and need statements and environmental
reviews that give undue deference to
applicants. Some commenters also
stated that the proposed change would
unduly elevate the goals of applicants
over the needs of the public and Federal
agencies’ purview to consider the public
interest. In reconsidering the approach
taken in the 2020 Rule, CEQ reviewed
these comments. As discussed in this
section, CEQ considers the proposed
reversion to the 1978 language on
purpose and need to better reflect
NEPA’s objectives. Upon further
consideration, CEQ does not consider
that the language added by the 2020
Rule would necessarily lead to more
efficient reviews and finds a lack of
evidence to support that claim. CEQ
requests comment on this proposed
change and the potential effects of this
change on the environmental review
process, including timeframes for
environmental review.
CEQ also proposes to make a
conforming edit to the definition of
‘‘reasonable alternatives. The 2020 Rule
defines ‘‘reasonable alternatives’’ to
mean ‘‘a reasonable range of alternatives
that are technically and economically
feasible, meet the purpose and need for
the proposed action, and, where
applicable, meet the goals of the
applicant.’’ 40 CFR 1508.1(z) (emphasis
added). CEQ’s proposed change would
be consistent with the proposed change
to purpose and need, by deleting the
reference in ‘‘reasonable alternatives’’ to
the goals of the applicant for the same
reasons discussed above regarding the
proposed change to the purpose and
need section, § 1502.13.
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B. Agency NEPA Procedures (§ 1507.3)
CEQ proposes to revise § 1507.3(a)
and (b) to clarify that while agency
NEPA procedures need to be consistent
with the CEQ regulations, agencies have
the discretion and flexibility to develop
procedures beyond the CEQ regulatory
requirements, enabling agencies to
address their specific programs and the
contexts in which they operate.
Specifically, the proposed rule would
remove language from § 1507.3(a)
stating that where existing agency NEPA
procedures are ‘‘inconsistent’’ with the
CEQ regulations, the CEQ regulations
apply ‘‘unless there is a clear and
fundamental conflict with the
requirements of another statute.’’ The
proposed rule also would remove from
§ 1507.3(b) the language requiring
agencies ‘‘to eliminate any
inconsistencies’’ with the CEQ
regulations and the prohibition on
agencies imposing additional
procedures or requirements beyond the
CEQ regulations unless those additional
procedures promote agency efficiency or
are required by law. Collectively, these
‘‘ceiling provisions’’ make the CEQ
regulations a ceiling for agency NEPA
procedures, which departed from CEQ’s
and Federal agencies’ prior
understanding and practice that CEQ’s
NEPA regulations provide a floor for
environmental review procedures.
As noted in section II of this
preamble, CEQ amended paragraph (b)
in June 2021 to provide agencies until
September 14, 2023, to propose updates
to their agency procedures. This NPRM
does not propose to change that date. In
proposing these revisions, CEQ is
affirming that agencies have the
authority and discretion to develop and
implement NEPA procedures beyond
those specified in the CEQ regulations
to address the unique contexts in which
they operate, and that CEQ will
continue to ensure that such additional
procedures are consistent with CEQ’s
regulations through its consistency
review process set forth in 40 CFR
1507.3(b)(2).
Prior to the 2020 NEPA Regulations,
Federal agencies could develop NEPA
procedures of their own to augment the
CEQ regulations, so long as those
procedures met or exceeded the degree
of environmental review required by the
CEQ regulations. CEQ’s proposal better
meets NEPA’s statutory requirements
and purpose to provide flexibility to
agencies in carrying out their NEPA
requirements, including by allowing
agencies to adopt agency-specific NEPA
procedures that align with their unique
missions or circumstances. Agencies
should be able to tailor their procedures
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to meet their unique statutory mandates
and include additional procedures or
requirements beyond those outlined in
CEQ’s NEPA regulations, especially if
doing so will promote better decisions,
improve environmental or community
outcomes, or spur innovation that
advances NEPA’s policies.
For example, agency procedures
could include more specific
requirements for the development of
environmental assessments to facilitate
the decision-making process, such as
requiring multiple alternatives or
documentation of alternatives
considered but dismissed. Procedures
also could require public hearings or
provide for more specific consideration
or evaluation of certain issues such as
air and water quality impacts,
environmental justice considerations, or
habitat effects. For example, the
National Oceanic and Atmospheric
Administration (NOAA), which among
other things, is responsible for the
stewardship of the Nation’s ocean
resources and their habitat, might adopt
agency-specific procedures on the
analysis of impacts to species or habitats
protected by the Endangered Species
Act, the Marine Mammal Protection Act,
or the Magnuson-Stevens Fishery
Conservation and Management Act, as
well as other vulnerable marine and
coastal ecosystems. CEQ has heard from
Federal agencies that the ceiling
provisions have created confusion as to
whether agencies can continue to carry
out their agency-specific procedures or
adopt new procedures to implement
NEPA for their programs and
authorities.
CEQ reviews any proposed changes to
agency NEPA procedures before their
adoption to ensure the procedures are
consistent with NEPA and the CEQ
regulations. See 40 CFR 1507.3. That
review process provides the opportunity
to discuss the reasons behind any new
or additional procedures or
requirements proposed by agencies.
This also allows CEQ to promote
consistency across the Federal
Government without limiting agencies’
flexibility to do more than the CEQ
regulations describe or otherwise
inhibiting innovation.
Removing these ceiling provisions
also improves alignment of the NEPA
Regulations with NEPA’s statutory text,
which directs agencies to pursue the
statute’s goals ‘‘to the fullest extent
possible.’’ 42 U.S.C. 4332. The
legislative history of NEPA indicates
that the intent behind this statement
was to ensure that all Federal agencies
comply with NEPA as well as their
statutory authorities and that ‘‘no
agency shall utilize an excessively
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narrow construction of its existing
statutory authorizations to avoid
compliance.’’ 23
Additionally, removing these
sentences would allow agencies to fully
pursue NEPA’s aims by allowing them
to establish procedures specific to their
missions and authorities that may
provide for additional environmental
review and public participation. See 42
U.S.C. 4332. CEQ would continue to
perform its longstanding role of
reviewing any proposed agency-specific
NEPA procedures to ensure that they are
consistent with, but not necessarily
identical to, CEQ’s regulations. The
proposed change would also help
Federal agencies ensure that their NEPA
procedures, and the NEPA documents
and processes that follow those
procedures, meet the goal of NEPA to
provide for the protection and
enhancement of the environment and
human health.
Since all agencies are charged with
administering NEPA—not only CEQ—
agencies should be allowed to pursue
the environmental aims of the statute,
including by adopting and carrying out
procedures that require additional or
more specific environmental analysis
than called for by the CEQ regulations.
NEPA also expressly instructs agencies
to develop methods and procedures for
the development of EISs, indicating that
agencies are intended to take
responsibility for their own procedures,
even while consulting with CEQ. See 42
U.S.C. 4332(2)(B). Eliminating the 2020
NEPA Regulations’ ceiling provisions
would allow agencies to carry out their
NEPA obligations to the ‘‘fullest extent
possible.’’ See 42 U.S.C. 4332.
The public extensively commented on
the ceiling provisions during the
rulemaking for the 2020 NEPA
Regulations. Many commenters opposed
the addition of these provisions,
expressing the view that it is important
for agencies to have flexibility to meet
NEPA’s statutory requirements and
establish the procedures and
requirements necessary to implement
NEPA. Commenters stated that
precluding an agency from applying its
expertise would arbitrarily limit the role
of agencies responsible for
implementing NEPA. Some commenters
found that the 2020 NEPA Regulations
did not adequately justify the addition
of these provisions or clearly articulate
what problem the change was trying to
solve. A few commenters also noted that
the proposed changes could interfere
with state and Federal collaboration or
coordination to the extent they would
prevent Federal agencies from adopting
23 H.
Rep. No. 91–765, at 9–10 (1969).
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NEPA procedures that integrate with
state review processes that have more
stringent requirements and procedures
than those set out in the proposed rule.
The commenters noted that impairing
Federal agencies’ coordination with
states would create greater complexity
and uncertainty for applicants and
potentially additional delays and
paperwork. The few comments in
support of the change expressed general
support or stated that including ceiling
provisions would reduce costs and
delays—a rationale that appears in the
NPRM for the 2020 Rule—but did not
provide an explanation or basis for that
statement.
In developing this proposal, CEQ
considered these comments as well as
the rationale provided for the 2020 Rule
and, in alignment with the discussion
provided earlier in this section,
disagrees with the rationale provided for
the 2020 Rule and agrees with the
comments that opposed the addition of
the ceiling provisions. Even if the
ceiling provisions would reduce costs
and delays in some circumstances,
which commenters did not provide
evidence to support, CEQ considers the
benefits of agency flexibility to
outweigh the potential costs and delays.
NEPA is more than a check-the-box
paperwork exercise. Providing agencies
flexibility to integrate their NEPA
reviews into their unique programs can
both make the decision-making process
more efficient—because the process can
be tailored to the particularities of
agency programs—and more effective
because a more tailored environmental
review process may result in
environmental reviews that better
inform the decision maker and the
public. Moreover, CEQ retains authority
to review proposed agency procedures
for consistency with CEQ’s regulations
and can evaluate specific proposals
made by agencies at that time and work
with the agencies to ensure
implementing procedures do not result
in undue cost or delay. CEQ invites
public comment on this proposed
provision.
C. Definition of ‘‘Effects’’ or ‘‘Impacts’’
(§ 1508.1(g))
NEPA requires Federal agencies to
examine the environmental effects of
their proposed actions and alternatives
and any adverse environmental effects
that cannot be avoided if the proposed
action is implemented. 42 U.S.C.
4332(2)(C). CEQ proposes to revise the
definition of ‘‘effects’’ or ‘‘impacts’’ in
§ 1508.1(g) to restore the substance of
the definitions of ‘‘effects’’ and
‘‘cumulative impacts’’ contained in the
1978 NEPA Regulations with some
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minor, non-substantive changes for
consistency with the current format of
the Code of Federal Regulations.
Specifically, CEQ proposes to restore
the definitions of ‘‘direct’’ and
‘‘indirect’’ effects, and ‘‘cumulative
impacts’’ from the 1978 NEPA
Regulations, 40 CFR 1508.7 and 1508.8
(2019), by incorporating them into the
definition of ‘‘effects’’ or ‘‘impacts,’’
such that each reference to these terms
throughout 40 CFR parts 1500 through
1508 would include direct, indirect, and
cumulative effects.
Direct effects are effects caused by the
action and occur at the same time and
place. 40 CFR 1508.8(a) (2019). Indirect
effects are effects caused by the action
that are later in time or farther removed
in distance but are still reasonably
foreseeable. Id. at § 1508.8(b).
Cumulative effects are effects resulting
from the incremental impact of the
action when added to other past,
present, and reasonably foreseeable
future actions regardless of who
undertakes the other actions. Id. at
§ 1508.7.
CEQ’s proposal would remove the
language from paragraph (g) defining
‘‘effects’’ as those ‘‘that are reasonably
foreseeable and have a reasonably close
causal relationship.’’ The proposal also
would remove and replace paragraph
(g)(2), which states that a ‘‘but for’’
causal relationship is insufficient to
make an agency responsible for a
particular effect under NEPA; generally
excludes effects that are remote in time,
geographically remote, or the product of
a lengthy causal chain; and fully
excludes effects that the agency has no
ability to prevent due to its limited
statutory authority or would occur
regardless of the proposed action. The
proposed rule also would remove and
replace paragraph (g)(3), which states
that an agency’s analysis of effects must
be consistent with the definition of
‘‘effects’’ and explicitly repeals the
definition of cumulative impact in 40
CFR 1508.7 (2019). CEQ proposes to
remove this language because it creates
confusion and could be read to
improperly narrow the scope of
environmental effects relevant to NEPA
analysis, contrary to NEPA’s purpose.
CEQ’s proposal would retain the
introductory phrase added in the 2020
Rule that defines ‘‘effects’’ as ‘‘changes
to the human environment from the
proposed action or alternatives.’’ This
revision eliminated the circular
definition (‘‘effects’’ include effects) of
the 1978 NEPA Regulations. Finally,
CEQ does not propose to include the
statement from the 1978 NEPA
Regulations that ‘‘effects’’ and
‘‘impacts’’ as used in the regulations are
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synonymous, as this statement would be
redundant as the definition defines both
‘‘effects’’ and ‘‘impacts’’ together.
1. Reinstating ‘‘Direct’’ and ‘‘Indirect’’
Effects
CEQ proposes to restore the terms
‘‘direct’’ and ‘‘indirect’’ to the definition
of ‘‘effects’’ to realign the regulations
with longstanding agency practice 24
and judicial decisions interpreting
NEPA. Based on CEQ’s extensive
experience implementing NEPA, this
change would better reflect NEPA’s
statutory purpose and intent and be
more consistent with case law, as courts
have interpreted the NEPA statute to
require agencies to analyze the
reasonably foreseeable direct and
indirect effects of a proposed action and
alternatives. See, e.g., Minn. Pub. Int.
Rsch. Grp. v. Butz, 498 F.2d 1314, 1322
(8th Cir. 1974) (stating that NEPA ‘‘is
concerned with indirect effects as well
as direct effects,’’ and emphasizing longterm effects as a reason that a logging
project would significantly affect the
environment and require an EIS); see
also, e.g., Sierra Club v. Fed. Energy
Reg. Comm’n, 867 F.3d 1357, 1371–72
(D.C. Cir. 2017); San Juan Citizens All.
v. U.S. Bureau of Land Mgmt., 326 F.
Supp. 3d 1227, 1244 (D.N.M. 2018)
(holding that greenhouse gas emissions
are foreseeable indirect effects of leases
for fossil fuel production and approvals
of pipelines that transport fossil fuels).
As reflected in many of the public
comments to the 2020 Rule as well as
in CEQ’s discussions with agency NEPA
practitioners who have asked CEQ for
clarification since the 2020 Rule went
into effect, this change would eliminate
confusion caused by the modified
definition and ensure that the NEPA
process fully and fairly considers the
appropriate universe of effects, such as
air and water pollution, greenhouse gas
emissions that contribute to climate
change, and effects on communities
with environmental justice concerns.
While the 2020 NEPA Regulations
retained the definition of ‘‘direct’’
effects without using the term, the
revised definition creates ambiguity
regarding whether and to what extent
indirect effects are included in the
definition of ‘‘effects.’’ In particular, the
definition states in paragraph (g) that
effects ‘‘may include effects that are
later in time or farther removed in
distance’’ but then states in paragraph
(g)(2) that effects should generally not
24 See, e.g., Bureau of Land Management National
Environmental Policy Act Handbook H–1790–1,
sec. 6.8.2 (January 2008); 36 CFR 220.4(f),
220.7(b)(iv) (Forest Service); 32 CFR 651.29(b),
651.34(f), 651.51(a)(3), Appendix to E to Part 651—
Content of EIS (Army Corps of Engineers).
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be considered if they are remote in time
or geographically remote. CEQ’s
proposed changes would provide clarity
to agencies, practitioners, and the public
by restoring the terms and definitions of
‘‘direct’’ and ‘‘indirect,’’ as these terms
can help agencies and the public
evaluate and understand the full scope
of reasonably foreseeable effects in
NEPA reviews.
This reinstatement also would ensure
that agencies consider the full range of
reasonably foreseeable effects in the
NEPA process, consistent with NEPA’s
goal of facilitating reason-based decision
making that protects public health and
the environment, as well as this
Administration’s policies to be guided
by science and to address
environmental protection, climate
change, and environmental justice. For
example, air pollution, including
greenhouse gas emissions, released by
fossil fuel combustion is often a
reasonably foreseeable indirect effect of
proposed fossil fuel extraction that
agencies should evaluate in the NEPA
process, even if the pollution is remote
in time or geographically remote from a
proposed action. And even where an
agency does not exercise regulatory
authority over all aspects of a project, it
may be appropriate to consider and
compare the air pollution and
greenhouse gas emission effects that the
proposal and the reasonable alternatives
would have on the environment, even if
the agency does not have control over
all of the emissions that the alternatives
would produce. The consideration of
such effects can provide important
information on the selection of a
preferred alternative; for example, an
agency decision maker might select the
no action alternative, as opposed to a
fossil fuel leasing alternative, on the
basis that it best aligns with the agency’s
statutory authorities and policies with
respect to greenhouse gas emission
mitigation.25
25 Agencies may consider all available tools and
resources in assessing GHG emissions and climate
change effects of their proposed actions, including,
as appropriate and relevant, CEQ’s 2016 ‘‘Final
Guidance for Federal Departments and Agencies on
Consideration of Greenhouse Gas Emissions and the
Effects of Climate Change in National
Environmental Policy Act Reviews,’’ 81 FR 51866
(Aug. 5, 2016). Additionally, under E.O. 13990, the
Interagency Working Group (IWG) on the Social
Cost of Greenhouse Gases published interim
estimates and is preparing updated estimates,
which agencies may find helpful in considering
greenhouse gas emission effects and mitigation as
part of the NEPA process. See https://
www.whitehouse.gov/wp-content/uploads/2021/02/
TechnicalSupportDocument_SocialCostof
CarbonMethaneNitrousOxide.pdf?source=email.
This proposed rule does not specifically address the
IWG’s interim or final Social Cost of Greenhouse
Gases estimates. More information on the interim
estimates is available from the Office of Information
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Use of the terms ‘‘direct’’ and
‘‘indirect’’ also can help explain both
adverse and beneficial effects over
various timeframes. For instance, a
utility-scale solar facility could have
short-term direct adverse effects, such as
land impacts associated with
construction. The facility also could
have long-term indirect beneficial
effects, such as reductions in air
pollution, including greenhouse gas
emissions, from the renewable energy
generated by the solar facility that
displaces more greenhouse gas-intensive
energy sources (such as coal or natural
gas) as an electricity source for years or
decades into the future. Consistent with
CEQ’s proposed restored definition,
such indirect effects could be caused by
the action to authorize a new solar
facility, and would be later in time or
farther removed in distance yet still
reasonably foreseeable. Fully evaluating
the effects of the facility would require
identifying and evaluating both the
direct and indirect effects of the
proposed action.
The 2020 NEPA Regulations also
removed the explanatory examples of
indirect effects, including growthinducing effects and other effects related
to induced changes in the pattern of
land use, population density, or growth
rate, and related effects on air and water
and other natural systems, including
ecosystems. Restoring these examples is
appropriate to highlight indirect effects
that may be associated with myriad
proposed Federal actions, such as
expanding or repairing Federal
highways or authorizing new renewable
energy projects.
Numerous public comments
discussed the elimination of references
to ‘‘direct’’ and ‘‘indirect’’ in the
definition of ‘‘effects’’ during the
rulemaking for the 2020 NEPA
Regulations. Commenters who
supported the elimination of ‘‘direct’’
and ‘‘indirect’’ expressed views that the
existing language creates confusion, that
removal of the terms could help reduce
the length of NEPA documents, and that
retaining the terms would lead to an
increase in litigation. Commenters also
raised concerns that the terms have
expanded the scope of NEPA analysis
without serving NEPA’s purpose of
informed decision making but did not
provide bases, analyses, or evidence to
support these conclusions. The 2020
Rule adopted the position of these
comments. CEQ considers the
disclosure of both direct and indirect
effects to be critical to the informed
and Regulatory Affairs. See https://
www.whitehouse.gov/wp-content/uploads/2021/06/
Social-Cost-of-Greenhouse-Gas-Emissions.pdf.
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decision-making process such that the
benefits of any such disclosure
outweigh any potential for shorter
NEPA documents or timeframes.
Moreover, a well-drafted NEPA
document can both be concise and
supported by thorough analysis, and
agencies have decades of experience
considering the direct and indirect
effects of their proposed actions. CEQ
considers the potential for reduced
litigation from the 2020 changes to be
speculative, especially given the
confusion that has resulted from
deleting these familiar terms. Finally,
CEQ expects that restoring these
definitions that have been in place and
in use for decades will better clarify the
effects agencies need to consider in their
NEPA analyses and may even help
avoid delays in NEPA reviews.
The vast majority of comments on the
2020 NEPA Regulations opposed the
removal of the terms, and CEQ views
those comments as supporting its
proposal to restore the terms ‘‘direct’’
and ‘‘indirect’’ to the definition of
‘‘effects.’’ Commenters expressed views
that retaining the terms would reduce
confusion and litigation. They also
expressed views that direct and indirect
effects are critical elements of the
evaluation of potential environmental
effects of a proposed action, and they
raised concerns that by deleting the
term ‘‘indirect,’’ agencies may not
adequately consider long-term or
geographically remote impacts,
including greenhouse gas emissions or
water pollution that travels
downstream. Commenters supported
their views by pointing to CEQ’s
longstanding guidance and decades of
agency guidance and court decisions
using the terms to address effects
pursuant to NEPA. Many commenters
argued that removal of these terms
would be contrary to the intent of the
statute, and that consideration of both
direct and indirect effects is essential to
determining significance. CEQ invites
comment on these proposed changes.
2. Adding ‘‘Cumulative Effects’’ to the
Definition of ‘‘Effects’’
CEQ proposes to revise § 1508.1(g)(3)
by restoring, with minor modifications,
the definition of ‘‘cumulative impacts’’
from the 1978 NEPA Regulations and
striking the current provision that
repealed that definition. Analysis of
reasonably foreseeable cumulative
effects is integral to sound and complete
environmental review. Cumulative
effects analysis is an essential
component of NEPA analysis, as it
allows agencies and the public to
understand how the incremental
impacts of a proposed action contribute
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to cumulative environmental problems
such as air pollution, water pollution,
climate change, and biodiversity loss,
among others. Today, science and data
confirm that cumulative environmental
harms, including repeated or frequent
exposure to toxic air or water pollution,
threaten human and environmental
health and poses undue burdens on
historically marginalized
communities.26 CEQ seeks to ensure
that agencies fully analyze reasonably
foreseeable cumulative effects before
Federal decisions are made by restoring
the term and its definition.
The 2020 Rule’s deletion of the
definition of ‘‘cumulative impacts’’ did
not exclude reasonably foreseeable
effects from consideration merely
because they could be categorized as
cumulative effects. In responding to
comments about potential effects on
threatened and endangered species, the
preamble to the 2020 Rule explains that
‘‘the final rule does not ignore
cumulative effects on listed species.’’ 27
CEQ similarly explained in the Final
Rule Response to Comments that the
2020 Rule did not automatically exclude
from analysis effects falling within the
deleted definition of ‘‘cumulative
impacts.’’ 28 However, CEQ considers
the deletion of the longstanding term to
have the potential to create confusion
about when and if agencies should
analyze cumulative effects, and creates
uncertainty regarding this type of effects
analysis contrary to longstanding agency
practice and NEPA’s purpose. For
example, CEQ has heard from Federal
agency NEPA practitioners both
individually and in agency meetings
that they would like clarification about
how to address cumulative effects,
including whether it remains
permissible to use the term, in light of
the changes made in 2020. In addition,
outside stakeholders have raised
concerns in meetings and listening
sessions regarding the deletion of the
term in light of the potential impact this
could have in truncating the
environmental review and disclosure of
important categories of effects.
Additionally, public comments received
26 See,
e.g., Mercedes A. Bravo et al., Racial
Isolation and Exposure to Airborne Particulate
Matter and Ozone in Understudied U.S.
Populations: Environmental Justice Applications of
Downscaled Numerical Model Output, 92–93 Env’t
Int’l 247 (2016) (finding that long-term exposure to
particulate matter is associated with racial
segregation, with more highly segregated areas
suffering higher levels of exposure).
27 85 FR 43355 (July 16, 2020).
28 Council on Environmental Quality, Update to
the Regulations Implementing the Procedural
Provisions of the National Environmental Policy
Act Final Rule Response to Comments 467 (June 30,
2020), https://www.regulations.gov/document/CEQ2019-0003-720629.
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on the proposed 2020 Rule raised such
concerns. By restoring the definition of
cumulative effects, the proposed rule
would clarify that agencies must
analyze and disclose reasonably
foreseeable cumulative effects.
Since its initial NEPA guidelines in
1970, CEQ has interpreted the statute as
requiring consideration of cumulative
effects. In its 1970 interim guidelines,
CEQ provided that agencies should
construe the statutory clause ‘‘major
Federal actions significantly affecting
the quality of the human environment’’
‘‘with a view to the overall, cumulative
impact of the action proposed (and of
further actions contemplated).’’ 29 CEQ
explained that agencies should consider
‘‘that the effect of many Federal
decisions about a project or complex of
projects can be individually limited but
cumulatively considerable’’ because, for
instance, agencies may provide funds
over a period of years or multiple
agencies may individually make
decisions about partial aspects of a
project.30 The guidelines further stated
that an agency should prepare an EIS ‘‘if
it is reasonable to anticipate a
cumulatively significant impact on the
environment from the Federal
action.’’ 31
These initial guidelines also
interpreted the requirement in section
102(2)(C)(iv) to mean that ‘‘[t]he
relationship between local short-term
uses of man’s environment and the
maintenance and enhancement of longterm productivity . . . requires the
agency to assess the action for
cumulative and long-term effects from
the perspective that each generation is
trustee of the environment for
succeeding generations.’’ 32 This
interpretation is reflected in the 1971
final guidelines 33 and the 1978 NEPA
Regulations.34 Decades of agency
practice and CEQ guidance affirm the
interpretation that NEPA requires
analysis of cumulative effects.35 For
example, in 1997 CEQ noted that
cumulative effects analysis is ‘‘critical’’
for the purposes of evaluating project
29 35 FR 7390, 7391 (May 12, 1970) (emphasis
added).
30 Id.
31 Id.
32 Id. at 7392 (emphasis added).
33 36 FR 7724 (Apr. 23, 1971).
34 See 43 FR 55978 (Nov. 23, 1978).
35 See, e.g., CEQ, Considering Cumulative Effects
Under the National Environmental Policy Act
(1997), https://ceq.doe.gov/publications/
cumulative_effects.html; U.S. EPA, EPA 315–R–00–
002, Consideration of Cumulative Impacts in EPA
Review of NEPA Documents 1 (1999) (‘‘Because
federal projects cause or are affected by cumulative
impacts, this type of impact must be assessed in
documents prepared under NEPA.’’).
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alternatives and developing appropriate
mitigation strategies.36
CEQ’s proposal to reinstate the
definition of ‘‘cumulative impacts’’
aligns with longstanding legal precedent
interpreting NEPA to require agencies to
consider cumulative effects. Even before
CEQ issued regulations on cumulative
effects, the U.S. Supreme Court had
interpreted NEPA to include them. In
1976, the Court held that NEPA requires
consideration of cumulative effects
‘‘when several proposals . . . that will
have cumulative or synergistic
environmental impact upon a region are
pending concurrently before an agency,
their environmental consequences must
be considered together.’’ Kleppe v.
Sierra Club, 427 U.S. 390, 410 (1976)
(emphasis added).
Numerous commenters on the
proposed 2020 Rule raised concerns that
the 2020 Rule could be interpreted to
eliminate consideration of cumulative
effects and eliminating consideration of
cumulative effects would undermine
NEPA’s purpose and environmental
protection goals, and could interfere
with the necessary analysis of a
proposed action’s impacts. Other
commenters expressed views that
indirect and cumulative effects often
disproportionately affect Tribes,
minority, and low-income populations,
and excluding the details of such effects
from NEPA analyses could lead agency
decision makers to unknowingly make
decisions that negatively impact Tribes
or communities with environmental
justice concerns. Some commenters who
favored striking the requirement to
analyze cumulative effects expressed
views that the consideration of
cumulative impacts could be redundant
and that removal of cumulative effects
would reduce the time it takes to
complete the NEPA process. Other
commenters were neutral on the change
but expressed views that the proposed
change would be controversial and
could lead to potential litigation or
delays. The 2020 Rule eliminated the
‘‘cumulative effects’’ language, adopting
the view that the analysis of cumulative
effects was too broad, categorizing and
determining the scope of cumulative
effects is difficult and can divert agency
resources from the most significant
effects, and the analysis of cumulative
effects could require agency attention to
information that is irrelevant or
inconsequential, and did not lead to
informed decision making.
CEQ considered these comments and
the rationale described in the 2020 Rule
when developing this proposal. CEQ has
changed its view and does not consider
36 CEQ,
supra note 35, at v.
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the term cumulative effects to be too
broadly defined in the 1978 NEPA
Regulations or too difficult for agencies
to meaningfully implement. As
explained earlier in this section, CEQ’s
own prior guidelines and guidance,
along with decades of agency practice
and longstanding legal precedent have
interpreted NEPA to require agencies to
consider cumulative effects. While the
2020 Rule found that cumulative effects
was previously too broadly defined, the
removal of ‘‘cumulative effects’’ created
an even less clear definition of effects,
resulting in more confusion and
uncertainty about what type of effects
analysis is necessary. Rather than
diverting agency resources or focusing
on effects that are irrelevant or
inconsequential, as the 2020 Rule stated
with respect to cumulative effects
analysis, CEQ considers analysis of
reasonably foreseeable cumulative
effects to be an important part of NEPA
analysis, helping the public and
decision makers understand the full
scope of potential impacts from a
proposed action. Reasonably foreseeable
cumulative effects are not irrelevant or
inconsequential; for example, aggregate
air and water pollution and habitat
impacts affect long-term environmental
conditions, wildlife, and communities—
including in regions already
overburdened by pollution. Analyzing
reasonably foreseeable cumulative
effects is consistent with NEPA’s text
and purpose and better informs decision
makers about important aspects of
proposed actions and their alternatives.
Further, CEQ is not aware of any
evidence supporting the claim that
evaluation of cumulative effects
necessarily leads to longer timelines,
especially given the long history of
agency and practitioner experience with
this type of analysis as well as modern
techniques that leverage science and
technology to make reviews
comprehensive yet efficient. And clarity
on analyzing reasonably foreseeable
cumulative effects, as proposed, would
outweigh the speculative potential for
shorter NEPA documents or timeframes.
CEQ shares the view that
environmental reviews should be
efficient and effective and will continue
to evaluate the NEPA process for
opportunities to improve timeliness
consistent with NEPA’s purposes.
However, CEQ disagrees that requiring
analysis of reasonably foreseeable
cumulative effects causes unacceptably
long NEPA processes. Further, by
deleting the definition of cumulative
effects, the 2020 Rule did not prohibit
agencies from evaluating reasonably
foreseeable cumulative effects and
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therefore, it was not certain to result in
faster and less burdensome NEPA
analyses. Rather, in affirmatively
repealing the defined term from the
regulations, the 2020 Rule has caused
confusion and cast doubt as to whether
agencies can and should continue to do
this analysis. Finally, consideration of
cumulative effects is important in order
to fully inform agency decision makers
before actions are taken, and effects
analysis remains bound by the notion of
reasonable foreseeability. CEQ invites
comment on this proposed change.
3. Removing Limitations on Effects
Analysis
In proposing to restore the definition
of ‘‘effects’’ from the 1978 NEPA
Regulations, CEQ would remove
changes made in the 2020 Rule stating
that effects are those ‘‘that are
reasonably foreseeable and have a
reasonably close causal relationship to
the proposed action or alternatives.’’ 40
CFR 1508.1(g). CEQ also proposes to
remove and replace § 1508.1(g)(2),
which states that ‘‘a ‘but for’ causal
relationship is insufficient to make an
agency responsible for a particular effect
under NEPA;’’ agencies generally
should not consider effects that are
remote in time, geographically remote,
or the product of a lengthy causal chain;
and agencies should not consider effects
that the agency has no ability to prevent
due to its limited statutory authority.
Finally, the proposed rule would
remove as superfluous and replace
§ 1508.1(g)(3), which states that ‘‘[a]n
agency’s analysis of effects shall be
consistent with this paragraph.’’ This
phrase seeks to enforce the limitations
added to the ‘‘effects’’ definition in the
2020 Rule, which would be unnecessary
if the limitations are removed.
The definition of ‘‘effects’’ in the 1978
NEPA Regulations gave agencies the
discretion to identify the reasonably
foreseeable effects of a proposed action
and its alternatives in light of NEPA’s
goals. It is CEQ’s view that this
approach provides for more sound
decision making, including decisions
informed by science, and a more
knowledgeable and engaged public than
the definition of ‘‘effects’’ in the 2020
NEPA Regulations. Whether an effect is
reasonably foreseeable is a contextspecific inquiry that Federal agencies
have engaged in for more than 40 years.
Agencies have made these
determinations guided by agency
procedures and practice, evolving
scientific understanding about natural
systems and environmental outcomes,
and court decisions.
The current definition of ‘‘effects’’ has
internal inconsistencies, which make it
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confusing to apply. The introductory
paragraph of 40 CFR 1508.1(g) states
that effects ‘‘may include’’ those that are
later in time and farther removed in
distance, but paragraph (g)(2) states that
effects ‘‘should generally not be
considered if they are remote in time,
geographically remote, or the product of
a lengthy causal chain.’’ This creates
confusion as to whether agencies can or
should consider these types of effects,
potentially leading to inconsistent
application of NEPA, public confusion
or controversy, and enhanced risk of
litigation and concomitant delays in the
NEPA process.
Removing the language from
§ 1508.1(g)(2) limiting the consideration
of temporally or geographically removed
environmental effects and effects that
are a product of a lengthy causal chain
would better align with the statutory
text, which does not include any of
these qualifiers and instead directs
agencies to produce a detailed statement
on the ‘‘environmental impact of [a]
proposed action,’’ ‘‘any adverse
environmental effects which cannot be
avoided,’’ and ‘‘the relationship
between local short-term uses of man’s
environment and the maintenance and
enhancement of long-term
productivity.’’ 42 U.S.C. 4332(2)(C)
(emphasis added). Many consequential
reasonably foreseeable environmental
effects, such as toxic releases into air or
water and greenhouse gas emissions that
contribute to climate change, often
occur remote in time or place from the
original action or are a product of a
causal chain. For instance, when
considering a potential Federal action
that would permit fossil fuel extraction,
it is reasonably foreseeable that the
fossil fuel will be extracted, transported,
and ultimately combusted to create
energy, all of which cause air pollution
that can have adverse public health and
environmental effects. Thus, the 2020
Rule’s limiting language could cause
Federal agencies to omit critical
categories of effects from analysis and
disclosure, frustrating NEPA’s core
purpose and Congressional intent.
Similarly, the statement that ‘‘a ‘but for’
causal relationship is insufficient to
make an agency responsible for a
particular effect under NEPA’’ added a
confusing new standard to apply that
could cause agencies to omit reasonably
foreseeable effects in NEPA reviews,
contrary to NEPA’s statutory purpose to
promote informed decision making.
CEQ disagrees that this language would
help agencies better understand what
effects they need to analyze and discuss,
helping to reduce delays and paperwork
with unnecessary analyses. Rather, the
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new language poses new
implementation and interpretation
challenges that could, in turn, create
delays and conflict. The definition of
‘‘effects’’ that CEQ proposes to restore
does not require that agencies disclose
every possible effect; rather, the
standard under NEPA has long been
whether effects are reasonably
foreseeable.
Similarly, the direction in the 2020
Rule to exclude ‘‘effects that the agency
has no ability to prevent due to its
limited statutory authority or would
occur regardless of the proposed action’’
unduly limits agency discretion. CEQ
proposes to remove this limitation
because agencies may conclude that
analyzing and disclosing such effects
will provide important information to
decision makers and the public. For
example, agencies may need to analyze
and disclose reasonably foreseeable
growth and development that will occur
if they authorize infrastructure projects
such as highway interchanges or
causeways, even if they do not have
general land use authority. See, e.g.,
Sierra Club v. Marsh, 769 F.2d 868 (1st
Cir. 1985); City of Davis v. Coleman, 521
F.2d 661 (9th Cir. 1975). Reasonably
foreseeable environmental effects do not
fall neatly within discrete agency
jurisdictional or regulatory confines;
rather, agencies make decisions about
reviews and authorizations that have
real world impacts, including effects
like water or air pollution that are
measurable and ascertainable yet may
have physical effects outside an
agency’s statutory purview.
CEQ’s proposal to restore the
definition of ‘‘effects’’ from the 1978
NEPA Regulations is consistent with the
U.S. Supreme Court’s decision in
Department of Transportation v. Public
Citizen, 541 U.S. 752 (2004), which the
2020 Rule identified as the authority for
the revised definition. In this case, the
Supreme Court explained that NEPA
and the 1978 NEPA Regulations are
governed by a ‘‘rule of reason.’’ Id. at
767. The Federal Motor Carrier Safety
Administration (FMCSA) was required
to issue certification and safety
regulations for Mexican trucks entering
the United States, id. at 760, and had no
ability to deny certification if trucks met
the requirements, id. at 758–59. The
Court held that, based on FMCSA’s
limited statutory authority, it was not
arbitrary and capricious for FMCSA to
exclude from its NEPA analysis the
effects of trucks entering the United
States that would result from the
President’s commitment to lift a
moratorium on Mexican truck entry
once FMCSA issued the regulations. See
id. at 770. By affirming FMCSA’s
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implementation of the 1978 NEPA
Regulations under a substantial
deference standard of review, the Court
did not hold that agencies may not
consider a broader range of effects in
other circumstances, as the 2020 Rule
suggests. Instead, the Court held that
FMCSA’s effects analysis in the specific
factual and legal context of its proposed
action was reasonable and not arbitrary
and capricious.
It is CEQ’s view that establishing a
regulatory limitation on the scope of
NEPA analysis drawn from Public
Citizen does not lead to improved
agency decision making, enhanced
public participation, or a betterinformed public. Rather, as CEQ has
heard from NEPA practitioners and
outside stakeholders, these limitations
undermine sound decision making by
creating confusion with respect to NEPA
implementation, departing from CEQ’s
consistent interpretation of NEPA prior
to 2020, breaking from science-based
decisions, and potentially limiting
relevant NEPA analysis with negative
repercussions in critical areas such as
climate change and environmental
justice. NEPA has long been understood
to require only analysis of effects that
are ‘‘reasonably foreseeable,’’ but the
limitations added by the 2020 NEPA
Regulations could undermine
longstanding agency discretion to
determine the appropriate scope of
analysis or result in agencies making
less informed decisions contrary to
NEPA’s stated goals.
Numerous commenters addressed
these limitations during the rulemaking
for the 2020 NEPA Regulations. Many
opposed the limitations, expressing
views that requiring a close causal
relationship could be confusing to
implement and could inappropriately
constrain consideration of reasonably
foreseeable impacts of a proposed action
on the human environment,
undermining the purpose of NEPA.
Those opposed also expressed views
that the new limitations could be used
to justify the exclusion of effects of a
proposed action including air or water
pollution affecting communities or
wildlife located outside the immediate
vicinity of the proposed action that are
nonetheless reasonably foreseeable. For
example, the limitations could cause
agencies to exclude consideration of the
effects to a community that relies on a
water source downstream from a project
area that is indirectly impacted by the
proposed action’s water quality effects.
Some commenters also stated that the
term ‘‘remote’’ is too vague and relative.
Those who supported the limitations
expressed views that the changes were
in keeping with the judicial precedent
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cited in the proposed rule and could
help cut the length and time of NEPA
analysis by reducing burdens on Federal
agencies; however, commenters did not
provide evidence demonstrating how
inclusion of these limitations would
help cut the length and time of NEPA
analysis.
Upon reconsidering the position taken
in the 2020 NEPA Regulations, CEQ
proposes to remove these provisions in
order to improve clarity on the types of
effects that agencies must consider,
eliminate restrictions that may conflict
with scientific understanding of
environmental outcomes, and better
inform decision makers and the public
about the full suite of reasonably
foreseeable effects of a proposed action
and its alternatives. CEQ disagrees that
the provisions added in 2020 will
reduce burdens on Federal agencies,
given that Federal agencies have long
operated under the definition of
‘‘effects’’ as defined in the 1978 NEPA
Regulations and may have existing
NEPA procedures aligned with the 1978
definitions. The 2020 Rule indicated
that the added provisions would help
agencies better understand what effects
need to be analyzed and discussed and
would reduce delays and unnecessary
analysis. However, agencies have
indicated confusion about how to apply
the ‘‘close causation’’ and ‘‘but for’’
limitations in the current definition of
effects and are concerned that the 2020
Rule may preclude them from
considering the same range of effects as
the 1978 Regulations. With the
proposed changes in this rulemaking,
CEQ seeks to reduce confusion and
provide clarity on the effects that
agencies must consider and does not
agree that removing this language will
directly result in delays. Additionally,
providing clarity to agencies and the
public on what is required provides
benefits to the environmental review
process that outweigh any uncertain
potential for shorter timeframes. CEQ
requests comment on these changes.
CEQ also invites comments on whether
CEQ should provide in a Phase 2
rulemaking more specificity about the
manner in which agencies should
analyze certain categories of effects.
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IV. Rulemaking Analyses and Notices
A. Executive Order 12866, Regulatory
Planning and Review
E.O. 12866 provides that the Office of
Information and Regulatory Affairs will
review all significant rules.37 E.O. 13563
reaffirms the principles of E.O. 12866,
calling for improvements in the Federal
37 58
FR 51735 (Oct. 4, 1993).
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Government’s regulatory system to
promote predictability, reduce
uncertainty, and use the best, most
innovative, and least burdensome tools
for achieving regulatory objectives.38
This proposed rule is a significant
regulatory action that CEQ submitted to
OMB for review. The proposed changes
would remove uncertainty created by
the 2020 Rule to benefit agencies and
the public. Removing constraints on
agency NEPA analyses could result in
longer review timeframes, but these
changes do not obligate agencies to
undertake longer, more complicated
analyzes. If agencies choose to consider
additional alternatives and conduct
more robust analyses, these analyses
should improve societal outcomes by
improving agency decision making.
Since individual cases will vary, the
magnitude of potential costs and
benefits resulting from these proposed
changes are difficult to anticipate.
Therefore, CEQ has not quantified them.
CEQ invites public comment on those
expected impacts and the role they
should play in informing the final rule.
B. Regulatory Flexibility Act and
Executive Order 13272, Proper
Consideration of Small Entities in
Agency Rulemaking
The Regulatory Flexibility Act (RFA),
as amended, 5 U.S.C. 601 et seq., and
E.O. 13272 39 require agencies to assess
the impacts of proposed and final rules
on small entities. Under the RFA, small
entities include small businesses, small
organizations, and small governmental
jurisdictions. An agency must prepare
an Initial Regulatory Flexibility
Analysis (IRFA) unless it determines
and certifies that a proposed rule, if
promulgated, would not have a
significant economic impact on a
substantial number of small entities. 5
U.S.C. 605(b). The proposed rule would
not directly regulate small entities.
Rather, the proposed rule would apply
to Federal agencies and set forth the
process for their compliance with
NEPA. Accordingly, CEQ hereby
certifies that the proposed rule, if
promulgated, would not have a
significant economic impact on a
substantial number of small entities.
C. National Environmental Policy Act
Under the CEQ regulations, major
Federal actions may include regulations.
When CEQ issued regulations in 1978,
it prepared a ‘‘special environmental
assessment’’ for illustrative purposes
pursuant to E.O. 11991.40 The NPRM for
the 1978 rule stated ‘‘the impacts of
procedural regulations of this kind are
not susceptible to detailed analysis
beyond that set out in the
assessment.’’ 41 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.42 The
special environmental assessment
issued in 1986 made a finding of no
significant impact, and there was no
finding made for the assessment of the
1978 final rule.
CEQ continues to take the position
that a NEPA analysis is not required for
establishing or updating NEPA
procedures. See Heartwood v. U.S.
Forest Serv., 230 F.3d 947, 954–55 (7th
Cir. 2000) (finding that neither NEPA or
the CEQ regulations required the Forest
Service to conduct an environmental
assessment or an EIS prior to the
promulgation of its procedures creating
a categorical exclusion). Nevertheless,
based on past practice, CEQ has
developed a special environmental
assessment and has posted it in the
docket. CEQ invites comments on the
special environmental assessment.
D. Executive Order 13132, Federalism
E.O. 13132 requires agencies to
develop an accountable process to
ensure meaningful and timely input by
state and local officials in the
development of regulatory policies that
have federalism implications.43 Policies
that have federalism implications
include regulations that have substantial
direct effects on the states, on the
relationship between the Federal
Government and the states, or on the
distribution of power and
responsibilities among the various
levels of government. CEQ does not
anticipate that this proposed rule has
federalism implications because it
applies to Federal agencies, not states.
E. Executive Order 13175, Consultation
and Coordination With Indian Tribal
Governments
E.O. 13175 requires agencies to have
a process to ensure meaningful and
timely input by Tribal officials in the
development of policies that have Tribal
implications.44 Such policies include
regulations that have substantial direct
effects on one or more Indian Tribes, on
the relationship between the Federal
41 Id.
38 76
FR 3821 (Jan. 21, 2011).
39 67 FR 53461 (Aug. 16, 2002).
40 43 FR 25230 (June 9, 1978).
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42 51
FR 15618, 15619 (Apr. 25, 1986).
FR 43255 (Aug. 10, 1999).
44 65 FR 67249 (Nov. 9, 2000).
43 64
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Government and Indian Tribes, or on
the distribution of power and
responsibilities between the Federal
Government and Indian Tribes. CEQ has
assessed the impact of this proposed
rule on Indian Tribal governments and
has determined preliminarily that the
proposed rule would not significantly or
uniquely affect these communities but
seeks comment on this preliminary
determination. However, CEQ plans to
engage in government-to-government
consultation with federally recognized
Tribes and Alaska Native Corporations
on its NEPA regulations generally.
F. Executive Order 12898, Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
E.O. 12898 requires agencies to make
achieving environmental justice part of
their missions by identifying and
addressing, as appropriate,
disproportionately high and adverse
human health or environmental effects
of their programs, policies, and
activities on minority populations and
low-income populations.45 CEQ has
analyzed this proposed rule and
preliminarily 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 consideration of
environmental justice effects typically
occurs. CEQ invites comment on this
preliminary determination.
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G. Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
Agencies must prepare a Statement of
Energy Effects for significant energy
actions under E.O. 13211.46 CEQ has
preliminarily determined that this
rulemaking is not a ‘‘significant energy
action’’ because it is not likely to have
a significant adverse effect on the
supply, distribution, or use of energy.
H. Executive Order 12988, Civil Justice
Reform
Under section 3(a) of E.O. 12988,47
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
FR 7629 (Feb. 16, 1994).
FR 28355 (May 22, 2001).
47 61 FR 4729 (Feb. 7, 1996).
46 66
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I. Unfunded Mandate Reform Act
Section 201 of the Unfunded
Mandates Reform Act of 1995, 2 U.S.C.
1531, requires Federal agencies to assess
the effects of their regulatory actions on
state, local, and Tribal governments, and
the private sector to the extent that such
regulations incorporate requirements
specifically set forth in law. Before
promulgating a rule that may result in
the expenditure by a state, Tribal, or
local government, in the aggregate, or by
the private sector of $100 million,
adjusted annually for inflation, in any 1
year, an agency must prepare a written
statement that assesses the effects on
state, Tribal, and local governments and
the private sector. 2 U.S.C. 1532. This
proposed rule would apply to Federal
agencies and would not result in
expenditures of $100 million or more
for state, local, and Tribal governments,
in the aggregate, or the private sector in
any 1 year. This proposed action also
would not impose any enforceable duty,
contain any unfunded mandate, or
otherwise have any effect on small
governments subject to the requirements
of 2 U.S.C. 1531–1538.
J. Paperwork Reduction Act
This proposed rule would not impose
any new information collection burden
that would require additional review or
approval by OMB under the Paperwork
Reduction Act (PRA), 44 U.S.C. 3501 et
seq.
List of Subjects in 40 CFR Parts 1502,
1507, and 1508
Administrative practice and
procedure, Environmental impact
statements, Environmental protection,
Natural resources.
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PART 1502—ENVIRONMENTAL
IMPACT STATEMENT
1. Revise the authority citation for part
1502 to read as follows:
■
Frm 00022
Fmt 4702
■
2. Revise § 1502.13 to read as follows:
§ 1502.13
Purpose and need.
The statement shall briefly specify the
underlying purpose and need to which
the agency is responding in proposing
the alternatives including the proposed
action.
PART 1507—AGENCY COMPLIANCE
3. Revise the authority citation for part
1507 to read as follows:
■
Authority: 42 U.S.C. 4321–4347; 42 U.S.C.
4371–4375; 42 U.S.C. 7609; and E.O. 11514,
35 FR 4247, 3 CFR, 1966–1970, Comp., p.
902, as amended by E.O. 11991, 42 FR 26967,
3 CFR, 1977 Comp., p. 123.
4. Amend § 1507.3 by revising
paragraphs (a) and the introductory text
of paragraph (b) to read as follows:
■
§ 1507.3
Agency NEPA procedures.
(a) The Council has determined that
the categorical exclusions contained in
agency NEPA procedures as of
September 14, 2020, are consistent with
this subchapter.
(b) No more than 36 months after
September 14, 2020, or 9 months after
the establishment of an agency,
whichever comes later, each agency
shall develop or revise, as necessary,
proposed procedures to implement the
regulations in this subchapter. When the
agency is a department, it may be
efficient for major subunits (with the
consent of the department) to adopt
their own procedures.
*
*
*
*
*
PART 1508—DEFINITIONS
5. Revise the authority citation for part
1508 to read as follows:
■
Authority: 42 U.S.C. 4321–4347; 42 U.S.C.
4371–4375; 42 U.S.C. 7609; and E.O. 11514,
35 FR 4247, 3 CFR, 1966–1970, Comp., p.
902, as amended by E.O. 11991, 42 FR 26967,
3 CFR, 1977 Comp., p. 123.
6. Amend § 1508.1 by revising
paragraphs (g) and (z) to read as follows:
For the reasons discussed in the
preamble, the Council on
Environmental Quality proposes to
amend parts 1502, 1507, and 1508 in
title 40 of the Code of Federal
Regulations as follows:
PO 00000
902, as amended by E.O. 11991, 42 FR 26967,
3 CFR, 1977 Comp., p. 123.
■
Brenda Mallory,
Chair.
Authority: 42 U.S.C. 4321–4347; 42 U.S.C.
4371–4375; 42 U.S.C. 7609; and E.O. 11514,
35 FR 4247, 3 CFR, 1966–1970, Comp., p.
45 59
VerDate Sep<11>2014
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
proposed rule complies with the
requirements of E.O. 12988.
Sfmt 4702
§ 1508.1
Definitions.
*
*
*
*
*
(g) Effects or impacts means changes
to the human environment from the
proposed action or alternatives and
include the following:
(1) Direct effects, which are caused by
the action and occur at the same time
and place.
(2) Indirect effects, which are caused
by the action and are later in time or
farther removed in distance, but are still
reasonably foreseeable. Indirect effects
may include growth inducing effects
and other effects related to induced
E:\FR\FM\07OCP1.SGM
07OCP1
Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Proposed Rules
changes in the pattern of land use,
population density or growth rate, and
related effects on air and water and
other natural systems, including
ecosystems.
(3) Cumulative effects, which are
effects on the environment that result
from the incremental effects of the
action when added to the effects of
other past, present, and reasonably
foreseeable actions regardless of what
agency (Federal or non-Federal) or
person undertakes such other actions.
Cumulative effects can result from
individually minor but collectively
significant actions taking place over a
period of time.
(4) Effects include ecological (such as
the effects on natural resources and on
the components, structures, and
functioning of affected ecosystems),
aesthetic, historic, cultural, economic,
social, or health, whether direct,
indirect, or cumulative. Effects may also
include those resulting from actions
which may have both beneficial and
detrimental effects, even if on balance
the agency believes that the effects will
be beneficial.
*
*
*
*
*
(z) Reasonable alternatives means a
reasonable range of alternatives that are
technically and economically feasible,
and meet the purpose and need for the
proposed action.
*
*
*
*
*
[FR Doc. 2021–21867 Filed 10–6–21; 8:45 am]
BILLING CODE 3325–F2–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 2, 19, and 52
[FAR Case 2020–013; Docket No. FAR–
2021–0009, Sequence No. 1]
I. Background
RIN 9000–AO17
Federal Acquisition Regulation:
Certification of Women-Owned Small
Businesses
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Proposed rule.
lotter on DSK11XQN23PROD with PROPOSALS1
AGENCY:
DoD, GSA, and NASA are
proposing to amend the Federal
Acquisition Regulation (FAR) to
implement the final rule published by
the Small Business Administration
SUMMARY:
VerDate Sep<11>2014
16:52 Oct 06, 2021
Jkt 256001
implementing a section of the Carl
Levin and Howard P. ‘‘Buck’’ McKeon
National Defense Authorization Act for
Fiscal Year (FY) 2015.
DATES: Interested parties should submit
comments to the Regulatory Secretariat
Division at one of the addresses shown
below on or before December 6, 2021 to
be considered in the formulation of a
final rule.
ADDRESSES: Submit comments in
response to FAR Case 2020–013 to the
Federal eRulemaking portal at https://
www.regulations.gov by searching for
‘‘FAR Case 2020–013’’. Select the link
‘‘Comment Now’’ that corresponds with
‘‘FAR Case 2020–013’’. Follow the
instructions provided on the ‘‘Comment
Now’’ screen. Please include your name,
company name (if any), and ‘‘FAR Case
2020–013’’ on your attached document.
If your comment cannot be submitted
using https://www.regulations.gov, call
or email the points of contact in the FOR
FURTHER INFORMATION CONTACT section of
this document for alternate instructions.
Instructions: Please submit comments
only and cite ‘‘FAR Case 2020–013’’ in
all correspondence related to this case.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided. To confirm
receipt of your comment(s), please
check https://www.regulations.gov,
approximately two to three days after
submission to verify posting.
FOR FURTHER INFORMATION CONTACT: Ms.
Malissa Jones, Procurement Analyst, at
703–605–2815, or by email at
Malissa.jones@gsa.gov, for clarification
of content. For information pertaining to
status or publication schedules, contact
the Regulatory Secretariat Division at
202–501–4755 or GSARegSec@gsa.gov.
Please cite FAR Case 2020–013.
SUPPLEMENTARY INFORMATION:
DoD, GSA, and NASA are proposing
to revise the FAR to implement section
825(a)(1) of the Carl Levin and Howard
P. ‘‘Buck’’ McKeon National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2015 (15 U.S.C. 637(m)),
Public Law 113–291. Section 825
requires women-owned small business
(WOSB) concerns and economically
disadvantaged women-owned small
business (EDWOSB) concerns to be
certified by the Small Business
Administration (SBA), a Federal agency,
a State government, or a national
certifying entity approved by SBA in the
WOSB Program to be eligible for setaside or sole-source awards.
PO 00000
Frm 00023
Fmt 4702
Sfmt 4702
55769
SBA issued a final rule at 85 FR
27650, May 11, 2020, to implement
section 825(a)(1). In their final rule, SBA
amended 13 CFR part 127 requiring
WOSB and EDWOSB concerns be
certified by a Federal agency, a State
government, the SBA, or a national
certifying entity approved by SBA in
order to be eligible under the WOSB
Program for set-aside or sole-source
awards.
II. Discussion and Analysis
The proposed changes to the FAR and
the rationale for the proposed changes
are summarized in the following
paragraphs.
Changes are proposed to FAR 2.101,
Definitions, to update the definition of
Economically disadvantaged womenowned small business concern
(EDWOSB) and Women-owned small
business (WOSB) concern eligible under
the WOSB Program to add that the
concern is certified by SBA or an
approved third-party certifier in
accordance with 13 CFR 127.300.
Changes are proposed to FAR
19.308(d), Protesting a firm’s status as
an EDWOSB concern or WOSB concern
eligible under the WOSB Program, to
require a protest to be submitted by
email to SBA at wosbprotest@sba.gov.
FAR 19.308(d) is also amended to
propose deletion of text requiring SBA
to consider protests by contracting
officers when the apparent successful
offeror has failed to provide all of the
required documents, as set forth in FAR
19.1503(c). Changes are also proposed to
FAR 19.308 to add the requirement that
the protest present evidence that the
concern is not at least 51 percent owned
and controlled by one or more
economically disadvantaged women
‘‘who are United States citizens’’, based
on the requirements of 13 CFR part 127.
The addition of ‘‘United States citizens’’
aligns the FAR text with SBA’s
regulations.
FAR 19.1501, Definition, is reserved
to delete the definition of WOSB
Program Repository since the WOSB
Program Repository is no longer the
source for WOSB program eligibility as
of October 15, 2020.
FAR 19.1503, Status, is amended to
add the requirement for the contracting
officer to verify the designation as a
certified WOSB or EDWOSB small
business in the Dynamic Small Business
Search (DSBS) at https://web.sba.gov/
pro-net/search/dsp_dsbs.cfm. The
designation will also appear in the
System for Award Management (SAM)
after issuance of the final rule.
Paragraphs (c) and (d) at FAR 19.1503,
are proposed to be deleted. Paragraphs
(e) and (f) at FAR 19.1503 are
E:\FR\FM\07OCP1.SGM
07OCP1
]]>Agencies
[Federal Register Volume 86, Number 192 (Thursday, October 7, 2021)]
[Proposed Rules]
[Pages 55757-55769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21867]
=======================================================================
-----------------------------------------------------------------------
COUNCIL ON ENVIRONMENTAL QUALITY
40 CFR Parts 1502, 1507, and 1508
[CEQ-2021-0002]
RIN 0331-AA05
National Environmental Policy Act Implementing Regulations
Revisions
AGENCY: Council on Environmental Quality.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Council on Environmental Quality (CEQ) is proposing to
modify certain aspects of its regulations for implementing the
procedural provisions of the National Environmental Policy Act (NEPA)
to generally restore regulatory provisions that were in effect for
decades before being modified in 2020. CEQ proposes these changes in
order to better align the provisions with CEQ's extensive experience
implementing NEPA, in particular its perspective on how NEPA can best
inform agency decision making, as well as longstanding Federal agency
experience and practice, NEPA's statutory text and purpose, including
making decisions informed by science, and case law interpreting NEPA's
requirements. The proposed rule would restore provisions addressing the
purpose and need of a proposed action, agency NEPA procedures for
implementing CEQ's NEPA regulations, and the definition of ``effects.''
CEQ invites comments on the proposed revisions.
DATES:
Comments: CEQ must receive comments by November 22, 2021.
Public meeting: CEQ will conduct two online public meetings for the
proposed rule on Tuesday, October 19, 2021, from 1 to 4 p.m. EDT, and
Thursday, October 21, 2021 from 5 to 8 p.m. EDT. To register for the
meetings, please visit CEQ's website at www.nepa.gov.
ADDRESSES: You may submit comments, identified by docket number CEQ-
2021-0002, by any of the following methods:
[ssquf] Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
[ssquf] Fax: 202-456-6546.
[ssquf] Mail: Council on Environmental Quality, 730 Jackson Place
NW, Washington, DC 20503.
Instructions: All submissions received must include the agency
name, ``Council on Environmental Quality,'' and docket number, CEQ-
2021-0002, for this rulemaking. All comments received will be posted
without change to https://www.regulations.gov, including any personal
information provided. Do not submit electronically any information you
consider to be private, Confidential Business Information (CBI), or
other information, the disclosure of which is restricted by statute.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Amy B. Coyle, Deputy General Counsel,
202-395-5750, [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On January 1, 1970, President Nixon signed into law the National
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq.
Congress enacted NEPA by a unanimous vote in the Senate and a nearly
unanimous vote in the House \1\ to declare a national policy to promote
environmental protection for present and future generations. NEPA was
established to ``encourage productive and enjoyable harmony'' between
humans and the environment; to promote efforts that will prevent or
eliminate damage to the environment and biosphere and stimulate the
health and welfare of people; and to enrich the understanding of the
ecological systems and natural resources important to the Nation. 42
U.S.C. 4321.
---------------------------------------------------------------------------
\1\ See Linda Luther, Cong. Rsch. Serv., RL33152, The National
Environmental Policy Act: Background and Implementation (2008),
https://crsreports.congress.gov/product/details?prodcode=RL33152.
---------------------------------------------------------------------------
To achieve these objectives, NEPA makes it the continuing policy of
the Federal Government to use all practicable means and measures to
create and maintain conditions under which humans and nature can exist
in productive harmony and fulfill the social, economic, and other
requirements of present and future
[[Page 55758]]
generations of Americans. 42 U.S.C. 4331. NEPA directs Federal agencies
to prepare ``detailed statements,'' referred to as environmental impact
statements (EISs), for ``major Federal actions significantly affecting
the quality of the human environment.'' 42 U.S.C. 4332(2)(C). NEPA
established the Council on Environmental Quality (CEQ) in the Executive
Office of the President, which advises the President on environmental
policy matters and oversees Federal agencies' implementation of NEPA.
42 U.S.C. 4342. In many respects, NEPA was a statute ahead of its time,
and it remains relevant and vital today, from its statements that
decisions be grounded in science to its recognition that sustainability
and a livable environment are fundamental to social and economic well-
being. See, e.g., 42 U.S.C. 4331, 4332(A).
In 1970, President Nixon issued Executive Order (E.O.) 11514,
Protection and Enhancement of Environmental Quality, which directed CEQ
to issue guidelines for implementation of section 102(2)(C) of NEPA.\2\
In response, CEQ issued interim guidelines in April 1970, and revised
the guidelines in 1971 and 1973.\3\ In 1977, President Carter issued
E.O. 11991, Relating to Protection and Enhancement of Environmental
Quality, amending E.O. 11514 and directing CEQ to issue regulations to
govern implementation of NEPA and requiring that Federal agencies
comply with those regulations.\4\ CEQ promulgated implementing
procedures in 1978 at 40 CFR parts 1500 through 1508.\5\ The
regulations, issued 8 years after NEPA's enactment, reflect CEQ's
interpretation of and expertise in NEPA, initial interpretations of the
courts, and Federal agency experience implementing NEPA. Consistent
with the requirement in 40 CFR 1507.3, Federal agencies, in turn, issue
and update their own implementing procedures to supplement CEQ's
procedures and integrate the NEPA process into the agencies' specific
programs and processes. Agencies consult with CEQ in the development of
these procedures to ensure that their agency-specific procedures are
consistent with CEQ's regulations. CEQ made technical amendments to the
1978 implementing regulations in 1979 \6\ and amended one provision in
1986,\7\ but it left the regulations largely unchanged for over 40
years (1978 NEPA Regulations). As a result, CEQ and Federal agencies
have extensive experience in implementing NEPA and the 1978
regulations, and a large body of agency practice and case law has
developed based on the CEQ NEPA regulations that remained in
substantially the same form from 1978 to 2020. The fundamental
principles of informed and science-based decision making, transparency,
and public engagement are reflected in both the NEPA statute and CEQ's
1978 NEPA Regulations, and it is those core principles that CEQ seeks
to advance in this proposed rule.
---------------------------------------------------------------------------
\2\ 35 FR 4247 (Mar. 7, 1970), sec. 3(h).
\3\ See 35 FR 7390 (May 12, 1970) (interim guidelines); 36 FR
7724 (Apr. 23, 1971) (final guidelines); 38 FR 10856 (May 2, 1973)
(proposed revisions to the guidelines); 38 FR 20550 (Aug. 1, 1973)
(revised guidelines).
\4\ 42 FR 26967 (May 25, 1977).
\5\ 43 FR 55978 (Nov. 23, 1978).
\6\ 44 FR 873 (Jan. 3, 1979).
\7\ 51 FR 15618 (Apr. 25, 1986) (amending 40 CFR 1502.22).
---------------------------------------------------------------------------
On August 15, 2017, President Trump issued E.O. 13807, Establishing
Discipline and Accountability in the Environmental Review and
Permitting Process for Infrastructure Projects,\8\ which, in part,
directed CEQ to establish and lead an interagency working group to
identify and propose changes to the NEPA regulations.\9\ In response,
on January 10, 2020, CEQ published a notice of proposed rulemaking
(NPRM) proposing broad revisions to the 1978 NEPA Regulations.\10\ A
wide range of stakeholders submitted more than 1.1 million comments on
the proposed rule,\11\ including state and local governments, Tribes,
environmental advocacy organizations, professional and industry
associations, and other advocacy or non-profit organizations. Many
commenters provided detailed feedback on the legality, policy wisdom,
and potential consequences of the proposed amendments. In keeping with
the proposed rule, the final rule promulgated on July 16, 2020, made
wholesale revisions to the regulations and took effect on September 14,
2020 (2020 NEPA Regulations or 2020 Rule).\12\
---------------------------------------------------------------------------
\8\ 82 FR 40463 (Aug. 24, 2017).
\9\ Id., sec. 5(e)(iii).
\10\ 85 FR 1684 (Jan. 10, 2020).
\11\ See Docket No. CEQ-2019-0003, https://www.regulations.gov/document/CEQ-2019-0003-0001.
\12\ 85 FR 43304 (July 16, 2020).
---------------------------------------------------------------------------
In the months that followed the issuance of the 2020 NEPA
Regulations, five lawsuits were filed challenging the 2020 Rule.\13\
These cases challenge the 2020 NEPA Regulations on a variety of
grounds, including under the Administrative Procedure Act (APA), NEPA,
and the Endangered Species Act, contending that the rule exceeded CEQ's
authority and that the related rulemaking process was procedurally and
substantively defective. In response to CEQ and joint motions, the
district courts have issued temporary stays in each of these cases,
except for Wild Virginia v. Council on Environmental Quality, which the
district court dismissed without prejudice on June 21, 2021,\14\ and is
currently on appeal to the U.S. Court of Appeals for the Fourth
Circuit.
---------------------------------------------------------------------------
\13\ Wild Va. v. Council on Env't Quality, No. 3:20cv45 (W.D.
Va. 2020); Envtl. Justice Health All. v. Council on Env't Quality,
No. 1:20cv06143 (S.D.N.Y. 2020); Alaska Cmty. Action on Toxics v.
Council on Env't Quality, No. 3:20cv5199 (N.D. Cal. 2020);
California v. Council on Env't Quality, No. 3:20cv06057 (N.D. Cal.
2020); Iowa Citizens for Cmty. Improvement v. Council on Env't
Quality, No. 1:20cv02715 (D.D.C. 2020). Additionally, in The Clinch
Coalition v. U.S. Forest Service, No. 2:21cv00003 (W.D. Va. 2020),
plaintiffs challenge the U.S. Forest Service's NEPA implementing
procedures, which established new categorical exclusions, and,
relatedly, the 2020 Rule's provisions on categorical exclusions.
\14\ Wild Va. v. Council on Env't Quality, No. 3:20cv45, 2021 WL
2521561 (W.D. Va. June 21, 2021).
---------------------------------------------------------------------------
On January 20, 2021, President Biden issued E.O. 13990, Protecting
Public Health and the Environment and Restoring Science to Tackle the
Climate Crisis.\15\ Section 1 of E.O. 13990 establishes an
Administration policy to listen to the science; improve public health
and protect our environment; ensure access to clean air and water;
limit exposure to dangerous chemicals and pesticides; hold polluters
accountable, including those who disproportionately harm communities of
color and low-income communities; reduce greenhouse gas emissions;
bolster resilience to the impacts of climate change; restore and expand
our national treasures and monuments; and prioritize both environmental
justice and the creation of well-paying union jobs necessary to deliver
these goals.\16\
---------------------------------------------------------------------------
\15\ 86 FR 7037 (Jan. 25, 2021).
\16\ Id., sec. 1.
---------------------------------------------------------------------------
Section 2 of the E.O. calls for Federal agencies to review existing
regulations issued between January 20, 2017, and January 20, 2021, for
consistency with the policy articulated in the E.O. and to take
appropriate action. Section 7(b) revokes a number of E.O.s, including
E.O. 13807, and section 7(f) directs agencies to promptly take steps to
rescind any rules or regulations implementing or enforcing any of the
revoked E.O.s. An accompanying White House fact sheet, published on
January
[[Page 55759]]
20, 2021, specifically directs CEQ to review the 2020 NEPA Regulations
for consistency with E.O. 13990's objectives.\17\
---------------------------------------------------------------------------
\17\ White House Fact Sheet: List of Agency Actions for Review
(Jan. 20, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/.
---------------------------------------------------------------------------
On January 27, 2021, the President signed E.O. 14008, Tackling the
Climate Crisis at Home and Abroad, which establishes a government-wide
approach to the climate crisis by reducing greenhouse gas emissions and
an Administration policy to increase climate resilience, transition to
a clean-energy economy, address environmental justice and invest in
disadvantaged communities, and spur well-paying union jobs and economic
growth.\18\ E.O. 14008 also requires the Chair of CEQ and the Director
of the Office of Management and Budget (OMB) to ensure that Federal
infrastructure investments reduce climate pollution and that Federal
permitting decisions consider the effects of greenhouse gas emissions
and climate change.\19\
---------------------------------------------------------------------------
\18\ 86 FR 7619 (Feb. 1, 2021).
\19\ Id., sec. 213(a).
---------------------------------------------------------------------------
II. CEQ's Approach to Revising the 2020 NEPA Regulations
Consistent with E.O. 13990 and E.O. 14008, CEQ is engaged in a
comprehensive review of the 2020 NEPA Regulations to ensure that they
provide for sound and efficient environmental review of Federal
actions, including those actions integral to tackling the climate
crisis, in a manner that enables meaningful public participation,
respects Tribal sovereignty, protects our Nation's resources, and
promotes better environmental and community outcomes. CEQ proposes
regulatory changes in this NPRM to enhance clarity on NEPA
implementation, to better effectuate NEPA's statutory requirements and
purposes, to ensure that Federal decisions are guided by science, to
better protect and enhance the quality of the human environment, and to
provide full and fair processes that inform the public about the
environmental effects of government actions and enable public
participation.
CEQ's review of the 2020 NEPA Regulations and the proposed
regulatory amendments are guided by CEQ's and Federal agencies'
extensive experience implementing NEPA for the last 50 years. As part
of its oversight role, CEQ reviews every agency's proposed new or
updated NEPA implementing procedures. As part of this iterative
process, CEQ engages with agencies to understand their specific
authorities and programs to ensure consideration of environmental
impacts is integrated into their decision-making processes.
Additionally, where necessary or appropriate, CEQ engages with agencies
on NEPA reviews for specific projects or project types. For example,
CEQ has convened interagency working groups to ensure efficient and
effective environmental reviews for transportation and broadband
projects. CEQ also has extensive experience providing written guidance
to Federal agencies on a wide range of NEPA-related issues, including
environmental justice, emergency response activities, climate change,
and more.\20\ And, CEQ meets regularly with external stakeholders to
understand their perspectives on the NEPA process. Finally, CEQ
coordinates with other Federal agencies and components of the White
House on a wide array of environmental issues that also arise in the
NEPA context, such as endangered species consultation or impacts to
Federal lands and waters from federally permitted activities.
---------------------------------------------------------------------------
\20\ See https://www.energy.gov/nepa/ceq-guidance-documents for
a list of current CEQ guidance documents.
---------------------------------------------------------------------------
It is CEQ's view that the 2020 NEPA Regulations may have the effect
of limiting the scope of NEPA analysis, with negative repercussions for
environmental protection and environmental quality, including in
critical areas such as climate change and environmental justice.
Portions of the 2020 NEPA Regulations also may not reflect NEPA's
statutory purposes to ``encourage productive and enjoyable harmony''
between humans and the environment, promote efforts that will prevent
or eliminate damage to the environment and biosphere, and enhance
public health and welfare. See 42 U.S.C. 4321. Some changes introduced
by the 2020 NEPA Regulations also may not support science-based
decision making or be compatible with the Administration's policies to
improve public health, protect the environment, prioritize
environmental justice, provide access to clean air and water, and
reduce greenhouse gas emissions that contribute to climate change.\21\
---------------------------------------------------------------------------
\21\ See E.O. 13990, supra note 15, and E.O. 14008, supra note
18.
---------------------------------------------------------------------------
To address these concerns, CEQ is engaging in a series of
rulemakings to propose revisions to the 2020 NEPA Regulations. As a
preliminary step, CEQ issued an interim final rule on June 29, 2021,
amending the requirement in 40 CFR 1507.3(b) for agencies to propose
changes to their existing NEPA supplemental procedures by September 14,
2021, in order to make their procedures consistent with the 2020 NEPA
Regulations.\22\ CEQ extended the date by two years to avoid having
agencies propose changes to their implementing procedures on a tight
deadline to conform to a rule that is undergoing extensive review and
will likely change in the near future.
---------------------------------------------------------------------------
\22\ 86 FR 34154 (June 29, 2021).
---------------------------------------------------------------------------
CEQ intends to reconsider and revise the 2020 NEPA Regulations
using a phased approach. This NPRM initiates a ``Phase 1'' rulemaking
to focus on a discrete set of provisions. In identifying what
provisions to address in Phase 1, CEQ focused on the provisions that
(1) pose significant near-term interpretation or implementation
challenges for Federal agencies and would have the most impact to
agencies' NEPA processes during the interim period before a ``Phase 2''
rulemaking is complete; (2) make sense to revert to the 1978 regulatory
approach for the reasons discussed in Part III of this preamble; and
(3) CEQ is generally unlikely to propose to further revise in a Phase 2
rulemaking. Further, because CEQ recently received comments on these
exact provisions through the rulemaking process for the 2020 NEPA
Regulations, CEQ has the benefit of voluminous public comments on these
issues, which CEQ considered in the development of this proposed rule.
In Phase 2, CEQ intends to issue a second NPRM to more broadly revisit
the 2020 NEPA Regulations and propose further revisions to ensure that
the NEPA process provides for efficient and effective environmental
reviews that are consistent with the statute's text and purpose;
provides regulatory certainty to Federal agencies; promotes better
decision making consistent with NEPA's statutory requirements; and
meets environmental, climate change, and environmental justice
objectives.
III. Summary of Proposed Rule
As discussed in this section, CEQ proposes three revisions to the
2020 NEPA Regulations in this Phase 1 rulemaking: (1) To eliminate
language in the description of purpose and need for a proposed action
when it is an agency's statutory duty to review applications for
authorization (40 CFR 1502.13) and make a conforming edit to the
definition of ``reasonable alternatives'' (40 CFR 1508.1(z)); (2) to
remove limitations on agency NEPA procedures for implementing CEQ's
NEPA Regulations (40 CFR 1507.3); and (3) to return to the definitions
of ``effects'' in the prior,
[[Page 55760]]
longstanding 1978 NEPA Regulations (40 CFR 1508.1(g)).
CEQ proposes to amend these provisions by generally reverting to
the language from the 1978 NEPA Regulations that was in effect for more
than 40 years, subject to minor revisions for clarity. In proposing to
revert to language in the 1978 Regulations, this NPRM addresses issues
similar or identical to those the public and Federal agencies recently
had the opportunity to consider and comment on during the rulemaking
for the 2020 NEPA Regulations, which will facilitate an expeditious
Phase 1 rulemaking. For each provision described in this section, CEQ
provides a high-level summary of some of the significant issues raised
in these public comments, which CEQ considered in the development of
this proposed rule.
A. Purpose and Need (Sec. 1502.13)
The purpose and need section of an EIS sets forth the rationale for
the agency's proposed action. Development of the purpose and need is a
vital early step in the NEPA process that is foundational to other
elements of a NEPA review. For example, the purpose and need statement
sets the parameters for the range of reasonable alternatives an agency
considers and informs the scope of effects that an agency must analyze
in an EIS. The 1978 NEPA Regulations required that each EIS briefly
state the underlying purpose and need to which the agency is responding
in proposing the alternatives, including the proposed action. The 2020
NEPA Regulations modified this provision by adding language that
requires agencies to base the purpose and need on the goals of an
applicant and the agency's authority when the agency's statutory duty
is to review an application for authorization. The 2020 NEPA
Regulations also made a conforming addition to the definition of
``reasonable alternatives'' to carry over the new language on purpose
and need. Here, CEQ proposes in Sec. 1502.13 to revert to the language
of the 1978 NEPA Regulations for purpose and need and conform the
definition of ``reasonable alternatives'' in Sec. 1508.1(z) to this
change.
CEQ proposes this change because the language added by the 2020
NEPA Regulations requires an agency to always base the purpose and need
on the goals of an applicant and the agency's statutory authority when
an agency is reviewing an application for authorization. This language
could be construed to require agencies to prioritize the applicant's
goals over other relevant factors, including the public interest. CEQ
does not consider this approach to reflect the best reading of the NEPA
statute or lay the appropriate groundwork for environmentally sound
decision making. Agencies should have discretion to base the purpose
and need for their actions on a variety of factors, which include the
goals of the applicant, but not to the exclusion of other factors. For
example, agencies may consider regulatory requirements, desired
conditions on the landscape or other environmental outcomes, and local
economic needs, as well as an applicant's goals. Always tailoring the
purpose and need to an applicant's goals when considering a request for
an authorization could prevent an agency from considering alternatives
that better meet the policies and responsibilities set forth in NEPA
merely because they do not meet an applicant's stated goals.
Additionally, an applicant's goals themselves could be potentially
confusing or unduly narrow or restrictive. Restoring the 1978 language
would eliminate this confusing language and reaffirm agency discretion
to develop and rely on statements of purpose and need that are
consistent with the agency's decision-making responsibilities while
considering multiple relevant factors, including the public interest
and the goals of an applicant. This restoration would confirm that
agencies should consider a range of alternatives that are technically
and economically feasible and meet the purpose and need for the
proposed action but that are not unreasonably constrained by an
applicant's stated goals.
In adding this language, the preamble to the 2020 Rule explained
that CEQ intended to clarify that when an agency is responsible for
reviewing applications for authorizations, the agency must base the
purpose and need on the applicant's goals and the agency's statutory
authority, citing Citizens Against Burlington, Inc. v. Busey, 938 F.2d
190, 196 (D.C. Cir. 1991). However, this case did not require the
agency to base the purpose and need on the applicant's goals; rather,
the court held that the agency's consideration of the applicant's goals
to develop the purpose and need statement was not arbitrary and
capricious. However, the court did not require that the applicant's
goals be the sole (or even primary) factor in the formulation of the
purpose and need for the action. See id. at 196-99.
CEQ proposes to remove the reference to the agency's statutory
authority because it is unnecessary and confusing. It is unnecessary
because agencies already had a long history of developing purpose and
need statements under the 1978 NEPA Regulations guided by their
statutory authority and the scope of the agency decision under
consideration. The reference is confusing because it implies that an
agency's authority is only relevant when an agency proposes to grant an
authorization, and agencies must also appropriately consider the scope
of their authority when evaluating other agency actions, including
those that do not involve specific authorizations. Therefore, CEQ
proposes to eliminate the reference to an agency's authority because
purpose and need statements have always been informed by the scope of
the agency's statutory decision-making authority irrespective of
whether the action is an application for authorization. A reference to
an agency's statutory authority in this one context therefore seems
unnecessary.
To promote informed decision making, transparency, and public
engagement, a properly drawn purpose and need statement should lead to
consideration of the reasonable alternatives to the proposed action,
consistent with NEPA's requirements. See 42 U.S.C. 4332(2)(C). While a
purpose and need statement that is too narrow is inconsistent with
NEPA's requirement to consider alternatives to the proposed action, so
too is a boundless analysis of alternatives. Rather, agencies are
guided by a rule of reason in identifying the reasonable alternatives
that are technically and economically feasible and meet the purpose and
need of a proposed action. See, e.g., HonoluluTraffic.com v. Fed.
Transit Admin., 742 F.3d 1222, 1230 (9th Cir. 2014).
For example, a private applicant seeking a right-of-way on Federal
land may want to site the right-of-way at a specific location and may,
correspondingly, frame the applicant's goals as a right-of-way with a
particular location or route. However, the agency with jurisdiction
over the proposed action may want to consider a range of reasonable
locations for the right-of-way that would, for example, avoid
environmental impacts or reduce conflicts with other programs or plans.
Inherent in the NEPA process is the consideration of the public
interest when developing a purpose and need statement, including
analyzing proposed actions and alternatives. As the U.S. Court of
Appeals for the Seventh Circuit explained in Simmons v. U.S. Army Corps
of Engineers, it is contrary to NEPA for agencies to ``contrive a
purpose so slender as to define competing `reasonable alternatives' out
of consideration (and even out of existence).'' 120 F.3d 664,
[[Page 55761]]
666 (7th Cir. 1997) (citing 42 U.S.C. 4332(2)(E)). The court explained
that constricting the definition of the project's purpose could exclude
truly reasonable alternatives, making an EIS incompatible with NEPA's
requirements. Id.; see also, e.g., Nat'l Parks & Conservation Ass'n v.
Bureau of Land Mgmt., 606 F.3d 1058, 1070 (9th Cir. 2010) (``Agencies
enjoy `considerable discretion' to define the purpose and need of a
project. However, `an agency cannot define its objectives in
unreasonably narrow terms.''' (internal citations omitted)).
During the rulemaking process for the 2020 NEPA Regulations,
numerous public comments addressed the purpose and need provision. Some
commenters supported limiting the purpose and need to the goals of the
applicant in order to narrow the number of alternatives agencies must
consider and shorten the timeframe for the environmental review. Other
commenters expressed the view that this provision would result in
purpose and need statements and environmental reviews that give undue
deference to applicants. Some commenters also stated that the proposed
change would unduly elevate the goals of applicants over the needs of
the public and Federal agencies' purview to consider the public
interest. In reconsidering the approach taken in the 2020 Rule, CEQ
reviewed these comments. As discussed in this section, CEQ considers
the proposed reversion to the 1978 language on purpose and need to
better reflect NEPA's objectives. Upon further consideration, CEQ does
not consider that the language added by the 2020 Rule would necessarily
lead to more efficient reviews and finds a lack of evidence to support
that claim. CEQ requests comment on this proposed change and the
potential effects of this change on the environmental review process,
including timeframes for environmental review.
CEQ also proposes to make a conforming edit to the definition of
``reasonable alternatives. The 2020 Rule defines ``reasonable
alternatives'' to mean ``a reasonable range of alternatives that are
technically and economically feasible, meet the purpose and need for
the proposed action, and, where applicable, meet the goals of the
applicant.'' 40 CFR 1508.1(z) (emphasis added). CEQ's proposed change
would be consistent with the proposed change to purpose and need, by
deleting the reference in ``reasonable alternatives'' to the goals of
the applicant for the same reasons discussed above regarding the
proposed change to the purpose and need section, Sec. 1502.13.
B. Agency NEPA Procedures (Sec. 1507.3)
CEQ proposes to revise Sec. 1507.3(a) and (b) to clarify that
while agency NEPA procedures need to be consistent with the CEQ
regulations, agencies have the discretion and flexibility to develop
procedures beyond the CEQ regulatory requirements, enabling agencies to
address their specific programs and the contexts in which they operate.
Specifically, the proposed rule would remove language from Sec.
1507.3(a) stating that where existing agency NEPA procedures are
``inconsistent'' with the CEQ regulations, the CEQ regulations apply
``unless there is a clear and fundamental conflict with the
requirements of another statute.'' The proposed rule also would remove
from Sec. 1507.3(b) the language requiring agencies ``to eliminate any
inconsistencies'' with the CEQ regulations and the prohibition on
agencies imposing additional procedures or requirements beyond the CEQ
regulations unless those additional procedures promote agency
efficiency or are required by law. Collectively, these ``ceiling
provisions'' make the CEQ regulations a ceiling for agency NEPA
procedures, which departed from CEQ's and Federal agencies' prior
understanding and practice that CEQ's NEPA regulations provide a floor
for environmental review procedures.
As noted in section II of this preamble, CEQ amended paragraph (b)
in June 2021 to provide agencies until September 14, 2023, to propose
updates to their agency procedures. This NPRM does not propose to
change that date. In proposing these revisions, CEQ is affirming that
agencies have the authority and discretion to develop and implement
NEPA procedures beyond those specified in the CEQ regulations to
address the unique contexts in which they operate, and that CEQ will
continue to ensure that such additional procedures are consistent with
CEQ's regulations through its consistency review process set forth in
40 CFR 1507.3(b)(2).
Prior to the 2020 NEPA Regulations, Federal agencies could develop
NEPA procedures of their own to augment the CEQ regulations, so long as
those procedures met or exceeded the degree of environmental review
required by the CEQ regulations. CEQ's proposal better meets NEPA's
statutory requirements and purpose to provide flexibility to agencies
in carrying out their NEPA requirements, including by allowing agencies
to adopt agency-specific NEPA procedures that align with their unique
missions or circumstances. Agencies should be able to tailor their
procedures to meet their unique statutory mandates and include
additional procedures or requirements beyond those outlined in CEQ's
NEPA regulations, especially if doing so will promote better decisions,
improve environmental or community outcomes, or spur innovation that
advances NEPA's policies.
For example, agency procedures could include more specific
requirements for the development of environmental assessments to
facilitate the decision-making process, such as requiring multiple
alternatives or documentation of alternatives considered but dismissed.
Procedures also could require public hearings or provide for more
specific consideration or evaluation of certain issues such as air and
water quality impacts, environmental justice considerations, or habitat
effects. For example, the National Oceanic and Atmospheric
Administration (NOAA), which among other things, is responsible for the
stewardship of the Nation's ocean resources and their habitat, might
adopt agency-specific procedures on the analysis of impacts to species
or habitats protected by the Endangered Species Act, the Marine Mammal
Protection Act, or the Magnuson-Stevens Fishery Conservation and
Management Act, as well as other vulnerable marine and coastal
ecosystems. CEQ has heard from Federal agencies that the ceiling
provisions have created confusion as to whether agencies can continue
to carry out their agency-specific procedures or adopt new procedures
to implement NEPA for their programs and authorities.
CEQ reviews any proposed changes to agency NEPA procedures before
their adoption to ensure the procedures are consistent with NEPA and
the CEQ regulations. See 40 CFR 1507.3. That review process provides
the opportunity to discuss the reasons behind any new or additional
procedures or requirements proposed by agencies. This also allows CEQ
to promote consistency across the Federal Government without limiting
agencies' flexibility to do more than the CEQ regulations describe or
otherwise inhibiting innovation.
Removing these ceiling provisions also improves alignment of the
NEPA Regulations with NEPA's statutory text, which directs agencies to
pursue the statute's goals ``to the fullest extent possible.'' 42
U.S.C. 4332. The legislative history of NEPA indicates that the intent
behind this statement was to ensure that all Federal agencies comply
with NEPA as well as their statutory authorities and that ``no agency
shall utilize an excessively
[[Page 55762]]
narrow construction of its existing statutory authorizations to avoid
compliance.'' \23\
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\23\ H. Rep. No. 91-765, at 9-10 (1969).
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Additionally, removing these sentences would allow agencies to
fully pursue NEPA's aims by allowing them to establish procedures
specific to their missions and authorities that may provide for
additional environmental review and public participation. See 42 U.S.C.
4332. CEQ would continue to perform its longstanding role of reviewing
any proposed agency-specific NEPA procedures to ensure that they are
consistent with, but not necessarily identical to, CEQ's regulations.
The proposed change would also help Federal agencies ensure that their
NEPA procedures, and the NEPA documents and processes that follow those
procedures, meet the goal of NEPA to provide for the protection and
enhancement of the environment and human health.
Since all agencies are charged with administering NEPA--not only
CEQ--agencies should be allowed to pursue the environmental aims of the
statute, including by adopting and carrying out procedures that require
additional or more specific environmental analysis than called for by
the CEQ regulations. NEPA also expressly instructs agencies to develop
methods and procedures for the development of EISs, indicating that
agencies are intended to take responsibility for their own procedures,
even while consulting with CEQ. See 42 U.S.C. 4332(2)(B). Eliminating
the 2020 NEPA Regulations' ceiling provisions would allow agencies to
carry out their NEPA obligations to the ``fullest extent possible.''
See 42 U.S.C. 4332.
The public extensively commented on the ceiling provisions during
the rulemaking for the 2020 NEPA Regulations. Many commenters opposed
the addition of these provisions, expressing the view that it is
important for agencies to have flexibility to meet NEPA's statutory
requirements and establish the procedures and requirements necessary to
implement NEPA. Commenters stated that precluding an agency from
applying its expertise would arbitrarily limit the role of agencies
responsible for implementing NEPA. Some commenters found that the 2020
NEPA Regulations did not adequately justify the addition of these
provisions or clearly articulate what problem the change was trying to
solve. A few commenters also noted that the proposed changes could
interfere with state and Federal collaboration or coordination to the
extent they would prevent Federal agencies from adopting NEPA
procedures that integrate with state review processes that have more
stringent requirements and procedures than those set out in the
proposed rule. The commenters noted that impairing Federal agencies'
coordination with states would create greater complexity and
uncertainty for applicants and potentially additional delays and
paperwork. The few comments in support of the change expressed general
support or stated that including ceiling provisions would reduce costs
and delays--a rationale that appears in the NPRM for the 2020 Rule--but
did not provide an explanation or basis for that statement.
In developing this proposal, CEQ considered these comments as well
as the rationale provided for the 2020 Rule and, in alignment with the
discussion provided earlier in this section, disagrees with the
rationale provided for the 2020 Rule and agrees with the comments that
opposed the addition of the ceiling provisions. Even if the ceiling
provisions would reduce costs and delays in some circumstances, which
commenters did not provide evidence to support, CEQ considers the
benefits of agency flexibility to outweigh the potential costs and
delays. NEPA is more than a check-the-box paperwork exercise. Providing
agencies flexibility to integrate their NEPA reviews into their unique
programs can both make the decision-making process more efficient--
because the process can be tailored to the particularities of agency
programs--and more effective because a more tailored environmental
review process may result in environmental reviews that better inform
the decision maker and the public. Moreover, CEQ retains authority to
review proposed agency procedures for consistency with CEQ's
regulations and can evaluate specific proposals made by agencies at
that time and work with the agencies to ensure implementing procedures
do not result in undue cost or delay. CEQ invites public comment on
this proposed provision.
C. Definition of ``Effects'' or ``Impacts'' (Sec. 1508.1(g))
NEPA requires Federal agencies to examine the environmental effects
of their proposed actions and alternatives and any adverse
environmental effects that cannot be avoided if the proposed action is
implemented. 42 U.S.C. 4332(2)(C). CEQ proposes to revise the
definition of ``effects'' or ``impacts'' in Sec. 1508.1(g) to restore
the substance of the definitions of ``effects'' and ``cumulative
impacts'' contained in the 1978 NEPA Regulations with some minor, non-
substantive changes for consistency with the current format of the Code
of Federal Regulations. Specifically, CEQ proposes to restore the
definitions of ``direct'' and ``indirect'' effects, and ``cumulative
impacts'' from the 1978 NEPA Regulations, 40 CFR 1508.7 and 1508.8
(2019), by incorporating them into the definition of ``effects'' or
``impacts,'' such that each reference to these terms throughout 40 CFR
parts 1500 through 1508 would include direct, indirect, and cumulative
effects.
Direct effects are effects caused by the action and occur at the
same time and place. 40 CFR 1508.8(a) (2019). Indirect effects are
effects caused by the action that are later in time or farther removed
in distance but are still reasonably foreseeable. Id. at Sec.
1508.8(b). Cumulative effects are effects resulting from the
incremental impact of the action when added to other past, present, and
reasonably foreseeable future actions regardless of who undertakes the
other actions. Id. at Sec. 1508.7.
CEQ's proposal would remove the language from paragraph (g)
defining ``effects'' as those ``that are reasonably foreseeable and
have a reasonably close causal relationship.'' The proposal also would
remove and replace paragraph (g)(2), which states that a ``but for''
causal relationship is insufficient to make an agency responsible for a
particular effect under NEPA; generally excludes effects that are
remote in time, geographically remote, or the product of a lengthy
causal chain; and fully excludes effects that the agency has no ability
to prevent due to its limited statutory authority or would occur
regardless of the proposed action. The proposed rule also would remove
and replace paragraph (g)(3), which states that an agency's analysis of
effects must be consistent with the definition of ``effects'' and
explicitly repeals the definition of cumulative impact in 40 CFR 1508.7
(2019). CEQ proposes to remove this language because it creates
confusion and could be read to improperly narrow the scope of
environmental effects relevant to NEPA analysis, contrary to NEPA's
purpose.
CEQ's proposal would retain the introductory phrase added in the
2020 Rule that defines ``effects'' as ``changes to the human
environment from the proposed action or alternatives.'' This revision
eliminated the circular definition (``effects'' include effects) of the
1978 NEPA Regulations. Finally, CEQ does not propose to include the
statement from the 1978 NEPA Regulations that ``effects'' and
``impacts'' as used in the regulations are
[[Page 55763]]
synonymous, as this statement would be redundant as the definition
defines both ``effects'' and ``impacts'' together.
1. Reinstating ``Direct'' and ``Indirect'' Effects
CEQ proposes to restore the terms ``direct'' and ``indirect'' to
the definition of ``effects'' to realign the regulations with
longstanding agency practice \24\ and judicial decisions interpreting
NEPA. Based on CEQ's extensive experience implementing NEPA, this
change would better reflect NEPA's statutory purpose and intent and be
more consistent with case law, as courts have interpreted the NEPA
statute to require agencies to analyze the reasonably foreseeable
direct and indirect effects of a proposed action and alternatives. See,
e.g., Minn. Pub. Int. Rsch. Grp. v. Butz, 498 F.2d 1314, 1322 (8th Cir.
1974) (stating that NEPA ``is concerned with indirect effects as well
as direct effects,'' and emphasizing long-term effects as a reason that
a logging project would significantly affect the environment and
require an EIS); see also, e.g., Sierra Club v. Fed. Energy Reg.
Comm'n, 867 F.3d 1357, 1371-72 (D.C. Cir. 2017); San Juan Citizens All.
v. U.S. Bureau of Land Mgmt., 326 F. Supp. 3d 1227, 1244 (D.N.M. 2018)
(holding that greenhouse gas emissions are foreseeable indirect effects
of leases for fossil fuel production and approvals of pipelines that
transport fossil fuels). As reflected in many of the public comments to
the 2020 Rule as well as in CEQ's discussions with agency NEPA
practitioners who have asked CEQ for clarification since the 2020 Rule
went into effect, this change would eliminate confusion caused by the
modified definition and ensure that the NEPA process fully and fairly
considers the appropriate universe of effects, such as air and water
pollution, greenhouse gas emissions that contribute to climate change,
and effects on communities with environmental justice concerns.
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\24\ See, e.g., Bureau of Land Management National Environmental
Policy Act Handbook H-1790-1, sec. 6.8.2 (January 2008); 36 CFR
220.4(f), 220.7(b)(iv) (Forest Service); 32 CFR 651.29(b),
651.34(f), 651.51(a)(3), Appendix to E to Part 651--Content of EIS
(Army Corps of Engineers).
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While the 2020 NEPA Regulations retained the definition of
``direct'' effects without using the term, the revised definition
creates ambiguity regarding whether and to what extent indirect effects
are included in the definition of ``effects.'' In particular, the
definition states in paragraph (g) that effects ``may include effects
that are later in time or farther removed in distance'' but then states
in paragraph (g)(2) that effects should generally not be considered if
they are remote in time or geographically remote. CEQ's proposed
changes would provide clarity to agencies, practitioners, and the
public by restoring the terms and definitions of ``direct'' and
``indirect,'' as these terms can help agencies and the public evaluate
and understand the full scope of reasonably foreseeable effects in NEPA
reviews.
This reinstatement also would ensure that agencies consider the
full range of reasonably foreseeable effects in the NEPA process,
consistent with NEPA's goal of facilitating reason-based decision
making that protects public health and the environment, as well as this
Administration's policies to be guided by science and to address
environmental protection, climate change, and environmental justice.
For example, air pollution, including greenhouse gas emissions,
released by fossil fuel combustion is often a reasonably foreseeable
indirect effect of proposed fossil fuel extraction that agencies should
evaluate in the NEPA process, even if the pollution is remote in time
or geographically remote from a proposed action. And even where an
agency does not exercise regulatory authority over all aspects of a
project, it may be appropriate to consider and compare the air
pollution and greenhouse gas emission effects that the proposal and the
reasonable alternatives would have on the environment, even if the
agency does not have control over all of the emissions that the
alternatives would produce. The consideration of such effects can
provide important information on the selection of a preferred
alternative; for example, an agency decision maker might select the no
action alternative, as opposed to a fossil fuel leasing alternative, on
the basis that it best aligns with the agency's statutory authorities
and policies with respect to greenhouse gas emission mitigation.\25\
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\25\ Agencies may consider all available tools and resources in
assessing GHG emissions and climate change effects of their proposed
actions, including, as appropriate and relevant, CEQ's 2016 ``Final
Guidance for Federal Departments and Agencies on Consideration of
Greenhouse Gas Emissions and the Effects of Climate Change in
National Environmental Policy Act Reviews,'' 81 FR 51866 (Aug. 5,
2016). Additionally, under E.O. 13990, the Interagency Working Group
(IWG) on the Social Cost of Greenhouse Gases published interim
estimates and is preparing updated estimates, which agencies may
find helpful in considering greenhouse gas emission effects and
mitigation as part of the NEPA process. See https://www.whitehouse.gov/wp-content/uploads/2021/02/TechnicalSupportDocument_SocialCostofCarbonMethaneNitrousOxide.pdf?source=email. This proposed rule does not specifically address the
IWG's interim or final Social Cost of Greenhouse Gases estimates.
More information on the interim estimates is available from the
Office of Information and Regulatory Affairs. See https://www.whitehouse.gov/wp-content/uploads/2021/06/Social-Cost-of-Greenhouse-Gas-Emissions.pdf.
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Use of the terms ``direct'' and ``indirect'' also can help explain
both adverse and beneficial effects over various timeframes. For
instance, a utility-scale solar facility could have short-term direct
adverse effects, such as land impacts associated with construction. The
facility also could have long-term indirect beneficial effects, such as
reductions in air pollution, including greenhouse gas emissions, from
the renewable energy generated by the solar facility that displaces
more greenhouse gas-intensive energy sources (such as coal or natural
gas) as an electricity source for years or decades into the future.
Consistent with CEQ's proposed restored definition, such indirect
effects could be caused by the action to authorize a new solar
facility, and would be later in time or farther removed in distance yet
still reasonably foreseeable. Fully evaluating the effects of the
facility would require identifying and evaluating both the direct and
indirect effects of the proposed action.
The 2020 NEPA Regulations also removed the explanatory examples of
indirect effects, including growth-inducing effects and other effects
related to induced changes in the pattern of land use, population
density, or growth rate, and related effects on air and water and other
natural systems, including ecosystems. Restoring these examples is
appropriate to highlight indirect effects that may be associated with
myriad proposed Federal actions, such as expanding or repairing Federal
highways or authorizing new renewable energy projects.
Numerous public comments discussed the elimination of references to
``direct'' and ``indirect'' in the definition of ``effects'' during the
rulemaking for the 2020 NEPA Regulations. Commenters who supported the
elimination of ``direct'' and ``indirect'' expressed views that the
existing language creates confusion, that removal of the terms could
help reduce the length of NEPA documents, and that retaining the terms
would lead to an increase in litigation. Commenters also raised
concerns that the terms have expanded the scope of NEPA analysis
without serving NEPA's purpose of informed decision making but did not
provide bases, analyses, or evidence to support these conclusions. The
2020 Rule adopted the position of these comments. CEQ considers the
disclosure of both direct and indirect effects to be critical to the
informed
[[Page 55764]]
decision-making process such that the benefits of any such disclosure
outweigh any potential for shorter NEPA documents or timeframes.
Moreover, a well-drafted NEPA document can both be concise and
supported by thorough analysis, and agencies have decades of experience
considering the direct and indirect effects of their proposed actions.
CEQ considers the potential for reduced litigation from the 2020
changes to be speculative, especially given the confusion that has
resulted from deleting these familiar terms. Finally, CEQ expects that
restoring these definitions that have been in place and in use for
decades will better clarify the effects agencies need to consider in
their NEPA analyses and may even help avoid delays in NEPA reviews.
The vast majority of comments on the 2020 NEPA Regulations opposed
the removal of the terms, and CEQ views those comments as supporting
its proposal to restore the terms ``direct'' and ``indirect'' to the
definition of ``effects.'' Commenters expressed views that retaining
the terms would reduce confusion and litigation. They also expressed
views that direct and indirect effects are critical elements of the
evaluation of potential environmental effects of a proposed action, and
they raised concerns that by deleting the term ``indirect,'' agencies
may not adequately consider long-term or geographically remote impacts,
including greenhouse gas emissions or water pollution that travels
downstream. Commenters supported their views by pointing to CEQ's
longstanding guidance and decades of agency guidance and court
decisions using the terms to address effects pursuant to NEPA. Many
commenters argued that removal of these terms would be contrary to the
intent of the statute, and that consideration of both direct and
indirect effects is essential to determining significance. CEQ invites
comment on these proposed changes.
2. Adding ``Cumulative Effects'' to the Definition of ``Effects''
CEQ proposes to revise Sec. 1508.1(g)(3) by restoring, with minor
modifications, the definition of ``cumulative impacts'' from the 1978
NEPA Regulations and striking the current provision that repealed that
definition. Analysis of reasonably foreseeable cumulative effects is
integral to sound and complete environmental review. Cumulative effects
analysis is an essential component of NEPA analysis, as it allows
agencies and the public to understand how the incremental impacts of a
proposed action contribute to cumulative environmental problems such as
air pollution, water pollution, climate change, and biodiversity loss,
among others. Today, science and data confirm that cumulative
environmental harms, including repeated or frequent exposure to toxic
air or water pollution, threaten human and environmental health and
poses undue burdens on historically marginalized communities.\26\ CEQ
seeks to ensure that agencies fully analyze reasonably foreseeable
cumulative effects before Federal decisions are made by restoring the
term and its definition.
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\26\ See, e.g., Mercedes A. Bravo et al., Racial Isolation and
Exposure to Airborne Particulate Matter and Ozone in Understudied
U.S. Populations: Environmental Justice Applications of Downscaled
Numerical Model Output, 92-93 Env't Int'l 247 (2016) (finding that
long-term exposure to particulate matter is associated with racial
segregation, with more highly segregated areas suffering higher
levels of exposure).
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The 2020 Rule's deletion of the definition of ``cumulative
impacts'' did not exclude reasonably foreseeable effects from
consideration merely because they could be categorized as cumulative
effects. In responding to comments about potential effects on
threatened and endangered species, the preamble to the 2020 Rule
explains that ``the final rule does not ignore cumulative effects on
listed species.'' \27\ CEQ similarly explained in the Final Rule
Response to Comments that the 2020 Rule did not automatically exclude
from analysis effects falling within the deleted definition of
``cumulative impacts.'' \28\ However, CEQ considers the deletion of the
longstanding term to have the potential to create confusion about when
and if agencies should analyze cumulative effects, and creates
uncertainty regarding this type of effects analysis contrary to
longstanding agency practice and NEPA's purpose. For example, CEQ has
heard from Federal agency NEPA practitioners both individually and in
agency meetings that they would like clarification about how to address
cumulative effects, including whether it remains permissible to use the
term, in light of the changes made in 2020. In addition, outside
stakeholders have raised concerns in meetings and listening sessions
regarding the deletion of the term in light of the potential impact
this could have in truncating the environmental review and disclosure
of important categories of effects. Additionally, public comments
received on the proposed 2020 Rule raised such concerns. By restoring
the definition of cumulative effects, the proposed rule would clarify
that agencies must analyze and disclose reasonably foreseeable
cumulative effects.
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\27\ 85 FR 43355 (July 16, 2020).
\28\ Council on Environmental Quality, Update to the Regulations
Implementing the Procedural Provisions of the National Environmental
Policy Act Final Rule Response to Comments 467 (June 30, 2020),
https://www.regulations.gov/document/CEQ-2019-0003-720629.
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Since its initial NEPA guidelines in 1970, CEQ has interpreted the
statute as requiring consideration of cumulative effects. In its 1970
interim guidelines, CEQ provided that agencies should construe the
statutory clause ``major Federal actions significantly affecting the
quality of the human environment'' ``with a view to the overall,
cumulative impact of the action proposed (and of further actions
contemplated).'' \29\ CEQ explained that agencies should consider
``that the effect of many Federal decisions about a project or complex
of projects can be individually limited but cumulatively considerable''
because, for instance, agencies may provide funds over a period of
years or multiple agencies may individually make decisions about
partial aspects of a project.\30\ The guidelines further stated that an
agency should prepare an EIS ``if it is reasonable to anticipate a
cumulatively significant impact on the environment from the Federal
action.'' \31\
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\29\ 35 FR 7390, 7391 (May 12, 1970) (emphasis added).
\30\ Id.
\31\ Id.
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These initial guidelines also interpreted the requirement in
section 102(2)(C)(iv) to mean that ``[t]he relationship between local
short-term uses of man's environment and the maintenance and
enhancement of long-term productivity . . . requires the agency to
assess the action for cumulative and long-term effects from the
perspective that each generation is trustee of the environment for
succeeding generations.'' \32\ This interpretation is reflected in the
1971 final guidelines \33\ and the 1978 NEPA Regulations.\34\ Decades
of agency practice and CEQ guidance affirm the interpretation that NEPA
requires analysis of cumulative effects.\35\ For example, in 1997 CEQ
noted that cumulative effects analysis is ``critical'' for the purposes
of evaluating project
[[Page 55765]]
alternatives and developing appropriate mitigation strategies.\36\
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\32\ Id. at 7392 (emphasis added).
\33\ 36 FR 7724 (Apr. 23, 1971).
\34\ See 43 FR 55978 (Nov. 23, 1978).
\35\ See, e.g., CEQ, Considering Cumulative Effects Under the
National Environmental Policy Act (1997), https://ceq.doe.gov/publications/cumulative_effects.html; U.S. EPA, EPA 315-R-00-002,
Consideration of Cumulative Impacts in EPA Review of NEPA Documents
1 (1999) (``Because federal projects cause or are affected by
cumulative impacts, this type of impact must be assessed in
documents prepared under NEPA.'').
\36\ CEQ, supra note 35, at v.
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CEQ's proposal to reinstate the definition of ``cumulative
impacts'' aligns with longstanding legal precedent interpreting NEPA to
require agencies to consider cumulative effects. Even before CEQ issued
regulations on cumulative effects, the U.S. Supreme Court had
interpreted NEPA to include them. In 1976, the Court held that NEPA
requires consideration of cumulative effects ``when several proposals .
. . that will have cumulative or synergistic environmental impact upon
a region are pending concurrently before an agency, their environmental
consequences must be considered together.'' Kleppe v. Sierra Club, 427
U.S. 390, 410 (1976) (emphasis added).
Numerous commenters on the proposed 2020 Rule raised concerns that
the 2020 Rule could be interpreted to eliminate consideration of
cumulative effects and eliminating consideration of cumulative effects
would undermine NEPA's purpose and environmental protection goals, and
could interfere with the necessary analysis of a proposed action's
impacts. Other commenters expressed views that indirect and cumulative
effects often disproportionately affect Tribes, minority, and low-
income populations, and excluding the details of such effects from NEPA
analyses could lead agency decision makers to unknowingly make
decisions that negatively impact Tribes or communities with
environmental justice concerns. Some commenters who favored striking
the requirement to analyze cumulative effects expressed views that the
consideration of cumulative impacts could be redundant and that removal
of cumulative effects would reduce the time it takes to complete the
NEPA process. Other commenters were neutral on the change but expressed
views that the proposed change would be controversial and could lead to
potential litigation or delays. The 2020 Rule eliminated the
``cumulative effects'' language, adopting the view that the analysis of
cumulative effects was too broad, categorizing and determining the
scope of cumulative effects is difficult and can divert agency
resources from the most significant effects, and the analysis of
cumulative effects could require agency attention to information that
is irrelevant or inconsequential, and did not lead to informed decision
making.
CEQ considered these comments and the rationale described in the
2020 Rule when developing this proposal. CEQ has changed its view and
does not consider the term cumulative effects to be too broadly defined
in the 1978 NEPA Regulations or too difficult for agencies to
meaningfully implement. As explained earlier in this section, CEQ's own
prior guidelines and guidance, along with decades of agency practice
and longstanding legal precedent have interpreted NEPA to require
agencies to consider cumulative effects. While the 2020 Rule found that
cumulative effects was previously too broadly defined, the removal of
``cumulative effects'' created an even less clear definition of
effects, resulting in more confusion and uncertainty about what type of
effects analysis is necessary. Rather than diverting agency resources
or focusing on effects that are irrelevant or inconsequential, as the
2020 Rule stated with respect to cumulative effects analysis, CEQ
considers analysis of reasonably foreseeable cumulative effects to be
an important part of NEPA analysis, helping the public and decision
makers understand the full scope of potential impacts from a proposed
action. Reasonably foreseeable cumulative effects are not irrelevant or
inconsequential; for example, aggregate air and water pollution and
habitat impacts affect long-term environmental conditions, wildlife,
and communities--including in regions already overburdened by
pollution. Analyzing reasonably foreseeable cumulative effects is
consistent with NEPA's text and purpose and better informs decision
makers about important aspects of proposed actions and their
alternatives. Further, CEQ is not aware of any evidence supporting the
claim that evaluation of cumulative effects necessarily leads to longer
timelines, especially given the long history of agency and practitioner
experience with this type of analysis as well as modern techniques that
leverage science and technology to make reviews comprehensive yet
efficient. And clarity on analyzing reasonably foreseeable cumulative
effects, as proposed, would outweigh the speculative potential for
shorter NEPA documents or timeframes.
CEQ shares the view that environmental reviews should be efficient
and effective and will continue to evaluate the NEPA process for
opportunities to improve timeliness consistent with NEPA's purposes.
However, CEQ disagrees that requiring analysis of reasonably
foreseeable cumulative effects causes unacceptably long NEPA processes.
Further, by deleting the definition of cumulative effects, the 2020
Rule did not prohibit agencies from evaluating reasonably foreseeable
cumulative effects and therefore, it was not certain to result in
faster and less burdensome NEPA analyses. Rather, in affirmatively
repealing the defined term from the regulations, the 2020 Rule has
caused confusion and cast doubt as to whether agencies can and should
continue to do this analysis. Finally, consideration of cumulative
effects is important in order to fully inform agency decision makers
before actions are taken, and effects analysis remains bound by the
notion of reasonable foreseeability. CEQ invites comment on this
proposed change.
3. Removing Limitations on Effects Analysis
In proposing to restore the definition of ``effects'' from the 1978
NEPA Regulations, CEQ would remove changes made in the 2020 Rule
stating that effects are those ``that are reasonably foreseeable and
have a reasonably close causal relationship to the proposed action or
alternatives.'' 40 CFR 1508.1(g). CEQ also proposes to remove and
replace Sec. 1508.1(g)(2), which states that ``a `but for' causal
relationship is insufficient to make an agency responsible for a
particular effect under NEPA;'' agencies generally should not consider
effects that are remote in time, geographically remote, or the product
of a lengthy causal chain; and agencies should not consider effects
that the agency has no ability to prevent due to its limited statutory
authority. Finally, the proposed rule would remove as superfluous and
replace Sec. 1508.1(g)(3), which states that ``[a]n agency's analysis
of effects shall be consistent with this paragraph.'' This phrase seeks
to enforce the limitations added to the ``effects'' definition in the
2020 Rule, which would be unnecessary if the limitations are removed.
The definition of ``effects'' in the 1978 NEPA Regulations gave
agencies the discretion to identify the reasonably foreseeable effects
of a proposed action and its alternatives in light of NEPA's goals. It
is CEQ's view that this approach provides for more sound decision
making, including decisions informed by science, and a more
knowledgeable and engaged public than the definition of ``effects'' in
the 2020 NEPA Regulations. Whether an effect is reasonably foreseeable
is a context-specific inquiry that Federal agencies have engaged in for
more than 40 years. Agencies have made these determinations guided by
agency procedures and practice, evolving scientific understanding about
natural systems and environmental outcomes, and court decisions.
The current definition of ``effects'' has internal inconsistencies,
which make it
[[Page 55766]]
confusing to apply. The introductory paragraph of 40 CFR 1508.1(g)
states that effects ``may include'' those that are later in time and
farther removed in distance, but paragraph (g)(2) states that effects
``should generally not be considered if they are remote in time,
geographically remote, or the product of a lengthy causal chain.'' This
creates confusion as to whether agencies can or should consider these
types of effects, potentially leading to inconsistent application of
NEPA, public confusion or controversy, and enhanced risk of litigation
and concomitant delays in the NEPA process.
Removing the language from Sec. 1508.1(g)(2) limiting the
consideration of temporally or geographically removed environmental
effects and effects that are a product of a lengthy causal chain would
better align with the statutory text, which does not include any of
these qualifiers and instead directs agencies to produce a detailed
statement on the ``environmental impact of [a] proposed action,'' ``any
adverse environmental effects which cannot be avoided,'' and ``the
relationship between local short-term uses of man's environment and the
maintenance and enhancement of long-term productivity.'' 42 U.S.C.
4332(2)(C) (emphasis added). Many consequential reasonably foreseeable
environmental effects, such as toxic releases into air or water and
greenhouse gas emissions that contribute to climate change, often occur
remote in time or place from the original action or are a product of a
causal chain. For instance, when considering a potential Federal action
that would permit fossil fuel extraction, it is reasonably foreseeable
that the fossil fuel will be extracted, transported, and ultimately
combusted to create energy, all of which cause air pollution that can
have adverse public health and environmental effects. Thus, the 2020
Rule's limiting language could cause Federal agencies to omit critical
categories of effects from analysis and disclosure, frustrating NEPA's
core purpose and Congressional intent. Similarly, the statement that
``a `but for' causal relationship is insufficient to make an agency
responsible for a particular effect under NEPA'' added a confusing new
standard to apply that could cause agencies to omit reasonably
foreseeable effects in NEPA reviews, contrary to NEPA's statutory
purpose to promote informed decision making. CEQ disagrees that this
language would help agencies better understand what effects they need
to analyze and discuss, helping to reduce delays and paperwork with
unnecessary analyses. Rather, the new language poses new implementation
and interpretation challenges that could, in turn, create delays and
conflict. The definition of ``effects'' that CEQ proposes to restore
does not require that agencies disclose every possible effect; rather,
the standard under NEPA has long been whether effects are reasonably
foreseeable.
Similarly, the direction in the 2020 Rule to exclude ``effects that
the agency has no ability to prevent due to its limited statutory
authority or would occur regardless of the proposed action'' unduly
limits agency discretion. CEQ proposes to remove this limitation
because agencies may conclude that analyzing and disclosing such
effects will provide important information to decision makers and the
public. For example, agencies may need to analyze and disclose
reasonably foreseeable growth and development that will occur if they
authorize infrastructure projects such as highway interchanges or
causeways, even if they do not have general land use authority. See,
e.g., Sierra Club v. Marsh, 769 F.2d 868 (1st Cir. 1985); City of Davis
v. Coleman, 521 F.2d 661 (9th Cir. 1975). Reasonably foreseeable
environmental effects do not fall neatly within discrete agency
jurisdictional or regulatory confines; rather, agencies make decisions
about reviews and authorizations that have real world impacts,
including effects like water or air pollution that are measurable and
ascertainable yet may have physical effects outside an agency's
statutory purview.
CEQ's proposal to restore the definition of ``effects'' from the
1978 NEPA Regulations is consistent with the U.S. Supreme Court's
decision in Department of Transportation v. Public Citizen, 541 U.S.
752 (2004), which the 2020 Rule identified as the authority for the
revised definition. In this case, the Supreme Court explained that NEPA
and the 1978 NEPA Regulations are governed by a ``rule of reason.'' Id.
at 767. The Federal Motor Carrier Safety Administration (FMCSA) was
required to issue certification and safety regulations for Mexican
trucks entering the United States, id. at 760, and had no ability to
deny certification if trucks met the requirements, id. at 758-59. The
Court held that, based on FMCSA's limited statutory authority, it was
not arbitrary and capricious for FMCSA to exclude from its NEPA
analysis the effects of trucks entering the United States that would
result from the President's commitment to lift a moratorium on Mexican
truck entry once FMCSA issued the regulations. See id. at 770. By
affirming FMCSA's implementation of the 1978 NEPA Regulations under a
substantial deference standard of review, the Court did not hold that
agencies may not consider a broader range of effects in other
circumstances, as the 2020 Rule suggests. Instead, the Court held that
FMCSA's effects analysis in the specific factual and legal context of
its proposed action was reasonable and not arbitrary and capricious.
It is CEQ's view that establishing a regulatory limitation on the
scope of NEPA analysis drawn from Public Citizen does not lead to
improved agency decision making, enhanced public participation, or a
better-informed public. Rather, as CEQ has heard from NEPA
practitioners and outside stakeholders, these limitations undermine
sound decision making by creating confusion with respect to NEPA
implementation, departing from CEQ's consistent interpretation of NEPA
prior to 2020, breaking from science-based decisions, and potentially
limiting relevant NEPA analysis with negative repercussions in critical
areas such as climate change and environmental justice. NEPA has long
been understood to require only analysis of effects that are
``reasonably foreseeable,'' but the limitations added by the 2020 NEPA
Regulations could undermine longstanding agency discretion to determine
the appropriate scope of analysis or result in agencies making less
informed decisions contrary to NEPA's stated goals.
Numerous commenters addressed these limitations during the
rulemaking for the 2020 NEPA Regulations. Many opposed the limitations,
expressing views that requiring a close causal relationship could be
confusing to implement and could inappropriately constrain
consideration of reasonably foreseeable impacts of a proposed action on
the human environment, undermining the purpose of NEPA. Those opposed
also expressed views that the new limitations could be used to justify
the exclusion of effects of a proposed action including air or water
pollution affecting communities or wildlife located outside the
immediate vicinity of the proposed action that are nonetheless
reasonably foreseeable. For example, the limitations could cause
agencies to exclude consideration of the effects to a community that
relies on a water source downstream from a project area that is
indirectly impacted by the proposed action's water quality effects.
Some commenters also stated that the term ``remote'' is too vague and
relative. Those who supported the limitations expressed views that the
changes were in keeping with the judicial precedent
[[Page 55767]]
cited in the proposed rule and could help cut the length and time of
NEPA analysis by reducing burdens on Federal agencies; however,
commenters did not provide evidence demonstrating how inclusion of
these limitations would help cut the length and time of NEPA analysis.
Upon reconsidering the position taken in the 2020 NEPA Regulations,
CEQ proposes to remove these provisions in order to improve clarity on
the types of effects that agencies must consider, eliminate
restrictions that may conflict with scientific understanding of
environmental outcomes, and better inform decision makers and the
public about the full suite of reasonably foreseeable effects of a
proposed action and its alternatives. CEQ disagrees that the provisions
added in 2020 will reduce burdens on Federal agencies, given that
Federal agencies have long operated under the definition of ``effects''
as defined in the 1978 NEPA Regulations and may have existing NEPA
procedures aligned with the 1978 definitions. The 2020 Rule indicated
that the added provisions would help agencies better understand what
effects need to be analyzed and discussed and would reduce delays and
unnecessary analysis. However, agencies have indicated confusion about
how to apply the ``close causation'' and ``but for'' limitations in the
current definition of effects and are concerned that the 2020 Rule may
preclude them from considering the same range of effects as the 1978
Regulations. With the proposed changes in this rulemaking, CEQ seeks to
reduce confusion and provide clarity on the effects that agencies must
consider and does not agree that removing this language will directly
result in delays. Additionally, providing clarity to agencies and the
public on what is required provides benefits to the environmental
review process that outweigh any uncertain potential for shorter
timeframes. CEQ requests comment on these changes. CEQ also invites
comments on whether CEQ should provide in a Phase 2 rulemaking more
specificity about the manner in which agencies should analyze certain
categories of effects.
IV. Rulemaking Analyses and Notices
A. Executive Order 12866, Regulatory Planning and Review
E.O. 12866 provides that the Office of Information and Regulatory
Affairs will review all significant rules.\37\ E.O. 13563 reaffirms the
principles of E.O. 12866, calling for improvements in the Federal
Government's regulatory system to promote predictability, reduce
uncertainty, and use the best, most innovative, and least burdensome
tools for achieving regulatory objectives.\38\ This proposed rule is a
significant regulatory action that CEQ submitted to OMB for review. The
proposed changes would remove uncertainty created by the 2020 Rule to
benefit agencies and the public. Removing constraints on agency NEPA
analyses could result in longer review timeframes, but these changes do
not obligate agencies to undertake longer, more complicated analyzes.
If agencies choose to consider additional alternatives and conduct more
robust analyses, these analyses should improve societal outcomes by
improving agency decision making. Since individual cases will vary, the
magnitude of potential costs and benefits resulting from these proposed
changes are difficult to anticipate. Therefore, CEQ has not quantified
them. CEQ invites public comment on those expected impacts and the role
they should play in informing the final rule.
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\37\ 58 FR 51735 (Oct. 4, 1993).
\38\ 76 FR 3821 (Jan. 21, 2011).
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B. Regulatory Flexibility Act and Executive Order 13272, Proper
Consideration of Small Entities in Agency Rulemaking
The Regulatory Flexibility Act (RFA), as amended, 5 U.S.C. 601 et
seq., and E.O. 13272 \39\ require agencies to assess the impacts of
proposed and final rules on small entities. Under the RFA, small
entities include small businesses, small organizations, and small
governmental jurisdictions. An agency must prepare an Initial
Regulatory Flexibility Analysis (IRFA) unless it determines and
certifies that a proposed rule, if promulgated, would not have a
significant economic impact on a substantial number of small entities.
5 U.S.C. 605(b). The proposed rule would not directly regulate small
entities. Rather, the proposed rule would apply to Federal agencies and
set forth the process for their compliance with NEPA. Accordingly, CEQ
hereby certifies that the proposed rule, if promulgated, would not have
a significant economic impact on a substantial number of small
entities.
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\39\ 67 FR 53461 (Aug. 16, 2002).
---------------------------------------------------------------------------
C. National Environmental Policy Act
Under the CEQ regulations, major Federal actions may include
regulations. When CEQ issued regulations in 1978, it prepared a
``special environmental assessment'' for illustrative purposes pursuant
to E.O. 11991.\40\ The NPRM for the 1978 rule stated ``the impacts of
procedural regulations of this kind are not susceptible to detailed
analysis beyond that set out in the assessment.'' \41\ 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.\42\ The special
environmental assessment issued in 1986 made a finding of no
significant impact, and there was no finding made for the assessment of
the 1978 final rule.
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\40\ 43 FR 25230 (June 9, 1978).
\41\ Id.
\42\ 51 FR 15618, 15619 (Apr. 25, 1986).
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CEQ continues to take the position that a NEPA analysis is not
required for establishing or updating NEPA procedures. See Heartwood v.
U.S. Forest Serv., 230 F.3d 947, 954-55 (7th Cir. 2000) (finding that
neither NEPA or the CEQ regulations required the Forest Service to
conduct an environmental assessment or an EIS prior to the promulgation
of its procedures creating a categorical exclusion). Nevertheless,
based on past practice, CEQ has developed a special environmental
assessment and has posted it in the docket. CEQ invites comments on the
special environmental assessment.
D. Executive Order 13132, Federalism
E.O. 13132 requires agencies to develop an accountable process to
ensure meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism
implications.\43\ Policies that have federalism implications include
regulations that have substantial direct effects on the states, on the
relationship between the Federal Government and the states, or on the
distribution of power and responsibilities among the various levels of
government. CEQ does not anticipate that this proposed rule has
federalism implications because it applies to Federal agencies, not
states.
---------------------------------------------------------------------------
\43\ 64 FR 43255 (Aug. 10, 1999).
---------------------------------------------------------------------------
E. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
E.O. 13175 requires agencies to have a process to ensure meaningful
and timely input by Tribal officials in the development of policies
that have Tribal implications.\44\ Such policies include regulations
that have substantial direct effects on one or more Indian Tribes, on
the relationship between the Federal
[[Page 55768]]
Government and Indian Tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes. CEQ
has assessed the impact of this proposed rule on Indian Tribal
governments and has determined preliminarily that the proposed rule
would not significantly or uniquely affect these communities but seeks
comment on this preliminary determination. However, CEQ plans to engage
in government-to-government consultation with federally recognized
Tribes and Alaska Native Corporations on its NEPA regulations
generally.
---------------------------------------------------------------------------
\44\ 65 FR 67249 (Nov. 9, 2000).
---------------------------------------------------------------------------
F. Executive Order 12898, Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
E.O. 12898 requires agencies to make achieving environmental
justice part of their missions by identifying and addressing, as
appropriate, disproportionately high and adverse human health or
environmental effects of their programs, policies, and activities on
minority populations and low-income populations.\45\ CEQ has analyzed
this proposed rule and preliminarily 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 consideration of environmental justice effects typically
occurs. CEQ invites comment on this preliminary determination.
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\45\ 59 FR 7629 (Feb. 16, 1994).
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G. Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Agencies must prepare a Statement of Energy Effects for significant
energy actions under E.O. 13211.\46\ CEQ has preliminarily determined
that this rulemaking is not a ``significant energy action'' because it
is not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
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\46\ 66 FR 28355 (May 22, 2001).
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H. Executive Order 12988, Civil Justice Reform
Under section 3(a) of E.O. 12988,\47\ 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 proposed rule complies
with the requirements of E.O. 12988.
---------------------------------------------------------------------------
\47\ 61 FR 4729 (Feb. 7, 1996).
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I. Unfunded Mandate Reform Act
Section 201 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1531, requires Federal agencies to assess the effects of their
regulatory actions on state, local, and Tribal governments, and the
private sector to the extent that such regulations incorporate
requirements specifically set forth in law. Before promulgating a rule
that may result in the expenditure by a state, Tribal, or local
government, in the aggregate, or by the private sector of $100 million,
adjusted annually for inflation, in any 1 year, an agency must prepare
a written statement that assesses the effects on state, Tribal, and
local governments and the private sector. 2 U.S.C. 1532. This proposed
rule would apply to Federal agencies and would not result in
expenditures of $100 million or more for state, local, and Tribal
governments, in the aggregate, or the private sector in any 1 year.
This proposed action also would not impose any enforceable duty,
contain any unfunded mandate, or otherwise have any effect on small
governments subject to the requirements of 2 U.S.C. 1531-1538.
J. Paperwork Reduction Act
This proposed rule would not impose any new information collection
burden that would require additional review or approval by OMB under
the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.
List of Subjects in 40 CFR Parts 1502, 1507, and 1508
Administrative practice and procedure, Environmental impact
statements, Environmental protection, Natural resources.
Brenda Mallory,
Chair.
For the reasons discussed in the preamble, the Council on
Environmental Quality proposes to amend parts 1502, 1507, and 1508 in
title 40 of the Code of Federal Regulations as follows:
PART 1502--ENVIRONMENTAL IMPACT STATEMENT
0
1. Revise the authority citation for part 1502 to read as follows:
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902,
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.
0
2. Revise Sec. 1502.13 to read as follows:
Sec. 1502.13 Purpose and need.
The statement shall briefly specify the underlying purpose and need
to which the agency is responding in proposing the alternatives
including the proposed action.
PART 1507--AGENCY COMPLIANCE
0
3. Revise the authority citation for part 1507 to read as follows:
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902,
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.
0
4. Amend Sec. 1507.3 by revising paragraphs (a) and the introductory
text of paragraph (b) to read as follows:
Sec. 1507.3 Agency NEPA procedures.
(a) The Council has determined that the categorical exclusions
contained in agency NEPA procedures as of September 14, 2020, are
consistent with this subchapter.
(b) No more than 36 months after September 14, 2020, or 9 months
after the establishment of an agency, whichever comes later, each
agency shall develop or revise, as necessary, proposed procedures to
implement the regulations in this subchapter. When the agency is a
department, it may be efficient for major subunits (with the consent of
the department) to adopt their own procedures.
* * * * *
PART 1508--DEFINITIONS
0
5. Revise the authority citation for part 1508 to read as follows:
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902,
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.
0
6. Amend Sec. 1508.1 by revising paragraphs (g) and (z) to read as
follows:
Sec. 1508.1 Definitions.
* * * * *
(g) Effects or impacts means changes to the human environment from
the proposed action or alternatives and include the following:
(1) Direct effects, which are caused by the action and occur at the
same time and place.
(2) Indirect effects, which are caused by the action and are later
in time or farther removed in distance, but are still reasonably
foreseeable. Indirect effects may include growth inducing effects and
other effects related to induced
[[Page 55769]]
changes in the pattern of land use, population density or growth rate,
and related effects on air and water and other natural systems,
including ecosystems.
(3) Cumulative effects, which are effects on the environment that
result from the incremental effects of the action when added to the
effects of other past, present, and reasonably foreseeable actions
regardless of what agency (Federal or non-Federal) or person undertakes
such other actions. Cumulative effects can result from individually
minor but collectively significant actions taking place over a period
of time.
(4) Effects include ecological (such as the effects on natural
resources and on the components, structures, and functioning of
affected ecosystems), aesthetic, historic, cultural, economic, social,
or health, whether direct, indirect, or cumulative. Effects may also
include those resulting from actions which may have both beneficial and
detrimental effects, even if on balance the agency believes that the
effects will be beneficial.
* * * * *
(z) Reasonable alternatives means a reasonable range of
alternatives that are technically and economically feasible, and meet
the purpose and need for the proposed action.
* * * * *
[FR Doc. 2021-21867 Filed 10-6-21; 8:45 am]
BILLING CODE 3325-F2-P
