National Environmental Policy Act Implementing Regulations Revisions Phase 2, 35442-35577 [2024-08792]
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Federal Register / Vol. 89, No. 85 / Wednesday, May 1, 2024 / Rules and Regulations
COUNCIL ON ENVIRONMENTAL
QUALITY
40 CFR Parts 1500, 1501, 1502, 1503,
1504, 1505, 1506, 1507, and 1508
[CEQ–2023–0003]
RIN 0331–AA07
National Environmental Policy Act
Implementing Regulations Revisions
Phase 2
Council on Environmental
Quality.
ACTION: Final rule.
AGENCY:
The Council on
Environmental Quality (CEQ) is
finalizing its ‘‘Bipartisan Permitting
Reform Implementation Rule’’ to revise
its regulations for implementing the
procedural provisions of the National
Environmental Policy Act (NEPA),
including the recent amendments to
NEPA in the Fiscal Responsibility Act.
CEQ is making these revisions to
provide for an effective environmental
review process; ensure full and fair
public engagement; enhance efficiency
and regulatory certainty; and promote
sound Federal agency decision making
that is grounded in science, including
consideration of relevant
environmental, climate change, and
environmental justice effects. These
changes are grounded in NEPA’s
statutory text and purpose, including
making decisions informed by science;
CEQ’s extensive experience
implementing NEPA; CEQ’s perspective
on how NEPA can best inform agency
decision making; longstanding Federal
agency experience and practice; and
case law interpreting NEPA’s
requirements.
SUMMARY:
The effective date is July 1, 2024.
CEQ established a docket
for this action under docket number
CEQ–2023–0003. All documents in the
docket are listed on
www.regulations.gov.
DATES:
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
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Amy B. Coyle, Deputy General Counsel,
202–395–5750, Amy.B.Coyle@
ceq.eop.gov; Megan Healy, Deputy
Director for NEPA, 202–395–5750,
Megan.E.Healy@ceq.eop.gov.
SUPPLEMENTARY INFORMATION:
I. Background
This final rule completes a
multiphase rulemaking process that
CEQ initiated in 2021 to revise its
regulations to improve implementation
of the National Environmental Policy
Act (NEPA). Throughout the process,
CEQ engaged with agency experts who
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implement NEPA on a daily basis to
develop revisions to the regulations to
enhance the clarity of the regulatory
text, improve the efficiency and
effectiveness of the NEPA process,
enhance regulatory certainty and
address potential sources of litigation
risk, and promote consistency across the
Federal Government while recognizing
the importance of providing agencies
with flexibility to tailor their NEPA
processes to the specific statutes and
factual contexts in which they
administer their programs and
decisions. CEQ also engaged with
individuals affected by agency
implementation of NEPA, including
representatives of Tribal Nations,
environmental justice experts, and
representatives of various industries, to
gather input on how to improve the
NEPA process. CEQ proposed and is
now finalizing this rule to reflect the
input CEQ has received, the decades of
CEQ and agency experience
implementing NEPA, and the recent
statutory amendments to NEPA. This
final rule will help agencies more
successfully implement NEPA and
facilitate a more efficient and effective
environmental review process.
A. NEPA Statute
To declare an ambitious and visionary
national policy to promote
environmental protection for present
and future generations, Congress
enacted NEPA in 1969 by a unanimous
vote in the Senate and a nearly
unanimous vote in the House,1 and
President Nixon signed it into law on
January 1, 1970. NEPA seeks to
‘‘encourage productive and enjoyable
harmony’’ between humans and the
environment, recognizing the ‘‘profound
impact’’ of human activity and the
‘‘critical importance of restoring and
maintaining environmental quality’’ to
the overall welfare of humankind. 42
U.S.C. 4321, 4331. Furthermore, NEPA
seeks to promote efforts that will
prevent or eliminate damage to the
environment and biosphere and
stimulate the health and welfare of
people, making it the continuing policy
of the Federal Government to use all
practicable means and measures to
create and maintain conditions under
which humans and nature can exist in
productive harmony and fulfill the
social, economic, and other
requirements of present and future
generations of Americans. 42 U.S.C.
4331(a). It also recognizes that each
1 See Linda Luther, Cong. Rsch. Serv., RL33152,
The National Environmental Policy Act:
Background and Implementation, 4 (2011), https://
crsreports.congress.gov/product/details?
prodcode=RL33152.
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person should have the opportunity to
enjoy a healthy environment and has a
responsibility to contribute to the
preservation and enhancement of the
environment. 42 U.S.C. 4331(c).
NEPA requires Federal agencies to
interpret and administer Federal
policies, regulations, and laws in
accordance with NEPA’s policies and to
consider environmental values in their
decision making. 42 U.S.C. 4332. To
that end, section 102(2)(C) of NEPA
requires Federal agencies to prepare
‘‘detailed statement[s],’’ referred to as
environmental impact statements (EISs),
for ‘‘every recommendation or report on
proposals for legislation and other major
Federal actions significantly affecting
the quality of the human environment’’
and, in doing so, provide opportunities
for public participation to help inform
agency decision making. 42 U.S.C.
4332(2)(C). The EIS process embodies
the understanding that informed
decisions are better decisions and lead
to better environmental outcomes when
decision makers understand, consider,
and publicly disclose environmental
effects of their decisions. The EIS
process also enriches understanding of
the ecological systems and natural
resources important to the Nation and
helps guide sound decision making
based on high-quality information, such
as decisions on infrastructure and
energy development.2 See, e.g., Winter
v. NRDC, 555 U.S. 7, 23 (2008) (‘‘Part of
the harm NEPA attempts to prevent in
requiring an EIS is that, without one,
there may be little if any information
about prospective environmental harms
and potential mitigating measures.’’).
In many respects, NEPA was a statute
ahead of its time and remains vital
today. It codifies the common-sense
idea of ‘‘look before you leap’’ to guide
agency decision making, particularly in
complex and consequential areas,
because conducting sound
environmental analysis before agencies
take actions reduces conflict and waste
in the long run by avoiding unnecessary
harm and uninformed decisions. See,
e.g., 42 U.S.C. 4332; Laclede Gas Co. v.
FERC, 873 F.2d 1494, 1499 (D.C. Cir.
1989) (‘‘When so much depends upon
the agency having a sure footing, it is
not too much for us to demand that it
look first, and then leap if it likes.’’). It
establishes a framework for agencies to
ground decisions in science, by
2 See CEQ, The National Environmental Policy
Act: A Study of Its Effectiveness after Twenty-five
Years 17 (Jan. 1997) (noting that study participants,
which included academics, nonprofit organizations,
and businesses, ‘‘applauded NEPA for opening the
federal process to public input and were convinced
that this open process has improved project design
and implementation.’’).
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requiring professional and scientific
integrity, and recognizes that the public
may have important ideas and
information on how Federal actions can
occur in a manner that reduces potential
harms and enhances ecological, social,
and economic well-being. See, e.g., 42
U.S.C. 4332.
On June 3, 2023, President Biden
signed into law the Fiscal Responsibility
Act of 2023, which included
amendments to NEPA. Specifically, it
amended section 102(2)(C) and added
sections 102(2)(D) through (F) and
sections 106 through 111. 42 U.S.C.
4332(2)(C)–(D), 4336–4336e. The
amendments codify longstanding
principles drawn from CEQ’s NEPA
regulations, decades of agency practice,
and case law interpreting the NEPA
regulations, and provide additional
direction to improve the efficiency and
effectiveness of the NEPA process
consistent with NEPA’s purposes.
Section 102(2)(C) provides that EISs
should include discussion of reasonably
foreseeable environmental effects of the
proposed action, reasonably foreseeable
adverse environmental effects that
cannot be avoided, and a reasonable
range of alternatives to the proposed
action; section 102(2)(D) requires
Federal agencies to ensure the
professional integrity of the discussion
and analysis in an environmental
document; section 102(2)(E) requires
use of reliable data and resources when
carrying out NEPA; and section
102(2)(F) requires agencies to study,
develop, and describe technically and
economically feasible alternatives. 42
U.S.C. 4332(2)(C)–(F).
Section 106 adds provisions for
determining the appropriate level of
NEPA review. It clarifies that an agency
is required to prepare an environmental
document when proposing to take an
action that would constitute a final
agency action, and codifies existing
regulations and case law that an agency
is not required to prepare an
environmental document when doing so
would clearly and fundamentally
conflict with the requirements of
another law or a proposed action is nondiscretionary. See Flint Ridge
Development Co. v. Scenic Rivers Ass’n
of Oklahoma, 426 U.S. 776, 791 (1976)
(holding that a 30–day statutory
deadline for a certain agency action
created a ‘‘clear and fundamental
conflict of statutory duty’’ that excused
the agency from NEPA compliance with
regard to that action); Dep’t of Transp.
v. Pub. Citizen, 541 U.S. 752, 756 (2004)
(concluding that NEPA did not require
an agency to evaluate the environmental
effects of certain actions because the
agency lacked discretion over those
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actions). Section 106 also largely
codifies the current CEQ regulations and
longstanding practice with respect to
the use of categorical exclusions (CEs),
environmental assessments (EAs), and
EISs, as modified by the new provision
expressly permitting agencies to adopt
CEs from other agencies established in
section 109 of NEPA. 42 U.S.C. 4336,
4336c.
Section 107 addresses timely and
unified Federal reviews, largely
codifying existing practice with a few
adjustments, including provisions
clarifying lead, joint-lead, and
cooperating agency designations,
generally requiring development of a
single environmental document,
directing agencies to develop
procedures for project sponsors to
prepare EAs and EISs, and prescribing
page limits and deadlines. 42 U.S.C.
4336a. Section 108 codifies time lengths
and circumstances for when agencies
can rely on programmatic
environmental documents without
additional review, and section 109
allows a Federal agency to adopt and
use another agency’s CE. 42 U.S.C.
4336b, 4336c. Section 111 adds
statutory definitions. 42 U.S.C. 4336e.
This final rule updates the regulations
to address how agencies should
implement NEPA consistent with these
recent amendments.
Section 110 directs CEQ to conduct a
study and submit a report to Congress
on the potential to use online and
digital technologies to improve NEPA
processes. The development of this
report is outside the scope of this
rulemaking and the final rule does not
incorporate provisions related to
implementation of section 110.
B. The Council on Environmental
Quality
NEPA codified the existence of the
Council on Environmental Quality
(CEQ), which had been established 6
months earlier through E.O. 11472,
Establishing the Environmental Quality
Council and the Citizen’s Advisory
Committee on Environmental Quality,
as a component of the Executive Office
of the President. 42 U.S.C. 4342. For
more than 50 years, CEQ has advised
presidents on national environmental
policy, assisted Federal agencies in their
implementation of NEPA and engaged
with them on myriad of environmental
policies, and overseen implementation
of a variety of other environmental
policy initiatives from the expeditious
and thorough environmental review of
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infrastructure projects 3 to the
sustainability of Federal operations.4
NEPA charges CEQ with overseeing
and guiding NEPA implementation
across the Federal Government. In
addition to issuing the regulations for
implementing NEPA, 40 CFR parts 1500
through 1508 (referred to throughout as
‘‘the CEQ regulations’’), CEQ has issued
guidance on numerous topics related to
NEPA review. In 1981, CEQ issued the
‘‘Forty Most Asked Questions
Concerning CEQ’s National
Environmental Policy Act
Regulations,’’ 5 which CEQ has routinely
identified as an invaluable tool for
Federal, Tribal, State, and local
governments and officials, and members
of the public, who have questions about
NEPA implementation.
CEQ also has issued guidance on a
variety of other topics, from scoping to
cooperating agencies to consideration of
3 See, e.g., E.O. 14008, Tackling the Climate Crisis
at Home and Abroad, 86 FR 7619 (Feb. 1, 2021);
E.O. 13604, Improving Performance of Federal
Permitting and Review of Infrastructure Projects, 77
FR 18887 (Mar. 28, 2012); E.O. 13274,
Environmental Stewardship and Transportation
Infrastructure Project Reviews, 67 FR 59449 (Sept.
23, 2002); see also Presidential Memorandum,
Modernizing Federal Infrastructure Review and
Permitting Regulations, Policies, and Procedures, 78
FR 30733 (May 22, 2013).
4 See, e.g., E.O. 14057, Catalyzing Clean Energy
Industries and Jobs Through Federal Sustainability,
86 FR 70935 (Dec. 13, 2021); E.O. 13834, Efficient
Federal Operations, 83 FR 23771 (May 22, 2018);
E.O. 13693, Planning for Federal Sustainability in
the Next Decade, 80 FR 15871 (Mar. 25, 2015); E.O.
13514, Federal Leadership in Environmental,
Energy, and Economic Performance, 74 FR 52117
(Oct. 8, 2009); E.O. 13423, Strengthening Federal
Environmental, Energy, and Transportation
Management, 72 FR 3919 (Jan. 26, 2007); E.O.
13101, Greening the Government Through Waste
Prevention, Recycling, and Federal Acquisition, 63
FR 49643 (Sept. 16, 1998). For Presidential
directives pertaining to other environmental
initiatives, see E.O. 13432, Cooperation Among
Agencies in Protecting the Environment With
Respect to Greenhouse Gas Emissions From Motor
Vehicles, Nonroad Vehicles, and Nonroad Engines,
72 FR 27717 (May 16, 2007) (requiring CEQ and
OMB to implement the E.O. and facilitate Federal
agency cooperation to reduce greenhouse gas
emissions); E.O. 13141, Environmental Review of
Trade Agreements, 64 FR 63169 (Nov. 18, 1999)
(requiring CEQ and the U.S. Trade Representative
to implement the E.O., which has the purpose of
promoting Trade agreements that contribute to
sustainable development); E.O. 13061, Federal
Support of Community Efforts Along American
Heritage Rivers, 62 FR 48445 (Sept. 15, 1997)
(charging CEQ with implementing the American
Heritage Rivers initiative); E.O. 13547, Stewardship
of the Ocean, Our Coasts, and the Great Lakes, 75
FR 43023 (July 22, 2010) (directing CEQ to lead the
National Ocean Council); E.O. 13112, Invasive
Species, 64 FR 6183 (Feb. 8, 1999) (requiring the
Invasive Species Council to consult with CEQ to
develop guidance to Federal agencies under NEPA
on prevention and control of invasive species).
5 CEQ, Forty Most Asked Questions Concerning
CEQ’s National Environmental Policy Act
Regulations, 46 FR 18026 (Mar. 23, 1981) (Forty
Questions), https://www.energy.gov/nepa/
downloads/forty-most-asked-questions-concerningceqs-national-environmental-policy-act.
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effects.6 For example, in 1997, CEQ
issued guidance documents on the
consideration of environmental justice
in the NEPA context 7 under E.O. 12898,
Federal Actions to Address
Environmental Justice in Minority
Populations and Low-Income
Populations,8 and on analysis of
cumulative effects in NEPA reviews.9
From 2010 to the present, CEQ
developed additional guidance on CEs,
mitigation, programmatic reviews, and
consideration of greenhouse gas (GHG)
emissions in NEPA.10 To ensure
coordinated environmental reviews,
6 See, e.g., CEQ, Memorandum for General
Counsels, NEPA Liaisons and Participants in
Scoping (Apr. 30, 1981), https://www.energy.gov/
nepa/downloads/scoping-guidance-memorandumgeneral-counsels-nepa-liaisons-and-participantsscoping; CEQ, Incorporating Biodiversity
Considerations Into Environmental Impact Analysis
Under the National Environmental Policy Act (Jan.
1993), https://ceq.doe.gov/publications/
incorporating_biodiversity.html; CEQ, Council on
Environmental Quality Guidance on NEPA
Analyses for Transboundary Impacts (July 1,1997),
https://ceq.doe.gov/docs/ceq-regulations-andguidance/memorandum-transboundary-impacts070197.pdf; CEQ, Designation of Non-Federal
Agencies to be Cooperating Agencies in
Implementing the Procedural Requirements of the
National Environmental Policy Act (July 28, 1999),
https://ceq.doe.gov/docs/ceq-regulations-andguidance/regs/ceqcoop.pdf; CEQ, Identifying NonFederal Cooperating Agencies in Implementing the
Procedural Requirements of the National
Environmental Policy Act (Sept. 25, 2000), https://
ceq.doe.gov/docs/ceq-regulations-and-guidance/
memo-non-federal-cooperating-agencies09252000.pdf; CEQ & DOT Letters on Lead and
Cooperating Agency Purpose and Need (May 12,
2003), https://ceq.doe.gov/docs/ceq-regulationsand-guidance/CEQ-DOT_PurposeNeed_May2013.pdf.
7 CEQ, Environmental Justice: Guidance under
the National Environmental Policy Act (Dec. 10,
1997) (Environmental Justice Guidance), https://
ceq.doe.gov/docs/ceq-regulations-and-guidance/
regs/ej/justice.pdf.
8 E.O. 12898, Federal Actions To Address
Environmental Justice in Minority Populations and
Low-Income Populations, 59 FR 7629 (Feb. 16,
1994).
9 CEQ, Considering Cumulative Effects Under the
National Environmental Policy Act (Jan. 1997),
https://ceq.doe.gov/publications/cumulative_
effects.html; see also CEQ, Guidance on the
Consideration of Past Actions in Cumulative Effects
Analysis (June 24, 2005), https://www.energy.gov/
sites/default/files/nepapub/nepa_documents/
RedDont/G-CEQ-PastActsCumulEffects.pdf.
10 CEQ, Establishing, Applying, and Revising
Categorical Exclusions under the National
Environmental Policy Act (Nov. 23, 2010) (CE
Guidance), https://ceq.doe.gov/docs/ceqregulations-and-guidance/NEPA_CE_Guidance_
Nov232010.pdf; CEQ, Final Guidance for Federal
Departments and Agencies on the Appropriate Use
of Mitigation and Monitoring and Clarifying the
Appropriate Use of Mitigated Findings of No
Significant Impact, 76 FR 3843 (Jan. 21, 2011)
(Mitigation Guidance), https://ceq.doe.gov/docs/
ceq-regulations-and-guidance/Mitigation_and_
Monitoring_Guidance_14Jan2011.pdf; CEQ,
National Environmental Policy Act Guidance on
Consideration of Greenhouse Gas Emissions and
Climate Change, 88 FR 1196 (Jan. 9, 2023) (2023
GHG Guidance), https://ceq.doe.gov/guidance/ceq_
guidance_nepa-ghg.html.
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CEQ has issued guidance to integrate
NEPA reviews with other environmental
review requirements such as the
National Historic Preservation Act, E.O.
11988, Floodplain Management, and
E.O. 11990, Protection of Wetlands.11
Additionally, CEQ has provided
guidance to ensure efficient and
effective environmental reviews,
particularly for infrastructure projects.12
Finally, CEQ has published resources
for members of the public to assist them
in understanding the NEPA process and
how they can effectively engage in
agency NEPA reviews to make sure their
voices are heard.13
In addition to guidance, CEQ engages
frequently with Federal agencies on
their implementation of NEPA. CEQ is
responsible for consulting with all
agencies on the development of their
NEPA implementing procedures and
determining that those procedures
conform with NEPA and the CEQ
regulations. Through this process, CEQ
engages with agencies to understand
their specific authorities and programs
to ensure agencies integrate
consideration of environmental effects
into their decision-making processes.
CEQ also provides feedback and advice
on how agencies may effectively
implement NEPA through their
procedures. Additionally, CEQ provides
recommendations on how agencies can
coordinate on or align their respective
procedures to ensure consistent
implementation of NEPA across
11 CEQ, Implementation of Executive Order 11988
on Floodplain Management and Executive Order
11990 on Protection of Wetlands (Mar. 21, 1978),
https://ceq.doe.gov/docs/ceq-regulations-andguidance/Memorandum-Implementation-of-E.O.11988-and-E.O.-11990-032178.pdf; CEQ & Advisory
Council on Historic Preservation, NEPA and NHPA:
A Handbook for Integrating NEPA and Section 106
(Mar. 2013), https://ceq.doe.gov/docs/ceqpublications/NEPA_NHPA_Section_106_
Handbook_Mar2013.pdf.
12 See, e.g., CEQ, Final Guidance on Improving
the Process for Preparing Efficient and Timely
Environmental Reviews Under the National
Environmental Policy Act, 77 FR 14473 (Mar. 12,
2012), https://ceq.doe.gov/docs/ceq-regulationsand-guidance/Improving_NEPA_Efficiencies_
06Mar2012.pdf; CEQ, Effective Use of Programmatic
NEPA Reviews (Dec. 18, 2014) (Programmatic
Guidance), https://www.energy.gov/sites/default/
files/2016/05/f31/effective_use_of_programmatic_
nepa_reviews_18dec2014.pdf; OMB & CEQ, M–15–
20, Guidance Establishing Metrics for the
Permitting and Environmental Review of
Infrastructure Projects (Sept. 22, 2015), https://
www.whitehouse.gov/wp-content/uploads/legacy_
drupal_files/omb/memoranda/2015/m-15-20.pdf;
OMB & CEQ, M–17–14, Guidance to Federal
Agencies Regarding the Environmental Review and
Authorization Process for Infrastructure Projects
(Jan. 13, 2017), https://www.whitehouse.gov/wpcontent/uploads/legacy_drupal_files/omb/
memoranda/2017/m-17-14.pdf.
13 CEQ, A Citizen’s Guide to the National
Environmental Policy Act; Having Your Voice
Heard (Jan. 2021), https://ceq.doe.gov/get-involved/
citizens_guide_to_nepa.html.
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agencies. This role is particularly
important in situations where multiple
agencies and applicants are regularly
involved, such as the review of
infrastructure projects.
Second, CEQ consults with agencies
on the efficacy and effectiveness of
NEPA implementation. Where necessary
or appropriate, CEQ engages with
agencies on NEPA reviews for specific
projects or project types to provide
advice and identify any emerging or
cross-cutting issues that would benefit
from CEQ issuing formal guidance or
assisting with interagency coordination.
This includes establishing alternative
arrangements for compliance with
NEPA when agencies encounter
emergency situations where they need
to act swiftly while also ensuring they
meet their NEPA obligations. CEQ also
advises on NEPA compliance when
agencies are establishing new programs
or implementing new statutory
authorities. Finally, CEQ helps advance
the environmental review process for
projects or initiatives deemed important
to an administration such as nationally
and regionally significant projects,
major infrastructure projects, and
consideration of certain types of effects,
such as climate change-related effects
and effects on communities with
environmental justice concerns.14
Third, CEQ meets regularly with
external stakeholders to understand
their perspectives on the NEPA process.
These meetings can help inform CEQ’s
development of guidance or other
initiatives and engagement with Federal
agencies. Finally, CEQ coordinates with
other Federal agencies and components
of the White House on a wide array of
environmental issues and reviews that
intersect with the NEPA process, such
as Endangered Species Act consultation
or effects to Federal lands and waters
from federally authorized activities.
In addition to its NEPA
responsibilities, CEQ is currently
charged with implementing several of
the administration’s key environmental
priorities, including efficient and
effective environmental review and
permitting. On January 27, 2021, the
President signed E.O. 14008, Tackling
the Climate Crisis at Home and Abroad,
to establish a government-wide
approach to the climate crisis by
14 See, e.g., Presidential Memorandum, Speeding
Infrastructure Development Through More Efficient
and Effective Permitting and Environmental Review
(Aug. 31, 2011), https://obamawhitehouse.
archives.gov/the-press-office/2011/08/31/
presidential-memorandum-speeding-infrastructuredevelopment-through-more; E.O. 13807,
Establishing Discipline and Accountability in the
Environmental Review and Permitting Process for
Infrastructure Projects, 82 FR 40463 (Aug. 24,
2017).
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reducing GHG emissions across the
economy; increasing resilience to
climate change-related effects;
conserving land, water, and
biodiversity; transitioning to a cleanenergy economy; and advancing
environmental justice, including
delivering the benefits of Federal
investments to disadvantaged
communities.15 CEQ is leading the
President’s efforts to secure
environmental justice consistent with
sections 219 through 223 of the E.O. For
example, CEQ has developed the
Climate and Economic Justice Screening
Tool,16 and collaborates with the Office
of Management and Budget (OMB) and
the National Climate Advisor on
implementing the Justice40 initiative,
which sets a goal that 40 percent of the
overall benefits of certain Federal
investments flow to disadvantaged
communities.17
Section 205 of the E.O. also charged
CEQ with developing the Federal
Sustainability Plan to achieve a carbon
pollution-free electricity sector and
clean and zero-emission vehicle fleets.
Thereafter, CEQ issued the Federal
Sustainability Plan,18 which
accompanied E.O. 14057, Catalyzing
Clean Energy Industries and Jobs
Through Federal Sustainability.19 CEQ
is leading the efforts with its agency
partners to implement E.O. 14057’s
ambitious goals, which include
reducing Federal agency GHG emissions
by 65 percent and improving the climate
resilience of Federal infrastructure and
operations. CEQ also is collaborating
with the Departments of the Interior,
Agriculture, and Commerce on the
implementation of the America the
Beautiful Initiative, which was issued to
achieve the goal of conserving at least
30 percent of our lands and waters by
2030 as set forth in E.O. 14008.20
Additionally, E.O. 14008 requires the
Chair of CEQ and the Director of OMB
to ensure that Federal permitting
decisions consider the effects of GHG
emissions and climate change.21
15 E.O.
14008, supra note 3.
Explore the Map, Climate and Economic
Justice Screening Tool, https://screeningtool.
geoplatform.gov/.
17 E.O. 14008, supra note 3, sec. 223.
18 CEQ, Federal Sustainability Plan (Dec. 2021),
https://www.sustainability.gov/federalsustainability
plan/.
19 E.O. 14057, supra note 4.
20 E.O. 14008, supra note 3.
21 Id. at sec. 213(a); see also id., sec. 219
(directing agencies to ‘‘make achieving
environmental justice part of their missions by
developing programs, policies, and activities to
address the disproportionately high and adverse
human health, environmental, climate-related and
other cumulative impacts on disadvantaged
communities’’).
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16 CEQ,
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CEQ is also instrumental to the
President’s efforts to institute a
government-wide approach to
advancing environmental justice. On
April 21, 2023, the President signed
E.O. 14096, Revitalizing Our Nation’s
Commitment to Environmental Justice
for All, to further embed environmental
justice into the work of Federal agencies
and ensure that all people can benefit
from the vital safeguards enshrined in
the Nation’s foundational
environmental and civil rights laws.22
The E.O. charges each agency to make
achieving environmental justice part of
its mission consistent with the agency’s
statutory authority,23 and requires each
agency to submit to the Chair of CEQ
and make publicly available an
Environmental Justice Strategic Plan
setting forth the agency’s goals and
plans for advancing environmental
justice.24 Further, section 8 of the E.O.
establishes a White House Office of
Environmental Justice within CEQ.
Additionally, CEQ plays a significant
role in improving interagency
coordination and providing for efficient
environmental reviews and permitting
under the Biden-Harris Permitting
Action Plan.25 The Action Plan outlines
the Administration’s strategy for
ensuring that Federal environmental
reviews and permitting processes are
effective, efficient, and transparent,
guided by the best available science to
promote positive environmental and
community outcomes, and shaped by
early and meaningful public
engagement. The Action Plan contains
five key elements that build on
strengthened Federal approaches to
environmental reviews and permitting:
(1) accelerating permitting through early
cross-agency coordination to
appropriately scope reviews, reduce
bottlenecks, and use the expertise of
sector-specific teams; (2) establishing
22 E.O. 14096, Revitalizing Our Nation’s
Commitment to Environmental Justice for All, 88 FR
25251 (Apr. 26, 2023). E.O. 14096 builds upon
efforts to advance environmental justice and equity
consistent with the policy advanced in documents
including E.O. 13985, E.O. 14091, and E.O. 14008,
and supplements the foundational efforts of E.O.
12898 to deliver environmental justice to
communities across America. See E.O. 13985,
Advancing Racial Equity and Support for
Underserved Communities Through the Federal
Government, 86 FR 7009 (Jan. 25, 2021); E.O. 14091,
Further Advancing Racial Equity and Support for
Underserved Communities Through the Federal
Government, 88 FR 10825 (Feb. 22, 2023); E.O.
14008, supra note 3; and E.O. 12898, supra note 8.
23 E.O. 14096, supra note 22, sec. 3.
24 Id. at sec. 4.
25 The Biden-Harris Permitting Action Plan to
Rebuild America’s Infrastructure, Accelerate the
Clean Energy Transition, Revitalize Communities,
and Create Jobs (May 22, 2022), https://
www.whitehouse.gov/wp-content/uploads/2022/05/
Biden-Harris-Permitting-Action-Plan.pdf.
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clear timeline goals and tracking key
project information to improve
transparency and accountability,
providing increased certainty for project
sponsors and the public; (3) engaging in
early and meaningful outreach and
communication with Tribal Nations,
States, Territories, and local
communities; (4) improving agency
responsiveness, technical assistance,
and support to navigate the
environmental review and permitting
process effectively and efficiently; and
(5) adequately resourcing agencies and
using the environmental review process
to improve environmental and
community outcomes.
Finally, CEQ is staffed with experts
with decades of NEPA experience as
well as other environmental law and
policy experience. As part of CEQ’s
broader environmental policy role, CEQ
advises the President on environmental
issues facing the nation, and on the
design and implementation of the
President’s environmental initiatives. In
that role, CEQ collaborates with
agencies and provides feedback on their
implementation of the numerous
environmental statutes and directives.
CEQ’s diverse array of responsibilities
and expertise has long influenced the
implementation of NEPA, and CEQ
relied extensively on this experience in
developing this rulemaking.
C. NEPA Implementation 1970–2019
Following shortly after the enactment
of NEPA, President Nixon issued E.O.
11514, Protection and Enhancement of
Environmental Quality, directing CEQ to
issue guidelines for implementation of
section 102(2)(C) of NEPA.26 In
response, CEQ in April 1970 issued
interim guidelines, which addressed the
provisions of section 102(2)(C) of the
Act regarding EIS requirements.27 CEQ
revised the guidelines in 1971 and 1973
to address public involvement and
introduce the concepts of EAs and draft
and final EISs.28
In 1977, President Carter issued E.O.
11991, Relating to Protection and
Enhancement of Environmental Quality,
amending E.O. 11514 and directing CEQ
to issue regulations for implementation
26 E.O. 11514, Protection and Enhancement of
Environmental Quality, 35 FR 4247 (Mar. 7, 1970),
sec. 3(h).
27 See CEQ, Statements on Proposed Federal
Actions Affecting the Environment, 35 FR 7390
(May 12, 1970) (interim guidelines).
28 CEQ, Statements on Proposed Federal Actions
Affecting the Environment, 36 FR 7724 (Apr. 23,
1971) (final guidelines); CEQ, Preparation of
Environmental Impact Statements, 38 FR 10856
(May 2, 1973) (proposed revisions to the
guidelines); CEQ, Preparation of Environmental
Impact Statements: Guidelines, 38 FR 20550 (Aug.
1, 1973) (revised guidelines).
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of section 102(2)(C) of NEPA and
requiring that Federal agencies comply
with those regulations.29 CEQ
promulgated its NEPA regulations in
1978.30 Issued 8 years after NEPA’s
enactment, the NEPA regulations
reflected CEQ’s interpretation of the
statutory text and Congressional intent,
expertise developed through issuing and
revising the CEQ guidelines and
advising Federal agencies on their
implementation of NEPA, initial
interpretations of the courts, and
Federal agency experience
implementing NEPA. The 1978
regulations reflected the fundamental
principles of informed and sciencebased decision making, transparency,
and public engagement that Congress
established in NEPA. The regulations
further required agency-level
implementation, directing Federal
agencies to issue and periodically
update agency-specific implementing
procedures to supplement CEQ’s
procedures and integrate the NEPA
process into the agencies’ specific
programs and processes. Consistent
with 42 U.S.C. 4332(2)(B), the
regulations also required agencies to
consult with CEQ in the development or
update of these agency-specific
procedures to ensure consistency with
CEQ’s regulations.
CEQ made typographical amendments
to the 1978 implementing regulations in
1979 31 and amended one provision in
1986 (CEQ refers to these regulations, as
amended, as the ‘‘1978 regulations’’ in
this preamble).32 Otherwise, CEQ left
the regulations unchanged for over 40
years. As a result, CEQ and Federal
agencies developed extensive
experience implementing the 1978
regulations, and a large body of agency
practice and case law developed based
on them. See, e.g., Robertson v. Methow
Valley Citizens Council, 490 U.S. 332,
355 (1989) (‘‘CEQ regulations are
entitled to substantial deference.’’); Wild
Va. v. Council on Env’t Quality, 56 F.4th
281, 288 (4th Cir. 2022) (noting that
prior to the 2020 rule, CEQ’s NEPA
regulations ‘‘had remained virtually
unchanged since 1978.’’)
29 E.O. 11991, Relating to Protection and
Enhancement of Environmental Quality, 42 FR
26967 (May 25, 1977).
30 CEQ, Implementation of Procedural Provisions;
Final Regulations, 43 FR 55978 (Nov. 29, 1978).
31 CEQ, Implementation of Procedural Provisions;
Corrections, 44 FR 873 (Jan. 3, 1979).
32 CEQ, National Environmental Policy Act
Regulations; Incomplete or Unavailable
Information, 51 FR 15618 (Apr. 25, 1986)
(amending 40 CFR 1502.22).
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D. 2020 Amendments to the CEQ
Regulations
On August 15, 2017, President Trump
issued E.O. 13807, Establishing
Discipline and Accountability in the
Environmental Review and Permitting
Process for Infrastructure Projects,33
which directed CEQ to establish and
lead an interagency working group to
identify and propose changes to the
NEPA regulations.34 In response, CEQ
issued an advance notice of proposed
rulemaking (ANPRM) on June 20,
2018,35 and a notice of proposed
rulemaking (NPRM) on January 10,
2020, proposing broad revisions to the
1978 regulations.36 A wide range of
stakeholders submitted more than
12,500 comments on the ANPRM 37 and
1.1 million comments on the proposed
rule,38 including from State and local
governments, Tribes, environmental
advocacy organizations, professional
and industry associations, other
advocacy or non-profit organizations,
businesses, and private citizens. Many
commenters provided detailed feedback
on the legality, policy wisdom, and
potential consequences of the proposed
amendments. In keeping with the
proposed rule, the final rule,
promulgated on July 16, 2020 (2020
regulations or 2020 rule), made
wholesale revisions to the regulations; it
took effect on September 14, 2020.39
In the months that followed the
issuance of the 2020 rule, five lawsuits
were filed challenging the 2020 rule.40
33 E.O.
13807, supra note 14.
at sec. 5(e)(iii).
35 CEQ, Update to the Regulations for
Implementing the Procedural Provisions of the
National Environmental Policy Act, 83 FR 28591
(June 20, 2018).
36 CEQ, Update to the Regulations Implementing
the Procedural Provisions of the National
Environmental Policy Act, 85 FR 1684 (Jan. 10,
2020).
37 See Docket No. CEQ–2018–0001, Update to the
Regulations for Implementing the Procedural
Provisions of the National Environmental Policy
Act, https://www.regulations.gov/document/CEQ2018-0001-0001.
38 See Docket No. CEQ–2019–0003, Update to the
Regulations for Implementing the Procedural
Provisions of the National Environmental Policy
Act, https://www.regulations.gov/document/CEQ2019-0003-0001.
39 CEQ, Update to the Regulations Implementing
the Procedural Provisions of the National
Environmental Policy Act, 85 FR 43304 (July 16,
2020) (2020 Final Rule).
40 Wild Va. v. Council on Env’t Quality, No.
3:20cv45 (W.D. Va. 2020); Env’t Justice Health All.
v. Council on Env’t Quality, No. 1:20cv06143
(S.D.N.Y. 2020); Alaska Cmty. Action on Toxics v.
Council on Env’t Quality, No. 3:20cv5199 (N.D. Cal.
2020); California v. Council on Env’t Quality, No.
3:20cv06057 (N.D. Cal. 2020); Iowa Citizens for
Cmty. Improvement v. Council on Env’t Quality, No.
1:20cv02715 (D.D.C. 2020). Additionally, in Clinch
Coalition v. U.S. Forest Serv., No. 2:21cv00003
(W.D. Va. 2021), plaintiffs challenged the U.S.
34 Id.
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These cases challenge the 2020 rule on
a variety of grounds, including under
the Administrative Procedure Act
(APA), NEPA, and the Endangered
Species Act, and contend that the rule
exceeded CEQ’s authority and that the
related rulemaking process was
procedurally and substantively
defective. The district courts issued
temporary stays in each of these cases,
except for Wild Virginia v. Council on
Environmental Quality, which the
district court dismissed without
prejudice on June 21, 2021.41 The
Fourth Circuit affirmed that dismissal
on December 22, 2022.42
E. CEQ’s Review of the 2020 Regulations
On January 20, 2021, President Biden
issued E.O. 13990, Protecting Public
Health and the Environment and
Restoring Science To Tackle the Climate
Crisis,43 to establish an administration
policy to listen to the science; improve
public health and protect our
environment; ensure access to clean air
and water; limit exposure to dangerous
chemicals and pesticides; hold polluters
accountable, including those who
disproportionately harm communities of
color and low-income communities;
reduce GHG emissions; bolster
resilience to the impacts of climate
change; restore and expand the Nation’s
treasures and monuments; and prioritize
both environmental justice and the
creation of well-paying union jobs
necessary to achieve these goals.44 The
Executive Order calls for Federal
agencies to review existing regulations
issued between January 20, 2017, and
January 20, 2021, for consistency with
the policy it articulates and to take
appropriate action.45 The Executive
Order also revokes E.O. 13807 and
directs agencies to take steps to rescind
any rules or regulations implementing
it.46 An accompanying White House fact
sheet, published on January 20, 2021,
specifically identified the 2020
regulations for CEQ’s review for
consistency with E.O. 13990’s policy.47
Forest Service’s NEPA implementing procedures,
which established new CEs, and, relatedly, the 2020
rule’s provisions on CEs.
41 Wild Va. v. Council on Env’t Quality, 544 F.
Supp. 3d 620 (W.D. Va. 2021).
42 Wild Va. v. Council on Env’t Quality, 56 F.4th
281 (4th Cir. 2022).
43 E.O. 13990, Protecting Public Health and the
Environment and Restoring Science To Tackle the
Climate Crisis, 86 FR 7037 (Jan. 25, 2021).
44 Id. at sec. 1.
45 Id. at sec. 2.
46 Id. at sec. 7.
47 The 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/.
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Consistent with E.O. 13990 and E.O.
14008, CEQ has reviewed the 2020
regulations and engaged in a multiphase rulemaking process to ensure that
the NEPA implementing regulations
provide for sound and efficient
environmental review of Federal
actions, including those actions integral
to tackling the climate crisis, in a
manner that enables meaningful public
participation, provides for an
expeditious process, discloses climate
change-related effects, advances
environmental justice, respects Tribal
sovereignty, protects our Nation’s
resources, and promotes better and more
equitable environmental and
community outcomes.
On June 29, 2021, CEQ issued an
interim final rule to amend the
requirement in 40 CFR 1507.3(b)
(2020) 48 that agencies propose changes
to existing agency-specific NEPA
procedures to make those procedures
consistent with the 2020 regulations by
September 14, 2021.49 CEQ extended
the date by 2 years to avoid agencies
proposing changes to agency-specific
implementing procedures on a tight
deadline to conform to regulations that
were undergoing extensive review and
would likely change in the near future.
Next, on October 7, 2021, CEQ issued
a ‘‘Phase 1’’ proposed rule to focus on
a discrete set of provisions designed to
restore three elements of the 1978
regulations, which CEQ finalized on
April 20, 2022.50 First, the Phase 1 rule
revised 40 CFR 1502.13 (2020), with a
conforming edit to 40 CFR 1508.1(z)
(2020), to clarify that agencies have
discretion to consider a variety of
factors when assessing an application
for authorization by removing a
requirement that an agency base the
purpose and need on the goals of an
applicant and the agency’s statutory
authority. Second, CEQ removed
language in 40 CFR 1507.3 (2020) that
could be construed to limit agencies’
flexibility to develop or revise
procedures to implement NEPA specific
to their programs and functions that
may go beyond CEQ’s regulatory
requirements. Finally, CEQ revised the
48 In the preamble, CEQ uses the section symbol
(§ ) to refer to the proposed or final regulations; 40
CFR 150X.X (2020) or (2022) to refer to the current
CEQ regulations as set forth in 40 CFR parts 1500–
1508, which this Final Rule amends; and 40 CFR
150X.X (2019) to refer to the CEQ regulations as
they existed prior to the 2020 rule.
49 CEQ, Deadline for Agencies to Propose Updates
to National Environmental Policy Act Procedures,
86 FR 34154 (June 29, 2021).
50 CEQ, National Environmental Policy Act
Implementing Regulations Revisions, 86 FR 55757
(Oct. 7, 2021) (Phase 1 proposed rule); CEQ,
National Environmental Policy Act Implementing
Regulations Revisions, 87 FR 23453 (Apr. 20, 2022)
(Phase 1 Final Rule).
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definition of ‘‘effects’’ in 40 CFR
1508.1(g) (2020) to restore the substance
of the definitions of ‘‘effects’’ and
‘‘cumulative impacts’’ contained in the
1978 regulations.
On July 31, 2023, CEQ published the
Phase 2 notice of proposed rulemaking
(proposed rule or NPRM), initiating a
broader rulemaking to revise, update,
and modernize the NEPA implementing
regulations.51 Informed by CEQ’s
extensive experience implementing
NEPA, public and agency input, and
Congress’s amendments to NEPA, CEQ
proposed further revisions to improve
the efficiency and effectiveness of
environmental reviews; ensure that
environmental reviews are guided by
science and are consistent with the
statute’s text and purpose; enhance
clarity and certainty for Federal
agencies, project proponents, and the
public; enable full and fair public
participation and a process that informs
the public about the potential
environmental effects of agency actions;
and ultimately promote better informed
Federal decisions that protect and
enhance the quality of the human
environment, including by ensuring
climate change, environmental justice,
and other environmental issues are fully
accounted for in agencies’ decisionmaking processes.
Publication of the proposed rule
initiated a 60–day public comment
period that concluded on September 29,
2023. CEQ held four virtual public
meetings on the proposed rule on
August 26, 2023; August 30, 2023;
September 11, 2023; and September 21,
2023, as well as two Tribal
consultations on September 6, 2023, and
September 12, 2023. CEQ received
approximately 147,963 written
comments and 86 oral comments in
response to the proposed rule and
considered these 148,049 comments in
the development of this final rule. A
majority of the comments
(approximately 147,082) were campaign
form letters sent in response to an
organized initiative and are identical or
very similar in form and content. CEQ
received approximately 920 unique
public comments, of which 540 were
substantive comments on a variety of
aspects of the rulemaking approach and
contents of the proposed rule.
The majority of the unique comments
expressed overall or conditional support
for the proposed rule. CEQ provides a
summary of the comments received on
the proposed rule and responses to
those comment summaries in the
51 CEQ, National Environmental Policy Act
Implementing Regulations Revision Phase 2, 88 FR
49924 (July 31, 2023) (Phase 2 proposed rule).
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document, ‘‘National Environmental
Policy Act Implementing Regulations
Revision Phase 2 Response to
Comments’’ (Phase 2 Response to
Comments). Additionally, CEQ provides
brief comment summaries and
responses for many of the substantive
comments it received as part of the
summary and rationale for the final rule
in section II.
As discussed in section I.B, CEQ
relies on its extensive experience
overseeing and implementing NEPA in
the development of this rule. CEQ has
over 50 years of experience advising
Federal agencies on the implementation
of NEPA and is staffed by NEPA
practitioners who have decades of
experience implementing NEPA at
agencies across the Federal Government
as well as from outside the government,
including State governments and
applicants whose activities require
Federal action. CEQ collaborates daily
with Federal agencies on specific NEPA
reviews, provides government-wide
guidance on NEPA implementation,
including the recent NEPA
amendments, consults with agencies on
the development of agency-specific
NEPA implementing procedures and
determines whether the procedures
conform with NEPA and the CEQ
regulations, and advises the President
on a vast array of environmental issues.
This experience also enables CEQ to
contextualize the patchwork of factspecific judicial decisions that have
evolved under NEPA. This rulemaking
seeks to bring clarity and predictability
to Federal agencies and outside parties
whose activities require Federal action
and therefore trigger NEPA review,
while also facilitating better
environmental and social outcomes due
to informed decision making.
II. Summary of and Rationale for the
Final Rule
This section summarizes the changes
CEQ proposed to its NEPA
implementing regulations in the notice
of proposed rulemaking (NPRM or
proposed rule), the public comments
CEQ received on those proposed
changes, a description of the revisions
made through this final rule, and the
rationale for those changes. CEQ’s
revisions fall into five general
categories. First, CEQ makes revisions to
the regulations to implement the
amendments to NEPA made by the
Fiscal Responsibility Act. Second, CEQ
amends the regulations to enhance
consistency and clarity. Third, CEQ
revises the regulations based on decades
of CEQ and agency experience
implementing and complying with
NEPA to improve the efficiency and
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effectiveness of the environmental
review process, foster science-based
decision making, better effectuate
NEPA’s statutory purposes, and reflect
developments in case law. Fourth, CEQ
reverts to and revises for clarity certain
language from the 1978 regulations,
which were in effect for more than 40
years before the 2020 rule revised them,
where CEQ determined the 1978
language provides clearer and more
effective and predictable direction or
guidance to implement NEPA. Fifth,
CEQ removes certain provisions added
by the 2020 rule that CEQ considers
imprudent or legally unsettled, or that
create uncertainty or ambiguity that
could reduce efficiency or increase the
risk of litigation. Outside of those
revisions, CEQ retains many of the
changes made in the 2020 rulemaking,
including changes that codified
longstanding practice or guidance or
enhanced the efficiency and
effectiveness of the NEPA process. For
example, CEQ identified for retention
the inclusion of Tribal interests
throughout the regulations, the
integration of mechanisms to facilitate
better interagency cooperation, and the
reorganization and modernization of
provisions addressing certain elements
of the process to make the regulations
easier to understand and follow. CEQ
considers it important that the
regulations meet current goals and
objectives, including to promote the
development of NEPA documents that
are concise but also include the
information needed to inform decision
makers and reflect public input.
In response to the Phase 1 proposed
rule, CEQ received many comments on
provisions not addressed in Phase 1.
CEQ indicated in the Phase 1 Final Rule
that it would consider such comments
during the development of this Phase 2
rulemaking. CEQ has done so, and
where applicable, this final rule
provides a high-level summary of the
important issues raised in those public
comments. Where CEQ has retained
provisions as finalized in the Phase 1
rulemaking, CEQ incorporates by
reference the discussion of those
provisions in the Phase 1 proposed and
final rule, as well as the Phase 1
Response to Comments.52 CEQ is
revising and republishing the entirety of
the NEPA regulations, Subpart A of
52 CEQ, Phase 1 proposed rule, supra note 50;
CEQ, Phase 1 Final Rule, supra note 50; CEQ,
National Environmental Policy Act Implementing
Regulations Revision Phase 1 Response to
Comments (Apr. 2022) (Phase 1 Response to
Comments), https://www.regulations.gov/
document/CEQ-2021-0002-39427.
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Chapter V, Title 40 of the Code of
Federal Regulations.53
A. Changes Throughout Parts 1500–
1508
In the NPRM, CEQ proposed several
revisions throughout parts 1500 through
1508 to provide consistency, improve
clarity, and correct grammatical errors.
CEQ proposed clarifying edits because
unclear language can create confusion
and undermine consistent
implementation, thereby improving the
efficiency of the NEPA process and
reducing the risk of litigation.
For these reasons, CEQ proposed to
change the word ‘‘impact’’ to ‘‘effect’’
throughout the regulations where this
term is used as a noun because these
two words are synonymous, with three
exceptions. The regulations would
continue to refer to a finding of no
significant impact (FONSI) because that
term has been widely used and
recognized and making the substitution
of effect for impact in that instance
could create confusion rather than add
clarity, and environmental impact
statement because this term is used in
the NEPA statute. Third, CEQ proposed
to use ‘‘cumulative impact’’ in the
definition of ‘‘environmental justice’’ as
discussed further in section II.J.9. CEQ
makes these change in the final rule as
proposed.
Also, to enhance clarity, CEQ
proposed to use the word ‘‘significant’’
only to modify the term ‘‘effects’’
throughout the regulations.
Accordingly, where ‘‘significant’’
modifies a word other than ‘‘effects,’’
CEQ proposed to replace ‘‘significant’’
with another synonymous adjective,
typically ‘‘important’’ or ‘‘substantial,’’
which have also been used in varying
provisions throughout the CEQ
regulations since 1978. CEQ proposed
this change to avoid confusion about
what ‘‘significant’’ means in these other
contexts without substantively changing
any of the provisions so revised.
CEQ proposed this change based on
public comments and agency feedback
on the Phase 1 rulemaking that use of
the word ‘‘significant’’ in phrases such
as ‘‘significant issues’’ or ‘‘significant
actions’’ creates confusion on what the
word ‘‘significant’’ means.54 CEQ also
proposed the change to align with the
definition of ‘‘significant effects’’ in
53 Consistent with guidance from the Office of
Federal Register, republishing the provisions that
are unchanged in this rulemaking provides context
for the revisions. See Office of the Federal Register,
Amendatory Instruction: Revise and Republish,
https://www.archives.gov/federal-register/write/
ddh/revise-republish.
54 CEQ, Phase 1 Response to Comments, supra
note 52, at 120–21.
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§ 1508.1(mm), as discussed in section
II.J.24.
One commenter supported the use of
‘‘important’’ in place of ‘‘significant,’’
asserting that the change will reduce
unnecessary confusion and delays
because use of consistent terminology
will eliminate ambiguity and increase
consistency and will speed up future
reviews because all parties will
understand what is meant by a term. A
few other commenters supported the
changes in terms generally, saying that
the changes help make the NEPA
regulations easier to understand.
A separate commenter supported the
use of the term ‘‘important’’ arguing that
it would broaden the scope of what
agencies should consider under NEPA.
The commenter described significance,
in the context of NEPA, as a high bar,
and agreed with CEQ that important
issues should also be subject to
thorough consideration in
environmental reviews.
Multiple commenters disagreed with
the proposed use of ‘‘important’’ in
place of ‘‘significant’’ or ‘‘unimportant’’
in place of ‘‘insignificant.’’ These
commenters expressed concern about
the interpretation of ‘‘important’’
without a definition or additional
guidance, and that the use of these
adjectives could cause confusion and
increase litigation risk. A few
commenters requested that the final rule
replace ‘‘issues’’ with ‘‘effects’’ and
change ‘‘important issues’’ to
‘‘significant effects’’ asserting that the
phrase ‘‘important issues’’ is subjective.
One commenter stated that while CEQ
described the changes as minor, these
terms are well understood by courts and
agencies and as such changing them
will result in numerous updates of
related procedures, regulations, and
guidance documents that use these
terms just for editorial purposes.
Another commenter expressed
concern that replacing the word
‘‘significant’’ with another adjective is
unnecessary, and points to CEQ’s own
description in the NPRM that it does not
intend to ‘‘substantively change the
meaning of the provisions’’ and
suggesting the replacement words will
be synonymous. The commenter further
asserted that it will be difficult to ensure
consistency of implementation if CEQ
continually changes language that has
no substantive effect on the regulations.
A separate commenter asserted that
while they appreciated the return of the
definition of ‘‘significance,’’ the use of
the new term ‘‘important’’ is confusing.
The commenter further stated that with
the heightened focus on environmental
justice, human health, and social or
societal effects, it is unclear what is
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considered important and who
determines whether something is
important.
CEQ implements this change from
‘‘significant’’ to one of its synonyms
when it is not modifying ‘‘effect’’ in the
final rule. The NEPA regulations have
long required agencies to focus on the
‘‘important’’ issues, see 40 CFR 1500.1
(2019), and agencies have decades of
experience doing just that—CEQ
disagrees that use of this term in other
provisions as a substitute for
‘‘significant issues’’ alters the scope of
the issues to which those provisions
refer. CEQ declines to add a definition
for this term because its plain meaning
is sufficient and notes that the phrase
‘‘significant issues’’ was not defined in
the 1978 regulations.55 CEQ’s intent is
that agencies focus their NEPA
documents on the issues that are key for
the public to comment on and the
agency to take into account in the
decision-making process, and only
briefly explain why other, unimportant
issues are not discussed. As CEQ
indicated in the proposed rule, it does
not intend the substitution of
‘‘important’’ and ‘‘substantial’’ for
‘‘significant’’ to substantively change
the meaning of the provisions, but
rather to bring greater consistency and
clarity to agencies in implementing
these provisions by eliminating a
potential ambiguity that these phrases
incorporate the definition of ‘‘significant
effects’’; for example, ensuring that the
phrase ‘‘significant actions’’ is not
mistakenly understood to mean actions
that have significant effects, which was
not the meaning of the phrase in the
regulations. CEQ discusses comments
on specific uses of the terms in specific
sections of the rule and in the Phase 2
Response to Comments.
For clarity, CEQ proposed to change
‘‘statement’’ to ‘‘environmental impact
statement’’ and ‘‘assessment’’ to
‘‘environmental assessment’’ where the
regulations only use the short form in
the paragraph. See, e.g., §§ 1502.3 and
1506.3(e)(1) through (e)(3). CEQ did not
receive comments on this proposal and
makes these changes throughout the
rule as proposed.
CEQ also proposed to make nonsubstantive grammatical corrections or
consistency edits throughout the
regulations where CEQ considered the
changes to improve readability. Finally,
CEQ proposed to update the authorities
for each part, update the references to
NEPA as amended by the Fiscal
55 See, e.g., Significant, Merriam-Webster, https://
www.merriam-webster.com/dictionary/significant
(defining ‘‘significant’’ as ‘‘having or likely to have
influence or effect: IMPORTANT’’).
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Responsibility Act, and fix internal
cross references to other sections of the
regulations throughout to follow the
correct Federal Register format. CEQ
makes these changes in the final rule.
B. Revisions To Update Part 1500,
Purpose and Policy
CEQ proposed substantive revisions
to all sections in part 1500. These
revisions include reinstating § 1500.2,
‘‘Policy,’’ as its own section separate
from § 1500.1, ‘‘Purpose’’ consistent
with the approach taken in the 1978
regulations. Some commenters
recommended that CEQ title § 1500.1
‘‘Purpose and Policy’’ and title § 1500.2
‘‘Additional Policy’’ because, in their
view, § 1500.2 reflects CEQ’s policy
judgments rather than the commands of
the NEPA statute.
CEQ declines to make this change.
The purpose of §§ 1500.1 and 1500.2 is
to place the regulations into their
broader context by restating the policies
of the Act within the regulations, which
will improve readability by avoiding the
need for cross references to material
outside the text of the regulations.
Section 1500.2 reflects CEQ’s
interpretation of the policies of the Act,
rather than CEQ’s own policy priorities.
1. Purpose (§ 1500.1)
In § 1500.1, CEQ proposed to restore
much of the language from the 1978
regulations with revisions to further
incorporate the policies Congress
established in the NEPA statute. CEQ
proposed these changes to restore text
regarding NEPA’s purpose and goals,
placing the regulations into their
broader context and to restate the
policies of the Act within the
regulations. Some commenters
expressed general support for proposed
§ 1500.1 stating that the revisions
appropriately frame NEPA’s purposes.
CEQ revises § 1500.1 as discussed in
this section to recognize that the
procedural provisions of NEPA are
intended to further the purpose and
goals of the Act. One of those goals is
to make informed and sound
government decisions.
First, CEQ proposed to revise
paragraph (a) of 40 CFR 1500.1 (2020)
by subdividing it into paragraphs (a),
(a)(1), and (a)(2). In paragraph (a), CEQ
proposed to revise the first sentence to
restore language from the 1978
regulations stating that NEPA is ‘‘the
basic national charter for protection of
the environment’’ and add a new
sentence stating that NEPA ‘‘establishes
policy, sets goals’’ and ‘‘provides
direction’’ for carrying out the
principles and policies Congress
established in sections 101 and 102 of
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NEPA. 42 U.S.C. 4331, 4332. CEQ
proposed to remove language from the
first sentence of paragraph (a) describing
NEPA as a purely procedural statute
because CEQ considers that language to
be an inappropriately narrow view of
NEPA’s purpose and ignores the fact
that Congress established the NEPA
process for the purpose of promoting
informed decision making and
improved environmental outcomes.
Some commenters objected to the
proposed use of the phrase ‘‘basic
national charter for protection of the
environment’’ in paragraph (a), asserting
it misrepresents NEPA’s purpose as a
procedural statute. Other commenters
opposed the proposed changes to
remove the language clarifying that
NEPA is a procedural statute, asserting
the proposed changes could give the
impression that CEQ seeks to expand
NEPA beyond its original mandate.
Another commenter objected to the
restoration of the language in paragraph
(a) asserting that describing NEPA as the
‘‘basic national charter for the
protection of the environment’’
displaces the U.S. Constitution from the
role of ‘‘America’s basic national charter
for protection.’’ CEQ declines to remove
this language, which accurately
describes NEPA’s purpose, was
included in the 1978 regulations, and
remained in place until the 2020 rule.
CEQ disagrees that describing NEPA as
the basic national charter for the
protection of the environment
denigrates the role of the U.S.
Constitution. Congress enacted NEPA
exercising its Constitutional authority to
declare a national environmental policy
and describing NEPA as ‘‘America’s
basic national charter for the protection
of the environment’’ does not imply that
NEPA overshadows the U.S.
Constitution. CEQ also notes that
several courts have quoted this language
approvingly. See, e.g., Ctr. for Biological
Diversity v. Bernhardt, 982 F.3d 723,
734 (9th Cir. 2020); Habitat Educ. Ctr.,
Inc. v. United States Forest Serv., 673
F.3d 518, 533 (7th Cir. 2012).
In the final rule, CEQ revises
paragraph (a) as proposed, but removes
the parenthetical references to sections
101 and 102 as unnecessary and
incomplete because other sections of
NEPA also provide direction for
carrying out NEPA’s policy, which are
addressed throughout the regulations.
While CEQ agrees that the NEPA
analysis required by section 102(2)(C)
and these regulations does not dictate a
particular outcome, Congress did not
establish NEPA to create procedure for
procedure’s sake, but rather, to provide
for better informed Federal decision
making and improved environmental
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outcomes. These goals are not fulfilled
if the NEPA analysis is treated merely
as a check-the-box exercise. 42 U.S.C.
4332(2)(C). CEQ does not consider it
necessary to repeatedly emphasize in
the regulations the procedural nature of
the statutory mechanism Congress chose
to advance the purposes of NEPA as
described in section 2 and the policy
directions established in section 101 of
NEPA. 42 U.S.C. 4321, 4331. Doing so
may suggest that NEPA mandates a rote
paperwork exercise and de-emphasizes
the Act’s larger goals and purposes.
Instead, CEQ remains cognizant of the
goals Congress intended to achieve
through the NEPA process in
developing CEQ’s implementing
regulations, and agencies should carry
out NEPA’s procedural requirements in
a manner faithful to the purposes of the
statute.
Second, in § 1500.1(a)(1), CEQ
proposed to retain the second sentence
of 40 CFR 1500.1(a) (2020) summarizing
section 101(a) of NEPA, change ‘‘man’’
to ‘‘people’’ to remove gendered
language, and delete ‘‘of Americans’’
after ‘‘present and future generations.’’
42 U.S.C. 4331(a). CEQ proposed to add
a second sentence summarizing section
101(b) to clarify that agencies should
advance the purposes in section 101(b)
through their NEPA reviews. 42 U.S.C.
4331(b). CEQ proposed to include this
language in § 1500.1(a)(1) to help
agencies understand what the
regulations refer to when the regulations
direct or encourage agencies to act in a
manner consistent with the purposes or
policies of the Act. See, e.g.,
§§ 1500.2(a), 1500.6, 1501.1(a),
1502.1(a), and 1507.3(b).
Some commenters objected to the
proposal to remove ‘‘of Americans’’
from paragraph (a)(1) contending that
the removal would be inconsistent with
the statute. After considering these
comments, CEQ has determined not to
make this change and leave the phrase
‘‘of Americans’’ at the end of the first
sentence of paragraph (a)(1), because
this sentence is specifically describing
section 101(a) of NEPA, which includes
the phrase. However, CEQ notes that
this text in section 101(a) and paragraph
(a)(1) does not limit NEPA’s concerns
solely to Americans or the United
States. For example, other language in
section 101 reflects NEPA’s broader
purpose to ‘‘create and maintain
conditions under which [humans] and
nature can exist in productive
harmony’’ without qualification. 42
U.S.C. 4331(a). As discussed further in
section II.J.13, CEQ removes ‘‘of
Americans’’ from the definition of
‘‘human environment’’ in § 1508.1(r) for
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consistency with the statute’s overall
broader purpose.
A commenter recommended CEQ add
a dash after ‘‘national policy’’ in the
second sentence for consistency with
the statute to ensure that all six of the
goals are modified by the phrase
‘‘consistent with considerations of
national policy.’’ CEQ agrees that the
beginning of the sentence, including the
phrase ‘‘consistent with other essential
considerations of national policy’’
modifies all of the listed items that
follow and, in the final rule, revises the
sentence to subdivide it into paragraphs
(a)(1)(i) through (vi) to make this
clarification. Lastly in paragraph (a)(1),
in the final rule, CEQ changes ‘‘man’’ to
‘‘humans’’ rather than the proposed
‘‘people’’ to remove the gendered
language while also providing
consistency with the term ‘‘human’’ and
‘‘human environment’’ used in the
NEPA statute and throughout the
regulations.
Third, CEQ proposed to begin
§ 1500.1(a)(2) with the third sentence of
40 CFR 1500.1(a) (2020), modify it, and
add two new sentences to generally
restore the language of the 1978
regulations stating that the purpose of
the regulations is to convey what
agencies should and must do to comply
with NEPA to achieve its purpose.
Specifically, CEQ proposed to revise the
first sentence to state that section 102(2)
of NEPA establishes the procedural
requirements to carry out the policies
‘‘and responsibilities established’’ in
section 101, and contains ‘‘ ‘actionforcing’ procedural provisions to ensure
Federal agencies implement the letter
and spirit of the Act.’’ 42 U.S.C. 4332(2),
42 U.S.C. 4331. CEQ proposed to add a
new second sentence stating the
purpose of the regulations is to set forth
what agencies must and should do to
comply with the procedures and
achieve the goals of the Act. In the third
new sentence, CEQ proposed to restore
the language from the 1978 regulations
that the President, Federal agencies, and
the courts share responsibility for
enforcing the Act to achieve the policy
goals of section 101. 42 U.S.C. 4331.
Fourth, CEQ proposed to strike the
fourth and fifth sentences of 40 CFR
1500.1(a) (2020), added by the 2020
rule, which state that NEPA requires
Federal agencies to provide a detailed
statement for major Federal actions, that
the purpose and function of NEPA is
satisfied if agencies have considered
environmental information and
informed the public, and that NEPA
does not mandate particular results.
While the NEPA process does not
mandate that agencies reach specific
decisions, CEQ proposed to remove this
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language because CEQ considered this
language to unduly minimize Congress’s
understanding that procedures ensuring
that agencies analyze, consider, and
disclose environmental effects will lead
to better substantive outcomes. CEQ also
considered this language inconsistent
with Congress’s statements of policy in
the NEPA statute.
Some commenters objected
specifically to the proposed addition of
the phrase ‘‘action-forcing,’’ and others
contended that the proposed rule would
revise the regulation not merely to force
action, but to require specific outcomes.
Another commenter asserted that
proposed paragraph (a)(2) goes too far in
separating policy goals from the
procedures passed by Congress to
achieve them.
CEQ finalizes paragraph (a)(2) as
proposed and removes the language that
describes NEPA as a purely procedural
statute because CEQ considers the
language to reflect an inappropriately
narrow view of NEPA’s purpose that
minimizes Congress’s broader goals in
enacting the statute, as specified in
sections 2 and 101 of NEPA. 42 U.S.C.
4321, 4331. While NEPA does not
mandate particular results in specific
decision-making processes, Congress
intended the procedures required under
the Act to result in more informed
decisions, with the goal that information
about the environmental effects of those
decision would facilitate better
environmental outcomes. See, e.g.,
Andrus v. Sierra Club, 442 U.S. 347,
350–51 (1979) (‘‘If environmental
concerns are not interwoven into the
fabric of agency planning, the actionforcing characteristics of [NEPA] would
be lost.’’).
Fifth, CEQ proposed to strike the first
two sentences of 40 CFR 1500.1(b)
(2020), which the 2020 rule added,
because they provide an unnecessarily
narrow view of the purposes of NEPA
and its implementing regulations. CEQ
proposed to revise the third sentence
and add two new sentences to restore in
paragraph (b) language from the 1978
regulations emphasizing the importance
of the early identification of highquality information that is relevant to a
decision. Early identification and
consideration of issues using highquality information have long been
fundamental to the NEPA process,
particularly because such identification
and consideration facilitates
comprehensive analysis of alternatives
and timely and efficient decision
making, and CEQ considers it important
to emphasize these considerations in
this section. CEQ also proposed the
changes to emphasize that the
environmental information that agencies
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use in the NEPA process should be
high-quality, science-based, and
accessible.
Multiple commenters supported the
proposed provisions of § 1500.1(b). One
commenter supported the provision for
agencies to ‘‘concentrate on the issues
that are truly relevant to the action in
question, rather than amassing needless
detail,’’ and to use ‘‘high quality,
science-based, and accessible’’
information. One commenter
recommended that CEQ revise ‘‘Most
important’’ to ‘‘Most importantly’’ in
§ 1500.1(b). CEQ agrees that this change
would improve the readability of the
sentence and makes this clarifying edit
in the final rule.
Other commenters opposed the
change to proposed paragraph (b),
asserting it would delete important
regulatory text. The commenters
asserted that by striking the language,
CEQ has turned the section from one
that says follow the rules into one that
adds to the rules. Upon further
consideration, CEQ has determined not
to finalize the proposed revisions to the
beginning of paragraph (b) because the
text from the 1978 regulations could be
construed as a direction to agencies
rather than a statement about the
purpose of the CEQ regulations.
Specifically, the final rule retains ‘‘[t]he
regulations in this subchapter
implement’’ from the current
regulations and then replaces ‘‘section
102(2) of NEPA’’ with ‘‘the requirements
of NEPA,’’ because the requirements of
NEPA extend to additional sections
following the 2023 NEPA amendments.
Additionally, CEQ includes the
proposed new second sentence, with
revisions. In the final rule, this
provision requires rather than
recommends that information be high
quality for consistency with § 1506.6.
CEQ does not include the proposed
references to ‘‘science-based’’ and
‘‘accessible’’ to avoid potential
confusion that this provision was
establishing a separate obligation from
§ 1506.6, which addresses methodology
and scientific accuracy.
Finally, CEQ proposed a new
paragraph (c) to restore text from the
1978 regulations, most of which the
2020 rule deleted, emphasizing the
importance of NEPA reviews for
informed decision making. Some
commenters recommended CEQ further
amend proposed paragraph (c) to state
that agencies only have to ‘‘protect’’ or
‘‘restore and protect,’’ rather than
‘‘enhance’’ the environment for
consistency with sections 101 and 102
of NEPA. 42 U.S.C. 4331, 4332.
CEQ disagrees with the commenters’
view of NEPA’s purposes and scope. To
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the extent that a substantive difference
exists between the terms in this context,
CEQ notes that section 101(c) of NEPA
recognizes ‘‘that each person has a
responsibility to contribute to the
preservation and enhancement of the
environment.’’ 42 U.S.C. 4331(c)
(emphasis added); see also, e.g., Douglas
Ctny. v. Babbitt, 48 F.3d 1495, 1505 (9th
Cir. 1995) (‘‘The purpose of NEPA is to
‘provide a mechanism to enhance or
improve the environment and prevent
further irreparable damage.’ ’’ (emphasis
added) (quoting Pac. Legal Found. v.
Andrus, 657 F.2d 829, 837 (6th Cir.
1981)). Another commenter
recommended that CEQ qualify the
second sentence of proposed paragraph
(c) by appending, ‘‘within the agency’s
Congressional authorizations.’’ CEQ
declines to make this change. In
implementing any statute, agencies
must act within the scope of their legal
authority; adding a specific qualification
to that effect here is therefore
unnecessary and could be confusing.
CEQ finalizes paragraph (c) as proposed.
2. Policy (§ 1500.2)
The 2020 rule struck 40 CFR 1500.2
(2019), stating that it was duplicative of
other sections, and integrated policy
language into 40 CFR 1500.1 (2020).56
CEQ proposed to restore § 1500.2
because a robust articulation of NEPA’s
policy principles is fundamental to the
NEPA process. CEQ also proposed to
restore the policy section because it is
helpful to agency practitioners and the
public to have a consolidated listing of
policy objectives regardless of whether
other sections of the regulations address
those objectives. CEQ proposed to
restore with some updates the language
of the 1978 regulations to § 1500.2.
First, CEQ proposed to restore an
introductory paragraph to require
agencies ‘‘to the fullest extent possible’’
to comply with the policy set forth in
paragraphs (a) through (f). One
commenter asserted that the final rule
should delete ‘‘to the fullest extent
possible’’ because it improperly
expands the regulation’s authority. CEQ
disagrees with the commenter’s
interpretation of the phrase, which does
not expand, but rather qualifies, the
scope of § 1500.2 and conforms with the
text in section 102 of NEPA, which
directs agencies to comply with that
section’s requirements, including the
requirement to prepare an EIS, ‘‘to the
fullest extent possible.’’ See 42 U.S.C.
4332.
Second, CEQ proposed to restore in
paragraph (a) the 1978 language
56 CEQ,
2020 Final Rule, supra note 39, at 43316–
17.
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directing agencies to interpret and
administer policies, regulations, and
U.S. laws consistent with the policies of
NEPA and the CEQ regulations. Some
commenters recommended the final rule
revise paragraph (a) to replace ‘‘the
policies set forth in the Act and in these
regulations,’’ with ‘‘with other
applicable laws and regulations, in
addition to NEPA.’’ CEQ finalizes
paragraph (a) as proposed and declines
to make this change because it aligns
with the language of section 102(1) of
NEPA. See 42 U.S.C. 4332(1). The
purpose of § 1500.2(a) is to place the
CEQ regulations into their broader
context by restating NEPA’s policies.
Doing so improves readability by
avoiding the need for cross references to
material outside the text of the
regulations.
Third, in paragraph (b), CEQ proposed
to restore with clarifying edits the 1978
language directing agencies to
implement procedures that facilitate a
meaningful NEPA process, including
one that is useful to decision makers
and the public with environmental
documents that are concise and clear,
emphasize the important issues and
alternatives, and are supported by
evidence. CEQ did not receive
comments specific to this proposed
paragraph and finalizes paragraph (b) as
proposed.
Fourth, in paragraph (c), CEQ
proposed to direct agencies to integrate
NEPA with other planning and
environmental review requirements to
promote efficient, concurrent processes.
One commenter requested the final rule
revise proposed paragraph (c) to add
qualifying language to require the
integration be done at the earliest
reasonable time, consistent with
§ 1501.2(a), except where inconsistent
with other statutory requirements or
where inefficient. The commenter
generally supported integrating the
NEPA process with other processes
when it is efficient, but asserted that
sometimes it may be more efficient to
have other processes run consecutively
instead of concurrently. CEQ agrees that
processes should run consecutively
where it is more efficient to do so, and
that agencies should not integrate
processes when doing so would be
inefficient. Therefore, in the final rule,
CEQ adds proposed paragraph (c) but
does not include ‘‘all’’ before ‘‘such
procedures,’’ and adds ‘‘where doing so
promotes efficiency’’ at the end of the
paragraph.
Fifth, in paragraph (d) CEQ proposed
to modernize language from the 1978
regulations in 40 CFR 1500.2(d) (2019)
to emphasize public engagement,
including ‘‘meaningful public
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engagement with communities with
environmental justice concerns, which
often include communities of color,
low-income communities, indigenous
communities, and Tribal communities.’’
One commenter requested that CEQ
clarify whether the phrase ‘‘affect the
quality of the human environment’’ in
paragraph (d) refers to beneficial or
adverse effects and whether it covers
temporary effects in addition to
permanent ones. CEQ declines to amend
the language in question, which CEQ is
restoring from the 1978 regulations.
Because NEPA directs agencies to
consider all of the reasonably
foreseeable effects of a proposed
action—including positive, negative,
temporary, and permanent effects—this
phrase is appropriately broad. While the
final rule defines ‘‘significant effects’’ as
limited to only adverse effects, see
§ 1508.1(mm), paragraph (d) is broader
because the NEPA regulations
encourage and facilitate public
engagement for actions that may not
have significant effects, including
actions that agencies analyze through an
EA.
Multiple commenters supported
proposed § 1500.2(d) and the emphasis
on public engagement. Some
commenters recommended the final rule
expand the paragraph to clarify how
agencies should facilitate public
engagement and education. CEQ
declines to expand this paragraph
because the intent of § 1500.2 is to place
the regulations into their broader policy
context. Instead, § 1501.9 describes
agencies’ public engagement
responsibilities in detail.
Some commenters opposed proposed
paragraph (d) and the emphasis on
public engagement. One commenter
expressed concern that the proposed
rule does not include a similar
increased emphasis on State-specific
involvement, requested the final rule
delineate between State involvement
and public involvement, and explicitly
emphasize the importance of Statespecific engagement, much the same
way CEQ has outlined for Tribal
engagement.
In the final rule, CEQ adds proposed
paragraph (d) but omits the last clause
of the proposal and declines to
specifically address State-specific
involvement in this paragraph because
this paragraph is about involving the
public, rather than coordinating with
other government entities such as States
and Tribes. While public involvement
and inter-governmental coordination are
both critically important components of
the NEPA process, they implicate
different considerations and are
addressed by different portions of the
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NEPA regulations. CEQ does not
include the proposed language
describing what communities are often
included as communities with
environmental justice concerns because
‘‘environmental justice’’ and
‘‘communities with environmental
justice concerns’’ are defined terms in
§ 1508.1(f) and (m) and the explanatory
language is unnecessary in § 1500.2.
CEQ also revises the clause in the final
rule to clarify the example by adding
‘‘such as those’’ after communities so
that the example refers to communities
in general and communities with
environmental justice concerns more
specifically, because the regulations
encourage meaningful engagement with
all communities that are potentially
affected by an action. The reference to
engagement with communities with
environmental justice concerns is an
example and not exhaustive. Further,
CEQ views an emphasis on engagement
with such communities to be important
because agencies have not always
meaningfully engaged with them, and
such communities have been
disproportionately and adversely
affected by certain Federal activities,
and such communities often face
challenges in engaging with the Federal
Government. In making this change to
emphasize public engagement, CEQ
notes that consultation with Tribal
Nations on a nation-to-nation basis is
distinct from the public engagement
requirements of NEPA.57
Sixth, in paragraph (e), CEQ proposed
to restore language from the 1978
regulations regarding use of the NEPA
process to identify and assess the
reasonable alternatives to proposed
actions that avoid or minimize adverse
effects. CEQ also proposed to add
examples of such alternatives, including
those that will reduce climate changerelated effects or address health and
environmental effects that
disproportionately affect communities
with environmental justice concerns.
One commenter requested that the
final rule further clarify paragraph (e) by
adding examples of reasonable
alternatives. CEQ declines to add
examples to paragraph (e) because
reasonable alternatives are not amenable
to easy generalization or simple
description as they depend on projectspecific factors, such as purpose and
need, and technical and economic
feasibility. Therefore, examples of
reasonable alternatives are ill-suited to
regulatory text. Some commenters
opposed the references to climate
change and environmental justice in
§ 1500.2(e), contending that the
references indicate that CEQ’s
regulations direct or favor particular
substantive outcomes, such as the
disapproval of oil and gas projects, and
will therefore prejudice agencies’
analysis of environmental effects; that
the NEPA statute does not explicitly
address these subjects; or that it will be
difficult or burdensome for agencies to
account for climate change when
conducting environmental reviews.
CEQ adds paragraph (e) as proposed
in the final rule. CEQ agrees that NEPA
does not dictate a particular outcome,
and disagrees that the references to
climate change and environmental
justice in § 1500.2(e) are contrary to this
principle. Rather, Congress enacted and
amended NEPA based on the
understanding that agency decision
makers will make better decisions if
they are fully informed about each
decision’s reasonably foreseeable
environmental effects. Paragraph (e)
prompts agencies to give appropriate
regard to environmental effects related
to climate change and environmental
justice.
Further, the references to climate
change and environmental justice in
paragraph (e) reflect and advance
NEPA’s statutory objectives, text, and
policy statements, which include
analyzing a reasonable range of
alternatives; avoiding environmental
degradation; preserving historic,
cultural, and natural resources; and
‘‘attain[ing] the widest range of
beneficial uses of the environment
without degradation, risk to health or
safety, or other undesirable and
unintended consequences.’’ 42 U.S.C.
4331(b), 4332(2)(C)(iii). The references
emphasize that decision makers should
integrate those subjects into the analysis
of the environmental effects of a
proposed action and any reasonable
alternatives, as appropriate.
Additionally, these changes are
consistent with the goal of providing
‘‘safe, healthful, productive, and
esthetically and culturally pleasing
surroundings’’ across the Nation, and
the goal that all people can ‘‘enjoy a
healthful environment,’’ 42 U.S.C.
4331(b), (c), and highlight the
importance of considering such effects
in environmental documents, consistent
with NEPA’s requirements and agency
practice.58 The changes are also
57 See E.O. 13175, Consultation and Coordination
with Indian Tribal Governments, 65 FR 67249 (Nov.
9, 2000); Presidential Memorandum, Tribal
Consultation and Strengthening Nation-to-Nation
Relationships, 86 FR 7491 (Jan. 29, 2021).
58 Consistent with section 102(2)(C) of NEPA,
consideration of environmental justice and climate
change-related effects has long been part of NEPA
analysis. See, e.g., Ctr. for Biological Diversity v.
Nat’l Highway Traffic Safety Admin., 538 F.3d 1172
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consistent with E.O. 12898 and E.O.
14096.
Finally, in paragraph (f), CEQ
proposed to restore the direction from
the 1978 regulations to use all
practicable means, consistent with the
policies of NEPA, to restore and
enhance the environment and avoid or
minimize any possible adverse effects of
agency actions. These revisions to
§ 1500.2(d), (e), and (f) reflect
longstanding practice among Federal
agencies and align with NEPA’s
statutory policies, including to avoid
environmental degradation, preserve
historic, cultural, and natural resources,
and ‘‘attain the widest range of
beneficial uses of the environment
without degradation, risk to health or
safety, or other undesirable and
unintended consequences.’’ 42 U.S.C.
4331(b).
Multiple commenters expressed
support for the proposed changes to
paragraphs (d), (e), and (f), asserting the
changes appropriately emphasize
agency obligations to facilitate public
participation in the decision-making
process, instead of merely keeping the
public informed, and to act on
information they obtain in that process.
These commenters asserted the
proposed changes properly describe the
objectives of environmental reviews
under NEPA as informed decision
making, robust public engagement, and
protection of the environment.
One commenter requested the final
rule revise paragraph (f) to add other
laws and agency authorities after ‘‘the
requirements of the Act.’’ CEQ finalizes
paragraph (f) as proposed and declines
to make this change because this
paragraph aligns with section 101(b) of
NEPA. 42 U.S.C. 4331(b). The purpose
of §§ 1500.1 and 1500.2 is to place the
regulations into their broader context by
restating NEPA’s policies within the
regulations. Doing so improves
readability by avoiding the need for
cross references to material outside the
text of the regulations. CEQ agrees that
agencies should comply with other laws
and with agency authorities, which are
examples of ‘‘other essential
considerations of national policy.’’ CEQ
also notes that this text was in the 1978
regulation, in effect until 2020, and did
not create confusion that the NEPA
regulations prevented agencies from
complying with other legal
requirements.
Commenters recommended that CEQ
add various qualifiers to § 1500.2
asserting that agencies have limited
authorities and resources and must
(9th Cir. 2008) and CEQ, Environmental Justice
Guidance, supra note 7.
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comply with other applicable laws in
addition to NEPA. CEQ declines to
make these changes. The introductory
paragraph of § 1500.2 provides that
agencies must carry out the policies set
forth in the section ‘‘to the fullest extent
possible,’’ which renders the suggested
amendments redundant. Moreover,
§ 1501.3 directs agencies to consider, for
a particular action, whether compliance
with NEPA would clearly and
fundamentally conflict with the
requirements of another provision of
Federal law when determining NEPA
applicability to that action, which is
consistent with the manner in which
Congress addressed this issue in section
106 of NEPA. 42 U.S.C. 4336.
Likewise, commenters suggested that
CEQ clarify particular points of NEPA
practice, such as defining ‘‘all
practicable means;’’ explaining how
agencies should facilitate public
engagement and education; adding
examples of reasonable alternatives;
requiring environmental documents to
describe the steps that the agency has
taken to avoid or minimize adverse
effects; providing standards against
which to quantitatively assess agencies’
implementation of the NEPA
regulations; requiring only that agencies
minimize the ‘‘significant’’ adverse
effects of a proposed action; or directing
agencies to make their planning efforts
consistent with State and local plans to
the maximum extent possible.
CEQ declines to revise the regulations
in response to these comments. The
purpose of §§ 1500.1 and 1500.2 is to
place the regulations into their broader
context by restating the purposes and
policies of the Act and addressing a
variety of aspects of NEPA practice
would distract from that purpose. Other
provisions in the regulations implement
the provisions of NEPA that effectuate
these purposes and policies, and set
forth specific procedures that agencies
must and should follow. Accordingly, it
is not necessary or appropriate for
§ 1500.2 to address these subjects in
greater detail.
Lastly, one commenter recommended
that CEQ add a new paragraph to
§ 1500.2 to require agencies to realize
the Federal Government’s trust
responsibility to Tribal Nations by
acting on and not merely considering
Indigenous Knowledge. Another
commenter made a related
recommendation that § 1500.1 explicitly
recognize the Federal Government’s
trust responsibilities to Tribes.
CEQ agrees that agencies should
consider and include Indigenous
Knowledge in Federal research, policies,
and decision making, including as part
of the environmental review process
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under NEPA. CEQ also recognizes that
the Federal trust responsibility to Tribal
Nations may shape both the procedures
that agencies follow and the substantive
outcomes of agencies’ decision-making
processes. CEQ does not, however, view
it as properly within the scope of CEQ’s
authority to direct agencies to act on
Indigenous Knowledge through the
NEPA regulations, because the NEPA
statute includes procedural, rather than
substantive requirements, and the
obligation to honor the trust
responsibility, including the obligation
to engage in Tribal consultation, does
not arise from the NEPA statute.
3. NEPA Compliance (§ 1500.3)
CEQ proposed to revise § 1500.3 to
restore some language from the 1978
regulations and remove some provisions
added by the 2020 rule regarding
exhaustion and remedies, which aimed
to limit legal challenges and judicial
remedies.59 The process established by
the 2020 rule provided that first, an
agency must request in its notice of
intent (NOI) comments on all relevant
information, studies, and analyses on
potential alternatives and effects. 40
CFR 1500.3(b)(1) (2020). Second, the
agency must summarize all the
information it receives in the draft EIS
and specifically seek comment on it. 40
CFR 1500.3(b)(2), 1502.17, 1503.1(a)(3)
(2020). Third, decision makers must
certify in the record of decision (ROD)
that they considered all the alternatives,
information, and analyses submitted by
public commenters. 40 CFR
1500.3(b)(4), 1505.2(b) (2020). And
fourth, any comments not submitted
within the comment period were
considered forfeited as unexhausted. 40
CFR 1500.3(b)(3), 1505.2(b) (2020).
First, CEQ proposed to revise
paragraph (a) to remove the phrase
‘‘except where compliance would be
inconsistent with other statutory
requirements’’ from the end of the first
sentence because § 1500.6 addresses this
issue. CEQ also proposed to remove the
references to E.O. 13807, which E.O.
13990 revoked, as well as the reference
to section 309 of the Clean Air Act
because this provision is implemented
by EPA.60
CEQ removes the clause ‘‘except
where compliance would be
inconsistent with other statutory
requirements’’ in the final rule because
the relationship between NEPA and
agency statutory authority is addressed
in § 1500.6 and the circumstances in
59 CEQ,
2020 Final Rule, supra note 39, at 43317–
18.
60 See E.O. 13807, supra note 14; E.O. 13990,
supra note 43.
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which an agency does not need to
prepare an environmental document
due to a conflict with other statutes is
addressed in § 1501.3. Moreover, to the
extent that this phrase could be read as
identifying when an agency does not
need to conduct an environmental
review, the NEPA amendments address
that in section 106(a)(3) using different
language, specifically, that an agency
does not need to prepare an
environmental document where ‘‘the
preparation of such document would
clearly and fundamentally conflict with
the requirements of another provision of
law.’’ 42 U.S.C. 4336(a)(3). CEQ also
removes the references to E.O. 13807
and section 309 of the Clean Air Act
consistent with the proposal.
Second, CEQ proposed to delete
paragraphs (b) and (b)(1) through (b)(4)
of 40 CFR 1500.3 (2020) addressing
exhaustion. CEQ proposed to remove
these provisions because they establish
an inappropriately stringent exhaustion
requirement for public commenters and
agencies. CEQ also proposed to delete
this paragraph because it is unsettled
whether CEQ has the authority under
NEPA to set out an exhaustion
requirement that bars parties from
bringing claims on the grounds that an
agency’s compliance with NEPA
violated the APA, pursuant to 5 U.S.C.
702. As explained in the proposed rule,
while the 2020 rule correctly identifies
instances in which courts have ruled
that parties may not raise legal claims
based on issues that they themselves did
not raise during the comment period,61
other courts have sometimes ruled that
a plaintiff can bring claims where
another party raised an issue in
comments or where the agency should
have identified an issue on its own. Pac.
Coast Fed’n of Fishermen’s Ass’ns v.
U.S. Dep’t of Interior, 929 F. Supp. 2d
1039, 1045–46 (E.D. Cal. 2013); Wyo.
Lodging and Rest. Ass’n v. U.S. Dep’t of
Interior, 398 F. Supp. 2d 1197, 1210 (D.
Wyo. 2005); see Pub. Citizen, 541 U.S.
at 765 (noting that ‘‘[T]he agency bears
the primary responsibility to ensure that
it complies with NEPA . . . and an
EA’s or an EIS’ flaws might be so
obvious that there is no need for a
commentator to point them out
specifically in order to preserve its
ability to challenge a proposed action’’).
61 CEQ, 2020 Final Rule, supra note 39, at 43317–
18 (citing Dep’t of Transp. v. Pub. Citizen, 541 U.S.
752, 764–65 (2004); Karst Env’t. Educ. & Prot., Inc.
v. Fed. Highway Admin., 559 F. App’x 421, 426–
27 (6th Cir. 2014); Friends of the Norbeck v. U.S.
Forest Serv., 661 F.3d 969, 974 (8th Cir. 2011);
Exxon Mobil Corp. v. U.S. EPA, 217 F.3d 1246, 1249
(9th Cir. 2000); and Nat’l Ass’n of Mfrs. v. U.S.
Dep’t of the Interior, 134 F.3d 1095, 1111 (D.C. Cir.
1998)).
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Because the fundamental question
raised by these cases is the availability
of a cause of action under the APA and
not a question of interpreting NEPA,
CEQ proposed to delete the exhaustion
provision because CEQ considers
interpreting and applying the APA more
appropriate for the courts.
CEQ also proposed to remove the
exhaustion requirement because it is at
odds with longstanding agency practice.
While courts have ruled that agencies
are not required to consider comments
that are not received until after
comment periods end, see, e.g., Pub.
Citizen, 541 U.S. at 764–65 (finding that
where a party does not raise an
objection in their comments on an EA,
the party forfeits any objection to the EA
on that ground), agencies have
discretion to do so and have sometimes
chosen to exercise this discretion,
particularly where a comment provides
helpful information to inform the
agency’s decision. As explained in the
proposed rule, the exhaustion
requirement could encourage agencies
to disregard important information
presented to the agency shortly after a
comment period closes, and such a
formalistic approach would not advance
NEPA’s goal of informed decision
making.
Many commenters supported CEQ’s
proposal to remove the exhaustion
provisions asserting that the provisions
were unlawful, created additional
compliance burdens, did not improve
the efficiency of the NEPA process, and
did not reduce litigation risk; and that
removal is consistent with the NEPA
statute, which does not provide for an
exhaustion requirement. One
commenter that supported removal,
asserted that because NEPA does not
impose a statutory exhaustion
requirement, the determination of
whether a particular plaintiff may go
forward with a particular claim is a
matter for the judiciary. CEQ agrees
with this commenter’s view. Where
appropriate in light of the statutes they
administer, individual agencies may
address exhaustion through their
agency-specific rules of procedure, and
courts will continue to consider
exhaustion as a normal part of judicial
review.
Commenters that opposed removing
the exhaustion requirements argued
they are necessary to curb ‘‘frivolous
litigation claims;’’ assist agencies and
the public by providing helpful
information on filing timely comments
and incentivizing them to raise concerns
during the NEPA process; and
communicate the need for prompt and
active participation in the NEPA review
process. While CEQ agrees with these
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commenters’ assertions that the
regulations should promote early
engagement and public participation
and the timely identification of
concerns during the NEPA process, CEQ
disagrees that the exhaustion provisions
are the mechanism to achieve these
goals. CEQ considers other provisions in
the regulations, including §§ 1501.9 and
1502.4, and part 1503, to be the better
means of achieving these goals without
incurring the risk of including
provisions in the regulations that are
legally uncertain.
For these reasons, CEQ removes the
exhaustion provisions from the
regulations and strikes paragraphs (b)
and (b)(1) through (b)(4) of 40 CFR
1500.3 (2020) consistent with the
proposal. Removal of these exhaustion
provisions does not relieve parties
interested in participating in,
commenting on, or ultimately
challenging a NEPA analysis of the
obligation to ‘‘structure their
participation so that it is meaningful.’’
Vt. Yankee Nuclear Power Corp. v. Nat.
Res. Def. Council, Inc., 435 U.S. 519,
553 (1978). As CEQ’s regulations have
made clear since 1978, parties must
provide comments that are as specific as
possible to enable agencies to consider
and address information during the
decision-making processes. See 40 CFR
1503.3(a) (2019).
Further, nothing in this revision
limits the positions the Federal
Government may take regarding
whether, based on the facts of a
particular case, a particular issue has
been forfeited by a party’s failure to
raise it before the agency, and removing
this provision does not suggest that a
party should not be held to have
forfeited an issue by failing to raise it.
By deleting the exhaustion
requirements, CEQ does not take the
position that plaintiffs may raise new
and previously unraised issues in
litigation. Rather, CEQ considers this to
be a question of general administrative
law best addressed by the courts based
on the facts of a particular case.
Third, CEQ proposed to redesignate
paragraph (c), ‘‘Review of NEPA
compliance,’’ of 40 CFR 1500.3 (2020) as
paragraph (b) and add a clause, ‘‘except
with respect to claims brought by
project sponsors related to deadlines
under section 107(g)(3) of NEPA’’ to the
end of the first sentence stating that
judicial review of NEPA compliance
does not occur before an agency issues
a ROD or takes a final agency action.
CEQ did not receive specific comments
on this proposal and adds to
redesignated paragraph (b) the
exception clause to acknowledge the
ability of project sponsors to petition a
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court when an agency allegedly fails to
meet a deadline consistent with section
107(g)(3) of NEPA. 42 U.S.C.
4336(a)(g)(3).
Fourth, CEQ proposed to move the
last sentence of paragraph (d) of 40 CFR
1500.3 (2020) regarding harmless error
for minor, non-substantive errors, a
concept that has been in place since the
1978 regulations, to redesignated
paragraph (b). CEQ also proposed to
delete the second sentence of paragraph
(c) of 40 CFR 1500.3 (2020) stating that
noncompliance with NEPA and the CEQ
regulations should be resolved as
expeditiously as possible. While CEQ
agrees with expeditious resolution of
issues, CEQ proposed to delete this
sentence reasoning that CEQ cannot
compel members of the public or courts
to resolve NEPA disputes expeditiously.
One commenter opposed the
proposed deletion of the second
sentence of paragraph (c) of 40 CFR
1500.3 (2020) and disagreed with CEQ’s
rationale, asserting that it is proper for
CEQ to express its interest in agencies
resolving NEPA compliance issues as
soon as practicable. The commenter
further argued that doing so is in the
interest of Federal agencies, project
proponents, and the public, and that
unresolved NEPA disputes can lead to
costly litigation that prolongs the NEPA
process, wastes taxpayer and project
proponent resources, and deprives
communities of infrastructure
improvements.
CEQ agrees that efficiency is an
important goal, and that resolving
claims of NEPA noncompliance can
result in costly and time-consuming
litigation. Upon further consideration,
CEQ retains the second sentence of
paragraph (c) of 40 CFR 1500.3(2020) in
the final rule as the third sentence of
§ 1500.3(b), but revises the text from ‘‘as
expeditiously as possible’’ to ‘‘as
expeditiously as appropriate.’’ While it
is true that CEQ cannot compel
members of the public or courts to
resolve disputes expeditiously, as noted
in CEQ’s justification for proposing to
delete this provision, CEQ considers
this sentence to appropriately express
CEQ’s intention, rather than purporting
to inappropriately bind those parties to
litigation or dictate what timeline is
appropriate for any particular case.
Further, CEQ notes that the regulations
promote public engagement, appropriate
analysis, and informed decision making
to facilitate NEPA compliance and avoid
such disputes from the outset. CEQ
moves the last sentence of 40 CFR
1500.3(d) (2020) to § 1500.3(b) as
proposed.
Fifth, CEQ proposed to strike the last
sentence of paragraph (c) of 40 CFR
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1500.3 (2020) allowing agencies to
include bonding and other security
requirements in their procedures
consistent with their organic statutes
and as part of implementing the
exhaustion requirements because this
relates to litigation over an agency
action and not the NEPA process. CEQ
explained in the proposed rule that it is
unsettled whether NEPA provides
agencies with authority to promulgate
procedures that require plaintiffs to post
bonds in litigation brought under the
APA, and that CEQ does not consider it
appropriate to address this issue in the
NEPA implementing procedures.
Multiple commenters urged CEQ not
to remove this sentence or encouraged
CEQ to revise the regulations to require
parties to post such a bond when
petitioning a court to enjoin a NEPA
decision during the pendency of
litigation. Conversely, many
commenters supported the proposed
elimination of the bonding provision,
which the commenters said discourages
public engagement, appropriate
analysis, and informed decision making
and inequitably burdens disadvantaged
communities.
CEQ removes the bonding provision
in the final rule by striking the last
sentence of 40 CFR 1500.3(c) (2020).
NEPA does not authorize CEQ to require
posting of bonds or other financial
securities prior to a party challenging an
agency decision. Agencies may have
various authorities independent of
NEPA to require bonds or other
securities as a condition of filing an
administrative appeal or obtaining
injunctive relief; this rule does not
modify those authorities. CEQ continues
to consider it unsettled whether NEPA
provides agencies with authority to
promulgate procedures that require
plaintiffs to post bonds in litigation
brought under the APA, commenters
did not identify any specific statutory
authorities, and even if such authority
exists, CEQ does not view such a
requirement as appropriate for inclusion
in the NEPA regulations. Agency
authority to require bonds or other
securities as a condition of an
administrative appeal or injunctive
relief may exist independent of NEPA,
and to the extent that such authority
does exist, it likely varies by agency.
The rule does not modify any existing
authority.
CEQ proposed to strike paragraph (d)
of 40 CFR 1500.3 (2020) regarding
remedies, with the exception of the last
sentence, which CEQ proposed to move
to proposed paragraph (c) as discussed
earlier in this section. CEQ proposed to
remove this provision because it is
questionable whether CEQ has the
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authority to direct courts about what
remedies are available in litigation
brought under the APA, and in any case,
CEQ considers the 2020 rule’s addition
of this paragraph to be inappropriate.
CEQ strikes 40 CFR 1500.3(d) (2020)
in the final rule. CEQ considers courts
to be in the best position to determine
the appropriate remedies when a
plaintiff successfully challenges an
agency’s NEPA compliance. See, e.g., N.
Cheyenne Tribe v. Norton, 503 F.3d 836,
842 (9th Cir. 2007) (rejecting successful
NEPA plaintiffs’ contention that CEQ
regulations mandated a particular
remedy and holding that ‘‘a NEPA
violation is subject to traditional
standards in equity for injunctive
relief’’).
Finally, CEQ proposed to redesignate
paragraph (e) of 40 CFR 1500.3 (2020)
on Severability, as proposed paragraph
(c), without change. CEQ makes this
change in the final rule because CEQ
intends these regulations to be
severable. This final rule amends
existing regulations, and the NEPA
regulations can be functionally
implemented if each revision in this
final rule occurred on its own or in
combination with any other subset of
revisions. As a result, if a court were to
invalidate any particular provision of
this final rule, allowing the remainder of
the rule to remain in effect would still
result in a functional NEPA review
process. This approach to severability is
the same as the approach that CEQ took
when it promulgated the 2020
regulations, because those amendments
similarly could be layered onto the 1978
regulations individually without
disrupting the overarching NEPA review
process.
4. Concise and Informative
Environmental Documents (§ 1500.4)
CEQ proposed to revise § 1500.4,
which briefly describes and cross
references certain other provisions of
the CEQ regulations, to emphasize the
important values served by concise and
informative NEPA documents beyond
merely reducing paperwork, such as
promoting informed and efficient
decision making and facilitating
meaningful public participation and
transparency. CEQ proposed these
changes to encourage the preparation of
documents that can be easily read and
understood by decision makers and the
public, which in turn promotes
informed and efficient decision making
and public participation.
First, CEQ proposed to retitle § 1500.4
from ‘‘Reducing paperwork’’ to
‘‘Concise and informative
environmental documents’’ and revise
the introductory text to clarify that the
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listed paragraphs provide examples of
the regulatory mechanisms that agencies
can use to prepare concise and
informative environmental documents.
Multiple commenters supported the
proposed changes in § 1500.4, opining
the changes properly direct agencies to
streamline the process of preparing
environmental documents and make
those documents analytical, concise,
and informative. One commenter
recommended that CEQ add ‘‘for
example’’ and ‘‘as appropriate’’ to the
introductory paragraph.
CEQ revises the title and introductory
text of § 1500.4 in the final rule as
proposed. Concise and informational
documents make the NEPA process
more accessible and transparent to the
public, allowing the public an
opportunity to contribute to the NEPA
process. The changes in § 1500.4 align
the regulations with the intent of NEPA
to allow the public to provide input and
enhance transparency, while providing
agencies flexibility on how to achieve
concise and informative documents.
CEQ declines to add ‘‘for example’’ and
‘‘as appropriate’’ to the introductory
paragraph. Those qualifiers are
unnecessary because CEQ proposed and
is adding ‘‘e.g.,’’ throughout § 1500.4,
where appropriate, to clarify that the
cross-references are non-exclusive
examples of strategies that agencies
must use in preparing analytical,
concise, and informative environmental
documents.
CEQ proposed to strike paragraphs (a)
and (b) of 40 CFR 1500.4 (2020) because
they are redundant with § 1500.5(a) and
(b) and are more appropriately
addressed in that section, which
addresses an efficient process. CEQ also
proposed to strike paragraph (d) of 40
CFR 1500.4 (2020) because this
provision would be addressed in the
revised introductory text.
A few commenters objected to the
deletion of 40 CFR 1500.4(a) and (b)
(2020), which pertain to using CEs and
FONSIs, respectively. The commenters
asserted that the use of CEs and FONSIs
is critical to ensuring ‘‘analytical,
concise, and informative’’
environmental documents, and that the
inclusion of such language encourages
concision in the evaluation process.
While recognizing the paragraphs are
redundant with § 1500.5(a) and (b), they
asserted that § 1500.5(a) and (b) address
improving efficiency in the process,
while § 1500.4 addresses concise
environmental documents. The
commenters further asserted that the
two sections are separate in substance
and in form, and each should therefore
include independent language
addressing any inefficiencies.
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CEQ strikes paragraphs (a), (b), and
(d) of 40 CFR 1500.4 (2020) consistent
with the proposal. While CEQ agrees
that, where appropriate, applying CEs
and preparing EAs and FONSIs
typically result in shorter evaluation
timelines, this section addresses the
preparation of documents, including CE
determinations, EAs, and FONSIs,
rather than addressing the use of
different types of environmental
documents.
CEQ proposed to redesignate
paragraphs (c) and (e) through (q) of 40
CFR 1500.4 (2020) as § 1500.4 (a) and (b)
through (n), respectively. CEQ proposed
to add ‘‘e.g.,’’ to the cross references
listed in proposed paragraphs (b), (c),
and (e) to clarify that they are nonexclusive examples of how agencies can
briefly discuss unimportant issues,
write in plain language, and reduce
emphasis on background material. CEQ
also proposed to update the regulatory
section cross references for consistency
with the proposed changes in the rule.
CEQ makes these changes in the final
rule as proposed.
In proposed paragraphs (c) and (e),
CEQ proposed to expand the reference
from EISs to all environmental
documents, as the concepts discussed
are more broadly applicable.
Additionally, in paragraph (e), CEQ
proposed to insert ‘‘most’’ before
‘‘useful’’ to clarify that the
environmental documents should not
contain portions that are useless.
In proposed paragraph (f), CEQ
proposed to replace ‘‘significant’’ with
‘‘important’’ and insert ‘‘unimportant’’
to modify ‘‘issues’’ consistent with the
proposal to only use ‘‘significant’’ to
modify ‘‘effects.’’ CEQ also proposed to
clarify in paragraph (f) that scoping may
apply to EAs. Additionally, CEQ
proposed to expand paragraph (h),
regarding programmatic review and
tiering, to include EAs to align with the
proposed changes to § 1501.11. CEQ
makes these changes to paragraphs (c),
(e), (f), and (h) in the final rule as
proposed.
While CEQ did not propose any
changes to paragraph (l) regarding use of
errata sheets, in the final rule, CEQ
moves the clause ‘‘when changes are
minor’’ from the end to the beginning of
the paragraph to make the language
clearer that agencies use errata sheets
only when changes between the draft
EIS and final EIS are minor. Finally, in
paragraph (m), CEQ proposed to insert
‘‘Federal’’ before ‘‘agency’’ consistent
with § 1506.3, which allows adoption of
NEPA documents prepared by other
Federal agencies.
One commenter objected to paragraph
(m), contending that directing agencies
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to eliminate duplication by preparing
environmental documents jointly with
relevant State, Tribal, and local agencies
would threaten the autonomy of Tribes
by obligating them to coordinate with
Federal agencies in preparing
environmental documents. CEQ
disagrees with this commenter’s
interpretation of paragraph (m).
Paragraph (m) refers agencies to
§ 1506.2, which makes clear that
agencies should only prepare joint
environmental documents by mutual
consent. CEQ makes the changes as
proposed in the final rule.
Commenters recommended including
additional strategies in § 1500.4,
including minimizing unnecessary
repetition in describing and assessing
alternatives, limiting discussion of
effects to those that are reasonably
foreseeable, and resolving
disagreements in the review process
expeditiously. CEQ declines to add
additional paragraphs. Section 1500.4
lists regulatory provisions that agencies
must use in preparing concise and
informative environmental documents;
these provisions already direct agencies
to minimize unnecessary repetition,
evaluate the reasonably foreseeable
effects of proposed actions, and resolve
disagreements expeditiously.
5. Efficient Process (§ 1500.5)
CEQ proposed minor changes to
§ 1500.5 to provide clarity and
flexibility regarding mechanisms by
which agencies can apply the CEQ
regulations to improve efficiency in the
environmental review process. CEQ
proposed these changes to acknowledge
that unanticipated events and
circumstances beyond agency control
may delay the environmental review
process, and to recognize that, while
these approaches may improve
efficiency for many NEPA reviews, they
could be inefficient for others. To that
end, CEQ proposed to retitle § 1500.5
from ‘‘Reducing delay’’ to ‘‘Efficient
process’’ and revise the introductory
text to replace ‘‘reduce delay’’ with
‘‘improve efficiency of the NEPA
processes’’ consistent with the new title.
Some commenters recommended
against these changes asserting that they
give the impression that it is
unimportant for agencies to reduce
delays in the permitting process. CEQ
revises the title and introductory text as
proposed. The purpose of the changes is
not to discount the importance of
reducing delays in the environmental
review process, but to emphasize that
agencies should make their review
processes broadly efficient and not
merely fast—recognizing that efficiency
also requires effectiveness and quality of
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work. CEQ agrees that reducing delays
is important but considers the text to
give the wrong impression that there are
always delays in the NEPA process.
CEQ proposed to add EAs to
paragraph (a) to make the provision
consistent with the definition of
‘‘categorical exclusion;’’ phrase
paragraph (d) in active voice; change
‘‘real issues’’ to ‘‘important issues that
required detailed analysis’’ in paragraph
(f) for consistency with § 1502.4; change
‘‘time limits’’ to ‘‘deadlines’’ in
paragraph (g) for consistency with
§ 1501.10; and expand the scope of
paragraph (h) from EISs to
environmental documents to make clear
that, regardless of the level of NEPA
review, agencies should prepare
environmental documents early in the
process. CEQ proposed these revisions
to recognize the importance of timely
information for decision making and
encourage agencies to implement the 12
listed mechanisms to achieve timely
and efficient NEPA processes. CEQ did
not receive any comments specific to
these proposed changes and makes them
in the final rule. Additionally, CEQ
revises § 1500.5(a) to change ‘‘using’’ to
‘‘establishing’’ and adds a cross
reference to § 1507.3(c)(8) because the
language in this provision is addressing
the development of CEs, not their
application to proposed actions.
One commenter recommended the
final rule revise paragraph (d)—
requiring interagency cooperation
during preparation of an EA or EIS
rather than waiting to submit comments
on a completed document—to require
the lead agency to involve other relevant
agencies in the determination of
whether to review a proposed action by
applying a CE, preparing an EA, or
preparing an EIS.
CEQ revises paragraph (d) to
incorporate some of the text proposed
by the commenter. Specifically, CEQ
adds ‘‘including with affected Federal,
State, Tribal, and local agencies’’ to
highlight the efficiency benefits of
interagency cooperation with those nonFederal entities, and also adds the
words ‘‘request or’’ before the ‘‘submit
comments’’ to highlight the importance
of both the lead agency and other
agencies to interagency cooperation.
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6. Agency Authority (§ 1500.6)
CEQ proposed revisions to § 1500.6 to
clarify that agencies have an
independent responsibility to ensure
compliance with NEPA and a duty to
harmonize NEPA with their other
statutory requirements and authorities
to the maximum extent possible. CEQ
proposed to revise the second and third
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sentences in § 1500.6 and strike the
fourth sentence.
While CEQ did not propose changes
to the first sentence, which requires an
agency to view its policies and missions
in the light of NEPA’s environmental
objectives to the extent consistent with
its existing authority, one commenter
recommended that CEQ revise the
sentence to restore phrasing from the
1978 regulations. In particular, the
commenter recommended the final rule
delete the last clause, ‘‘to the extent
consistent with its existing authority’’
because it is ‘‘internally inconsistent
and contrary to the plain language of
NEPA Section 105.’’ 42 U.S.C. 4335.
Another commenter recommended the
final rule delete the first sentence and
disagreed with the description in the
proposed rule that ‘‘an irreconcilable
conflict exists only if the agency’s
authorizing statute grants it no
discretion to comply with NEPA while
also satisfying the statutory mandate,’’
asserting that if a statute delegates
authority, it does so expressly and there
is no presumption that an agency’s
authorizing statute delegates the agency
authority to comply with NEPA.
CEQ declines to revise the first
sentence. This provision generally
directs agencies to interpret the
provisions of NEPA, including section
2’s statement of purpose, section 101’s
statement of policy, and sections 102
through 111’s procedural provisions as
a supplement to their existing
authorities, and agencies can only do so
to the extent consistent with those
authorities. See 42 U.S.C. 4321 et seq.
This provision does not address the
more specific issue of when an agency
is excused from completing an
environmental document because of
contrary statutory authority. That issue
is addressed in § 1501.3(a)(2), which
incorporates section 106(a) of NEPA’s
directive that agencies are not required
to prepare an environmental document
where ‘‘the preparation of such
document would clearly and
fundamentally conflict with the
requirements of another provision of
law.’’ 42 U.S.C. 4336(a)(3). NEPA
applies to all Federal agencies and
includes a specific statutory directive
that ‘‘the policies, regulations, and
public laws of the United States shall be
interpreted and administered in
accordance with the policies set forth in
[NEPA].’’ 42 U.S.C. 4332(1). While there
may be situations in which compliance
with another Federal law precludes an
agency from complying with NEPA,
agencies have an obligation to
harmonize NEPA with their other
statutes where possible to do so.
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CEQ proposed to revise the second
sentence of § 1500.6 to remove the
qualification added in the 2020 rule that
agencies must ensure full compliance
with the Act ‘‘as interpreted by’’ the
CEQ regulations so the provision would
instead state that agencies must review
and revise their procedures to ensure
compliance with NEPA and the CEQ
regulations. CEQ proposed this change
because the phrase ‘‘as interpreted by’’
could be read to indicate that agencies
have no freestanding requirement to
comply with NEPA itself, which would
be untrue. CEQ also considered the
change necessary for consistency with
§ 1507.3(b), which CEQ revised in its
Phase 1 rulemaking to make clear that,
while agency procedures must be
consistent with the CEQ regulations,
agencies have discretion and flexibility
to develop procedures beyond the CEQ
regulatory requirements, enabling
agencies to address their specific
programs, statutory mandates, and the
contexts in which they operate. CEQ
proposed to make conforming edits in
§§ 1502.2(d) and 1502.9(b) to remove
this phrase.
Several commenters expressed
support for CEQ’s proposal to restore
language emphasizing each Federal
agency’s independent obligation and
ability to implement NEPA. The
commenters asserted that removing this
language would make it clear that
agencies have an obligation to comply
with NEPA by following CEQ’s
regulations and also reviewing and
revising, as necessary, their own agency
policies, procedures, and activities. The
commenter further asserted this
independent obligation to comply with
NEPA, combined with revisions to
§ 1507.3 in the Phase 1 rule, provides
Federal agencies with flexibility to craft
regulations tailored to their agency’s
work, even if they go beyond the
requirements of the CEQ NEPA
regulations.
Another commenter expressed
support for this proposed change and
agreed with CEQ’s statement that the
current text could be read to mistakenly
indicate that agencies have no
freestanding requirement to comply
with NEPA. The commenter suggested
that the final rule add to the beginning
of the second sentence, to state that
‘‘[a]gencies shall comply with the
purposes and provisions of the Act and
with the requirements under this Part,
to the fullest extent possible.’’ The
commenter asserted that regardless of
what an agency’s policies, procedures,
and regulations say, it is critical that the
agency comply with both NEPA and the
CEQ regulations, unless an agency
activity, decision, or action is exempted
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by law or compliance with NEPA is
impossible.
In the final rule, CEQ revises the
second sentence of § 1500.6 as proposed
to replace ‘‘as interpreted by’’ with
‘‘and’’ and makes conforming changes to
§§ 1502.2(d) and 1502.9(b). CEQ
declines to add the clause suggested by
the commenter because compliance
with NEPA and the regulations is
already addressed in the last sentence of
this section as well as §§ 1507.1 and
1507.2.
In the third sentence, CEQ proposed
to remove the cross-reference to § 1501.1
for consistency with the proposed
revisions to § 1501.1 and add the text,
consistent with language from the 1978
regulations, explaining that the phrase
‘‘to the fullest extent possible’’ means
that each agency must comply with
section 102 of NEPA unless an agency
activity, decision, or action is exempted
by law or compliance with NEPA is
impossible. 42 U.S.C. 4332.
A couple of commenters suggested
revisions to the last sentence of
§ 1500.6. They asserted that the
proposed revisions would create
confusion by creating a distinction
between complying with section 102 of
NEPA and complying with all of NEPA,
and that this was incorrect given the
recent NEPA amendments and the
proposed implementation of those
amendments in these regulations. 42
U.S.C. 4321 et seq. The commenters
recommended the final rule replace
‘‘that section unless’’ with ‘‘the Act and
the regulations of this subchapter.’’
CEQ agrees with the commenter that
the statement in section 102 is not
limited to that section and replaces the
phrase ‘‘that section’’ with ‘‘the Act’’ for
consistency with the statute. Section
102(2) authorizes and directs that, to the
fullest extent possible the policies,
regulations, and public laws of the
United States shall be interpreted and
administered in accordance with the
policies set forth in NEPA. 42 U.S.C.
4332(2). CEQ does not include a
reference to the regulations as these are
not specifically identified in section
102, and § 1507.1 addresses the
requirement to comply with the NEPA
regulations.
The commenters also recommended
the final rule replace ‘‘compliance with
NEPA is impossible’’ with ‘‘compliance
is impracticable.’’ The commenters
recommended this change because
section 101 refers to the Federal
Government taking all ‘‘practicable
means’’ to advance NEPA’s goals,
implicitly sparing the need to pursue
‘‘impracticable’’ steps. 42 U.S.C. 4331.
CEQ declines to make this change and
revises the last sentence as proposed to
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strike ‘‘consistent with § 1501.1 of this
chapter’’ and replace it with ‘‘unless an
agency activity, decision, or action is
exempted from NEPA by law or
compliance with NEPA is impossible.’’
Compliance with NEPA is only
impossible within the meaning of this
subsection when the conflict between
another statute and the requirements of
NEPA are clear, unavoidable, and
irreconcilable. Absent exemption by
Congress or a court, an irreconcilable
conflict exists if the agency’s
authorizing statute does not provide the
agency any discretion to comply with
NEPA while also satisfying its statutory
mandate. While NEPA requires agencies
‘‘to use all practicable means’’ to
achieve the Act’s environmental goals,
see 42 U.S.C. 4331, the Act does not
limit its procedural requirements in the
same fashion. Instead, it directs agencies
to fulfill the obligations in section 102
of NEPA, which establishes NEPA’s
procedural obligations, ‘‘to the fullest
extent possible,’’ 42 U.S.C. 4332, which
the Supreme Court has interpreted to
require compliance except for ‘‘where a
clear and unavoidable conflict in
statutory authority exists.’’ See Flint
Ridge Dev. Co, 426 U.S. at 788.
Therefore, revising proposed paragraph
(a)(3) to replace ‘‘impossible’’ with
‘‘impracticable’’ would be inconsistent
with the statute and deviate from the
established legal standard implementing
it.
Finally, CEQ proposed to strike the
last sentence of 40 CFR 1500.6 (2020)
stating that the CEQ regulations do not
limit an agency’s other authorities or
legal responsibilities. In the 2020 rule,
CEQ stated that it added this sentence
to acknowledge the possibility of
different statutory authorities with
different requirements and for
consistency with E.O. 11514, as
amended by section 2(g) of E.O.
11991.62 CEQ reconsidered its position
and proposed to delete the sentence as
superfluous and unnecessarily vague.
CEQ proposed that the revised last
sentence of § 1500.6—agencies must
comply with NEPA in carrying out an
activity, decision, or action unless
exempted by law (including where
courts have held that a statute is
functionally equivalent) or compliance
with NEPA is impossible—accurately
reflects the directive that Federal
agencies comply with the CEQ
regulations ‘‘except where such
compliance would be inconsistent with
statutory requirements.’’ 63 CEQ
62 E.O. 11514, supra note 26; E.O 11991, supra
note 29.
63 CEQ, 2020 Final Rule, supra note 39, at 43319.
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removes this sentence from 40 CFR
1500.6 (2020) in the final rule.
C. Revisions To Update Part 1501,
NEPA and Agency Planning
CEQ proposed substantive revisions
to all sections in part 1501 except
§ 1501.2, ‘‘Apply NEPA early in the
process,’’ to which CEQ proposed minor
edits for readability that are nonsubstantive. CEQ received a few
comments on § 1501.2 requesting
additional revisions but declines to
make additional changes in response to
the comments, which are discussed in
the Phase 2 Response to Comments.
1. Purpose (§ 1501.1)
CEQ proposed to revise § 1501.1 to
address the purpose and goals of part
1501, consistent with the approach in
the 1978 regulations, and move the text
in paragraph (a) of 40 CFR 1501.1 (2020)
regarding NEPA thresholds to
§ 1501.3(a). CEQ discusses the revisions
to that paragraph in section II.C.2 of this
rule. Multiple commenters expressed
general support for the overall changes
to § 1501.1.
First, consistent with the approach in
the 1978 regulations, CEQ proposed to
retitle § 1501.1 to ‘‘Purpose,’’ and add
an introductory paragraph to indicate
that this section would address the
purposes of part 1501. CEQ did not
receive any specific comments on these
proposed changes and makes them in
the final rule consistent with the
proposal.
Second, in paragraph (a), CEQ
proposed to highlight the importance of
integrating NEPA early in agency
planning processes by restoring some of
the language from the 1978 regulations,
while also including language that
emphasizes that early integration of
NEPA promotes an efficient process and
can reduce delay. CEQ proposed these
revisions for consistency with section
102(2)(C) of NEPA and the objective to
build into agency decision making,
beginning at the earliest point, an
appropriate consideration of the
environmental aspects of a proposed
action. 42 U.S.C. 4332(2)(C). CEQ did
not receive any specific comments on
proposed paragraph (a) and includes it
in the final rule as proposed.
Third, CEQ proposed in paragraph (b)
to emphasize early engagement in the
environmental review process to elevate
the importance of early coordination
and engagement throughout the NEPA
process to identify and address potential
issues early in the decision-making
process, thereby helping to reduce the
overall time required to approve a
project and improving outcomes.
Multiple commenters expressed support
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for proposed paragraph (b) and the
emphasis on early engagement in the
environmental review process. One
commenter suggested additional
language to clarify that engagement
should occur both prior to and during
preparation of environmental
documents. CEQ agrees that public
engagement should continue throughout
the NEPA process. However, this
section outlines the purposes of part
1501, and while § 1501.1(b) emphasizes
that engagement should start early in
the NEPA process, the full breadth of
appropriate engagement in the NEPA
process is more appropriately discussed
in § 1501.9. Therefore, CEQ includes
paragraph (b), which is consistent with
other changes throughout the
regulations emphasizing the importance
of engagement, as proposed, in the final
rule.
Fourth, CEQ proposed to add a new
paragraph (c) to restore text from the
1978 regulations regarding expeditious
resolution of interagency disputes. One
commenter suggested appending ‘‘and
in the best interest of the public’’ to the
end of paragraph (c) and expressed
concern that the proposed language,
particularly the reference to ‘‘fair,’’
implies agencies have an interest of
their own. The commenter
recommended the regulations clarify
that interagency disputes should be
resolved in a manner that advances the
public interest and not just the interests
of the agencies.
CEQ adds paragraph (c), as proposed,
to the final rule. While CEQ considers
expeditious resolution of interagency
disputes to be in the best interest of the
public, the purpose of part 1501 is to
facilitate the resolution of such disputes
in an efficient fashion that
accommodates the perspectives,
expertise, and relevant statutory
authority of the agencies involved in the
dispute.
Fifth, CEQ proposed to add paragraph
(d) to restore the direction to identify
the scope of the proposed action and
important environmental issues
consistent with § 1501.3, which can
enhance efficiency. One commenter
requested clarity on what ‘‘important
environmental issues’’ means, while
another commenter asserted that all
issues that acutely and negatively
impact the environment deserve full
study. One commenter also requested
the final rule add language to clarify
that agencies should remove
unimportant issues from study or
analysis, not just deemphasize them.
CEQ adds paragraph (d), as proposed,
to the final rule. CEQ declines to make
the commenter’s recommended changes
in paragraph (d). Agencies must
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consider all issues during the
environmental review process, but the
level of analysis should be
commensurate with the importance of
the effect, with some issues requiring
less analysis. This approach is
consistent with the approach of the
1978 regulations that agencies have
decades of experience implementing,
which indicated that agencies should
‘‘concentrate on the issues that are truly
significant to the action in question,
rather than amassing needless detail.’’
40 CFR 1500.1(b) (2019).
Sixth, CEQ proposed to add paragraph
(e) to highlight the importance of
schedules consistent with § 1501.10,
which includes provisions requiring
agencies to develop a schedule for all
environmental reviews and
authorizations, as well as §§ 1501.7 and
1501.8, which promote interagency
coordination including with respect to
schedules. CEQ did not receive any
specific comments on proposed
paragraph (e) and includes it in the final
rule as proposed.
Seventh, as discussed further in
section II.C.2, CEQ proposed to combine
the threshold considerations provision
with the process to determine the
appropriate level of NEPA review in
§ 1501.3 by moving paragraphs (a)(1),
(a)(2), (a)(4), and (a)(5) of 40 CFR 1501.1
(2020) to § 1501.3(a)(1), (2), (4), and
(4)(ii), respectively, and striking
paragraphs (a)(3) and (a)(6).
CEQ proposed to delete the factor
listed in 40 CFR 1501.1(a)(3) (2020),
inconsistency with Congressional intent
expressed in another statute, because
upon further consideration, CEQ
considers this factor to have
inadequately accounted for agencies’
responsibility to harmonize NEPA with
other statutes, as discussed further in
section II.C.2. As discussed in section
II.B.5, the regulations provide that an
agency should determine if a statute or
court decision exempts an action from
NEPA or if compliance with NEPA and
another statute would be impossible; if
not, the agency must comply with
NEPA. To the extent the factor
suggested that agencies should seek to
go beyond these two questions to
determine Congress’s intent regarding
NEPA compliance in enacting another
statute, the factor is incorrect.
One commenter objected to CEQ’s
removal of the factor at 40 CFR
1501.1(a)(3) (2020) directing agencies to
consider ‘‘[w]hether compliance with
NEPA would be inconsistent with
Congressional intent expressed in
another statute.’’ The commenter
asserted the proposed rule does not
provide sufficient guidance to Federal
agencies to determine whether an action
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is consistent with Congressional intent.
In the final rule, CEQ strikes 40 CFR
1501.1(a)(3) (2020) as proposed because
CEQ considers this factor to have
inadequately accounted for agencies’
responsibility to harmonize NEPA with
other statutes. Section 1501.3(a)(2) of
the final rule requires agencies to
consider ‘‘[w]hether compliance with
NEPA would clearly and fundamentally
conflict with the requirements of
another provision of Federal law.’’ As
discussed further in section II.C.2,
§ 1501.3(a)(2) incorporates the language
of section 106(a)(3) of NEPA, 42 U.S.C.
4336(a)(3), and aligns with the statutory
mandate in section 102 of NEPA, 42
U.S.C. 4332, that agencies comply with
NEPA ‘‘to the fullest extent possible.’’
Therefore, CEQ is removing this factor
because it provides an inadequately
rigorous standard for exempting agency
actions from NEPA and is redundant
with § 1501.3(a)(2).
CEQ proposed to strike the factor in
40 CFR 1501.1(a)(6) (2020) regarding
functional equivalence to restore the
status quo as it existed in the
longstanding 1978 regulations. The
NPRM explained that certain
Environmental Protection Agency (EPA)
actions are explicitly exempted from
NEPA’s environmental review
requirements, see, e.g., 15 U.S.C.
793(c)(1) (exempting EPA actions under
the Clean Air Act); 33 U.S.C. 1371(c)(1)
(exempting most EPA actions under the
Clean Water Act), and courts have found
EPA’s procedures under certain other
environmental statutes it administers
and certain procedures under the
Endangered Species Act (ESA) to be
functionally equivalent to or otherwise
exempt from NEPA. See, e.g., Env’t Def.
Fund, Inc. v. EPA, 489 F.2d 1247, 1256–
57 (D.C. Cir. 1973) (exempting agency
actions under the Federal Insecticide,
Fungicide, and Rodenticide Act); W.
Neb. Res. Council v. U.S. Env’t Prot.
Agency, 943 F.2d 867, 871–72 (8th Cir.
1991) (noting exemptions under the Safe
Drinking Water Act); Douglas County v.
Babbitt, 48 F.3d 1495, 1503 (9th Cir.
1995) (holding that Endangered Species
Act procedures for designating a critical
habitat replace the NEPA requirements).
Nevertheless, CEQ considered this
language added to the 2020 rule to go
beyond the scope of the NEPA statute
and case law because the language
could be construed to expand functional
equivalence beyond the narrow contexts
in which it has been recognized.
Some commenters opposed the
proposed removal of the factor on
functional equivalence from 40 CFR
1501.1(a)(6) (2020) as well as in other
provisions of the regulations, including
the removal of 40 CFR 1500.1(a), 1506.9,
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1507.3(c)(5), and 1507.3(d)(6) (2020).
One commenter asserted that removing
it would extend duplicative activity
among agencies. Other opponents
underscored that courts have held on
several occasions that statutes that
include their own environmental review
processes can make compliance with
NEPA redundant. These commenters
asserted that CEQ’s removal of
regulatory language recognizing those
decisions will encourage duplication
and inefficiency. One commenter
asserted that language in the rulemaking
that encourages agencies ‘‘to establish
mechanisms in their agency NEPA
procedures to align processes and
requirements from other environmental
laws with the NEPA process’’ would
turn the functional equivalence doctrine
on its head, by requiring a specific
statute to give way to a general statute
rather than vice versa.
By contrast, supporters of these
changes asserted that the language in
question had no justification in law, and
that Congress had considered
incorporating language related to
functional equivalence into NEPA as
part of the development of the Fiscal
Responsibility Act but had ultimately
chosen not to do so.
CEQ strikes the factor in 40 CFR
1501.1(a)(6) (2020) from the final rule.
As several commenters acknowledged,
courts decided some of the cases
addressing functional equivalence
before CEQ issued the 1978 regulations,
which encouraged agencies to combine
environmental documents with ‘‘any
other agency document[s] to reduce
duplication and paperwork,’’ 40 CFR
1506.4 (2019),64 and to ‘‘adapt[] [their]
implementing procedures authorized by
§ 1507.3 to the requirements of other
applicable laws.’’ 40 CFR 1507.1 (2019).
CEQ acknowledges the continuing
validity of the judicial decisions finding
EPA’s procedures under certain
environmental statutes it administers
and certain procedures under the ESA
are functionally equivalent to NEPA.
CEQ considers these circumstances to
fall within the scope of the activities
and decisions addressed in
§ 1501.3(a)(1) as ‘‘exempted from NEPA
by law.’’ CEQ considers it unhelpful to
separately discuss functional
equivalence in the regulations to avoid
suggesting that other agencies and
activities or decisions are also exempted
from NEPA. CEQ disagrees with
commenters who contended that the
functional equivalence decisions give
agencies license to create new NEPA
64 See CEQ, Phase 2 proposed rule, supra note 51,
at 49956.
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exemptions.65 Rather, the appropriate
approach is for agencies to align their
NEPA procedures with their statutory
requirements—an approach that does
not require a more specific statute to
give way to a more general one, as
asserted by a commenter, but rather
allows agencies to comply with both
statutes at once.
Eighth, CEQ proposed to remove the
language in paragraph (b) of 40 CFR
1501.1 (2020) allowing agencies to make
threshold determinations individually
or in their NEPA procedures because
CEQ proposed to move the
consideration of thresholds into
§ 1501.3 to consolidate the steps
agencies should take to determine
whether NEPA applies and, if so, what
level of NEPA review is appropriate.
CEQ also proposed to strike this
language because it is redundant to
language in § 1507.3(d)(1), which
provides that agency NEPA procedures
may identify activities or decisions that
are not subject to NEPA.
Ninth, CEQ proposed to remove as
unnecessary paragraph (b)(1) of 40 CFR
1501.1 (2020) because agencies have
discretion to consult with CEQ and have
done so for decades on a wide variety
of matters, including on determining
NEPA applicability, without such
specific language in the CEQ
regulations.
Finally, CEQ proposed to eliminate
paragraph (b)(2) of 40 CFR 1501.1 (2020)
directing agencies to consult with
another agency when they jointly
administer a statute if they are making
a threshold applicability determination.
CEQ proposed to delete this paragraph
because while CEQ agrees that
consultation is a good practice in such
circumstances, it does not consider such
a requirement necessary for these
regulations because consultation is best
determined by the agencies involved.
One commenter expressed
appreciation for the consolidation of
threshold considerations from
paragraph (b) but asserted that the final
rule should retain an acknowledgement
that the threshold considerations are a
non-exhaustive list and that agencies
should identify considerations on a
case-by-case basis. CEQ considers the
language in §§ 1501.3(a) and
1507.3(d)(1) to address the commenter’s
concern and removes paragraphs (b),
(b)(1), and (b)(2) of 40 CFR 1501.1
(2020) in the final rule.
65 See also CEQ, Phase 2 proposed rule, supra
note 51, at 49959 (‘‘CEQ has concerns about . . .
language added by the 2020 rule [in 40 CFR
1507.3(c)(5)] to substitute other reviews as
functionally equivalent for NEPA compliance, and
therefore proposes to remove it.’’).
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2. Determine the Appropriate Level of
NEPA Review (§ 1501.3)
CEQ proposed substantive revisions
to § 1501.3 to provide a more robust and
consolidated description of the process
agencies should use to determine the
appropriate level of NEPA review,
including addressing the threshold
question of whether NEPA applies. CEQ
also proposed clarifying edits, including
adding paragraph headings to
paragraphs (a) through (d). CEQ
proposed these revisions to clarify the
steps for assessing the appropriate level
of NEPA review to facilitate a more
efficient and predictable review process.
First, as noted in section II.C.1, CEQ
proposed to move paragraph (a) of 40
CFR 1501.1 (2020) to a new § 1501.3(a),
title it ‘‘Applicability,’’ and add a
sentence requiring agencies to
determine whether NEPA applies to a
proposed activity or decision as a
threshold matter. CEQ proposed this
move because the inquiry into whether
NEPA applies is a component of
determining the level of NEPA review.
CEQ proposed to consolidate the steps
in this process into one regulatory
section to improve the clarity of the
regulations. CEQ also noted that this
consolidated provision is consistent
with the approach in section 106 of
NEPA, which addresses threshold
determinations on whether to prepare
an EA/FONSI or EIS. 42 U.S.C. 4336. In
moving the text, CEQ proposed to strike
‘‘or is otherwise fulfilled’’ after ‘‘[i]n
assessing whether NEPA applies’’
because, as discussed in section II.C.1,
CEQ proposed to remove the functional
equivalence factor from the regulation.
Second, CEQ proposed to move the
threshold determination factors agencies
should consider when determining
whether NEPA applies from paragraphs
(a)(1) and (a)(2) of 40 CFR 1501.1 (2020),
to proposed paragraphs (a)(1) and (2),
respectively. CEQ proposed to align the
text in paragraph (a)(1) with the
language proposed in § 1500.6 by
deleting ‘‘expressly’’ and replacing
‘‘exempt from NEPA under another
statute’’ with ‘‘exempted from NEPA by
law.’’ CEQ proposed to align the text in
paragraph (a)(2) with the language in
section 106(a)(3) of NEPA, changing
‘‘another statute’’ to ‘‘another provision
of law’’ for consistency with the
statutory text. 42 U.S.C. 4336(a)(3).
One commenter requested that the
final rule revise paragraph (a)(2) to
clarify that in the event of a clear and
fundamental conflict with another law,
an agency should consider ‘‘whether
NEPA or that provision prevails under
legal rules for resolving such conflicts
between Federal laws.’’ In requesting
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this revision, the commenter described
that if a situation arises in which NEPA
clearly and fundamentally conflicts
with a provision of State, Tribal, or local
law, the agency has no further
assessment to make before determining
that NEPA prevails. However, if a
situation arises in which NEPA clearly
and fundamentally conflicts with
another provision of a Federal law or a
U.S. treaty with a foreign power, the
commenter asserted the agency must
make further assessments before it can
determine whether NEPA or the other
provision prevails.
In the final rule, CEQ moves
paragraph (a) of 40 CFR 1501.1 (2020) to
a new § 1501.3(a), ‘‘Applicability,’’ and
makes the changes to paragraph (a) as
proposed. CEQ also moves paragraphs
(a)(1) and (a)(2) of 40 CFR 1501.1 (2020),
to § 1501.3(a)(1) and (2), respectively,
except that CEQ adds the word
‘‘Federal’’ to the phrase ‘‘another
provision of law.’’ CEQ interprets
section 106(a)(3), 42 U.S.C. 4336(a)(3),
in light of the bedrock legal principle
established by the Supremacy Clause of
the Constitution that State, Tribal, or
local laws do not override Federal law,
the corollary that the Federal
Government is not subject to State
regulation in the absence of clear and
unambiguous Congressional
authorization, see EPA v. California ex
rel. State Water Resources Control Bd.,
426 U.S. 200, 211 (1976), and decades
of case law that predated the NEPA
amendments and informed CEQ’s 2020
rule considering whether NEPA
conflicts with another Federal law. See,
e.g., Flint Ridge Development Co. v.
Scenic Rivers Ass’n of Oklahoma, 426
U.S. 776, 788 (1976). To improve the
clarity of the NEPA regulations, CEQ
adds the word ‘‘Federal’’ to the sentence
to avoid any potential confusion that
non-Federal legal requirements can
override NEPA. CEQ disagrees that an
agency must apply principles of
statutory interpretation to determine
whether NEPA applies where its
application would present a clear and
fundamental conflict with the
requirements of another provision of
Federal law, because section 106(a) of
NEPA provides that in such
circumstances ‘‘an agency is not
required to prepare an environmental
document with respect to a proposed
agency action.’’ 42 U.S.C. 4336(a).
Third, CEQ proposed a new factor in
paragraph (a)(3) to address
circumstances where statutory
provisions applicable to a proposed
activity or decision make compliance
with NEPA impossible. CEQ explained
in the proposed rule that this factor is
consistent with case law, principles of
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statutory construction, and the statutory
requirement of section 102 of NEPA that
agencies interpret and administer ‘‘the
policies, regulations, and public laws of
the United States’’ in accordance with
NEPA’s policies. 42 U.S.C. 4332(1).
One commenter recommended the
final rule change ‘‘impossible’’ to
‘‘impracticable’’ while another
commenter suggested that the final rule
remove paragraph (a)(3) because it is
duplicative of paragraph (a)(2). CEQ has
considered the comments and agrees
that proposed paragraph (a)(3) is
duplicative of proposed paragraph (a)(2)
and could therefore cause confusion.
Therefore, CEQ does not include
proposed paragraph (a)(3) in the final
rule.
Fourth, consistent with section
106(a)(1) and (4) of NEPA, 42 U.S.C.
4336(a)(1) and (4), CEQ proposed to
move the threshold determination factor
regarding whether the activity or
decision is a major Federal action from
paragraph (a)(4) of 40 CFR 1501.1 (2020)
and the factor regarding whether the
activity or decision is non-discretionary
from paragraph (a)(5) of 40 CFR 1501.1
(2020), to proposed § 1501.3(a)(4) and
(a)(4)(ii), respectively. CEQ proposed to
add a new paragraph (a)(4)(i) to add the
factor regarding whether the proposed
activity or decision is a final agency
action under the APA. CEQ proposed to
include whether an activity or decision
is a final agency action or nondiscretionary as subfactors of whether
an activity or decision is a major Federal
action in § 1501.3(a)(4) because CEQ
also proposed these as exclusions from
the definition of ‘‘major Federal action.’’
The proposed rule explained that when
agencies assess whether an activity or
decision is a major Federal action,
agencies determine whether they have
discretion to consider environmental
effects consistent with the definition of
‘‘major Federal action’’ in § 1508.1.
One commenter recommended the
final rule exclude proposed paragraph
(a)(4) because the question of whether
NEPA applies precedes the
determination of whether the proposed
action is a major Federal action, and
there is no need to consider whether an
action is a major Federal action if NEPA
does not apply to the action. Other
commenters recommended proposed
paragraphs (a)(4), (a)(4)(i), and (a)(4)(ii)
be separated from paragraph (a) in order
to clearly distinguish the factors for
threshold applicability determination
from the definition of ‘‘major Federal
action.’’
In the final rule, CEQ moves
paragraph (a)(4) of 40 CFR 1501.1(2020)
regarding major Federal action to
§ 1501.3(a)(3) and adds a cross reference
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to the definition § 1508.1(w). CEQ
makes this revision to enhance the
clarity of the regulation and for
consistency with section 106(a) of
NEPA. 42 U.S.C. 4336(a). CEQ disagrees
with the commenter that determining
whether an action constitutes a major
Federal action is not a component of
determining NEPA applicability or that
treating this determination separately
will improve efficiency. Agencies have
the flexibility to consider the factors in
paragraph (a) in any order and,
therefore, the regulation does not
require an agency to evaluate whether
an action is a major Federal action if
NEPA does not apply to it for other
reasons.
In the final rule CEQ adds proposed
paragraph (a)(4)(i) regarding final
agency action to § 1501.3(a)(4) to make
this a stand-alone factor, rather than a
component of determining whether an
action is a major Federal action, for
consistency with section 106(a) of NEPA
and improved clarity. 42 U.S.C. 4336(a).
The final rule also adds the word ‘‘not’’
to paragraph (a)(4), so that it reads
‘‘[w]hether the proposed activity or
decision is not a final agency action’’ for
consistency with section 106(a)(1) of
NEPA and parallelism with the other
factors, which identify circumstances in
which NEPA does not apply. 42 U.S.C.
4336(a)(1). CEQ notes that this factor
requires the agency to evaluate whether
the proposed action would be a final
agency action if ultimately taken by the
agency. CEQ does not include a cross
reference to the definition of ‘‘major
Federal action’’ as proposed because the
final rule does not include this as an
exclusion from the definition.
Lastly within paragraph (a), CEQ
moves paragraph (a)(5) of 40 CFR 1501.1
(2020) on non-discretionary actions to
§ 1501.3(a)(5) to make this a stand-alone
factor, rather than a sub-factor of major
Federal action, for consistency with
section 106(a)(4) of NEPA. 42 U.S.C.
4336(a)(4). While non-discretionary
actions are excluded from the definition
of ‘‘major Federal action’’ in section
111(10) of NEPA and § 1508.1(w),
Congress determined that it was
important to highlight this category as a
component of determining NEPA
applicability, and CEQ considers it
appropriate for the regulations to do so
as well. 42 U.S.C. 4336e(10). CEQ does
not include a cross reference to the
definition of ‘‘major Federal action’’ as
proposed because the language in the
statutory exclusion from the definition
of ‘‘major Federal action’’ is different
from this exclusion.
CEQ notes that where some
components of an action are nondiscretionary, but others are
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discretionary, an agency can exclude
considerations of the non-discretionary
components from its NEPA analysis.
That circumstance more logically
presents an issue of the appropriate
scope of the analysis, rather than of
NEPA applicability, so, as discussed
below, CEQ has included a reference to
it in paragraph (b). For example, if a
statute mandated an agency to make an
affirmative decision once a set of criteria
are met, but the agency has flexibility in
how to meet those criteria, the agency
exercises discretion on aspects of its
decision and an analysis of alternatives
and effects would inform the agency’s
exercise of discretion. Similarly, if a
statute directs an agency to take an
action, but the agency has discretion in
how it takes that action, the agency can
still comply with NEPA while carrying
out its statutory mandate.
Fifth, CEQ proposed to move, with
clarifying edits and additions, paragraph
(e) and its subparagraphs of 40 CFR
1501.9 (2020), ‘‘Determination of
scope,’’ to a new § 1501.3(b), ‘‘Scope of
action and analysis,’’ to provide the next
step in determining the appropriate
level of NEPA review—the scope of the
proposed action and its potential effects.
In addition, CEQ proposed moving into
§ 1501.3(b) one sentence from paragraph
(a) of 40 CFR 1502.4 (2020) directing
agencies to evaluate in a single NEPA
review proposals sufficiently closely
related to be considered a single action,
and the text from paragraph (e)(1) of 40
CFR 1501.9 (2020) regarding connected
actions, which are closely related
Federal activities or decisions that
agencies should consider in a single
NEPA document. CEQ proposed to
move paragraphs (e)(1)(i) through
(e)(1)(iii) of 40 CFR 1501.9 (2020)
providing the types of connected actions
into § 1501.3(b)(1) through (b)(3),
respectively.
CEQ proposed these changes because
this longstanding principle from the
1978 regulations—that agencies should
not improperly segment their actions—
is relevant not only when agencies are
preparing EISs, but also when agencies
determine whether to prepare an EA or
apply a CE. See, e.g., Fath v. Texas DOT,
924 F.3d 132, 137 (5th Cir. 2018)
(‘‘Agencies generally should not
segment, or divide artificially a major
Federal action into smaller components
to escape the application of NEPA to
some of its segments.’’) (quotations
omitted). CEQ proposed to consolidate
this text into § 1501.3(b) because the
determination of the scope of the action,
including any connected actions,
necessarily informs the appropriate
level of NEPA review. Because
including this provision in § 1501.3
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would make it applicable to
environmental reviews other than EISs,
CEQ proposed to strike the sentence that
accompanied the text in 40 CFR
1502.4(a) (2020) directing the lead
agency to determine the scope and
significant issues for analysis in the EIS
as part of the scoping process. CEQ
proposed in § 1501.3(b)(1) to make a
conforming change of ‘‘environmental
impact statements’’ to ‘‘NEPA review.’’
Multiple commenters provided
feedback on the first sentence of
proposed § 1501.3(b) suggesting the
final rule include additional language to
limit it to an action that is under Federal
agency control, and that NEPA reviews
should not be used as a ‘‘Federal
handle’’ to subject an entire project to
Federal review where the Federal action
comprises only one portion of the
project. CEQ declines these edits
because the sentence in question
appropriately directs agencies to
consider the scope of the proposed
action and its potential effects
consistent with longstanding agency
practice.
In the final rule, CEQ moves
paragraphs (e) and (e)(1) of 40 CFR
1501.9 (2020), to § 1501.3(b), and moves
paragraph (e)(1)(i) through (e)(1)(iii) of
40 CFR 1501.9 (2020) to § 1501.3(b)(1)
through (b)(3), respectively. CEQ adds
the first sentence of proposed
§ 1501.3(b) as proposed with an
additional phrase ‘‘whether aspects of
the action are non-discretionary’’ at the
end of the first sentence for consistency
with agency practice and case law
recognizing that where some aspects of
an agency’s action are nondiscretionary, the agency can properly
exclude them from the scope of its
analysis. Adding this reference to this
sentence clarifies that while NEPA does
not apply to an action that is wholly
non-discretionary, agencies should
approach circumstances in which
aspects of an action are nondiscretionary, but others are
discretionary, as a component of
determining scope.
Another commenter suggested use of
‘‘potential effects’’ be replaced with
‘‘reasonably foreseeable effects’’ to
emphasize that agencies are not
required to consider effects that are not
reasonably foreseeable. CEQ agrees that
an agency only needs to consider
reasonably foreseeable effects in
determining the scope of analysis but
declines to make this change as the
word ‘‘effects’’ is a defined term in the
regulations meaning reasonably
foreseeable effects. Upon further
consideration, CEQ deletes the word
‘‘potential’’ before the word ‘‘effects’’ to
avoid any confusion that agencies must
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consider effects other than reasonably
foreseeable effects.
Some commenters requested
additional clarity on the meaning of
scope and how determination of scope
under paragraph (b) relates to public
engagement and the scoping process
under § 1502.4. CEQ adds a new second
sentence to paragraph (b) to require
agencies to use, as appropriate, the
public engagement and scoping
mechanisms in §§ 1501.9 and 1502.4 to
inform consideration of the scope of the
proposed action and determination of
the level of NEPA review. CEQ adds this
language, consistent with other changes
made in §§ 1501.9 and 1502.4 to better
explain the connection between scope,
scoping, and public engagement.
One commenter requested clarity on
the relationship between the second and
third sentences of proposed § 1501.3(b),
specifically suggesting deletion of the
second sentence and revisions to the
third sentence to provide a clearer
standard for connected actions. Another
commenter requested the final rule
exclude ‘‘Federal’’ in the proposed
sentence. CEQ declines the suggested
edits. These sentences are based on
longstanding provisions from 40 CFR
1502.4 and 1501.9(e)(1) (2020) and 40
CFR 1508.25(a)(1) (2019), and agencies
have decades of experience applying
them, including experience identifying
those components of a project that have
independent utility and therefore can be
analyzed separately without running
afoul of the prohibition on
segmentation. The two regulatory
requirements of the proposed second
and third sentences—prohibiting
agencies from breaking up a single
‘‘action’’ into separate reviews and
requiring them to review together
closely related ‘‘connected actions’’—
are related but distinct requirements,
which is why CEQ included them in a
single paragraph but in different
sentences. CEQ also disagrees that
connected actions should be broadened
to include non-Federal actions. NonFederal actions have long been excluded
from connected actions because the
purpose of the doctrine is to prevent the
Federal Government from segmenting
Federal actions into separate projects
and thereby failing to consider the scope
and impact of the Federal activity. See
Sierra Club v. U.S. Army Corps of
Engineers, 803 F.3d 31 (D.C. Cir. 2015).
Including non-Federal actions as
connected actions would be
inconsistent with the purpose of the
concept and unsettle an aspect of the
NEPA implementation that has been
stable for decades.
One commenter suggested that CEQ
add language to § 1501.3(b) stating that
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to avoid segmentation, projects that are
separate and distinct must have a logical
end point; substantial independent
utility; do not foreclose the opportunity
to consider alternatives; and do not
irretrievably commit Federal funds for
closely related projects during the same
time period, place, and type. CEQ
declines to adopt the language suggested
by the commenter. CEQ recognizes that
some courts and agencies have included
similar language in decisions and
agency NEPA procedures (see, e.g., Del.
Riverkeeper Network v. FERC, 753 F.3d
1304, 1315 (D.C. Cir. 2014) (quoting
Taxpayers Watchdog, Inc. v. Stanley,
819 F.2d 294, 298 (D.C. Cir. 1987))); 23
CFR 771.111(f)) (2018), but considers
providing additional details on
segmentation more appropriately
addressed in agency procedures that can
be tailored to specific agency programs
and actions.
In moving the text from 40 CFR
1501.9(e) (2020) to § 1501.3(b), CEQ
proposed to strike paragraphs (e)(2) and
(e)(3) of 40 CFR 1501.9 (2020) relating
to alternatives and impacts,
respectively. CEQ proposed to delete
these paragraphs because both the 2020
regulations and the proposed rule
separately address the analyses of
alternatives and effects regarding EISs
(§§ 1502.14, 1502.15) and EAs
(§ 1501.5(c)(2)(ii) and (c)(2)(iii)). CEQ
considers it to be premature in the
process, unnecessary, and unhelpful to
address alternatives as part of
determining the level of NEPA review.
One commenter requested the final
rule provide a better explanation
regarding the deletion of 40 CFR
1501.9(e)(2) and (e)(3) (2020) and
requested that CEQ provide more
direction and guidance on consideration
of alternatives and impacts. The
commenter stated that this text has been
in the regulations since 1978 and
requested clearer justification for the
changes. CEQ agrees that the effects of
a proposed action are relevant to
determining the scope of the action and
analysis, which is why the first sentence
of § 1501.3(b) references effects.
However, CEQ does not consider
alternatives to be relevant to identifying
the scope of action and analysis under
paragraph (b), which is intended to
inform an agency’s determination under
paragraph (c) of the appropriate level of
review.
In the final rule, CEQ adds the second
sentence from proposed paragraph
(d)(2)(vi), in which CEQ proposed to
include an intensity factor from the
1978 regulations related to the
relationship of actions, to be the fourth
sentence of § 1501.3(b). CEQ revises the
language for clarity to specify that
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agencies ‘‘shall not term an action
temporary that is not temporary in fact
or segment an action into smaller
component parts to avoid significant
effects.’’ CEQ has made this change in
the final rule because the text in
proposed paragraph (d)(2)(vi) directs
agencies not to segment actions, which
is more appropriately addressed in the
paragraph on scope than in the
paragraph on intensity.
Sixth, CEQ proposed to redesignate
paragraph (a) of 40 CFR 1501.3 (2020) as
paragraph (c), title it ‘‘Levels of NEPA
review,’’ incorporate the language of
section 106(b)(3) of NEPA, 42 U.S.C.
4336(b)(3), addressing the sources of
information agencies may rely on when
determining the appropriate level of
NEPA review, and redesignate
paragraphs (a)(1) through (a)(3)
describing three levels of review—CEs,
EAs, and EISs—as paragraphs (c)(1)
through (c)(3), respectively without
change.
CEQ received multiple comments on
the incorporation of section 106(b)(3) of
NEPA into proposed paragraph (c). 42
U.S.C. 4336(b)(3). Some commenters
supported this incorporation, while
others urged CEQ to limit the standard
established in section 106(b)(3) to the
determination of whether to prepare an
EA or an EIS. CEQ disagrees with these
commenters and adds the proposed
language in the final rule because CEQ
considers it appropriate to direct
agencies to make use of any reliable data
source in considering whether to apply
a CE to an action and notes that a
decision based on unreliable data would
likely be inconsistent with the
principles of reasoned decision making.
CEQ also considers the approach to
reliable data and producing new
research in section 106(b)(3) to be
consistent with longstanding practice
and case law and appropriate to apply
broadly to an agency’s determination of
the appropriate level of NEPA review,
including a determination that no such
review is required. 42 U.S.C. 4336(b)(3).
Moreover, because section 106(b)(3)(B)
provides that an agency ‘‘is not required
to undertake new scientific or technical
research’’ outside of the identified
circumstances, making this language
inapplicable to CE determinations
would mean that agencies have a
broader (but undefined) obligation to
undertake new scientific or technical
research for those determinations. 42
U.S.C. 4336(b)(3). Such a result would
undermine the efficiency of CEs and
create confusion for agencies.
Multiple commenters requested
additional guidance from CEQ on how
to apply the standard, what is
considered a reliable data source, what
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costs or delays make obtaining new
information unreasonable, and how long
information will continue to be
considered reliable. CEQ considers
those questions to raise detailed or factspecific issues that may be better suited
to address in guidance or by agencies in
considering specific NEPA reviews.
CEQ notes that agencies have extensive
experience in assessing the reliability of
information in the NEPA process, and
the regulations provide additional
direction in §§ 1502.21 and 1506.6. CEQ
will consider whether additional
guidance is necessary to assist agencies
in applying the standard.
CEQ makes these revisions as
proposed in the final rule with one
clarifying change to paragraph (c)(1) to
replace ‘‘[n]ormally does not have
significant effects and is’’ with ‘‘[i]s
appropriately.’’ As phrased, this
provision could be read to conflict with
the process provided for in § 1501.4(b)
for an agency to determine that a
proposed action can be categorically
excluded notwithstanding the existence
of extraordinary circumstances. This
change also provides for a parallel
structure with paragraphs (c)(2) and
(c)(3).
Seventh, CEQ proposed to redesignate
paragraph (b) of 40 CFR 1501.3 (2020)
as § 1501.3(d), title it ‘‘Significance
determination—context and intensity,’’
and address factors agencies must
consider in determining significance by
restoring with some modifications the
consideration of ‘‘context’’ and
‘‘intensity’’ from the 1978 regulations,
which appeared in the definition of
‘‘significantly.’’ See 40 CFR 1508.27
(2019). The proposed rule explained
that because this text provides direction
on how agencies determine the
significance of an effect, rather than a
definition, addressing significance
determinations in § 1501.3 is more
appropriate than § 1508.1.
Eighth, CEQ proposed to modify the
introductory language in paragraph (d)
by replacing the requirement that
agencies ‘‘analyze the potentially
affected environment and degree of the
effects’’ with a requirement for agencies
to consider the context of an action and
the intensity of the effects when
considering whether the proposed
action’s effects are significant. CEQ
proposed to strike the second sentence
of 40 CFR 1501.3(b) (2020) requiring
agencies to consider connected actions
because this concept would be included
in proposed paragraph (c).
Multiple commenters expressed
support for the overall restoration of the
context and intensity factors, as well as
the proposed expansion of the factors,
asserting that doing so aligns with
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longstanding case law and adds
certainty to the process. A few
commenters generally opposed the
reintroduction and expansion of the
factors, asserting they would expand the
scope of NEPA review rather than
encourage streamlining and that the
expansion of the factors is inconsistent
with the statutory amendments to
NEPA. A few commenters requested
that proposed paragraph (d) clarify that
agencies may consider mitigation in
making a significance determination.
In the final rule, consistent with the
proposal, CEQ redesignates paragraph
(b) of 40 CFR 1501.3 (2020) as
§ 1501.3(d), titles it ‘‘Significance
determination—context and intensity,’’
revises the first sentence of paragraph
(d) with additional modifications to the
proposal, and strikes the second
sentence of 40 CFR 1501.3(b) (2020).
CEQ adds and revises the factors as
discussed further in this section. CEQ
disagrees that the factors will expand
the scope of NEPA review. Rather, these
factors, including the additional factors,
will assist agencies in determining the
appropriate level of NEPA review for
their proposed actions by focusing their
review on the critical factors in
determining significance.
As discussed further in this section,
CEQ moves language regarding
beneficial and adverse effects as well as
the language regarding segmentation to
the end of paragraph (d) in response to
commenters’ recommendations because
this language is more generally
applicable and not specific to context or
intensity. Finally, CEQ declines to
address the role of mitigation in this
paragraph. CEQ has clarified in § 1501.6
that if an agency determines that a
proposed action would not have a
significant effect because of the
implementation of mitigation, then the
agency must document its finding in a
mitigated FONSI. Therefore, addressing
mitigation and its relation to
significance is unnecessary in this
paragraph.
Ninth, CEQ proposed to strike 40 CFR
1501.3(b)(1) (2020), replace it with
proposed paragraph (d)(1), and restore
the requirement for agencies to analyze
the significance of an action in several
contexts consistent with the 1978
regulations. CEQ also proposed to add
examples of contexts that may be
relevant. In the first sentence, CEQ
proposed to encourage agencies to
consider the characteristics of the
relevant geographic area, such as
proximity to unique or sensitive
resources or vulnerable communities.
The proposed rule indicated that such
resources may include historic or
cultural resources, Tribal sacred sites,
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and various types of ecologically
sensitive areas. CEQ explained that this
revision relates to the intensity factor in
proposed paragraph (d)(2)(iii), which
CEQ proposed to restore from the 1978
regulations. CEQ proposed to include it
as a context factor as well since it relates
to the setting of the proposed action and
to encourage agencies to consider
proximity to communities with
environmental justice concerns.
CEQ also proposed to add a third
sentence to paragraph (d)(1)
encouraging agencies to consider the
potential global, national, regional, and
local contexts, which may be relevant
depending on the scope of the action,
consistent with the 2020 and 1978
regulations. Additionally, CEQ
proposed to move and revise text
providing that the consideration of
short- and long-term effects is relevant
to the context of a proposed action from
40 CFR 1501.3(b)(2)(i) (2020) to the end
of the third proposed sentence in
paragraph (d)(1) to encourage agencies
to consider the duration of the potential
effects whether they are anticipated to
be short- or long-term.
Multiple commenters expressed
support for the proposed restoration of
the consideration of context in
determining significance, asserting that
doing so is consistent with case law and
would promote compliance with
NEPA’s mandate to consider all
significant effects. A few commenters
requested the regulations define or add
clarity on the terms ‘‘unique or sensitive
resources,’’ ‘‘vulnerable communities,’’
and ‘‘relevant geographic area.’’ Some
commenters supported the use of these
terms while others expressed concern
that without clear definitions there
could be project delays or increased
litigation risk.
In the final rule CEQ strikes 40 CFR
1501.3(b)(1) (2020) and replaces it in
§ 1501.3(d)(1) with the text in proposed
paragraph (d)(1) with a few
modifications. CEQ notes that paragraph
(d)(1) requires agencies to analyze the
significance of an action in several
contexts, as evidenced by use of the
term ‘‘shall’’ in the first sentence, while
the second and third sentences use
‘‘should’’ to clarify that the
determination the appropriate
contextual factors will depend on the
particular proposed action. In the final
rule, CEQ uses the term ‘‘communities
with environmental justice concerns’’
instead of ‘‘vulnerable communities’’
because CEQ has added this as a defined
term in § 1508.1, and it is consistent
with use of this term elsewhere in the
rule. CEQ excludes the word ‘‘relevant’’
before ‘‘geographic area’’ in the final
rule text as an unnecessary modifier
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since the encouragement is to consider
the geographic area of the proposed
action, which will necessarily depend
on the context and scope of the
proposed action. Moreover, agencies
have decades of experience
implementing a similar provision in the
1978 regulations, which did not include
the word ‘‘relevant’’ before ‘‘geographic
area,’’ and the addition of ‘‘relevant’’
could have the unintended consequence
of indicating to agencies that this
provision requires a substantially
different analysis. CEQ declines to
define ‘‘geographic area’’ and ‘‘unique
or sensitive resources’’ as these phrases
have been used in the regulations since
1978, and agencies have extensive
experience interpreting them in the
context of particular proposed actions.
Further, CEQ is unaware of any
misunderstanding about the meaning of
these phrases and is concerned that
adding a new regulatory definition
could be disruptive for agencies.
Some commenters expressed support
for the language encouraging agencies to
consider the potential global, national,
regional, and local contexts. Other
commenters opposed the inclusion of
all four contexts, and in particular the
inclusion of ‘‘global,’’ stating that
requiring agencies to consider all four
would expand the complexity and scope
of NEPA reviews and lead to
inappropriate determinations that
certain projects require an EIS, strain
agency resources, cause delays and
increase litigation risk, and allow
subjectivity to be introduced to the
decision. Other commenters requested
more clarity on the types of actions that
require consideration of potential
global, national, regional, and local
contexts, with another commenter
requesting that the language be modified
to provide flexibility to consider
appropriate geographic contexts based
on the site-specific action rather than
always require evaluation of all four
contexts.
In the final rule, CEQ includes the
language on global, national, regional,
and local contexts as proposed in
§ 1501.3(d)(1). The 2020 rule described
‘‘context’’ as related to the potentially
affected environment in determining
significance, stating that this reframing
relates more closely to physical,
ecological, and socio-economic aspects
of the environment.66 CEQ has
reconsidered this approach and now
finds it to be unhelpful and potentially
limiting. While CEQ agrees that the
contexts relevant to an agency’s
assessment of significance will be those
that are potentially affected, identifying
66 CEQ,
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the global, national, regional, and local
contexts reminds agencies that they
should consider whether proposed
actions have reasonably foreseeable
effects across these various contexts.
Describing context in this manner is
also consistent with the decades of
experience agencies had implementing
the 1978 regulations and is consistent
with the concepts of indirect and
cumulative effects. CEQ has also
reconsidered the statement in the 2020
rule that the affected environment, is
‘‘usually’’ only the local area, 40 CFR
1501.3(b)(1) (2020) (‘‘For instance, in
the case of a site-specific action,
significance would usually depend only
upon the effects in the local area.’’)
(emphasis added), because many
Federal actions have reasonably
foreseeable effects that extend
regionally, nationally, or globally.
CEQ notes that § 1501.3(d)(1) does not
require agencies to evaluate all four
contexts—global, national, regional, and
local—for every proposed action.
Rather, agencies should determine the
appropriate contexts to consider based
on the scope of the action and its
anticipated reasonably foreseeable
effects.
CEQ disagrees with commenters’
assertion that this language will lead
agencies to expand the evaluation of
effects beyond those that are reasonably
foreseeable. This provision provides
guidance to agencies on how to
determine whether an effect is
significant, and the word ‘‘effect’’ is a
defined term in the regulations that is
always limited to reasonably foreseeable
effects. This text recognizes that the
global, national, regional, or local
context may bear on assessing the
significance of reasonably foreseeable
effects. For example, in determining the
significance of an effect on highly
migratory marine species that travels
thousands of miles each year from
waters around Antarctica to the Arctic
Ocean, the agency may need to consider
the global context in which the species
migrates, including other stressors that
occur at other points of the migration
route. Conversely, dam operations in a
transboundary watershed may have
consequences on aquatic ecosystems
that are appropriately considered at the
regional or watershed level and that
may need to consider management and
stressors extending across national
boundaries. The regional nature of the
resource effects, however, may not
necessitate an analysis of global context.
A decision to fund a project to construct
a building to provide additional office
space for a Federal agency on previously
developed land may have consequences
limited to the local area around the new
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building, and may not necessitate an
analysis of global, State, or regional
context.
Tenth, CEQ proposed to strike 40 CFR
1501.3(b)(2) (2020), replace it with
proposed paragraph (d)(2), and reinstate
‘‘intensity’’ as a consideration in
determining significance, which CEQ
reframed in the 2020 rule as the
‘‘degree’’ of the action’s effects.
Specifically, CEQ proposed to strike the
sentence in 40 CFR 1501.3(b)(2) (2020)
encouraging agencies to consider the list
of factors in assessing the degree of
effects and replace it with a requirement
to analyze the intensity of effects in
light of the list of factors as applicable
to the proposed action and in relation to
one another. CEQ proposed to reinstate
consideration of intensity because the
concept of intensity and the intensity
factors have long provided agencies
with guidance in how the intensity of an
action’s effects may inform the
significance determination. Further,
CEQ noted it had reconsidered its
position in the 2020 rule that removal
of intensity as a consideration was
based in part on the proposition that
effects are not required to be intense or
severe to be considered significant.67
CEQ does not consider ‘‘intense’’ to be
a synonym for ‘‘significant;’’ rather, it
points to factors to inform the
determination of significance that are
part of longstanding agency practice.
Multiple commenters expressed
general support for the restoration of the
intensity factors in the proposed rule or
identified support for specific factors,
whereas others expressed general
opposition or opposition to particular
factors. One commenter suggested that
the final rule replace the phrases
‘‘potential’’ and ‘‘degree to which the
proposed action may adversely affect’’
in proposed paragraphs (d)(2)(ii), (iii),
(v), (viii), and (x) with ‘‘the degree of
any reasonably foreseeable adverse
effect of the proposed action on.’’ The
commenter also suggested the final rule
revise paragraph (d)(2)(ix) to ‘‘the degree
of any reasonably foreseeable and
disproportionate adverse effects from
the proposed action on communities
with environmental justice concerns.’’
The commenter asserted these changes
would focus the consideration on
reasonably foreseeable effects,
consistent with the statute, while ‘‘may
adversely affect’’ could be read to mean
agencies should consider speculative
scenarios and effects that are not
reasonably foreseeable. Other
commenters made similar suggestions,
requesting the regulations consistently
refer to ‘‘reasonably foreseeable effects.’’
67 CEQ,
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35465
Relatedly, a commenter recommended
the regulations consistently refer to ‘‘the
proposed action,’’ rather than ‘‘the
action’’ in the factors. Some commenters
opposed the inclusion of ‘‘adverse’’ in
front of multiple factors.
CEQ declines to make these changes
in the final rule. The intensity factors
inform an agency’s determination of
whether an effect is significant, and the
word ‘‘effect’’ is a defined term that
means reasonably foreseeable effects.
Therefore, paragraph (d)(2) applies only
to reasonably foreseeable effects and
repeating the phrase ‘‘reasonably
foreseeable’’ throughout this paragraph
is unnecessary. CEQ retains ‘‘adverse’’
in the final rule consistent with the
definition of ‘‘significant effects’’ and
the language in § 1501.3(d), which
clarify that only adverse effects can be
significant.
Eleventh, CEQ proposed to clarify in
proposed paragraph (d)(2)(i) that
agencies should focus on adverse effects
in determinations of significance,
consistent with NEPA’s policies and
goals as set forth in section 101 of the
statute. 42 U.S.C. 4331. CEQ proposed
to redesignate paragraph (b)(2)(ii) of 40
CFR 1501.3 (2020) as paragraph (d)(2)(i)
regarding beneficial and adverse effects
and revise it to state that ‘‘[e]ffects may
be beneficial or adverse’’ but ‘‘only
actions with significant adverse effects
require an [EIS].’’
CEQ proposed to add a third sentence
to this paragraph to indicate that a
significant adverse effect may exist even
if the agency considers that on balance
the effects of the action will be
beneficial. The proposed rule explained
that this provision is intended to be
distinct from weighing beneficial effects
against adverse effects to determine that
an action’s effects on the whole are not
significant. Rather, an action with only
beneficial effects and no significant
adverse effects does not require an EIS,
consistent with CEQ’s proposed
revisions to § 1501.3(d)(2), regarding the
meaning of intensity.
CEQ proposed to strike paragraph
(b)(2)(i) of 40 CFR 1501.3 (2020) but
incorporate the text into a fourth
sentence in paragraph (d)(2)(i) to clarify
that agencies should consider the
duration of effects and include an
example of such consideration—an
action with short-term adverse effects
but long-term beneficial effects. The
proposed rule explained that while
significant adverse effects may exist
even if the agency considers that on
balance the effects of the action will be
beneficial, the agency should consider
any related short- and long-term effects
in the same effect category together in
evaluating intensity.
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Multiple commenters supported
proposed paragraph (d)(2)(i), expressing
support for the qualification that only
actions with significant adverse effects
require an EIS because it will reduce
expenditure of agency resources on
unnecessary EISs, streamline the NEPA
process, and promote a holistic review
of projects. One commenter cited
Friends of Fiery Gizzard v. Farmers
Home Admin., 61 F.3d 501 (6th Cir.
1995) to support CEQ’s proposed
approach.
Multiple commenters also opposed
the proposal to only require an EIS for
actions with significant adverse effects.
Some commenters asserted that
proposed (d)(2)(i) and the reference to
adverse effects in other proposed
intensity factors would illegally limit
the scope of NEPA because the statutory
requirement to prepare an EIS does not
distinguish between adverse and
beneficial effects. A few commenters
cited case law that they argued
contravenes the proposed change.
Hiram Clarke Civil Club v. Lynn, 476
F.2d 421 (5th Cir. 1973); Environmental
Defense Fund v. Marsh, 651 F.2d 983
(5th Cir. 1981). One commenter also
asserted the proposal poses a risk that
agencies will not assess significant
adverse effects or evaluate less
damaging alternatives, and that the
proposed provision could be interpreted
to give agencies discretion to opt out of
preparing an EIS based on unsupported
claims that the project will be beneficial
or based on the project’s stated intent.
One commenter further asserted that
almost no environmentally significant
project completely avoids all potentially
significant adverse effects and also
expressed concern about the lack of an
EIS limiting the opportunity for the
public to provide comment where they
might raise other potentially adverse
effects. A few commenters expressed
concern that the proposed language
favors a certain type of project over
another without statutory or factual
support for doing so.
Some commenters interpreted the
language in the last two sentences of
proposed paragraph (d)(2)(i) to read that
CEQ supported a ‘‘netting’’ approach to
EISs, whereby if an action has
significant adverse effects but had net
beneficial effects then the agency would
not have to prepare an EIS. Some
commenters supported this
interpretation while others opposed it.
A few commenters requested CEQ
clarify that the significance
determination through the application
of context and intensity factors across
timescales or duration applies to each
individual ‘‘effect category’’ that is
implicated by the proposed action. The
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commenters state that without this
clarification, decision makers could
conflate categories of effects by
considering an action’s effects as a
whole thereby dismissing significant
adverse effects within an individual
category on a given timescale if the
decision maker determines the action is
beneficial overall. Another commenter
requested the regulations clarify that an
EIS is not required where the beneficial
effects of a proposed action outweigh its
adverse effects.
In the final rule, CEQ addresses the
concept that only adverse effects are
significant by moving the last sentence
of proposed paragraph (d)(2)(i) to
paragraph (d) and revising it because
this concept is a more general
consideration and not specific to
intensity. CEQ also includes a definition
of ‘‘significant effect’’ in § 1508.1 to
provide further clarity.
Specifically, CEQ strikes 40 CFR
1501.3(b)(2)(i) and (ii) (2020) because
§ 1501.3(d) addresses consideration of
the duration of effects and whether a
particular category of effect is adverse or
beneficial coupled with the definition of
‘‘significant effects’’ in § 1508.1(mm).
CEQ includes the first clause of the last
sentence of proposed paragraph (d)(2)(i),
encouraging agencies to consider the
duration of effects, as the second
sentence of § 1501.3(d) and adds an
introductory clause to the sentence:
‘‘[i]n assessing context and intensity.’’
CEQ also makes ‘‘effects’’ singular to
emphasize that this analysis is done on
an effect-by-effect basis and does not
allow agencies to weigh a beneficial
effect of one kind against an adverse
effect of another kind or evaluate
whether an action is beneficial or
adverse in net to determine significance.
For example, an agency cannot compare
and determine significance by weighing
adverse water effects against beneficial
air effects, or adverse effects to one
species against beneficial effects to
another species. Then, CEQ includes
and modifies the second clause of the
last sentence of proposed paragraph
(d)(2)(i), providing that an action may
have short-term adverse effects but longterm beneficial effects, as the third
sentence in § 1501.3(d) to explain that
agencies may consider the extent to
which an effect is adverse at some
points in time and beneficial at others.
CEQ also includes an illustrative
example of a proposed action for habitat
restoration where an agency may
consider both any short-term harm to a
species during implementation of the
action and any benefit to the same
species once the action is complete. As
another example, an action that will
enhance recharge of a groundwater
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aquifer once completed could have an
adverse effect on groundwater recharge
in the short term. In evaluating the
significance of the action’s effect on
groundwater recharge, the agency
should consider both the short-term
harm and long-term benefit. In some
circumstances, an effect may be
significant due to the harm during one
period of time regardless of the benefit
at another. For example, if
implementation of a habitat restoration
action may extirpate a species from the
area, then an agency could not
reasonably rely on long-term habitat
improvements resulting from the action
to determine that the overall effect to
the species is not significant. The
approach to considering duration
contemplated by this language is similar
to the familiar analysis agencies engage
in with respect to compensatory
mitigation, in which they may conclude
that benefits from the implementation of
mitigation measures reduce the
anticipated adverse effects of a proposed
action below the level of significance.
In place of the third sentence of
proposed paragraph (d)(2)(i), CEQ adds
a new third sentence at the end of
paragraph (d) that prohibits agencies
from offsetting an action’s adverse
effects with other beneficial effects to
determine significance. This sentence
also includes a parenthetical example
that agencies may not offset an action’s
adverse effect on one species with a
beneficial effect on another species. The
CEQ regulations have never allowed
agencies to use a net benefit analysis
across environmental effects to inform
the level of NEPA review. Because the
final rule clarifies that only adverse
effects may be significant, CEQ
considers it especially important to
emphasize this prohibition in the
regulatory text to ensure agencies
identify the appropriate level of review
for their proposed actions. Finally, CEQ
does not include the second sentence of
proposed paragraph (d)(2)(i) stating that
only actions with significant adverse
effects require an EIS because this is
made clear through the limitation in the
definition of ‘‘significant effects’’ in
§ 1508.1(mm) to adverse effects.
The Fifth and Sixth Circuit cases cited
by the commenters illustrate the split
among courts on whether actions with
only significant beneficial effects and no
significant adverse effects trigger an EIS.
See also Humane Soc’y of U.S. v. Locke,
626 F.3d 1040, 1056 n.9 (9th Cir. 2010)
and Drakes Bay Oyster Co. v. Jewell, 747
F.3d 1073, 1090 n.11 (2014) discussing
the split in courts in dicta. CEQ
considers the Congressional declaration
of purpose in section 2 of NEPA and the
Congressional declaration of national
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environmental policy in section 101 of
NEPA to indicate that Congress
intended for ‘‘significant effects’’ to be
those that are damaging, which is what
CEQ interprets the phrase ‘‘adverse
effects’’ to mean. 42 U.S.C. 4321, 4331.
The recent amendments to NEPA bolster
this interpretation because section
102(2)(C)(iii) directs analysis of
‘‘negative environmental impacts of the
no action alternative’’ and section
108(1) refers to the significance of
adverse effects related to programmatic
environmental documents. 42 U.S.C.
4332(2)(C)(iii), 4336b(l). CEQ notes too
that the definition of ‘‘significant
effects’’ and § 1501.3(d) do not eliminate
the requirement for agencies to identify
and discuss all reasonably foreseeable
environmental effects whether adverse
or beneficial when preparing an EIS.
Twelfth, CEQ proposed to redesignate
paragraph (b)(2)(iii) of 40 CFR 1501.3
(2020) as paragraph (d)(2)(ii) and make
a clarifying edit to the factor relating to
effects on health and safety by adding
language indicating that the relevant
consideration is ‘‘the degree to which’’
the proposed action may ‘‘adversely’’
affect public health and safety.
Commenters suggested that the final
rule add ‘‘welfare’’ and ‘‘public wellbeing’’ to this factor. CEQ declines these
additions because public health and
safety have a more precise meaning than
‘‘welfare’’ and ‘‘well-being’’ and
therefore, will be more readily applied
by agencies. Further, this factor has
remained unchanged since 1978, so
agencies have a long history of
examining these in the consideration of
significant effects on the human
environment. In the final rule, CEQ
redesignates paragraph (b)(2)(iii) of 40
CFR 1501.3 (2020) as § 1501.3(d)(2)(i)
and revises it as proposed but omits
‘‘proposed’’ before ‘‘action’’ for
consistency with the language of the
factors.
Thirteenth, CEQ proposed to add a
new paragraph (d)(2)(iii) to add a new
intensity factor to consider the degree to
which the proposed action may
adversely affect unique characteristics
of the geographic area such as historic
or cultural resources, park lands, Tribal
sacred sites, prime farmlands, wetlands,
wild and scenic rivers, or ecologically
critical areas. CEQ proposed this factor
to reinstate a factor from the 1978
regulations, with clarifying edits, which
agencies have considered for decades.
As noted earlier in this section, CEQ
proposed to use the wording from the
1978 factor on unique characteristics in
paragraph (d)(1) on context because they
relate to the setting of an action. The
proposed rule indicated that
consideration of this factor is consistent
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with both the definition of ‘‘effects’’ and
the policies and goals of NEPA. 42
U.S.C. 4331.
Some commenters expressed support
for the restoration of the factor in
proposed paragraph (d)(2)(iii) and the
proposed modifications to the 1978
regulatory text. One commenter
recommended removing ‘‘historic or
cultural resources’’ because it is
redundant and imprecise. Two
commenters asked that the final rule
define ‘‘park lands,’’ ‘‘prime farmlands,’’
and ‘‘ecologically critical areas’’ for
clarity. A few commenters requested
that the final rule broaden the reference
to Tribal sacred sites to include
culturally significant sites, including
sites of Native Hawaiians, Alaskan
Natives, and indigenous peoples in the
United States and its Territories. Other
commenters requested use of ‘‘and other
indigenous communities’’ to include
non-federally recognized Tribes.
CEQ adds proposed new paragraph
(d)(2)(iii) at § 1501.3(d)(2)(ii) in the final
rule, revising ‘‘park lands’’ to ‘‘parks’’ to
modernize the language that was
included in the 1978 regulations and
omitting ‘‘proposed’’ before ‘‘action’’ for
consistency with the language of the
factors. CEQ declines to remove the
word ‘‘prime’’ before ‘‘farmlands,’’
which would substantially expand this
factor beyond historical practice and
including all farmland within this factor
would be inconsistent with directing
agencies to consider the ‘‘unique
characteristics of the geographic area.’’
CEQ declines to make the other changes
suggested by the commenters. However,
CEQ notes that in addition to ‘‘Tribal
sacred sites,’’ the list of intensity factors
includes several other factors that may
be relevant to Tribal and Indigenous
cultural sites, including ‘‘historic or
cultural resources’’ and ‘‘resources
listed or eligible for listing in the
National Register of Historic Places.’’
The list also directs agencies to consider
‘‘[w]hether the action may violate
relevant Federal, State, Tribal, or local
laws,’’ as well as ‘‘[t]he degree to which
the action may have disproportionate
and adverse effects on communities
with environmental justice concerns’’
and ‘‘[t]he degree to which the action
may adversely affect rights of Tribal
Nations that have been reserved through
treaties, statutes, or Executive orders.’’
Finally, CEQ notes that the list is not
intended to be an exhaustive list of all
potential factors, and agencies can
consider other factors in their
determination of significance as
appropriate for the proposed action.
Fourteenth, CEQ proposed to
redesignate paragraph (b)(2)(iv) of 40
CFR 1501.3 (2020) as paragraph
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(d)(2)(iv) and revise ‘‘effects that would’’
to ‘‘actions that may’’ violate ‘‘relevant’’
Federal, State, Tribal, or local laws. CEQ
proposed to add ‘‘other requirements’’
after law as well as ‘‘inconsistencies’’
with ‘‘policies designed for protection of
the environment’’ because agencies
should not necessarily limit their
inquiry to statutory requirements. CEQ
explained that it may be appropriate for
agencies to give relatively more weight
to whether the action threatens to
violate a law imposed for environmental
protection as opposed to a policy, but
formally adopted policies designed for
the protection of clean air, clean water,
or species conservation, for example,
may nonetheless be relevant in
evaluating intensity.
Some commenters recommended the
final rule strengthen this factor to
identify examples of relevant
environmental protection laws and
policies to ensure Federal agencies do
not overlook actions taken by States to
address climate change or
environmental justice. Another
commenter suggested CEQ provide
guidance encouraging agencies to
coordinate with coastal programs to
achieve consistency with all relevant
State and Territory plans, policies, and
initiatives to protect coastal uses and
resources.
In the final rule, CEQ redesignates
paragraph (b)(2)(iv) of 40 CFR 1501.3
(2020) as § 1501.3(d)(2)(iii) and revises
it as proposed. CEQ declines to make
the commenters’ suggested edits as they
are unnecessarily specific for this rule
and encompassed in the proposed text.
However, this does not preclude an
agency from identifying more specific
examples in its agency NEPA
procedures if the agency determines it
would be helpful for assessing
significance for its proposed actions.
Fifteenth, CEQ proposed to add a new
paragraph (d)(2)(v) to consider the
degree to which effects are highly
uncertain. The 1978 regulations
included factors for ‘‘controversial’’
effects and those that are ‘‘highly
uncertain or involve unique or
unknown risks.’’ CEQ proposed to
restore a modified version of this
concept that makes clear that the
uncertainty of an effect is the
appropriate consideration, and not
whether an action is controversial. The
proposed rule explained that while a
legitimate disagreement on technical
grounds may relate to uncertainty, this
approach would make clear that public
controversy over an activity or effect is
not a factor for determining significance.
A few commenters expressed support
for proposed paragraph (d)(2)(v). A
couple of commenters suggested the
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final rule include the phrase ‘‘high
degree of uncertainty’’ to better conform
with NEPA practice under the 1978
regulations. Another commenter
requested clarity on what is meant by
‘‘highly uncertain.’’ A few commenters
recommended the regulations restore
‘‘highly controversial’’ from the 1978
regulations because it was welldeveloped in case law and doing so
would provide clarity to agencies on
how to assess the degree to which
effects were ‘‘highly controversial.’’
CEQ adds proposed new paragraph
(d)(2)(v) at § 1501.3(d)(2)(iv) in the final
rule. CEQ declines to use the term
‘‘highly controversial.’’ While some may
be familiar with the terminology, it
could mistakenly give the impression
that it refers to public controversy. CEQ
also declines to use ‘‘high degree of
uncertainty,’’ which means the same
thing as ‘‘highly uncertain,’’ because the
phrase ‘‘highly uncertain’’ has been
included in the NEPA regulations since
1978 and making this substitution
would require restructuring the
sentence in a manner that would reduce
parallelism and readability without
otherwise improving the clarity or
improving meaning. See 40 CFR
1508.27(b)(5) (2019).
Sixteenth, CEQ proposed to add a
new paragraph (d)(2)(vi) to consider the
degree to which the action may relate to
other actions with adverse effects. CEQ
proposed this paragraph to reinstate a
factor from the 1978 regulations and for
consistency with the longstanding
NEPA principle that agencies cannot
segment actions to avoid significance.
See, e.g., Sierra Club v. Marsh, 769 F.2d
868 (1st Cir. 1985); Kern v. U.S. Bureau
of Land Mgmt., 284 F.3d 1062 (9th Cir.
2002).
Some commenters supported the
restoration of this factor, but suggested
removal of the term ‘‘adverse.’’ Other
commenters indicated that CEQ did not
explain why it proposed to use ‘‘in the
aggregate’’ instead of the 1978
regulations’ phrasing ‘‘cumulatively
significant impact on the environment’’
and asserted that this would be a
confusing change. One commenter
expressed support for the second
sentence in the factor specifying that an
agency cannot segment or term an
action temporary that is not in fact
temporary.
Another commenter opposed the
restoration of this intensity factor,
asserted it would confuse the NEPA
process and imply that an EIS can be
required solely based on the effects of
other actions when the action under
consideration does not have significant
adverse effects itself. Another
commenter also expressed concern
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about the factor and stated that if CEQ’s
goal is to ensure that the potential for
repetition or recurrence of an impact is
considered, the regulations should state
this more clearly.
Upon further consideration, CEQ is
not restoring this text from the 1978
regulations to the final rule. The
inclusion of cumulative effects as a
component of effects already addresses
the interrelationship between the effects
of an action under consideration.
Moreover, rather than identifying a
factor for an agency to consider in
assessing significance, this language
more directly relates to the prohibition
on an agency segmenting an action,
which the final rule addresses in
§ 1501.3(b) related to the scope of an
action and effects.
Seventeenth, CEQ proposed to add a
new paragraph (d)(2)(vii) to add a factor
relating to actions that would affect
historic resources listed or eligible for
listing in the National Register of
Historic Places. CEQ proposed this
factor to generally reinstate a factor from
the 1978 regulations, which agencies
have decades of experience considering.
The proposed rule explained that
consideration of this factor furthers the
policies and goals of NEPA, including to
‘‘preserve important historic, cultural,
and natural aspects of our national
heritage.’’ 42 U.S.C. 4331.
A couple of commenters expressed
support for proposed paragraph
(d)(2)(vii), while another commenter
requested the final rule broaden the
factor by inserting ‘‘or State or Tribal
equivalents to registers of historic
places’’ to the end of the factor. CEQ
adds proposed new paragraph (d)(2)(vii)
at § 1501.3(d)(2)(v) in the final rule. CEQ
declines the commenter’s recommended
addition because the revised provision
is consistent with decades of agency
practice. CEQ notes that the list of
intensity factors is not exhaustive.
Eighteenth, CEQ proposed to add a
new paragraph (d)(2)(viii) to add the
degree to which the action may
adversely affect an endangered or
threatened species or its habitat,
including critical habitat under the
Endangered Species Act. 16 U.S.C.
1532(5). CEQ proposed to reinstate and
expand an intensity factor from the 1978
regulations, which only addressed
critical habitat. CEQ proposed this
addition to clarify that agencies should
consider effects to the habitat of
endangered or threatened species even
if it has not been designated as critical
habitat.
Some commenters expressed support
for the expansion of the factor to
include impacts to habitat regardless of
whether they have been designated as
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critical. A few commenters disagreed
with the proposed expansion of this
intensity factor and suggested that the
final rule restore the 1978 language that
‘‘limited’’ this factor to review of critical
habitat. Multiple commenters requested
the final rule exclude this factor,
asserting that CEQ failed to justify the
proposed expansion to require agencies
to consider the effect of an action on
habitat that have not been designated as
critical habitats under the Endangered
Species Act. Commenters stated that it
was unclear why this would be an
intensity factor when agencies already
must engage in ESA section 7
consultation. One commenter expressed
concern the proposed expansion would
expand the scope of the significance
determination, resulting in project
delays and siting issues. Other
commenters specifically recommended
removing ‘‘habitat, including’’ because
the language expands habitat
considerations beyond what is protected
by Federal law.
CEQ adds proposed new paragraph
(d)(2)(viii) in § 1501.3(d)(2)(vi) of the
final rule, as proposed, because critical
habitat is a regulatory category under
the Endangered Species Act designation
process and does not necessarily align
with the geographic range of the species
or the habitat a species is using. Major
Federal actions can have significant
effects on endangered or threatened
species habitat regardless of whether
critical habitat has been designated.
Moreover, the section 7 consultation
process considers effects to listed
species generally, including where
habitat that has not been designated as
critical habitat is used by a species and
therefore, damage to that habitat may
affect the species. As a result, revising
the factor in this manner helps to align
environmental review under NEPA and
the section 7 consultation process.
Nineteenth, CEQ proposed to add a
new paragraph (d)(2)(ix) to include
consideration of the degree to which the
action may have disproportionate and
adverse effects on communities with
environmental justice concerns. CEQ
proposed this factor because evidence
continues to accumulate that
communities with environmental justice
concerns often experience
disproportionate environmental burdens
such as pollution or urban heat stress,
and often experience disproportionate
health and other socio-economic
burdens that make them more
susceptible to adverse effects.
Multiple commenters expressed
support for the proposed addition of
environmental justice as an intensity
factor. One commenter requested clarity
on what is meant by ‘‘the degree to
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which an action may have a
disproportionate effect.’’ Another
commenter recommended the final rule
revise the factor to read ‘‘the degree of
any reasonably foreseeable and adverse
effects from the proposed action on
communities with environmental justice
concerns’’ to focus on reasonably
foreseeable effects.
CEQ adds the factor in proposed
paragraph (d)(2)(ix) related to
communities with environmental justice
concerns in § 1501.3(d)(2)(vii) in the
final rule with modifications.
Specifically, the final rule revises the
factor to revise the phrase ‘‘have
disproportionate and adverse effects’’ to
‘‘adversely affect’’ to enhance the
consistency of this factor with the other
intensity factors. CEQ notes that the
intensity factors inform an agency’s
determination of whether an effect is
significant, and the word ‘‘effect’’ is
defined to mean reasonably foreseeable
effect.
Finally, CEQ proposed to add a new
proposed paragraph (d)(2)(x) to include
effects upon rights of Tribal Nations that
have been reserved through treaties,
statutes, or Executive orders. CEQ
proposed this factor because Tribes’
ability to exercise these rights often
depends on the conditions of the
resources that support the rights, and
agencies should consider these reserved
rights when determining whether effects
to such resources are significant. CEQ
specifically sought comments from
Tribes on this proposed addition.
Multiple commenters, including
Tribal government agencies and Tribal
leaders, supported the addition of
proposed paragraph (d)(2)(x), but also
urged CEQ to specifically address effects
on Tribal sovereignty, reservations,
religious and cultural practices and
cultural heritage, current cultural
practices, and habitat on which
resources crucial to the exercise of
Tribal Nations’ reserved rights depend.
A few commenters recommended the
factor include broader references when
discussing ‘‘rights’’ to ensure inclusion
of the rights of indigenous peoples not
denominated as Tribes. A few
commenters opposed the proposed
addition, asserting that it prejudges
which effects would be significant.
CEQ adds proposed new paragraph
(d)(2)(x) in § 1501.3(d)(2)(viii) of the
final rule, as proposed. The provision
identifies an important factor that
agencies should consider in determining
whether an effect is significant and will
help agencies consider rights that have
been reserved through treaties, statutes,
or Executive orders during the NEPA
process, without prejudging which
categories of environmental effects will
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be most important in any given analysis.
Regarding the additional considerations
that commenters suggest that CEQ
incorporate into these provisions, CEQ
notes that paragraphs (d)(2)(ii), (iii), (v),
and (vii) capture many of them in whole
or in part. Because the list of
considerations in paragraph (d)(2) is not
exhaustive, CEQ declines to specify
these additional terms. Regarding the
recommendation to add a reference to
rights of indigenous peoples in this
factor, CEQ does not make this revision
because this factor addresses the unique
and distinctive rights of Tribal Nations
that have a nation-to-nation relationship
with the United States.
3. Categorical Exclusions (§ 1501.4)
CEQ proposed revisions to § 1501.4
regarding CEs to clarify this provision,
and provide agencies new flexibility to
establish CEs using additional
mechanisms outside of their NEPA
procedures to promote more efficient
and transparent development of CEs
that may be tailored to specific
environmental contexts or project types.
Many commenters expressed general
support for the proposed changes to
§ 1501.4. Some of these commenters
suggested that the final rule go further
to encourage the use of CEs. Other
commenters advocated for additional
provisions in the section, such as
requiring agencies to notify the public of
the proposed use of a CE and make all
documentation on the use of a CE for a
specific action available to the public.
CEQ addresses the specific comments
throughout this section and in the Phase
2 Response to Comments.
CEQ intends the changes in the final
rule to promote agency use of CEs
whenever appropriate for a proposed
action. The mechanisms in § 1501.4 as
well as § 1507.3 will provide agencies
with additional flexibility in
establishing CEs while ensuring that
CEs are appropriately substantiated and
bounded to ensure they apply to actions
that normally do not have significant
effects. CEQ declines to require agencies
to provide public notice in advance of
using a CE. While agencies may choose
to do this where they deem appropriate,
an across-the-board requirement would
burden agency resources and undermine
the efficiency of the CE process.
Similarly, requiring agencies to publish
documentation of every CE
determination would be overly
burdensome. Consistent with
§ 1507.3(c)(8)(i), agencies must identify
in their NEPA procedures which of their
CEs require documentation. Agencies
also can identify processes or specific
CEs in their agency procedures for
which they will make determinations
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35469
publicly available where they determine
this is appropriate. CEQ encourages
agencies to notify the public and make
documentation publicly available for
CEs when they expect public interest in
the determination.
CEQ proposed changes throughout
§ 1501.4. First, CEQ proposed to revise
the first sentence in paragraph (a) to
strike the clause requiring agencies to
identify CEs in their agency NEPA
procedures and replace it with a clause
requiring agencies to establish CEs
consistent with § 1507.3(c)(8), which
requires agencies to establish CEs in
their NEPA procedures. CEQ proposed
this revision because it would more
fully and accurately reflect the purposes
of and requirements for CEs. Because
paragraph (c) provides mechanisms for
agencies to establish CEs outside of their
NEPA procedures, CEQ makes this
change to § 1501.4(a) in the final rule
but adds ‘‘or paragraph (c)’’ so that the
first sentence refers to the various
mechanisms for establishing CEs. As is
reflected in the regulations, CEQ views
CEs to be important tools to promote
efficiency in the NEPA process where
agencies have long exercised their
expertise to identify and substantiate
categories of actions that normally do
not have a significant effect on the
human environment.
Second, in the description of CEs in
the first sentence of paragraph (a), CEQ
proposed to add the clause
‘‘individually or in the aggregate’’ to
modify the clause ‘‘categories of actions
that normally do not have a significant
effect on the human environment.’’ CEQ
proposed to add this language to clarify
that when establishing a CE, an agency
must determine that the application of
the CE to a single action and the
repeated collective application to
multiple actions would not have
significant effects on the human
environment. CEQ proposed this
clarification to recognize that agencies
often use CEs multiple times over many
years and for consistency with the
reference to a ‘‘category of actions’’ in
the definition of ‘‘categorical exclusion’’
provided by section 111(1) of NEPA,
which highlights the manner in which
CEs consider an aggregation of
individual actions. 42 U.S.C. 4336e(1).
CEQ intended the proposed change to
have a meaning similar to the 1978
regulations’ definition ‘‘categorical
exclusion’’ as categories of actions that
do not ‘‘individually or cumulatively’’
have significant effects, which the 2020
rule removed stating that the removal
was consistent with its removal of the
term ‘‘cumulative impacts’’ from the
regulations. The Phase 1 rulemaking
reinstated cumulative effects to the
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definition of ‘‘effects,’’ 68 so the 2020
rule’s justification for removing the
phrase no longer has a basis. However,
CEQ proposed to use the phrase ‘‘in the
aggregate’’ rather than ‘‘cumulatively’’
to avoid potential confusion.
Cumulative effects refer to the
incremental effects of an agency action
added to the effects of other past,
present, and reasonably foreseeable
actions. In the context of establishing
CEs, agencies consider both the effects
of a single action as well as the
aggregation of effects from anticipated
multiple actions covered by the CE such
that the aggregate sum of actions
covered by the CE does not normally
have a significant effect on the human
environment. As part of this analysis,
agencies consider the effects—direct,
indirect, and cumulative—of the
individual and aggregated actions.
Because the definition of ‘‘effects’’
includes cumulative effects, CEQ
proposed the phrase ‘‘in the aggregate’’
to more clearly define what agencies
must consider in establishing a CE—the
full scope of direct, indirect, and
cumulative effects of the category of
action covered by the CE. Agencies have
flexibility on how to evaluate whether
the aggregate actions covered by a CE
will not ordinarily have significant
effects and may consider the manner in
which the agency’s extraordinary
circumstances may apply to avoid
multiple actions taken in reliance on the
CE having reasonably foreseeable
significant effects in the aggregate.
Commenters both supported and
opposed the addition of the phrase
‘‘individually or in the aggregate’’ in
proposed § 1501.4(a) and
§ 1507.3(c)(8)(ii). Commenters who
supported the inclusion of the text
asserted that it restores an important
clarification regarding the proper scope
of CEs from the 1978 regulations and
that it gives meaning to the statutory
definition of ‘‘categorical exclusion’’ in
section 111(1) of NEPA. 42 U.S.C.
4336e(1). Commenters opposed to this
phrase asserted it is undefined, lacks
foundation in the statute, is burdensome
on agencies, and will require agencies to
consider effects beyond those that are
reasonably foreseeable.
CEQ disagrees that the phrase
‘‘individually or in the aggregate’’ lacks
foundation in the statute because use of
the phrase ‘‘does not significantly
affect’’ in section 111(1) of NEPA
indicates it is the ‘‘category of actions’’
that the agency has determined
normally would not result in significant
effects to the environment, not an
68 CEQ, Phase 1 Final Rule, supra note 50, at
23469.
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individual action to which the CE
would apply. See 42 U.S.C. 4336e(1)
(emphasis added). CEQ also disagrees
that this phrase will add burden to
agencies because CEQ considers this a
clarifying edit consistent with the
longstanding definition of ‘‘categorical
exclusion’’ and agency practice. Finally,
CEQ notes that all effects analyses are
bounded by reasonable foreseeability,
including in the establishment of CEs.
Some commenters also requested the
regulations clarify the relationship
between the phrase ‘‘individually or in
the aggregate’’ and the definition of
cumulative effects. CEQ views these
terms as related. The term ‘‘effects’’ as
used in the definition of ‘‘categorical
exclusion’’ and throughout the
regulations includes cumulative effects,
which, in turn, refers to the effects of
the action being analyzed in an
environmental document when added
to the effects of other past, present, and
reasonably foreseeable actions. The use
of ‘‘in the aggregate’’ in this paragraph
refers to the fact that in substantiating
a CE to determine that a category of
actions normally does not have
significant effects, the agency must
consider both the effects—including
cumulative effects as well as direct and
indirect—of an individual action within
that category and of the aggregate of the
actions that the agency can reasonably
foresee will be taken and covered by the
CE. Because the regulations use the
phrase ‘‘in the aggregate’’ consistent
with the ordinary meaning of the
phrase, CEQ does not consider it
necessary to add additional explanatory
text.
A few commenters requested the
regulations clarify that an agency should
ensure that actions covered by a CE will
not have a significant effect
‘‘individually or in the aggregate’’ at the
time the agency establishes and
substantiates the CE. Conversely,
another commenter asserted considering
the aggregate effects of a CE is
inappropriate when an agency
establishes a CE, asserting that an
agency should consider any aggregate
effects when applying the CE to a
proposed action. CEQ declines to
address substantiation of CEs in
§ 1501.4 as this issue is addressed in
§ 1507.3(c)(8)(ii). Further, CEQ disagrees
that agencies would need to analyze
aggregate effects each time the agency
applies a CE, except to the extent the
agency’s extraordinary circumstances
review requires such an analysis.
Requiring such an analysis each time an
agency applies a CE, independent of any
analysis required as part of the agency’s
extraordinary circumstances review,
would undermine the efficiency of CEs.
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Instead, agencies must consider whether
a category of actions normally does not
have a significant effect individually or
in the aggregate at the time that the
agency establishes a CE.
Some commenters opposed the use of
the term ‘‘normally’’ in the description
of a CE in paragraph (a), which CEQ
discusses in section II.J.2. CEQ retains
this term for the reasons discussed in
the 2020 rule, section II.J.2, and the
Phase 2 Response to Comments.
Third, CEQ proposed to revise the end
of the first sentence of paragraph (a) to
add the qualifier, ‘‘unless extraordinary
circumstances exist that make
application of the categorical exclusion
inappropriate’’ with a cross reference to
paragraph (b). As discussed in section
II.J.11, CEQ proposed to add a definition
of ‘‘extraordinary circumstances.’’ CEQ
stated in the proposed rule, that these
provisions are consistent with
longstanding practice and recognize
that, as the definition provided by
section 111(1) of NEPA indicates, CEs
are a mechanism to identify categories
of actions that normally do not have
significant environmental effects. See 42
U.S.C. 4336e(1). Extraordinary
circumstances serve to identify
individual actions whose effects exceed
those normally associated with that
category of action and therefore, may
not be within the scope of the CE. CEQ
did not receive comments on this
specific proposed change and makes
this addition to paragraph (a) in the
final rule.
Fourth, CEQ proposed to add a new
sentence at the end of paragraph (a) to
clarify that agencies may establish CEs
individually or jointly with other
agencies. The proposed rule noted that
where agencies establish CEs jointly,
they may use a shared substantiation
document and list the CE in both
agencies’ NEPA procedures or identify
them through another joint document as
provided for by § 1501.4(c). CEQ
proposed this addition to clarify that
agencies may use this mechanism to
establish CEs transparently and with
appropriate public process. The
proposed rule noted that agencies may
save administrative time and resources
by establishing a CE jointly for activities
that they routinely work on together and
where having a CE would create
efficiency in project implementation.
Multiple commenters supported the
inclusion of this clarification in
paragraph (a), stating that joint
establishment of CEs by agencies can
help improve efficiency, reduce
redundancy, and improve cohesion
between agencies. On the other hand,
one commenter opposed the proposed
addition asserting that joint CEs will not
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help communities participate fully in
the NEPA process. CEQ adds the
proposed language in § 1501.4(a) in the
final rule. The NEPA regulations have
never prohibited agencies from
establishing CEs jointly, and the
proposed change in paragraph (a)
provides clarity to agencies and the
public that this is an acceptable
practice. The requirement to
substantiate CEs as described in
§ 1507.3(c)(8), including public review
and comment, apply to establishment of
joint CEs in the same manner as CEs
established by an individual agency.
Fifth, CEQ proposed edits to
paragraph (b)(1) addressing what
agencies do when there are
extraordinary circumstances for a
particular action. CEQ proposed to
change ‘‘present’’ to ‘‘exist’’ and clarify
the standard for when an agency may
apply a CE to a proposed action
notwithstanding the extraordinary
circumstances. CEQ proposed to make
explicit that an agency must conduct an
analysis to satisfy the requirements of
the paragraph. Next, CEQ proposed to
change the description of the
determination that agencies must make
from ‘‘there are circumstances that
lessen the impacts’’ to ‘‘the proposed
action does not in fact have the
potential to result in significant effects
notwithstanding the extraordinary
circumstance.’’ Then CEQ proposed to
change ‘‘or other conditions sufficient to
avoid significant effects’’ to ‘‘or the
agency modifies the action to address
the extraordinary circumstance.’’ CEQ
proposed this standard for consistency
with agency practice and case law.
Additionally, CEQ proposed this change
because the language in paragraph (b)(1)
of 40 CFR 1501.4 (2020) could be
construed to mean that agencies may
mitigate on a case-by-case basis
extraordinary circumstances that would
otherwise have the potential for
significant effects and thereby apply a
CE with no opportunity for public
review or engagement on such actions.
While the 2020 Response to Comments
sought to distinguish ‘‘circumstances
that lessen the impacts’’ from required
mitigation to address significant
effects,69 based on CEQ’s discussions
with agency representatives and
stakeholders, the potential for confusion
remained. CEQ proposed the revised
text to make clear that if an
extraordinary circumstance exists, an
agency must make an affirmative
69 CEQ, Update to the Regulations Implementing
the Procedural Provisions of the National
Environmental Policy Act Final Rule Response to
Comments 130 (June 30, 2020) (2020 Response to
Comments), https://www.regulations.gov/
document/CEQ-2019-0003-720629.
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determination that there is no potential
for significant effects in order to apply
a CE. If the agency cannot make this
determination, the agency must either
modify its proposed action in a way that
will address the extraordinary
circumstance, or prepare an EA or EIS.
Sixth, CEQ proposed to add a
sentence to paragraph (b)(1) to require
agencies to document their
determinations in those instances where
an agency applies a CE notwithstanding
extraordinary circumstances. While not
required, CEQ proposed to encourage
agencies to publish such documentation
to provide transparency to the public of
an agency determination that there is no
potential for significant effects. CEQ
proposed this sentence in response to
feedback from the public requesting
such transparency.
Multiple commenters generally
supported proposed § 1501.4(b), which
sets out the process for applying a CE
to a proposed action, and its
subparagraphs addressing consideration
of extraordinary circumstances. Several
commenters opposed the proposed
requirement in paragraph (b)(1) to
prepare a separate analysis as part of the
extraordinary circumstances review,
asserting it will decrease efficiency,
disincentivize use of CEs, and strain
already limited agency resources.
Multiple commenters opposed
allowing an agency to apply a CE when
extraordinary circumstances exist and
expressed concerns that this provision
would allow the use of mitigated CEs.
Some of these commenters
recommended the final rule remove
paragraph (b)(1); further specify what
extraordinary circumstances agencies
must consider, such as the presence of
endangered, threatened, or rare or
sensitive species; or include ‘‘other
protective measures.’’ Some
commenters urged the final rule to
require, rather than encourage,
publication of the CE determinations in
paragraph (b)(1). Other commenters
urged CEQ not to make publication a
requirement because it would be
burdensome on agencies. One
commenter who supported proposed
paragraph (b)(1) also suggested the
regulations clarify that the standard to
apply a CE to a proposed action also
includes mitigation commitments to
address extraordinary circumstances.
CEQ revises paragraph (b)(1) as
proposed with two additional clarifying
edits. In applying CEs, the evaluation of
extraordinary circumstances is critical
to ensure that a proposed action to
which a CE may apply would not cause
significant effects. However, mere
presence of an extraordinary
circumstance does not mean that the
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proposed action has the potential to
result in significant effects. To ensure
both the efficient and the appropriate
use of CEs, CEQ revises paragraph (b)(1)
to enable agencies to analyze and
document that analysis to ensure
application of the CE is valid. CEQ
disagrees that requiring agencies to
document this analysis is inefficient
because this provision does not require
an agency to prepare documentation of
every extraordinary circumstance
review. Rather, the provision requires
documentation only when the agency
identifies the presence of extraordinary
circumstances but nevertheless
determines that application of the CE is
appropriate. Documentation in such
instances is appropriate so that the
agency can demonstrate that it
adequately assessed the extraordinary
circumstances and determined that the
action will nonetheless not have the
potential to result in significant effects.
CEQ declines to require agencies to
publish this documentation because it
could burden agency resources and
undermine the efficiency of the CE
process.
CEQ has considered the comments on
this paragraph related to mitigated CEs
and modifies the text in the final rule to
clarify what it means for an agency to
modify its action. Specifically, CEQ
replaces the phrase ‘‘address the
extraordinary circumstance’’ with the
phrase ‘‘avoid the potential to result in
significant effects.’’ This change clarifies
that while an agency may rely on
measures that avoid potential significant
effects, it may not rely on measures to
compensate for potential significant
effects as the basis for relying on a CE
when extraordinary circumstances are
present, and the agency has determined
that the proposed action has the
potential to result in significant effects.
While CEQ has determined that reliance
on compensatory mitigation in this
provision is inappropriate, it notes that
other provisions of the regulations, such
as the allowance for mitigated FONSIs
in § 1501.6, promote the use of
compensatory mitigation to promote
efficient environmental reviews and
quality decision making. CEQ also
revises the introductory clause of the
last sentence from ‘‘In such cases’’ to
‘‘in these cases’’ to make it clear that the
documentation requirement applies to
both situations—(1) when the agency
conducts an analysis and determines
that the proposed action does not in fact
have the potential to result in significant
effects notwithstanding the
extraordinary circumstance or (2) the
agency modifies the action to avoid the
potential to result in significant effects.
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Seventh, CEQ proposed to add a new
paragraph (c) to provide agencies more
flexibility to establish CEs outside of
their NEPA procedures. CEQ proposed
this provision to allow agencies to
establish CEs through a land use plan,
a decision document supported by a
programmatic EIS or EA, or other
equivalent planning or programmatic
decisions. Once established, the
proposal would allow agencies to apply
CEs to future actions addressed in the
program or plan, including site-specific
or project-level actions. CEQ proposed
this provision because it anticipated
that expanding the mechanisms through
which agencies may establish CEs will
encourage agencies to conduct
programmatic and planning reviews,
increase the speed with which agencies
can establish CEs while ensuring public
participation and adequate
substantiation, promote the
development of CEs that are tailored to
specific contexts, geographies, or
project-types, and allow decision
makers to consider the cumulative
effects of related actions on a geographic
area over a longer time frame than
agencies generally consider in a review
of a single action.
Proposed paragraph (c) would not
require agencies to establish CEs
through this new mechanism, but rather
would provide new options for agencies
to consider. CEQ also noted in the
proposed rule that this mechanism does
not preclude agencies from conducting
and relying on programmatic analyses
in making project-level decisions
consistent with § 1501.11 in the absence
of establishing a CE. Additionally, the
proposed rule noted that it does not
require agencies to conduct a NEPA
analysis to establish CEs generally,
consistent with § 1507.3(c)(8).
Numerous commenters expressed
support for proposed paragraph (c),
asserting it will improve flexibility and
efficiency. Some commenters opposed
the proposed provision, expressing
concern about public engagement. One
commenter requested CEQ exclude
‘‘other equivalent planning or
programmatic decision’’ from paragraph
(c) asserting that CEQ should limit the
provision to documents prepared
pursuant to NEPA to ensure public
transparency and early public
involvement. Another commenter
recommended the final rule include an
example in paragraph (c) to illustrate
the appropriateness of creating a CE for
restoration actions in a planning
document, referencing § 1500.3(d)(2)(i)
for proposed Federal actions with shortterm, non-significant, adverse effects
and long-term beneficial effects, such as
restoration projects.
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CEQ adds paragraph (c) with
additional text to clarify that the phrase
‘‘other equivalent planning or
programmatic decision’’ requires that
such decision be supported by an
environmental document prepared
under NEPA. CEQ anticipates that this
alternative approach will provide
agencies with more flexibility on how to
identify categories of actions that
normally will not have significant
effects and establish a CE for those
categories. An environmental document
such as a programmatic EIS prepared for
land use plans or other planning and
programmatic decisions can provide the
analysis necessary to substantiate a new
CE established by the associated
decision document that makes sense in
the context of the overall program
decision or land use plan. For example,
a land management agency could
consider establishing a CE for zero or
minimal impact resilience-related
activities through a land use plan and
the associated EIS. Enabling an agency
to establish a CE through this
mechanism will reduce duplication of
effort by obviating the need for the
agency to revise its NEPA procedures
consistent with § 1507.3 after
completing a programmatic EIS.
Agencies also may find it efficient to
establish a CE through a land use
planning process rather than
undertaking a separate process to
establish the CE via agency procedures
after completion of the land use
planning process.
Eighth, CEQ proposed to add
paragraphs (c)(1) through (c)(6) to set
forth the requirements for the
establishment of CEs through the
mechanism proposed in paragraph (c).
In paragraphs (c)(1) and (c)(2), CEQ
proposed to require agencies to provide
CEQ an opportunity to review and
comment and provide opportunities for
public comment. The proposed rule
noted that agencies may satisfy the
requirement for notification and
comment under paragraph (c)(2) by
incorporating the proposed CEs into any
interagency and public review process
that involves notice and comment
opportunities applicable to the relevant
programmatic or planning document.
One commenter requested that
paragraph (c)(1) include a requirement
for CEQ to provide review and comment
to agencies within 30 days of the receipt
of the draft plan, programmatic
environmental document, or equivalent
decision document, consistent with the
timeframe included in § 1507.3(b)(2).
Another commenter asserted that
requiring agencies to coordinate with
CEQ defeats the purpose of having an
alternative mechanism for establishing
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CEs outside of an agency’s NEPA
procedures.
Some commenters asserted that
bundling new CEs with other large
actions could make it hard for the
public to track and result in a lack of
public participation and potential for
abuse. CEQ disagrees that the alternative
process for establishing CEs will curtail
meaningful public engagement on
proposed CEs and notes that paragraph
(c)(2) would require notification and an
opportunity for public comment.
Further, programmatic environmental
documents are subject to the public and
governmental engagement requirements
in § 1501.9.
The final rule adds paragraphs (c)(1)
and (c)(2) as proposed. CEQ declines to
include a timeline in the final rule but
notes that it will strive to provide
comments as quickly and efficiently as
possible. CEQ disagrees that requiring
agencies to consult with CEQ defeats the
purpose of this alternative mechanism.
Consultation with CEQ facilitates
consistency and coordination across the
government, which can lead to greater
efficiency. CEQ also can help ensure
that agencies are adequately
substantiating CEs through this new
mechanism.
In paragraphs (c)(3) and (c)(4), CEQ
proposed to include the same
requirements for agencies to
substantiate CEs and provide for
extraordinary circumstances when they
establish CEs under this section as when
they establish CEs through their agency
NEPA procedures pursuant to § 1507.3.
Specifically, paragraph (c)(3) would
require agencies to substantiate their
determinations that the category of
actions covered by a CE normally will
not result in significant effects,
individually or in the aggregate.
Paragraph (c)(4) would require agencies
to identify extraordinary circumstances.
CEQ did not receive comments
specific to paragraphs (c)(3) and (c)(4)
and adds them to the final rule as
proposed. CEQ notes that agencies have
flexibility in how they identify the list
of new extraordinary circumstances. For
example, agencies could rely on their
list set forth in their NEPA procedures.
Or, the agency could identify a list
specific to the CEs established under
paragraph (c). Agencies also could do a
combination of both. CEQ also notes
that while agencies would need to
satisfy the requirements in paragraphs
(c)(3) and (c)(4) in a manner consistent
with the establishment of CEs under
§ 1507.3, agencies could document their
compliance with these requirements in
the relevant programmatic or planning
documents.
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In paragraph (c)(5), CEQ proposed to
direct agencies to establish a process for
determining that a CE applies to a
specific action in the absence of
extraordinary circumstances or
determine the CE still applies
notwithstanding the presence of
extraordinary circumstances. Finally, in
paragraph (c)(6), CEQ proposed to direct
agencies to maintain a list of all such
CEs on their websites, similar to the
requirement for agencies to publish CEs
established in their agency NEPA
procedures consistent with
§§ 1507.3(b)(2) and 1507.4(a).
One commenter asserted that
requiring agencies to publish a list of all
CEs established pursuant paragraph (c)
on an agency’s website defeats the
purpose of having an alternative
mechanism for establishing CEs outside
of an agency’s NEPA procedures. CEQ
adds paragraphs (c)(6) as proposed. CEQ
disagrees that providing transparency
on a website is burdensome or will
affect the efficiency of the alternative
process for establishing CEs. Agency
websites should clearly link the CEs
established pursuant to § 1504.1(c) to
their underlying programmatic or
planning documents. Additionally,
where they determine it is efficient and
helpful to do so, agencies may
incorporate CEs established through
these mechanisms into their agency
NEPA procedures during a subsequent
revision. Irrespective of whether
agencies do this, CEQ encourages
agencies to list all agency CEs in one
location, regardless of how the agency
established the CE, so that the public
can easily access the full list of an
agency’s CEs.
Ninth, CEQ proposed new paragraphs
(d) and (d)(1) through (d)(4) to identify
a list of examples of features agencies
may want to consider including when
establishing CEs, regardless of what
mechanism they use to do so. In
paragraph (d)(1), CEQ proposed to
specifically allow for CEs that cover
specific geographic areas or areas that
share common characteristics, such as a
specific habitat type for a given species.
CEQ did not receive any comments
specific to this proposal and adds
paragraphs (d) and (d)(1) to the final
rule.
To promote experimentation and
evaluation, CEQ proposed in paragraph
(d)(2) to indicate that agencies may
establish CEs for limited durations. CEQ
did not receive any comments specific
to this proposal and adds paragraph
(d)(2) to the final rule. Agencies may
establish CEs for limited durations
when doing so will enable them to
narrow the scope of analysis necessary
to substantiate that a class of activities
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normally will not have a significant
environmental effect where uncertainty
exists about changes to the environment
that may occur later in time that could
affect the analysis or where an agency
anticipates that the frequency of actions
covered by a CE may increase in the
future. As with all CEs, agencies should
review their continued validity
periodically, consistent with the CE
review timeframe in § 1507.3(c)(9). Once
the limited duration threshold is met,
agencies may either consider the CE
expired, conduct additional analysis to
create a permanent CE, or reissue the CE
for a new period if they can adequately
substantiate the reissued CE.
CEQ proposed in paragraph (d)(3) to
provide that a CE may include
mitigation measures to address potential
significant effects. The proposed rule
explained that a CE that includes
mitigation is different than an agency
modifying an action to avoid an
extraordinary circumstance that would
otherwise require preparation of an EA
or EIS.
Numerous commenters interpreted
proposed paragraph (d)(3) to allow
‘‘mitigated CEs,’’ and commenters
expressed both support and opposition
for the proposed provision. Supportive
commenters asserted that mitigated CEs
can provide efficiencies to agencies.
Commenters opposed to the provision
expressed concern that this would allow
agencies to provide compensatory
mitigation for impacts of CEs and
asserted the provision violates a bedrock
principle of NEPA that an agency may
not weigh beneficial effects against
adverse effects to determine that an
action’s effects on a whole are not
significant. Some commenters objected
to the proposal that mitigation included
as part of a CE must be legally binding,
enforceable, and subject to monitoring.
CEQ includes paragraph (d)(3) as
proposed. This provision provides for a
CE that includes mitigation measures
integrated into the category of action
itself, which agencies would adopt
through a public comment process, and
does not enable mitigation that is
identified after the fact or on a case-bycase basis. Where an agency establishes
a CE for a category of activities that
include mitigation measures, agencies
would implement the activities covered
by the CE as well as the mitigation
incorporated into those activities as
described in the text of CE. This
provision would enable agencies to
incorporate mitigation as part of the
category of action covered by a CE. The
potential to integrate compensatory
mitigation into a CE does not authorize
weighing beneficial and adverse effects,
just as agencies may not weigh
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beneficial effects against adverse effects
to determine significance of a proposed
action. Rather, a CE may incorporate
compensatory mitigation requirements
as part of the action to ensure that an
environmental effect is not significant.
For example, in appropriate
circumstances an agency might
conclude that a category of activity that
results in degradation of five acres of
habitat will not ordinarily have
significant effects where five acres of
equivalent habitat are effectively
restored or conserved elsewhere within
that same geographic location. As
another example, a CE might cover a
category of activities that result in
releasing a certain volume of sediment
into a waterway if measures were taken
to reduce sediment into the waterway
from other sources. In establishing a CE
that incorporates a mitigation measure,
the agency would need to determine
that implementation of the mitigation
measure will mean that the category of
activities will not normally have a
significant effect. Where an agency
establishes a CE with a mitigation
requirement, the agency would need to
include such mitigation in their
proposed actions in order for the CE to
apply.
In paragraph (d)(4), CEQ proposed to
provide that agencies can include
criteria for when a CE might expire such
that, if such criteria occur, the agency
could no longer apply that CE. For
example, an agency could establish a CE
for certain activities up to a threshold,
such as a specified number of acres or
occurrences. Once the applications of
the CE met the threshold, the agency
could no longer use the CE. Similarly,
an agency might set an expiration date
or threshold where the agency can
substantiate that a category of activities
will not have a significant effect up to
a certain number of applications of the
CE, but beyond that point there is
uncertainty or analytic difficulty
determining whether application of the
CE would have significant effects.
Adopting CEs of this type may
significantly reduce the difficulty
substantiating a CE and therefore, may
promote more efficient and appropriate
establishment of CEs in certain
circumstances.
Some commenters requested that the
criteria to cause a CE to expire be
mandatory while another commenter
asserted the expiration criteria would
undermine the use of the CEs. CEQ
includes paragraph (d)(4) as proposed in
the final rule and notes that this
provision is merely an example of a type
of feature that can be incorporated into
a CE. In establishing the CE, agencies
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would determine whether the criteria
were mandatory.
Finally, CEQ proposed to add
paragraph (e) to implement the process
for adoption and use of another agency’s
CE consistent with section 109 of NEPA.
42 U.S.C. 4336c. As discussed in section
II.I.3, CEQ proposed to strike the
provision that would allow an agency to
establish a process in its agency NEPA
procedures to apply a CE listed in
another agency’s NEPA procedures in
40 CFR 1507.3(f)(5) (2020) and replace
it with this provision.
Numerous commenters generally
opposed the concept of adopting and
using another agency’s CE. A few
commenters asserted that such an
allowance could be ‘‘disastrous’’
because it allows agencies to skip full
assessment of the potential
environmental and socioeconomic
impacts of the proposed action required
by NEPA, and it limits public
engagement.
CEQ includes paragraph (e) in the
final rule because it implements the
provisions of section 109 of NEPA,
which allows agencies to adopt and
apply the CEs of other agencies. 42
U.S.C. 4336c. CEQ notes that the
statutory provision only allows for
agency adoption and use of CEs
established administratively by the
agency, including those that Congress
directs agencies to establish
administratively, but does not permit
adoption of CEs directly created by
statute, for which an agency has not
evaluated whether the category of
activities that fall within the CE will not
normally have significant effects. While
CEQ encourages agencies to include
legislative CEs established by statute in
their NEPA procedures to provide
transparency, they are not ‘‘established’’
by the agency, but rather by Congress.
Therefore, this provision does not apply
to legislative CEs.
In paragraph (e)(1), CEQ proposed to
require the adopting agency to identify
the proposed action or category of
proposed actions that falls within the
CE. CEQ did not receive comments on
this proposed paragraph and adds it to
the final rule as proposed.
In paragraph (e)(2), CEQ proposed to
require the adopting agency to consult
with the agency that established the CE,
consistent with the requirement of
section 109(2) of NEPA that an agency
consult with ‘‘the agency that
established the categorical exclusion.’’
42 U.S.C. 4336c(2). While some
commenters opposed the consultation
requirements included in paragraph
(e)(2), it is consistent with section
109(2) of NEPA. Therefore, CEQ adds
paragraph (e)(2) in the final rule with
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revisions to clarify that ‘‘the
application’’ refers to ‘‘the proposed
action or category of proposed actions to
which the agency intends to apply’’ the
adopted CE. Consultation with the
agency that established the CE ensures
that the CE is appropriate for the
proposed action or categories of action
that the adopting agency is
contemplating as well as to ensure the
adopting agency follows any process
contemplated in the establishing
agency’s procedures. Agencies structure
their CEs in a variety of manners, and
it is essential that the adopting agency
comport with the establishing agency’s
process necessary for appropriate
application of the CE. For example,
some agencies structure their CEs to
have a list of conditions or factors to
consider in order to apply the CE. Other
agencies require documentation for
certain CEs. These conditions would
apply to the adopting agency as well. In
contrast, procedures internal to the
establishing agency and unrelated to
proper application of the CE, such as
protocols for seeking legal review or
briefing agency leadership, would not.
CEQ proposed in paragraph (e)(3) to
require the adopting agency to evaluate
the proposed action for extraordinary
circumstances and to incorporate the
process for documenting use of the CE
when extraordinary circumstances are
present but application of the CE is still
appropriate consistent with
§ 1504.1(b)(1). One commenter
requested additional clarity on which
agency’s extraordinary circumstances
the adopting agency needs to consider
while another commenter asserted both
agencies’ extraordinary circumstances
should apply. Another commenter
asserted that section 109 of NEPA does
not require the extraordinary
circumstances review included in
paragraph (e)(3), and suggested the final
rule include this in paragraph (e)(1).
The commenter further asserted that the
cross-reference to § 1501.4(b) in
paragraph (e)(3) presents problems of
action-specific application.
In the final rule, CEQ swaps proposed
paragraphs (e)(3) and (e)(4) to better
reflect the order in which these
activities occur. CEQ includes proposed
paragraph (e)(3) at § 1501.4(e)(4), adds
an introductory clause, ‘‘[i]n applying
the adopted categorical exclusion to a
proposed action,’’ and removes
reference to a ‘‘category of proposed
actions’’ since consideration of
extraordinary circumstances would
come at the stage of application and
evaluation of a particular action, not at
the adoption stage, because the purpose
of assessing for extraordinary
circumstances is to determine whether a
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particular action normally covered by a
CE requires preparation of an EA or EIS.
CEQ declines to specify which
agency’s extraordinary circumstances
apply in this paragraph and instead
adds language to § 1501.4(e)(3)
(proposed paragraph (e)(4)) to require
agencies to explain the process the
agency will use to evaluate for
extraordinary circumstances. When the
agencies consult regarding the
appropriateness of the CE consistent
with paragraph (e)(2), the agencies
should discuss how the adopting agency
will review for extraordinary
circumstances (e.g., whether the
adopting agency will apply the
establishing agency’s extraordinary
circumstances exclusively or both
agencies’ provisions), taking into
account how each agency’s NEPA
procedures define and require
consideration of extraordinary
circumstances. The adopting agency
should then explain how it will address
extraordinary circumstances in its
notification under § 1501.4(e)(4). CEQ
expects that agencies will follow the
extraordinary circumstances process set
forth in the NEPA procedures
containing the CE, but may determine it
is appropriate to also consider the
extraordinary circumstances process in
their own procedures because, for
example, their extraordinary
circumstances address agency-specific
considerations.
In proposed paragraph (e)(4), CEQ
proposed to require the adopting agency
to provide public notice of the CE it
plans to use for its proposed action or
category of proposed actions. Some
commenters asserted the procedural
requirements under paragraph (e)(4) are
unnecessary and could make the
process more difficult. One commenter
requested the regulations clarify that
public notice is not intended for each
individual project using the other
agency’s CE, but rather when one
agency decides to use another agency’s
CE. Some commenters requested the
final rule require agencies to accept
public comment on the notice.
Conversely, a few commenters
expressed concern that the requirement
to provide notice contemplates the
potential for pre-adoption public
comment and necessitates formal
comment. These latter commenters
requested CEQ clarify that formal public
comment and agency response are not
required for the notice.
In the final rule, CEQ adds proposed
paragraph (e)(4) at § 1501.4(e)(3)
because section 109(3) of NEPA requires
public notice of CE adoption. 42 U.S.C.
4336c(3). In the final rule text, CEQ uses
‘‘public notification’’ instead of ‘‘public
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notice’’ for consistency with use of
‘‘notification’’ throughout the rule. CEQ
changes ‘‘use’’ to ‘‘is adopting’’ to clarify
that this notice is about adoption of the
CE for a proposed action or category of
actions, not the application of the
adopted CE to a particular proposed
action. CEQ replaces ‘‘for’’ with
‘‘including a brief description of’’ before
‘‘the proposed action or category of
proposed actions’’ and adds the clause
‘‘to which the agency intends to apply
the adopted categorical exclusion’’ to
further clarify the purpose of the notice.
Then, as discussed earlier in this
section, the final rule requires that the
notice specify the process for
consideration of extraordinary
circumstances. CEQ notes that several
agencies have already successfully
adopted other agencies’ CEs and
provided such notice since the NEPA
amendments were enacted.70 CEQ
declines to add a requirement to this
paragraph to require agencies to seek
comment on the adoption. While CEQ
encourages agencies to do so in
appropriate cases, such as when there is
community interest in the action, the
statute does not require agencies to seek
public comment on the adoption and
use of another agency’s CE. Finally, CEQ
adds a requirement to include a brief
description of the consultation process
required by § 1501.4(c)(2) to
demonstrate that this process occurred.
Lastly, in paragraph (e)(5), CEQ
proposed to require the adopting agency
to publish the documentation of the
application of the CE. Some commenters
opposed this proposed requirement,
asserting it is not required by NEPA and
differs from the section 109(4)
requirement to document adoption of
the CE, and that the requirement will
only delay projects that clearly qualify
for use of a CE. 42 U.S.C. 4336c(4).
Other commenters supported the
documentation requirement and
requested that paragraph (e)(5) require
agencies to publish decision documents.
CEQ adds § 1501.4(e)(5) in the final
rule with the addition of ‘‘adopted’’ to
modify ‘‘categorical exclusion’’ for
clarity and consistency with
§ 1501.4(c)(3) and (c)(4). Paragraph (e)(5)
implements sections 109(3) and 109(4)
of NEPA and reflects CEQ’s
understanding that section 109(4) of
NEPA describes a step that is distinct
from and occurs later than the step
described in section 109(3). See 42
70 See, e.g., U.S. Dep’t of Com., Adoption of
Energy Categorical Exclusions under the National
Environmental Policy Act, 88 FR 64884 (Sept. 20,
2023); U.S. Dep’t of Transp., Notice of Adoption of
Electric Vehicle Charging Stations Categorical
Exclusion under the National Environmental Policy
Act, 88 FR 64972 (Sept. 20, 2023).
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U.S.C. 4336c(3), (4). Section 109(3)
requires agencies to ‘‘identify to the
public the categorical exclusion that the
agency plans to use for its proposed
actions,’’ while section 109(4) requires
an agency to ‘‘document adoption of the
categorical exclusion.’’ CEQ reads these
provisions together to be consistent with
requiring both notice of the adopting
agency’s adoption, which would
describe the agency’s intended use, as
well as actual application of the adopted
CE to proposed actions. It also furthers
the purposes of NEPA to inform the
public. Additionally, providing
transparency about how agencies are
using the adopted CEs will help allay
commenters’ concerns about this
provision because they will be made
aware of what CEs agencies are adopting
and how they are using them. Therefore,
agencies must prepare such
documentation each time they apply the
CE to a proposed action. Paragraph
(e)(5) requires agencies to publish this
determination that the application of the
CE is appropriate for the proposed
action, and that there are no
extraordinary circumstances requiring
preparation of an EA or EIS, including
the analysis required by § 1501.4(b)(1) if
the agency determines that there is no
potential for significant effects
notwithstanding those extraordinary
circumstances. CEQ notes that use of the
defined term ‘‘publish’’ in § 1501.4(e)(5)
provides agencies with discretion to
determine the appropriate manner in
which to publish the documentation
and that § 1501.4(e)(5) does not require
agencies to publish any pre-decisional
or deliberative materials the agencies
may use to support a determination of
the applicability of the adopted CE.
When an agency is adopting one or
more CEs that it plans to use for one or
more categories of actions, it may
publish a single notice of the adoption
under § 1501.4(e)(3), consistent with
section 109(3) of NEPA. See 42 U.S.C.
4336c(3). However, when the agency
then applies the adopted CE to a
specific action, it must document that
particular use of the CE to satisfy
section 109(4) of NEPA, as reflected in
§ 1501.4(e)(4) and (5). See 42 U.S.C.
4336c(4). Finally, agencies must publish
the documentation to provide
transparency to the public consistent
with section 109(3) and (4) of NEPA.
If an adopting agency anticipates
long-term use of an adopted CE, CEQ
encourages agencies to establish the CE
either in their own procedures or
through the process set forth in
§ 1501.4(c). Section 1501.4(e) can serve
as an important bridge when agencies
are implementing new programs where
they have not yet established relevant
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CEs or when existing programs begin to
undertake new categories of actions but
where other agencies have experience
with similar actions and have
established a CE for those actions. In
these circumstances, the agency can
immediately begin to implement the
new programs or activities after
adoption of another agency’s CE for
similar actions without the need to first
develop its own CE to cover them.
CEQ notes that section 109 of NEPA
does not provide that an agency can
modify the CE it is adopting. 42 U.S.C.
4336c. Therefore, agencies must adopt a
CE as established and cannot modify the
text of the adopted CE. However, in the
public notification required by
§ 1501.4(e)(3), agencies must describe
the action or category of actions to
which they intend to apply the adopted
CE and the action or category of actions
for which the CE is adopted may be
narrower in scope than the CE might
otherwise encompass. If an agency later
seeks to apply the adopted CE to a
different category of actions than those
identified in the prior adoption notice,
the agency must further consult with the
establishing agency and provide new
public notification consistent with
§ 1501.4(e). If the agency publishes a
consolidated list of CEs on its website,
as CEQ recommends, the adopting
agency should include identification of
the action or category of actions for
which it has adopted the CE with the
list. If an adopting agency would prefer
to narrow or otherwise modify the text
of the adopted CE, it should instead
substantiate and establish a new CE in
its agency NEPA procedures.
4. Environmental Assessments
(§ 1501.5)
CEQ proposed to revise § 1501.5 to
make it consistent with section 106(b)(2)
of NEPA, which addresses when an
agency must prepare an EA, and section
107(e)(2) of NEPA, which address EA
page limits. 42 U.S.C. 4336(b)(2),
4336a(e)(2). CEQ also proposed to revise
§ 1501.5 to provide greater clarity to
agencies on the requirements that apply
to the preparation of EAs and codify
agency practice. CEQ proposed edits to
address what agencies must discuss in
an EA, how agencies should consider
public comments they receive on draft
EAs, what page limits apply to EAs, and
what other requirements in the CEQ
regulations agencies should apply to
EAs.
First, regarding the contents of an EA,
CEQ proposed to split paragraph (c)(2)
of 40 CFR 1501.5 (2020), requiring an
EA to briefly discuss the purpose and
need for the proposed action,
alternatives, and effects, into paragraphs
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(c)(2)(i) through (iii) to improve
readability and provide a clearly
defined list of requirements for EAs.
CEQ proposed this formatting change to
make it easier for the public and
agencies to ascertain whether an EA
includes the necessary contents. For
example, when an agency develops an
EA for a proposal involving unresolved
conflicts concerning alternative uses of
available resources, section 102(2)(H) of
NEPA requires an analysis of
alternatives, which will generally
require analysis of one or more
reasonable alternatives, in addition to a
proposed action and no action
alternative. See 42 U.S.C. 4332(2)(H).
CEQ did not receive specific comments
on these proposed changes and makes
them in the final rule.
Second, CEQ proposed to move the
requirement for EAs to list the agencies
and persons consulted in the
development of the EA from paragraph
(c)(2) of 40 CFR 1501.5 (2020) into its
own paragraph at § 1501.5(c)(3). CEQ
also proposed to clarify the term
‘‘agencies’’ in this paragraph by
specifying that the EA should list the
Federal agencies and State, Tribal, and
local governments and agencies
consulted. CEQ did not receive specific
comments on these proposed changes
and makes them in the final rule to
improve readability and improve clarity.
Third, CEQ proposed to add a new
paragraph at § 1501.5(c)(4) to require
each EA to include a unique
identification number that can be used
for tracking purposes, which the agency
would then carry forward to all other
documents related to the environmental
review of the action, including the
FONSI. As discussed in section II.D.4,
CEQ proposed a comparable provision
for EISs in § 1502.4(e)(10). CEQ
included this proposal because
identification numbers can help the
public and agencies track the progress of
an EA for a specific action as it moves
through the NEPA process and may
allow for more efficient and effective
use of technology such as databases.
Many commenters expressed support
for the addition of these requirements.
Commenters agreed with CEQ’s
proposal that having a consistent
reference point to facilitate public and
agency engagement would increase
transparency and accessibility and
improve the public’s ability to track
agency reviews and decision making.
Other supportive commenters indicated
that the use of unique identification
numbers would or should promote the
use of technology, such as databases by
Federal agencies, for tracking purposes
and some commenters encouraged CEQ
to require agencies to use technology
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and databases. Commenters also
suggested that the final rule provide
additional information such as
standardizing the number format or
specifying which documents require the
numbering. Commenters that raised
concern about the requirement
suggested that without a requirement for
electronic tracking systems, the
requirement is premature and
burdensome.
In this final rule, CEQ is retaining the
proposed text and, in response to
comments, adding a clause to also
require use of the identification
numbers in any agency databases or
tracking systems. Identification numbers
can help both the public and the
agencies track the progress of an action
as it moves through the NEPA process
from initiation to final decision. The use
of identification numbers will increase
transparency and accountability to the
public when a proposed action is tiered
from an existing analysis or when an
agency adopts another agency’s NEPA
analysis to support its own decision
making. In addition to the Permitting
Dashboard, many agencies already have
internal or external databases and
tracking systems for their environmental
review documents.71 While the
proposed requirement would likely
result in agencies using these tracking
numbers in their systems, CEQ
considers it important to add text to the
final rule to emphasize their use as
agencies continue to develop new ways
to provide transparency and improve
efficiency in their processes.
CEQ agrees with commenters that
additional information will be needed
for agencies to implement this
provision. For example, there is the
question whether to have a governmentwide system assign the unique
identification number, to use a
standardized numbering format, or
whether agencies will develop their
own format. However, CEQ considers
these questions best answered through
instructions to agencies, which CEQ can
revise or reissue as needed, especially
given the speed at which technology
advances and changes. CEQ intends to
develop such instructions following
issuance of this final rule.
Fourth, to reflect current agency
practice and provide the public with a
clearer understanding about potential
public participation opportunities with
respect to EAs, CEQ proposed to add a
new paragraph (e) that would provide
that if an agency chooses to publish a
draft EA, it must invite public comment
71 See, e.g., U.S. Forest Serv. Schedule of
Proposed Actions, https://www.fs.usda.gov/sopa/
index.php.
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on the draft and consider those
comments when preparing a final EA.
Numerous commenters expressed
support for this proposed change. Some
commenters recommend the final rule
go further to require public comment on
all EAs, with at least one commenter
suggesting a 30-day minimum comment
period. Another commenter requested
the regulations require agencies to
respond to comments on an EA and
publish the comments on a website,
similar to the requirements for EISs.
Some commenters opposed the
proposed change, asserting that it
creates the perception that publication
of a draft EA for public comment should
be the default practice when in fact,
agencies have discretion not to do this.
They also requested CEQ explicitly state
in the rule and preamble that there is no
obligation for agencies to publish a draft
EA for comment. Other commenters
emphasized discretion, stating that
because agencies already have
discretion to prepare a draft EA, they
should have discretion on whether to
invite public comment on it. The
commenters also expressed concern that
proposed § 1501.5(e) removes agency
discretion on how to manage EAs and
could prolong the development of EAs.
Some commenters asserted the language
on draft EAs contradicts case law,
hinders the efficiency of the EA process,
and could disincentivize agencies from
publishing draft EAs.
CEQ considered these comments and
includes paragraph (e) as proposed. CEQ
considers this approach to strike the
right balance between agency discretion
and ensuring that agencies consider
public comments when they choose to
prepare both a draft and final EA. As the
proposed rule articulated, this provision
reflects the fact that one of the primary
purposes for which agencies choose to
prepare draft EAs is to facilitate public
participation. Codifying this practice
enhances the public’s understanding of
the NEPA process and meaningful
public engagement and does not restrict
agency discretion over whether to
choose to prepare a draft EA for public
comment.
CEQ declines to mandate that all EAs
be made available for comment because
agencies appropriately have flexibility
to determine what level of engagement
is appropriate for an EA given the
specific circumstances of a proposed
action, consistent with § 1501.5(f).
However, in developing EAs, agencies
must involve the public, State, Tribal,
and local governments, relevant
agencies, and any applicants, to the
extent practicable, in accordance with
§ 1501.5(f). CEQ also declines to require
agencies to respond to comments and
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publish public comments on a website.
Doing so would unduly limit the
discretion of agencies to tailor the
public engagement process for EAs to
the specific circumstances of a proposed
action, which could include responding
to comments or publishing them on a
website though the regulations do not
require it. Adding such requirements
instead of leaving it to agency discretion
could disincentivize agencies from
publishing draft EAs due to concerns
about the burden of responding to
voluminous comments.
Fifth, CEQ proposed to redesignate
paragraphs (e) and (f) of 40 CFR 1501.5
(2020) as § 1501.5(f) and (g)
respectively. CEQ makes these changes
in the final rule.
Sixth, CEQ proposed to revise
paragraph (g) addressing page limits to
dispense with the requirement for
senior agency official approval to
exceed 75 pages, not including any
citations or appendices, for consistency
with section 107(e)(2) of NEPA. 42
U.S.C. 4336a(e)(2). CEQ did not receive
any comments on this proposed change
and makes this change in the final rule.
Seventh, CEQ proposed to add
paragraph (h) to clarify that agencies
may reevaluate or supplement an EA if
a major Federal action remains to occur
and the agency considers it appropriate
to do so. Proposed paragraph (h) also
provided that agencies may reevaluate
an EA or otherwise document a finding
that changes to the proposed action or
new circumstances or information
relevant to environmental concerns are
not substantial, or the underlying
assumptions of the analysis remain
valid. CEQ proposed to add this
language to clarify that an agency may
apply the provisions at § 1502.9
regarding supplemental EISs to a
supplemental EA to improve efficiency
and effectiveness.
A few commenters expressed that
supplemental EAs should consider
whether the effects analysis still
supports a FONSI rather than merely
addressing underlying assumptions.
Some commenters interpreted the
supplementation and reevaluation
language to allow an agency to change
its finding after it issued the FONSI.
In the final rule, CEQ includes
§ 1501.5(h) to address supplementation
and reevaluation, but revises it from the
proposal to address concerns raised by
the commenters about potential
confusion. The final rule divides
supplementation and revaluation into
subparagraphs and incorporates the
same supplementation standard as
§ 1502.9. Paragraph (h)(1) provides that
agencies ‘‘should’’ supplement EAs
rather than ‘‘may’’ as proposed. CEQ
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uses ‘‘should’’ in the final rule because
there may be instances where an agency
determines that supplementation is
appropriate because the changes to the
proposed action or new information
indicate the potential for significant
effects, and in such instances, agencies
should supplement their analysis if an
action remains to occur and is therefore
incomplete or ongoing. As discussed in
section II.D.8, CEQ replaces ‘‘remains to
occur’’ with ‘‘incomplete or ongoing’’ to
more clearly describe the standard for
supplementation, and CEQ uses this
same phrasing in § 1501.5(h)(1).
In § 1501.5(h)(1)(i) and (ii), the final
rule includes the same criteria for
supplementation as in § 1502.9(d)(i) and
(ii) with an additional clause at the end
of (h)(ii) to clarify the meaning in the
case of EAs. CEQ includes ‘‘to
determine whether to prepare a finding
of no significant impact or an
environmental impact statement’’ at the
end of paragraph (h)(ii) to clarify what
‘‘that bear on the analysis’’ means in the
context of an EA. After considering the
comments, CEQ determined that it
should not create a different
supplementation standard for EAs from
EISs since the purpose of
supplementation is to address
circumstances where the analysis upon
which the agency based its decision has
changed and there is potential for new
significant effects. Aligning the
standards for EISs and EAs will also
reduce the complexity of the NEPA
regulations and the environmental
review process.
To further align this provision with
§ 1502.9, CEQ adds in § 1501.5(h)(2) the
same text in § 1502.9 to state that
agencies may prepare supplements
when the agency determines the
purposes of NEPA will be furthered in
doing so. CEQ includes this paragraph
for consistency with EISs and to make
clear that agencies have such discretion.
Two commenters requested CEQ
revise paragraph (h) to clarify that new
circumstances or information in the
absence of remaining discretionary
approval involving a major Federal
action do not trigger a requirement to
reevaluate or supplement an EA. The
commenters stated the proposed text
could be interpreted to suggest that
agencies are obligated to reevaluate an
EA whenever new circumstances or
information arise. While the proposed
qualifier that ‘‘an action remains to
occur,’’ would address the commenters’
concerns, as noted in this section, the
final rule clarifies that ‘‘remains to
occur’’ means when an action is
incomplete or ongoing, which is
consistent with § 1502.9 as well as
longstanding case law that makes clear
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that there must be an incomplete or
ongoing action in order for reevaluation
or supplementation to be necessary.
Some commenters expressed that
paragraph (h) would result in the public
and project sponsor not having certainty
on the whole of the administrative
record. These commenters requested the
regulations require an agency to rescind
the FONSI until a new one is reached;
another commenter similarly requested
CEQ add a paragraph on rescission of
FONSIs. CEQ declines to require
agencies to rescind a FONSI while a
reevaluation or supplemental EA is
ongoing because these processes are
intended to inform whether a FONSI
remains valid. If an agency prepares a
supplemental EA, it will determine
whether it is necessary to revise or issue
a new FONSI or whether the existing
FONSI remains valid based on the
outcome of the supplemental analysis.
In the final rule, CEQ addresses
reevaluation in its own paragraph,
consistent with § 1502.9, by adding
§ 1501.5(i) to provide that an agency
may use a reevaluation to document its
consideration of changes to the
proposed action or new information and
its determination that supplementation
is not required. For example, a
reevaluation can be a short memo
describing a change in project design
that briefly explains why that change
does not change the analysis conducted
in the EA in a manner that warrants
supplementation.
Finally, CEQ proposed to clarify
which provisions applicable to EISs
agencies should or may apply to EAs.
CEQ proposed to replace paragraph (g)
of 40 CFR 1501.5 (2020), listing the
provisions for incomplete or unavailable
information, methodology and scientific
accuracy, and environmental review
and consultation requirements, with
proposed new paragraphs (i) and (j).
CEQ proposed in paragraph (i) to clarify
that agencies generally should apply the
provisions of § 1502.21 regarding
incomplete or unavailable information
and § 1502.23 regarding scientific
accuracy. CEQ proposed to revise these
from ‘‘may apply’’ to ‘‘should apply’’
because CEQ considers it important to
disclose where information is
incomplete or unavailable and ensure
scientific accuracy for all levels of
NEPA review, not just EISs.
CEQ proposed in paragraph (j) that
agencies may apply the other provisions
of parts 1502 and 1503 as appropriate to
improve efficiency and effectiveness of
EAs. The proposed list included
example provisions where this might be
the case—scoping (§ 1502.4), costbenefit analysis (§ 1502.22),
environmental review and consultation
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requirements (§ 1502.24), and response
to comments (§ 1503.4).
Various commenters asked for clarity
regarding proposed §§ 1501.5(i) and (j),
expressing confusion on the difference
between ‘‘generally should apply’’ and
‘‘may apply.’’ Some commenters
requested the final rule require
application of §§ 1502.4, 1502.21,
1502.22, 1502.23, 1502.24, and 1503.4
to EAs.
In the final rule, CEQ adds proposed
paragraph (i) at § 1501.5(j) but only
references § 1502.21 regarding
incomplete and unavailable information
because CEQ has moved 40 CFR 1502.23
(2020), which is applicable to
environmental documents, including
EAs, to § 1506.6 as discussed in sections
II.D.18 and II.H.4. CEQ retains
‘‘generally should’’ in the final rule.
While CEQ encourages agencies to
follow § 1502.21, CEQ retains the
‘‘generally’’ qualifier to acknowledge
that there may be some circumstances
where the section does not or should
not apply. Additionally, because EAs
can include significant effects that an
agency mitigates to reach a FONSI, it is
important that agencies apply § 1502.21
in such cases. CEQ also adds proposed
paragraph (j) at § 1501.5(k), consistent
with the proposal, to encourage agencies
to apply the provisions of parts 1502
and 1503 where it will improve the
efficiency and effectiveness of an EA.
Some commenters provided general
comments on EAs. Some commenters
requested the final rule add more
requirements to align with EISs,
including requiring agencies to consider
the same scope of effects as those
considered in an EIS; to provide
decision makers with a summary and
comparison of effects; and to consider
alternatives to address adverse
environmental effects. Other
commenters argued generally that the
proposed changes to § 1501.5 would
result in EAs looking more like EISs,
which is contrary to goal of an efficient
process.
CEQ declines to make additional
changes to § 1501.5. As discussed in this
section, CEQ concluded that § 1501.5
strikes the right balance to ensure
agencies preparing an EA conduct an
appropriate and efficient review without
imposing unnecessary requirements that
would mirror an EIS or result in a less
efficient process.
5. Findings of No Significant Impact
(§ 1501.6)
CEQ proposed two revisions to
§ 1501.6 on findings of no significant
impact (FONSIs) to clarify the 2020
rule’s codification of the longstanding
agency practice of relying on mitigated
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FONSIs in circumstances where the
agency incorporates mitigation into the
action to reduce its effects below
significance. Mitigated FONSIs are an
important efficiency tool for NEPA
compliance because they expand the
circumstances in which an agency may
prepare an EA and reach a FONSI,
rather than preparing an EIS, consistent
with the requirements of NEPA.
CEQ proposed to revise paragraph (a),
which provides that an agency must
prepare a FONSI if it determines, based
on an EA, not to prepare an EIS because
the action will not have significant
effects. At the end of paragraph (a), CEQ
proposed to clarify that agencies can
prepare a mitigated FONSI if the action
will include mitigation to avoid the
significant effects that would otherwise
occur or minimize or compensate for
them to the point that the effects are not
significant. The proposed rule noted
that so long as the agency can conclude
that effects will be insignificant in light
of mitigation, the agency can issue a
mitigated FONSI. The proposed rule
noted this change improved consistency
with the language in § 1501.6(c) and
aligns with CEQ’s guidance on
appropriate use of mitigation,
monitoring, and mitigated FONSIs.72
Numerous commenters supported
proposed § 1501.6(a), viewing the
proposed changes as consistent with
agency practice and longstanding CEQ
guidance as well as promoting
efficiency in the NEPA process. In
contrast, multiple commenters opposed
the proposed changes and raised
concerns that use of mitigated FONSIs
would reduce opportunities for public
participation and allow agencies to
trade off different kinds of
environmental effects to rely on a net
benefit outcome to arrive at a FONSI.
In the final rule, CEQ revises
paragraph (a) with additional, nonsubstantive edits for clarity, including
subdividing paragraph (a) into
subparagraphs. In paragraph (a), CEQ
adds an introductory clause to make
clear that an agency prepares a FONSI
after completing an EA. In paragraph
(a)(1), CEQ revises the text to clarify that
an agency prepares a FONSI when it
determines that NEPA does not require
preparation of an EIS because the
proposed action will not have
significant effects. In paragraph (a)(2),
CEQ also repeats the clause ‘‘if the
agency determines, based on the
environmental assessment, that NEPA
does not require preparation of an
environmental impact statement’’ after
mitigated FONSI to make clear that a
mitigated FONSI is also based on the
72 CEQ,
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EA. Finally, CEQ adds a new paragraph
(a)(3) to clarify that an agency must
prepare an EIS following an EA if the
agency determines that the action will
have significant effects.
CEQ has long recognized in guidance
that agencies may use mitigation to
reduce the anticipated adverse effects of
a proposed action below the level of
significance, resulting in a FONSI. CEQ
agrees that mitigated FONSIs promote
efficiency, and the final rule includes
safeguards to ensure that agencies will
only use mitigated FONSIs when they
can reasonably conclude that the
mitigation measures will occur.
Regarding opportunities for public
engagement, the final rule supports
public engagement in the EA process,
consistent with § 1501.9.
CEQ disagrees that the use of a
mitigated FONSI allows agencies to
trade off different kinds of
environmental effects and rely on a net
benefit outcome to arrive at a FONSI.
The CEQ regulations have never
allowed agencies to use a net benefit
analysis across environmental effects to
inform the level of review. Instead,
agencies must consider each type of
effect or affected resources separately
when determining whether a proposed
action would have a significant effect.
Therefore, an agency could not rely
upon mitigation focused on one type of
effect to arrive at a FONSI if the
proposed action would nonetheless
have a significant adverse effect of a
different kind or on a different resource.
A mitigated FONSI only enables an
agency, consistent with existing
practice, to determine that an effect is
not significant in light of mitigation.
To accommodate the changes to
paragraph (a), in the final rule, CEQ
redesignates paragraphs (a)(1), (a)(2),
and (b) of 40 CFR 1501.6 (2020) as
§ 1501.6(b)(1), (b)(2), and (c),
respectively. CEQ also makes a nonsubstantive, clarifying change to
§ 1501.6(b)(2) to simplify the language
from ‘‘makes its final determination’’ to
‘‘determines.’’
Next, CEQ proposed to revise
proposed § 1501.6(c) addressing what an
agency must include in a FONSI
regarding mitigation. The second
sentence provides that when an agency
relies on mitigation to reach a FONSI,
the mitigated FONSI must state the
enforceable mitigation requirements or
commitments that will be undertaken to
avoid significant effects. CEQ proposed
to strike the last clause, ‘‘to avoid
significant impacts’’ at the end of the
second sentence and replace that phrase
with a requirement for the FONSI to
state the authorities for the enforceable
mitigation requirements or
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commitments, since they must be
enforceable for agencies to reach a
mitigated FONSI. CEQ proposed this
change because, where a proposed
action evaluated in an EA may have
significant effects, and an agency is not
preparing an EIS, the FONSI must
include mitigation of the significant
effects. CEQ also proposed to add
examples of enforcement authorities
including ‘‘permit conditions,
agreements, or other measures.’’
Commenters were generally
supportive of proposed § 1501.6(c). A
few commenters opposed the proposed
changes or questioned CEQ’s authority
to include them in the regulations. As
discussed in sections II.I.1 and II.I.2 on
§§ 1505.2(c) and 1505.3(c), the rule
reinforces the integrity of environmental
reviews by ensuring that if an agency
assumes as part of its analysis that
mitigation will occur and will be
effective, the agency takes steps to
ensure that the assumption is correct. In
the final rule, which redesignates
proposed paragraph (c) as § 1501.6(d),
CEQ strikes the phrase ‘‘to avoid
significant impacts,’’ as proposed, from
the end of the second sentence and
replaces it with the clause ‘‘and the
authority to enforce them’’ such that the
sentence requires agencies to both state
the enforceable mitigation requirements
or commitments and the authority to
enforce those commitments when the
agency finds no significant effects based
on mitigation. Next, the sentence
includes a list of examples of such
commitments and authorities. The final
rule includes more specificity than the
proposed rule, to include ‘‘terms and
conditions or other measures in a
relevant permit, incidental take
statement, or other agreement.’’
Finally, as discussed further in
section II.G.2, CEQ proposed to add a
new sentence at the end of paragraph (c)
to require agencies to prepare a
monitoring and compliance plan when
the EA relies on mitigation as a
component of the proposed action,
consistent with § 1505.3(c). CEQ
proposed these changes to help
effectuate NEPA’s purpose as articulated
in section 101, including to ‘‘attain the
widest range of beneficial uses of the
environment without degradation, risk
to health or safety, or other undesirable
and unintended consequences’’ and to
‘‘preserve important historic, cultural,
and natural aspects of our national
heritage.’’ 42 U.S.C. 4331(b).
For the reasons discussed in section
II.G.2, CEQ adds this requirement in the
final rule in § 1501.6(d). Specifically,
the final rule requires agencies to
prepare a mitigation and compliance
plan for the enforceable mitigation and
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any other mitigation required by
§ 1505.3(c) to ensure that if an agency
assumes as part of its analysis that
mitigation will occur and will be
effective, the agency takes steps to
ensure that the assumption is correct.
6. Lead Agency (§ 1501.7)
CEQ proposed several changes to
§ 1501.7, which addresses the
responsibilities of lead agencies. First,
CEQ proposed to retitle § 1501.7 from
‘‘Lead agencies’’ to ‘‘Lead agency’’ to
align with section 107(a) of NEPA. 42
U.S.C. 4336a(a). CEQ did not receive
comments specific to the section title
and makes this change in the final rule.
Second, in paragraph (a) of § 1501.7,
CEQ proposed to eliminate the reference
to ‘‘complex’’ EAs so that the
regulations would require a lead agency
to supervise the preparation of any EIS
or EA for an action or group of actions
involving more than one Federal
agency. The 2020 rule added the
concept of complex EAs to this section
without defining the term. CEQ invited
comment on whether it should retain
the concept of a complex EA in the
regulations, and if so, how the
regulations should define a complex EA.
Three commenters supported removal
of complex EAs arguing it was
confusing and unnecessary. A
commenter suggested that if CEQ retains
the concept, the rule define it as an EA
that requires reviews from multiple
Federal agencies. CEQ removes the
reference to complex EAs as
unnecessary given that the provision
already states that a lead agency must
supervise preparation of an EA when
more than one Federal agency is
involved and the term is not used
elsewhere in the rule.
Some commenters suggested that the
text of proposed § 1501.7(a) was
inconsistent with sections 107(a)(2) and
111(9) of NEPA, which address the role
of and define ‘‘lead agency.’’ CEQ
disagrees that the language in paragraph
(a) is inconsistent. CEQ considers the
longstanding language in paragraphs
(a)(1) and (a)(2) to describe the
situations where there are more than
one Federal agency participating in the
environmental review process for
purposes of identifying the lead agency
and therefore retains this text in the
final rule.
Third, CEQ proposed to revise
paragraph (b) regarding joint lead
agencies for consistency with section
107(a)(1)(B) of NEPA. 42 U.S.C.
4336a(a)(1)(B). CEQ proposed to clarify
that Federal, State, Tribal, or local
agencies may serve as a joint lead
agency upon invitation from the Federal
lead agency and acceptance by the
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invited agency, consistent with
paragraph (c). CEQ proposed to retain
Federal agencies in the list of potential
joint lead agencies because, consistent
with current practice, there are
circumstances in which having another
Federal agency serving as a joint lead
agency will enhance efficiency. CEQ
noted in the proposed rule that it does
not read the text in section 107(a)(1)(B)
of NEPA, 42 U.S.C. 4336a(a)(1)(B), as
precluding this approach; rather,
Congress specified that State, Tribal,
and local agencies may serve as joint
lead agencies because they are ineligible
to serve as the lead agency. CEQ also
proposed to add a sentence at the end
of paragraph (b) to require joint lead
agencies to fulfill the role of a lead
agency, consistent with the last sentence
of section 107(a)(1)(B) of NEPA. 42
U.S.C. 4336a(a)(1)(B).
One commenter asserted CEQ’s
proposal was inconsistent with section
107(a)(1)(B) of NEPA. 42 U.S.C.
4336a(a)(1)(B). Other commenters
expressed concerns or asked questions
about how this might work in practice
and how agencies might manage and
share responsibilities. One commenter
asserted that the proposal for lead
agencies to jointly fulfill the role of a
lead agency may be complicated and
difficult to implement and requested
CEQ maintain the existing regulatory
approach for providing for joint lead
agencies generally.
In the final rule, CEQ revises
paragraph (b) as proposed, but makes
agency singular in the first sentence for
consistency with the rest of the
paragraph. In general, CEQ anticipates
that there will only be one joint lead
agency but does not intend the
regulations to be so restrictive. While
section 107(a)(1)(B) does not specifically
refer to Federal agencies, it makes clear
that there is one lead agency when there
is more than one Federal agency, but it
is silent as to what role the other
Federal agency or agencies will fulfill.
42 U.S.C. 4336a(a)(1)(B). Therefore, CEQ
is clarifying in the final rule that other
Federal agencies may serve as joint lead
agencies or cooperating agencies. With
respect to the questions about how
agencies manage and share
responsibilities, CEQ notes that the
provision for joint lead agencies has
been in the regulations since 1978, and
agencies have a great deal of experience
in implementing these provisions.
Sometimes agencies will engage in an
MOU or otherwise outline their
respective roles and responsibilities.
CEQ encourages this as a best practice
to facilitate an efficient process, and
agencies should consider using the
letter or memorandum required by
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§ 1501.7(c) to set out their roles and
responsibilities.
Fourth, CEQ proposed to revise
paragraph (c) for consistency with
section 107(a)(1) of NEPA to clarify that
the participating Federal agencies must
determine which agency will be the lead
agency and any joint lead agencies, and
that the lead agency determines any
cooperating agencies. 42 U.S.C.
4336a(a)(1). CEQ also proposed this
change for consistency with the text in
§ 1506.2(c) on joint EISs.
One commenter interpreted paragraph
(c) to mean that the factors listed in
paragraphs (c)(1) through (c)(5) apply
only if there is disagreement among
participating agencies on which agency
should be the lead agency and asserted
this interpretation is inconsistent with
section 107(a)(1)(A) of NEPA. 42 U.S.C.
4336a(a)(1)(A). CEQ did not intend this
interpretation. Therefore, in the final
rule, for clarity and greater consistency
with the statute, CEQ adds the clause
‘‘considering the factors in paragraphs
(c)(1) through (c)(5)’’ to the first
sentence in paragraph (c) to clarify that
participating Federal agencies should
consider these factors in determining
which agency should serve as the lead
agency.
One commenter suggested that
proposed paragraphs (b) and (c) might
create confusion between agencies and
a project proponent regarding which
agency is ultimately the lead agency for
the NEPA review, is responsible for
meeting timeframes and deadlines, and
serves as the contact for the project
proponent.
In the final rule, CEQ revises the first
sentence of paragraph (c) for additional
clarity by moving the reference to joint
lead agencies to the end. Consistent
with this provision, participating
Federal agencies will first determine
which agency will serve as the lead
agency. Then, the lead agency will
determine which agencies will serve as
joint lead or cooperating agencies.
While agencies are in the best position
to communicate with applicants about
responsibilities and appropriate points
of contact, the language in paragraphs
(b) and (c) make clear that the lead
agency is ultimately responsible, though
it may share responsibilities with a joint
lead agency if the participating agencies
designate one. Further, § 1501.10(a) sets
forth the provisions on setting deadlines
and schedules and § 1500.5(g) indicates
that all agencies are responsible for
meeting deadlines.
Fifth, in paragraph (d), CEQ proposed
to revise the text for consistency with
section 107(a)(4) of NEPA, which allows
any Federal, State, Tribal, or local
agency or a person that is substantially
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affected by a lack of lead agency
designation to submit a request for
designation to a participating Federal
agency. 42 U.S.C. 4336a(a)(4). CEQ also
proposed to add a requirement for the
receiving agency to provide a copy of
such a request to CEQ consistent with
the statute. Finally, CEQ proposed to
make a non-substantive change to
replace the phrase ‘‘private person’’
with the word ‘‘individual’’ for
consistency with this term’s use in other
sections of the regulations.
Sixth, in paragraph (e), which
addresses what happens if Federal
agencies are unable to agree which
agency will serve as the lead agency,
CEQ proposed to revise the text for
consistency with section 107(a)(5) of
NEPA, clarify that the 45 days is
calculated from the date of the written
request to the senior agency officials as
set forth in § 1501.7(d), and replace
‘‘persons’’ with ‘‘individuals’’ for
consistency with the rest of regulations.
42 U.S.C. 4336a(a)(5).
A commenter stated that the change of
‘‘person’’ to ‘‘individual’’ is inconsistent
with sections 107(a)(4) and (a)(5)(A) of
NEPA. 42 U.S.C. 4336a(a)(4),
4336a(a)(5)(A). While CEQ does not
view this as a substantive change, in the
final rule, CEQ revises references to
‘‘individual’’ or ‘‘private person’’ to
‘‘person’’ throughout the regulations for
consistency with the recent
amendments to NEPA, including in
§ 1501.7(d) and (e), and to avoid using
the word ‘‘person’’ and the word
‘‘individual’’ in different sections of the
regulations where the same meaning is
intended. Otherwise, CEQ makes the
changes to paragraph (d) and (e) as
proposed.
Seventh, in paragraph (f), CEQ
proposed to revise the text for
consistency with section 107(a)(5)(C)
and (a)(5)(D) of NEPA, to change
‘‘within 20 days’’ to ‘‘no later than 20
days’’ in the first sentence, and ‘‘20
days’’ to ‘‘40 days’’ and ‘‘determine’’ to
‘‘designate’’ in the second sentence. 42
U.S.C. 4336a(a)(5)(C)–(D). CEQ did not
receive any comments to this specific
proposal and revises paragraph (f) as
proposed in the final rule except that
the final rule strikes ‘‘and all responses
to it’’ to clarify that the 40-day deadline
for CEQ to designate a lead agency runs
from the date of request. This change is
consistent with section 107(a)(5)(D)
which requires that CEQ designate the
lead agency ‘‘[n]ot later than 40 days
after the date of the submission of a
request.’’ 42 U.S.C. 4336a(a)(5)(D).
Eighth, CEQ proposed minor edits to
paragraph (g), which addresses joint
environmental documents, including
EISs, RODs, EAs, and FONSIs. While
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section 107(b) of NEPA addresses joint
EISs, EAs, and FONSIs, which are
defined collectively as an
‘‘environmental document’’ in section
111(5) of NEPA, the statute does not
explicitly address joint RODs. 42 U.S.C.
4336a(b); 4336e(5). Because joint RODs
can in some circumstances be
inefficient, CEQ proposed to revise
§ 1501.7(g) to add a caveat that agencies
must issue joint RODs except where it
is ‘‘inappropriate or inefficient’’ to do
so, such as when an agency has a
separate statutory directive, or it would
take significantly longer to issue a joint
ROD than separate ones. Additionally,
for consistency with § 1501.5, CEQ
proposed to add that agencies can
jointly determine to prepare an EIS if a
FONSI is inappropriate.
Commenters generally supported
CEQ’s proposal. Some commenters
recommended CEQ expand the
inappropriate or inefficient exception to
EISs, EAs, and FONSIs. Another
comment suggested the regulations
require agencies to document their
rationale for not preparing a joint
document.
CEQ finalizes § 1501.7(g) as proposed
with minor, non-substantive clarifying
edits. CEQ is not applying the
inappropriate or inefficient exception to
EISs, EAs, and FONSIs because section
107(b) of NEPA directs agencies to
prepare joint EISs, EAs, and FONSIs ‘‘to
the extent practicable.’’ 42 U.S.C.
4336a(b). With respect to RODs, CEQ
includes the inappropriate or inefficient
exception in the final rule text in
recognition that, in some cases,
requiring a joint ROD could
inadvertently slow the NEPA process
down, and the exclusion of RODs from
section 107(b) of NEPA makes it
appropriate to apply a tailored standard
to joint RODs. See 42 U.S.C. 4336a(b).
For example, agencies may have
different procedures for issuing
authorizations under their applicable
legal authorities or may need to
consider different factors. However, in
other cases, a joint ROD could improve
efficiency by avoiding duplication of
effort or analysis. Agencies collaborating
on a NEPA document for a specific
action are in the best position to identify
when a joint ROD is not appropriate for
that particular action.
Lastly, in paragraph (h)(2), CEQ
proposed to add a clause to the
beginning of the paragraph, consistent
with section 107(a)(2)(C) of NEPA, to
require the lead agency to give
consideration to a cooperating agency’s
analyses and proposals. 42 U.S.C.
4336a(a)(2)(C). CEQ proposed to move
the qualifier clause—to the extent
practicable—to precede the existing
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requirement to use the environmental
analysis and information provided by
cooperating agencies. CEQ proposed
this move to clarify that this qualifier
only modifies the second clause. CEQ
also proposed to change ‘‘proposals’’ to
‘‘information’’ to make the text
consistent with § 1501.8(b)(3) and
because the use of ‘‘proposal’’ here was
inconsistent with the definition of
‘‘proposal’’ provided in § 1508.1(ff).
Finally, because the reference to
jurisdiction by law or special expertise
was unnecessarily redundant given that
the definition of ‘‘cooperating agency’’
in § 1508.1(g) incorporates those
phrases, CEQ proposed to remove them
from the sentence.
One commenter asserted that
proposed § 1501.7(h)(2) unnecessarily
conflicts with section 107(a)(2)(C) of
NEPA, 42 U.S.C. 4336a(a)(2)(C), and is
inconsistent with proposed
§§ 1501.8(b)(3), 1508.1(e), and
1508.1(dd). Another commenter
opposed the changes to paragraph (h)(2)
and requested CEQ retain the existing
language. The commenter asserted that
the existing text provides a clear
statement that agencies should use
information and analyses provided by
cooperating agencies to the maximum
extent practicable and that the proposed
changes remove this clarity. As a result,
the commenter opined that for
cooperating agencies, it will be unclear
on what qualifies as an analysis or
proposal for consideration and what
qualifies as information.
In the final rule, CEQ makes the
changes as proposed but retains
‘‘proposal’’ in the second clause
because, upon further consideration,
CEQ has determined removing
‘‘proposal’’ could introduce unnecessary
confusion and potential delay,
particularly because both the 1978
regulations and the 2020 regulations
treated proposals in the same manner as
environmental analysis for purposes of
this provision, and agencies have not
raised concerns that the inclusion of
proposals creates challenges for lead
agencies. CEQ retains the qualifier ‘‘to
the maximum extent practicable,’’
which CEQ views as striking the right
balance between ensuring that the lead
agency uses the environmental analysis,
proposal, and information provided by
cooperating agencies and providing the
lead agency with flexibility in
determining the content of a document.
CEQ disagrees that this provision is in
conflict with § 1501.8(b)(3), which
merely states the requirement for
cooperating agencies to assist with
developing information and analyses for
NEPA documents; it does not address
the lead agency’s role in considering or
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using that content. CEQ similarly does
not see a conflict with the definitions of
‘‘cooperating agency’’ and ‘‘proposal’’
and the commenter who asserted that a
conflict exists did not explain the
conflict. Finally, CEQ disagrees that this
provision conflicts with section
107(a)(2)(C) of NEPA; the provision
incorporates the text of the statute and
goes beyond it to require lead agencies
to use the information in their
documents to the maximum extent
practicable. 42 U.S.C. 4336a(a)(2)(C).
Other commenters requested CEQ add
a requirement for lead agencies to
document how and to what extent they
have considered the studies, analyses,
and other information provided by
cooperating agencies. CEQ declines to
add this requirement as unnecessary
and burdensome. In most cases, lead
and cooperating agencies can address
these issues informally and disclosure
of this informal process is unnecessary
for the decision maker to make an
informed decision and documenting
them would consume agency resources
and could lead to a more formalized and
less collaborative process between the
agencies.
CEQ did not propose edits to
paragraph (h)(4) requiring the lead
agency to determine the purpose and
need, and alternatives in consultation
with any cooperating agency. One
commenter recommended the final rule
add ‘‘with ultimate authority to finalize
the purpose and need and alternatives
resting with the lead agency’’ to the end
of this paragraph. CEQ declines to make
this change. While the lead agency has
ultimate responsibility, in order for
documents to address the decisions of
all agencies with jurisdiction by law and
therefore result in an efficient review
and decision-making process, the
cooperating agency must have a
consultative role. CEQ encourages
agencies to collaborate early on purpose
and need and alternatives to resolve any
disputes early in the process and ensure
the document will meet the needs of all
agencies relying on the documents for
their actions.
As discussed further in section II.C.8,
CEQ proposed to move the requirements
for schedules and milestones in
paragraphs (i) and (j) of 40 CFR 1501.7
(2020) to § 1501.10(c) in order to
consolidate provisions related to
deadlines, schedules, and milestones in
one section. CEQ makes this change in
the final rule as discussed further in
section II.C.9.
7. Cooperating Agencies (§ 1501.8)
CEQ proposed an addition to
paragraph (a) of § 1501.8 to clarify the
meaning of the phrase ‘‘special
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35481
expertise,’’ which is one of the criteria
that qualifies an agency to serve as a
cooperating agency. Among other
things, paragraph (a) provides that, at
the request of a lead agency, an agency
with special expertise may elect to serve
as a cooperating agency. CEQ proposed
to clarify in paragraph (a) that special
expertise may include Indigenous
Knowledge.
While a few commenters opposed the
inclusion of Indigenous Knowledge as a
form of special expertise, many
commenters expressed support. Having
considered the comments, CEQ
continues to view the inclusion of
Indigenous Knowledge as a form of
special expertise as appropriate and,
therefore, finalizes the change to
§ 1501.8(a) as proposed except that CEQ
removes the cross reference to
§ 1507.3(e) because this provision does
not address the appeals procedures for
cooperating agencies. This addition of
Indigenous Knowledge as a form of
special expertise helps ensure that
Federal agencies respect and benefit
from the unique knowledge that Tribal
governments bring to the environmental
review process.
CEQ invited comment on whether it
should include a definition of
‘‘Indigenous Knowledge’’ in the
regulations. CEQ received a range of
comments on this question. Some
commenters opposed a definition, and
several commenters suggested a range of
diverse definitions. Other commenters
recommended CEQ engage in Tribal
consultation on the definition, CEQ held
two Tribal consultations on the rule but
a consensus view on a definition did not
emerge from those consultations. CEQ
has determined not to define
‘‘Indigenous Knowledge’’ in this
rulemaking. The comments CEQ
received did not provide an adequate
basis for CEQ to determine that
providing a definition in the regulations
would be workable across contexts and
Tribal Nations. CEQ, therefore,
considers it appropriate for agencies to
have flexibility to approach Indigenous
Knowledge in a fashion that makes
sense for their programs and the Tribal
Nations with which they work.
Agencies’ implementation of this
provision may be informed by the
existing approaches that some agencies
have developed to Indigenous
Knowledge 73 and the Guidance for
73 See, e.g., U.S. Dep’t of the Interior, 301
Departmental Manual 7, Departmental
Responsibilities for Consideration and Inclusion of
Indigenous Knowledge in Departmental Actions
and Scientific Research (Dec. 5, 2023), https://
www.doi.gov/document-library/departmental-
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Federal Departments and Agencies on
Indigenous Knowledge that CEQ and the
Office of Science and Technology Policy
issued on November 30, 2022.74 CEQ
will consider whether additional
guidance specific to the environmental
review context or a regulatory definition
is needed in the future.
A couple of commenters requested
CEQ clarify what is meant by
‘‘jurisdiction by law’’ in § 1501.8(a).
CEQ declines to add additional language
to explain this phrase, which has been
in the regulations since 1978 and
generally has been construed to mean
when an agency has a role in an action
that is conferred by law. CEQ has not
heard concern from agencies that the
phrase is unclear or that a lack of
definition is creating practical problems.
Therefore, establishing a definition is
unnecessary and could unsettle existing
agency practice that has successfully
implemented this provision.
Another commenter requested CEQ
revise paragraph (a) to require the lead
agency to grant cooperating agency
status if a State or local agency has
jurisdiction by law or special expertise
over a project that could impact the
local agency’s interest. Other
commenters requested that CEQ compel
lead agencies to invite certain parties as
a cooperating agency, such as
substantially affected Tribal agencies.
CEQ declines to make it a requirement
for the lead agency to invite or grant
cooperating agency status to a State,
Tribal, or local agency. Section 107(a)(3)
of NEPA permits but does not require
lead agencies to designate Federal,
State, Tribal, or local agencies that have
jurisdiction by law or special expertise
as cooperating agencies. See 42 U.S.C.
4336a(a)(3). Because agency authorities
and obligations can vary dramatically,
CEQ considers it important to maintain
flexibility for the lead agency to
determine on a case-by-case basis
whether a State, Tribal, or local agency
should serve as a cooperating agency.
One commenter requested that CEQ
extend to potential non-Federal
cooperating agencies the right to appeal
to CEQ when a lead Federal agency
denies them cooperating agency status.
CEQ declines to make this change in the
final rule because lead agencies are in
the best position to make a case-by-case
determination of whether to invite nonFederal agencies to be cooperating
agencies. Such an appeal process could
manual/301-dm-7-departmental-responsibilitiesconsideration-and.
74 See Office of Science and Technology Policy
and CEQ, Guidance for Federal Departments and
Agencies on Indigenous Knowledge (Nov. 30, 2022),
https://www.whitehouse.gov/wp-content/uploads/
2022/12/OSTP-CEQ-IK-Guidance.pdf.
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also unduly burden CEQ and its limited
resources and delay the environmental
review process.
In paragraph (b)(6) regarding
consultation with the lead agency on
developing schedules, CEQ adds ‘‘and
updating’’ after ‘‘developing’’ for
consistency with § 1501.10(a) that
provides for both the development and
updates to schedules. In paragraph
(b)(7), CEQ proposed to require
cooperating agencies to meet the lead
agency’s schedule for providing
comments, but strike the second clause
requiring cooperating agencies to limit
their comments to those for which they
have jurisdiction by law or special
expertise with respect to any
environmental issue. CEQ proposed this
deletion to align this paragraph with
section 107(a)(3) of NEPA, which
provides that a cooperating agency may
submit comments to the lead agency no
later than a date specified in the lead
agency’s schedule. See 42 U.S.C.
4336a(a)(3).
Some commenters recommended CEQ
retain this clause to avoid unnecessary
delays and avoid disagreements
amongst lead and cooperating agencies.
CEQ disagrees that this clause will
necessarily avoid disagreements
amongst lead and cooperating agencies
because agencies may disagree on
whether an agency’s comments fall
within its jurisdiction or special
expertise. Imposing this limitation on
the participation of cooperating agencies
may also undermine the kind of
collaborative engagement between lead
agencies and cooperating agencies that
enhances the efficiency and quality of
environmental reviews. CEQ is also
concerned that retaining the clause
could have unintended consequences
that could delay decision making by
cooperating agencies with jurisdiction
by law. For example, if a cooperating
agency considers a document to be
legally insufficient with respect to a
particular issue, this could lead the
cooperating agency to develop its own,
separate NEPA document, resulting in a
delay in the cooperating agency’s action
and potential legal risk to the lead
agency with a different analysis. CEQ
encourages cooperating agencies to
identify and seek to resolve issues as
early in the process as possible.
8. Public and Governmental Engagement
(§ 1501.9)
CEQ proposed to address public and
governmental engagement in a revised
§ 1501.9 by moving the provisions of 40
CFR 1506.6 (2020), ‘‘Public
involvement,’’ into proposed § 1501.9
and updating them as described in this
section, and moving the provisions of 40
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CFR 1501.9 (2020) specific to the EIS
scoping process to § 1502.4. CEQ
proposed these updates to better
promote agency flexibility to tailor
engagement to their specific programs
and actions, maintaining the
requirements to engage the public and
affected parties in the NEPA process,
and thereby fostering improved public
and governmental engagement. CEQ
proposed the revisions to § 1501.9 to
emphasize the importance of creating an
accessible and transparent NEPA
process. CEQ also proposed many of
these changes in response to feedback
on the Phase 1 proposed rule, the 2020
proposed rule, and input received from
stakeholders and agencies during
development of this proposed rule.
Much of that feedback requested
increased opportunities for public
engagement and increased transparency
about agency decision making, along
with general requests that CEQ elevate
the importance of public engagement in
the NEPA process. Finally, CEQ
proposed to move general requirements
related to public engagement to part
1501 to emphasize that public
engagement is important to multiple
components of the NEPA process and
agency planning, while moving other
provisions related to scoping for EISs to
§ 1502.4.
First, CEQ proposed to move the
provisions of 40 CFR 1501.9 (2020) on
scoping for EISs—paragraphs (a), (b), (c),
(d), (d)(1) through (8), (f), and (f)(1)
through (5)—to proposed § 1502.4,
‘‘Scoping.’’ As discussed in sections
II.C.2 and II.C.10 CEQ proposed to move
the provisions in 40 CFR 1502.4 (2020)
on ‘‘Major Federal actions requiring the
preparation of environmental impact
statements’’ to §§ 1501.3 and 1501.11.
Also, as discussed in section II.C.2, CEQ
proposed to move the remaining text of
40 CFR 1501.9(e) and (e)(1) through (3)
(2020) on the determination of scope to
§ 1501.3 because determining the scope
of actions applies to all levels of NEPA
review.
Many commenters were supportive of
CEQ’s proposed approach. Commenters
expressed support for the restoration of
provisions related to early review and
coordination and the proposed revisions
to §§ 1501.9 and 1502.4 to reinforce the
importance of early public engagement
designed to meet the needs of the
community. Supportive commenters
characterized CEQ’s proposed changes
as being more in line with the statute as
well as best practice by emphasizing the
importance of initiating public outreach
and planning as early as possible.
Commenters also pointed to early
engagement and opportunities for
comment as trademarks of an effective
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NEPA process that can help prevent
unexpected problems and delays by
helping agencies identify potential
roadblocks early, design effective
solutions when proposals and
alternatives are still being developed,
and build trust with communities. Some
commenters opposed the outreach and
engagement requirements in proposed
§ 1501.9, asserting that they were too
open ended and would add burden and
time to the process.
In this final rule, CEQ is reorganizing
these sections as proposed. Public
engagement is a foundational element of
the NEPA process and is appropriately
addressed in part 1501. Agencies have
decades of experience designing
effective outreach strategies that are
tailored to the specifics of their
programs and actions. Technology,
when used appropriately, can further
improve these strategies, and this final
rule will provide agencies with the
flexibility and encouragement to more
effectively engage with interested or
affected governments, communities, and
people.
Second, CEQ proposed to retitle
§ 1501.9 to ‘‘Public and governmental
engagement’’ and accordingly update
references to ‘‘public involvement’’
within this section and throughout the
CEQ regulations to ‘‘public
engagement.’’ CEQ proposed this change
to better reflect how Federal agencies
should interact with the public and
interested or affected parties, stating
that the word ‘‘engagement’’ reflects a
process that is more interactive and
collaborative compared to simply
including or notifying the public of an
action. Engagement is also a common
term for Federal agencies with
experience developing public
engagement strategies or that work with
public engagement specialists. CEQ
proposed to add ‘‘governmental’’ to the
title to better reflect the description of
the provisions included in the section,
which relate to both public and
governmental entities.
Commenters were generally
supportive of this proposed change
because it implies a process that is more
interactive and collaborative instead of
just notifying the public of an action.
CEQ is revising the title of § 1501.9 as
proposed.
Third, CEQ proposed to add proposed
paragraphs (a) and (b) to articulate the
purposes of public and governmental
engagement and to identify the
responsibility of agencies to determine
the appropriate methods of public and
governmental engagement and conduct
scoping consistent with § 1502.4 for
EISs. CEQ proposed to use the phrase
‘‘meaningful’’ engagement in this
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particular paragraph to better describe
the purpose of this process because
public and governmental engagement
should not be a mere check-the-box
exercise, and agencies should conduct
engagement with appropriate planning
and active dialogue or other interaction
with stakeholders in which all parties
can contribute.
Many commenters expressed support
for CEQ’s use of ‘‘meaningful
engagement.’’ Commenters who disliked
the descriptor ‘‘meaningful’’ stated that
the word is too subjective, open to
differing interpretations, and likely to
cause unnecessary controversy and
delay. Other commenters suggested the
description of ‘‘meaningful’’ was not
strong or specific enough, as proposed,
to result in the desired outcome and
recommended CEQ define meaningful
engagement.
In the final rule, CEQ combines
purpose and responsibility, which it
had proposed to address in separate
paragraphs, in § 1501.9(a) because these
concepts are linked, and upon further
consideration, CEQ considers
addressing them together to reduce
redundancy in proposed paragraphs (a)
and (b), and enhance the clarity of the
final rule. Additionally, the second
sentence of proposed paragraph (b)
addresses the role of engagement in
determining the scope of a NEPA
review; as discussed further in this
section, CEQ revises § 1501.9(b) to
address this topic. The first two
sentences in § 1501.9(a) describe the
purposes of public engagement and
governmental engagement. CEQ is
retaining ‘‘meaningful engagement’’ as
proposed to better describe the overall
purpose of public engagement. Public
engagement should not be a simple
check-the-box exercise, and agencies
should conduct engagement with
appropriate planning and active
dialogue or other interaction with
interested parties in which all can
contribute. Federal agencies have
flexibility to determine what methods
are appropriate to achieve a
collaborative and inclusive process that
meaningfully and effectively engages
communities affected by their proposed
actions. As part of meaningful
engagement, CEQ encourages agencies
to engage with all potentially affected
communities including communities
with environmental justice concerns,
consistent with § 1500.2(d).
In the final rule, CEQ adds a new
third sentence to paragraph (a) to clarify
that the purpose of § 1501.9 is to set
forth agencies’ responsibilities and best
practices for such engagement. Finally,
CEQ moves the first sentence of
proposed paragraph (b) to be the last
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sentence of paragraph (a) requiring
agencies to determine the appropriate
methods of engagement for their
proposed actions. Agencies are best
situated to carry out this responsibility,
because agencies understand their
programs and authorities, and the
communities that are interested in and
affected by them.
CEQ revises § 1501.9(b) in the final
rule, different from the proposal, to
clarify the role of public and
governmental engagement in
determining the scope of a NEPA
analysis. As discussed in section II.C.2,
agencies must identify the scope of their
proposed action, consistent with the
definition of ‘‘major Federal action,’’
which in turn informs the level of NEPA
review, and what alternatives and
effects an agency must consider; public
input has long informed this process.
Therefore, CEQ has added a sentence to
§ 1501.9(b) to require agencies to use
public and governmental engagement to
inform the level of review for and scope
of analysis of a proposed action
consistent with § 1501.3. CEQ qualifies
this provision ‘‘as appropriate’’ to
account for the variety of ways that
agencies should engage with the public
and because not all actions will
necessitate public engagement. For
example, agencies must engage with the
public when developing new CEs, but
generally do not do so when applying
CEs to their proposed actions.
CEQ adds the second sentence of
proposed paragraph (b) in the final rule,
which cross references to scoping for
EISs as set forth in § 1502.4. Finally,
CEQ adds a new sentence to § 1501.9(b)
encouraging agencies to apply that
scoping provision to EAs as appropriate.
This addition is consistent with
§ 1501.5(j), which encourages agencies
to apply § 1502.4 to EAs as appropriate
to improve efficiency and effectiveness
and is also responsive to public
comments requesting more clarity on
what is required for an EIS versus an EA
as well as comments requesting
increased opportunities for involvement
on EAs. Agencies have experience
successfully using the scoping process
for EAs, and the regulatory text clarifies
that agencies may continue to use the
scoping process to inform the level of
review, or find it helpful when they
intend to rely on mitigation in an EA to
reduce effects below significance and
reach a FONSI rather than preparing an
EIS.
Fourth, in the proposed rule, § 1501.9
had separate paragraphs addressing
outreach (paragraph (c)) and notification
(paragraph (d)) with the former
recommended procedures and the latter
required. Specifically, proposed
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paragraph (c)(1) recommended that
agencies invite likely affected agencies
and governments, and proposed
paragraph (c)(2) recommended that
agencies conduct early engagement with
likely affected or interested members of
the public. CEQ modeled these
provisions on the prior approaches in 40
CFR 1501.7(a)(1) (2019) and 40 CFR
1501.9(b) (2020) requiring the lead
agency to invite early participation of
likely affected parties. Proposed
paragraph (c)(3) would provide
flexibility to agencies to tailor
engagement strategies, considering the
scope, scale, and complexity of the
proposed action and alternatives, the
degree of public interest, and other
relevant factors. CEQ proposed to move
from 40 CFR 1506.6(c) (2020) to
§ 1501.9(c)(3) the requirement that
agencies consider the ability of affected
parties to access electronic media when
selecting the appropriate methods of
notification. CEQ also proposed to add
a clause to the end of paragraph (c)(3)
to require agencies to consider the
primary language of affected persons
when determining the appropriate
notification methods to use.
At least one commenter noted that the
use of ‘‘should’’ in proposed paragraph
(c)(1) was inconsistent with proposed
§ 1501.7(h)(1) requiring lead agencies to
invite the participation of cooperating
agencies. Other commenters asked that
the language on outreach be stronger,
recommending that CEQ change
‘‘should’’ to ‘‘shall’’ in proposed
paragraph (c) and ‘‘consider’’ to
‘‘ensure’’ in proposed paragraph (c)(3).
In the final rule, CEQ combines
proposed paragraphs (c) and (d) in
§ 1501.9(c) to address outreach and
notification. CEQ revised the
introductory text from ‘‘lead agency’’ to
‘‘agencies’’ for consistency with the use
of ‘‘agencies’’ in the rest of § 1501.9.
This change does not mean that each
agency involved in an EIS or EA needs
to conduct these responsibilities
independently or that the lead agency is
not ultimately responsible given its role
in supervising the preparation of an EIS
or EA consistent with § 1501.7(a), but
rather that there is flexibility in which
agency conducts these responsibilities
under the lead agency’s supervision.
CEQ also revises the introductory text
from agencies ‘‘should’’ to ‘‘shall’’ for
consistency with the both the 2020 and
1978 regulations and to resolve the
inconsistency between § 1501.7(h)(1),
which requires the lead agency to invite
cooperating agencies at the earliest
practicable time and proposed
§ 1501.9(c)(1) encouraging the lead
agency to invite the participation of
likely affected agencies and
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governments, including cooperating
agencies, as early as practicable. CEQ
also is changing ‘‘should’’ to ‘‘shall’’
because using ‘‘should’’ would be
confusing and inaccurate to the extent
that it could be read to suggest that
some requirements are optional. CEQ
adds ‘‘as appropriate’’ to qualify the
requirement in paragraph (c)(2) to
conduct early engagement to make clear
that when the regulations require or
encourage agencies to conduct
engagement, they should do so early in
the process. These changes from the
proposal do not establish new
obligations for agencies, but rather,
clarify which provisions are obligatory
in light of the requirements of the NEPA
statute and other provisions in the
regulations.
CEQ also adds ‘‘any’’ in paragraph
(c)(1) to acknowledge that for some
actions, there will not be any likely
affected agencies or governments. CEQ
finalizes paragraph (c)(3) as proposed
with two changes, which requires
agencies to consider the appropriate
methods of outreach and notification,
including the ability of affected persons
and agencies to access electronic media
and the primary language of affected
persons. In the final rule, CEQ includes
‘‘and persons’’ after entities consistent
with the phrasing in paragraph (c)(5)(i)
and makes language plural for
consistency with ‘‘persons.’’
Additionally, CEQ notes that agencies
will also need to consider other
statutory requirements, such as those
under the Rehabilitation Act, when
selecting appropriate methods of
outreach and notification.
Fifth, CEQ proposed to move the
introductory clause of 40 CFR 1506.6
(2020), ‘‘Agencies shall’’ to proposed
paragraph (d) and add the paragraph
heading ‘‘Notification.’’ As discussed
earlier in this section, CEQ is combining
proposed paragraph (c) and (d) in the
final rule. CEQ proposed in § 1501.9 and
throughout the proposed regulations to
replace the word ‘‘notice’’ with
‘‘notification,’’ except where ‘‘notice’’ is
used in reference to a Federal Register
notice. CEQ is making this change in the
final rule to clearly differentiate
between those requirements to publish
a notice in the Federal Register and
other requirements to provide
notification of an activity, which may
include a notice in the Federal Register
or use of other mechanisms.
Sixth, in the proposed rule, CEQ
proposed a new paragraph (d)(1) to
require agencies to publish notification
of proposed actions they are analyzing
through an EIS. CEQ proposed this
requirement in response to feedback
from multiple stakeholders and
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members of the public requesting more
transparency about agency proposed
actions. CEQ finalizes the proposed
provision in § 1501.9(c)(4) with an
additional clause at the end of its
proposed language to reference that this
requirement can be met through a NOI
consistent with § 1502.4. CEQ adds this
language in response to at least one
comment expressing confusion on this
point.
Agencies may publish notification
through websites, email notifications, or
other mechanisms such as the
Permitting Dashboard,75 so long as the
notification method or methods are
designed to adequately inform the
persons and agencies who may be
interested or affected, consistent with
the definition of ‘‘publish’’ in
§ 1508.1(gg). An NOI in the Federal
Register, consistent with § 1502.4(e),
can fulfill the notification requirement,
but agencies also may elect to use
additional notification methods.
Seventh, CEQ proposed to move 40
CFR 1506.6(b) (2020), including its
subparagraphs, (b)(1) through (b)(3) and
(b)(3)(i) through (b)(3)(x), to proposed
§ 1501.9(d)(2) (including (d)(2)(i)
through (d)(2)(iii) and (d)(2)(iii)(A)
through (d)(2)(iii)(I)), and proposed to
make minor revisions to improve
readability and consistency with the rest
of § 1501.9. CEQ is finalizing these
changes with some additional edits as
described in the following paragraphs.
In the final rule, proposed paragraph
(d)(2) becomes § 1501.9(c)(5) requiring
agencies to provide public notification
of NEPA-related hearings, public
meetings, or other opportunities for
public engagement, as well as the
availability of environmental
documents. At least one commenter
noted that CEQ’s proposed addition of
the qualifier ‘‘as appropriate’’ before the
requirement to provide public
notification of the availability of
documents could be read to give
agencies discretion to provide such
notice. This was not CEQ’s intent as the
regulations have always required
agencies to provide such notice so CEQ
does not include this qualifier in the
final rule.
In the proposed rule, paragraphs
(d)(2)(i) through (d)(2)(iii) expanded on
these general public notification
requirements in paragraph (d)(2).
Specifically, CEQ proposed to move 40
CFR 1506.6(b)(1) and (b)(2) (2020) to
proposed paragraphs (d)(2)(i) and
(d)(2)(ii), respectively, and change
75 See Fed. Permitting Improvement Steering
Council, Permitting Dashboard for Federal
Infrastructure Projects, https://www.permits.
performance.gov/.
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‘‘organizations’’ to ‘‘entities and
persons’’ in paragraph (d)(2)(ii). In the
final rule, CEQ strikes the introductory
clause, ‘‘In all cases,’’ as superfluous,
and consolidates into § 1501.9(c)(5)(i)
the requirement to notify both those
entities and persons who have requested
notification on an individual action as
well as those who have requested
regular notification, such as actions in a
geographic region or a category of
actions an agency typically takes.
Paragraph (c)(5)(ii), which was proposed
paragraph (d)(2)(ii), only addresses
when notification is required in the
Federal Register—when an action has
effects of national concerns. CEQ also
changes ‘‘notice’’ to ‘‘notification’’ in
§ 1501.9(c)(5)(ii) for consistency with
the rest of § 1501.9 and adds the word
‘‘also’’ to make clear that this
notification is in addition to the
notification required by paragraph
(c)(5)(i).
Eighth, CEQ proposed to move 40
CFR 1506.6(b)(3) (2020) to proposed
paragraph (d)(2)(iii), which addressed
notification for actions for which the
effects are primarily of local concern.
CEQ proposed to change ‘‘notice may
include’’ to ‘‘notification may include
distribution to or through’’ followed by
a list of mechanisms for notification.
CEQ makes this change as proposed in
§ 1501.9(c)(5)(iii) the final rule.
Ninth, CEQ proposed to move 40 CFR
1506.6(b)(3)(i) and (b)(3)(iii) through
(b)(3)(x) (2020) to proposed
§ 1501.9(d)(2)(iii)(A) through
(d)(2)(iii)(I), respectively. CEQ proposed
to combine the provisions from 40 CFR
1506.6(b)(3)(i) and (ii) (2020) on notice
to State, Tribal, and local governments
and agencies in proposed
§ 1501.9(d)(2)(iii)(A) to consolidate
similar provisions. CEQ also proposed
to remove the parenthetical in proposed
paragraph (d)(2)(iii)(C) and instead refer
to local newspapers ‘‘having general
circulation.’’ Lastly, CEQ proposed to
add a sentence in proposed paragraph
(d)(2)(iii)(I) that recommended agencies
establish email notification lists or
similar methods for the public to easily
request electronic notifications for
proposed actions. CEQ includes all of
these changes as proposed in the final
rule at § 1501.9(c)(5)(iii)(A) through (I).
Tenth, CEQ proposed to move the
requirements to make EISs available
under FOIA from 40 CFR 1506.6(f)
(2020) to § 1501.9(d)(3). CEQ received
comments on this provision requesting
that CEQ restore the language from the
1978 regulations because some members
of the public do not have easy access to
electronic information, it is important
for the public to have access to agency
comments, and that restoring the
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language would help restore consistency
in agency implementation of FOIA to
ensure transparency. CEQ considered
the comments and the changes between
the 1978 and 2020 rules and determined
the existing language addresses access
to underlying documents and
comments. However, CEQ determined it
is appropriate to restore language
related to fees as the 2020 rule removed
language that agencies should make
documents related to the development
of NEPA documents free of charge or no
more than the cost of duplication.
Therefore, in the final rule, CEQ adds a
clause to § 1501.9(c)(6) to require
agencies to make EISs and any
underlying documents available
consistent with FOIA and without
charge to the extent practicable.
Eleventh, CEQ proposed to move 40
CFR 1506.6(c) (2020) requiring agencies
to hold or sponsor public meetings or
hearings to § 1501.9(e), with
modification, including adding the
paragraph heading ‘‘Public meetings
and hearings.’’ Additionally, CEQ
proposed to make this provision
discretionary, and add that agencies
could do so in accordance with
‘‘regulatory’’ requirements as well as
statutory requirements or in accordance
with ‘‘applicable agency NEPA
procedures.’’ In the proposal, CEQ
revised the sentence requiring agencies
to consider the ability of affected
entities to access electronic media and
to instead encourage agencies to
‘‘consider the needs of affected
communities’’ when determining what
format to use for a public hearing or
public meeting because the best option
for the communities involved may vary.
Lastly, CEQ proposed to add a sentence
to clarify that when an agency accepts
comments for electronic or virtual
meetings, agencies must allow the
public to submit them electronically, via
regular mail, or another appropriate
method.
Commenters raised concerns about
the proposed change from ‘‘shall’’ to
‘‘may’’ suggesting that this would make
discretionary whether to hold public
hearings, meetings and other
opportunities for public engagement.
CEQ notes that this provision gives
agencies the discretion to determine the
appropriate methods of public
engagement except where required by
other statutory or regulatory
requirements, including agency NEPA
procedures. However, CEQ did not
intend to make a substantive change to
this provision, and therefore, in
§ 1501.9(d) of the final rule, retains the
use of ‘‘shall’’ consistent with 40 CFR
1506.6(c) (2020). In the third sentence
addressing format for hearings or
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35485
meetings, CEQ adds examples of formats
agencies might consider—whether an
in-person or virtual meeting or a formal
hearing or listening session is most
appropriate—and requires rather than
encourages agencies to consider the
needs of affected communities.
Commenters also requested that CEQ
restore the recommendation from the
1978 regulations that agencies make
draft EISs available at least 15 days in
advance when they are the subject of a
public meeting or hearing. CEQ agrees
that this recommendation is helpful to
facilitate a more effective public
engagement, and therefore includes a
new sentence at the end of § 1501.9(d)
consistent with the longstanding
recommendation from the 1978
regulations but broadening it to apply to
draft environmental documents.
Twelfth, CEQ proposed to move 40
CFR 1506.6(a) (2020) requiring agencies
to involve the public in preparing and
implementing their agency NEPA
procedures to proposed § 1501.9(f),
adding a paragraph heading ‘‘Agency
procedures’’ and changing the word
‘‘involve’’ to ‘‘engage’’ consistent with
CEQ’s proposed change of
‘‘involvement’’ to ‘‘engagement’’
through the regulations. CEQ finalizes
this provision in § 1501.9(e) as
proposed.
Finally, CEQ notes two provisions in
40 CFR 1506.6 (2020) that it did not
incorporate into § 1501.9. First, as
discussed in section II.I.3, CEQ
proposed to move the requirement for
agencies to explain in their NEPA
procedures where interested persons
can get information on EISs and the
NEPA process from 40 CFR 1506.6(e)
(2020) to § 1507.3(c)(11) since this is a
requirement for NEPA procedures, not
public engagement. And second, CEQ
proposed to delete 40 CFR 1506.6(d)
(2020) on soliciting information from
the public because that concept is
present in the purpose and language of
revised § 1501.9. In the final rule, CEQ
strikes these paragraphs from 40 CFR
1506.6 (2020).
9. Deadlines and Schedule for the NEPA
Process (§ 1501.10)
CEQ proposed to retitle § 1501.10 to
‘‘Deadlines and schedule for the NEPA
process’’ from ‘‘Time limits’’ and revise
the section to direct agencies to set
deadlines and schedules for NEPA
reviews to achieve efficient and
informed NEPA analyses consistent
with section 107 of NEPA, 42 U.S.C.
4336a. CEQ proposed these changes to
improve transparency and predictability
for stakeholders and the public
regarding NEPA reviews.
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Commenters were generally
supportive of CEQ’s proposed changes
to this provision in order to promote a
timely NEPA process. Some
commenters expressed support while
suggesting additional changes as
described further in this section and in
the Phase 2 Response to Comments.
Other commenters opposed the
inclusion of the deadlines, expressing
concerns that the deadlines would
result in rushed analyses, strain agency
and applicant resources, and have
negative impacts on public engagement.
CEQ addresses these concerns in the
context of specific provisions discussed
in this section.
CEQ revises the title of § 1501.10 and
reorganizes and revises the provision as
discussed further in this section. As
discussed in section II.J.1, CEQ removes
the references to ‘‘project sponsor’’ in
favor of the defined term ‘‘applicant,’’
which includes project sponsors,
throughout § 1501.10 and the rest of the
regulations.
In addition to those revisions, CEQ
proposed revisions to specific
provisions of § 1501.10. First, in
paragraph (a), CEQ proposed an edit to
the first sentence to emphasize that
while NEPA reviews should be efficient
and expeditious, they also must include
‘‘sound’’ analysis. CEQ also proposed to
direct agencies to set ‘‘deadlines and
schedules’’ appropriate to individual or
types of proposed actions to facilitate
meeting the deadlines proposed in
§ 1501.10(b). Consistent with section
107(a)(2)(D) of NEPA, CEQ also
proposed in this paragraph to require,
where applicable, the lead agency to
consult with and seek concurrence of
joint lead, cooperating, and
participating agencies and consult with
project sponsors and applicants when
establishing and updating schedules. 42
U.S.C. 4336a(a)(2)(D).
Some commenters supported the
proposed requirement for consultation
on schedules in paragraph (a), as well as
in paragraph (c). Multiple commenters
opposed the proposed requirements to
seek concurrence asserting that it would
result in delay and exceed the statutory
requirements of section 107(a)(2)(D) of
NEPA. 42 U.S.C. 4336a(a)(2)(D).
Multiple commenters requested
additional clarity on how agencies
would carry out consultation with the
applicant pursuant to paragraphs (a) and
(c). One commenter suggested making
reference to ‘‘use of reliable and
currently accurate data’’ as an example
of sound analysis in paragraph (a).
CEQ makes the revisions to paragraph
(a) as proposed with three additional
edits. First, CEQ excludes the reference
to project sponsors in favor of the
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defined term ‘‘applicant’’ in § 1508.1(c).
Second, CEQ adds ‘‘for the proposed
action’’ after ‘‘schedule’’ to clarify that
lead agencies establish schedules for
each action. Third, CEQ includes the
requirement to seek the concurrence of
any joint lead, cooperating, and
participating agencies, and in
consultation with any applicants,
adding the word ‘‘any’’ to clarify that
not all actions will necessarily have a
joint lead, cooperating, and
participating agencies or applicants.
CEQ adds the requirement to ‘‘seek
the concurrence’’ as proposed to
encourage up-front agreement on
schedules to facilitate achieving the
statutory deadlines. This provision
requires the lead agency to seek
concurrence, not obtain concurrence.
While lead agencies should strive to
reach agreement on schedules because
agreement on a schedule up front will
facilitate the agencies’ meeting a
deadline, lead agencies do not need to
obtain concurrence to proceed if the
agencies cannot reach an agreement on
the schedule. CEQ considers this
approach to strike the right balance
because requiring the lead agency to
obtain, rather than seek, concurrence
could unreasonably delay the process if
an agency will not concur and not
requiring any agreement would
undermine the efficacy of the schedule
if other agencies cannot meet the
schedule or have unaddressed concerns
with it. CEQ declines to add a reference
to the ‘‘use of reliable and currently
accurate data’’ as an example of sound
analysis because § 1506.6 addresses the
requirement to use reliable data, and
CEQ does not consider it necessary or
appropriate to address data in this
section on deadlines and schedules.
Second, CEQ proposed to update
paragraph (b) and its subparagraphs for
consistency with section 107(g) of
NEPA. See 42 U.S.C. 4336a(g). In the
proposed revisions, paragraphs (b)(1)
and (b)(2) would require agencies to
complete an EA within one year and an
EIS in two years, respectively, unless
the lead agency, in consultation with
any applicant or project sponsor,
extends the deadline in writing and
establishes a new deadline providing
only as much time as necessary to
complete the EA or EIS. CEQ proposed
to include ‘‘any’’ to account for
circumstances where there is no
applicant or project sponsor, in which
case the consultation requirement
would be inapplicable to extension of
deadlines.
Some commenters opposed the
deadlines asserting that agencies will
shortcut public participation or Tribal
consultation in the NEPA process, and
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that the deadlines create conflicts with
implementation of section 106 of the
National Historic Preservation Act. 54
U.S.C. 306101. Other commenters
expressed concern that the deadlines
will impede the ability of ‘‘minority and
Indigenous communities’’ to organize
and advise their communities of
impending harm. Other commenters
expressed concerns that other proposed
changes, including consideration of
reasonably foreseeable climate change
related effects and disproportionate and
adverse effects on communities with
environmental justice concerns, will
make it challenging for agencies to meet
the prescribed deadlines. One
commenter asserted that the proposed
deadlines are arbitrary and at odds with
the need for rigorous scientific study to
support NEPA findings.
CEQ makes the changes to paragraphs
(b), (b)(1), and (b)(2) as proposed with
two additions to implement the
statutory deadlines established in
section 107(g) of NEPA. 42 U.S.C.
4336a(g). First, CEQ excludes the
reference to project sponsors in favor of
the defined term ‘‘applicant’’ in
§ 1508.1(c). Second, CEQ includes ‘‘as
applicable’’ before ‘‘in consultation with
any applicant’’ in § 1501.10(b)(1) and
(b)(2) to emphasize that not all actions
have applicants. In such cases, an
agency may extend the deadline and set
a new deadline in writing. CEQ
appreciates the concerns expressed by
commenters that timelines could lead to
rushed analysis but recognizes that
establishing deadlines can improve the
efficiency and timeliness of the
environmental review process and notes
that section 107(g) of NEPA and this
provision provide agencies with the
ability to extend the deadline where
necessary to ensure they meet their
public engagement and consultation
obligations and conduct the requisite
analysis. 42 U.S.C. 4336a(g). Further,
agencies have demonstrated that they
can complete robust and high-quality
environmental reviews within these
timelines. CEQ encourages agencies to
conduct early public engagement,
consistent with § 1501.9, because early
engagement can improve the efficiency
and quality of the environmental review
process and can help ensure agencies
conduct meaningful engagement while
also meeting the statutory timeframes.
CEQ also notes that nothing in the
regulations modifies compliance with
section 106 of NHPA. CEQ disagrees
that the updated provisions of these
regulations, including §§ 1502.15(b);
1502.16(a)(6), (a)(9), and (a)(13); and
1508.1(g)(4)—which reflect current
practice and requirements such as those
requiring consideration of certain effects
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like climate-related effects—impose new
requirements that will increase review
timeframes such that agencies will not
be able to meet timelines. Rather, as
discussed in section II.D.14, II.D.15, and
II.J.5, CEQ is updating these provisions
to reflect current practice and categories
of reasonably foreseeable effects long
considered under NEPA consistent with
the statute and case law. CEQ disagrees
that these changes will prevent agencies
from complying with the deadlines or
that the deadlines will prevent agencies
from conducting rigorous analysis.
Many agencies already have
considerable experience analyzing these
types of effects.
Third, consistent with section 107(g)
of NEPA, CEQ proposed a new
paragraph (b)(3) to identify the starting
points from which agencies measure the
deadline for EAs and EISs and to require
agencies to measure from the soonest of
three dates, as applicable. 42 U.S.C.
4336a(g). Consistent with section
107(g)(1) of NEPA, the proposed dates
were: (i) the date the agency determines
an EA or EIS is required; (ii) the date the
agency notifies an applicant that its
application to establish a right-of-way is
complete; and (iii) the date the agency
issues an NOI. 42 U.S.C. 4336a(g)(1).
Multiple commenters expressed
support for the starting points proposed
in paragraph (b)(3), with some
commenters suggesting changes for
further clarification. Many of these
commenters requested the regulations
require agencies to include in their
agency NEPA procedures criteria for
automatically starting the one-year or
two-year periods. Suggestions included
criteria for when an application for a
permit, authorization, or right-of-way is
considered complete.
CEQ makes the changes as proposed
in paragraph (b)(3) and (b)(3)(i) through
(b)(3)(iii) because they incorporate the
statutory provisions of section 107(g)(1)
of NEPA. See 42 U.S.C. 4336a(g)(1). CEQ
declines to require agencies to include
criteria in their agency NEPA
procedures, though agencies may do so
at their discretion so long as they are
consistent with this provision.
Fourth, after considering the
comments on this section and more
generally emphasizing the importance
of consistency and clarity, in the final
rule, CEQ adds paragraph (b)(4) to
address the end dates for measuring the
deadlines. This revision is consistent
with CEQ’s approach in the proposed
rule to implementing section 107(g)(1)
in a manner that is transparent and
practical and will ensure consistency
across Federal agencies in measuring
deadlines, avoiding inconsistencies that
could create confusion among agencies
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and applicants. 42 U.S.C. 4336a(g)(1).
Paragraphs (b)(4)(i) and (b)(4)(i)(A)
through (b)(4)(i)(C) specify that for EAs,
the end date is the date on which the
agency publishes an EA; makes the EA
available pursuant to an agency’s predecisional administrative review
process, where applicable; or issues an
NOI to prepare an EIS. CEQ notes that
in situations where an agency publishes
both a draft EA and a final EA, the final
EA is the EA used to determine the end
date. Paragraph (b)(4)(ii) specifies for
EISs that the end date is the date on
which EPA publishes a notice of
availability of the final EIS or, where
applicable, the date the agency makes
the final EIS available pursuant to its
pre-decisional administrative review
process, consistent with § 1506.10(c)(1).
Fifth, CEQ proposed in paragraph
(b)(4) to require agencies to submit the
report to Congress on any missed
deadlines as required by section 107(h)
of NEPA. 42 U.S.C. 4336a(h). Some
commenters requested the regulations
include additional detail on the annual
report to Congress, including detail on
the content and deadlines for submitting
the report. One commenter also
requested that the regulations allow for
a pause in the time periods for specific
scenarios, such as when the agency is
waiting for information from an
applicant or to award contracts to
support analyses. Similarly, other
commenters suggested generally that the
final rule include provisions to provide
more flexibility in measuring the
deadlines to avoid rushed
environmental analyses.
CEQ finalizes proposed
§ 1501.10(b)(4) in paragraph (b)(5) as
proposed but changes ‘‘The’’ to ‘‘Each’’
to clarify that each lead agency
separately has a responsibility to report
to Congress if it misses a deadline. CEQ
declines to provide more specifics about
the report to Congress at this time, but
will consider whether guidance is
necessary to assist agencies in their
reporting obligations. CEQ also declines
to provide a mechanism for pausing the
deadline clock. The regulations,
consistent with the statute, provide that
a lead agency may extend the deadline
in order to provide any additional time
necessary to complete an EIS or EA.
Where an agency has extended a
deadline for an EA or EIS in conformity
with this section and section 107(g) of
NEPA, the agency has not missed a
deadline for purposes of 107(h) and
would not need to submit a report to
Congress. 42 U.S.C. 4336a(g)–(h). For
example, if an agency is experiencing a
delay outside its control such that it
does not have the requisite information
to complete its EA or EIS, the lead
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agency may extend the one- or two-year
deadlines. Because the statute and
regulations provide agencies with the
flexibility to extend deadlines when
necessary to complete an EA or EIS,
CEQ does not consider it necessary or
appropriate to establish a mechanism
for agencies to pause the deadline clock.
Sixth, to enhance predictability, CEQ
proposed to move the text from
paragraph (i) of 40 CFR 1501.7 (2020) to
the beginning of a new paragraph (c)
and modify the language for consistency
with sections 107(a)(2)(D) and
107(a)(2)(E) of NEPA, which require the
lead agency to develop schedules for
EISs and EAs. 42 U.S.C. 4336a(a)(2)(D),
4336a(a)(2)(E). CEQ proposed to divide
the first sentence moved from 40 CFR
1501.7(i) (2020) into two sentences and
add an introductory clause, ‘‘[t]o
facilitate predictability,’’ to reinforce the
purpose of schedules. CEQ proposed to
add ‘‘for completion of environmental
impact statements and environmental
assessments as well as any
authorizations required to carry out the
action’’ after ‘‘the lead agency shall
develop a schedule’’ for consistency
with section 107(a)(2)(D) of NEPA. 42
U.S.C. 4336a(a)(2)(D). CEQ proposed in
the second sentence to retain the
requirement for the lead agency to set
milestones for environmental reviews
and authorizations, and add ‘‘permits’’
for consistency with section 107(a)(2)(D)
of NEPA. 42 U.S.C. 4336a(a)(2)(D). CEQ
also proposed in the second sentence to
require agencies to develop the
schedules in consultation with the
applicant or project sponsor, and in
consultation with and seek the
concurrence of any joint lead,
cooperating, and participating agencies.
CEQ proposed to add a new third and
fourth sentence to paragraph (c) to note
that schedules may vary depending on
the type of action; agencies should
develop schedules based on their
experience reviewing similar types of
actions; and highlight factors listed in
paragraph (d) that may help agencies set
specific schedules to meet the
deadlines.
Finally, CEQ proposed to move the
text from paragraph (j) of 40 CFR 1501.7
(2020) regarding missed schedule
milestones to the end of paragraph (c)
and modify it to make it consistent with
section 107(a)(2)(E) of NEPA and
provide clarification to enhance
interagency communication and issue
resolution. 42 U.S.C. 4336a(a)(2)(E).
CEQ proposed to require that, when the
lead or any participating agency
anticipates a missed milestone, that
agency notify the responsible agency
(and the lead agency if identified by
another agency) and request that they
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take action to comply with the schedule.
To emphasize the importance of
informed and efficient decision making,
CEQ proposed to require agencies to
elevate any unresolved disputes
contributing to the missed milestone to
the appropriate officials for resolution
within the deadlines for the individual
action.
One commenter requested that the
final rule include a deadline for the
development of a schedule. CEQ
declines to include this proposal in the
final rule. While CEQ encourages
agencies to work efficiently in
developing a schedule, CEQ recognizes
that the complexity of the schedule will
vary considerably from case to case, and
defers to agencies to oversee the
efficient and effective preparation of a
schedule. Also, as discussed earlier in
this section, commenters both
supported and opposed the requirement
for lead agencies to consult with
applicants and consult and seek
concurrence of joint lead, cooperating,
and participating agencies when
establishing schedule milestones.
Another commenter stated that, with
respect to the fifth sentence of
paragraph (c), the final rule should
require, not just recommend, agencies to
consider all previous relevant actions
and incorporate that information into
their schedules.
In the final rule, CEQ revises the
existing text of paragraph (c) as
proposed excluding the reference to
project sponsors in favor of the defined
term ‘‘applicant’’ in § 1508.1(c)) for
consistency with section 107(a)(2)(D) of
NEPA and to ensure that agencies are
identifying at the beginning of the
process the steps they need to take and
the timeframe in which they need to
take them in order to meet the statutory
timeframes. 42 U.S.C. 4336a(a)(2)(D).
For the reasons articulated earlier in this
section, CEQ includes the requirements
for consultation and seeking
concurrence on schedules. Next, CEQ
adds a new sentence in the final rule to
direct all agencies with milestones to
take appropriate measures to meet the
schedule. Finally, CEQ moves paragraph
(j) of 40 CFR 1501.10 (2020) regarding
missed milestones to the end of
paragraph (c) as proposed, but further
revises it for clarity in the final rule.
CEQ simplifies the text to clarify that
any participating agency can identify a
potentially missed milestone to the lead
agency and the agency responsible for
the milestone. CEQ also adds
‘‘potentially’’ before ‘‘missed milestone’’
in the last sentence for consistency of
use in the sentence.
Seventh, CEQ proposed to redesignate
paragraph (c) of 40 CFR 1501.10 (2020),
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addressing factors in setting deadlines,
as paragraph (d), and make changes to
the text for consistency with proposed
paragraph (b). Specifically, CEQ
proposed to change ‘‘senior agency
official’’ to ‘‘lead agency’’ and ‘‘time
limits’’ to reference ‘‘the schedule and
deadlines.’’
Eighth, CEQ proposed to add a new
factor that the lead agency may consider
in determining the schedule and
deadlines to paragraph (d)(7): the degree
to which a substantial dispute exists
regarding the size, location, nature, or
consequences of the proposed action
and its effects. CEQ proposed this factor
to restore and clarify a factor included
in the 1978 regulations at 40 CFR
1501.8(a)(vii) (2019) regarding the
degree to which the action is
controversial. While the 2020
regulations removed this factor because
it overlapped with other factors, CEQ
reconsidered its position and
determined that this is an important
factor that could have implications for
establishing schedules and milestones.
CEQ noted in the proposed rule that, in
such instances, agencies should seek
ways to resolve disputes early in the
process, including using conflict
resolution and other tools, to achieve
efficient outcomes and avoid costly and
time-consuming litigation later in the
process. To accommodate this new
factor, CEQ proposed to redesignate
paragraph (c)(7) of 40 CFR 1501.10
(2020) to be paragraph (d)(8).
One commenter suggested CEQ
append ‘‘or benefit’’ to ‘‘[p]otential for
environmental harm’’ in paragraph
(d)(1). CEQ declines this change because
‘‘environmental benefits’’ is already
covered by the factor in paragraph (d)(4)
regarding public need. Other
commenters suggested CEQ modify
paragraph (d)(4) in the final rule to
include consideration of the impact on
the environment in addition to public
need or modify it to reflect that the
consequences of delay include cost
considerations of short- and long-term
delays. CEQ declines to make these
changes because paragraph (d)(1)
already covers potential for
environmental harm, and CEQ
interprets ‘‘consequences of delay’’ to
include any cost-related consequences
to the public of short- or long-term
delays.
Regarding paragraph (d)(7), one
commenter opposed the replacement of
‘‘controversial’’ from the 1978
regulations with ‘‘substantial dispute’’
asserting that ‘‘controversial’’ is well
defined in case law as scientific rather
than public controversy. The
commenter further asserted that shifting
this language could become a new
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source of dispute. CEQ disagrees and
considers this change consistent with
case law interpreting the term
‘‘controversial,’’ as used in the 1978
regulations as distinct from general
public controversy or opposition. See,
e.g., Bark v. United States Forest Serv.,
958 F.3d 865, 870 (9th Cir. 2020) (‘‘A
project is ‘highly controversial’ [under
the 1978 regulations] if there is a
‘substantial dispute about the size,
nature, or effect of the major Federal
action rather than the existence of
opposition to a use.’ ’’ (quoting Native
Ecosystems Council v. United States
Forest Serv., 428 F.3d 1233, 1240 (9th
Cir. 2005) (alteration omitted)); see also
Standing Rock Sioux Tribe v. U.S. Army
Corps of Eng’rs, 985 F.3d 1032, 1042
(D.C. Cir. 2021).
One commenter recommended the
final rule add a factor to accommodate
government-to-government consultation
with Tribal Nations, while other
commenters requested inclusion of
consideration of Tribal consultation in
developing schedules overall. In the
final rule, CEQ adds paragraph (d)(9) for
consideration of the time necessary to
conduct government-to-government
Tribal consultation. While agencies are
already able to take this into account
when building schedules, CEQ adds this
factor to encourage agencies to ensure
they are building sufficient time in the
schedule to conduct meaningful
consultation. Finally, CEQ adds ‘‘court
ordered deadlines’’ to paragraph (d)(8),
which lists time limits imposed on the
agency, since agencies are sometimes
conducting NEPA for actions subject to
a court order.
Ninth, CEQ proposed to redesignate
paragraph (d) of 40 CFR 1501.10 (2020)
as paragraph (e), strike the text allowing
a senior agency official to set time limits
because this is superseded by the
enactment of section 107(g) of NEPA, 42
U.S.C. 4336a(g), setting statutory
deadlines, and replace it with a
requirement for EIS schedules to
include a list of specific milestones.
CEQ proposed to strike the text in
paragraphs (d)(1) through (d)(7) of 40
CFR 1501.10 (2020) listing potential
time limits a senior agency official
could set and replace them with
proposed new paragraphs (e)(1) through
(e)(5) to list the minimum milestones
that an EIS schedule must include:
publication of the NOI, issuance of the
draft EIS, the public comment period,
issuance of the final EIS, and issuance
of the ROD.
Relatedly, CEQ proposed to add new
paragraphs (f) and (f)(1) through (f)(4) to
identify the milestones that agencies
must include in schedules for EAs: the
decision to prepare an EA; issuance of
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a draft EA, where applicable; the public
comment period, where applicable; and
issuance of the final EA and a decision
whether to issue a FONSI or NOI to
prepare an EIS.
Multiple commenters expressed
support for proposed § 1501.10(e) and
(f), asserting the changes would improve
the transparency, timeliness, and
certainty of environmental reviews.
Some commenters suggested additional
milestones to further these goals, such
as the starting points in proposed
paragraph (b)(3), specific stages of the
review process (i.e., decision to prepare
a document and issuance of a draft or
final document), and 60-or 90-day
deadlines for cooperating and
participating agency review stages.
CEQ declines to add additional
milestones at this time. CEQ notes that
this is a non-exhaustive list, and CEQ
may issue guidance with
recommendations for additional
milestones in the future or agencies may
elect to include additional milestones
on an action-by-action basis or in their
agency NEPA procedures.
Tenth, CEQ proposed to redesignate
paragraph (e) of 40 CFR 1501.10 (2020)
as paragraph (g) allowing an agency to
designate a person to expedite the NEPA
process, with no proposed changes to
the language. One commenter asserted
that paragraph (g) provides agencies too
much discretion as to whether they
should designate someone to expedite
the NEPA process. The commenter
suggested that, at a minimum, the
paragraph be expanded to discuss when
that role would be beneficial and set
requirements on who can fill the role.
CEQ declines additional edits to
paragraph (g), which has been in the
regulations since 1978. CEQ considers it
appropriate to preserve agency
flexibility to assign staff to expedite the
NEPA process.
Eleventh, CEQ proposed to strike
paragraph (f) of 40 CFR 1501.10 (2020),
allowing State, Tribal, or local agencies,
or members of the public to request a
Federal agency set time limits. One
commenter opposed the proposed
removal of this paragraph, expressing
concern that the proposal would
diminish the involvement and use of
information from States. CEQ makes this
change in the final rule because the
NEPA statute sets deadlines for EAs and
EISs rendering this paragraph
unnecessary and inconsistent with the
statute. However, CEQ notes that State,
Tribal, and local agencies have a role in
the development of schedules to the
extent they are serving as joint lead,
cooperating, or participating agencies.
Finally, to increase predictability and
enhance agency accountability, CEQ
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proposed to add a new paragraph (h) to
require agencies to make schedules for
EISs publicly available and to publish
revisions to the schedule. The proposal
also would require agencies to publish
revisions to the schedule and include an
explanation for substantial revisions to
increase transparency and public
understanding of decision making and
to encourage agencies to avoid
unnecessary delays.
One commenter expressed concern
that paragraph (h) would increase the
potential for litigation related to
timelines. Another commenter opposed
the requirement for agencies to publicly
post schedules for an EIS, asserting that
the requirement would distract from
analyzing and disclosing significant
environmental effects.
CEQ adds paragraph (h) as proposed
in the final rule. CEQ disagrees that
making schedules publicly available
will have any meaningful effect on the
agency’s analysis. CEQ also does not see
litigation risk attached to the posting of
schedules, which would not constitute
a final agency action for purposes of
judicial review, and the commenter did
not provide an explanation as to how
this might be the case.
Multiple commenters requested
clarity on what qualifies as
‘‘substantial’’ changes to an EIS
schedule. CEQ declines to include
additional language in the rule and
defers to agencies to determine what
schedule changes are ‘‘substantial’’ and
require an explanation. CEQ anticipates
this may vary from case-to-case
depending on the agency and the
complexity of the proposed action. CEQ
will continue to consider whether
additional guidance would be helpful.
A few commenters requested that the
final rule expand paragraph (h) to
require agencies to make EA schedules
publicly available. CEQ declines to
require agencies to publish schedules
for EAs, though CEQ encourages
agencies to do so, especially when doing
so would facilitate public engagement.
CEQ is concerned that requiring
agencies to make schedules for all EAs
publicly available could significantly
increase the administrative burden on
agencies especially since not all EAs
will involve complex schedules, i.e.,
they may only include the dates for the
decision to prepare an EA and the
issuance of an EA.
Some commenters expressed general
support for § 1501.10 but suggested
additional changes arguing that there
are ‘‘loopholes’’ for agencies to exploit
or manipulate the deadlines.
Commenters requested the regulations
provide for oversight of agencies to
ensure they are adhering to the
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deadlines. Another commenter
suggested CEQ add incentives to the
final rule for agencies to adhere to the
timelines.
CEQ declines to make additional
revisions to address the commenters’
suggestions. The final rule implements
the statutory deadlines, and Congress
has provided a reporting mechanism to
address situations where agencies miss
deadlines. Further, section 107(g)(3) of
NEPA provides a mechanism for project
sponsors to petition the courts for relief
if an agency fails to meet the deadlines.
42 U.S.C. 4336a(g)(3). The statute does
not establish a mechanism for CEQ to
enforce deadlines, and CEQ declines to
revise the regulations in a manner that
would substantially change the role that
CEQ has played with respect to
environmental reviews for decades.
A commenter requested clarification
on supplementation and whether or not
supplemental environmental documents
would affect the timeline of the original
document. CEQ declines to add
additional language to § 1501.10 in
response to this comment. In cases
where an agency determines a
supplemental draft EA or a
supplemental draft EIS is necessary, the
end point remains the final EA or final
EIS. However, as provided in
§ 1501.10(b), the lead agency may
extend the deadline to provide
additional time necessary to complete
the final EA or final EIS. When an
agency prepares a supplemental EA or
EIS following the completion of a final
EA or EIS, the lead agency should
adhere to the deadlines and develop
schedules for the supplemental NEPA
review consistent with paragraph (b)
and section 107(g) of NEPA. 42 U.S.C.
4336a(g).
10. Programmatic Environmental
Documents and Tiering (§ 1501.11)
CEQ has encouraged agencies to
engage in environmental reviews for
broad Federal actions through the NEPA
process since CEQ’s initial guidelines
issued in 1970. This continues to be a
best practice for addressing broad
actions, such as programs, policies,
rulemakings, series of projects, and
larger or multi-phase projects. CEQ
developed guidance in 2014 on Effective
Use of Programmatic NEPA Reviews,76
compiling best practices across the
Federal Government on the
development of programmatic
environmental reviews. CEQ proposed
to codify some of these principles in the
CEQ regulations.
First, CEQ proposed to revise and
retitle § 1501.11, ‘‘Programmatic
76 CEQ,
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environmental documents and tiering,’’
for consistency with section 108 of
NEPA, to consolidate relevant
provisions, and to add new language to
codify best practices for developing
programmatic NEPA reviews and
tiering, which are important tools to
facilitate more efficient environmental
reviews and project approvals. 42 U.S.C.
4336b. As discussed further in this
section, CEQ proposed to move portions
of 40 CFR 1502.4 (2020) on EISs for
broad Federal actions to § 1501.11
because agencies can review actions at
a programmatic level in both EAs and
EISs.
Several commenters expressed
support for the overall proposed
changes in § 1501.11 and for use of
programmatic reviews and tiering.
These commenters asserted that
programmatic reviews and tiering are
important tools for efficiency and
supported the clarity provided in the
proposed rule on both tools. In the final
rule, CEQ revises the title of § 1501.11
and moves the text of 40 CFR 1502.4
(2020) to § 1501.11 as further described
in this section.
CEQ proposed to reorganize the
paragraphs in § 1506.11 to address
programmatic environmental
documents and then tiering.
Accordingly, second, CEQ proposed to
add a new paragraph (a) to address
programmatic environmental
documents. CEQ proposed to move
paragraph (b) of 40 CFR 1502.4 (2020)
to § 1501.11(a) and revise the first
sentence to clarify that agencies may
prepare programmatic EAs or EISs to
evaluate the environmental effects of
policies, programs, plans, or groups of
related activities. CEQ proposed to
revise the second sentence to provide
that programmatic environmental
documents should be relevant to the
agency’s decisions and timed to
coincide with meaningful points in
agency planning and decision making;
change ‘‘statements’’ to ‘‘documents’’ to
include EAs; and change ‘‘program’’ to
‘‘agency’’ to broaden the language for
consistency with the revised first
sentence of paragraph (a). Finally, CEQ
proposed a third sentence in paragraph
(a) to clarify that agencies can use
programmatic environmental
documents in a variety of ways,
highlighting some examples for agencies
to consider to facilitate better and more
efficient environmental reviews.
One commenter requested that CEQ
change paragraph (a) to require agencies
to prepare programmatic environmental
documents. CEQ declines to require
preparation of programmatic
environmental documents as agencies
need flexibility to determine when a
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programmatic environmental document
is appropriate.
Another commenter suggested CEQ
add language stating if an agency is
preparing to make a programmatic
decision on a policy, program, plan, or
group of related activities that meets
other applicable thresholds for NEPA
analysis, an agency must prepare a
programmatic analysis commensurate
with the scope of that decision. The
commenter asserted that while it may be
permissible to prepare a programmatic
analysis when an agency is not
presently making a decision, it is
mandatory to prepare one when making
a programmatic decision.
A few commenters requested CEQ
restore regulatory language from 40 CFR
1502.4(b) (2019) stating that
programmatic EISs are sometimes
required for proposed decisions
regarding new agency programs or
regulations. The commenter stated that
the 2020 rule removed this direction to
focus the provision on the discretionary
use of programmatic EISs in support of
clearly defined decision-making
purposes. The commenter asserted CEQ
would better serve agencies and the
public by acknowledging that
programmatic EISs are sometimes
required.
CEQ declines to make these change in
the final rule. Agencies have the
discretion to determine whether to
prepare a programmatic or nonprogrammatic NEPA document to
evaluate their actions, and CEQ is
concerned that the commenter’s
proposals are unnecessarily prescriptive
and declines to introduce a new concept
of ‘‘programmatic decision.’’
Third, CEQ proposed to move the list
of ways agencies may find it useful to
evaluate a proposal when preparing
programmatic documents from
paragraphs (b)(1) and (b)(1)(i) through
(b)(1)(iii) of 40 CFR 1502.4 (2020) to
§ 1501.11(a)(1) and (a)(1)(i) through
(a)(1)(iii), respectively. CEQ proposed to
expand the list to encompass EAs as
well as EISs. CEQ proposed to modify
the beginning of paragraph (a)(1)(ii) to
clarify ‘‘[g]enerically’’ to mean
‘‘[t]hematically or by sector,’’ and add
technology as an example action type.
CEQ proposed in paragraph (a)(1)(iii) to
modify ‘‘available’’ to ‘‘completed’’ for
clarity. CEQ moves these provisions and
makes these revisions as proposed in
the final rule.
One commenter opined that the
language in proposed paragraph
(a)(i)(iii) regarding stage of technological
development makes it seem as though
environmental review must happen
more quickly than accrual of significant
investment. The commenter asserted
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that the accrual of significant
investment would prejudice the review
and, therefore, should be barred until
the review takes place and suggested
regulatory language to that effect.
CEQ declines to modify paragraph
(a)(1)(iii) to incorporate the commenter’s
proposed language. The concept the
commenter proposes to add—to not
prejudice the outcome of dependent
decisions—is addressed in § 1506.1, and
it is unnecessary and potentially
confusing to address that issue here.
However, CEQ changes ‘‘restrict later
alternatives’’ to ‘‘limit the choice of
reasonable alternatives’’ to align the text
with § 1506.1(a).
Fourth, CEQ proposed to add a new
paragraph (a)(2) to provide examples of
the types of agency actions that may be
appropriate for programmatic
environmental documents, including
programs, policies, or plans; regulations;
national or regional actions; or actions
with multiple stages and are part of an
overall plan or program. CEQ did not
receive any comments specific to this
paragraph and adds it in the final rule.
Fifth, CEQ proposed to move
paragraph (b)(2) of 40 CFR 1502.4 (2020)
to § 1501.11(a)(3) and revise it to
recommend, rather than require, that
agencies employ scoping, tiering, and
other tools to describe the relationship
between programmatic environmental
documents and related actions to reduce
duplication. CEQ proposed to strike the
last sentence of 40 CFR 1502.4(b)(2)
(2020) stating that agencies may tier
their analyses because tiering and
programmatic environmental
documents would now be addressed
together in this section, rendering the
language unnecessary.
A commenter requested CEQ replace
‘‘should’’ with ‘‘shall’’ in paragraph
(a)(3) because the discretionary language
relaxes the standard for agencies to seek
efficiencies. CEQ declines to make this
change. While scoping is required for
EISs, including programmatic EISs, it is
not required for EAs. It also would
unnecessarily constrain agency
processes to require tiering for all
programmatic environmental
documents, particularly because at the
time that an agency prepares a
programmatic environmental document,
it may not yet know whether or what
agency actions it may consider in the
future related to the programmatic
environmental document. Rather, CEQ
intends this provision to encourage
agencies to use scoping, tiering, and
other methods to make programmatic
environmental documents more
effective, efficient, and transparent.
A commenter requested that CEQ add
text to proposed paragraph (a)(3)
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providing that programmatic documents
should explain which issues the
programmatic document analyzes and
which issues the agency is deferring.
This commenter pointed to CEQ’s 2014
memorandum on use of programmatic
NEPA reviews, which explains that the
programmatic analysis and the decision
document should explain which
decisions are supported by the
programmatic NEPA document and
which decisions are deferred to a later
time. Two commenters further
requested CEQ clarify that tiering is
required to analyze the deferred analysis
of issues, effects, or alternatives before
making a final project-level or sitespecific decision; stating that the
current text is permissive in that it
allows but does not require tiering.
CEQ considered the comments and in
the final rule revises § 1501.11(a)(3) to
clarify that a programmatic document
must identify any decisions or
categories of decisions that the agency
anticipates making in reliance on it.
This direction includes any action or
category of action that the agency
anticipates making in reliance on a
programmatic environmental document
without additional analysis and any
action or category of action the agency
anticipates making after developing a
subsequent, tiered environmental
document. This provision only requires
agencies to identify actions the agency
anticipates making when it prepares a
programmatic environmental document;
it does not require agencies to identify
every conceivable circumstance in
which the agency could develop a tiered
environmental review in the future.
Including this information in a
programmatic environmental document
ensures that agencies are transparent
about the relationship between their
programmatic documents and any
subsequent documents and decisions.
Failure to anticipate and list a particular
circumstance where a programmatic
environmental document could inform a
future decision does not preclude
tiering to the programmatic
environmental document in an
environmental document related to that
future circumstance.
Sixth, CEQ proposed to redesignate
paragraphs (a), (b), and (c) of 40 CFR
1501.11 (2020), which address tiering,
as paragraphs (b), (b)(1), and (b)(2),
respectively, with some modifications
as discussed further in this section. CEQ
also proposed to redesignate paragraphs
(c), (c)(1), and (c)(2) as paragraphs (b)(2),
(b)(2)(i), and (b)(2)(ii), respectively, with
no proposed modifications. CEQ
proposed to title paragraph (b)
‘‘Tiering.’’ CEQ makes these changes in
the final rule.
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Seventh, CEQ proposed to add two
new sentences at the beginning of
paragraph (b) to describe when agencies
may employ tiering. The first proposed
sentence would allow agencies to
employ tiering with an EIS, EA, or
programmatic environmental document
relevant to a later proposed action. The
sentence emphasizes the benefits of
tiering to avoid duplication and focus
on issues, effects, or alternatives, not
fully addressed in the earlier document.
In the existing text, CEQ proposed to
strike as redundant the reference to
issues not yet ripe for decision as well
as the last sentence on applying tiering
to different stages of actions. CEQ did
not receive comments specific to the
changes proposed in this paragraph and
finalizes them as proposed except that
CEQ reorders the list of documents—
EISs, EAs, and programmatic
environmental documents—in
§ 1501.11(b)(1) for consistency with
paragraph (b).
Eighth, in § 1501.11(b)(1) CEQ
proposed to add ‘‘programmatic
environmental review’’ to the list of
documents from which agencies may
tier. CEQ also proposed to clarify that
the tiered document must discuss the
relationship between the tiered analysis
and the previous review; analyze site-,
phase-, or stage-specific conditions and
effects; and allow for public engagement
opportunities consistent with the type
of environmental document prepared
and that are appropriate for the location,
phase, or stage. Finally, CEQ proposed
to clarify that the tiered document must
state where the earlier document is
‘‘publicly’’ available.
One commenter requested CEQ clarify
that tiering to a previous programmatic
analysis is only appropriate if those
analyses took the requisite ‘‘hard look’’
at site-specific environmental impacts.
CEQ declines to make this change.
While agencies must ensure a hard look
at site-specific effects before finalizing a
site-specific agency action, agencies
have discretion to consider such effects
in a programmatic environmental
document or subsequent tiered
documents. Multiple commenters
requested CEQ clarify that tiered
reviews must include the requisite sitespecific analysis for the action, with
some commenters raising concerns that
agencies do not provide the necessary
opportunity for the public to review
alternatives and provide comments by
using programmatic environmental
reviews without subsequent site-specific
reviews. CEQ agrees that tiering does
not authorize an agency to avoid the
public engagement, including any
opportunity for comment, that it would
need to do if it analyzed an action
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through a single environmental
document, rather than through a tiered
approach and notes that the text CEQ
proposed in § 1501.11(b)(1) addresses
this issue. Regardless of whether an
agency employs tiering, agencies must
comply with the requirements for
consideration of alternatives and public
comments consistent with the
requirements for EAs or EISs, as
applicable.
A few commenters expressed concern
that the use of tiering would lead to
delays in incorporating new scientific
evidence into environmental reviews
and allow agencies to circumvent the
requirement to consider alternatives.
Another commenter expressed similar
concern that the expanded use of
programmatic documents with CEs
would limit consideration of
alternatives. CEQ disagrees with the
commenters’ concerns because agencies
cannot use programmatic documents or
tiering to circumvent the requirements
of NEPA, including section 102(2)(C)(iii)
requirement to consider a reasonable
range of alternatives for actions
requiring an EIS. 42 U.S.C.
4332(2)(C)(iii).
Other commenters requested CEQ
clarify certain aspects of tiering,
including establishing bounds for use of
programmatic CEs. As described in
§ 1501.11(a), programmatic
environmental documents may be an EA
or EIS. As such, § 1501.11 does not
address programmatic CEs. Section
1501.4 addresses circumstances in
which agencies may conduct
programmatic reviews to establish new
CEs.
One commenter stated that the rule
needs to clearly distinguish between
tiering and supplementation and
suggested CEQ could clarify the
different approaches in
§ 1501.11(b)(2)(ii). CEQ agrees that the
reference to supplementation in
§ 1501.11(b)(2)(ii) is confusing because
supplementation is a different concept.
Section 1502.9(d) sets forth the standard
for supplementation of EISs, and
agencies may supplement EAs at their
discretion. Therefore, CEQ strikes ‘‘a
supplement (which is preferred)’’ from
the first sentence of this paragraph.
CEQ makes the changes to
§ 1501.11(b) and (b)(1) as proposed,
though CEQ revises programmatic
environmental ‘‘review’’ to ‘‘document’’
in paragraph (b)(1) for consistency with
the rest of the section. CEQ notes that
programmatic documents can most
effectively address later activities when
they provide a description of planned
activities that would implement the
program and consider the effects of the
program as specifically and
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comprehensively as possible. A
sufficiently detailed programmatic
analysis with such project descriptions
can allow agencies to rely upon
programmatic environmental
documents for further actions with no or
little additional environmental review
necessary. When conducting
programmatic analyses, agencies should
engage the public throughout the NEPA
process and consider when it is
appropriate to re-engage the public prior
to implementation of the action.
Ninth, in paragraph (c), CEQ proposed
to include the provisions of section 108
of NEPA, which address when an
agency may rely on a programmatic
document in subsequent environmental
documents. 42 U.S.C. 4336b. CEQ notes
that it interprets the reference to
‘‘judicial review’’ in paragraph (c)(1) to
mean an opportunity for a party to
challenge the programmatic document,
including through an administrative
proceeding or challenge brought under
the Administrative Procedure Act. CEQ
proposed in paragraph (c)(2) to require
agencies to briefly document their
reevaluations when relying on
programmatic environmental
documents older than 5 years. Two
commenters opined that there is no
incentive for an agency to prepare a
programmatic environmental document
if the statute and regulations require
them to complete it within one or two
years and then review it every five
years. The commenters asserted that
programmatic documents generally take
longer to prepare, but the long-term
benefits are worth the investment. The
commenters are concerned that the time
limits for EAs and EISs will result in
agencies preparing fewer programmatic
environmental documents. A separate
commenter indicated that many
agencies review programmatic
documents at longer intervals than five
years.
CEQ appreciates the commenters’
concerns but notes that the timeframes
are statutory. CEQ encourages agencies
to use programmatic environmental
documents and tiering whenever it will
result in more efficiency overall. CEQ
also notes that a reevaluation of a
programmatic document need not be a
lengthy process especially where
agencies can quickly and easily verify
the ongoing accuracy of the evaluation.
One commenter asserted that the
process for reevaluation is unclear in
the statute and in the proposed rule and
asked CEQ to clarify the steps. The
commenter requested that the
regulations state that the tiered
environmental review is what triggers
the need for reevaluation and that it also
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serves as the documentation of the
reevaluation.
CEQ declines to articulate additional
steps for reevaluation. The regulations
already provide a process for
reevaluation in §§ 1501.5 and 1502.9(e).
CEQ agrees that agencies may make use
of tiered documents to support their
reevaluation. However, because of the
nature of tiering, such documents may
not assess all of the underlying
assumptions of the programmatic
document.
Another commenter recommended
that the regulations allow agencies to
tier from programmatic documents
while reevaluation is ongoing and
requested CEQ clarify that those projects
are not at risk of noncompliance for
reliance on previous versions should the
agency issue a new version of the
document.
CEQ declines to make these
specifications in the final rule. CEQ
agrees that a tiered document may also
serve as a reevaluation of the
programmatic document. CEQ considers
the language in section 108(1) of NEPA
to be clear that agencies may tier from
a programmatic review in a subsequent
environmental document for up to five
years without additional analysis, and
therefore any tiered documents relying
on the programmatic document during
those five years is entitled to the
statutory presumption that no
additional review is required even
where the agency subsequently revises
the programmatic document. 42 U.S.C.
4336b(1).
A few commenters requested that the
regulations require the five-year
reevaluation for EISs and EAs be subject
to public comment; that agencies
provide public notice of the
reevaluation; and that reevaluation of
programmatic analyses be made
publicly available.
CEQ declines to make these changes
to retain flexibility depending on the
context of the reevaluation. Some
reevaluations may be simple and not
require public comment. Other
reevaluations may warrant and benefit
from public engagement, including
public comment. If the agency finds that
any assumptions are no longer valid or
that the criteria for supplementation in
§ 1502.9(d) are met, then the regulations
require the agency to conduct a
supplemental analysis to continue to
rely on the programmatic review in
subsequent environmental documents.
11. Incorporation by Reference Into
Environmental Documents (§ 1501.12)
CEQ proposed minor modifications to
§ 1501.12 to emphasize the importance
of transparency and accessibility of
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material that agencies incorporate by
reference. First, CEQ proposed to revise
the title to add ‘‘into environmental
documents’’ at the end to clarify into
what agencies incorporate by reference.
CEQ makes this change in the final rule.
Second, CEQ proposed to add to the
second sentence a specific requirement
for agencies to briefly explain the
relevance of any material incorporated
by reference into the environmental
document to clarify that agencies must
not only summarize the content
incorporated but also explain its
relevance to the environmental review
document. CEQ proposed this addition
because explaining the relevance of
incorporated material in addition to
summarizing it will better inform the
decision maker and the public.
A few commenters opposed the
proposed requirement for agencies to
briefly explain the relevance of the
incorporated material to the
environmental document, asserting that
the relevance of the material is often
obvious and that requiring this
explanation would add burdensome
paperwork without additional benefit. A
commenter also asserted that the
requirement defeats the purpose of
incorporating material by reference.
CEQ disagrees with the commenters’
assertions and makes the proposed
addition in the final rule. CEQ adds the
language to emphasize the importance
of transparency regarding material that
agencies incorporate by reference and
rely upon as part of their analysis.
Briefly explaining the relevance of
incorporated material should not
require substantial agency resources or
lengthy text. Section 1501.11 already
requires an agency to briefly summarize
material that it incorporates by
reference; briefly explaining the
relevance of the material does not
require additional analysis, but rather,
only requires that the agency briefly
document how the material is related to
the agency action it is reviewing in an
environmental document. While in
some cases the relevance of material
incorporated by reference may be
obvious, in such cases, briefly
explaining relevance will be a trivial
task that may require no more than a
sentence. Where the relevance of the
material is not immediately obvious, a
brief explanation will help better inform
both the public and decision makers.
CEQ disagrees that the requirement is
burdensome or duplicative, and
encourages agencies to integrate the
description of relevance into the
summary of the material.
Third, CEQ proposed to change ‘‘may
not’’ to ‘‘shall not’’ in the third sentence
to eliminate a potential ambiguity over
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whether agencies must make material
they incorporate by reference reasonably
available for public inspection. One
commenter supported the preclusion of
incorporation by reference if the
material is not reasonably available for
public inspection. Another commenter
requested that CEQ define ‘‘reasonably
available for inspection’’ to clarify what
information should be made available
prior to public comment. In considering
this comment, CEQ determined that it
was more appropriate to revise the text
in the final rule to improve clarity rather
than define this phrasing from the 1978
regulations, and therefore changes
‘‘inspection’’ to ‘‘review.’’ CEQ does not
intend this change in wording to be
substantive, but rather to modernize the
regulatory language and, thereby,
improve clarity of the requirement. CEQ
anticipates that agencies will generally
make this material available
electronically or online, though it may
be appropriate for agencies to provide
physical copies in certain circumstances
such as for localized actions where
internet access or bandwidth is limited.
Another commenter expressed
support for incorporation by reference,
but questioned whether the standard
should allow agencies to incorporate by
reference proprietary data. CEQ declines
to change the ‘‘reasonably available for
review’’ standard. Incorporation by
reference is a tool that agencies can use
to improve the efficiency of their
environmental review process.
However, it cannot be used to
circumvent the public engagement,
public comment, public access, and
transparency requirements of NEPA and
these regulations, including section
107(c)’s requirement that for an EIS, an
agency must request public comment on
‘‘alternatives or impacts and on relevant
information, studies, or analyses with
respect to the proposed agency action.’’
42 U.S.C. 4336a(c). CEQ therefore
retains the requirement that has been in
the NEPA regulations since 1978 that
prohibits agencies from incorporating by
reference material that is not reasonably
available for review, including
proprietary data that is not available for
review and comment.
Another commenter recommended
CEQ revise existing regulatory text in
the third sentence. The commenter
suggested CEQ replace ‘‘within the
time’’ with ‘‘at the beginning of and
throughout the time’’ asserting that the
current language allows an agency to
post documents near the end of the
comment period. The commenter stated
that documents should be available for
the full comment period to allow for
meaningful public review and comment.
CEQ agrees that materials that are
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incorporated by reference should be
reasonably available throughout the
public comment period. CEQ is unaware
of agencies incorporating by reference
material that is not available throughout
the comment period. However, CEQ
agrees that the reasonable availability of
material incorporated by reference is
critical to the public comment process
for EISs under the regulations and under
section 107(c) of NEPA, which requires
agencies preparing EISs to request
public comment on ‘‘relevant
information, studies, or analyses with
respect to the proposed agency action.’’
42 U.S.C. 4336a(c). Therefore, the final
rule replaces the word ‘‘inspection’’
with ‘‘review’’ and the word ‘‘within’’
with the word ‘‘throughout’’ to remove
any ambiguity over when the materials
an agency incorporates by reference
must be reasonably available to the
public. The final rule also adds ‘‘or
public review’’ after ‘‘comment’’ to
make it clear that the material must be
available while an environmental
document is available for public review
in those cases where the regulations do
not require an agency to seek public
comment. CEQ makes these changes in
the final rule to ensure that material
incorporated by reference, including
research publications and data, is
openly available and accessible to the
public.
Fourth, CEQ proposed in the third
sentence to add a reference to ‘‘publicly
accessible website’’ as an example of a
mechanism through which material
incorporated by reference may be
reasonably available to the public. CEQ
did not receive any comments specific
to this proposed example. CEQ makes
this change in the final rule.
Finally, CEQ proposed to add a new
fourth sentence encouraging agencies to
provide digital references, such as
hyperlinks, to incorporated material or
otherwise indicate how the public can
access the material for review. One
commenter expressed support for the
proposed inclusion of digital references.
CEQ adds this sentence in the final rule.
A few commenters expressed general
support for proposed § 1501.12. Another
supportive commenter appreciated the
emphasis on transparency and
accessibility of material incorporated by
reference, but suggested CEQ establish
standards for the digital format of
environmental documents and their
underlying analysis to facilitate
interagency information sharing and
collaboration. CEQ appreciates the
comment and notes that it is currently
engaged in an eNEPA study, consistent
with section 110 of NEPA, to assesses
such issues. See 42 U.S.C. 4336d.
Following the completion of that study,
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CEQ may issue guidance or consider
additional rulemaking in the future to
address these issues.
Another commenter requested that
the regulations require agencies to
disclose if the cited material is outdated,
disputed, or not fully proven. CEQ
declines to make this change. Agencies
generally have an obligation under
§ 1506.6 and § 1502.21 for EISs to
disclose any relevant assumptions or
limitations of the information on which
they rely, including information
incorporated by reference. Imposing a
distinct requirement for material that is
incorporated by reference is
unnecessary and could create confusion.
One commenter expressed agreement
that incorporation by reference can cut
down on bulk but indicated that CEQ
should expand § 1501.12 to address
other reasons to incorporate materials
by reference, such as to reduce
duplicative work and ensure efficient
use of agency resources. The commenter
also requested CEQ rephrase the section
to ensure that agencies can use preexisting documents to further the
efficiency requirements of NEPA. While
CEQ agrees that incorporation by
reference also reduces duplicative work
and facilitates efficient use of agency
resources, CEQ does not consider it
necessary to add additional text to the
regulations to make these points as the
regulations already emphasize
efficiency and use of other documents.
See, e.g., §§ 1506.2, 1506.3.
Finally, a commenter asserted the
proposed rule did not sufficiently
address avoidance of duplication
between the NEPA process and States’
environmental review and permitting
processes. The commenter requested
that CEQ clarify in § 1501.12 that there
is a presumption that agencies can
incorporate by reference environmental
studies prepared in accordance with
State procedural requirements akin to
NEPA. CEQ declines to make this
change. Establishing a presumption that
agencies can incorporate by reference
States’ materials would be confusing
and is unnecessary because the language
in § 1501.12 allows agencies to
incorporate material generated by
States, and § 1506.2 has long promoted
elimination of duplication with State
requirements.
D. Revisions To Update Part 1502,
Environmental Impact Statements
CEQ proposed to revise several
sections of part 1502, as discussed in
section II.D of the NPRM. CEQ is not
implementing any substantive changes
to § 1502.3, but is revising the section
title to read ‘‘Statutory requirements for
environmental impact statements.’’ CEQ
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is not making substantive changes to
§ 1502.6, Interdisciplinary preparation;
§ 1502.18, List of preparers; § 1502.19,
Appendix; § 1502.20, Publication of the
environmental impact statement;
§ 1502.22, Cost-benefit analysis; or
§ 1502.24, Environmental review and
consultation requirements. CEQ
received some comments on these
sections but declines to make additional
changes, as further explained in the
Phase 2 Response to Comments.
1. Codification of 2023 GHG Guidance
CEQ invited comment on whether it
should codify any or all of its 2023
National Environmental Policy Act
Guidance on Consideration of
Greenhouse Gas Emissions and Climate
Change (2023 GHG guidance).77 CEQ
also invited comment on which
provisions of part 1502 or other
provisions of the CEQ regulations CEQ
should amend if a commenter
recommended codification of part of the
guidance.
CEQ received numerous comments
responding to this request for comments
on codification of the 2023 GHG
guidance. Comments expressed both
support and opposition, with many
commenters including general
recommendations or considerations that
did not specify what amendments to the
rule CEQ should consider. Others
identified specific text or concepts they
recommended CEQ include. Some
commenters resubmitted the same
comments they submitted on the
interim guidance, whereas others
reiterated points they made as part of
their comments on the interim
guidance.
Some commenters requested that CEQ
incorporate quantification and
contextualization of climate effects from
the guidance into the final rule, with
specific suggestions for adding text to
§§ 1502.16(a)(1), 1501.3(d), and
1508.1(g). Another commenter
requested that CEQ modify
§ 1502.16(a)(7) to align the provision
with the guidance for emphasizing
quantification of emissions in
determining reasonably foreseeable
climate change-related effects. This
commenter also recommended CEQ add
provisions to § 1501.3 recognizing that
while there is no particular threshold
for GHG emissions that triggers an EIS,
Federal agencies should quantify, where
relevant, the reasonably foreseeable
direct and indirect GHG emissions of
their proposed actions and reasonable
alternatives and the effects associated
with those projected emissions in the
determination of significance.
77 See
CEQ, 2023 GHG Guidance, supra note 10.
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Another commenter asked that CEQ
expand § 1502.6(a)(7) or § 1508.1(g)(4) to
include key principles from the
guidance. The commenter provided as
an example that CEQ could clarify that
climate change related effects should
include analysis of reasonably
foreseeable direct, indirect, and
cumulative GHG emissions over the
expected lifetime of the action.
Multiple commenters requested that
CEQ add, in full, sections IV(B), (E), and
(F); V; VI(A) through (C) and (E); and VII
of the guidance. One commenter
requested that CEQ strengthen proposed
§ 1502.15(b) and proposed § 1502.23(c)
to require consideration of projections
based on varying emissions scenarios
and related variations in climate change
effects on the proposed action and
alternatives. The commenter referenced
information included in the 2023 GHG
guidance that provides important
information on quantifying and
analyzing uncertainty in the long-range
projects of climate change. The
commenter requested CEQ strengthen
the final rule by codifying the need to
manage this uncertainty and analyze it;
otherwise, the commenter asserted,
agencies may unlawfully seek to
minimize or avoid analysis of longrange projects of climate change
altogether.
One commenter requested that CEQ
add consideration for proportionality
and causality in the NEPA analysis of
GHG-related impacts to more
appropriately assign mitigation efforts to
the true source of greenhouse gases.
Another commenter suggested that CEQ
integrate the warning against perfect
substitution analysis from the guidance
directly into the regulatory text. They
also requested the rule include a
provision on the appropriate use of the
social cost of GHGs in climate change
analyses.
Some commenters opposed codifying
any part of the 2023 GHG guidance for
multiple reasons. Two commenters
expressed that inclusion of the guidance
in the regulations would trigger
concerns on overreach of the authority
of the administrative branch. Other
commenters expressed the view that
CEQ should not codify any parts of the
guidance until CEQ resolves policy
issues and addresses the comments
submitted on the guidance. A few other
commenters were concerned that
incorporation of climate change would
unlawfully expand the scope of NEPA
analyses past ‘‘foreseeable effects’’ and
result in agencies prioritizing climate
change above other environmental
issues. One commenter expressed that
because climate change science
continues to evolve, it would be
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premature to codify the guidance and
that retaining it as guidance would
provide flexibility to continue to update
the manner in which agencies address
climate change in NEPA reviews as
science evolves. Another commenter
stated that codification of guidance
would be arbitrary and capricious, and
that NEPA was not intended to be a
climate policy framework.
Two commenters stated that if CEQ
does decide to codify all or part of the
2023 GHG guidance, CEQ should issue
another NPRM to provide an
opportunity for the public to comment
prior to issuing a final rule, consistent
with the APA. Similarly, a few other
commenters stated that CEQ did not
provide enough information about how
CEQ may incorporate the guidance,
including what parts of the guidance
CEQ would include, and that any
attempt to codify the interim guidance
through the final rule would be contrary
to CEQ’s obligations under the APA.
A few commenters asserted that the
guidance wrongfully elevates climate
change and its effects, no matter how
small the effect may be, and that this
emphasis is inconsistent with the
purpose of NEPA and recent NEPA
amendments.
After considering the comments, CEQ
has determined not to revise the text of
the proposed rule in the final rule to
codify the 2023 GHG guidance, with the
exception of one revision on
quantification that was requested by
commenters and that is included in the
final rule in § 1502.16. CEQ responds to
the comments summarized here in the
Phase 2 Response to Comments, and
CEQ will consider these and the
comments received on the 2023 GHG
guidance during development of any
final GHG guidance. If CEQ deems it
appropriate, CEQ may consider
codification of the 2023 GHG guidance
in a future rulemaking.
2. Purpose of an Environmental Impact
Statement (§ 1502.1)
CEQ proposed to divide § 1502.1 into
paragraphs (a), (b), and (c) to enhance
readability and amend the text in the
section to restore the approach taken in
the 1978 regulations regarding the
purpose of EISs as they relate to NEPA.
In proposed paragraph (a), CEQ
proposed to restore language from the
1978 regulations clarifying that one
purpose of an EIS is to ‘‘serve as an
action-forcing device’’ for implementing
the policies set out in section 101 of
NEPA by ensuring agencies consider the
environmental effects of their action in
decision making. 42 U.S.C. 4331. CEQ
proposed these changes because
Congress did not enact NEPA to create
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procedure for procedure’s sake; rather,
NEPA’s procedures serve the
substantive policies and goals Congress
established and restoring the actionforcing language would clarify how EISs
serve this broader function. CEQ
proposed this change for consistency
with the proposed edits in § 1500.1. See
section II.B.1.
One commenter expressed support for
the proposed changes in paragraph (a),
specifying that the action-forcing
language captures the intent of NEPA
and serves the substantive policies and
goals established by Congress. Multiple
commenters opposed the proposed
changes in paragraph (a), asserting that
the language is contrary to the
procedural approach of NEPA, and that
it elevates the goals of the Act above the
statutory requirements of other
legislation. One commenter requested
CEQ replace the proposed clause at the
end of the sentence with language
stating that the goals of NEPA cannot
and do not supersede the requirements
of other Federal statutes. Specific to the
restoration of the action-forcing
language, one commenter opposed the
language because they do not agree that
an EIS could be an action-forcing device
on its own. The commenter described
that an environmental study could
reveal information that could be action
forcing but that an EIS itself should not
be and that an EIS is a device used to
disclose and study the environmental
consequences of actions. Other
comments expressed that the phrasing
inappropriately inserts a substantive
element into NEPA’s procedural
requirements.
CEQ disagrees with the assertions of
the commenters opposing this change
and restores the language from the 1978
regulations as proposed in § 1502.1(a).
As CEQ articulated in the proposed rule,
CEQ considers it appropriate to restore
this text from the 1978 regulations to
ensure that agencies use the information
gathered and analyzed in an EIS in their
decision-making processes. CEQ
disagrees that this language, which was
part of the 1978 regulations
implemented by agencies and
interpreted by courts for decades,
imposes a substantive requirement
inconsistent with the statute. This
provision does not require agency
decision makers to make any particular
decision based on the information in an
EIS; it only requires that the information
in an EIS inform the agency’s decision,
which is consistent with NEPA, agency
practice, and case law.
In proposed paragraph (b), CEQ
proposed minor edits for clarity and
consistency with other changes
proposed throughout the regulations.
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CEQ proposed to change ‘‘It’’ to
‘‘Environmental impact statements’’ to
improve readability in light of the
proposal to break this section into
lettered paragraphs. CEQ also proposed
to change ‘‘significant’’ to ‘‘important’’
before ‘‘environmental issues’’ and
insert ‘‘reasonable’’ before
‘‘alternatives’’ for consistency with
similar phrasing throughout the
regulations.
Two commenters requested that CEQ
further revise paragraph (b). One
requested that CEQ replace ‘‘enhance’’
with ‘‘restore and maintain’’ because the
underlying statute does not put the
burden on Federal decision makers or
project sponsors to ‘‘enhance’’ the
quality of the human environment. This
commenter pointed to 42 U.S.C. 4331(a)
and the language ‘‘restoring and
maintaining environmental quality.’’ A
second commenter requested CEQ
replace ‘‘avoid and minimize’’ with
‘‘reduce to the extent practical’’ to
conform to the plain language of the
NEPA statute.
CEQ finalizes § 1502.1(b) as proposed.
CEQ does not consider it necessary to
further revise this paragraph as the
commenters suggested because this
language has been in the regulations
since 1978, and CEQ is unaware of any
confusion or practical or legal problems
created by this language. In the absence
of such confusion or problem, CEQ
views the potential cost to agencies and
applicants of assessing what, if any,
change in practice is needed to
accommodate revised text as likely to
outweigh any potential benefit of the
language proposed by the commenters.
In proposed paragraph (c), CEQ
proposed to restore the 1978 language
clarifying that an EIS is more than a
disclosure document, and that agencies
must use EISs concurrently with other
relevant information to make informed
decisions. CEQ considers this language
to provide important direction to
agencies to ensure that EISs inform
planning and decision making and do
not serve as a perfunctory check-the-box
exercise.
One commenter expressed support for
the changes in proposed paragraph (c)
stating that it reinforces that EISs must
state how alternatives and decisions
will or will not achieve the
requirements of NEPA, the CEQ
regulations, and other environmental
laws and policies. Another commenter
expressed that the language regarding an
EIS being more than a disclosure
document suggests that something more
than a disclosure of environmental
impacts is required to comply with the
regulations. The commenter asserted
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this is contrary to NEPA’s original
intent.
One commenter requested that CEQ
delete the last sentence of the paragraph
requiring agencies to use EISs in
conjunction with other relevant material
to plan actions and make decisions. The
commenter asserted that the sentence is
not tethered to the EIS review process
but addresses agency efforts to plan
actions and make decisions, and
therefore, the commenter asserted, CEQ
is inserting itself into ongoing activities
beyond environmental review pursuant
to NEPA.
CEQ makes the changes as proposed
in § 1502.1(c) and adds ‘‘involve the
public’’ to the last sentence directing
agencies to use other material to plan
actions and make decisions. As CEQ
noted elsewhere in this final rule, CEQ
disagrees that NEPA is merely a checkthe-box exercise, and considers it
appropriate to reinforce this point in the
regulations. CEQ also declines to
exclude the proposed last sentence of
paragraph (c). This provision does not
go beyond NEPA, but rather emphasizes
that an EIS is one of the documents
agencies must use in their decisionmaking processes along with other
relevant documents.
3. Implementation (§ 1502.2)
CEQ proposed minor modifications to
§ 1502.2. First, CEQ proposed to restore
from the 1978 regulations the
introductory paragraph directing
agencies to prepare EISs consistent with
paragraphs (a) through (g) to achieve the
purpose established in § 1502.1. While
the 2020 rule removed this paragraph as
unnecessary, upon reconsideration CEQ
proposed to restore the language to
provide clarity on the purpose of this
section and improve readability.
One commenter expressed support for
all of the proposed revisions in § 1502.2
to ensure that lead agencies explain in
an EIS how alternatives and agency
decisions will or will not achieve the
requirements of NEPA, CEQ regulations,
and other environmental policies.
Further, the commenter characterized
the proposed changes as necessary to
facilitate NEPA’s goals of transparency
and public participation. CEQ
appreciates the commenters’ supportive
statements and in the final rule adds the
introductory paragraph to § 1502.2 as
proposed.
Next, in paragraph (b), CEQ proposed
to replace the word ‘‘significant’’ with
‘‘important’’ and add a reference to an
EA for clarity and consistency. In
paragraph (c), CEQ proposed to change
‘‘analytic’’ to ‘‘analytical,’’ and ‘‘project
size’’ to ‘‘the scope and complexity of
the action’’ since this provision is
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applicable to more than projects, and
the length of an EIS should be
proportional to the scope and
complexity of the action analyzed in the
document.
One commenter expressed support for
EISs being brief, concise, and no longer
than necessary, but expressed concern
over the language encouraging that the
length of an EIS should be proportional
to the effects and scope because this
language conflicts with the page limits
identified in § 1502.7. The commenter
requested CEQ delete the sentence
discussing proportionality to resolve
any confusion.
CEQ disagrees with the commenter.
The page limits provide the maximum
length for EISs. Agencies should not
automatically use every page allowable
under the page limits and should not
write documents longer than necessary.
This statement acknowledges that some
EISs may be less than the page limits.
CEQ proposed to delete ‘‘as
interpreted in’’ before ‘‘the regulations
in this subchapter’’ in paragraph (d), for
consistency with the changes in
§§ 1500.6 and 1502.9 as discussed in
section II.B.6. The proposed rule
explained that this phrase could
inappropriately constrain agencies
whose agency NEPA procedures go
beyond the CEQ regulations. One
commenter opposed the deletion of this
language, expressing support for the
inclusion of it to meet the spirit and
flexibility of the 2020 rule.
CEQ removes ‘‘as interpreted in’’ from
paragraph (d) in the final rule because
CEQ considers this language
inappropriately constricting and
potentially causing confusion in light of
changes CEQ is making to other
provisions of the regulations allowing
agencies to tailor their procedures to
their programs and include more
specific requirements and suggestions.
Under the revisions, EISs must state
how alternatives and decisions will or
will not achieve the requirements of
NEPA, the CEQ regulations, and other
environmental laws and policies.
Finally, CEQ proposed to delete the
word ‘‘final’’ in paragraph (f) because
the regulations do not distinguish
between a decision and final decision
and, therefore, using the phrase ‘‘final
decision’’ is inconsistent with use of
‘‘decision’’ elsewhere in the regulations.
CEQ makes this change as proposed in
the final rule.
4. Scoping (§ 1502.4)
As discussed in section II.C.8 on
§ 1501.9, ‘‘Public and governmental
engagement,’’ section II.C.2 on § 1501.3,
‘‘Determine the appropriate level of
NEPA review,’’ and section II.C.10 on
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§ 1501.11, ‘‘Programmatic
environmental document and tiering,’’
CEQ proposed to revise § 1502.4 by
retitling it ‘‘Scoping’’ and moving
provisions from 40 CFR 1501.9 (2020) to
this section and moving the existing
provisions of 40 CFR 1502.4 (2020),
‘‘Major Federal actions requiring the
preparation of environmental impact
statements’’ to §§ 1501.3 and 1501.11.
CEQ proposed to move the requirements
of scoping for EISs to part 1502, which
addresses the requirements specific to
EISs, while moving requirements for
determining scope applicable to all
environmental reviews to § 1501.3(b).
CEQ also proposed to revise the
provisions moved from 40 CFR 1501.9
(2020) to proposed § 1502.4 to align
scoping with related changes made on
public engagement in § 1501.9 and to
add requirements focused on increasing
efficiency in the EIS scoping process.
As discussed further in sections II.C.8
and section II.C.10, commenters were
generally supportive of this approach.
Commenters did provide a few targeted
comments as discussed further in this
section and the Phase 2 Response to
Comments.
CEQ proposed these changes because
it has heard from multiple Federal
agencies that there is uncertainty over
the differences between the scoping
process required for EISs and other
public involvement or engagement
requirements for NEPA reviews more
generally. By revising § 1501.9 on public
and governmental engagement and
moving the scoping provisions to
§ 1502.4, CEQ is emphasizing the
importance of public engagement in the
NEPA process generally, clarifying what
requirements are specific to the scoping
process for EISs, and clarifying what
requirements and best practices
agencies should consider regardless of
the level of NEPA review.
First, CEQ proposed to move 40 CFR
1501.9(a) (2020), outlining the general
purpose of scoping, to § 1502.4(a) and
proposed to change the words
‘‘significant’’ and ‘‘non-significant’’ to
‘‘important’’ and ‘‘unimportant,’’
respectively, to align with CEQ’s
proposed change to only use the word
‘‘significant’’ when describing effects,
which CEQ indicated was a clarifying,
non-substantive change. CEQ finalizes
this paragraph as proposed with three
additional changes to replace the
paragraph heading ‘‘Generally’’ with
‘‘Purpose,’’ to more accurately describe
the paragraph; to add use of the word
‘‘scoping’’ in the first sentence to make
clear that this sentence is describing the
purpose of scoping; and to change
‘‘may’’ to ‘‘should’’ in the second
sentence to address comments
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requesting clarification that scoping can
and should begin prior to issuance of
the NOI. This last change also
emphasizes the importance for agencies
to begin scoping work early to facilitate
meeting the statutory two-year deadline
for completing EISs. CEQ made clear in
the 2020 regulations that scoping should
begin as soon as practicable, so the
agency can gather the requisite
information to allow the public to
provide meaningful input on the NOI,
including on the topics specifically
identified for inclusion in the notice in
§ 1502.4(e)(1) through (e)(10). Agencies
cannot be reasonably expected to have
this information available to them
without beginning scoping prior to
issuance of the NOI.
Second, CEQ proposed to move
paragraph (c) of 40 CFR 1501.9 (2020)
on scoping outreach to § 1502.4(b) and
add an introductory sentence requiring
agencies to facilitate notification to
persons and agencies that may be
interested or affected by an agency’s
proposed action, consistent with the
public and governmental engagement
requirements in proposed § 1501.9. CEQ
finalizes this paragraph as proposed.
Third, CEQ proposed to move
paragraph (b) of 40 CFR 1501.9 (2020)
on cooperating and participating
agencies to § 1502.4(c) and retitle it
‘‘Inviting participation’’ to better reflect
that the paragraph covers cooperating
and participating agencies as well as
proponents of the action and other
likely affected or interested persons.
CEQ also proposed to strike the last
sentence providing an example of when
an agency might hold a scoping
meeting.
Some commenters expressed concern
for the removal of the language
requiring cooperating and participating
agencies be invited and consulted, and
noted their specific reference in the
NEPA statute. CEQ did not intend a
substantive change by modifying the
paragraph heading and notes that
§§ 1501.7 and 1501.8 have long
provided for the invitation of such
agencies to serve as cooperating or
participating agencies. In the final rule,
CEQ adds a clause to the regulatory text
to make clear that the invitation to
Federal, State, Tribal, and local agencies
and governments is to participate as
cooperating or participating agencies.
CEQ also notes that agencies invited to
serve as cooperating or participating
agencies should respond in a timely
manner to facilitate the inclusion in the
NOI of any information that these
agencies may need as part of the scoping
process.
A commenter also expressed
confusion about the reference to ‘‘the
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proponent of the action’’ since that is
the lead agency. This phrase, which has
been in the regulations since 1978,
refers to an outside party such as a
project sponsor or applicant. Therefore,
in this final rule, CEQ revises this
phrase to ‘‘any applicant’’ for
consistency with the final rule’s
definition of ‘‘applicant’’ and includes
‘‘any’’ since not all actions will involve
such parties.
Fourth, CEQ proposed to move
paragraphs (f) and (f)(1) through (f)(5) of
40 CFR 1501.9 (2020), which addresses
additional scoping responsibilities, to
§ 1502.4(d) and (d)(1) through (d)(5),
respectively. Within this list, CEQ
proposed modifications to paragraph
(d)(1) to change ‘‘significant’’ to
‘‘important’’ to align with changes in
paragraph (a) and the use of
‘‘significant’’ throughout the
regulations, which CEQ intended to be
a clarifying, non-substantive change.
CEQ finalizes these changes consistent
with its proposal. Additionally, in
paragraph (d)(3) of the final rule, CEQ
changes ‘‘public’’ EAs and other EISs to
‘‘publicly available’’ to clarify the
meaning of this provision.
Fifth, CEQ proposed to move the
requirements for an NOI from
paragraphs (d) and (d)(1) through (d)(8)
of 40 CFR 1501.9 (2020) to § 1502.4(e)
and (e)(1) through (e)(8), respectively.
CEQ proposed to delete the reference to
40 CFR 1507.3(f)(3) (2020) because CEQ
proposed to remove that provision from
the regulations, as discussed in section
II.I.3 of the proposed rule. CEQ
proposed to revise the language in
paragraph (e)(7) for consistency with
section 107(c) of NEPA requiring the
NOI to include a request for public
comment on alternatives or impacts and
on relevant information, studies, or
analyses, and proposed to delete the
cross reference to § 1502.17 because
CEQ proposed to broaden the language
in § 1502.17. 42 U.S.C. 4336a(c). CEQ
also proposed to delete the cross
reference because it would no longer be
necessary since CEQ proposed to
remove the exhaustion process in 40
CFR 1500.3 (2020), which relied, in
part, on this provision as the first step
in that process. Lastly, CEQ proposed
these edits because the purpose of
scoping is to receive input from the
public on the proposed action and
alternatives as well as other information
relevant to consideration of the
proposed action, and CEQ considered
the language in this paragraph to be
redundant to the other required
information in proposed paragraph (e).
CEQ is finalizing these changes as
proposed for the reasons set forth in the
NPRM and this final rule. Also, CEQ
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revises paragraph (e)(1) to add the word
‘‘agency’’ between ‘‘proposed action’’ to
align the text with changes to § 1502.13
and for consistency with section 107(d)
of NEPA. See 42 U.S.C. 4336a(d).
Sixth, to this list of NOI requirements,
CEQ proposed to add paragraph (e)(9) to
require the lead agency to list any
cooperating and participating agencies
that have been identified at the time of
the NOI, as well as any information
those agencies require to facilitate their
decisions or authorizations related to
the EIS. CEQ proposed to add this
requirement to ensure that lead and
cooperating agencies communicate
about any unique statutory or regulatory
requirements of each agency so that the
necessary information is included in the
initial NOI and does not require reissuance of a second NOI by the
cooperating or participating agency. For
example, the U.S. Forest Service’s
regulations regarding administrative
review require the responsible official to
disclose during the NEPA scoping
process that a proposed project or
activity or proposed plan, plan
amendment, or plan revision is subject
to one of its administrative review
regulations. 36 CFR 218.7(a), 219.52(a).
When the Forest Service acts as a
cooperating agency and the lead agency
does not include the necessary
information in the NOI, the Forest
Service then must issue its own NOI,
which can add additional time to the
NEPA process. CEQ is finalizing this
proposal consistent with the NPRM.
Seventh, CEQ proposed to add
paragraph (e)(10) to require that the NOI
include a unique identification number
for tracking purposes that would be
carried forward in all other documents
related to the action such as the draft
and final EISs and ROD (comparable to
the provision in § 1501.5(c)(4) requiring
tracking numbers for EAs). As discussed
in greater detail in section II.C.4, CEQ
proposed this provision because
identification numbers can help both
the public and agencies track the
progress of an EIS for a specific action
as it moves through the NEPA process.
In the final rule, CEQ has retained the
proposal and, in response to comments,
added a clause to also require use of the
unique identification numbers in any
agency databases or tracking systems.
Eighth, CEQ proposed to move and
edit the second sentence regarding
supplemental notices in 40 CFR
1507.3(f)(3) (2022) to paragraph (f),
‘‘Notices of withdrawal or cancellation,’’
to require that an agency publish in the
Federal Register a notice of withdrawal
of the NOI or a supplemental notice to
inform the public that it is no longer
considering a proposed action and,
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therefore, discontinuing preparation of
an EIS. CEQ proposed this requirement
to codify common agency practice and
to increase transparency to the public.
CEQ is finalizing this change as
proposed because agencies should
publish such notices if they withdraw,
cancel, or otherwise cease the
consideration of a proposed action
before completing a final EIS in order to
provide notice to the public that a
proposed action is no longer under
consideration. Such a notice does not
need to be lengthy, but should clearly
reference the original NOI, name of the
project in the original notice, unique
identification number, and who to
contact for additional information.78
Finally, CEQ proposed to move
paragraph (g) of 40 CFR 1501.9 (2020)
on NOI revisions to § 1502.4(g),
updating the cross references and
changing ‘‘significant’’ to ‘‘important’’
and ‘‘impacts’’ to ‘‘effects,’’ which CEQ
indicated was a clarifying, nonsubstantive edit. CEQ makes this change
in the final rule, consistent with the
NPRM to align the text with the changes
to § 1502.9(d)(1)(ii).
5. Timing (§ 1502.5)
CEQ proposed to make three
clarifying amendments to § 1502.5.
First, in paragraph (a), CEQ proposed to
add ‘‘e.g.,’’ in the parenthetical ‘‘(go/nogo).’’ CEQ proposed this amendment in
response to agency feedback during the
development of the proposed rule to
clarify that the feasibility analysis and
the ‘‘go/no-go’’ stage may not occur at
the same point in time and may differ
depending on what is included in the
feasibility analysis and how the agency
has structured that analysis. CEQ
proposed this change for consistency
with the longstanding practice that
agencies have discretion to decide the
appropriate time to begin the NEPA
analysis, but also that agencies should
integrate the NEPA process and other
planning or authorization processes
early. See § 1501.2(a).
Two commenters recommended CEQ
delete the introductory paragraph of
§ 1502.5 encouraging agencies to
commence preparation of an EIS as
close as practicable to the time the
agency is developing or receives a
proposal, as well as the feasibility
analysis and go/no-go language in
78 See, e.g., U.S. Forest Serv., Powell Ranger
District; Utah; Powell Travel Management Project;
Withdrawal of Notice of Intent to Prepare an
Environmental Impact Statement, 87 FR 1109 (Jan.
10, 2022); U.S. Army Corps of Eng’rs, Withdrawal
of the Notice of Intent to Prepare an Environmental
Impact Statement for the Carpinteria Shoreline, a
Feasibility Study in the City of Carpinteria, Santa
Barbara County, CA, 86 FR 41028 (July 30, 2021).
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paragraph (a). The commenters asserted
that the feasibility analysis stage is
generally considered an early stage of
project management and suggested this
stage was pre-proposal and therefore
pre-NEPA. The commenters explained
that this stage can and should take
considerable time, and therefore should
not be covered by the time limits, or
agencies will likely miss the statutory
deadlines. The commenters asserted
that the NEPA process should not
commence until this stage is completed.
One of these commenters further
pointed to the statutory definition of
‘‘proposal’’ added in 2023 and asserted
this should be the starting point for the
timing requirements for EISs and EAs.
The commenter further asserted that
CEQ should encourage pre-NEPA
‘‘environmental considerations’’ early in
agency planning and decision making
prior to issuing a NOI to file an EIS.
In the final rule CEQ revises
§ 1502.5(a) to revise ‘‘at the feasibility
analysis (go/no-go) stage’’ to instead
refer to the feasibility analysis or
equivalent stage evaluating whether to
proceed with the project. This revised
text improves the clarity of the sentence
and recognizes that feasibility analyses
are not a component of project
authorizations for every agency. The
regulations have long encouraged
agencies to integrate NEPA into their
planning and decision-making
processes. As CEQ advised in the 2020
regulatory revisions, agencies often
begin ‘‘pre-NEPA’’ work before they
make the formal determination to
prepare an EIS by issuing a NOI. As
discussed in section II.D.4, agencies
must commence this work before
issuing an NOI in order to meet the
content requirements for an NOI. CEQ
does not consider it necessary to
delineate these phases in the
regulations, as the commenter suggests,
because agencies have decades of
experience in developing EISs
consistent with this provision, and CEQ
is unaware of any agency concerns with
or practical problems created by this
provision.
Second, CEQ proposed to add
‘‘complete’’ in the first sentence of
paragraph (b) to clarify that agencies
must begin preparing an EIS after
receiving a complete application,
though agencies can elect to begin the
process earlier if they choose to do so.
CEQ also proposed to add ‘‘together
and’’ in the second sentence of
paragraph (b) to clarify further that
agencies should work ‘‘together and
with’’ potential applicants and other
entities before receiving the application.
CEQ proposed these changes based on
its experience that early conversations
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and coordination among Federal
agencies, the applicant, and other
interested entities can improve
efficiencies in the NEPA process and
ultimately lead to better environmental
outcomes. Additionally, CEQ noted that
similar to the proposed change to
paragraph (a), the proposed changes to
paragraph (b) are consistent with other
directions in the regulations to integrate
the NEPA process and other processes
early. See §§ 1500.5(h)–(i), 1501.2(a).
One commenter requested CEQ revise
paragraph (b) in order to ensure there
are no unnecessary delays in
proceeding. The commenter suggested
language be added to require agencies to
commence review of the application
and decide on its completeness within
30 days and issue a NOI within 6
months. The commenter also requested
CEQ add language requiring agencies to
establish objective measures in their
regulations for determining when an
application is complete.
CEQ declines to add this level of
specificity in its regulations because the
regulations apply to a broad range of
agencies and contexts, and these
specific requirements may not work for
all of them. Instead, it is best left to
agency-specific NEPA procedures or
agency program regulations to articulate
these sorts of deadlines. In the final
rule, CEQ adds ‘‘complete’’ in paragraph
(b) consistent with its proposal.
6. Page Limits (§ 1502.7)
CEQ proposed to amend § 1502.7, to
align the text with section 107(e) of
NEPA, which sets page limits for EISs
at 150 pages or 300 pages for proposals
of extraordinary complexity, not
including citations or appendices. 42
U.S.C. 4336a(e). CEQ proposed to
remove the requirement for the senior
agency official of the lead agency to
approve longer documents for
consistency with the statute, which does
not provide a mechanism to approve
longer documents.
CEQ received a number of comments
on page limits. Some commenters
expressed concerns that the page limits
would prevent agencies from
conducting the requisite analysis under
NEPA. Some of those commenters
requested that CEQ retain the provision
allowing the senior agency official to
authorize an exceedance of the page
limits. Other commenters expressed
support for the page limits and
requested that CEQ impose additional
requirements to ensure agencies do not
circumvent the page limits. Commenters
also requested CEQ define
‘‘extraordinary complexity.’’
CEQ makes the changes as proposed
in the final rule. The NEPA statute sets
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clear page limits for EAs and EISs and
does not establish a mechanism for
exceeding those page limits. Allowing
senior agency officials to approve an
exceedance of the page limits would
undermine the direction in the statute
and CEQ’s longstanding goals of
developing concise, readable NEPA
documents that will inform the decision
maker and the public. CEQ is confident
that agencies can both meet page limits
and fully consider the elements required
by the statute and these regulations.
CEQ has long encouraged and
continues to strongly encourage
agencies to prepare EISs that are both
comprehensive and informative, as well
as understandable, to the decision
maker and the public. Agencies should
consider establishing within their
procedures mechanisms to do so that
will be most effective for their programs
and activities. These mechanisms could
include placing technical analyses in
appendices and summarizing them in
plain language in the EIS; making use of
visual aids, which are excluded from
the definition of ‘‘page’’ provided by
§ 1508.1(bb), including sample images,
maps, drawings, charts, graphs, and
tables; and using interactive documents,
insets, colors, and highlights to create
visually interesting ways to draw
attention to key information and
conclusions. Agencies should consider
making EISs and technical appendices
machine readable, where possible and
feasible, to facilitate data sharing and
reuse in future analyses.
7. Writing (§ 1502.8)
CEQ proposed minor edits to § 1502.8
to change ‘‘may’’ to ‘‘should’’ and
change ‘‘graphics’’ to ‘‘visual aids or
charts’’ for consistency with
modifications proposed in § 1502.12
regarding visual aids or charts. One
commenter expressed support for the
proposed changes to require agencies to
use plain language and encourage use of
visual aids and charts. However, this
commenter stated that use of visual aids
and charts must be designed to be
understandable to non-technical
audiences, pointing to documents they
have reviewed that included tables that
are difficult to understand.
CEQ makes the edits as proposed in
§ 1502.8 in the final rule. The CEQ
regulations have long required agencies
to write environmental documents in
plain language as a means to preparing
readable, concise, and informative
documents. See, e.g., §§ 1500.4 and
1502.8. Agencies commonly use visual
aids, such as graphics, maps, and
pictures, throughout their
environmental documents. CEQ agrees
with the commenters that the visual
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aids and charts must be understandable
but does not consider it necessary to
make additional changes to the
regulatory text since the text indicates
that the purpose of visual aids and
charts is to enable decision makers and
the public to readily understand the EIS.
EISs must be written in plain language,
and this requirement would also apply
to visual aids and charts.
8. Draft, Final, and Supplemental
Statements (§ 1502.9)
CEQ did not propose any substantive
changes to paragraph (a) of § 1502.9 and
did not receive any comments on it.
Therefore, CEQ finalizes paragraph
§ 1502.9(a) as proposed.
CEQ proposed to revise paragraph (b)
addressing draft EISs by deleting ‘‘as
interpreted’’ from the requirement that
draft EISs meet the requirements for
final EISs in section 102(2)(C) of NEPA
‘‘as interpreted in the regulations in this
subchapter.’’ 42 U.S.C. 4332(2)(c). CEQ
proposed to delete this clause as
inappropriately restrictive and for
consistency with the same proposed
change in §§ 1500.6 and 1502.2. CEQ
makes this change in the final rule for
the reasons discussed in section II.B.6
with respect to deleting the same phrase
in § 1500.6.
CEQ also proposed to add the phrase
‘‘the agency determines that’’ to the
introductory clause of the third sentence
of § 1502.9(b) so that the beginning of
the sentence would read, ‘‘If the agency
determines that a draft statement is so
inadequate as to preclude meaningful
analysis.’’ CEQ proposed this addition
to clarify that it is the agency preparing
a draft EIS that determines a draft
statement requires supplementation to
inform its decision-making process.
A commenter suggested additional
language for the second sentence of
paragraph (b) to clarify that a lead
agency must work with a cooperating
agency to develop the proposed action
and subsequent range of all alternatives.
Another commenter recommended CEQ
add the phrase ‘‘may identify a
preferred alternative’’ to the end of
§ 1502.9(b) to clarify that agencies have
the authority to identify a preferred
alternative in a draft EIS.
In the final rule, CEQ revises
paragraph (b) consistent with its
proposed clarifying changes. CEQ
declines to make the edits suggested by
the commenters as §§ 1501.7 and 1501.8
address the roles of lead and
cooperating agencies, and § 1502.14(d)
already requires agencies to identify a
preferred alternative or alternatives in
the draft EIS, if one or more exists.
In § 1502.9(c), CEQ proposed to
clarify that a final EIS should ‘‘consider
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and respond’’ to comments rather than
just ‘‘address’’ them, thereby restoring
language from the 1978 regulations and
aligning the language with text in
§ 1503.4(a) regarding consideration of
comments. The proposed rule explained
that the 2020 rule did not explain the
change from ‘‘consider and respond’’ to
‘‘address,’’ 79 and CEQ is concerned that
it could be read as weakening the
standard for responding to comments
within § 1502.9 and in § 1503.4. CEQ
makes this change in the final rule for
consistency with § 1503.4(a).
One commenter suggested that CEQ
replace ‘‘responsible opposing view’’ in
paragraph (c) with ‘‘relevant and nonfrivolous opposing view’’ to promote
transparency and remove subjectivity
regarding the definition of
‘‘responsible.’’ In the final rule, CEQ
revised paragraph (c) consistent with its
proposed clarifying changes. CEQ
declines to change ‘‘responsible,’’ which
has been in the regulations since 1978,
and CEQ has not heard that there is
confusion regarding the meaning of this
term or that it is creating practical
problems for agencies implementing
NEPA or the public seeking to
participate in NEPA reviews. CEQ
interprets this phrasing to mean that
there is a reasoned basis for the
opposing view, not one that is arbitrary.
Paragraph (d) of § 1502.9 and its
subparagraphs address the standards for
supplemental EISs. While CEQ did not
propose changes to paragraph (d)(1), a
commenter suggested that the phrase ‘‘if
a major Federal action remains to
occur’’ is vague. In the final rule, CEQ
revises the text in paragraph (d)(1)
addressing when an agency has to
consider a supplemental EIS. In the
2020 rule, CEQ added a clause to
specify that agencies prepare
supplements if an action ‘‘remains to
occur.’’ Upon further consideration,
CEQ revises this phrase in the final rule
to ‘‘is incomplete or ongoing’’ to provide
more clarity and specifically identify
the circumstances when an agency
needs to consider supplementation.
CEQ intends the phrase ‘‘incomplete
and ongoing’’ to have the same
substantive meaning as ‘‘remains to
occur,’’ and notes that courts have used
both phrases. See, e.g., Marsh v. Or. Nat.
Res. Council, 490 U.S. 360, 373 (1989)
(holding that supplementation may be
required ‘‘[i]f there remains major
Federal action to occur’’; Norton v. S.
Utah Wilderness All., 542 U.S. 55, 73
(2004) (citing Marsh and holding that an
agency is not required to supplement
when the action in question is
79 See CEQ, 2020 Final Rule, supra note 39, at
43364–65.
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‘‘completed,’’ and is no longer
‘‘ongoing’’).
In paragraph (d)(1)(ii), CEQ proposed
to replace the word ‘‘significant’’ with
‘‘important’’ and ‘‘impacts’’ with
‘‘effects’’ (except where ‘‘impact’’ is
used as part of the term FONSI) for
consistency, as discussed in section
II.A. CEQ also proposed to add
‘‘substantial or’’ before ‘‘important new
circumstances or information,’’ for
consistency with language in section
108(1) of NEPA, which confirms that an
agency may rely on the analysis in an
existing programmatic environmental
document for five years without having
to supplement or reevaluate the
analysis, provided no substantial new
circumstances or information exists. 42
U.S.C. 4336b(1).
Two commenters indicated that the
proposed rule does not align with the
statutory language in section 108 of
NEPA regarding supplementation and
reevaluation, because that section does
not include the words ‘‘or important’’
before ‘‘new circumstances.’’ See 42
U.S.C. 4336b. Two commenters opposed
the replacement of ‘‘significant’’ with
‘‘substantial,’’ expressing concern that it
will increase uncertainty. A few
commenters also requested that CEQ
add definitions for ‘‘substantial
changes,’’ ‘‘substantial or important new
circumstances,’’ and ‘‘environmental
concerns are not substantial.’’
In the final rule, CEQ revises
paragraph (d)(1)(ii) by replacing
‘‘significant’’ with ‘‘substantial’’ to track
the language of section 108(1) of NEPA
requiring agencies to supplement if
there are substantial new circumstances
or information about the significance of
adverse effects that bear on the analysis.
42 U.S.C. 4336b(1). CEQ interprets this
language as consistent with the
longstanding standard for
supplementation and considers it a nonsubstantive change that clarifies one of
the standards for supplementation of an
EIS. Directly incorporating the language
from section 108(1) of NEPA also avoids
creating an implication that there are
different supplementation standards for
programmatic environmental
documents and other environmental
documents. As noted, the language in
section 108(1) is consistent with
longstanding practice, so there are not
different standards for supplementation
for programmatic environmental
documents. 42 U.S.C. 4336b(1). This
approach also obviates the need for the
definitions requested by commenters
because agencies have extensive
experience applying the
supplementation standard.
One commenter suggested that CEQ
revise § 1502.9(d)(1)(ii) to clarify that
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supplementation is not limited to new
environmental effects and that it also
would apply to situations where the
purpose and need or the alternatives are
changed. CEQ declines to edit this
paragraph to clarify this point because
this scenario would be covered by the
other criterion for supplementation in
paragraph (d)(1)(i). Consistent with
existing agency practice, agencies
should continue to focus on whether a
change to the proposed action could
have environmental effects that have not
been analyzed in determining whether
changes to the proposed action require
supplementation.
Another commenter noted that the
cross-reference to the Emergencies
section, § 1506.11, was incorrect in
proposed paragraph (d)(3). In the final
rule, CEQ fixes the cross reference and
revises ‘‘alternative procedures’’ to
‘‘alternative arrangements’’ for
consistency with the phrasing of
§ 1506.11.
CEQ proposed to redesignate
paragraph (d)(4) of 40 CFR 1502.9 (2020)
as paragraph (e) of § 1502.9 and title it
‘‘Reevaluation’’ to clarify that
reevaluation is a separate tool to
document new information when
supplementation is not required. CEQ
proposed to add in paragraph (e) that
agencies may ‘‘reevaluate’’ an EIS in
part to determine that changes to the
proposed action or new circumstances
or information relevant to
environmental concerns are not
‘‘substantial’’ or ‘‘that the underlying
assumptions of the analysis remains
valid,’’ and therefore, the agency does
not need to prepare a supplemental EIS.
CEQ proposed this language in part for
consistency with section 108(2) of
NEPA’s rule that an agency may rely on
programmatic documents that are more
than five years old if it reevaluates the
underlying analysis. 42 U.S.C. 4336b(2).
However, while section 108(2) requires
reevaluation for programmatic
documents more than five years old,
CEQ proposed to leave agencies
discretion over whether and when to
reevaluate non-programmatic
documents. 42 U.S.C. 4336b(1).
One commenter requested that CEQ
revise paragraph (e) to clarify that when
agencies reevaluate their NEPA
documents, supplementation is required
if the changes are substantial or the
underlying assumptions of the analysis
do not remain valid. A couple of
commenters requested specific wording
changes, including adding ‘‘or
important’’ after ‘‘substantial’’ in the
first sentence of paragraph (e) and
changing ‘‘the agency should’’ to ‘‘the
agency must document the finding.’’
Another commenter asked CEQ to revise
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paragraph (e) to clarify that new
circumstances or information in the
absence of a major Federal action do not
trigger a requirement to reevaluate an
EIS. Another commenter recommended
language to clarify that reevaluation
should only be permitted in
circumstances for which the proposed
action has not changed physical
location.
In the final rule, CEQ revises
paragraph (e) to simplify the paragraph
on reevaluation and provide that
agencies may reevaluate EISs to
determine that supplementation is not
required. This text is substantively the
same as the proposed rule, but avoids
unnecessary repetition of the standard
for supplementation and avoids any
potential confusion that there is an
independent standard for reevaluation.
Agencies may use reevaluation to
document why a change to an action or
new information does not require
supplementation. Additionally, agencies
may use reevaluation to conduct
additional analysis to determine
whether the change to the action or the
new information meets either of the
criteria for supplementation; in such
cases, the agency would then prepare a
supplemental EIS. Some agency
procedures already provide such
processes and § 1507.3(c)(10) provides
that agencies must include such
processes in their NEPA procedures, as
appropriate. CEQ revises the last
sentence of paragraph (e) to clarify that
agencies also may prepare a
supplemental EA and FONSI to
reevaluate an EIS. Some agencies
already do this in practice, and CEQ is
revising this language in the final rule
to codify the practice.
One commenter provided general
feedback on § 1502.9 recommending
CEQ include language requiring that
final EISs and reevaluated EISs adhere
to the regulatory requirements in place
at the time the agency develops the
supplement. CEQ declines to make
these changes as agencies are in the best
position to determine which regulatory
requirements apply on a case-by-case
basis, consistent with § 1506.12, which
addresses the effective date of the final
rule.
9. Recommended Format (§ 1502.10)
In § 1502.10, CEQ proposed to revise
the recommended format of an EIS. CEQ
proposed to add cross references to the
relevant regulatory sections at the end of
paragraphs (a)(1), (a)(2), and (a)(4)
through (a)(6). In paragraph (a)(7), CEQ
proposed to strike the reference to
‘‘submitted alternatives, information,
and analyses’’ given the proposed
revisions to § 1502.17. CEQ proposed to
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move appendices to paragraph (a)(7),
include the summary of scoping
information required by § 1502.17 and
the list of preparers required by
§ 1502.18 in appendices, rather than the
main body of the EIS, and add cross
references to the relevant regulatory
sections. Therefore, CEQ proposed to
strike paragraphs (a)(8) and (a)(9) of 40
CFR 1502.10 (2020) referencing the list
of preparers and appendices since these
lists would be addressed in paragraph
(a)(7). Finally, CEQ proposed to revise
paragraph (b) to require agencies to
include all of the sections referenced in
paragraph (a) if they choose to use a
different format.
CEQ received minimal comments on
the proposed changes to § 1502.10, and
the few comments submitted expressed
support for the proposed changes. One
commenter also requested that CEQ
require the EIS format for EAs. CEQ
makes the changes to § 1502.10 as
proposed. CEQ declines to apply this
section to EAs as well because § 1501.5
already addresses the required sections
of an EA.
10. Cover (§ 1502.11)
CEQ proposed to revise § 1502.11(a)
to clarify that the list of ‘‘responsible
agencies’’ on an EIS cover are the ‘‘lead,
joint lead, and any cooperating
agencies.’’ CEQ did not receive
comments specific to this proposal but
has added the phrase ‘‘to the extent
feasible’’ before ‘‘any cooperating
agencies’’ to address the rare
circumstance in which there may be
such a large number of cooperating
agencies that listing all of them on the
cover would make the cover unreadable.
In such circumstances, an agency may
include a note on the cover that
identifies where in the EIS a list of the
cooperating agencies is found.
Consistent with the proposed change
in § 1502.4(e)(10) to require a unique
identification number for tracking
purposes, CEQ proposed to amend
paragraph (g) to require the cover to
include the identification number
identified in the NOI. As discussed
further in sections II.C.4 and II.D.4, CEQ
is including the requirement for unique
identification numbers in the final rule,
and therefore adds this requirement to
§ 1502.11(g) as proposed. The inclusion
of the identification number on the
cover clarifies the relationships of
documents to one another, helps the
public and decision makers easily track
the progress of the EIS as it moves
through the NEPA process, and
facilitates digitization and analysis.
CEQ proposed to strike the
requirement in paragraph (g) of 40 CFR
1502.11 (2020) to include on the cover
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of the final EIS the estimated
preparation cost. Multiple agencies
requested this change during
development of the proposed rule. The
2020 rule added this requirement stating
that including estimated total costs
would be helpful for tracking such
costs, and that agencies could develop
their own methodologies for tracking
EIS preparation costs in their agency
NEPA procedures.80 However, Federal
agency commenters stated that agencies
typically do not estimate total costs, that
they are difficult to monitor especially
when applicants and contractors are
bearing some of the cost, that the
methodology for estimating costs is
inconsistent across agencies, and that
providing these estimates would be
burdensome. At least one agency
commenter noted that agencies
inconsistently implemented a similar
requirement in E.O. 13807,81 which
undermined the utility of the estimates,
that tracking costs added a significant
new burden on staff, and that it was not
clear whether tracking such costs
provided useful information for
agencies or the public.
Commenters both supported and
opposed the proposal to remove the
requirement to include the estimated
preparation costs on the cover of the
final EIS. Commenters who supported
removing the requirement stated that
the requirement added in 2020 imposed
a substantial administrative burden on
agencies and increased the length of the
EIS preparation process because
accurately tracking the total cost of
preparation is difficult and laborintensive. A few commenters expressed
support for removing the requirement
but suggested that, in order to facilitate
transparency, CEQ could encourage
agencies to include estimated cost
information in the EIS, indicating this
information could easily be included in
an appendix.
Commenters who opposed the
removal expressed that the requirement
improves transparency and
accountability and also suggested that
tracking costs can improve the
efficiency of the NEPA process. One
commenter also asserted that CEQ failed
to explain why it is no longer necessary
to fulfill the data gap that was outlined
in the 2020 rulemaking as a basis for
adding the requirement.
As stated in the proposed rule, CEQ
does not consider EIS costs to be
germane to the purpose of an EIS.
Requiring that they be included on the
cover could incorrectly lead the public
and decision makers to believe that
80 Id.
at 43329.
13807, supra note 14.
81 E.O.
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those costs provide information about
the proposed action addressed in the
EIS. In general, the purpose of the cover
is to indicate the subject matter of the
document and provide the public with
an agency point of contact, provide a
short abstract of the EIS, and indicate
the date by which the public must
submit comments. Further, CEQ was
concerned that requiring agencies to
calculate costs may unnecessarily add
time and expense to the EIS preparation
process, particularly where aspects of an
environmental review serve multiple
purposes, and allocating costs to NEPA
compliance and other obligations may
be complicated.
CEQ recognizes the value in gathering
information on overall costs, trends in
costs, and approaches that can reduce
costs, as this can provide a full picture
of how and whether agencies are
effectively using their resources,
including to conduct environmental
reviews. Each agency should track and
monitor these costs through their own
procedures and mechanisms and
consult with CEQ about any lessons
learned to inform CEQ’s ongoing
evaluation of the efficiency and
effectiveness of the NEPA process.
However, CEQ does not consider
requiring in the NEPA regulations that
agencies publish costs on the cover of
EISs to be the appropriate mechanism to
develop that information.
CEQ considered the comments it
received and is removing the
requirement to include costs from
paragraph (g). Removing this
requirement does not preclude agencies
from developing cost information or
including it in an EIS if they deem it
appropriate, but CEQ is concerned that
the increased administrative burden of
tracking costs, including the potential
additional time needed to gather
information, will unnecessarily delay
NEPA processes. Further, the lack of
consistent methodology across agencies
coupled with the significant burden to
develop consistent methodology, for
which CEQ lacks the specialized
expertise to do so, limits the utility of
requiring agencies to present this
information.
11. Summary (§ 1502.12)
CEQ proposed modifications to
§ 1502.12 to clarify the purpose of the
summary and update what elements
agencies should include in the
summary, with a goal of creating
summaries that are more useful to the
public and agency decision makers.
CEQ proposed these changes so that the
summary would provide the public and
agency decision makers with a clear,
high-level overview of the proposed
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action and alternatives, the significant
effects, and other critical information in
the EIS.
In the second sentence of § 1502.12,
CEQ proposed to replace the word
‘‘stress’’ with ‘‘include’’ in describing
the contents of the summary to clarify
that an adequate and accurate summary
may include more than what is listed in
§ 1502.12. Next, CEQ proposed to clarify
that the summary should ‘‘summarize
any disputed issues,’’ ‘‘any issues to be
resolved,’’ and ‘‘key differences among
alternatives.’’
CEQ proposed these changes to
provide the public and decision makers
with a more complete picture of the
disputed issues, rather than focusing on
‘‘areas of’’ disputed issues, and to
facilitate informed decision making and
transparency. CEQ also proposed these
edits for consistency with § 1502.14(b),
which requires agencies to discuss
alternatives in detail. CEQ explained in
the proposed rule that summarizing the
key differences between alternatives
would enhance the public’s and
decision makers’ understandings of the
relative trade-offs between the
alternatives that the agency considered
in detail.
One commenter expressed concern
with CEQ’s proposal stating that
summarizing ‘‘any’’ issue trivializes the
analytical process and makes the
summary more like a catalog of issues
raised, regardless of how ill-informed or
baseless the issues may be.
CEQ finalizes the changes as
proposed. CEQ disagrees with the
commenter’s interpretation of the use of
the term ‘‘any.’’ CEQ’s intent in using
the qualifier ‘‘any’’ is to acknowledge
that some EISs will not have any
disputed issues or issues for resolution.
It is not CEQ’s intent for agencies to
include a laundry list of every minor
issue. Rather, CEQ intends the summary
to explain the big-picture and important
issues that the EIS addresses.
CEQ also proposed to add language to
the second sentence to require that the
summary identify the environmentally
preferable alternative or alternatives.
CEQ proposed this addition to enhance
the public’s and decision makers’
understandings of the alternative or
alternatives that will best promote the
national environmental policy, as
expressed in section 101 of NEPA, by
providing a summary of that alternative
early on in the document. As discussed
further in section II.D.13, CEQ is
finalizing its proposal to require
agencies to identify the environmentally
preferable alternative in the EIS, and
therefore finalizes this addition to
§ 1502.12 as proposed.
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CEQ proposed to add a third sentence
to § 1502.12 to require agencies to write
the summary in plain language and
encourage use of visual aids and charts.
CEQ proposed this addition to make EIS
summaries easier to read and
understand.
One commenter expressed support for
the proposed changes to require
agencies to write the summary in plain
language and to encourage use of visual
aids and charts. However, this
commenter stated that agencies must
design their use of visual aids and
charts to be understandable to nontechnical audiences, pointing to
documents they have reviewed that
included tables that are difficult to
understand.
CEQ adds the proposed sentence to
§ 1502.12 in the final rule. The CEQ
regulations have long required agencies
to write environmental documents in
plain language as a means to preparing
readable, concise, and informative
documents. See, e.g., 40 CFR 1500.4 and
1502.8 (2019). Agencies commonly use
visual aids, such as graphics, maps, and
pictures, throughout their
environmental documents. CEQ agrees
with the commenters that visual aids
and charts should be understandable
but does not consider it necessary to
make additional changes to the
regulatory text. Section 1502.8 explains
that agencies should use visual aids or
charts in EISs so that decision makers
and the public can readily understand
them, which includes in the summary.
Finally, similar to other changes
regarding page limits, CEQ proposed to
allow agencies flexibility in the length
of a summary. CEQ proposed to remove
the 15-page limitation on summaries
and instead to encourage that
summaries not exceed 15 pages.
Although summaries should be brief,
CEQ acknowledged with this proposed
change that some proposed actions are
more complex and may require
additional pages.
One commenter suggested that CEQ
require the summary to include a
consistency analysis that compares the
proposed action and alternatives with
applicable State and county resource
management plans and State statutes.
To accommodate their suggestion, the
commenters indicated that the page
limit might need to be adjusted to more
than 15 pages.
CEQ makes the change to the length
of summaries as proposed to provide
agencies with flexibility to vary the
length of documents based on the
complexity of the action. Because
summaries count toward the page limits
set in § 1502.7, agencies have an
incentive to keep summaries as short as
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possible while providing necessary
information to the public and decision
makers. While CEQ declines to require
the summary to include a consistency
analysis per the commenter’s suggestion
because it is inappropriately specific for
government-wide regulations, the
additional flexibility for length would
accommodate such an approach, should
an agency choose to do so.
12. Purpose and Need (§ 1502.13)
CEQ proposed to revise § 1502.13 to
align the language with the text of
section 107(d) of NEPA, which requires
an EIS to include a statement that
briefly summarizes the underlying
purpose and need for the proposed
agency action. See 42 U.S.C. 4336a(d).
CEQ received multiple comments
requesting that CEQ revise § 1502.13 to
revert to the 2020 rule’s language
providing that when an agency’s
statutory duty is to review an
application for authorization, the agency
must base the purpose and need on the
applicant’s goals and the agency’s
authority. CEQ revised this language in
the Phase 1 rulemaking and declines to
restore the 2020 language for the reasons
discussed in the Phase 1 rulemaking,
the Phase 1 Response to Comments, and
the Phase 2 Response to Comments.
Additionally, CEQ declines to include
this language in the final rule because
it is inconsistent with section 107(d) of
NEPA. 42 U.S.C. 4336a(d). CEQ revises
§ 1502.13 as proposed.
One commenter requested CEQ clarify
that the purpose and need of a proposed
action should define or limit the
reasonableness of the range of
alternatives, which is identified in the
statutory amendments. CEQ addresses
alternatives in § 1502.14 and declines to
edit this section to address alternatives.
Another commenter requested CEQ add
a direction for agencies to use narrow
purpose and need statements that limit
the potential reasonable alternatives.
CEQ declines to make this change
because it would be inconsistent with
section 107(d) of NEPA and would
undermine the discretion and judgment
that agencies appropriately exercise in
defining the purpose and need for their
actions. See 42 U.S.C. 4336a(d).
13. Alternatives Including the Proposed
Action (§ 1502.14)
CEQ proposed revisions to § 1502.14
to promote the rigorous analysis and
consideration of alternatives. To that
end, CEQ proposed to reintroduce to
§ 1502.14 much of the 1978 text that the
2020 rule removed and to modernize it
to ensure agency decision makers are
well-informed. Many commenters on
the Phase 1 rule requested CEQ revise
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this provision to revert to the 1978
language or otherwise revise it to ensure
agencies fully explore the reasonable
alternatives to their proposed actions.82
First, CEQ proposed to revise the
introductory paragraph of § 1502.14 to
reinstate the language from the 1978
regulations that provided that the
alternatives analysis ‘‘is the heart of the
environmental impact statement.’’ As
CEQ explained in the NPRM, while the
2020 rule described this clause as
‘‘colloquial language’’ to justify its
removal,83 CEQ has reconsidered its
position and now considers the
language to be an integral policy
statement that emphasizes the
importance of the alternatives analysis
to allow decision makers to assess a
reasonable range of possible approaches
to the matters before them, and notes
that numerous court decisions quoted
this language from the 1978 regulations
in stressing the importance of the
alternatives analysis. See, e.g., Wyoming
v. U.S. Dep’t of Agric., 661 F.3d 1209,
1243 (10th Cir. 2011). The proposed rule
also noted that numerous commenters
on the 2020 rule and the 2022 Phase 1
rule supported the inclusion of this
language.84
Multiple commenters supported
restoring the language that describes the
alternatives section as the heart of the
EIS, citing pre-1978 case law and
asserting that without evaluation of
reasonable alternatives, the NEPA
process loses its potential to truly
inform better decision making. Another
commenter asserted that robust analysis
of the relative environmental effects of
a range of reasonable alternatives is
necessary to ensure the EIS serves the
regulatory purpose of providing for
meaningful public input and informed
agency decision making. In the final
rule, CEQ reinstates the language from
the 1978 regulations to the introductory
paragraph of § 1502.14, as proposed.
Second, CEQ proposed a clarifying
edit in the second sentence of the
introductory paragraph to replace
‘‘present the environmental impacts’’
with ‘‘identify the reasonably
foreseeable environmental effects’’ for
consistency with § 1500.2(e) and section
102(2)(C)(i) of NEPA. 42 U.S.C.
4332(2)(C)(i). CEQ did not receive
comments specific to this proposal and
makes this change in the final rule.
Third, in the introductory paragraph,
CEQ proposed to add a third sentence
82 See CEQ, Phase 1 Response to Comments,
supra note 52, at 162.
83 See CEQ, 2020 Final Rule, supra note 39, at
43330.
84 See, e.g., CEQ, 2020 Response to Comments,
supra note 69, at 274; CEQ, Phase 1 Response to
Comments, supra note 52, at 55.
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stating that the alternatives analysis
should sharply define issues for the
decision maker and the public and
provide a clear basis for choice among
the alternatives. CEQ proposed
reintroducing this language from the
1978 regulations because it provides an
important policy statement, concisely
explaining the goals of the alternatives
analysis. CEQ received generally
supportive comments on this proposal,
and CEQ makes this edit to the third
sentence of the introductory paragraph
in the final rule.
Fourth, CEQ proposed in paragraph
(a) to restore from the 1978 regulations
the clause that agencies must
‘‘rigorously explore and objectively
evaluate’’ reasonable alternatives at the
beginning of the first sentence. CEQ
proposed to reinsert this language
because it provides a standard that
agencies have decades of experience
applying in the analysis of alternatives.
Some commenters expressed general
support for restoring the requirement to
rigorously explore and objectively
evaluate reasonable alternatives in
paragraph (a). Other commenters
opposed the restoration of this language,
asserting that it is arbitrary and
subjective and has the potential to
increase litigation over whether an
agency met the subjective test of
rigorous and objective evaluation. CEQ
makes this change in the final rule
because restoring this language will
help ensure agencies conduct a robust
analysis of alternatives and their effects,
rather than a cursory, box-checking
analysis.
One commenter asserted that the first
sentence of paragraph (a) should refer to
the definition of ‘‘reasonable
alternatives’’ to make it clear that
alternatives proposed in scoping that do
not meet the purpose and need and that
are not technically and economically
feasible should be eliminated from
further consideration. CEQ declines to
add a cross reference to the definition of
‘‘reasonable alternatives’’ as
unnecessary because the phrase
‘‘reasonable alternatives’’ is a defined
term in the regulations, and the
definition applies whenever the
regulations use the term.
Fifth, CEQ proposed to add two
additional sentences to paragraph (a).
CEQ proposed the first sentence to
clarify that agencies need not consider
every conceivable alternative to a
proposed action, but rather must
consider a reasonable range of
alternatives that fosters informed
decision making. CEQ proposed to add
this sentence to replace the first
sentence in paragraph (f) of 40 CFR
1502.14 (2020), which required agencies
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to limit their consideration to a
reasonable number of alternatives. CEQ
proposed this language for consistency
with longstanding CEQ guidance 85 and
to reinforce that the alternatives analysis
is not boundless; the key is to provide
the decision maker with reasonable
options to ensure informed decision
making. CEQ did not receive specific
comments on this proposed change and
adds the proposed new sentence to
§ 1502.14(a).
CEQ also proposed a second new
sentence in paragraph (a) to clarify that
agencies have the discretion to consider
reasonable alternatives not within their
jurisdiction, but NEPA and the CEQ
regulations generally do not require
them to do so. CEQ explained that such
alternatives may be relevant, for
instance, when agencies are considering
program-level decisions 86 or anticipate
funding for a project not yet authorized
by Congress.87
Several commenters opposed this
proposal, asserting that if an agency has
no authority to implement an
alternative, it is unreasonable, and the
agency should not consider it. One
commenter stated that NEPA is a
procedural statute that does not confer
substantive authority; as such, NEPA
cannot authorize an agency to pursue an
action that is otherwise not authorized.
Some commenters characterized
consideration of alternatives outside the
agency’s jurisdiction as inefficient and a
waste of agency resources. Others
expressed that allowing consideration of
such alternatives would be contrary to
law, and the alternatives would not be
consistent with the purpose and need of
the proposal. Multiple commenters
stated that Public Citizen supports the
proposition that an agency’s NEPA
analysis is properly limited by the scope
of the agency’s authority and that, as
such, CEQ’s proposed language is in
tension with this ruling as well as other
case law. However, other commenters
stated the opposite—that case law has
well established that agencies may and
in some cases must consider alternatives
beyond the agency’s jurisdiction.
85 See
CEQ, Forty Questions, supra note 5.
e.g., Fed. R.R. Admin., Final Program
Environmental Impact Report/Environmental
Impact Statement (EIR/EIS) for the proposed
California High-Speed Train System (2005), https://
hsr.ca.gov/programs/environmental-planning/
program-eir-eis-documents-for-the-statewide-highspeed-rail-system-tier-1/final-programenvironmental-impact-report-environmentalimpact-statement-eir-eis-for-the-proposedcalifornia-high-speed-train-system-2005/.
87 See, e.g., U.S. Army Corps of Eng’rs, Final
Environmental Impact Statement for Savannah
Harbor Expansion Project (rev. July 2012), https://
www.sas.usace.army.mil/Missions/Civil-Works/
Savannah-Harbor-Expansion/Final-EnvironmentalImpact-Statement/.
86 See,
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CEQ adds this second new sentence to
the end of § 1502.14(a) in the final rule
to acknowledge that in limited
situations, it may be appropriate for an
agency to consider an alternative
outside its jurisdiction. As noted in the
proposed rule, CEQ anticipates that
such consideration will occur relatively
infrequently and notes that such
alternatives would still need to be
technically and economically feasible
and meet the purpose and need for the
proposed action, consistent with the
definition of ‘‘reasonable alternatives.’’
CEQ’s revision is intended to strike a
balance; the final rule does not require
agencies to consider alternatives outside
their jurisdiction or preclude agencies
from doing so. Further, the final rule
retains the qualification that the agency
need only consider reasonable
alternatives.
Some commenters requested CEQ
revise § 1502.14(a) to expressly comply
with the statutory direction that
alternatives must be technically and
economically feasible and must meet
the purpose and need of the proposal.
42 U.S.C. 4332(2)(C)(iii). The
commenters stated the alternatives that
do not meet those criteria are not
consistent with the statute. CEQ
declines to add additional language in
§ 1502.14(a) because the definition of
‘‘reasonable alternatives’’ already
includes the requirement that an
alternative be technically and
economically feasible and meet the
purpose and need. CEQ addresses
additional comments on the definition
of ‘‘reasonable alternatives’’ in section
II.J.22.
Sixth, as noted earlier in this section,
CEQ proposed to strike the requirement
to limit consideration to a reasonable
number of alternatives from paragraph
(f) and to add a sentence to paragraph
(a) directing agencies to consider a
reasonable range of alternatives that
fosters informed decision making. CEQ
proposed to repurpose paragraph (f) to
establish a requirement to identify the
environmentally preferable alternative.
In addition to proposing a new
definition of ‘‘environmentally
preferable alternative’’ in § 1508.1(l),
CEQ proposed in this provision to
describe elements that the
environmentally preferable alternative
may generally include. CEQ proposed to
use ‘‘or’’ in the list to make clear that
the environmentally preferable
alternative need not include each
delineated element and recognize that
identifying the environmentally
preferable alternative may entail making
trade-offs in some cases. CEQ explained
that it proposed this approach to
provide agencies flexibility to rely on
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their discretion and expertise to strike
an appropriate balance in identifying
the environmentally preferable
alternative. Finally, CEQ proposed to
clarify in paragraph (f) that the
environmentally preferable alternative
may be the proposed action, the no
action alternative, or a reasonable
alternative and that agencies may
identify more than one environmentally
preferable alternative as they deem
appropriate.
Two commenters opposed the
removal of ‘‘limit their consideration to
a reasonable number of alternatives’’ in
paragraph (f), asserting the statement is
consistent with long-standing CEQ
guidance and case law. The commenter
further opined that the proposed
paragraph (f) unnecessarily and
inexplicably creates an open question
regarding the number of alternatives an
agency must consider and is likely to
result in delays and increase litigation
risk. One commenter stated that while
they recognize that proposed paragraph
(a) states that an agency does not need
to consider every conceivable
alternative, they asserted that it is
helpful and consistent with judicial
precedent to describe what constitutes a
‘‘reasonable number.’’ Another
commenter asserted that removal of this
language could lead agencies to develop
more alternatives than are reasonable or
necessary under NEPA.
CEQ declines to retain the statement
that agencies must limit their
consideration to a reasonable number of
alternatives because CEQ considers the
new sentence in paragraph (a) to
provide clearer direction to agencies
that they should consider a reasonable
range of alternatives that foster informed
decision making. Agencies have long
had discretion to identify that range,
and CEQ encourages agencies to identify
and consider an appropriate range and
explain why it considered and
dismissed other alternatives so that
agency decision makers and the public
have a clear understanding as to how
the agency arrived at the alternatives it
considered in the document. While CEQ
considers the new sentence in
paragraph (a) to be clearer than the
sentence previously included in
paragraph (f), it does not interpret the
new sentence to require agencies to
consider a greater number of
alternatives and does not intend for
agencies to do so.
Multiple commenters supported
proposed § 1502.14(f), while other
commenters opposed it. Those who
supported identification of the
environmentally preferable alternative
in the EIS expressed that earlier
identification will provide more
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transparency to the public and allow the
public an opportunity to comment on it.
Some commenters also specifically
supported the inclusion of addressing
climate-change related effects and
disproportionate and adverse effects on
communities with environmental justice
concerns in the examples of an
environmentally preferable alternative.
Commenters who opposed the
proposed language expressed concern
that the concept of an environmentally
preferable alternative would create new
complexity and risk for litigation. They
expressed that the identification of such
an alternative is inherently subjective
and would result in unnecessarily broad
and time-consuming environmental
reviews not supported by the statute.
One commenter contended that the
proposed new requirement
inappropriately introduces political
doctrine into the rule. One commenter
suggested that if CEQ retains the
requirement to identify the
environmental preferable alternative in
the EIS, that the final rule should be less
prescriptive about the attributes of the
environmentally preferable alternative.
CEQ adds the requirement to identify
the environmentally preferable
alternative or alternatives in the EIS in
§ 1502.14(f), and adds a clause to clarify
that the agency must identify the
environmentally preferable alternative
from amongst the alternatives
considered in the EIS. CEQ adds this
clarification to address a
misunderstanding by some of the
commenters that the environmentally
preferable alternative or alternatives that
§ 1502.14(f) requires agencies to identify
is an additional alternative to the
proposed action, no action, and
reasonable alternatives that the agency
would otherwise consider in an EIS.
Rather, this provision requires agencies
to identify which alternative amongst
the proposed action, no action, and
reasonable alternatives is the
environmentally preferable alternative.
CEQ disagrees that requiring agencies
to identify the environmentally
preferable alternative in the EIS requires
an inherently subjective determination,
would result in unnecessarily broad and
time-consuming environmental reviews,
or introduces political doctrine. As CEQ
noted in the proposed rule, the
regulations have always required
agencies to identify the environmentally
preferable alternative in a ROD. 40 CFR
1505.2 (2019) and 40 CFR 1505.2 (2020).
Agencies, therefore, have decades of
experience with identifying the
environmentally preferable alternative.
Moreover, CEQ views this information
as helpful for decision makers and the
public. Requiring agencies to identify
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the environmentally preferrable
alternative in the draft EIS will enable
public comment on this determination,
which can include comment on whether
the agency has adequately explained its
conclusion or whether the
determination is overly subjective. This
new provision provides additional
guidance on what this alternative
entails, improving consistency and
furthering NEPA’s goal of ensuring that
agencies make informed decisions
regarding actions that impact the
environment. Additionally, requiring
the draft and final EIS to identify the
environmentally preferable alternative
will increase the transparency of the
agency’s decision-making process at an
earlier stage, as well as provide an
opportunity for the public to comment
on the environmentally preferable
alternative before the agency makes its
decision.
CEQ disagrees that merely requiring
agencies to identify which alternative or
alternatives are environmentally
preferable in the EIS, rather than only in
the ROD, will increase litigation. The
requirement in the final rule shifts the
timing of identifying the
environmentally preferred alternative or
alternatives, but commenters have not
explained why requiring agencies to
make this identification earlier in the
decision-making process would increase
litigation risk, and CEQ does not view
this shift as materially affecting
litigation risk, since claims alleging a
violation of NEPA must be brought after
an agency issues a ROD. See, e.g.,
Oregon Nat. Res. Council v. Harrell, 52
F.3d 1499, 1504 (9th Cir. 1995). CEQ
also notes the regulations do not require
agencies to select the environmentally
preferable alternative, just as the longstanding requirement for agencies to
identify the environmentally preferable
alternative in a ROD did not. Rather,
identifying the environmentally
preferable alternative will increase
transparency and allow the public to
comment on it.
Some commenters expressed that,
overall, the proposed changes to
§ 1502.14 expand the alternatives
analysis and could interfere with
agencies’ ability to meet the page and
time limits. CEQ disagrees with the
commenters’ assertions because the
revised regulations clarify, rather than
expand, the requirements for
alternatives analysis.
While CEQ did not propose edits to
§ 1502.14(b), one commenter requested
that CEQ restore the 1978 language to
ensure agencies devote substantial
treatment to each alternative they
considered in detail. The 2020 rule
removed the substantial treatment
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language and replaced it with the
requirement to discuss each alternative.
The commenter asserted that CEQ
should restore this language because
restoring direction to rigorously explore
and objectively evaluate reasonable
alternatives would ensure agencies take
a hard look at their proposed action.
CEQ declines to add this language. The
language that CEQ adds to paragraph (a),
requiring agencies to rigorously explore
and objectively evaluate alternatives to
foster informed decision making,
addresses this concern and provides
agencies sufficient direction to take a
hard look at their proposed actions and
alternatives.
14. Affected Environment (§ 1502.15)
CEQ proposed revisions to § 1502.15
to emphasize the use of high-quality
information; clarify considerations of
reasonably foreseeable environmental
trends; and emphasize efficiency and
concise documents. CEQ also proposed
to divide § 1502.15 into separate lettered
paragraphs.
First, CEQ proposed to move the first
sentence of 40 CFR 1502.15 (2020) into
paragraph (a) of § 1502.15 but did not
propose any changes to the text. One
commenter suggested changes to
proposed paragraph (a) to more clearly
describe that the affected environment
must be a clear, unambiguous base case
against which the agency can compare
all effects equally and noted a particular
example in which, the commenter
asserted, confusion about this point had
resulted in distorted analyses for a
category of actions that did not provide
the agency decision maker and the
public an appropriate comparison of the
proposed actions, no action alternatives,
and reasonable alternatives. In the final
rule, CEQ deletes ‘‘or created’’ in the
first sentence because areas created by
the proposed action or alternatives
would constitute reasonably foreseeable
effects, and are not part of the affected
environment. CEQ notes, however, that
the affected environment cannot be
frozen in time and therefore must
examine reasonably foreseeable
environmental trends in the affected
areas.
Second, CEQ proposed to add new
paragraph (b) to encourages agencies to
use high-quality information, including
best available science and data—in
recognition that high-quality
information should inform all agency
decisions—to describe reasonably
foreseeable environmental trends. CEQ
also proposed to note explicitly that
such trends include anticipated climaterelated changes to the environment and
that agencies should provide relevant
information, consistent with § 1502.21,
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when such information is lacking. CEQ
proposed this paragraph to articulate
clearly NEPA’s statutory mandate that
science inform agencies’ decisions as
part of a systematic, interdisciplinary
approach. See 42 U.S.C. 4332(2)(A).
In the second sentence of paragraph
(b), CEQ proposed to encourage agencies
to use the description of baseline
environmental conditions and
reasonably foreseeable trends to inform
its analysis of environmental
consequences and mitigation measures
by connecting the description of the
affected environment with the agency’s
analysis of effects and mitigation. CEQ
proposed this language to clarify that
agencies should consider reasonably
foreseeable future changes to the
environment, including changes of
climate conditions on affected areas,
rather than merely describing
environmental trends or climate change
trends at the global or national level.
When describing the proposed changes
to paragraph (b) in the proposed rule,
CEQ noted that, in line with scientific
projections, accurate baseline
assessment of the affected environment
over an action’s lifetime should
incorporate forward-looking climate
projections rather than relying on
historical data alone.
A few commenters opposed proposed
§ 1502.15(b), with some commenters
particularly taking issue with the
singling out of climate change. A few
commenters requested that the final rule
require agencies to use high-quality
information, with some further
requesting that the regulations define
high-quality information. One
commenter expressed that it will be
nearly impossible to use best available
science, and another requested that
Indigenous Knowledge be included as a
source of high-quality information.
CEQ adds proposed § 1502.15(b) in
the final rule with a few modifications.
In the first sentence, CEQ changes
‘‘should’’ to ‘‘shall’’ before ‘‘use highquality information’’ for consistency
with § 1506.6 (proposed as § 1502.23)
and modifies the clause providing
examples of high-quality information for
consistency with the changes to the
examples CEQ makes in § 1506.6, as
discussed in section II.H.4. The final
rule includes ‘‘reliable data and
resources, models, and Indigenous
Knowledge’’ as examples of high-quality
information in lieu of the proposed
phrase ‘‘including the best available
science and data.’’ As noted in section
II.H.4, this change incorporates the
language of section 102(2)(E) of NEPA
and is consistent with section 102(2)(D)
of NEPA. 42 U.S.C. 4332(2)(D)–(E). Peerreviewed studies and models are
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35505
examples of reliable data and
resources.88 The final rule also replaces
‘‘lacking’’ with ‘‘incomplete or
unavailable’’ for consistency with the
language of § 1502.21, which the
sentence cross-references. CEQ declines
to remove the example of climate
change from this sentence. Because
climate change has implications for
numerous categories of effects—from
species to water to air quality—it is a
particularly important environmental
trend for agencies to consider in
addressing the affected environment.89
See 42 U.S.C. 4321, 4331, 4332(2)(C)(iv).
Lastly, CEQ includes the third proposed
sentence in the final rule but uses
‘‘affected environment’’ instead of
‘‘baseline’’ and describes existing
‘‘environmental conditions, reasonably
foreseeable trends, and planned actions
in the area’’ as examples of the affected
environmental that should inform the
agency’s analysis of environmental
consequences and mitigation measures.
Third, CEQ proposed to move the
second through fourth sentences of 40
CFR 1502.15 (2020) to new paragraph
(c) and revise the second sentence to
divide it into two sentences to enhance
readability. In the first sentence of
paragraph (c), CEQ proposed minor
revisions to clarify that agencies may
combine the affected environment and
environmental consequences sections in
an EIS. In the second sentence, CEQ
proposed to clarify that the description
‘‘should,’’ rather than ‘‘shall’’, be no
longer than necessary to understand the
‘‘relevant affected environment’’ and the
effects of the alternatives.
One commenter disagreed with
allowing agencies to combine the
affected environment and
environmental consequences sections of
the EIS. The commenter asserted that
agencies should discuss the two issues
separately so that it is clear in the EIS
how much attention is paid to each
section and in order to ‘‘force the agency
to present actual’’ effects in the EIS. The
commenter asserted that agencies will
provide more material on the affected
environment instead of describing
effects.
CEQ makes the change as proposed in
§ 1502.15(c) of the final rule. The final
rule allows but does not require
88 See, e.g., OMB, Guidelines for Ensuring and
Maximizing the Quality, Objectivity, Utility, and
Integrity of Information Disseminated by Federal
Agencies, 67 FR 8452 (Feb. 22, 2002); OMB, Final
Information Quality Bulletin for Peer Review, 70 FR
2664 (Jan. 14, 2005); and OMB, M–19–15,
Improving Implementation of the Information
Quality Act (2019), https://www.whitehouse.gov/
wp-content/uploads/2019/04/M-19-15.pdf.
89 See, e.g., U.S. Glob. Change Rsch. Program,
Fifth National Climate Assessment (2023), https://
nca2023.globalchange.gov.
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agencies to combine the description of
the affected environment with the
analysis of environmental
consequences. CEQ added this
provision in the 2020 regulations to
promote more efficient documents, and
CEQ encourages agencies to reduce
redundancy in their documents and
provide clear and concise but thorough
descriptions in the EIS. CEQ disagrees
that allowing agencies to combine these
discussions also allows them to give
more weight to one section or the other.
Agencies must thoroughly discuss both
the affected environment and the
environmental consequences of their
proposed actions and alternatives to
meet the requirements of both
§§ 1502.15 and 1502.16.
15. Environmental Consequences
(§ 1502.16)
CEQ proposed several changes to
§ 1502.16 to clarify the role of this
section and methods of analysis and
make updates to ensure that agencies
integrate climate change and
environmental justice considerations
into the analysis of environmental
effects. First, CEQ proposed to add
‘‘reasonably foreseeable’’ in proposed
paragraph (a)(1) before ‘‘environmental
effects’’ for consistency with section
102(2)(C)(i) of NEPA and in proposed
paragraph (a)(2) before ‘‘adverse
environmental effects’’ for consistency
with section 102(2)(C)(ii) of NEPA. 42
U.S.C. 4332(2)(C)(i)–(ii). In the final
rule, CEQ reorganizes § 1502.16 to
integrate proposed paragraph (a)(1) into
§ 1502.16(a), as discussed further in this
section, and adds the reference to
‘‘reasonably foreseeable’’ effects in
paragraph (a) to make clear that agencies
must discuss the environmental
consequences described in paragraphs
(a)(1) through (a)(13) when they are
reasonably foreseeable effects of the
proposed action or alternatives.
Therefore, CEQ omits further references
to ‘‘reasonably foreseeable’’ in
paragraphs (a)(1) through (a)(13) to
avoid duplication. The recent
amendments to NEPA codified the
longstanding principle from the 1978
regulations and recognized by the courts
that effects must be reasonably
foreseeable. CEQ also notes that the
definition of ‘‘effects’’ in § 1508.1(i)
incorporates ‘‘reasonably foreseeable’’
into the definition such that the term
‘‘effects’’ incorporates the reasonably
foreseeable standard each time it is used
in this section and throughout the
regulations.
Second, in proposed paragraph (a)(1),
CEQ proposed to modify the second
sentence, requiring agencies to base the
comparison of the proposed action and
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reasonable alternatives on the
discussion of effects, to add a clause at
the end: ‘‘focusing on the significant or
important effects.’’ CEQ proposed this
change to emphasize that agencies’
analyses of effects should be
proportional to the significance or
importance of the effects. CEQ did not
receive specific comments on this
proposal, and CEQ makes this change in
the final rule in paragraph (a), into
which CEQ integrates proposed
paragraph (a)(1) as discussed further in
this section. CEQ includes the word
‘‘important’’ in addition to ‘‘significant’’
because even if an agency does not
identify which effects rise to the level of
significance, it should still focus on the
effects that are important for the agency
decision maker to be aware of and
consider. Consistent with this provision,
agencies should generally identify the
effects they deem significant to inform
the public and decision makers.
While CEQ did not propose any
substantive changes to paragraph (a), a
few commenters suggested changes. One
commenter expressed that even though
paragraph (a) specifies that the
environmental consequences discussion
should not duplicate discussions from
§ 1502.14, it is confusing and
unnecessary for the regulations to
essentially require the same information
in both sections. Another commenter
requested that CEQ add qualifying
language, ‘‘as relevant or appropriate’’ to
the last sentence of paragraph (a) stating
that ‘‘[t]he discussion shall include.’’
The commenter asserted this language
would help improve efficiency by
providing lead agencies flexibility to
tailor the EIS to the specifics of the
action.
CEQ agrees with the commenter that
the language in paragraph (a) could be
confusing. To enhance clarity, the final
rule integrates proposed paragraph (a)(1)
into § 1502.16(a) and combines the first
two sentences of proposed paragraph
(a)(1), to require that the comparison of
the proposed action and alternatives ‘‘be
based on their reasonably foreseeable
effects and the significance of those
effects’’ and that this discussion focus
on the significant and important effects.
The final rule also consolidates the last
two sentences of proposed paragraph (a)
to state that the environmental
consequences section should not
duplicate discussions ‘‘required by’’
§ 1502.14, which CEQ revises to address
the commenter’s confusion about this
text, and must include ‘‘an analysis of’’
the issues discussed in the
subparagraphs to paragraph (a).
CEQ declines to add the qualifier ‘‘as
relevant or appropriate’’ to the last
sentence, because some of the items in
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the list are always required. For
paragraphs (a)(5) through (a)(10) and
(a)(13), which are only required when
they are reasonably foreseeable, the final
rule adds the qualifier ‘‘where
applicable’’—in some cases replacing
the word ‘‘any,’’ as used in the proposed
rule—to make clear that an EIS need
only include the specific topics where
those effects are reasonably foreseeable.
Where the effects that relate to a
particular topic in the list exist but are
not significant or important, the EIS can
briefly describe the effect and explain
why the agency has reached the
conclusion that it is not significant or
important.
Third, CEQ proposed to add a new
sentence to the end of proposed
paragraph (a)(1) clarifying the proper
role of the no action alternative to
ensure that agencies do not distort the
comparative analysis by selecting a
different alternative (for example, the
preferred alternative) as the baseline
against which the agency assesses all
other alternatives. CEQ also invited
comment on whether it should include
additional direction or guidance
regarding the no action alternative in
the final rule.
One commenter requested that the
regulations clarify the proper role of the
no action alternative and disagreed with
the direction included in the proposed
rule. The commenter asserted that
establishing a no action alternative as
the baseline against which alternatives
are compared, rather than establishing
the proposed action as the baseline,
favors the no action alternative over the
proposed action and is contrary to
NEPA’s goals of informing rather than
driving decisions. CEQ disagrees with
the commenter’s position as agencies
have long used the no action alternative
as the baseline from which to assess the
proposed action and alternatives,90 and
this approach is consistent with the
requirement of section 102(2)(C)(i)–(ii)
of NEPA that an EIS include the
reasonably foreseeable environmental
effects of the proposed agency action. 42
U.S.C. 4332(2)(C)(i)–(ii). The no action
alternative is a particularly useful
comparison for the effects of the
proposed action, and the CEQ
90 See CEQ, Forty Questions, supra note 5,
Question 3, ‘‘No Action Alternative’’ (stating that
the no action alternative ‘‘provides a benchmark,
enabling decisionmakers to compare the magnitude
of environmental effects of the action
alternatives.’’); see also Ctr. for Biological Diversity
v. United States DOI, 72 F.4th 1166, 1185 (10th Cir.
2023) (‘‘‘In general, NEPA analysis uses a no-action
alternative as a baseline for measuring the effects
of the proposed action.’’’ (quoting Biodiversity
Conservation All. v. U.S. Forest Serv., 765 F.3d
1264, 1269 (10th Cir. 2014)).
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regulations require agencies to compare
effects across alternatives.
Multiple commenters requested
guidance on how to evaluate the no
action alternative in circumstances in
which the Federal action does not
dictate whether the underlying project
will occur. CEQ declines to add
additional specifications to the
regulations but will consider whether
additional guidance on this topic will
help agencies carry out their NEPA
responsibilities. CEQ notes that agencies
have decades of experience with this
issue even prior to the addition of this
provision into NEPA and the CEQ
regulations.
One commenter requested CEQ revise
the language to make it clear that the no
action alternative is focused on the
environmental consequences of not
issuing the approval rather than on the
proposed facility not being built or the
proposed physical action not occurring.
CEQ declines to add this specific
additional language to the regulations as
the consideration of the no action
alternative is specific to the agency’s
authority and the scope of the NEPA
review.
One commenter stated CEQ should
provide additional guidance to ensure
that Federal agencies fully disclose the
environmental implications of the no
action alternative. Another commenter
requested CEQ provide additional
guidance encouraging agencies to select
the no action alternative, when
appropriate. Relatedly, another
commenter stated that the no action
alternative should be more than a
baseline for comparison; it should also
be an alternative that the agency can
select even if it does not meet the
applicant’s or project’s purpose and
need. CEQ agrees that in many cases,
the no action alternative is among the
alternatives that the agency may select,
and that doing so is consistent with the
regulations and long-standing agency
practice, but this is a fact-specific
inquiry based on the agency’s authority.
CEQ will consider this and the other
recommended topics when developing
guidance.
One commenter requested the
regulations include a new section on the
no action alternative instead of
including it in § 1502.16. Another
commenter requested the regulations
include a definition of ‘‘no action
alternative’’ and requested clarification
that agencies should analyze more than
one action alternative and therefore
must include more than just the no
action alternative and one action
alternative. CEQ declines to add a
separate section on or define the phrase
‘‘no action alternative.’’ CEQ includes
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the proposed language in the final rule,
as the fourth sentence of paragraph (a),
to provide additional context for the
longstanding requirement in § 1502.14
to assess the no action alternative and
for consistency with section
102(2)(C)(iii) of NEPA and longstanding
agency practice. 42 U.S.C.
4332(2)(C)(iii).
Fourth, CEQ proposed to add a new
paragraph (a)(3), requiring an analysis of
the effects of the no action alternative,
including any adverse environmental
effects. CEQ proposed this change for
consistency with section 102(2)(C)(iii) of
NEPA, which requires ‘‘an analysis of
any negative environmental impacts of
not implementing the proposed action
in the case of a no action alternative.’’
42 U.S.C. 4332(2)(C)(iii).
One commenter suggested that the
phrase ‘‘including any adverse effects’’
does not conform with section
102(2)(C)(iii) of NEPA. CEQ disagrees
with the commenter’s characterization.
The difference in phrasing between
proposed paragraph (a)(3) and section
102(2)(C)(iii) is because paragraph (a)(3)
addresses what needs to be contained in
the discussion of environmental
consequences, while section
102(2)(C)(iii) of NEPA addresses the
range of alternatives. 42 U.S.C.
4332(2)(C)(iii). Multiple commenters
were generally supportive of the
requirement to analyze the adverse
effects of the no action alternative.
CEQ adds proposed paragraph (a)(3)
in the final rule at § 1502.16(a)(2). As
CEQ noted in the proposed rule, CEQ
interprets ‘‘negative’’ to have the same
meaning as the term ‘‘adverse.’’ For
example, an environmental restoration
project that helps mitigate the effects of
climate change and restores habitat
could have adverse effects if it were not
implemented or the construction of a
commuter transit line could have
adverse effects from persistent traffic
congestion, air pollution, and related
effects to local communities if it were
not implemented.
Fifth, to accommodate proposed new
paragraph (a)(3), CEQ proposed to
redesignate paragraphs (a)(3) through
(a)(5) of 40 CFR 1502.16 (2020) as
paragraphs (a)(4) through (a)(6),
respectively. CEQ did not receive any
comments on this proposed
reorganization. However, because the
final rule integrates proposed paragraph
(a)(1) into paragraph (a), the final rule
does not redesignate these paragraphs.
Sixth, in proposed paragraph (a)(5),
CEQ proposed to insert ‘‘Federal’’ before
‘‘resources’’ for consistency with section
102(2)(C)(v) of NEPA. 42 U.S.C.
4332(2)(C)(v). One commenter asserted
that the proposed insertion of ‘‘Federal’’
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35507
ignores analysis and reporting of
potentially significant resources
committed by other entities. CEQ adds
the word ‘‘Federal’’ to the final rule in
§ 1502.16(a)(4) because Congress added
it to the corresponding phrase in the
statute. Another commenter suggested
CEQ revise this paragraph to encompass
resources held in trust. CEQ declines to
make this addition, as CEQ interprets
the phrase ‘‘Federal resources’’ to
plainly mean resources owned by the
Federal Government or held in trust for
Tribal Nations.
Seventh, CEQ proposed to add
references to two specific elements that
agencies must include in the analysis of
environmental consequences and revise
the reference to another element, all
related to climate change. CEQ proposed
to revise proposed paragraph (a)(6),
addressing possible conflicts between
the proposed action and the objectives
of Federal, regional, State, Tribal and
local land use plans, policies, and
controls for the area concerned. CEQ
proposed to broaden ‘‘land use plans’’ to
‘‘plans’’ generally and to add an
example that clarifies that these plans,
policies, and controls include those
addressing climate change.
Eighth, CEQ proposed to add a new
paragraph (a)(6) to clarify that the
discussion of environmental
consequences in an EIS must include
any reasonably foreseeable climate
change-related effects, including effects
of climate change on the proposed
action and alternatives (which may in
turn alter the effects of the proposed
action and alternatives).
Ninth, CEQ proposed to add a new
paragraph (a)(9) to require agencies to
address any risk reduction, resiliency,
or adaptation measures included in the
proposed action and alternatives. CEQ
proposed this addition to ensure that
agencies consider resiliency to the risks
associated with a changing climate,
including wildfires, extreme heat and
other extreme weather events, drought,
flood risk, loss of historic and cultural
resources, and food scarcity. CEQ noted
in the proposed rule that these analyses
further NEPA’s mandate that agencies
use ‘‘the environmental design arts’’ in
decision making and consider the
relationship between the ‘‘uses’’ of the
environment ‘‘and the maintenance and
enhancement of long-term
productivity.’’ 42 U.S.C. 4332(2)(A),
4332(2)(C)(iv). CEQ also noted that the
proposed change helps achieve NEPA’s
goals of protecting the environment
across generations, preserving important
cultural and other resources, and
attaining ‘‘the widest range of beneficial
uses of the environment without
degradation, risk to health or safety, or
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other undesirable and unintended
consequences.’’ 42 U.S.C. 4331(b)(3).
Multiple commenters expressed
support generally for both proposed
paragraphs (a)(6) and (a)(7), asserting
that it is necessary to emphasize climate
change. On the other hand, one
commenter opposed proposed
paragraphs (a)(6) and (a)(7) and asserted
that they are based on political doctrine
rather than scientific and technical
analyses. CEQ disagrees with the
commenter’s assertion and notes that
the inclusion of climate change in
proposed paragraphs (a)(6) and (a)(7) is
consistent with section 102(2)(C)(i) of
NEPA, 42 U.S.C. 4332(2)(C)(i), which
requires agencies to address ‘‘reasonably
foreseeable environmental effects of the
proposed agency action;’’ with section
102(2)(I) of NEPA, 42 U.S.C. 4332(I),
which requires Federal agencies to
‘‘recognize the worldwide and longrange character of environmental
problems;’’ and with a large volume of
case law invalidating NEPA analyses
that failed to adequately consider
reasonably foreseeable effects related to
climate change. See e.g., Vecinos para el
Bienestar de la Comunidad Costera v.
FERC, 6 F.4th 1321 (D.C. Cir. 2021)
(holding NEPA analysis for pipeline and
liquified natural gas port deficient due
to inadequate climate change analysis);
WildEarth Guardians v. Zinke, 368 F.3d
41 (D.C. Cir. 2019) (invalidating oil and
gas leases for failure to consider
downstream greenhouse gas emissions
during the NEPA process); and
WildEarth Guardians v. BLM, 870 F.3d
1222 (10th Cir. 2017) (holding that EIS
and ROD for four coal leases were
arbitrary and capricious because they
failed to adequately consider climate
change).
With respect to proposed paragraph
(a)(6), a couple of commenters asserted
the regulations should not direct
agencies to discuss a proposed action’s
relationship with governmental plans
related to climate change. The
commenters urged CEQ to exclude the
language ‘‘those addressing climate
change’’ from the final rule or
recommended the regulations clarify
that NEPA does not require agencies to
attempt to resolve these conflicts.
Another commenter opined that the
proposal to remove ‘‘land use plans’’
and instead include plans addressing
climate change threatens to lead to
speculative analyses. Further, the
commenter asserted that the regulations
do not explain how agencies should
analyze multi-State projects or
determine how a particular project
conflicts with a State- or region-wide
plan or emissions target.
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In the final rule, CEQ removes ‘‘land
use’’ and adds the example of plans that
address climate change in the final rule
at § 1502.16(a)(5). CEQ notes that the
reference to climate change plans is
only an example, but also that the
example is consistent with the 2023
GHG guidance, which identifies climate
change plans as having the potential to
assist agencies in their analysis of
reasonably foreseeable GHG emissions.
CEQ also notes that nothing in this
provision or any other provision of the
NEPA regulations has ever required
agencies to resolve conflicts; it merely
requires agencies to discuss any
possible conflicts. With respect to multiState projects, CEQ does not consider it
appropriate to modify this provision to
address a specific type of project.
However, CEQ is unaware of agency
confusion regarding how to address
multi-State projects. CEQ will consider
whether additional guidance is needed
in the future. CEQ retains the term
‘‘policies’’ to promote inclusive
consideration of positions taken by
regional, State, Tribal and local
government entities, noting that policies
are formally adopted by those entities
while preferences or positions generally
are not formally adopted.
Multiple commenters specifically
opposed proposed paragraph (a)(7) and
the singling out of reasonably
foreseeable climate change-related
effects in the regulations. One
commenter stated that the integration of
one specific category of potential
environmental effects is a notable break
from NEPA precedent and historic
practice, which emphasizes that NEPA
is neutral towards the type of resource
concern and the type of potential
environmental effect. CEQ disagrees
with the assertion that identifying a
category of effects is unprecedented and
notes that this provision has always
referenced certain types of effects,
including effects related to energy,
natural and depletable resources, and
historic and cultural resources.
A commenter asserted that the
references to climate change-related
effects in proposed paragraph (a)(7) and
other provisions of the regulations
inconsistently refer to NEPA’s
reasonable foreseeability limitation and
otherwise ignore the fundamental
principle of causation. A few other
commenters also raised the issue of
causation, arguing that NEPA only
requires an agency to consider effects
that have a sufficiently close causal
connection to the proposed action and
stating that the proposed rule, and
specifically proposed paragraph (a)(7),
diverges from this principle by requiring
analysis of any reasonably foreseeable
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climate-change related effects of the
proposed action. One commenter
asserted CEQ is rewriting the standard
that requires an agency to consider
effects that have a sufficiently close
causal relationship to the proposed
action. They also asserted proposed
paragraph (a)(7) could require an agency
to discuss effects that are remote and
speculative because it does not require
the ability to demonstrate a direct causal
chain between a project and climate
change or how a specific project’s
greenhouse gas emissions would lead to
actual environmental effects in that
specific location.
Another commenter asserted that
proposed paragraph (a)(7) places
unnecessary emphasis on climate
change when there are many other
effects on the environment that may
occur due to a proposed action. A
separate commenter asserted the
proposed paragraph conflicts with the
flexibility provided in CEQ’s Interim
Greenhouse Gas Guidance, which
explains that agencies have the
flexibility to discuss climate change and
any other environmental issues to the
extent the information will or will not
be useful to the decision-making process
and the public consistent with the ‘‘rule
of reason.’’ Another commenter stated
proposed paragraph (a)(7) is
inconsistent with NEPA and would be
impractical, resulting in lengthy reviews
for projects without climate
consequences.
CEQ disagrees with these
commenters’ assertions and includes
proposed paragraph (a)(7) at
§ 1502.16(a)(6) in the final rule. CEQ
adds the phrase ‘‘where feasible,
quantification of greenhouse gas
emissions from the proposed action and
alternatives and’’ before ‘‘the effects of
climate change on the proposed action
and alternatives.’’ This provision
incorporates into the final rule one of
the recommendations of CEQ’s 2023
GHG guidance.91 CEQ includes this
provision in response to comments that
CEQ received in response to CEQ’s
request for comment on potentially
codifying elements of the Guidance in
the rule. See section II.D.1.92 CEQ agrees
with the comments discussed in section
II.D.1 that contend that requiring
agencies to quantify greenhouse gas
emissions, where feasible, will increase
the clarity of the regulations and is
consistent with case law. See, e.g., Food
& Water Watch v. FERC, 28 F.4th 277,
289 (D.C. Cir. 2022) (remanding to the
agency to prepare a supplemental EA
91 See
CEQ, 2023 GHG Guidance, supra note 10.
CEQ, Phase 2 proposed rule, supra note 51,
at 49945.
92 See
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‘‘in which it must either quantify and
consider the project’s downstream
carbon emissions or explain in more
detail why it cannot do so’’); Sierra Club
v. FERC, 867 F.3d 1357, 1375 (D.C. Cir.
2017) (holding that the agency ‘‘must
either quantify and consider the
project’s downstream carbon emissions
or explain in more detail why it cannot
do so’’); WildEarth Guardians v. Zinke,
368 F.Supp.3d 41, 68 (D.D.C. 2019)
(BLM’s failure to quantify greenhouse
gas emissions that were reasonably
foreseeable effects of oil and gas
development during the leasing and
development process was arbitrary and
capricious). As such, CEQ disagrees
with the commenters’ assertions that the
rule requires agencies to go beyond
what case law generally already requires
them to consider under NEPA.
Moreover, as CEQ indicates earlier in
this section and makes clearer with its
edits to paragraph (a) in the final rule,
this paragraph indicates that agencies
must analyze climate-related effects that
meet the definition of ‘‘effects’’—that is,
are reasonably foreseeable—and
includes the qualifier ‘‘where
applicable’’ to acknowledge that not all
actions will have climate-related effects
that require analysis in the EIS.
A few commenters opposed the
addition of proposed paragraphs (a)(7)
and (a)(10), stating that taken together,
the proposed changes expand the scope
of NEPA effects and alternatives
analyses relative to discrete projects and
authorizations and will result in
agencies relying on unsubstantiated
projections on a project’s potential to
impact climate change locally or
globally.
Other commenters opposed proposed
paragraph (a)(10) for various reasons.
One commenter asserted risk reduction,
resiliency, or adaptation measures are
best addressed through planning and
programming, asset management, and
emergency response that occurs
programmatically prior to NEPA review
and in final design that occurs after the
NEPA review, instead of as part of the
project-specific review. Similarly,
another commenter stated requiring an
EIS to incorporate these measures into
the proposed action or alternatives will
be costly if completed during the NEPA
process and should be done earlier,
such as during long-range planning
processes that occur prior to NEPA. CEQ
notes that if an agency engages in longrange planning processes, the agency
may incorporate by reference any
analyses that are completed
programmatically prior to the NEPA
review for a specific action. With
respect to final design, agencies may
discuss such measures generally in the
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EIS. Further, agencies have decades of
experience analyzing proposed actions
before final design, and agencies can do
so similarly for risk reduction,
resiliency, or adaptation measures.
Another commenter asserted that the
term ‘‘relevant’’ is subjective and
suggested that CEQ define it to include
peer-reviewed science and data made
available by independent sources. CEQ
declines to add this specificity in the
final rule and leaves it to agency
judgment to identify what is relevant for
a particular proposed action.
One commenter supported proposed
paragraph (a)(10) but requested the
regulations clarify that the language
does not require an agency to gather
new data, consistent with NEPA.
Another commenter also supported the
proposal, but suggested that CEQ
remove the mandate to use accurate and
up-to-date information from proposed
§ 1502.21. CEQ considers it important to
specifically reference science and data
on the affected environment and
expected future conditions in this
paragraph because they are essential to
determine what resiliency and
adaptation measures are relevant. CEQ
declines to specify that agencies do not
need to gather new data as this is
addressed in § 1502.21, regarding
incomplete or unavailable information
as well, as § 1506.6, regarding
methodology and scientific accuracy.
Therefore, CEQ adds proposed
paragraph (a)(10) at § 1502.16(a)(9) in
the final rule.
In the final rule, CEQ revises
§ 1502.16(a)(5) and adds § 1502.16(a)(6)
and (a)(9) to clarify that agencies must
address both the effects of the proposed
action and alternatives on climate
change, and the resiliency of the
proposed action and alternatives in light
of climate change.93 These revisions are
consistent with what NEPA has long
required: using science to make
decisions informed by an understanding
of the effects of the proposed action and
of its alternatives. In particular,
understanding how climate change will
affect the proposed action and the
various alternatives to that action is
necessary to understanding what
constitutes ‘‘a reasonable range of
alternatives’’ and which alternatives are
‘‘technically and economically feasible’’
93 Such analysis is not new, and CEQ has issued
guidance consistent with these proposed provisions
for nearly a decade. See generally CEQ, Final
Guidance for Federal Departments and Agencies on
Consideration of Greenhouse Gas Emissions and the
Effects of Climate Change in National
Environmental Policy Act Reviews, 81 FR 51866
(Aug. 8, 2016), https://ceq.doe.gov/docs/ceqregulations-and-guidance/nepa_final_ghg_
guidance.pdf, and CEQ, 2023 GHG Guidance, supra
note 10.
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and ‘‘appropriate,’’ see 42 U.S.C.
4332(2)(C)(iii), (F), (H). Moreover, the
effects that climate change will have on
the proposed action and its alternatives
may in turn alter the effects that the
action has on the environment. For
example, an increase in extreme
weather events may affect the amount of
stream sedimentation that results from a
new road or the risk that an industrial
facility will experience a catastrophic
release. Therefore, considering the
effects of climate change on the action
and its alternatives is necessary to
understand the ‘‘reasonably foreseeable
environmental effects’’ of the proposed
action and its alternatives, 42 U.S.C.
4332(2)(C)(i). These revisions also align
with the definition of ‘‘effects’’ to
encompass reasonably foreseeable
indirect and cumulative effects, which
are integral to NEPA analyses.
Tenth, to accommodate the newly
proposed paragraphs (a)(7) and (a)(10),
CEQ proposed to redesignate paragraphs
(a)(6) and (a)(7) of 40 CFR 1502.16
(2020) as paragraphs (a)(8) and (a)(9),
respectively. In the final rule, CEQ
redesignates these paragraphs as
§ 1502.16(a)(7) and (a)(8). CEQ also
proposed to redesignate paragraphs
(a)(8) through (a)(10) of 40 CFR 1502.16
(2020) as paragraphs (a)(11) through
(a)(13), respectively. In the final rule,
CEQ redesignates these paragraphs as
§ 1502.16(a)(10) through (a)(12).
Eleventh, CEQ proposed to add a new
paragraph (a)(14) to require agencies to
discuss any potential for
disproportionate and adverse health and
environmental effects on communities
with environmental justice concerns,
consistent with sections 101, 102(2)(A),
102(2)(C)(i), and 102(2)(I) of NEPA. See
42 U.S.C. 4331, 4332(2)(A),
4332(2)(C)(i), 4332(2)(I). CEQ proposed
this paragraph to clarify that EISs
generally must include an
environmental justice analysis to ensure
that decision makers consider
disproportionate and adverse effects on
these communities.
A few commenters expressed general
support for proposed paragraph (a)(14),
with some stating that the inclusion of
disproportionate effects on communities
with environmental justice concerns is
long overdue. Some of these supportive
commenters requested CEQ provide
additional clarity in the regulations or
through guidance on what constitutes a
robust environmental justice analysis.
One commenter suggested the final rule
include additional text to emphasize
welfare effects and to state that the
evaluation should not offset positive
effects on one community with
environmental justice concerns against
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negative effects on another community
with environmental justice concerns.
Multiple commenters opposed
proposed paragraph (a)(14) for reasons
similar to the opposition to including
climate change-related effects, asserting
that it is inappropriate to single out
these types of effects. One commenter
suggested the proposed paragraph will
allow consideration of remote and
speculative environmental justice
concerns and is in conflict with case
law. Another commenter stated the
proposed paragraph requires agencies to
consider effects that are not ‘‘reasonably
foreseeable.’’ Further, another
commenter requested that the
regulations clarify that not all
environmental effects will be
‘‘disproportionate and adverse.’’
In the final rule, CEQ adds proposed
paragraph (a)(14) at § 1502.16(a)(13) and
modifies the text from the proposal to
replace ‘‘[t]he potential for’’ with
‘‘[w]here applicable’’ before
‘‘disproportionate and adverse human
health and environmental effects on
communities with environmental justice
concerns.’’ As discussed earlier in this
section, CEQ adds the ‘‘where
applicable’’ qualifier to make clear that
not all proposed actions will have such
effects. The final rule also omits
‘‘potential,’’ given the changes to
paragraph (a) to clarify that all effects in
the list must be reasonably foreseeable.
Multiple commenters grouped their
general concerns on proposed
§ 1502.16(a)(7), (a)(10), and (a)(14)
together, expressing overall concern
regarding the inclusion of climate
change and environmental justicerelated provisions in § 1502.16. These
commenters asserted that these
proposed additions are contrary to the
purpose of NEPA and inappropriately
elevate climate change and
environmental justice over other issues,
such as water quality, waste
management, and air quality. Other
commenters expressed concern over the
addition of policy priorities to the
regulations. As CEQ has discussed in
this section and elsewhere in this
preamble and the Phase 2 Response to
Comments, CEQ considers these
additions consistent with the text of
NEPA, longstanding practice, and case
law and finds it appropriate to recognize
the importance of climate change and
environmental justice effects to inform
agency decision making and the public
about a proposed action. CEQ notes that
the list of effects in § 1502.16(a) is not
exhaustive, and that agencies must
determine on a case-by-case basis which
effects are relevant to address in an EIS.
Finally, in paragraph (b), which
addresses economic or social effects,
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CEQ proposed to strike ‘‘and give
appropriate consideration to’’ from
paragraph (b). CEQ proposed this
revision to remove unnecessary
language that could be read to require
the decision maker to make
consideration of such effects a higher
priority than other effects listed in this
section.
One commenter expressed support for
the proposed change in paragraph (b)
but requested that the final rule include
language requiring specific analyses of
housing affordability, availability, and
quality. CEQ declines to add this
language because, while these
considerations may be appropriate for
some projects, this level of specificity is
unnecessary in the regulations, as
housing-related effects are a subset of
social and economic effects. Another
commenter requested that the final rule
include cultural effects in the second
sentence. CEQ declines to add cultural
effects to paragraph (b) because historic
and cultural resources are included in
§ 1502.16(a)(10), and agencies also may
address effects to cultural resources
consistent with § 1502.16(a)(5).
CEQ did not receive comments
specific to its proposed edits to
paragraph (b). In the final rule, CEQ
strikes the phrase ‘‘and give appropriate
consideration to,’’ as proposed, from
§ 1502.16(b).
16. Summary of Scoping Information
(§ 1502.17)
CEQ proposed to revise § 1502.17 and
retitle it ‘‘Summary of scoping
information’’ to more accurately reflect
the proposed revisions to this section
and align it with the common practice
of what many agencies produce in
scoping reports. CEQ proposed other
changes in this section to simplify and
remove unnecessary or redundant text
and clarify requirements. Commenters
were generally supportive of CEQ’s
proposal and provided a few suggested
edits to the regulatory text, as discussed
in this section. A few commenters
expressed concern about the additional
burden of preparing a summary of
scoping information.
CEQ finalizes this section as proposed
with a few additional edits. Agencies
have long collected the information
addressed in this section as part of the
scoping process and provided it in
various formats, such as in scoping
reports or by integrating it into the EIS
itself. Transparency about this
information is valuable to the NEPA
process because it demonstrates what
agencies have considered in preparing
an EIS. Further, CEQ disagrees that
preparing a summary of such
information is a significant burden on
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agencies because the regulations do not
require a lengthy, detailed summary and
provide agencies sufficient flexibility to
exercise their discretion in what to
prepare.
CEQ proposed to revise paragraph (a)
to require agencies to include a
summary of the information they
receive from commenters during the
scoping process in draft EISs, consistent
with the revisions to §§ 1500.4, 1501.9,
and 1502.4. CEQ proposed to replace
‘‘State, Tribal, and local governments
and other public commenters’’ with
‘‘commenters’’ because this phrase is all
encompassing. CEQ also proposed to
clarify that a draft EIS should include a
summary of information, including
alternative and analyses, that
commenters submitted during scoping.
At least one commenter inquired
whether an agency could meet the
requirements of paragraph (a) by
including a summary in an appendix to
the draft EIS. CEQ did not intend its
proposal to limit where agencies
provide the summary of scoping
information. To make clear that agencies
have the flexibility on where to place
this section in their EISs, CEQ has
added ‘‘or appendix’’ after ‘‘draft
environmental impact statement.’’
Another commenter asked whether
inserting the word ‘‘draft’’ before the
second instance of ‘‘environmental
impact statement’’ in paragraph (a)
precluded agencies from considering
such information in the final EIS. This
was not CEQ’s intent, so the final rule
text does not include the word ‘‘draft’’
as CEQ proposed. CEQ otherwise revises
paragraph (a) as proposed. This change
provides agencies flexibility to develop
a broader summary of information
received during scoping. While agencies
should still summarize alternatives and
analyses, this provision does not require
them to provide a specific summary of
every individual alternative, piece of
information, or analysis commenters
submit during scoping.
CEQ proposed to redesignate
paragraph (a)(1) as paragraph (b) and
modify it to clarify that agencies can
either append comments received
during scoping to the draft EIS or
otherwise make them publicly available.
CEQ proposed this modification to
clarify that the requirements of this
paragraph can be met through means
other than an appendix, such as a
scoping report, which is common
practice for some Federal agencies. CEQ
proposed a conforming edit in
paragraph (d) of § 1502.19, ‘‘Appendix,’’
for consistency with this language.
CEQ received a comment questioning
why CEQ would change ‘‘publish’’ to
‘‘otherwise make publicly available all
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comments,’’ which could suggest an
agency could make comments publicly
available by providing them in response
to a FOIA request rather than by
affirmatively providing them. This was
not the intent of CEQ’s proposed
change. Therefore, CEQ is not making
this change in the final rule. With these
modifications, CEQ amends this
provision as proposed.
Finally, CEQ proposed to delete 40
CFR 1502.17(a)(2) and (b) (2020)
because the requirements of these
paragraphs are redundant to the
requirements in part 1503 for Federal
agencies to invite comment on draft
EISs in their entirety and review and
respond to public comments. CEQ
makes this change in the final rule.
17. Incomplete or Unavailable
Information (§ 1502.21)
CEQ proposed one revision to
paragraph (b) of § 1502.21, which
addresses when an agency needs to
obtain and include incomplete
information in an EIS. CEQ proposed to
strike ‘‘but available’’ from the sentence,
which the 2020 rule added, to clarify
that agencies must obtain information
relevant to reasonably foreseeable
significant adverse effects when that
information is essential to a reasoned
choice between alternatives, where the
overall costs of doing so are not
unreasonable, and the means of
obtaining that information are known.
CEQ proposed to remove the phrase
‘‘but available’’ because it could be read
to significantly narrow agencies’
obligations to obtain additional
information even when it is easily
attainable and the costs are reasonable.
During the development of the proposed
rule, agency NEPA experts indicated
that this qualifier could be read to say
that agencies do not need to collect
additional information that could and
should otherwise inform the public and
decision makers.
Some commenters supported the
proposed deletion of ‘‘but available’’ in
paragraph (b), reasoning that this edit
will ensure agencies obtain necessary
information regarding reasonably
foreseeable significant adverse effects
that is essential to a reasoned choice
among alternatives rather than
dismissing the information as
unavailable. Another commenter
supported the change because it better
ensures agencies obtain high quality
information to inform their analyses.
Other commenters opposed the change,
asserting it unduly expands agencies’
obligations to obtain additional
information. One commenter stated the
change removes a bright-line
requirement to rely on existing
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information and another commenter
agreed, stating the inclusion of ‘‘but
available’’ helped to focus the scope of
the inquiry on available information.
Without this limitation, the commenter
asserted agencies could face litigation
over the subjective reasonableness of
failing to obtain new information. Some
commenters expressed concern that the
proposed change broadens the
circumstances when agencies must
obtain new information and increases
the risk of reliance on poor quality
information developed quickly to meet
the statutory timeframes.
One commenter provided that if CEQ
finalizes the proposed change, it should
clarify that agencies should not delay
the NEPA process by obtaining nonessential information. This commenter
also requested that CEQ clarify that
agencies only need to produce new
information where the agencies would
not be able to make an informed
decision about the reasonably
foreseeable effects of a project
otherwise. Similarly, another
commenter stated that if finalized, CEQ
should clarify that new agency research
is required only in limited
circumstances and is the exception, not
the rule.
CEQ makes the change to remove ‘‘but
available’’ from § 1502.21(b) in the final
rule. CEQ has reconsidered its position
in the 2020 rule and now considers it
vital to the NEPA process for agencies
to undertake studies and analyses where
the information from those studies and
analyses is essential to a reasoned
choice among alternatives and the
overall costs are not unreasonable,
rather than relying solely on available
information. In particular, CEQ notes its
longstanding interpretation of
‘‘incomplete information’’ as articulated
in the 1986 amendments to this
provision. CEQ defined ‘‘incomplete
information’’ as information that an
agency cannot obtain because the
overall costs of doing so are exorbitant
and ‘‘unavailable information’’ as
information that an agency cannot
obtain it because ‘‘the means to obtain
it are not known.’’ 94 In response to
comments in 1986, CEQ further
explained that the phrase ‘‘ ‘the means
to obtain it are not known’ is meant to
include circumstances in which the
unavailable information cannot be
obtained because adequate scientific
knowledge, expertise, techniques or
equipment do not exist.’’ 95 The 2020
rule disregarded this longstanding
94 CEQ, National Environmental Policy Act
Regulations; Incomplete or Unavailable
Information, supra note 32, at 15621.
95 Id. at 15622.
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interpretation and instead suggested
that new scientific or technical research
is ‘‘unavailable information.’’ Upon
further consideration, CEQ disagrees
with the interpretation in the 2020 rule
and re-adopts its longstanding
interpretation that the phrase
‘‘incomplete information’’ applies only
to information from new scientific or
technical research, the cost of which are
unreasonable.
Removing the phrase ‘‘but available’’
also is consistent with section 106(b)(3)
of NEPA, which was added by the
recent NEPA amendments and states
that in determining the level of NEPA
review, agencies are only required to
undertake new scientific or technical
research where essential to a reasoned
choice among alternatives and the
overall costs and time frame of
obtaining it are not unreasonable. 42
U.S.C. 4336(b)(3). While section 106(3)
only directly applies to determining the
level of NEPA review, the provision’s
limitation on when agencies need to
undertake new scientific or technical
research in that context refutes an
interpretation of NEPA as limiting
agencies to considering available
information. 42 U.S.C. 4336(b)(3).
Establishing a consistent standard to
address incomplete information in the
NEPA review process that is consistent
with the text of section 106(3) will lead
to a more orderly and predictable
environmental review process. 42 U.S.C.
4336(b)(3). Similarly, CEQ considers it
appropriate to require agencies to
ensure professional integrity, including
scientific integrity, and use reliable data
and resources, as well as other
provisions in the regulations
emphasizing the importance of relying
on high-quality and accurate
information throughout implementation
of NEPA. See, e.g., §§ 1500.1(b), 1506.6.
CEQ disagrees that this change will
unduly expand agencies’ obligations to
obtain additional information. CEQ is
reverting to the longstanding approach
in the regulations that will ensure
agencies appropriately gather
information when it is necessary to
inform the decision maker and the
public. CEQ considers the bounding
language of reasonable costs and
necessity to make a reasoned choice to
be the appropriate cabining so that
agencies are reasonably gathering any
additional information needed for a
sufficient NEPA analysis without
creating undue burden or facilitating a
boundless collection of information.
With respect to litigation risk, as with
many other aspects of a NEPA review,
agencies should explain in their
documents their rationale when they
determine it is unreasonable or
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unnecessary to obtain new information.
Finally, CEQ acknowledges the
potential tension between the time it
takes to gather new information and
statutory deadlines. CEQ encourages
agencies to identify incomplete
information as early as possible in the
process to ensure they have time to
gather the information necessary to
satisfy their NEPA obligations during
the statutory timeframes. CEQ also notes
that where an agency cannot obtain
incomplete information within the
statutory timeframes, but the costs are
reasonable, the agency could conclude
that it is necessary to set a new deadline
that allows only as much time as
necessary to obtain the information so
long as the costs of obtaining the
information, including any cost from
extending the deadline and delaying the
action, are reasonable.
Finally, CEQ removes the modifier
‘‘adverse’’ from ‘‘significant adverse
effects’’ throughout this section because
the final rule defines ‘‘significant
effects’’ to be adverse effects. CEQ
makes this change for clarity and
consistency with the definition.
18. Methodology and Scientific
Accuracy (Proposed § 1502.23)
In the proposed rule, CEQ proposed
updates to § 1502.23, ‘‘Methodology and
Scientific Accuracy,’’ which requires
agencies to ensure the professional
integrity, including scientific integrity,
of the discussions and analyses in
environmental documents. CEQ
proposed revisions to promote use of
high-quality information; require
agencies to explain assumptions; and,
where appropriate, incorporate
projections, including climate changerelated projections, in the evaluation of
reasonably foreseeable effects.
CEQ received a number of comments
expressing confusion regarding the
applicability of this provision. In
particular, since 1978, the provision has
used the term ‘‘environmental
documents,’’ making it broadly
applicable. However, it is included in
part 1502, which addresses
requirements for EISs. Additionally, the
amendments to NEPA make clear that
agencies must ensure the professional
integrity, including scientific integrity,
of the discussion and analysis in their
NEPA documents, not just in EISs, and
make use of reliable data and resources
in carrying out NEPA. To address the
confusion amongst commenters and for
consistency with the NEPA statute, CEQ
moves this provision to part 1506,
specifically § 1506.6, which addresses
other requirements of NEPA.
For the discussion of the specific
proposed changes and comments on
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those changes as well as a description
of the final rule, refer to section II.H.4.
E. Revisions To Update Part 1503,
Commenting on Environmental Impact
Statements
CEQ is making substantive revisions
to all sections of part 1503, except
§ 1503.2, ‘‘Duty to comment.’’ While
CEQ invited comment on whether it
should make any substantive changes to
this section, CEQ did not receive any
specific comments recommending such
changes to § 1503.2. Therefore, CEQ
finalizes § 1503.2 with the nonsubstantive edits proposed in the NPRM
(spelling out EIS and fixing citations).
1. Inviting Comments and Requesting
Information and Analyses (§ 1503.1)
CEQ did not propose substantive
changes to § 1503.1 except to delete
paragraph (a)(3) of 40 CFR 1503.1
(2020), requiring agencies to invite
comment specifically on the submitted
alternatives, information, and analyses
and the summary thereof, for
consistency with the proposed changes
to the exhaustion provision in § 1500.3
and the corresponding revisions to
§ 1502.17. CEQ discusses the comments
on removal of the exhaustion provisions
generally in section II.B.3, and CEQ did
not receive any comments specific to
the proposed deletion of 40 CFR
1503.1(a)(3) (2020). CEQ deletes this
paragraph in the final rule because CEQ
is revising § 1500.3 to remove the
exhaustion provision in this final rule as
discussed in section II.B.3. Therefore,
this requirement to invite comment is
unnecessary and redundant as Federal
agencies invite comment on all sections
of draft EISs, including any appendices,
and thus need not invite comment on
one specific section of an EIS.
2. Specificity of Comments and
Information (§ 1503.3)
CEQ proposed edits to § 1503.3 to
clarify the expected level of detail in
comments submitted by the public and
other agencies to facilitate consideration
of such comments by agencies in their
decision-making processes. CEQ
proposed these edits to remove or
otherwise modify provisions that could
inappropriately restrict public
comments and place unnecessary
burden on public commenters.
Multiple commenters expressed
support for the proposed rule’s edits to
§ 1503.3 to remove language in the 2020
rule and argued that the language
impeded public participation and
unlawfully sought to limit access to the
courts. Commenters asserted that the
2020 language impeded participation in
the NEPA process by members of the
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public with valuable information and
perspective on the proposed action.
Specifically, the commenters supported
the removal of the requirement for the
public to provide as much detail as
necessary in paragraph (a), along with
the proposed clarification that
commenters do not need to describe
their data, sources, or methodologies.
Commenters further stated that the
requirement to provide as much detail
as necessary was ambiguous and could
have been interpreted to establish an
unjustified barrier to public comment to
those who do not have access to
technical experts or consultants. As
discussed further in this section, CEQ is
finalizing all but one of its proposed
changes.
CEQ proposed to remove language
from § 1503.3(a), which the 2020 rule
added, that requires comments to be as
detailed ‘‘as necessary to meaningfully
participate and fully inform the agency
of the commenter’s position’’ because
this requirement could lead commenters
to provide unnecessarily long comments
that will impede efficiency.
Commenters generally supported this
proposal. In support of the proposed
removal, one commenter asserted that
the ambiguity of the requirement to
provide as much detail as necessary
would prompt unnecessary litigation
over whether particular comments were
sufficient to ‘‘fully inform’’ the agency.
CEQ strikes this language in the final
rule. Paragraph (a) of § 1503.3 has
always required comments to be ‘‘as
specific as possible,’’ see 40 CFR
1503.3(a) (2019); 40 CFR 1503.3(a)
(2020), and the language CEQ is
removing could be read to require
commenters to provide detailed
information that either is not pertinent
to the NEPA analysis or is about the
commenter’s position on the proposed
action, the project proponent, the
Federal agency, or other issues. For
example, the text could be read to
require a commenter to provide a
detailed explanation of a moral
objection to a proposed action or a
personal interest in it if those inform the
commenter’s position on the project.
The text also could imply that
commenters must either be an expert on
the subject matter or hire an expert to
provide the necessary level of detail.
Further, the text could be read to imply
that commenters are under an obligation
to collect or produce information
necessary for agencies to fully evaluate
issues raised in comments even if the
commenters do not possess that
information or the skills necessary to
produce it.
As CEQ explained in the proposed
rule, some commenters on the 2020 rule
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raised this issue, expressing concerns
that this language could be read to
require the general public to
demonstrate a level of sophistication
and technical expertise not required
historically under the CEQ regulations
or consistent with the NEPA statute.96
Commenters also expressed concern
that the requirement would discourage
or preclude laypersons or communities
with environmental justice concerns
from commenting.97 Other commenters
on the 2020 rule expressed concern that
the changes would shift the
responsibility of analysis from the
agencies to the general public.98 Finally,
CEQ is removing this language because
the requirements that comments provide
as much detail as necessary to
‘‘meaningfully’’ participate and ‘‘fully
inform’’ the agency are vague and put
the burden on the commenter to
anticipate the appropriate level of detail
to meet those standards.
CEQ also proposed to delete from the
second sentence in paragraph (a)
language describing certain types of
impacts that a comment should cover,
including the reference to economic and
employment impacts as well as the
phrase ‘‘and other impacts affecting the
quality of the human environment’’
because it is unnecessary and
duplicative of ‘‘consideration of
potential effects and alternatives,’’
which appears earlier in the sentence.
CEQ proposed to delete the reference to
economic and employment impacts
because this language imposes an
inappropriate burden on commenters by
indicating that comments need to
explain why an issue matters for
economic and employment purposes.
NEPA requires agencies to analyze the
potential effects on the human
environment and does not require that
these effects be specified in economic
terms or related specifically to
employment considerations. Therefore,
it is inappropriate to single out these
considerations for special consideration
by commenters and unduly burdensome
to expect every commenter to address
economic and employment impacts.
A few commenters opposed the
deletion, expressing concerns that
removal of this language would
discourage agencies from considering
economic or employment impacts, or
indicate that agencies are not interested
in considering such information. CEQ
disagrees with the commenters’
assertions. This provision addresses the
role of commenters, who are in the best
96 CEQ, 2020 Response to Comments, supra note
69, at 326–27.
97 Id.at 327.
98 Id. at 328.
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position to assess the appropriate scope
of their comments. CEQ broadens the
language in the final rule, consistent
with the proposal, to invite and
welcome comments on effects of all
kinds. The revision in the final rule will
not have the effect of limiting
commenters from addressing economic
or employment impacts in their
comments but would avoid the
implication that members of the public
are welcome to comment only if they
address those issues. Further, the
removal of this language in the
provisions on public comments for an
EIS does not affect potential
consideration of these effects during the
environmental review process.
Specifically, § 1501.2(b)(2) requires
agencies to identify environmental
effects and values in adequate detail so
the decision maker can appropriately
consider such effects and values
alongside economic and technical
analyses. For these reasons, CEQ makes
the edits as proposed to the second
sentence of § 1503.3(a) in the final rule.
Finally, in paragraph (a), CEQ
proposed changes to the last sentence to
clarify that, only where possible, the
public should include citations or
proposed changes to the EIS or describe
the data, sources, or methodologies that
support the proposed changes in their
comments. While such information is
helpful to the agency whenever it is
readily available, CEQ had concerns that
this could be construed to place an
unreasonable burden on commenters.
CEQ did not receive any comments
specific to this change and makes these
edits as proposed in the final rule.
CEQ proposed to strike paragraph (b)
of 40 CFR 1503.3 (2020) and redesignate
paragraphs (c) and (d) as § 1503.3(b) and
(c), respectively. CEQ proposed to delete
paragraph (b) for consistency with the
proposed removal of the exhaustion
requirement from 40 CFR 1500.3 (2020)
and corresponding changes to § 1502.17.
CEQ also proposed to remove this
paragraph because it is unrelated to the
subject addressed in § 1503.3, which
addresses the specificity of comments,
rather than when commenters should
file their comments. Finally, CEQ
proposed to remove this paragraph
because agencies have long had the
discretion to consider special or unique
circumstances that may warrant
consideration of comments outside
those time periods.
While most commenters were
supportive of the deletion of the
provisions related to exhaustion, a few
commenters specifically requested CEQ
retain paragraph (b) of 40 CFR 1503.3
(2020) in the final rule. These
commenters expressed concern about
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35513
increased litigation and commenters
raising issues at the last minute or in
litigation for the first time.
CEQ removes paragraph (b) of 40 CFR
1503.3 (2020) in the final rule. The CEQ
regulations have long encouraged the
identification of issues early in the
NEPA process by providing multiple
opportunities for the public to engage—
first through the scoping process and
then through the public comment
period on the draft EIS. As CEQ
explains in section II.B.3, CEQ has
determined it is appropriate to remove
the exhaustion provisions in 40 CFR
1500.3 (2020), which CEQ considers
related to general principles of
administrative law applied by courts
rather than to principles specific to
NEPA. Therefore, CEQ removes this
paragraph for the reasons set forth in the
NPRM, the Phase 2 Response to
Comments, and the preamble of this
final rule.
Next, CEQ proposed to strike ‘‘sitespecific’’ from 40 CFR 1503.3(d) (2020)
in proposed paragraph (c) to clarify that
cooperating agencies must identify
additional information needed to
address significant effects generally.
CEQ proposed this change to enhance
efficiency because it ensures that
cooperating agencies have the
information they need to fully comment
on EISs, averting potential delay in the
environmental review process. CEQ did
not receive any comments specific to
this proposed change. CEQ makes this
change for clarity in the final rule.
Finally, CEQ proposed to strike the
requirement for cooperating agencies to
cite their statutory authority for
recommending mitigation from 40 CFR
1503.3(e) (2020). The NPRM explained
that this requirement is unnecessary
since, at this stage in development of an
EIS, those agencies with jurisdiction by
law have already established their legal
authority to participate as cooperating
agencies. Two commenters opposed this
change, suggesting that requiring
cooperating agencies to provide this
additional detail to the lead agency will
help the lead agency and applicants
assess the reasonableness of such
recommendations. Upon further
consideration, CEQ has decided not to
remove this requirement in the final
rule. CEQ revises the beginning of the
sentence from ‘‘When a cooperating
agency with jurisdiction by law
specifies’’ to ‘‘A cooperating agency
with jurisdiction by law shall specify’’
to clarify the requirement to identify
mitigation measures. Then, in the last
clause, CEQ replaces ‘‘the cooperating
agency shall’’ with ‘‘and’’ to retain the
requirement for a cooperating agency to
cite to its applicable statutory authority.
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CEQ agrees that identifying the statutory
authorities for mitigation is useful
information. CEQ encourages
cooperating agencies to identify such
information as early as practicable in
development of the EIS, but no later
than at the time of their review of a draft
EIS. CEQ also proposed in paragraph (d)
to replace the reference to ‘‘permit,
license, or related requirements’’ with
‘‘authorizations’’ because the definition
of ‘‘authorization’’ in § 1508.1(d) is
inclusive of those terms. CEQ makes
this change as proposed for clarity and
consistency in the final rule.
3. Response to Comments (§ 1503.4)
CEQ proposed to revise paragraph (a)
of § 1503.4 to clarify that agencies must
respond to comments but may do so
either individually, in groups, or in
some combination thereof. CEQ
proposed to change ‘‘may’’ to ‘‘shall,’’
which would revert a change made in
the 2020 rule, because the change
created ambiguity that could be read to
mean that agencies have discretion in
whether to respond to comments at all,
not just in the manner in which they
respond, i.e., individually or in groups.
CEQ did not indicate that it intended to
make responding to comments
voluntary when it made this change in
the 2020 rule, and CEQ has determined
that amending the regulations to avoid
this ambiguity improves the clarity of
the regulations.
CEQ received a few comments on
paragraph (a). A commenter suggested
that the rule provide greater latitude to
agencies to summarize and respond to
comments of a similar nature or decline
to respond to comments that the agency
determines provide no substantive
information applicable to the EIS. CEQ
agrees that Federal agencies should have
flexibility to summarize and respond to
similar comments or decline to respond
to non-substantive comments where
appropriate. The proposed language
provides this flexibility, and CEQ makes
this change in the final rule. Restoring
‘‘shall’’ in place of ‘‘may’’ removes any
ambiguity created by revisions to the
paragraph in the 2020 regulations and is
consistent with the longstanding
requirement and expectation for
agencies to respond to comments
received on an EIS, while also clarifying
that agencies have discretion on how to
respond to comments to promote the
efficiency of the NEPA process.
A couple of commenters requested
that CEQ define ‘‘substantive
comments;’’ modify the last sentence of
paragraph (a) to make the list of means
by which an agency may respond in the
final EIS to be a required list by
changing ‘‘may respond’’ to ‘‘will
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respond;’’ and modify paragraph (a)(2)
to clarify that the only alternatives an
agency should develop and evaluate
following public comments are those
that are consistent with the purpose and
need and are technically and
economically feasible. CEQ declines to
make these changes in the final rule.
Agencies have extensive experience
assessing whether a comment is
substantive and should have the
flexibility to do so—CEQ is concerned
that a definition would be unnecessarily
restrictive. Similarly, CEQ declines to
make the list of means by which an
agency responds to comments
mandatory, as unnecessarily
prescriptive; paragraph (a) lists the key
ways agencies may address comments,
but as long as agencies respond to
individual comments or groups of
comments, as required by the second
sentence of paragraph (a), they should
have flexibility to determine the
appropriate means of response. Lastly,
CEQ does not consider the proposed
change to paragraph (a)(2) necessary
because alternatives already must be
consistent with the purpose and need
consistent with § 1502.14.
In paragraph (c), CEQ proposed
changes to clarify that when an agency
uses an errata sheet, the agency must
publish the entire final EIS, which
would include the errata sheet, a copy
of the draft EIS, and the comments with
their responses. CEQ proposed these
edits to reflect typical agency practice
and to reflect the current requirement
for electronic submission of EISs rather
than the old practice of printing EISs for
distribution. One commenter suggested
that proposed edits would eliminate the
errata sheet. The intent of CEQ’s edits is
to ensure that the public can access the
complete analysis in one place. CEQ
disagrees with the commenter’s
interpretation of the proposed text, but
to remove any ambiguity, CEQ has
revised the provision in the final rule to
make clear that the final EIS includes
the errata sheet and ‘‘a copy of the draft
statement.’’
F. Revisions To Update Part 1504,
Dispute Resolution and Pre-Decisional
Referrals
In the NPRM, CEQ proposed to revise
part 1504 to add a new section on early
dispute resolution and reorganize the
existing sections. As discussed further
in this section, CEQ makes the changes
in the final rule with some additional
edits that are responsive to commenters.
One commenter noted that CEQ did not
propose to revise the title of part 1504
to reflect this approach. Therefore, in
this final rule, CEQ revises and
simplifies the title of part 1504 to
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‘‘Dispute resolution and pre-decisional
referrals’’ for consistency with the
revisions to this part. CEQ notes that the
criteria and procedures for agencies to
make a referral apply to agencies that
make a referral under the NEPA
regulations and do not apply to EPA
when exercising its referral authority
under section 309 of the Clean Air Act,
42 U.S.C. 7609.
1. Purpose (§ 1504.1)
CEQ proposed in § 1504.1(a) to add
language encouraging agencies to engage
early with each other to resolve
interagency disagreements concerning
proposed major Federal actions before
such disputes are referred to CEQ. CEQ
also proposed to add language clarifying
that part 1504 establishes procedures for
agencies to submit requests to CEQ for
informal dispute resolution, expanding
the purpose to reflect the changes
proposed in § 1504.2 and described in
section II.F.2. While CEQ did not
receive any comments on the language
of this specific provision, CEQ revises
the proposed language to make clear
that agencies need not engage in dispute
resolution before a referral. At least one
commenter interpreted the optional
early dispute resolution provision in
§ 1504.2 as a required precursor to a
referral. Therefore, in the final rule, CEQ
revises the first sentence as proposed to
encourage agencies to engage with one
another to resolve interagency disputes
and adds the proposed new sentence
indicating that part 1504 establishes the
procedures for early dispute resolution,
but does not include the clause
referencing the referral process. As
discussed further in section II.F.2, these
revisions are consistent with CEQ’s
ongoing role in promoting the use of
environmental collaboration and
conflict resolution,99 and serving as a
convener and informal mediator for
interagency disputes. CEQ strongly
encourages agencies to resolve disputes
informally and as early as possible so
that referrals under part 1504 are used
only as a last resort. Early resolution of
disputes is essential to ensuring an
efficient and effective environmental
review process.
In paragraph (b), which notes EPA’s
role pursuant to section 309 of the Clean
Air Act, 42 U.S.C. 7609, CEQ proposed
to strike the parenthetical providing the
99 See OMB & CEQ, Memorandum on
Environmental Collaboration and Conflict
Resolution (Sept. 7, 2012), https://ceq.doe.gov/
docs/ceq-regulations-and-guidance/OMB_CEQ_
Env_Collab_Conflict_Resolution_20120907.pdf;
OMB & CEQ, Memorandum on Environmental
Conflict Resolution (Nov. 28, 2005), https://
ceq.doe.gov/docs/ceq-regulations-and-guidance/
regs/OMB_CEQ_Joint_Statement.pdf.
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term ‘‘environmental referrals,’’ as this
term is not used elsewhere in part 1504.
CEQ notes that EPA’s section 309
authority is distinct from the ability of
an agency to make a referral pursuant to
§ 1504.3, and therefore part 1504 does
not apply to EPA when it is exerting its
section 309 authority. Finally, CEQ
proposed to revise the second sentence
in paragraph (c) to eliminate the passive
voice to improve clarity. CEQ did not
receive any specific comments on its
proposed changes to paragraphs (b) and
(c). Consistent with the NPRM, this final
rule removes the parenthetical in
paragraph (b) and revises paragraph (c)
to add the second sentence as proposed.
Additionally, the final rule strikes
‘‘similar’’ from the first sentence of
paragraph (c) because the bases for
referral under NEPA and section 309 are
distinct.
2. Early Dispute Resolution (§ 1504.2)
As discussed further in section II.F.3,
CEQ proposed to move the provisions in
40 CFR 1504.2 (2020) to § 1504.3(a) and
to repurpose § 1504.2 for a new section
on early dispute resolution. CEQ
proposed to add this section to codify
agencies’ current and longstanding
practice of engaging with one another
and enlisting CEQ to help resolve
interagency disputes. While CEQ did
not receive many comments on this
provision, the vast majority of those it
did receive supported the new
provision, and some recommended CEQ
make the language in the provision
stronger and more directive. On the
other hand, one commenter suggested
dispute resolution would slow the
environmental review process. CEQ is
finalizing the provision as proposed
because CEQ considers a flexible,
informal, and non-binding approach
rather than a mandatory and
prescriptive process to strike the right
balance to advance early resolution of
interagency disputes. CEQ does not
consider this provision to abrogate
CEQ’s authorities, as one commenter
suggested, but rather to encourage
agencies to resolve disputes early
amongst themselves and elevate issues
to CEQ when doing so will help
advance resolution. Making the
language in the regulations
discretionary rather than mandatory
does not affect CEQ’s authorities.
CEQ revises § 1504.2 as proposed.
Specifically, new paragraph (a)
encourages agencies to engage in
interagency coordination and
collaboration within planning and
decision-making processes and to
identify and resolve interagency
disputes. Further, paragraph (a)
encourages agencies to elevate issues to
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appropriate agency officials or to CEQ in
a timely manner that is consistent with
the schedules for the proposed action
established under § 1501.10.
Paragraph (b) allows a Federal agency
to request that CEQ engage in informal
dispute resolution. When making such a
request to CEQ, the agency must provide
CEQ with a summary of the proposed
action, information on the disputed
issues, and agency points of contact.
This provision codifies the longstanding
practice of CEQ helping to mediate and
resolve interagency disputes outside of
and well before the formal referral
process (§ 1504.3) and to provide
additional direction to agencies on what
information CEQ needs to mediate
effectively.
Paragraph (c) provides CEQ with
several options to respond to a request
for informal dispute resolution,
including requesting additional
information, convening discussions, and
making recommendations, as well as the
option to decline the request.
3. Criteria and Procedure for Referrals
and Response (§ 1504.3)
As noted in section II.F.2, CEQ
proposed to move the criteria for referral
set forth in 40 CFR 1504.2 (2020) to a
new paragraph (a) in § 1504.3 and
redesignate paragraphs (a) through (h) of
40 CFR 1504.3 (2020) as § 1504.3(b)
through (i), respectively. Because of this
consolidation, CEQ proposed to revise
the title of § 1504.3 to ‘‘Criteria and
procedure for referrals and response.’’
At least one commenter supported the
move of 40 CFR 1504.2 (2020) to
proposed § 1504.3(a) to facilitate the
addition of the informal dispute
resolution process. A few commenters
requested that CEQ make additional
changes to § 1504.3 to restore language
from the 1978 regulations allowing
public comment during CEQ’s
deliberations on whether to accept a
particular referral and, if CEQ accepts a
referral, during CEQ’s consideration of
recommendations to resolve the dispute.
In the final rule, CEQ adds an
additional factor, ‘‘other appropriate
considerations,’’ at § 1504.3(a)(8) to
clarify that the list of considerations for
referral is not an exclusive list.
Additionally, CEQ revises paragraph (f)
to allow ‘‘other interested persons’’ to
provide views on the referrals because
CEQ agrees with the commenters that
the opportunity to provide views should
not be limited to applicants. Relatedly,
CEQ clarifies in paragraph (g)(3) that
CEQ may obtain additional views and
information ‘‘including through public
meetings or hearings.’’ While the
language in 40 CFR 1504.3(f)(3) (2020)
and the proposed rule would not
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35515
preclude CEQ from holding public
meetings or hearings, CEQ considers it
important to provide this clarification in
the regulations to respond to comments.
CEQ otherwise finalizes this provision
as proposed.
G. Revisions to NEPA and Agency
Decision Making (Part 1505)
1. Record of Decision in Cases Requiring
Environmental Impact Statements
(§ 1505.2)
The proposed rule included proposed
modifications in § 1505.2 to align this
section with other proposed changes to
the regulations relating to exhaustion
and to clarify which alternatives
agencies must identify in RODs. CEQ
also proposed to modify the provision
on mitigation. As discussed further in
this section, CEQ proposed to strike
paragraph (b) of 40 CFR 1505.2 (2020),
make paragraph (a) of 40 CFR 1505.2
(2020) the undesignated introductory
paragraph in § 1505.2, and redesignate
paragraphs (a)(1) through (a)(3) of 40
CFR 1505.2 (2020) as § 1505.2(a)
through (c), respectively. CEQ makes
these reorganizational changes in the
final rule.
In proposed paragraph (b), CEQ
proposed to restructure the first
sentence—by splitting it into two
sentences and reframing it in active
voice—to improve readability and
clarify that an agency must identify the
alternatives it considered in reaching its
decision and also specify one or more
environmentally preferable alternatives
in the ROD, consistent with proposed
changes to § 1502.14(f) requiring an
agency to identify one or more
environmentally preferable alternatives
in the EIS. CEQ makes these changes as
proposed in the final rule.
CEQ received a number of comments
on the ‘‘environmentally preferable
alternative’’ generally, which are
discussed in detail in sections II.D.13
and II.J.10. CEQ notes that it did not
intend a substantive change to the
longstanding requirement to identify
which alternative (or alternatives)
considered in the EIS is the
environmentally preferable
alternative(s). Some commenters
suggested that the ‘‘environmentally
preferable alternative’’ could be an
alternative other than the proposed
action, no action, or reasonable
alternatives (which must be technically
and economically feasible and meet the
definition of purpose and need).
However, this is incorrect because the
environmentally preferable alternative
is one of the alternatives included in the
analysis, which consist of the proposed
action, no action, or reasonable
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alternatives. CEQ is revising § 1502.14(f)
in the final rule, to which § 1505.2(b)
cross references, to make this clear. CEQ
revises § 1505.2 as proposed in the final
rule.
Another commenter suggested CEQ
require an agency to specify if it
selected the environmentally preferable
alternative and if not, why not. CEQ
declines to make this change in the final
rule because it is overly prescriptive.
The regulations have long required
agencies to discuss myriad factors and
considerations that agencies balance in
making their decisions without
specifically requiring an agency to
explain why it did not select the
environmentally preferable alternative,
and CEQ does not consider a change
from this longstanding practice to be
warranted.
In the third sentence of proposed
§ 1505.2(b), CEQ added environmental
considerations to the list of example
relevant factors upon which an agency
may base discussion of preferences
among alternatives. CEQ did not receive
any specific comments on this proposed
change to § 1505.2(b) and makes the
changes in the final rule consistent with
its proposal.
In proposed § 1505.2(c), CEQ
proposed to change ‘‘avoid or
minimize’’ to ‘‘mitigate’’ in the first
sentence for consistency with the
remainder of the paragraph. One
commenter opposed this change,
arguing that it would impose a
burdensome requirement on agencies to
consider mitigation for each of the
effects of the proposed action and
explain in a ROD why each impacted
resource will not be replaced with a
substitute. CEQ disagrees with the
commenter’s interpretation of the
proposed revision. This provision has
never required agencies to discuss
avoidance or minimization at this level
of detail, i.e., for each resource category.
Rather, it requires an agency to discuss
generally whether it has ‘‘adopted all
practicable means’’ and if not, the
reasons for not doing so. CEQ makes
this change in the final rule to clarify
that agencies should discuss generally
whether they have adopted practicable
mitigation to address environmental
harms from the selected alternative.
Agencies need not do so on an impact
category-by-impact category basis.
Additionally, CEQ proposed to clarify
in proposed § 1505.2(c) that any
mitigation must be enforceable, such as
through permit conditions or grant
agreements, if an agency includes the
mitigation as a component of the
selected action in the ROD, and the
analysis of reasonably foreseeable
effects in the EISs relies on effective
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implementation of that mitigation. CEQ
also proposed to require agencies to
identify the authority for enforceable
mitigation. Lastly, CEQ proposed to
replace the requirement to adopt and
summarize a monitoring and
enforcement program for any
enforceable mitigation requirements or
commitments, with a requirement to
adopt a monitoring and compliance
plan consistent with proposed
§ 1505.3(c).
CEQ received a large number of
comments both supporting and
opposing the proposed requirement to
ensure that mitigation is enforceable in
certain cases and to identify the
authority for the enforceable mitigation.
Supporters of the proposed change
generally expressed concerns that
mitigation incorporated in RODs or
FONSIs is often not carried out,
undermining the evaluation of effects
required by NEPA. By contrast,
opponents of the proposed change
expressed concern that the provision
would require enforceable mitigation in
every case, and that the requirement for
enforceability would discourage project
proponents from proposing voluntary
mitigation. These commenters also
stated that NEPA does not require
mitigation of adverse effects or give
agencies the authority to require or
enforce mitigation measures. They
expressed concern that to the extent that
the authority to require or enforce
mitigation comes from other statutes,
the requirement in proposed § 1505.2(c)
would be duplicative. Finally,
commenters noted that ‘‘enforcement’’
may be the responsibility of an agency
other than the lead agency and may
consist of suspension or revocation of
an authorization under terms and
conditions included in the authorization
rather than direct civil or administrative
enforcement actions.
In the final rule, CEQ retains the
requirement to make mitigation
enforceable in those circumstances in
which agencies rely upon that
mitigation as part of its analysis. CEQ
has revised the sentence in § 1505.2(c)
to enhance readability and to address
some of the confusion raised by
commenters by specifying that
mitigation must be enforceable by a
lead, joint lead, or cooperating agency
when the ROD incorporates mitigation
and the analysis of the reasonably
foreseeable effects of the proposed
action is based on implementation of
that mitigation. The final rule further
revises the second sentence of proposed
§ 1505.2(c) by breaking it into two
sentences. The first identifies when
mitigation must be enforceable. The
second requires agencies to identify the
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authority for enforceable mitigation,
provides examples of enforceable
mitigation—specifically, permit
conditions, agreements, or other
measures—and requires agencies to
prepare a monitoring and compliance
plan. CEQ received a number of
comments on the monitoring and
compliance plan proposal, which are
discussed in detail in section II.G.2. For
the reasons discussed in that section, as
well as the Phase 2 Response to
Comments and NPRM, CEQ revises the
last sentence of § 1505.2(c) to require
agencies to prepare a monitoring and
compliance plan consistent with
§ 1505.3.
Section 1505.2(c) does not require
agencies to include enforceable
mitigation measures in every decision
subject to NEPA or require them to
adopt mitigation in any circumstance;
rather, the provision reinforces the
integrity of environmental reviews by
ensuring that if an agency assumes as
part of its analysis that mitigation will
occur and will be effective, the agency
takes steps to ensure that this
assumption is correct, including by
making the mitigation measures
enforceable.
This provision does not prohibit
agencies from approving proposals with
unmitigated adverse environmental
effects or from approving proposals that
include unenforceable mitigation
measures so long as the agency does not
rely on the effective implementation of
those measures to determine the
potential reasonably foreseeable effects
of the action. Rather, the provision only
prohibits an agency from basing its
environmental analysis on mitigation
that the agency cannot be reasonably
sure will occur. If an agency treats the
proposal’s unmitigated effects as
‘‘reasonably foreseeable,’’ and analyzes
them in its environmental review, then
the rule does not require the agency to
make the mitigation measures discussed
in the environmental document
enforceable or to identify the authority
for those measures.
The text in the final rule is consistent
with CEQ’s longstanding position that
agencies should not base their NEPA
analyses on mitigation measures that
they lack the authority to carry out or
to require others to carry out. CEQ
agrees with the commenters that
enforcing mitigation measures will
generally rely on authorities conferred
on the agency (or other participating
agencies) by statutes other than NEPA.
Rather than duplicating work done
under those other statutes, however, the
requirement to identify those authorities
will help integrate NEPA with other
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statutory processes and promote
efficiency and transparency.
Finally, CEQ proposed to strike
paragraph (b) of 40 CFR 1505.2 (2020),
requiring a decision maker to certify in
the ROD that the agency considered all
of the submitted alternatives,
information, and analyses in the final
EIS, consistent with paragraph (b) of 40
CFR 1502.17 (2020), and stating that
such certification is entitled to a
presumption that the agency considered
such information in the EIS. CEQ
proposed to strike this paragraph
because such certification is
redundant—the discussion in the ROD
and the decision maker’s signature on
such document have long served to
verify the agency has considered the
entirety of the EIS’s analysis of the
proposed action, alternatives, and
effects, as well as the public comments
received. As a result, the certification
that this paragraph required could have
the unintended consequence of
suggesting that the agency has not
considered other aspects of the EIS,
such as the comments and response to
comments, in making the decision. CEQ
also proposed this change because
agencies are entitled to a presumption of
regularity under the tenets of generally
applicable administrative law, rather
than this presumption arising from
NEPA; therefore, CEQ considers it
inappropriate to address in the NEPA
regulations.
CEQ also proposed to strike paragraph
(b) for consistency with its proposal to
remove the exhaustion provision in 40
CFR 1500.3 (2020), as discussed in
section II.B.3. As CEQ discussed in that
section, CEQ now considers it more
appropriately the purview of the courts
to make determinations regarding
exhaustion. Therefore, to the extent that
the certification requirement was
intended to facilitate the exhaustion
provision in 40 CFR 1500.3 (2020), it is
no longer necessary.
As discussed in section II.B.3, CEQ
considered the comments regarding the
exhaustion-related provisions and is
removing them in this final rule. While
most commenters discussed the
provisions collectively, at least one
commenter recommended removing this
certification provision because it created
an additional compliance burden on
agencies without improving efficiency
or reducing litigation risk. CEQ agrees
that the certification provision does not
increase efficiency or reduce litigation
risk, and that this is an additional
reason to remove this provision. For the
reasons discussed here and in section
II.B.3, CEQ removes this paragraph in
the final rule. As noted in this section,
CEQ considers such certification to be
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redundant to the decision maker’s
signature on a ROD, which indicates
that the decision maker has considered
all of the information, including the
public comments.
2. Implementing the Decision (§ 1505.3)
CEQ proposed to add provisions to
§ 1505.3 for mitigation and related
monitoring and compliance plans. To
accommodate the changes, CEQ
proposed to designate the undesignated
introductory paragraph of 40 CFR
1505.3 (2020) as paragraph (a) and
redesignate 40 CFR 1505.3(a) and (b)
(2020) as § 1505.3(a)(1) and (a)(2),
respectively. CEQ makes these
reorganizational changes in the final
rule with two clarifying edits to
§ 1505.3(a). First, CEQ adds an
introductory clause in § 1505.3, ‘‘[i]n
addition to the requirements of
paragraph (c) of this section,’’ to
distinguish the discussion of monitoring
in paragraph (a) from the new
monitoring and compliance plans
provided for in paragraph (c). Second,
CEQ deletes ‘‘lead’’ before agency in the
last sentence for consistency with the
prior sentence, stating that the lead or
other appropriate consenting agency
shall implement mitigation committed
to as part of the decision.
CEQ proposed to add new § 1505.3(b)
to encourage lead and cooperating
agencies to incorporate, where
appropriate, mitigation measures
addressing a proposed action’s
significant adverse human health and
environmental effects that
disproportionately and adversely affect
communities with environmental justice
concerns. CEQ proposed this addition to
highlight the importance of considering
environmental justice and addressing
disproportionate effects through the
NEPA process and the associated
decision. CEQ proposed this addition
based on public and agency feedback
received during development of this
proposed rule requesting that this rule
address mitigation of disproportionate
effects. Additionally, CEQ proposed this
change to encourage agencies to
incorporate mitigation measures to
address disproportionate burdens on
communities with environmental justice
concerns.
Numerous commenters opposed
CEQ’s proposed addition of § 1505.3(b),
pointing to the Supreme Court’s
decision in Robertson v. Methow Valley
Citizens Council, 490 U.S. 332 (1989).
These commenters stated that as a
procedural statute, NEPA does not
empower CEQ to require agencies to
adopt mitigation measures. In contrast,
other commenters supported CEQ’s
inclusion of the proposed new language
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in § 1505.3(b), and in some cases,
encouraged CEQ to go further to require
agencies to mitigate adverse effects to
communities with environmental justice
concerns.
CEQ finalizes § 1505.3(b) as proposed
with two edits. The final rule includes
‘‘into its decision’’ after ‘‘incorporate’’ to
clarify where agencies incorporate
mitigation measures and does not
include ‘‘adverse’’ after ‘‘significant’’
since ‘‘significant effects’’ is defined to
only be adverse effects. CEQ has long
encouraged agencies, as a policy matter,
to adopt mitigation measures that will
reduce the adverse environmental
effects of their actions.100 The addition
of the language in § 1505.3(b) is
consistent with this approach without
imposing new legal requirements on
Federal agencies.
CEQ recognizes the Supreme Court’s
holding in Methow Valley that NEPA
does not require ‘‘that a complete
mitigation plan be actually . . .
adopted,’’ 490 U.S. at 352, and has not
changed its longstanding position that
‘‘NEPA in itself does not compel the
selection of a mitigated approach.’’ 101
Accordingly, this provision does not
impose any binding requirements on
agencies, but rather codifies a portion of
CEQ’s longstanding position that
agencies should, as a policy matter,
mitigate significant adverse effects
where relevant and appropriate, in
particular for ‘‘actions that
disproportionately and adversely affect
communities with environmental justice
concerns.’’ The encouragement to
agencies to mitigate disproportionate
and adverse human health and
environmental effects on communities
with environmental justice concerns is
grounded in NEPA, which, while not
imposing a requirement to mitigate
adverse effects, nonetheless does ‘‘set
forth significant substantive goals for
the Nation.’’ See Vt. Yankee, 435 U.S. at
558. Specifically, NEPA declares that
the purposes of the statute are ‘‘to
promote efforts which will prevent or
eliminate damage to the environment
and biosphere and stimulate the health
and welfare of [people]’’; establishes
‘‘the continuing policy of the Federal
Government’’ to ‘‘assure for all
Americans safe, healthful, productive,
and esthetically and culturally pleasing
surroundings’’ and to ‘‘preserve
important historic, cultural, and natural
aspects of our national heritage’’; and
‘‘recognizes that each person should
100 See, e.g., CEQ, Mitigation Guidance, supra
note 10, at 3847 (‘‘CEQ encourages agencies to
commit to mitigation to achieve environmentally
preferred outcomes, particularly when addressing
unavoidable adverse environmental impacts’’).
101 See id. at 3844.
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enjoy a healthful environment.’’ 42
U.S.C. 4321, 4331(a), (b)(2), (b)(4), (c).
CEQ’s policy guidance has long
‘‘encourage[d] agencies to commit to
mitigation to achieve environmentally
preferred outcomes, particularly when
addressing unavoidable adverse
environmental impacts.’’ 102 CEQ’s
choice to encourage agencies in
§ 1505.3(b) to mitigate, ‘‘where relevant
and appropriate,’’ the significant effects
of ‘‘actions that disproportionately and
adversely affect communities with
environmental justice concerns,’’
reflects the particular importance of
addressing environmental justice. CEQ
does not intend the codification of its
encouragement to mitigate this category
of effects to imply that CEQ does not
also continue to encourage agencies to
commit to mitigation more broadly as
set forth in CEQ’s guidance. Rather, CEQ
has determined to focus the regulation
on mitigation where actions
disproportionately and adversely affect
communities with environmental justice
concerns, due to its heightened policy
concern when actions further burden
communities that already experience
disproportionate burdens.
Next, CEQ proposed to revise the text
in paragraph (c) regarding mitigation
and strike 40 CFR 1505.3(d) (2020)
regarding publication of monitoring
results, and replace them with new
language in § 1505.3(c) regarding the
contents of a monitoring and
compliance plan. As proposed, this
provision would require agencies to
prepare a monitoring and compliance
plan in certain circumstances when the
agency commits to mitigation in a ROD,
FONSI, or separate document. CEQ
proposed to require agencies to prepare
a plan for any mitigation committed to
and adopted as the basis for analyzing
the reasonably foreseeable effects of a
proposed action, not just mitigation to
address significant effects. In the NPRM,
CEQ explained that it views such plans
as necessary in order for an agency to
conclude that it is reasonably
foreseeable that a mitigation measure
will be implemented, and, therefore,
that the agency does not have to analyze
and disclose the effects of the action
without mitigation because they are not
reasonably foreseeable. The proposal
would not require a monitoring and
compliance plan where an agency
analyzes and discloses the effects of the
action without the mitigation measure
because, in that circumstance, the
agency would not base its identification
of reasonably foreseeable effects on the
mitigation measure.
102 See
id. at 3847.
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CEQ received many comments both
supporting and opposing the
requirement for mitigation monitoring
and compliance plans under prescribed
circumstances. Supporters of the
proposed changes generally expressed
concerns that without monitoring and
compliance plans, agencies’
assumptions regarding the ability of
mitigation to reduce the adverse effects
of the proposed action may be
speculative. Opponents of the changes,
meanwhile, raised similar concerns to
those raised in connection with the
language in § 1505.2(c) regarding the
enforceability of mitigation, as
discussed in section II.G.1. Specifically,
commenters expressed concern that
enforceable mitigation would be
required in every case, and that the
requirement for enforceability would
discourage project proponents from
proposing voluntary mitigation. These
commenters also noted that NEPA does
not require or authorize CEQ to require
detailed mitigation plans and expressed
concern that preparing monitoring and
compliance plans would be duplicative
and burdensome. Commenters also
suggested that CEQ require monitoring
plans in a broader range of cases;
require plans to include more detailed
information regarding effectiveness and
uncertainty; require agencies to engage
the public in connection with mitigation
plans; and provide guidance on topics
including interagency coordination and
mitigation funding.
In the final rule, CEQ strikes
paragraph (d) of 40 CFR 1505.3 (2020)
and revises § 1505.3(c) to require the
lead or cooperating agency to prepare
and publish a monitoring and
compliance plan for mitigation in
certain circumstances identified in
§ 1505.3(c)(1) and (c)(2)—the final rule
subdivides the text from proposed
paragraph (c) to improve readability.
The final rule clarifies that an agency
must publish the plan. While
publication is implied in the proposed
rule, since such plans would be
completed in or with the ROD or
FONSI, and these documents must be
published, commenters requested CEQ
address this explicitly in the final rule,
and CEQ has done so to avoid any
confusion over whether agencies must
publish these plans.
CEQ revises the language from the
proposed rule to make clear that
agencies must prepare such plans when
the following conditions are met. First,
the analysis of the reasonably
foreseeable effects of a proposed action
in an EA or EIS is based on
implementation of mitigation. Second,
the agency incorporates the mitigation
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into its ROD, FONSI, or separate
decision document.
As with the requirements related to
mitigation enforceability in § 1505.2(c),
this provision does not require agencies
to include mitigation monitoring and
compliance plans for every action
subject to NEPA or even for every
decision that includes mitigation.
Rather, the final rule requires the agency
to prepare and publish a mitigation
monitoring and compliance plan when
an agency bases its identification of the
reasonably foreseeable effects of the
action, as required by section 102(2)(C)
of NEPA, on implementation of
mitigation. Specifically, the statutory
text requires an agency to identify the
‘‘reasonably foreseeable environmental
effects’’ of the proposed action; to the
extent that identification assumes the
implementation of mitigation measures
to avoid adverse effects, it follows, in
turn, that implementation of mitigation
must also be reasonably foreseeable. The
preparation of a monitoring and
compliance plan therefore provides the
agency with reasonable certainty that
the mitigation measures upon which it
has based its effects analysis will be
implemented, and therefore, that the
effects of the action in the absence of
mitigation do not need to be analyzed
and disclosed to satisfy the
requirements of the NEPA statute. For
example, if an agency concluded that
issuing a permit allowing fill of five
acres of wetlands would not have a
significant effect based on the
applicant’s agreement to restore five
acres of comparable wetlands in the
same watershed, then the agency has
based its conclusion that the action to
grant the permit does not have
significant effects on implementation of
the mitigation measure and would need
to prepare a monitoring and compliance
plan. The same would be true if the
agency’s analysis in its EA or EIS found
that authorizing the filling of five acres
of wetlands would not have a
reasonably foreseeable effect on the
availability of wetlands habitat in the
watershed based on the implementation
of the wetlands restoration measure.
The language in § 1505.3 builds on
CEQ’s longstanding positions regarding
the information that agencies must
include in NEPA documents when
agencies choose to base their effects
analysis on the implementation of
mitigation measures. To the extent that
other authorities may require
monitoring and compliance plans,
agencies should leverage those existing
plans to comply with the requirements
of the rule, rather than duplicating
efforts.
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CEQ proposed paragraphs (c)(1) and
(c)(1)(i) through (c)(1)(vi) of § 1505.3 to
describe the contents of a monitoring
and compliance plan and provide
agencies flexibility to tailor plans to the
complexity of the mitigation that the
agency has incorporated into a ROD,
FONSI, or other document. Contents
should include a description of the
mitigation measures; the parties
responsible for monitoring and
implementation; how the information
will be made publicly available, as
appropriate; the anticipated timeframe
for implementing and completing the
mitigation; the standards for compliance
with the mitigation; and how the
mitigation will be funded.
A commenter suggested that CEQ
require in § 1505.3(c)(1)(v) that the
standards address effectiveness of the
mitigation. CEQ declines to make this
change in the final rule. The goal of this
provision is to ensure that agencies have
reasonable certainty that mitigation
measures that serve as the basis for the
effects analysis will be implemented,
and therefore, that the effects of the
action in the absence of implementation
of mitigation are not reasonably
foreseeable and can be excluded from
the analysis. Agencies appropriately
evaluate the effectiveness of mitigation
measures as part of the NEPA process
and rely on various techniques, such as
adaptive management plans, to address
circumstances where there is substantial
uncertainty over effectiveness, for
example where a mitigation measure is
new or novel.
CEQ finalizes these paragraphs in
§ 1505.3(d) and (d)(1) through (d) as
proposed, with an addition to
§ 1505.3(d) to reference the monitoring
and compliance plan required by
paragraph (c). Agencies may tailor
monitoring and compliance plans to the
particular action, but they should
contain sufficient detail to inform the
participating and cooperating agencies
and the public about relevant
considerations, such as the magnitude
of the environmental effects that would
be subject to mitigation, the degree to
which the mitigation represents an
innovative approach, any technical or
other challenges with implementation,
the time frame for implementation and
monitoring, and other relevant facts that
support a determination that the
mitigation will be implemented. Where
a proposed action involves more than
one agency, the lead and cooperating
agencies should collaboratively develop
a monitoring and compliance plan that
clearly defines agency roles and avoids
duplication of effort.
Requiring agencies to prepare a
monitoring and compliance plan for
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mitigation in the circumstances
identified in paragraph § 1505.3(c) is
intended to address concerns that
mitigation measures included in agency
decisions are not always carried out. If
it is reasonably foreseeable that a
mitigation measure will not be
implemented, then the agency cannot
appropriately base its analysis of the
effects of the action on the
implementation of the mitigation
measure. A monitoring and compliance
plan will address this concern and
support an agency relying on mitigation
for purposes of analyzing and disclosing
the reasonably foreseeable
environmental effects of a proposed
action, as required by section 102(2)(C)
of NEPA, and, in some circumstances,
concluding that a FONSI is appropriate.
Finally, CEQ proposed to add a new
paragraph (c)(2) to provide that any new
information developed through the
monitoring and compliance plan would
not require an agency to supplement its
environmental documents solely
because of this new information. CEQ
proposed this provision to clarify that
the existence of a monitoring and
compliance plan by itself would not
mean that the action to which it relates
is an ongoing action if it would
otherwise be considered completed.
CEQ received comments supporting,
opposing, and asking CEQ to clarify
proposed § 1505.3(c)(2). In the final
rule, CEQ includes proposed paragraph
(c)(2) at § 1505.3(e) with some revisions
to the proposal. CEQ revises the
beginning of the first sentence to clarify
that where an action is incomplete or
ongoing, the information developed
through the monitoring and compliance
plan itself cannot induce the
requirement to supplement or revise
environmental documents. CEQ
includes this provision to avoid
perverse incentives that could lead
agencies to adopt less effective
monitoring and compliance plans, or
forgo commitments to mitigation
entirely, to avoid revision and
supplementation. This clarification is
also consistent with the purpose of the
monitoring and compliance plan, which
is to ensure that the agency has a
reasonable basis for assessing
environmental effects at the time that it
makes its decision, rather than creating
a new obligation for ongoing NEPA
analysis after a decision is made.
Second, CEQ adds an additional
sentence at the end of the paragraph to
clarify that the ongoing implementation
of a monitoring and compliance plan by
itself is not an incomplete or ongoing
Federal action that induces
supplementation under §§ 1501.5(h) or
1502.9(d).
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The changes to § 1505.3 are consistent
with the final rule’s revisions to
§ 1505.2(c), which direct agencies to
adopt and summarize a monitoring and
enforcement program for any
enforceable mitigation requirements or
commitments for a ROD, and to
§ 1501.6(a) to clarify the use of mitigated
FONSIs. The changes also provide more
consistency in the content of monitoring
and compliance plans, increase
transparency in the disclosure of
mitigation measures, and provide the
public and decision makers with
relevant information about mitigation
measures and the process to comply
with them.
H. Revisions to Other Requirements of
NEPA (Part 1506)
CEQ proposed multiple revisions to
part 1506, as described in this section.
As noted in section II.C.8, CEQ
proposed to move 40 CFR 1506.6 (2020),
‘‘Public involvement,’’ to § 1501.9,
‘‘Public and governmental engagement.’’
CEQ did not propose changes to
§ 1506.2, ‘‘Elimination of duplication
with State, Tribal, and local
procedures;’’ § 1506.4, ‘‘Combining
documents;’’ or § 1506.8, ‘‘Proposals for
legislation,’’ but invited comments on
whether it should make changes to these
provisions in the final rule.
CEQ received several general
comments of support on § 1506.2
regarding elimination of duplication
with State, Tribal, and local procedures,
and one commenter suggested the final
rule change § 1506.2(d) to require rather
than recommend that EISs describe how
the agency will reconcile an
inconsistency between the proposed
action and an approved State, Tribal, or
local plan or law. CEQ declines to make
this change to this longstanding
language from the 1978 regulations. As
also noted in this provision, NEPA does
not require such reconciliation.
CEQ did not receive any
recommendations to amend § 1506.4
regarding combining documents, though
one commenter requested additional
guidance on use of this and other
provisions to facilitate sound and
efficient decision making and avoid
duplication. Finally, CEQ received one
comment on § 1506.8 regarding
legislative EISs, requesting CEQ include
public notification and participation
requirements for legislative EAs/EISs in
§ 1506.8(b). CEQ notes that consistent
with § 1506.8(c), agencies must provide
for public notice and seek comment like
any other draft EIS. After considering
these comments, CEQ has determined to
finalize the rule without making
changes to §§ 1506.2, 1506.4, or 1506.8.
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1. Limitations on Actions During NEPA
Process (§ 1506.1)
CEQ proposed to edit § 1506.1(b) to
provide further clarity on the limitations
on actions during the NEPA process to
ensure that agencies and applicants do
not take actions that will adversely
affect the environment or limit the
choice of reasonable alternatives until
an agency concludes the NEPA process.
CEQ proposed to amend the last
sentence in paragraph (b), which
provides that agencies may authorize
certain activities by applicants for
Federal funding while the NEPA
process is ongoing. To better align this
provision with NEPA’s requirements,
CEQ proposed to add a clause to the
sentence clarifying that such activities
cannot limit the choice of reasonable
alternatives, and the Federal agency
must notify the applicant that the
agency retains discretion to select any
reasonable alternative or the no action
alternative regardless of any potential
prior activity taken by the applicant
prior to the conclusion of the NEPA
process. CEQ also proposed this
revision to provide additional clarity
consistent with § 1506.1(a) and the 2020
Response to Comments, which state that
this provision allows certain activities
to proceed, prior to a ROD or FONSI, so
long as they do not have an adverse
environmental impact or limit the
choice of reasonable alternatives.103 The
NPRM also noted that the proposed
change is responsive to comments
received on the 2020 rule expressing
concern that the existing language could
allow pre-decisional activities to
proceed that would inappropriately
narrow the range of alternatives
considered by an agency.
A few commenters expressed support
for the proposed changes to § 1506.1(b),
including commenters who also
requested additions to the list of
examples of potentially permissible
activities. Several other commenters
opposed the proposed language,
pointing to sector-specific reasons;
citing cases where courts issued
preliminary injunctions predicated on a
ruling that limiting reasonable
alternatives before the NEPA analysis is
complete is irreparable harm; citing
cases where courts ruled that
undertaking project actions before
NEPA is completed undermines the law;
and asserting that allowing any
economic investment in an action before
completing the NEPA process
undermines confidence in agency
decisions.
103 CEQ, 2020 Response to Comments, supra note
69, at 356.
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Some commenters opposed the
examples of activities an agency could
authorize, asserting that land rights
acquisition and long lead time
equipment purchases are apt to bias
agency decision making and
recommended CEQ revise the list to
prohibit acquisition of interests in land,
purchase of long lead-time equipment,
and purchase options made by
applicants before NEPA review.
One commenter asserted that the
proposed revisions to paragraph (b)
undermine the value of an agency
authorization and recommended the
provision state that project applicants
may proceed at their own risk without
agency authorization. Another
commenter requested that CEQ add
language to paragraph (b) to provide
Tribes with more flexibility to
undertake interim actions.
CEQ considered the comments and
finalizes § 1506.1(b) as proposed with
two additional revisions. Specifically,
CEQ changes the phrase ‘‘non-Federal
entity’’ to ‘‘applicant’’ in the first
sentence of paragraph (b) for
consistency with the definition of
‘‘applicant’’ added to § 1508.1(c) and
does not include the phrase ‘‘potential
prior’’ before the word ‘‘activity,’’ so
that the provision requires notification
that the agency retains discretion
regardless of any activity taken by the
applicant prior to the conclusion of the
NEPA process. CEQ has deleted this
phrase because, upon further
consideration, it considers it to be
confusing because the sentence refers to
activity taken prior to the conclusion of
the NEPA process, and, therefore, the
earlier use of ‘‘prior’’ is redundant and
the use of ‘‘potential’’ is unnecessary
because such activity would be actual
and not potential at the conclusion of
the NEPA process. CEQ considers the
provision as revised to strike the right
balance between preserving the integrity
of the NEPA process, including
preserving an agency’s right to select no
action or a reasonable alternative, and
providing applicants sufficient
flexibility to make business decisions.
This approach is consistent with the fact
that NEPA applies to Federal agencies
and does not directly regulate
applicants (unless the applicants are
themselves Federal agencies). This
approach is also consistent with
longstanding practice under § 1506.1.
Further, applicants are in the best
position to assess and determine their
tolerance for risk, and agencies should
never be unduly influenced by these
decisions in their NEPA processes.
CEQ also proposed to strike
‘‘required’’ in paragraph (c). This edit is
consistent with § 1501.11, which
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encourages, but does not require, the
use of programmatic environmental
reviews.
A few commenters opposed the
proposed change to paragraph (c),
asserting that it is contrary to NEPA and
multiple other laws by restricting
actions during discretionary or nonrequired programmatic environmental
reviews. One commenter stated that the
proposal would authorize agencies to
suspend programs like Federal coal
leasing while environmental studies are
ongoing, and that NEPA does not
provide agencies with authority for such
action. The commenter asserted that
expanding proposed § 1506.1 beyond
required programmatic environmental
reviews is arbitrary and capricious
because CEQ has failed to describe a
valid purpose for the deletion.
CEQ has reviewed this provision in
response to comments and retains
‘‘required’’ in the final rule. CEQ also
revises ‘‘programmatic environmental
review’’ to ‘‘environmental review for a
program’’ to revert to the approach in
the 1978 regulations. The 2020 rule
changed ‘‘program’’ EIS to
‘‘programmatic environmental review’’
stating that ‘‘programmatic’’ is the term
commonly used by NEPA
practitioners.104 However, paragraphs
(c) and (c)(1) continue to refer to
‘‘program,’’ and the definition of
‘‘programmatic environmental
document’’ in § 1508.1(ee) is not limited
to reviews of programs, but extends
other reviews such as reviews of groups
of related actions. To resolve any
ambiguity, the final rule is using
‘‘program’’ throughout these paragraphs
and changes ‘‘existing programmatic
review’’ to ‘‘environmental document.’’
CEQ also notes that the longstanding
principles set forth in paragraph (c)—
that agencies must comply with NEPA
for specific Federal actions before taking
the action and that agencies cannot
engage in activities that prejudice the
outcome of the NEPA process—apply to
programmatic environmental reviews
irrespective of whether a programmatic
review is required.
2. Adoption (§ 1506.3)
CEQ proposed changes to § 1506.3 in
the NPRM to facilitate an agency’s
adoption of the EISs, EAs, and CE
determinations of another agency in an
appropriate and transparent manner. As
CEQ noted in the proposed rule, the
2020 regulations expanded § 1506.3 to
codify longstanding agency practice of
adopting EAs and explicitly allowed for
adoption of other agencies’ CE
determinations. CEQ proposed
104 CEQ,
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modifications to § 1506.3 to improve
clarity, reduce redundancy, and ensure
that when an agency adopts an EIS, EA,
or CE determination, the agency
conducts an independent review to
determine that the EIS, EA, or CE
determination meets certain basic
standards. CEQ also proposed to add
new requirements regarding the
adoption of another agency’s CE
determination to increase public
transparency.
Comments on the proposed changes
to § 1506.3 expressed both opposition
and support for adoption in general, the
approach to enabling adoption taken in
the proposed rule, and its application to
EISs, EAs, and CE determinations.
Commenters who supported the
adoption provisions as proposed point
to the efficiencies gained in reducing
time. Commenters who opposed CEQ’s
proposed changes asserted that the
proposed rule went beyond the
intended goal of NEPA and that
adoption limits public engagement.
Additionally, one commenter requested
that throughout this section, CEQ
replace ‘‘substantially the same’’ with
‘‘the same’’ to strengthen the
requirements for adoption.
CEQ finalizes the proposed changes to
§ 1506.3 as discussed in this section.
CEQ disagrees that adoption goes
beyond NEPA’s intended goals. Because
actions must be substantially the same,
the public will have had the
opportunity to engage during the
preparation of the original document to
the extent engagement is required or
appropriate for that particular action;
and, where the actions are not
substantially the same, additional
public engagement may be required
consistent with the requirements for the
document type. Additionally, the CEQ
regulations have provided for adoption
since 1978 and included the
‘‘substantially the same’’ standard. Such
language is critical to facilitating
adoption because agency actions are
often not the same, but relate to the
same overall project. For example, one
agency’s funding decision is not the
same action as another agency’s
decision to issue a permit. However, if
the underlying activity analyzed in the
NEPA document is the same project,
then adoption is appropriate.
In paragraph (a), which provides that
an agency may adopt EISs, EAs or CE
determinations, CEQ proposed to strike
the language requiring an EIS, EA, or CE
determination to meet relevant
standards and instead articulate the
standards in paragraphs (b) through (d),
which address adoption of EISs, EAs,
and CE determinations, respectively.
CEQ proposed to replace this clause
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with language that requires adoption to
be done ‘‘consistent with this section.’’
CEQ proposed to remove ‘‘Federal’’
before the types of documents an agency
may adopt as unnecessary and to make
clear that agencies can adopt NEPA
documents prepared by non-Federal
entities that are doing so pursuant to
delegated authority from a Federal
agency. See, e.g., 23 U.S.C. 327. CEQ
makes these changes in the final rule as
proposed.
In paragraph (b), CEQ proposed to add
text after the heading ‘‘Environmental
impact statements’’ to provide that an
agency may adopt a draft or final EIS,
or a portion of a draft or final EIS, if the
adopting agency independently reviews
the statement and concludes it meets
the standards for an adequate statement
pursuant to the CEQ regulations and the
adopting agency’s NEPA procedures.
A commenter opposed the proposed
requirement for agencies to confirm that
an adopted EIS, as well as an EA under
paragraph (c), meets the standards of the
adopting agency’s NEPA procedures.
The commenter asserted that this
requirement is burdensome and can
cause delays. One commenter also
asserted that paragraph (b) requires
standards for EIS adoption in agency
NEPA procedures and that because
agencies have a year to adopt new
procedures, this will set adoption back
by a year.
CEQ finalizes the changes to
paragraph (b) as proposed but replaces
‘‘a draft or final’’ EIS with ‘‘another
agency’s draft or final’’ EIS to respond
to commenters’ requests for additional
clarity and for consistency with the
existing phrasing in paragraph (d). CEQ
disagrees that requiring adopting
agencies to assess consistency with their
procedures will add substantial
additional burden. Ensuring consistency
with the adopting agency’s procedures
is a codification of longstanding agency
practice and is necessary so that an
agency can ensure that the adopted
document satisfies the requirements
applicable to the adopting agency. CEQ
also disagrees that agencies must update
their procedures to address adoption
before they can make use of this tool.
While agencies may consider including
the adoption process in their
procedures, § 1507.3 does not require
agencies to do so and does not preclude
an agency from using adoption before its
procedures are updated. Therefore, CEQ
disagrees with the commenter’s
assertion that agencies cannot adopt
EISs until their agency NEPA
procedures are updated.
In paragraph (b)(1), which addresses
adoption of an EIS for actions that are
substantially the same, CEQ proposed to
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insert ‘‘and file’’ after ‘‘republish’’ to
improve consistency with § 1506.9 and
because agencies must both publish the
EIS and file it with EPA. Further in
paragraph (b)(1), CEQ proposed to add
text to clarify that agencies should
supplement or reevaluate an EIS if the
agency determines that the EIS requires
additional analysis.
One commenter questioned if the
phrase ‘‘or reevaluate it as necessary’’
means an agency could adopt an EIS
through an EA and FONSI. Another
commenter requested that CEQ more
clearly require agencies to supplement
an EIS, interpreting the proposed rule
text to encourage, rather than require,
supplementation when there is new or
updated data. Similarly, the commenter
also requested that CEQ define when it
is necessary to supplement or reevaluate
an EA in paragraph (c). CEQ finalizes
this provision with an additional
revision to change ‘‘the statement
requires supplementation’’ to ‘‘the
statement may require supplementation
consistent with § 1502.9 of this
subchapter,’’ which adds a crossreference to the section of the
regulations addressing supplementation
and reevaluation. CEQ includes these
revisions to clarify that agencies can
conduct additional analysis to
determine whether the supplementation
criteria of § 1502.9(d) are met or
document why supplementation is not
required. This revised provision codifies
agency practice and provides agencies
more flexibility to use the efficiency
mechanism of adoption while also
ensuring that the analysis included in
an adopted document is valid and
complete. For example, if an agency is
adopting an EIS that was prepared
several years prior, and there is more
recent data or updated information
available on one of the categories of
effects, the agency may need to do
additional analysis if the
supplementation standard in § 1502.9(d)
is met, or document in a reevaluation,
consistent with § 1502.9(e), why the
supplementation standard is not met.
Similarly, if an action is not
substantially the same, and the adopting
agency determines that the EIS requires
supplemental analysis, the agency
would treat the EIS as a draft, prepare
the additional analysis, and publish the
new draft EIS for notice and comment.
Where a proposed action is not
substantially the same, an agency must,
at minimum, supplement the adopted
EIS to ensure it adequately covers its
proposed action.
In paragraph (b)(2), which addresses
adoption of an EIS by a cooperating
agency, CEQ proposed to clarify that
this provision is triggered when a
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cooperating agency does not issue a
joint or concurrent ROD consistent with
§ 1505.2. In the proposed rule, CEQ
explained that this provision covers
instances when a cooperating agency
adopts an EIS for an action the
cooperating agency did not anticipate at
the time the EIS was issued, such as a
funding action for a project that was not
contemplated at the time of the EIS. In
such instances, the cooperating agency
may issue a ROD adopting the EIS of the
lead agency without republication of the
EIS. CEQ proposed to strike the text at
the end of paragraph (b)(2) regarding
independent review because CEQ
proposed to capture that standard in
paragraph (b).
CEQ did not receive comments on its
proposed changes to paragraph (b)(2).
Therefore, CEQ finalizes this provision
consistent with its proposal.
In paragraph (c), CEQ proposed to add
language to clarify the standard for
adopting an EA, which mirrors the
standard for adoption of an EIS. CEQ
similarly proposed edits to align the
process with the processes for EISs by
clarifying that the adopting agency may
adopt the EA, and supplement or
reevaluate it as necessary, in its FONSI.
A few commenters opposed the
adoption of EAs, in particular
expressing opposition to the adoption of
draft EAs or EAs that are the subject of
formal dispute resolution or litigation,
and suggested these should instead be
incorporated by reference pursuant to
§ 1501.12. One commenter requested
that CEQ revise paragraph (c) to align it
with paragraph (d) to require agencies to
document the reasons for its adoption
and make its reasoning publicly
available.
In the final rule, CEQ finalizes the text
as proposed in paragraph (c) with an
additional revision to replace ‘‘an
environmental assessment’’ with
‘‘another agency’s environmental
assessment’’ to respond to commenters’
requests for additional clarity and for
consistency with the same change to
paragraph (b) and the existing language
in paragraph (d). For the reasons
articulated with respect to EISs, CEQ
revises the language that if an agency
determines an EA ‘‘may require
supplementation consistent with
§ 1501.5(h) of this subchapter,’’ it may
adopt and supplement or reevaluate the
EA as necessary and issue its FONSI.
CEQ agrees that an agency may only
adopt a final EA, and that use of a draft
EA through incorporation by reference
is appropriate. However, CEQ interprets
the proposed text as precluding
adoption of a draft EA and, therefore,
does not consider additional revisions
necessary to address this comment. The
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reference to EAs in this section
necessarily means final EAs, since the
regulations do not require a draft and
final EA; therefore, the reference to EA
without specification means a final EA.
For additional clarity, CEQ proposed
to add ‘‘determinations’’ to the title of
paragraph (d). CEQ also proposed to
revise this paragraph to improve
readability and clarify that the adopting
agency is adopting another agency’s
determination that a CE applies to a
particular proposed action where the
adopting agency’s proposed action is
substantially the same. As CEQ noted in
the proposed rule, this provision does
not allow an agency to unilaterally use
another agency’s CE for an independent
proposed action; rather, the process for
such reliance on another agency’s CE is
addressed in § 1501.4(e).
To ensure that there is public
transparency for adoption of CE
determinations, like adoption of EAs
and EISs, CEQ proposed new
paragraphs (d)(1) and (d)(2) to require
agencies to document and publish their
adoptions of CE determinations, such as
on their website. CEQ proposed in
paragraph (d)(1) to specify that agencies
must document a determination that the
proposed action is substantially the
same as the action covered by the
original CE determination, and there are
no extraordinary circumstances present
requiring preparation of an EA or EIS.
Because agencies typically already make
such determinations in the course of
adopting CE determinations for actions
that are substantially the same, CEQ has
concluded that this documentation
requirement will not be onerous or time
consuming. In paragraph (d)(2), CEQ
proposed to require agencies to publicly
disclose when they are adopting a CE
determination. CEQ stated in the
proposed rule that this proposed change
was intended to increase transparency
on use of CEs to respond to feedback
from stakeholders that they often do not
know when an agency is proceeding
with a CE. This adds a standard to
adoption of CE determinations that is
similar to the practice for adoption of
EAs and EISs. Agencies, however, have
flexibility to determine how to make
this information publicly available,
including through posting on an
agency’s website.
One commenter requested that CEQ
require an agency to both publish a
determination on its website and make
it publicly available in other ways, as
opposed to one or the other. CEQ
declines to require agencies to publish
CE adoption determinations in multiple
places as unnecessarily burdensome on
agencies. However, CEQ notes that the
language in paragraph (d)(2) does not
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preclude agencies from both publishing
an adoption of a CE determination on its
website and making it publicly available
in other ways when they determine
doing so is appropriate. CEQ finalizes
these paragraphs as proposed with one
clarifying change to add introductory
language at the end of paragraph (d)—
‘‘In such circumstances the adopting
agency shall’’—to make clear that
paragraphs (d)(1) and (d)(2) apply when
adopting another agency’s CE
determination to distinguish this
process from the adoption process
under § 1501.4(e).
3. Agency Responsibility for
Environmental Documents (§ 1506.5)
CEQ proposed modifications and
additions to § 1506.5 to clarify the roles
and responsibilities for agencies,
applicants, and agency-directed
contractors in preparing environmental
documents and to make the provision
consistent with section 107(f) of NEPA,
which requires agencies to prescribe
procedures to allow project sponsors to
prepare EAs and EISs under the
agencies’ supervision and to
independently evaluate and take
responsibility for such documents. 42
U.S.C. 4336a(f). The 2020 rule amended
§ 1506.5 to allow an applicant to
prepare EISs on behalf of the agency;
however, the 2023 amendments to
NEPA make clear that agencies
themselves must establish procedures
for project sponsors to prepare EAs and
EISs, not the CEQ regulations. As noted
in the NPRM, CEQ understands the
2023 amendments to NEPA to use the
terms ‘‘applicant’’ and ‘‘project
sponsor’’ interchangeably and,
therefore, CEQ proposed to use the term
‘‘applicant’’ and, in the final rule, CEQ
uses and defines the term ‘‘applicant.’’
See section II.J.1. However, as discussed
further in this section, CEQ notes that
the 2023 NEPA amendments’
requirement that agencies establish
procedures for project sponsors to
prepare EAs and EIS does not affect the
ability of applicants and project
sponsors to provide information to
agencies to assist agencies or their
agency-directed contractors in the
preparation of environmental
documents consistent with § 1506.5(c).
CEQ received multiple comments that
generally supported the proposed
changes to allow applicants to prepare
EAs and EISs, as well as multiple
commenters who generally opposed the
provision and opposed section 107(f) of
NEPA, 42 U.S.C. 4336a(f). CEQ
discusses these comments and
responses in section II.I.3 of this final
rule, which addresses the statutory
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requirement for agencies to prescribe
applicant procedures.
In paragraph (a), CEQ proposed to
clarify that regardless of who prepares
an environmental document—the
agency itself, a contractor under the
direction of the agency, or the applicant
pursuant to agency procedures—the
agency must ensure the document is
prepared with professional and
scientific integrity using reliable data
and resources, consistent with sections
102(2)(D) and (2)(E) of NEPA, 42 U.S.C.
4332(2)(D)–(E), and exercise its
independent judgment to review, take
responsibility for, and briefly document
its determination that the document
meets all necessary requirements and
standards related to NEPA, the CEQ
regulations, and the agency’s NEPA
procedures.
A few commenters provided
suggestions for CEQ to consider
regarding the changes in paragraph (a).
These commenters asked CEQ to define
what ‘‘under the supervision of the
agency’’ means; require agencies to fully
rather than briefly document its
determination that an environmental
document meets the standards of NEPA,
the CEQ regulations, and the agency’s
NEPA procedures; and adopt a clearer
standard for guaranteeing professional
and scientific integrity to ensure all EISs
and EAs receive the same level of
scrutiny regardless of who prepares
them.
Multiple commenters also provided
feedback on the language in paragraph
(a) referring to agency procedures
adopted pursuant to § 1507.3(c)(12),
which are discussed in section II.I.3 of
this final rule.
In the final rule, CEQ makes a few
clarifying updates to the proposed text
in paragraph (a). Specifically, CEQ
revises the paragraph heading to
‘‘agency responsibility’’ to clarify that
this paragraph addresses agency
responsibility for environmental
documents generally. CEQ adds ‘‘and
direction’’ after ‘‘supervision’’ to better
distinguish contractors under the
supervision of the agency from
applicant-directed contractors. This
provision addresses contractors hired
directly by the agency and third-party
contractors where the applicant pays for
the contractor but otherwise has no role
in directing that contractor during the
preparation of the document; rather, the
agency supervises and provides the
direction. Contractors hired by the
applicant and supervised by the
applicant directly are covered by the
language in the regulation addressing
applicant-prepared EAs and EISs
pursuant to § 1507.3(c)(12).
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CEQ declines to specifically define
‘‘supervision’’ as this is a commonly
understood term, and CEQ considers the
addition of the word ‘‘direction’’ in this
paragraph to capture the appropriate
role of agencies, which have decades of
experience with supervising the work of
contractors preparing NEPA documents.
CEQ also declines to require agencies to
do more than briefly document their
determination that an environmental
document meets the standards under
NEPA, the regulations in this
subchapter, and the agency’s NEPA
procedures. In general, NEPA
documents themselves demonstrate that
they meet these standards; the
determination required by this
paragraph merely requires that an
agency documents that it has also made
this determination.
Lastly with respect to paragraph (a),
CEQ declines to include standards for
scientific and professional integrity.
These concepts have been in the
regulations since 1978, and the final
rule further clarifies these concepts by
moving 40 CFR 1502.23 (2020) to
§ 1506.6 as discussed further in section
II.H.4.
In the NPRM, CEQ proposed in the
second sentence of paragraph (b) to
remove text providing that agencies may
direct an applicant to prepare an
environmental document and also
replace the phrase ‘‘environmental
document’’ with specific reference to
EAs or EISs. CEQ also proposed to add
a clause to allow agencies to authorize
a contractor to draft a FONSI or ROD,
while also providing that the agency is
nevertheless responsible for the
accuracy, scope, and contents of
contractor-drafted FONSIs and RODs.
CEQ proposed to add this clause
because a FONSI or ROD represents an
agency’s conclusions regarding potential
environmental effects and other aspects
of a proposed action. CEQ also proposed
these changes to exclude applicants
from directly preparing EAs and EISs
under this section, given the direction
in section 107(f) of NEPA that a lead
agency must prescribe procedures to
allow a project sponsor to prepare an EA
or EIS, 42 U.S.C. 4336a(f), and CEQ
proposed to require agencies to include
these procedures as part of their agency
NEPA procedures in § 1507.3(c)(12).
CEQ also proposed these edits to clarify
the role of contractors because finalizing
and verifying the contents of FONSIs
and RODs is appropriately the
responsibility of the Federal agency and
is consistent with longstanding agency
practice.
CEQ received comments expressing
confusion regarding this paragraph
given the reference to applicants in the
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first sentence. CEQ also received
multiple comments interpreting this
provision to allow applicants to prepare
draft FONSIs or RODs. Some of these
commenters objected to this perceived
allowance asserting that applicants
should not be allowed to draft decision
documents because they are biased and
have a conflict of interest. Conversely,
three commenters supported the ability
of applicants, contractors, or project
sponsors to prepare FONSIs and RODs,
pointing to time and cost savings, with
one commenter specifically interpreting
section 107(f) of NEPA, 42 U.S.C.
4336a(f), to allow applicants to prepare
all environmental documents. One
commenter suggested CEQ edit the
beginning of the second sentence of
proposed paragraph (b) to address
conflict of interest by adding a qualifier
that would limit the applicability of the
paragraph to circumstances in which an
agency has established the absence of
any conflict of interest.
In the final rule, CEQ addresses the
confusion around this provision by
separating the provisions related to
applicants from provisions related to
agency-directed contractors. First, CEQ
revises the paragraph heading for
paragraph (b) to read ‘‘applicant
information’’ and retains the first
sentence allowing agencies to require
applicants to submit environmental
information for agency use in preparing
an environmental document. The CEQ
regulations have long allowed agencies
to collect information from applicants to
help them prepare NEPA documents,
and CEQ considers this allowance
essential to an efficient environmental
review process because in many cases,
the applicant will already have obtained
or be in the best position to obtain
information that an agency needs.
Second, in paragraphs (b)(1) through
(b)(3) of the final rule, CEQ includes the
provisions that provide directions
related to applicant-provided
information. Paragraph (b)(1) retains the
first sentence from paragraph (b)(1) of
the proposed rule, which provides that
agencies should outline the information
that the agency needs from the applicant
to prepare an environmental document.
Paragraph (b)(2) retains the
requirement in the current regulations
and proposed paragraph (b)(2) that the
agency independently evaluate the
environmental information provided by
an applicant and be responsible for the
accuracy, scope, and contents of any
applicant-provided environmental
information included in the
environmental document. CEQ does not
require agencies to specifically
document their evaluation of this
information since the agencies are
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responsible for preparing the NEPA
document, and therefore any applicantprovided environmental information
included in the NEPA document
becomes the agency’s responsibility.
While paragraph (a) requires agencies to
briefly document its determination that
a contractor-prepared environmental
document meets the standards under
NEPA, the CEQ regulations, and the
agency’s NEPA procedures, requiring an
agency to specifically address each
piece of information or analysis
provided by an applicant that the
agency has incorporated into an
environmental document would be
burdensome. Under this provision,
agencies have discretion to integrate
applicant-provided information in
environmental documents as the agency
sees fit, and the agency is responsible
for the accuracy of that information, just
as it is responsible for the accuracy of
information from other sources that the
agency relies upon. And, as with all
NEPA documents, the agencies are
responsible for ensuring their
documents are appropriately scoped
and satisfy all legal requirements
including compliance with these
regulations and their agency NEPA
procedures. Lastly, CEQ includes a new
paragraph (b)(3) to note that an agency
may allow applicants to prepare EAs or
EISs consistent with agency procedures
issued pursuant to section 107(f) of
NEPA, 42 U.S.C. 4336a(f), and
§ 1507.3(c)(12).
Third, the second sentence of
proposed § 1506.5(b) becomes paragraph
(c) in the final rule, and CEQ adds a
paragraph heading, ‘‘Agency-directed
contractor,’’ to clarify that this provision
addresses contractors where the agency
supervises and directs their work. CEQ
adds ‘‘and direction’’ after
‘‘supervision’’ for consistency with its
edit in paragraph (a) and to clarify that
this provision does not apply to
contractors hired and overseen by
applicants. In the final rule, CEQ does
not revise ‘‘environmental document’’ to
be ‘‘environmental assessment or
environmental impact statement’’ or
include the language allowing an action
to authorize a contractor to draft a
FONSI or ROD. Since this provision is
specific to agency-directed contractors,
and an agency may direct a contractor
in helping to draft any environmental
document, these limitations are
unnecessary.
Fourth, paragraph (c)(1) of the final
rule contains the second sentence of
proposed § 1506.5(b)(1) and requires
agencies to provide their contractors
guidance, and participate in and
supervise the environmental
document’s preparation. Fifth,
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paragraph (c)(2) of the final rule
addresses proposed § 1506.5(b)(2) and
requires agencies to independently
evaluate contractor-prepared
environmental documents, be
responsible for their accuracy, scope,
and contents, and document the
evaluations in the environmental
documents themselves. As discussed
earlier in this section, CEQ addresses
applicant-submitted information in
paragraph (b)(2).
One commenter requested that CEQ
add in proposed paragraph (b)(2), which
is § 1506.5(c)(2) in the final rule, a
requirement for agencies to explain how
it independently evaluated the
information prepared by the contractor
and upon what basis the agency is able
to vouch for the accuracy, scope, and
contents of the information or
documents submitted. This comment
aligns with other commenters who
requested that CEQ strengthen agency
responsibility for the accuracy, scope,
and contents of environmental
documents.
CEQ declines to add greater
specificity about how agencies must
evaluate and document their
evaluations. Such evaluations may vary
greatly depending on what the agency is
evaluating and setting a regulatory
standard would be inappropriate and
inefficient. Further, the level of
evaluation needed may vary depending
on the guidance and direction agencies
provide to the contractors in the first
place.
Fifth, paragraph (c)(3) of the final rule
requires agencies to include the names
and qualifications of the persons
preparing and independently evaluating
the contractor-prepared environmental
documents, such as in the list of
preparers for EISs, consistent with
§ 1502.18. This provision is identical to
proposed § 1506.5(b)(3), in which CEQ
proposed to remove the reference to
applicants as discussed earlier in this
section.
Next, CEQ proposed to revise
paragraph (b)(4) of 40 CFR 1506.5 (2020)
to clarify that the Federal agency is
responsible for preparing a disclosure
statement for the contractor to execute,
specifying that the contractor does not
have any financial or other interest in
the outcome of the proposed action.
CEQ received multiple comments
regarding the proposed changes to
paragraph (b)(4). One commenter
expressed that the paragraph provides
for less disclosure than the 1978
regulations did. One commenter
expressed direct support for the
paragraph and encouraged CEQ to retain
the disclosure requirement. Another
commenter requested that CEQ delete
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‘‘where appropriate’’ interpreting the
clause to modify ‘‘shall prepare’’ instead
of ‘‘cooperating agency’’ and arguing
deletion of this clause will minimize
conflicts of interest. One commenter
opposed paragraph (b)(4), asserting that
it is not workable for a contractor to
have no financial or other interest in the
outcome of an action because it is
common for a firm that assists with
preparing the NEPA documents to
perform subsequent engineering and
design work if a project moves forward.
CEQ finalizes this provision in
§ 1506.5(c)(4) as proposed, but adds
‘‘where appropriate’’ to precede rather
than follow (as proposed) ‘‘a
cooperating agency’’ to make it clear
that the clause modifies ‘‘cooperating
agency.’’ CEQ makes this change in the
final rule to address commenters’
concerns that the provision, as drafted
in the proposed rule, would have given
agencies the discretion whether to
prepare a disclosure statement. The
revised language is generally consistent
with the approach in the 1978
regulations, and CEQ disagrees that it
provides for less disclosure than the
1978 regulations. CEQ does not consider
the potential for a contractor to perform
future engineering and design work to
present a conflict of interest in the
outcome of an action. Instead, a conflict
of interest would exist if a contractor
possessed a direct financial interest in
the project, for example if it entered into
a contingency fee arrangement that
provided for an additional payment if
an agency authorized an action.
However, CEQ encourages agencies to
disclose this information to the public
in their contractor disclosure
statements.
Finally, CEQ proposed to change ‘‘any
agency’’ to ‘‘an agency’’ in paragraph
(b)(5). In the final rule, CEQ
redesignates paragraph (b)(5) of 40 CFR
1506.5 (2020) to be paragraph (d) as this
paragraph is a general statement about
the operations of § 1506.5 and is not
specific to agency-directed contractors.
CEQ adds a paragraph heading,
‘‘Information generally’’ for consistency
with the paragraph headings added
throughout.
4. Methodology and Scientific Accuracy
(§ 1506.6)
As discussed in section II.D.18, in the
final rule, CEQ moves the provision on
methodology and scientific accuracy,
from proposed § 1502.23 to § 1506.6,
because this provision is generally
applicable to NEPA reviews. As
discussed further in this section, CEQ
finalizes the text from proposed
§ 1502.23 with additional clarifying
edits.
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CEQ proposed to separate 40 CFR
1502.23 (2020) into paragraphs (a) and
(b), with some modification, and add a
new paragraph (c). In the final rule, CEQ
further subdivides these paragraphs for
additional clarity.
First, the first sentence of proposed
§ 1502.23(a), which is the opening
sentence of 40 CFR 1502.23 (2020),
requires agencies to ensure the
professional integrity, including
scientific integrity, of the discussions
and analyses in environmental
documents. This sentence has been in
the regulations unchanged since 1978, is
consistent with section 102(2)(D) of
NEPA, 42 U.S.C. 4332(2)(D), and CEQ
did not propose any revisions to this
sentence in the proposed rule. CEQ
finalizes this sentence in a standalone
paragraph, § 1506.6(a), in the final rule.
Second, CEQ proposed to use the term
high-quality information, which the
1978 regulations required agencies to
use, see 40 CFR 1500.1 (2019), in the
second sentence of proposed
§ 1502.23(a). CEQ proposed to clarify
that such information includes best
available science and reliable data,
models, and resources.
Some commenters requested that CEQ
add definitions for ‘‘high-quality
information’’ and ‘‘best available
science.’’ One commenter expressed
that ‘‘high-quality information’’ is
ambiguous and recommended CEQ
remove it. Other commenters
interpreted the example best available
science to set a standard and asserted
that this conflicts with the direction in
section 102 of NEPA to establish
information quality standards. Some
commenters opposed the use of best
available science and stated that the
high-quality information standard is
sufficient to ensure scientific integrity.
A few commenters pointed to case
law to support their opinion that NEPA
does not require agencies to use the best
scientific methodology available. These
commenters expressed concerns that a
best available science standard could
result in increased costs and delays that
may not be justified and instead
supported the high-quality information
standard. Another commenter asserted
that a best available science standard
could be inconsistent with the rule of
reason, which is supported by case law,
and result in agencies unreasonably
gathering information to meet a best
available science standard. Conversely,
another commenter stated that the
reference to best available science and
data is consistent with the rule of reason
and relevant case law.
In § 1506.6(b) of the final rule, CEQ
makes the change in the second
sentence of proposed § 1502.23(a) to
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require agencies to use high-quality
information. For clarity, CEQ replaces
the last clause of the sentence, ‘‘to
analyze effects resulting from a
proposed action and alternatives,’’ with
a more general clause at the beginning
of the first sentence of § 1506.6(b) to
avoid an ambiguity in the proposed text
that could be read to imply that agencies
do not need to rely on high-quality
information for aspects of their
environmental documents other than
analyzing the effects of a proposed
action and alternatives. CEQ did not
intend to suggest that agencies can rely
on anything other than high-quality
information in their decision making,
and the revision in the final rule makes
clear that agencies must use highquality information ‘‘[i]n preparing
environmental documents.’’ Given the
more general language in the NEPA
statute and the general applicability of
this provision, CEQ considers this
phrasing to more accurately reflect the
standard. CEQ includes, with minor
reorganization, three of the proposed
examples of high-quality information in
the final rule: ‘‘reliable data,’’ ‘‘models,’’
and ‘‘resources.’’ The final rule uses the
combined phrase ‘‘reliable data and
resources’’ as one example to directly
track the provision in section 102(2)(E)
of NEPA, 42 U.S.C. 4332(2)(E), with
‘‘models’’ being another example. CEQ
also notes that the Information Quality
Act (Pub. L. 106–554, 44 U.S.C. 3516
note) and other authorities establish
requirements for the quality, utility,
objectivity, and integrity of the
information that agencies disseminate,
including, in some cases, requirements
for peer review, and agencies should
ensure compliance with those
authorities as applicable.105
In the final rule, CEQ does not
include ‘‘best available science’’ as an
example of high-quality information.
While CEQ considers ‘‘best available
science’’ to be one example of highquality information, CEQ agrees with
commenters that NEPA does not require
use of ‘‘best available science’’ in order
to meet the statute’s requirement for
professional integrity, including
scientific integrity. While CEQ did not
intend for the inclusion of ‘‘best
available science’’ as one example of
‘‘high quality information’’ in the
proposed rule to require agencies to use
105 See OMB, Guidelines for Ensuring and
Maximizing the Quality, Objectivity, Utility, and
Integrity of Information Disseminated by Federal
Agencies, 67 FR 8452 (Feb. 22, 2002); OMB, Final
Information Quality Bulletin for Peer Review, 70 FR
2664 (Jan. 14, 2005); and OMB, M–19–15,
Improving Implementation of the Information
Quality Act (2019), https://www.whitehouse.gov/
wp-content/uploads/2019/04/M-19-15.pdf.
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the best available science, based on the
comments, CEQ is concerned that this
text could be misconstrued by agencies
and potential litigants to require use of
best available science in all cases.
Therefore, CEQ does not include this
example in the final rule to avoid any
confusion.
Third, in the preamble to the
proposed rule, CEQ provided
Indigenous Knowledge as an example of
high-quality information. Several
commenters recommended CEQ include
this as an example in the regulatory text
to make clear that Indigenous
Knowledge can constitute high-quality
information upon which agencies could
rely consistent with the regulations. One
commenter expressed concern about the
addition of Indigenous Knowledge in
the preamble because the commenter
worried that agencies may weigh
Indigenous Knowledge more heavily
than other sources of scientific
expertise. Another commenter requested
that CEQ define ‘‘Indigenous
Knowledge’’ and explain how agencies
can best use it as high-quality
information. Some commenters
provided a suggested definition, while
others opposed CEQ defining
‘‘Indigenous Knowledge’’ in the rule.
In the final rule, CEQ includes
Indigenous Knowledge as an example of
high-quality information in the
regulatory text. CEQ disagrees with the
concern that identifying Indigenous
Knowledge as an example of highquality information—whether in the
preamble or regulatory text—requires
agencies to weigh this knowledge more
heavily than other sources of scientific
expertise. The regulations require
agencies to rely on high-quality
information and provide several
examples, one of which is Indigenous
Knowledge, and do not create a
preference for one kind of high-quality
information over others. CEQ declines
to define Indigenous Knowledge in the
regulations as it did not receive
sufficient input from commenters or
through its Tribal consultation for it to
develop an appropriate definition that
could apply to all of the contexts in
which Federal agencies operate
governed by the CEQ regulations.
Additionally, while some Tribes
provided feedback on a definition,
others expressed concerns about a
regulatory definition. While CEQ is not
including a definition in the final rule,
CEQ notes that agencies may look to the
CEQ/OSTP guidance as a resource, and
CEQ will consider whether additional
guidance is needed to help agencies
incorporate Indigenous Knowledge into
its NEPA reviews.
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Fourth, CEQ proposed to include a
clause in the second sentence of
proposed § 1502.23(a) to reference that
high-quality information includes
existing sources and materials. This
proposed change moved the word
‘‘existing’’ in the second sentence of 40
CFR 1502.23 (2020) to the end of the
sentence. CEQ proposed these changes
to clarify that while agencies must use
reliable data and resources, which can
include existing data and resources,
they are not limited to using existing
sources and materials. CEQ proposed
these changes in response to public
commenters on the 2020 rule and
Federal agency experts who raised
concerns that the 2020 language could
limit agencies to ‘‘existing’’ resources
and preclude agencies from undertaking
site surveys and performing other forms
of data collection, which have long been
standard practice when analyzing an
action’s potential environmental effects
and may be necessary for agencies to
adequately understand particular
effects.
Some commenters stated the removal
of the word ‘‘existing’’ in proposed
paragraph (a) is in conflict with section
106(b)(3) of NEPA, 42 U.S.C. 4336(b)(3),
because it suggests agencies have the
discretion to undertake new, nonessential scientific or technical research
without regard for whether the
information to be obtained is essential
to a reasoned choice among alternatives
or for the cost or time considerations
under NEPA. Another commenter
requested that CEQ amend this
statement to specify that where projectspecific data is available, agencies
should rely on that information rather
than theoretical models. One
commenter suggested that CEQ clarify
that while new research may not be
required, agencies must consider new
information in their analyses.
In the final rule, CEQ replaces the
proposed clause in the second sentence
of proposed § 1502.23(a), ‘‘including
existing sources and materials,’’ with a
new sentence, ‘‘Agencies may rely on
existing information as well as
information obtained to inform the
analysis,’’ to make clear that agencies
can and should rely on existing
information, but may also undertake
new or additional information gathering
as needed to adequately analyze their
proposed actions. For example, in the
context of analyzing historical, cultural,
or biological effects, agencies may need
to conduct survey work or reassess
existing survey work periodically.
Requiring an agency to rely on outdated
data would not comport with sections
102(2)(D) through (F) of NEPA, 42
U.S.C. 4332(2)(D)–(F). While there are
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numerous reliable data sources for a
variety of resources analyzed in NEPA
documents, and the CEQ regulations
encourage the use of existing
information wherever possible, see
§ 1501.12, agencies should be permitted
to exercise their judgment in
determining when additional data and
analyses are necessary for their analyses
and decision making.
Fifth, CEQ moves the third sentence
of 40 CFR 1502.23 (2020), which allows
agencies to use any reliable data
sources, such as remotely gathered
information or statistical models to be
the third sentence of § 1506.6(b) in the
final rule and makes the clarifying edits
consistent with the proposal.
Sixth, CEQ proposed to add a new
sentence at the end of proposed
§ 1502.23(a) to encourage agencies to
explain their assumptions and any
limitations of their models and
methods. CEQ proposed this addition to
support this section’s overall purpose of
ensuring the integrity of the discussions
and analyses in environmental
documents. Additionally, CEQ proposed
this addition to codify typical agency
practice to explain relevant assumptions
or limitations of the information in
environmental documents.
A commenter recommended CEQ
change the proposed new sentence from
a recommendation to a requirement,
stating that it is necessary for agencies
to explain relevant assumptions or
limitations of any models or
methodologies on which they rely for
their analyses to adequately inform the
public and the agency decision makers.
CEQ agrees that disclosing this
information is necessary in order for the
decision maker and the public to assess
the reliability of the information.
Therefore, CEQ includes the proposed
sentence at the end of § 1506.6(b), but
changes ‘‘should’’ to ‘‘shall’’ in the final
rule.
Seventh, in proposed § 1502.23(b),
CEQ proposed to strike the statement
that agencies are not required to
undertake new research to inform their
analyses, consistent with the proposed
change to proposed § 1502.23(a)
regarding existing information. Some
commenters opposed the proposed
deletion of this language in proposed
§ 1502.23(b) and disagreed with CEQ’s
rationale for the deletion, stating that
the existing language could not be
reasonably read to prohibit agencies
from undertaking additional analyses.
One commenter opposed the proposed
deletion, expressing concern that
without the language, agencies may feel
compelled to complete new research,
which could interfere with agencies’
ability to provide services, not just
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analysis, in contravention of NEPA’s
broad purposes in sections 101(a) and
(b) of NEPA, 42 U.S.C. 4331(a)–(b) to
balance other national priorities,
including conserving agency resources.
Another commenter suggested that CEQ
clarify that while new research may not
be required, agencies must consider new
information in their analyses. Other
commenters opposed to the proposed
deletion stated that the proposed change
conflicts with other provisions of the
proposed rule, such as the intent of
proposed § 1506.5(b)(3) for acceptable
work to not be redone and proposed
§ 1506.4 to reduce duplication and
paperwork. Multiple commenters
expressed concern that deleting this
language could result in additional
litigation risk and delays by encouraging
agencies to conduct additional analyses.
One commenter also suggested that the
deletion is unnecessary because
agencies already know that they are not
limited to existing materials.
CEQ strikes this sentence in the final
rule. In order for agencies to meet the
requirements of the NEPA statute to
analyze the effects of their proposed
actions and, where appropriate, study
alternatives, while ensuring professional
integrity, including scientific integrity,
CEQ considers it necessary to remove
this statement because in some
instances, in order to meet the statutory
requirements, agencies will need to
undertake research. CEQ disagrees that
agencies will read this deletion to mean
they need to do so in all cases, even
where unnecessary or unreasonable. As
one commenter noted, the CEQ
regulations have long encouraged
agencies to rely on existing information
and analyses, and incorporate them by
reference, see, e.g., §§ 1501.12, 1506.2,
and 1506.3.
A few commenters stated that the
deletion of this text conflicts with
section 106(b)(3) of NEPA, 42 U.S.C.
4336(b)(3), by implying agencies have
discretion to undertake new, nonessential scientific or technical research
without regard to whether the
information to be obtained is essential
to a reasoned choice among alternatives.
CEQ disagrees with this assertion
because section 106(b)(3) expressly
applies only to an agency’s
determination of the level of NEPA
review it needs to perform for an action,
and does not apply to the analysis in an
environmental document. Further, these
comments suggest conflict with the
statute because deleting this sentence
disregards direction to make use of
reliable data and resources. CEQ
disagrees that section 102(2)(E) of
NEPA, 42 U.S.C. 4332(2)(E), refers only
to existing reliable data and resources,
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because such a reading of 102(2)(E)
would be inconsistent with the
provision of section 106(b)(3) indicating
that agencies are only required to
undertake new scientific or technical
research in determining the level of
NEPA review in certain circumstances.
Rather, section 102(2)(E) does not
address whether agencies can conduct
new research or gather new data, but
only provides that any data or resources
an agency relies upon, whether existing
or new, must be reliable. As noted in
this section, it is common practice for
agencies, when necessary or
appropriate, to engage in additional
research and create new data based on
an action’s particular circumstances
(such as the affected environment) when
analyzing proposed actions under
NEPA. By striking the sentence added in
2020, CEQ is not imposing a new
requirement for agencies to undertake
new research in all cases, but rather is
allowing agencies to continue to
exercise their judgment and expertise in
determining whether and when to
undertake new research.
Eighth, CEQ strikes the last sentence
in 40 CFR 1502.23 (2020), which the
NPRM proposed to retain as the second
sentence in proposed § 1502.23(b)
regarding continued compliance with
other statutory requirements related to
scientific and technical research. In the
2020 rule, CEQ added this sentence to
clarify the preceding sentence that
agencies are not required to undertake
new scientific and technical research to
inform their analyses. Because the final
rule strikes that sentence, it is
unnecessary to retain the sentence that
follows. Therefore, the final rule
removes the last sentence of 40 CFR
1502.23 (2020) because it is
unnecessary.
Some commenters suggested
additional items be added to proposed
§ 1502.23(b). One commenter requested
that CEQ incorporate the language from
section 106(b)(3) of NEPA, 42 U.S.C.
4336(b)(3), to establish a clear standard
for when new scientific research is
needed. As CEQ noted earlier in this
section, section 106(b)(3) applies only to
determining the level of NEPA review.
Another commenter requested CEQ add
language to address information quality
standards and transparency
requirements for modeling. CEQ does
not consider this level of detail
appropriate for the regulations but will
consider whether additional guidance
on this topic could assist agencies in
carrying out their NEPA responsibilities.
Ninth, CEQ moves to § 1506.6(c) the
first and second sentences in proposed
§ 1502.23(b), which are the fourth and
fifth sentences in 40 CFR 1502.23
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(2020), requiring agencies to identify
any methodologies used and make
explicit reference to the scientific and
other sources relied upon for
conclusions in the environmental
document, which agencies may place in
an appendix. This change improves the
organizational clarity of the section and
is non-substantive.
Finally, CEQ proposed to add a new
paragraph (c) to proposed § 1502.23 to
require agencies to use projections when
evaluating reasonably foreseeable
effects, including climate change-related
effects, where appropriate. CEQ also
proposed to clarify that such projections
may employ mathematical or other
models that project a range of possible
future outcomes, so long as agencies
disclose the relevant assumptions or
limitations. CEQ proposed this addition
for consistency with the other proposed
amendments to this section.
Some commenters expressed support
for proposed § 1502.23(c) but
recommended that CEQ provide
guidance on how to support agencies in
evaluating climate modeling projects or
add additional language to address
localized impacts of climate change on
a project along with global impacts of
the project on climate change. Another
commenter requested that CEQ
recommend, rather than require, use of
projections, while another commenter
expressed that the rule strikes an
appropriate balance between allowing
modeling necessary to project future
effects and providing transparency for
public viewing of the modeling on
which agencies rely.
One commenter opposed the changes
in paragraph (c) to require the use of
projections because they interpret the
language to be referring to the social
cost of greenhouse gases and argued that
this is inappropriate for project-specific
NEPA reviews. They also offered the
opinion that social cost of greenhouse
gas models is not best available science.
Another commenter requested CEQ
remove the reference to climate-change
related effects in paragraph (c) because
it elevates climate change effects over
other potential effects. Another
commenter also expressed concern
about the requirement to use projections
because they asserted it may encourage
agencies to attempt to model
relationships between incremental
greenhouse gas emissions from a
particular project with actual
environmental impacts, which is
impossible, or use metrics like social
cost of greenhouse gas emissions, which
are not suited to environmental reviews.
Another commenter also expressed
concern that the project effects of
climate change are too difficult to model
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35527
and that the proposed language could
create delays and increase litigation
risk.
CEQ includes proposed § 1502.23(c)
in the final rule at § 1506.6(d). CEQ
notes that projections are required only
where an agency considers them
appropriate. CEQ disagrees that
including the example of climatechange related effects elevates these
above other effects; it is an example, and
agencies may determine projections are
appropriate in analyzing a variety of
other effects such as water or air quality,
or effects on endangered species or
historic properties. CEQ also disagrees
that this language is intended to require
agencies to use the social cost of
greenhouse gases. As discussed in
CEQ’s 2023 GHG guidance, agencies
may use this as a proxy to compare
alternatives, but the regulations and the
guidance do not require agencies to use
this tool.
As CEQ noted in the proposed rule,
based on existing agency practice and
academic literature, agencies can and do
use reliable projections to analyze
reasonably foreseeable effects, including
climate change-related effects. Where
available and appropriate, agencies also
can use or rely on projections that are
scaled to a more targeted and localized
geographic scope, such as land use
projections, air emissions, and
modeling, or to evaluate effects,
including climate effects, experienced
locally in relation to the proposed
action. When doing so, agencies should
explain the basis for relying on those
projections and their underlying
assumptions. In particular, climate
projections can vary based on different
factors and assumptions such as
geography, location, and existing and
future GHG emissions, and agencies
should disclose the assumptions and
limitations underlying any projection
upon which the agency relies. Agencies
can use models that analyze a range of
possible future outcomes, but again
agencies must disclose the underlying
relevant assumptions or limitations of
those models.
CEQ expects that modeling
techniques will continue to improve in
the future, resulting in more precise
projections. To be consistent with
§ 1506.6, as modeling techniques
advance, agencies should continue to
rely on high-quality information when
evaluating reasonably foreseeable
effects.
5. Further Guidance (§ 1506.7)
CEQ proposed to simplify § 1506.7(a)
by deleting references to Executive
orders that have been revoked. CEQ will
continue to provide guidance
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concerning NEPA and its
implementation on an as-needed basis.
Any such guidance will be consistent
with NEPA, the CEQ regulations, and
any other applicable requirements.
Future guidance could include updates
to existing CEQ guidance 106 or new
guidance. CEQ also proposed to update
paragraph (b) to reflect the date upon
which the final rule is effective. If there
is a conflict between existing guidance
and an issued final rule, the final rule
will prevail after the date upon which
it becomes effective. CEQ did not
receive any comments on these
proposed changes and finalizes this
section as proposed.
6. Proposals for Regulations (40 CFR
1506.9)
CEQ proposed to strike 40 CFR 1506.9
(2020), ‘‘Proposals for regulations.’’ The
2020 rule added this provision to allow
agencies to substitute processes and
documentation as part of the rulemaking
process for corresponding requirements
in these regulations.107 Since 1978, the
CEQ regulations have encouraged
agencies to combine environmental
documents with any other agency
document to reduce duplication and
paperwork (40 CFR 1506.4 (2019)), and
agencies also may combine procedural
steps, for example, to satisfy the public
comment requirements of a rulemaking
process and NEPA. See § 1507.3(c)(5).
As such, CEQ concluded that the
provision at 40 CFR 1506.9 (2020) was
unnecessary to achieve the desired
effect of improved efficiency.
CEQ received one comment on this
proposed change expressing support for
the removal of the section. CEQ removes
this section as proposed. Removing this
section avoids confusion and
controversy over whether the
procedures of a separate process meet
the requirements of CEQ’s regulations.
Further, courts have questioned whether
separate regulatory processes can be a
substitute for NEPA in some cases. See
e.g., Sierra Club v Fed. Energy Regul.
Comm’n, 867 F.3d 1357, 1375 (D.C. Cir.
2017) (‘‘[T]he existence of permit
requirements overseen by another
[F]ederal agency or [S]tate permitting
authority cannot substitute for a proper
NEPA analysis.’’). Additionally, CEQ
does not consider it appropriate to
single out one particular type of
action—rulemaking—for combining
procedural steps. Indeed, one of the key
objectives of agency NEPA procedures is
to integrate the NEPA process into other
106 See CEQ, CEQ Guidance Documents, https://
www.energy.gov/nepa/ceq-guidance-documents.
107 CEQ, 2020 Final Rule, supra note 39, at
43338–39.
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agency processes. Therefore, the more
prudent approach is for agencies to
combine NEPA reviews with other
reviews for rulemaking, similar to
longstanding agency practice to
combine NEPA documents with other
review processes, such as compliance
with section 106 of the National Historic
Preservation Act or section 7 of the
Endangered Species Act, or set out
processes in their NEPA procedures to
comply concurrently with multiple legal
requirements.
7. Filing Requirements (§ 1506.9)
CEQ proposed to redesignate 40 CFR
1506.10 (2020) as § 1506.9, which
would restore the same numbering for
this and subsequent sections used in the
1978 regulations. CEQ proposed to
replace the acronym for EPA with the
full name ‘‘Environmental Protection
Agency’’ here and in § 1506.10,
consistent with the format in the rest of
the CEQ regulations. CEQ also proposed
to add a new paragraph (c) to clarify that
agencies must notify EPA when they
adopt an EIS consistent with
§ 1506.3(b). CEQ proposed this change
to codify common practice and
guidance from EPA.108 EPA notification
ensures initiation of the appropriate
comment or review period. Such
notification, even where a cooperating
agency is adopting an EIS without
public comment consistent with
§ 1506.3(b)(1), improves transparency to
the public regarding the status of the EIS
and also helps track the status of EISs
across the Federal Government.
One commenter provided feedback on
this proposed change, asking CEQ to
insert the word ‘‘timely’’ or more clearly
specify a period within which agencies
must notify EPA when they adopt EISs.
CEQ declines the commenter’s
suggested edit because the language
specifies that the agency must notify
EPA when they adopt the EIS; therefore,
notification must occur at the same time
as adoption. CEQ adds paragraph (c) in
the final rule to require agencies to file
an adoption of an EIS with EPA
consistent with current practice and
agency guidance. CEQ modifies the text
from the proposal to cross reference to
§ 1506.3(b)(1) rather than require the
notice be consistent with § 1506.3(b). It
is only an adoption made pursuant to
108 EPA must be notified when a Federal agency
adopts an EIS to commence the appropriate
comment or review period. If a Federal agency
chooses to adopt an EIS written by another agency,
and it was not a cooperating agency in the
preparation of the original EIS, the EIS must be
republished and filed with EPA. See EPA,
Environmental Impact Statement Filing Guidance,
https://www.epa.gov/nepa/environmental-impactstatement-filing-guidance.
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§ 1506.3(b)(1) that requires agencies to
file their adoption notices with EPA.
8. Timing of Agency Action (§ 1506.10)
To accommodate the change in
numbering described in section II.H.6,
CEQ proposed to renumber 40 CFR
1506.11 (2020), ‘‘Timing of agency
action,’’ to § 1506.10. CEQ proposed in
paragraph (b) to change ‘‘may not’’ to
‘‘shall not’’ to eliminate a potential
ambiguity and make clear that the
minimum periods between a draft EIS
and ROD as set forth in paragraph (b)(1)
and between a final EIS and ROD as set
forth in paragraph (b)(2) are mandatory.
CEQ did not receive any comments
specific to this proposal and revises the
final rule consistent with the proposal.
Two commenters requested that CEQ
remove the minimum time periods
prescribed in paragraphs (b)(1) and (2)
as well as the minimum 45-day public
comment period for draft EISs
prescribed in paragraph (d), asserting
that these timing requirements conflict
with the statutory timeframes. The
commenters suggested that CEQ instead
allow agencies more flexibility for
public engagement and comment within
the statutory timeframes. Another
commenter requested that CEQ expand
the minimum comment period for a
draft EIS to 90 days because
commenters are often not notified of an
open comment period until midway
through.
CEQ considered the commenters’
suggested changes but declines to revise
the final rule to adopt them. Agencies
and the public have worked within
these timeframes since issuance of the
1978 regulations. CEQ intends these
provisions to facilitate a transparent and
open process that ensures agencies are
taking the time to carefully consider
public input and analyze alternatives
prior to making a decision. CEQ is
concerned that shortening these periods
will significantly impede the public’s
ability to engage in the NEPA process.
Further, CEQ notes that the minimum
timeframe between a final EIS and ROD
does not implicate the statutory
deadlines because the statutory
timeframe ends upon completion of the
EIS, not issuance of the EIS.
Finally, with respect to the concern
raised about the delay in notification to
the public regarding open comment
periods, CEQ intends the revisions to
§ 1501.9 regarding public engagement to
better facilitate notification to interested
parties, and considers improving
notification to be the more appropriate
mechanism to address the concern that
interested parties sometimes do not
receive notice until partway through a
comment period, rather than extending
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the comment period. Agencies must
notify the public of opportunities for
public comment, and CEQ encourages
agencies to consider effective and
efficient ways to do so, such as
providing opportunities for the public to
sign up for distribution lists to be
notified of an ongoing review and
opportunities for engagement.
CEQ proposed changes to paragraph
(c)(1), addressing appeals processes, to
update this provision to reflect current
practices within Federal agencies.
Specifically, CEQ proposed to change
references to ‘‘appeal processes’’ to
‘‘administrative review processes’’ and
add examples, which can include
processes such as appeals, objections,
and protests. CEQ further proposed
updates to the text to provide flexibility
in timing to agencies that use these
administrative review processes and
clarify that such a process may be
initiated either prior to or after the filing
and publication of a final EIS with EPA,
depending on the specifics of the
agency’s authorities. Depending on the
agency involved and its associated
authorities, administrative review
processes generally allow other agencies
or the public to raise issues about a
decision and make their views known.
CEQ proposed to clarify that the period
for administrative review of the decision
and the 30-day review period prescribed
in paragraph (b)(2) for when a ROD can
be issued may run concurrently. CEQ
proposed these changes to reflect
changes in Federal agency regulations
and procedures since this text was
promulgated in 1978 and to allow for
greater efficiency.
CEQ did not receive comments on
these proposed changes and makes the
changes as proposed in the final rule to
better accommodate existing agency
practices. For example, the U.S.
Department of Agriculture’s Forest
Service has an objections process
outlined at 36 CFR part 218 whereby the
public can object to a draft decision;
these regulations replaced the prior
appeal process formerly used by the
agency. To initiate the objections
process, Forest Service regulations
require that the final EIS and a draft
ROD be made available to the public,
but the Forest Service does not have to
publish the final EIS with EPA until the
conclusion of the objections process.
See 36 CFR 218.7(b). The objections
process can take 120 to 160 days, during
which the agency makes the final EIS
available to the public. Allowing the
agency to file the final EIS with EPA
and issue a ROD at the same time as the
conclusion of the objections process
rather than waiting an additional 30
days following the official filing will
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avoid inefficiency. These changes also
will accommodate similar
administrative review procedures
maintained by other agencies. See e.g.,
43 CFR 1610.5–2 (outlining the Bureau
of Land Management (BLM) protest
procedures).
CEQ also proposed minor edits in
paragraphs (d) and (e) for clarity and
readability. CEQ did not receive
comments on the proposed changes.
CEQ has made an additional revision to
paragraphs (c)(2) and (e) to correct the
reference to § 1506.9 to § 1506.10.
Finally, one commenter requested
that CEQ remove the language in
paragraph (e), arguing that the failure to
file timely comments is not a sufficient
reason for extending a timeframe
because the public often does not find
out about the draft EIS until late in the
45-day comment period. The
commenter stated that CEQ should
recognize that agencies do not notify the
public about when an EA or EIS is
released and therefore commenters may
be late in providing comments because
they did not receive adequate, proper,
timely notification. CEQ declines to
make this change. As discussed in II.C.8
and II.E.I, § 1501.9 identifies
requirements for how and when
agencies must notify the public of an
action and § 1503.1 requires agencies to
request comments from the public on an
EIS. Further, agencies have long had the
discretion to consider special or unique
circumstances that may warrant
consideration of comments outside the
public comment period.
9. Emergencies (§ 1506.11)
Consistent with changes in the
preceding sections, CEQ proposed to
renumber 40 CFR 1506.12 (2020),
‘‘Emergencies,’’ to § 1506.11. CEQ
proposed to strike the last sentence,
stating other actions remain subject to
NEPA review because it erroneously
implies that actions covered by
§ 1506.11 are not subject to NEPA
review. Instead, CEQ proposed to
replace the sentence with language
clarifying that alternative arrangements
are not a waiver of NEPA; rather, they
establish an alternative means for NEPA
compliance.
Commenters recommended CEQ make
it a requirement rather than a
recommendation for agencies to consult
with CEQ about alternative
arrangements. Additionally,
commenters disagreed with CEQ’s
deletion of the statement that other
actions remain subject to NEPA,
expressing concern that the revised
provision would rely on negative
implication as a substitute for this clear
statement.
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In the final rule, CEQ has revised this
provision to change ‘‘should’’ to ‘‘shall’’
to make clear that agencies must consult
with CEQ on alternative arrangements
for an action with significant effects.
CEQ agrees with commenters’
suggestion, which is consistent with
longstanding agency practice. Such
consultation ensures that the agency is
limiting the scope of such arrangements
to those actions that are necessary to
address the emergency and that the
public is appropriately notified and
involved in the process. CEQ is also
revising ‘‘will’’ to ‘‘shall’’ in the second
sentence to clarify that this is a
regulatory requirement rather than a
statement of fact. Upon further
consideration, CEQ retains the clause
‘‘other actions remain subject to NEPA
review’’ and adds the clause ‘‘consistent
with this subchapter’’ to make clear that
agencies and CEQ are required to limit
such arrangements, and that any
remaining actions not covered by the
alternative arrangements must comply
with the regulations.
Finally, CEQ adds the last sentence as
proposed to address confusion 109 as to
whether, during emergencies, agency
actions are exempted from NEPA. This
addition clarifies that the regulations do
not create a NEPA exemption; rather,
they provide a pathway for compliance
with NEPA where the exigencies of
emergency situations do not provide
sufficient time for an agency to
complete an EIS in conformity with the
CEQ regulations for an action with
significant environmental effects.
CEQ does not have the authority to
exempt agency actions from NEPA,
regardless of whether an emergency
exists. The changes to § 1506.11 clarify
that CEQ does not offer ‘‘alternative
arrangements’’ to circumvent
appropriate NEPA analysis but rather to
enable Federal agencies to establish
alternative means for NEPA compliance
to ensure that agencies can act swiftly
to address emergencies while also
meeting their statutory obligations
under NEPA. CEQ’s revisions clarify
that when emergencies arise, § 1506.11
allows agencies to adjust the means by
which they achieve NEPA compliance.
This approach is also consistent with
CEQ’s guidance on NEPA and
emergencies, updated in 2020.110
Finally, CEQ notes that, consistent
with longstanding practice, agencies
have discretion to determine how to
proceed with actions to respond to
109 See CEQ, 2020 Response to Comments, supra
note 69, at 417–19.
110 See CEQ, Emergencies and the National
Environmental Policy Act Guidance (Sept. 14,
2020), https://ceq.doe.gov/docs/nepa-practice/
emergencies-and-nepa-guidance-2020.pdf.
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emergencies that do not have significant
environmental effects, which agencies
would ordinarily analyze through an
EA. Agencies may continue to consult
with CEQ where they are unsure
whether alternative arrangements or an
EA is the appropriate course of action.
And, as discussed in section II.I.3, some
agencies include procedures for
addressing such situations in their
agency NEPA procedures, and CEQ
encourages agencies to do so where
appropriate for their programs and
activities.
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10. Innovative Approaches to NEPA
Reviews (Proposed § 1506.12)
CEQ proposed to add a new section to
the regulations in § 1506.12 to allow
CEQ to grant a request for modification
to authorize Federal agencies to pursue
innovative approaches to comply with
NEPA and the regulations in order to
address extreme environmental
challenges. CEQ proposed this new
concept to be distinct from the
emergency provisions in § 1506.11 with
different considerations and criteria.
Commenters generally opposed this
proposed provision. Some commenters
thought it was unnecessary, and CEQ
did not receive concrete examples of
situations where commenters thought
agencies could successfully use such
approaches. Other commenters were
concerned the proposal did not contain
enough guideposts for agencies.
Commenters also raised concerns that
the lack of notice and comment for
rulemaking could lead to uncertainty
about durability of the provisions and
potential litigation and delay.
Upon further consideration, including
the public comments received on the
proposed provision, CEQ is not
including this provision in the final
rule. The mechanisms provided in this
final rule, including updated provisions
on programmatic environmental reviews
and agency NEPA procedures that
should be tailored to agencies’ unique
programs and actions, as well as new
methods of establishing or adopting
CEs, provide agencies sufficient
flexibility to innovate and address
extreme environmental challenges.
11. Effective Date (§ 1506.12)
CEQ proposed to remove the 2020
effective date in § 1506.13 and replace it
with the date upon which a final rule is
effective. CEQ received a variety of
comments on this provision, including
one commenter requesting that it
require agencies to apply the final rule
to ongoing actions. Conversely, a group
of commenters requested that the final
rule explicitly state that agencies should
follow the NEPA regulations that were
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effective at the time at which the agency
initiated the environmental review,
asserting that allowing agencies
flexibility to apply the final rule to
ongoing actions will cause delays, create
uncertainty, and increase costs for
project proponents.
Some commenters requested that CEQ
revise this section to not allow the
regulations to apply to a Federal
agency’s actions until the agency adopts
new agency procedures under § 1507.3
to avoid confusion and inconsistency,
and that CEQ provide additional clarity
on which version of CEQ’s regulations
and an agency’s procedures apply to
each Federal action moving forward.
CEQ finalizes this section as proposed
in § 1506.12. Section 1506.12 requires
agencies to comply with the regulations
for proposed actions begun after the
effective date of the final rule. Agencies
are in the best position to determine on
a case-by-case basis whether applying
provisions of the revised regulations to
ongoing reviews will facilitate a more
effective and efficient process, and CEQ
declines to limit agency flexibility in
this regard. Regarding potential conflict
with existing agency procedures, an
agency’s existing NEPA procedures
remain in effect until the agency revises
its procedures consistent with § 1507.3;
however, agencies should read their
existing procedures in concert with the
final rule to ensure they are meeting the
requisite requirements of both wherever
possible. Additionally, CEQ notes that
the Fiscal Responsibility Act’s
amendments to NEPA were effective
upon enactment, so to the extent the
regulations implement provisions of the
NEPA amendments, these are applicable
to ongoing reviews.
For the last several years, agencies
have had experience reconciling
differences between their procedures
and the current regulations, and CEQ is
unaware of significant issues that have
arisen. While certain provisions
included in this final rule may be
missing from agency procedures, these
provisions are requirements that
agencies would need to add to their
procedures and are therefore less likely
to pose a direct conflict or create
inconsistencies. Additionally, where
CEQ is restoring the regulatory text or
approach from the 1978 regulations,
CEQ notes that most agency procedures
are consistent with the 1978 regulations,
and therefore there is less likely to be
conflict with those provisions. To the
extent that there is conflict between an
agency’s procedures and CEQ’s
regulations, the CEQ regulations
generally will apply, and CEQ is
available to assist in addressing any
such conflicts. Lastly, CEQ notes that
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Federal agencies would not need to redo
or supplement a completed NEPA
review (e.g., where a CE determination,
FONSI, or ROD has been issued) as a
result of the issuance of this rulemaking.
I. Revisions to Agency Compliance (Part
1507)
1. Compliance (§ 1507.1)
CEQ proposed to add a second
sentence to § 1507.1 to restore language
from the 1978 regulations to state that
agencies have flexibility to adapt their
implementing procedures to the
requirements of other applicable laws.
CEQ made this proposal because
restoring this language is consistent
with the changes CEQ made to 40 CFR
1507.3 (2022) in its Phase 1 rulemaking
to restore agency discretion to tailor
their NEPA procedures to their unique
missions and contexts, creating
opportunity for agencies to innovate and
improve efficiency.
One commenter requested that CEQ
delete the first sentence of § 1507.1,
which requires all agencies to comply
with the CEQ regulations, and add a
clause at the end of the proposed second
sentence making requirements with
other applicable laws dependent upon
compliance with the regulations. The
commenter asserted this change would
allow an agency to tailor its NEPA
procedures as appropriate, but make
clear that the agency still must comply
with these regulations.
Another commenter expressed
concerns that the flexibility proposed in
§ 1507.1 will result in inconsistency,
especially where a State agency serves
as a co-lead agency or as a participating
agency for a project over which multiple
Federal agencies have jurisdiction. The
commenter asserted that the flexibility
in the proposed text in § 1507.1
undermines predictability and
consistency and will result in delays in
the environmental review process.
CEQ considered the commenters’
suggestions and finalizes the language
as proposed. With respect to the first
comment, CEQ considers the language
in the final rule to be consistent with
the commenter’s objective and
longstanding practice: agencies may
tailor their procedures to their unique
programs, but they must also comply
with NEPA and the CEQ regulations.
This point is reinforced in § 1500.6,
which requires agencies to fully comply
with the purposes and provisions of the
NEPA statute and CEQ’s NEPA
regulations unless an agency activity,
decision, or action is exempted from
NEPA by law or compliance with NEPA
is impossible.
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CEQ disagrees with the other
commenter’s assertions that this
provision undermines predictability. To
ensure NEPA reviews inform decision
making, Federal agencies need to
integrate the NEPA process into the
decision-making process, and having a
‘‘one size fits all’’ approach to agency
procedures would not achieve that
objective. The CEQ regulations
encourage agencies to engage in early
coordination to prevent delays in
individual NEPA reviews. Further, the
regulations have long encouraged
agencies to consult with other agencies
with which they have similar programs
or frequently take actions on the same
projects, and CEQ encourages agencies
to strive to reconcile their processes as
they update their procedures for
consistency with this rule. See
§ 1507.3(b)(1).
2. Agency Capability To Comply
(§ 1507.2)
CEQ proposed edits to § 1507.2 to
emphasize agencies’ responsibilities
under NEPA, including to incorporate
the requirements added to section
102(2) of NEPA, 42 U.S.C. 4332, and to
require agencies to designate a Chief
Public Engagement Officer. First, CEQ
proposed to move the first sentence of
paragraph (a) of 40 CFR 1507.2 (2020),
which requires agencies to fulfil the
requirements of section 102(2)(A) of
NEPA, 42 U.S.C. 4332(2)(A), to use a
systematic, interdisciplinary approach,
to a new § 1507.2(b). Second, CEQ
proposed to require in § 1507.2(a) that
in addition to designating a senior
agency official responsible for overall
agency NEPA compliance, agencies
identify a Chief Public Engagement
Officer who would be responsible for
facilitating community engagement
across the agency and, where
appropriate, the provision of technical
assistance to communities.
CEQ received multiple comments on
the requirement for Federal agencies to
identify a Chief Public Engagement
Officer. Numerous supportive
commenters expressed that this position
would benefit all stakeholders, quicken
public engagement processes by making
the environmental review processes
more accessible and transparent,
facilitate consistent engagement
practices, and promote a level of
accountability that enhances
engagement. Some supportive
commenters asked CEQ to clarify
expectations for the position, such as
identifying a minimum level of seniority
within the agency and to clarify that
‘‘community engagement’’ includes
‘‘industry engagement.’’ A couple of
commenters were supportive of the
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general idea, but expressed concern
about how agencies would define the
role and whether agencies would have
resources to support the Officer. A few
commenters suggested that the person
who serves in the position within an
agency must be a neutral party and
trusted expert with necessary
experience to be effective in the
position. Multiple commenters also
provided suggestions for additional
guidance regarding the duties of the
Chief Public Engagement Officer.
Several commenters opposed the
proposed requirement for agencies to
designate a Chief Public Engagement
Officer asserting that the NEPA
amendments do not require it; there is
lack of clarity on whether this position
would help mediate resolutions to allow
more efficient completion of the
environmental review process; and it
would create a burden on agencies
because they will need to hire a Chief
Public Engagement Officer.
Another commenter raised the
concern that by requiring agencies to
identify a Chief Public Engagement
Officer, CEQ is creating a new and
potentially overlapping position with
the Chief Environmental Review and
Permitting Officer (CERPO) that already
exists to manage environmental review
and authorization processes.
CEQ considered the comments and
includes the requirement in § 1507.2(a)
to identify a Chief Public Engagement
Officer with clarifying edits. To address
commenters’ concerns about agency
burden and the scope of the position,
CEQ adds language to clarify that the
regulations make the Chief Public
Engagement Officer responsible for
facilitating community engagement in
environmental reviews and does not
direct agencies to make the officer
responsible for all engagement activities
within an agency, though agencies have
the discretion to define the role more
broadly should they determine doing so
is appropriate.
CEQ also adds a sentence to the end
of paragraph (a) to clarify that when an
agency is a department, it may be
efficient for major subunits to identify
senior agency officials or Chief Public
Engagement Officers within those
subunits. This language is consistent
with the approach for agency NEPA
procedures in § 1507.3(b), and the
regulations provide that the departmentlevel official or Officer would have
oversight over the subunit officials or
officers. CEQ adds this language to
provide large departments the flexibility
to effectively manage their programs
while ensuring that there is also
centralized, consistent coordination
across the whole department. CEQ notes
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that a senior agency official must be ‘‘an
official of assistant secretary rank or
higher (or equivalent),’’ in accordance
with § 1508.1(ll); in the case of a senior
agency official designated by a major
subunit, that individual must have a
degree of authority and responsibility
within the subunit that is equivalent to
the authority and responsibility that an
assistant secretary would have within a
department.
CEQ notes that Federal agencies may
designate current employees to serve as
the senior agency official and Chief
Public Engagement Officer, and need
not hire new employees. Regarding the
variety of comments recommending
specific responsibilities for the Chief
Public Engagement Officer, CEQ will
consider providing guidance to agencies
that addresses the role and expectations
of the Officer, but CEQ considers this
level of detail unnecessary for the
regulations. Lastly, CEQ revises
paragraph (a) to strike ‘‘Agencies shall’’
from the beginning of the paragraph
because it is duplicative to the end of
the introductory paragraph of § 1507.2.
Third, CEQ proposed to redesignate
paragraphs (b) and (c), and (d) through
(f) of 40 CFR 1507.2 (2020) as
§ 1507.2(c) and (d), and (h) through (j)
respectively. CEQ makes these changes
in the final rule.
Fourth, CEQ proposed to add a new
paragraph (e) to require agencies to
prepare environmental documents with
professional integrity consistent with
section 102(2)(D) of NEPA, 42 U.S.C.
4332(2)(D). In a new paragraph (f), CEQ
proposed to require agencies to make
use of reliable data and resources,
consistent with section 102(2)(E) of
NEPA, 42 U.S.C. 4332(2)(E). And, in a
new paragraph (g), CEQ proposed to
require agencies to study, develop, and
describe technically and economically
feasible alternatives, consistent with
section 102(2)(F) of NEPA, 42 U.S.C.
4332(2)(F). Finally, in redesignated
paragraph (j), CEQ proposed to delete
the reference to E.O. 13807 because E.O.
13990 revoked E.O. 13807.111
CEQ did not receive any substantive
comments on these proposed changes.
CEQ finalizes these provisions as
proposed.
3. Agency NEPA Procedures (§ 1507.3)
CEQ proposed several updates to
§ 1507.3 to reorganize paragraphs to
improve readability, consolidate related
provisions, restore text from the 1978
regulations, and codify CEQ guidance
on CEs. First, in paragraphs (a) and (b),
CEQ proposed to update the effective
date to reflect the effective date of a
111 E.O.
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final rule. CEQ received several
comments expressing concern about
paragraph (a), which provides that CEQ
determined that the CEs contained in
agency NEPA procedures as of the final
rule effective date are consistent with
the CEQ regulations. Commenters raised
concerns about the lack of evidence that
all CEs are consistent with CEQ’s
proposal and, in some instances,
identified particular CEs that the
commenters stated were inconsistent.
Commenters also asked about how this
provision would interact with
§ 1507.3(c)(8) and (9) regarding the
process for establishing and periodically
reviewing existing CEs.
CEQ considered the comments and
revises this paragraph in the final rule
for clarity. CEQ’s intent with this
provision is to clarify that the changes
made in the final rule, including
revisions to the definition of
‘‘categorical exclusion’’ and § 1501.4 do
not implicate the validity of existing
CEs. CEQ revises the paragraph to
clarify that it has determined that the
revisions to its regulations made in this
final rule do not affect the validity of
agency CEs that are in place as of the
effective date of this rule. Further, as
discussed more in this section, CEQ is
encouraging agencies to prioritize their
older CEs for review.
Second, in § 1507.3(b), CEQ proposed
to give agencies 12 months after the
effective date to develop proposed
procedures and initiate consultation
with CEQ to implement the CEQ
regulations. CEQ also proposed moving,
with some modification, language from
paragraph (c) of 40 CFR 1507.3 (2022) to
§ 1507.3(b) for clarity and to improve
organization since the language is
generally applicable to all agency NEPA
procedures. The NPRM explained that
proposed procedures should facilitate
efficient decision making and ensure
that agencies make decisions in
accordance with the policies and
requirements of NEPA.
One commenter requested that CEQ
explicitly state that in the case of
conflicts, an agency’s NEPA procedures
supersede the CEQ regulations, and that
such a statement would increase
certainty and reduce litigation risks.
CEQ declines to add this language.
Agencies and courts have extensive
experience applying both CEQ’s
regulations and agency-specific
procedures, and in CEQ’s experience,
this relationship has not led to
uncertainty or litigation risk that would
outweigh the uncertainty that could be
created from a new regulatory provision
on this subject.
Two commenters asserted that 12
months is not enough time for agencies
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to propose procedures, take public
comment, and produce final procedures.
CEQ declines to revise the timing
provided in § 1507.3(b). While CEQ will
work with agencies to update their
procedures as quickly as possible,
agencies only need to provide CEQ with
proposed revisions within 12 months.
Therefore, CEQ considers 12 months
sufficient for agencies to propose
procedures and finalizes § 1507.3(b) as
proposed, except a grammatical change
from ‘‘agencies make’’ to ‘‘the agency
makes’’ for consistency with the rest of
the sentence.
Third, in paragraph (b)(2), CEQ
proposed to change ‘‘adopting’’ to
‘‘issuing’’ to avoid confusion with
adoption under § 1506.3. CEQ also
proposed to restore text from the 1978
regulations requiring agencies to
continue to review their policies and
procedures and revise them as necessary
to be in full compliance with NEPA.
The 2020 rule deleted this language as
redundant to language added to
paragraph (b) of 40 CFR 1507.3 (2020)
requiring agencies to update their
procedures to implement the final
rule.112
One commenter opposed CEQ’s
proposed restoration of this language in
§ 1507.3(b)(2), asserting that the
requirement for agencies to continually
review their NEPA policies and
procedures could reduce stability
because agencies will be in a constant
cycle of revision. CEQ disagrees with
the commenter’s assertions because this
provision was in the 1978 regulations
and has not resulted in agencies
continually updating their procedures.
CEQ also considers it important for
agencies to review their procedures to
ensure that they are meeting the intent
of NEPA and are updated to address any
changes to agencies’ authorities or
programs so that the NEPA process is
effectively integrated in agencies’
decision-making processes.
CEQ makes the changes to paragraph
(b)(2) as proposed with one additional
change in the fourth sentence to change
‘‘to’’ to ‘‘and’’ for clarity. CEQ is
restoring this language because the
requirement for an agency to continue to
review their policies and procedures is
different than the requirement in
paragraph (b) to initially update
procedures consistent with the final
rule. Further, restoring this requirement
is consistent with the requirement in
§ 1507.3(c)(9) for agencies to review CEs
at least every 10 years.
Fourth, CEQ proposed to add a new
paragraph (b)(3) to clarify that,
consistent with longstanding practice,
112 CEQ,
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the issuance of new agency procedures
or an update to existing agency
procedures is not itself subject to NEPA
review. CEQ did not receive comments
on this paragraph and adds it with the
language as proposed in the final rule.
Fifth, paragraphs (c) and (c)(1)
through (c)(10) of 40 CFR 1507.3 (2022)
list the items that all agency NEPA
procedures must include, and CEQ
proposed minor revisions to paragraphs
(c)(1) through (c)(4) to improve clarity
and conciseness. Specifically, CEQ
proposed to modify paragraph (c)(1) to
clarify that agencies should designate
the major decision points for their
programs and actions subject to NEPA
and ensure that the NEPA process
begins at the earliest reasonable time. In
paragraph (c)(2), CEQ proposed to
remove the reference to ‘‘formal’’ as
unnecessarily limiting since agencies
generally engage in informal
rulemaking, and change ‘‘or’’ to ‘‘and’’
to clarify that agencies should make
relevant environmental documents,
comments, and responses part of the
record in both rulemakings and
adjudicatory proceedings. CEQ
proposed to modify paragraph (c)(3) to
clarify that procedures should integrate
environmental review into agency
decision-making processes so that
decision makers use the information in
making decisions. CEQ did not receive
comments on these specific changes and
makes the edits as proposed in the final
rule.
Sixth, CEQ proposed to modify
paragraph (c)(5) to emphasize that
combining environmental documents
should be done to facilitate sound and
efficient decision making and avoid
duplication. CEQ proposed to strike the
language from this paragraph allowing
agencies to designate and rely on other
procedures or documents to satisfy
NEPA compliance. As discussed further
in sections II.C.1 and II.C.2 of the
NPRM, CEQ had concerns about this
language added by the 2020 rule to
substitute other reviews as functionally
equivalent for NEPA compliance, and
therefore proposed to remove it.
One commenter stated that paragraph
(c)(5) should implement section 107(b)
of NEPA, 42 U.S.C. 4336a(b). Section
107(b) of NEPA addresses preparation of
a single environmental document for
lead and cooperating agencies. CEQ
addresses this in § 1501.7(g) and
therefore declines to make this change.
The intent of paragraph (c)(5) is to
ensure that agency procedures require
the combination of environmental
documents with other agency
documents in order to facilitate sound
and efficient decision making and avoid
duplication where consistent with
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applicable statutory requirements. CEQ
makes the changes to § 1507.3(c)(5) as
proposed.
Seventh, to consolidate into one
paragraph—paragraph (c)—the required
aspects of agency NEPA procedures,
CEQ proposed to move paragraphs
(e)(1), (e)(2), (e)(2)(i), and (e)(2)(iii) of 40
CFR 1507.3 (2022) to paragraphs (c)(6),
(c)(7), (c)(7)(i) and (c)(7)(ii),
respectively, with minor wording
modification for readability. Proposed
paragraph (c)(6) addressed procedures
required by § 1501.2(b)(4) regarding
assistance to applicants. Proposed
paragraphs (c)(7), (c)(7)(i), and (c)(7)(ii)
addressed criteria to identify of typical
classes of action that normally require
EISs and EAs.
One commenter questioned if
paragraphs (c)(7)(i) and (ii) are intended
to make EIS and EA thresholds more
definitive. These provisions—which
have been in the CEQ regulations since
1978 and to which CEQ only proposed
minor, non-substantive edits for
readability—require agencies to identify
their common activities or decisions
that typically require an EIS or EA.
While not determinative for any
particular action, these lists put the
public on notice of the decisions
agencies regularly make that require
these levels of NEPA review. CEQ has
not substantively changed these
provisions and, therefore, does not
intend for them to affect EIS and EA
thresholds or otherwise change current
practice. CEQ makes the changes to
§ 1507.3(6) and (7) as proposed.
Eighth, CEQ proposed to move with
modification paragraph (e)(2)(ii) of 40
CFR 1507.3(2022), requiring agencies to
establish CEs and identify extraordinary
circumstances, to paragraph (c)(8). CEQ
proposed in paragraphs (c)(8)(i) through
(c)(8)(iii) to include more specificity
about the process for establishing new
or revising existing CEs, consistent with
CEQ’s 2010 CE guidance and agency
practice. CEQ proposed to move the
existing requirement that agencies
identify when documentation is
required for a determination that a CE
applies to a proposed action from
paragraph (e)(2)(i) of 40 CFR 1507.3
(2022) to proposed paragraph (c)(8)(i).
CEQ proposed a new paragraph (c)(8)(ii)
to require agencies to substantiate new
or revised CEs with sufficient
information to conclude that the
category of actions does not have a
significant effect, individually or in the
aggregate, and make the documentation
publicly available for comment. Lastly,
CEQ proposed to add paragraph
(c)(8)(iii) to require agencies to describe
how they will consider extraordinary
circumstances, a concept that was
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moved from paragraph (e)(2)(ii) of 40
CFR 1507.3 (2022). CEQ proposed these
provisions for consistency with its 2010
guidance and CEQ’s longstanding
practice requiring agencies to
demonstrate that agency activities are
eligible for CEs.113
One commenter requested that CEQ
revise proposed paragraph (c)(8)(i) to
require agencies to provide the public
with documentation of a determination
that a CE applies to a proposed action.
CEQ declines to require agencies to
document and publish all
determinations that a CE applies to an
action, as many CEs are used for routine
actions with no potential for
environmental effects and
documentation of all determinations
would result in burdensome and
unnecessary paperwork. CEQ considers
the better approach to be for agencies to
identify which CEs require
documentation and whether to make
that documentation publicly available.
One commenter requested that CEQ
expand paragraph (c)(8)(ii) to preclude
agencies from establishing CEs if similar
categories of actions have historically
been controversial, are known to have
substantial environmental justice
considerations, or have previously
resulted in preparation of an EIS.
Another commenter suggested that CEQ
replace the use of ‘‘or in the aggregate’’
with ‘‘cumulative,’’ to use the term from
the 1978 regulations.
Some commenters opposed proposed
paragraph (c)(8)(iii), stating that
agencies should not have to delineate
the extraordinary circumstances under
which an action normally excluded
from further NEPA review nonetheless
requires additional review. The
commenters asserted that the proposed
section substantially limits the breadth
of extraordinary circumstances under
which an action normally excluded
requires further review. CEQ disagrees
with the commenters’ assertions. The
provision clarifies that an explanation of
how the agency will consider
extraordinary circumstances when
applying a proposed CE is a necessary
component of substantiating the CE. The
provision should be read in context
with the definition of ‘‘extraordinary
circumstances’’ in § 1508.1(o).
CEQ considers these comments but
finalizes the provisions in § 1507.3(c)(8)
and (c)(8)(i) through (iii) as proposed,
with one change: instead of restating the
process for consideration of
extraordinary circumstances in
paragraph (c)(8)(iii), the final rule crossreferences to § 1501.4(b), which sets for
the process for consideration of
extraordinary circumstances, including
documenting when an agency
determines that a CE applies
notwithstanding extraordinary
circumstances. CEQ declines to make
the commenters’ recommended changes.
When establishing CEs, agencies must
provide sufficient information to CEQ
and to the public to substantiate the
determination that the category of
actions normally does not result in
significant effects. Agencies must also
address how they will consider
extraordinary circumstances in applying
CEs. CEQ does not consider it
appropriate to specify these limitations
within its regulations; rather, agencies
and CEQ must consider these concerns
on a case-by-case basis when
substantiating and reviewing proposed
new CEs.
As discussed further in section II.C.3,
CEQ also declines to replace ‘‘or in the
aggregate’’ in the paragraph because it is
consistent with § 1501.4 on
establishment of CEs. CEQ considers
‘‘individually or in the aggregate’’ to
have the same meaning as the 1978
regulation’s definition of ‘‘categorical
exclusion’’ as a category of actions that
do not ‘‘individually or cumulatively’’
have significant effects. CEQ uses ‘‘in
the aggregate’’ instead of
‘‘cumulatively’’ within the regulations
to avoid potential confusion with the
definition of ‘‘effects,’’ which includes
cumulative effects.
Ninth, CEQ proposed to add a new
paragraph (c)(9) to require agencies to
include in their NEPA procedures a
process for reviewing their CEs every 10
years to codify recommendations in
CEQ’s guidance on establishing CEs,114
which encourages agencies to review
CEs periodically. While the guidance
recommends every 7 years,115 CEQ
proposed requiring that review occur at
least every 10 years because it can take
about a year to complete the steps
involved to conduct such a review and
revise CEs. These steps typically
include conducting the analysis,
developing a proposal to update
procedures to reflect the review,
consulting with CEQ on any proposed
update to procedures, soliciting public
comment, developing final procedures,
and receiving a CEQ conformity
determination. CEQ noted in the
proposed rule that Federal agencies
should review their CEs for multiple
reasons, including to determine if CEs
remain useful, whether they should
modify them, and to determine if
circumstances have changed resulting in
114 Id.
113 See
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115 Id.
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an existing category rising the potential
for significant effects.
Multiple commenters supported this
requirement, with some suggesting that
this review be subject to notice and
public comment and others requesting
the 10-year timeframe start at the time
the agency issues the CE. One
commenter requested that the
regulations instruct agencies to take a
holistic and comprehensive look at their
current CEs to determine if any changes
are needed, while another suggested
that the periodic reviews need to
account for the latest science and design
practices.
CEQ declines to require agencies to
provide notice and comment for their
periodic review of CEs, but notes that
where an agency decides to revise a CE
based on the review, such revisions
would require notice and comment
under § 1507.3(b), for CEs established
through agency procedures, or
§ 1501.4(c), for CEs developed through
the mechanisms identified in that
paragraph. CEQ declines to require
agencies to comprehensively review
their CEs, because allowing agencies to
review their CEs on a rolling basis will
provide for a more orderly and efficient
review process and allow agencies to
complete their review of their oldest
CEs more quickly than would occur if
the agency were to review all of its CEs
at one time. CEQ declines to include
additional requirements for the periodic
review but agrees that the standard set
forth in § 1501.4(d)(4) may help inform
agencies as to when an agency should
revise or remove a CE.
Some commenters opposed the
proposed requirement to review existing
CEs, asserting that it places an
administrative burden on agencies that
is unjustified to the extent it goes
beyond how agencies currently
administer CEs. While CEQ recognizes
that this review process may be new for
some agencies, CEQ has encouraged
agencies to review CEs since the 2010
guidance. CEQ’s experience with
agencies that have undertaken this
review is that it is a valuable process for
agencies because it results in revised
and new CEs that better align with the
agencies’ programs and experience.
Such reviews are animated by the same
principle as the longstanding practices
to reexamine an analysis when an
agency has an ongoing action, such as
reevaluation and supplementation. A
periodic analysis of existing CEs serves
the same purpose—to ensure the
underlying analysis and conclusions
remain valid.
One commenter requested that the
final rule add ‘‘which does not impact
projects approved under a categorical
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exclusion that existed at the time’’ to
paragraph (c)(9) to clarify that review of
and changes to CEs are forward-looking
and do not affect previously approved
actions. CEQ agrees that any review of
CEs does not have implications for prior
CE determinations and does not
consider the text in the final rule to
raise any question that a review would
require an agency to reopen the
approval process for such actions. As a
result, CEQ views this addition to be
unnecessary.
In the final rule, CEQ adds this
provision with an additional clause to
clarify that agencies do not need to
review all of their CEs at once and may
do so on a rolling basis, but should
focus on the oldest CEs first. CEQ adds
this provision to clarify that agencies
need not undertake a comprehensive
review of all CEs but could instead
break them up such that they review
them in tranches on some periodic
schedule but where the review of each
CE occurs once every 10 years.
Additionally, in response to comments
on the interaction between § 1507.3(a)
regarding the validity of existing CEs
and this provision, CEQ clarifies that
agencies should prioritize its oldest CEs
first.
Tenth, CEQ proposed to move 40 CFR
1507.3(e)(3) (2020) to paragraph (c)(10)
without substantive change. This
provision addresses the requirement
that agencies include a process for
introducing a supplemental EA or EIS
into its formal administrative record.
CEQ did not receive comments on this
provision. In the final rule, CEQ moves
40 CFR 1507.3(e)(3) (2020) to
§ 1507.3(c)(10) and revises the text to
require agencies to include processes for
reevaluating and supplementing EAs
and EISs, as appropriate. CEQ has
revised the text in this provision to
enhance clarity by referring to
‘‘processes for’’ rather than ‘‘a process
for introducing’’ and removing the
reference to including supplemental
materials in a formal administrative
record to enable agencies flexibility to
develop procedures that work with their
programs consistent with longstanding
agency practice. Additionally, 40 CFR
1502.9(d)(4) (2020) implicitly requires
agency procedures to address
reevaluation by encouraging agencies to
document their findings consistent with
their agency NEPA procedures. CEQ
adds an explicit requirement in
§ 1507.3(c)(10) in the final rule for
consistency with § 1502.9(e) and to
make clear that agencies must include
such a process in their agency
procedures.
Eleventh, CEQ proposed to move the
requirement for agencies to explain in
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their NEPA procedures where interested
persons can get information on EISs and
the NEPA process from paragraph (e) of
40 CFR 1506.6 (2020) to § 1507.3(c)(11)
and add a reference to EAs as well. CEQ
did not receive comments on this
provision and makes this change as
proposed in the final rule.
Twelfth, CEQ proposed to codify
section 107(f) of NEPA, 42 U.S.C.
4336a(f), in a new paragraph (c)(12)
requiring agencies to include
procedures, where applicable, to allow
a project sponsor to prepare EAs and
EISs consistent with § 1506.5. Since not
all agency actions involve project
sponsors, CEQ proposed to include
‘‘where applicable’’ to qualify this
requirement so that it applies only
where agencies have actions where
there is a project sponsor. The proposal
included ‘‘consistent with § 1506.5’’ so
that such procedures would ensure
environmental documents prepared by
project sponsors (or a contractor on the
project sponsor’s behalf) are prepared
with professional and scientific
integrity, and ensure that the agency
independently evaluates and takes
responsibility for the contents of such
documents. The proposed rule also
explained that this would ensure that
agencies require project sponsors to
execute a disclosure statement to
address financial or other interests. In
addition to procedures, agencies may
provide project sponsors with guidance
and assist in the preparation of the
documents consistent with
§ 1506.5(b)(1).
CEQ received multiple comments that
generally supported the proposed
changes to allow applicants to prepare
EAs and EISs, as well as multiple
commenters who generally opposed the
provision and opposed section 107(f) of
NEPA. Some commenters who oppose
the proposed changes recognized that it
is not within CEQ’s authority to modify
section 107(f) of NEPA but stated that
CEQ could provide more oversight and
guardrails for how agencies carry this
out and that CEQ should provide more
guidance on avoiding conflicts of
interest. Another group of commenters
asked CEQ to provide more specificity
for what agency procedures should
specify regarding applicant or project
sponsor-prepared EAs and EISs.
Commenters who supported the
proposal pointed to time and cost
savings and asserted that allowing
project proponents, applicants, and
contractors more opportunities to
prepare EAs and EISs will help reduce
inaccuracies and delays. Some
supportive commenters also requested
that CEQ go further, such as by allowing
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a project sponsor a first right of refusal
to prepare an EA or EIS.
One commenter opposed the addition
of paragraph (c)(12) and the general
allowance of project sponsors to prepare
EAs and EISs. However, they noted that
their concerns could be mitigated if
there is a definition of ‘‘project
sponsor.’’ Another commenter requested
that CEQ add to paragraph (c)(12) a
requirement for agencies to include
specific public engagement
requirements in their procedures when
a project sponsor prepares an EA or EIS.
Additionally, as discussed further in
section II.H.3, commenters were
confused about the applicability of this
provision and § 1506.5.
In the final rule, CEQ includes
§ 1507.3(c)(12) to address preparation of
EAs and EISs by applicants, including
project sponsors. As discussed in
section II.J.1, CEQ is adding a definition
of ‘‘applicant,’’ which is inclusive of
‘‘project sponsors’’ to address confusion
regarding the meaning of this term here
and elsewhere in the regulations. CEQ
also revises the ‘‘where applicable’’
language to ‘‘where an agency has
applicants that seek its action’’ to
address concerns that the provision
could be read as discretionary. As CEQ
noted in the preamble to the proposed
rule, not all agencies have applicants or
project sponsors; therefore, such
agencies need not include procedures
for non-existent applicants. This
phrasing is consistent with the
definition of ‘‘applicant’’ in the final
rule. Additionally, CEQ adds a sentence
in the final rule to clarify that such
procedures will not apply to applicants
when they serve as joint lead agencies.
Section 107 of NEPA allows the Federal
lead agency to appoint a State, Tribal, or
local agency as a joint lead agency and
jointly fulfill the role of the lead agency.
In such cases, the joint lead agency and
lead agency would work together to
prepare the document, including
development of the purpose and need,
identification of alternatives, and
preparing the FONSI or ROD.
In § 1507.3(c)(12), CEQ also revises
the cross reference to § 1506.5(a) and (c).
As discussed in section II.H.3, CEQ is
modifying § 1506.5 for clarity, and
therefore the provisions in § 1506.5
regarding applicant-provided
information for a NEPA document
prepared by the agency or an agencydirected contractor are inapplicable in
this instance where the applicant or its
contractor is preparing the EA or EIS.
In the final rule, CEQ adds paragraphs
(c)(12)(i), (ii) and (iii), to set out
minimum requirements for such
procedures. CEQ includes these
provisions to respond to comments
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requesting CEQ include more specificity
about the agency’s role with respect to
applicant prepared EAs and EIS.
Paragraph (c)(12)(i) requires that agency
procedures provide for agency review
and approval of the purpose and need
and alternatives. Agency involvement in
development of these key features of the
environmental document is critical to
ensure that applicant prepared EISs and
EAs will be appropriately scoped and
include the reasonable alternatives as
determined by the agency. Paragraph
(c)(12)(ii) requires agencies to include
process for the agency to independently
evaluate the applicant-prepared EA or
EIS; take responsibility for its accuracy,
scope, and contents; and document the
agency’s evaluation in the document
consistent with the requirements in
§ 1506.5(a). CEQ adds paragraph
(c)(12)(iii) to address comments
requesting that CEQ clarify that
applicants cannot prepare FONSIs or
RODs. CEQ agrees that this is consistent
with section 107(f) of NEPA and agrees
that it is an important clarification to
ensure that the agency’s determinations
and decisions are its own.
CEQ declines to add additional
requirements regarding public
engagement in paragraph (c)(12) because
the regulations require agencies to
engage the public in the preparation of
an EA and EIS, which is required
regardless of the preparer.
Numerous commenters expressed the
view that CEQ is not fully implementing
section 107(f) of NEPA because it is not
specifically requiring agencies to allow
project sponsors or applicants the
opportunity to prepare documents in
the absence of prescribed procedures.
Some commenters referred to the fact
that agencies have 12 months to propose
procedures to CEQ following the
effective date of the final rule, which
means it will be more than a year before
agencies have final procedures in place
and be able to implement section 107(f)
of NEPA. One commenter also pointed
to some agencies already accepting
sponsor-prepared documents for years
and having a process in place to
facilitate doing so and asserting that
those agencies should not be prevented
from continuing to accept these
documents.
CEQ agrees that agencies have long
allowed applicants to prepare EAs and
that many agencies already have
procedures in place for applicantprepared documents. CEQ disagrees that
this provision in the regulations
precludes agencies from implementing
applicant-prepared documents if they
already have procedures that enable
them to do so. Agencies are currently
implementing section 107(f) of NEPA
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35535
and this provision does not prevent
them from continuing to do so. Rather,
this provision ensures that going
forward, agencies include their
procedures for applicant prepared EAs
and EISs in their NEPA procedures.
Doing so will ensure that the procedures
include the criteria set forth in this final
rule and that the public has an
opportunity to review and comment on
the agency procedures without
disrupting existing practice
implementing 107(f) of NEPA.
Thirteenth, CEQ proposed to move,
with revisions, paragraph (d) of 40 CFR
1507.3 (2022) to § 1507.3(d)(1) and
strike the provisions in paragraphs
(d)(1) through (d)(6) of 40 CFR 1507.3
(2022), which recommended agency
procedures identify different classes of
activities or decisions that may not be
subject to NEPA. CEQ proposed to
remove these provisions for consistency
with its revisions to § 1501.1. See
section II.C.1.
Instead, CEQ proposed § 1507.3(d)
and its subparagraphs to provide a list
of items that agencies may include in
their procedures, as appropriate, which
would include, at paragraph (d)(1),
identifying activities or decisions that
are not subject to NEPA. CEQ proposed
in paragraph (d)(2) to allow agencies to
include processes for emergency actions
that would not result in significant
environmental effects. Finally, CEQ
proposed to move, without
modification, paragraphs (f)(1) and (f)(2)
of 40 CFR 1507.3 (2022) to paragraphs
(d)(3) and (d)(4), respectively.
One commenter expressed support for
the proposed § 1507.3(d), and
specifically identified additional
support for paragraphs (d)(1) and (d)(2)
through (6). Another commenter
requested that CEQ make the list of
items in § 1507.3(d) required rather than
optional for inclusion in agency
procedures. This commenter also
opposed the allowance in paragraph
(d)(3) regarding classified proposals,
asserting that this language invites
abuse by agencies that will classify
proposals that should not be classified
to avoid public input and requested that
there be public comment periods for
classified proposals.
CEQ finalizes the list of items
agencies may include in their
procedures in § 1507.3(d) as proposed. It
is appropriate for this list of items to be
optional because the items included in
the list will not always be applicable to
every agency.
CEQ notes that the provision in (d)(2)
regarding emergency actions is similar
to CEQ’s emergency process for EISs
provided in § 1506.11, but relates to
activities that would not require
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preparation of an EIS. Some agencies
have programs that focus on these types
of emergency actions and may need to
consider special arrangements for their
EAs in these circumstances. These
special arrangements could focus on the
format of the documents, special
distribution and public involvement
procedures, and timing considerations.
Some agencies have already established
such processes in their procedures to
ensure efficient NEPA compliance in an
emergency. See, e.g., 36 CFR 220.4(b);
U.S. Dep’t of Homeland Sec., Instruction
Manual #023–01–001–01, Section VI.116
Regarding classified proposals, CEQ
declines to further modify paragraph
(d)(3), which has been in place since the
1978 regulations and is important for
agencies who handle classified
information. CEQ notes that the
provision encourages agencies to
withhold only what is necessary for the
protection of classified information and
structure the document such that it can
easily make unclassified portions
available for public comment.
Fourteenth, CEQ proposed to strike
paragraph (e) of 40 CFR 1507.3 (2020)
because it was unnecessary and
potentially confusing. CEQ makes this
change in the final rule because this
provision is redundant with the
regulations’ longstanding requirement
that agencies develop agency NEPA
procedures that CEQ has determined
conform to the NEPA regulations.
Further, its requirement that agency
procedures ‘‘comply’’ with the CEQ
regulations could be read to suggest that
agencies must complete a NEPA review
when establishing their procedures,
which is inconsistent with paragraph
(b)(3).
Fifteenth, CEQ proposed to remove, as
superfluous, the first sentence of
paragraph (f)(3) of 40 CFR 1507.3 (2020)
regarding lengthy periods between an
agency’s decision to prepare an EIS and
actual preparation, as the regulations
prescribe specific timelines for
preparation of environmental
documents. As discussed in section
II.D.3, CEQ proposed to move the
second sentence of 40 CFR 1507.3(f)(3)
regarding supplemental notices when an
agency withdraws, cancels, or otherwise
ceases the consideration of a proposed
action before completing an EIS to
§ 1502.4(f) with modifications. CEQ
makes these changes in the final rule.
Sixteenth, CEQ proposed to remove as
unnecessary paragraph (f)(4) of 40 CFR
116 DHS, 023–01–001–01, Implementation of the
National Environmental Policy Act (Nov. 6, 2014),
https://www.dhs.gov/sites/default/files/
publications/DHS_Instruction%20Manual%2002301-001-01%20Rev%2001_
508%20Admin%20Rev.pdf.
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1507.3 (2022) regarding combining the
agency’s EA process with its scoping
process. Section 1501.5(k) clarifies that
agencies can employ scoping at their
discretion when it will improve the
efficiency and effectiveness of EAs,
including combining scoping with a
comment period on a draft EA.
One commenter opposed this deletion
because integrating scoping with the EA
process can be an inclusive method of
soliciting input and save time and
money during the NEPA process. CEQ
agrees that integrating scoping with an
EA process can provide efficiency
benefits, which §§ 1501.5(k) and
1501.9(b) address. CEQ finalizes the
proposal to remove paragraph (f)(4)
because it is redundant with those
provisions.
Finally, as discussed in section II.C.3,
CEQ proposed to strike paragraph (f)(5)
of 40 CFR 1507.3 (2022) and replace it
with a provision in § 1501.4(e) that is
consistent with the process established
by section 109 of NEPA, 42 U.S.C.
4336c, for adoption or use of another
agency’s CE. CEQ makes this change in
the final rule.
4. Agency NEPA Program Information
(§ 1507.4)
CEQ proposed revisions to § 1507.4,
which describes the use of agency
websites and other information
technology tools to promote
transparency and efficiency in the
NEPA process. In paragraph (a), CEQ
proposed to change ‘‘other means’’ to
‘‘other information technology tools’’
and to remove ‘‘environmental’’ before
‘‘documents’’ because ‘‘environmental
documents’’ is a defined term, and the
intent of the sentence is to refer to
NEPA-related information and
documents more broadly and not only
to those documents that are included in
the definition of ‘‘environmental
document.’’ CEQ proposed the same
edit, removing ‘‘environmental’’ before
‘‘documents,’’ in paragraph (a)(1). CEQ
also proposed in paragraph (a) to require
agencies to provide on their websites or
through other information technology
tools (to account for new technologies)
their agency NEPA procedures and a list
of EAs and EISs that are in development
and complete. Lastly, in paragraph (a),
CEQ proposed to encourage rather than
allow agencies to include the
information listed in paragraphs (a)(1)
through (a)(4) on agency websites or
other information technology tools.
CEQ proposed to revise paragraph
(a)(2) to encourage agencies to post their
environmental documents to their
websites or other information
technology tools. Finally, CEQ proposed
edits to paragraph (b), which promotes
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interagency coordination of
environmental program websites and
shared databases, to provide agencies
with additional flexibility and clarify
that the section is not limited to the
listed technology.
One commenter opposed CEQ’s
proposed requirement for agencies to
provide a list of EAs and EISs that are
in development and complete because
the regulations already require
publication of the NOI, draft EIS, final
EIS, and ROD; require completed EISs to
be publicly accessible via EPA’s EIS
database; encourage publication of draft
EAs; and require publication of FONSIs.
Combined with CEQ’s proposed
requirements for notification in
§ 1501.9(d)(2), the commenter asserted
the requirement to post a list of EAs and
EISs is redundant and adds another
administrative burden on agencies.
CEQ makes the changes as proposed,
including the requirement for agencies
to provide a list of EAs and EISs that are
in development and complete. During
the rulemaking process, CEQ heard from
multiple members of the public that it
can be challenging to identify what
NEPA reviews are active within an
agency. CEQ considers the requirement
to maintain a website or other electronic
listing of EAs and EISs to be an
important method of transparency that
provides easily accessible information
to the public. CEQ notes that the
provision does not require agencies to
publish the documents themselves,
rather, it only requires a list of
documents that are in development or
completed. Agencies already routinely
consolidate this type of information and
can cross-reference to other repositories,
such as the Federal Register or EPA’s
EIS database, on the agency website in
order to reduce or avoid duplication.
Agencies have discretion to determine
when a NEPA review is sufficiently in
development to list it on its website,
and this provision does not require
agencies to post publicly pre-decisional
or deliberative information, including
non-public information that an agency
is working on an environmental
document.
Regarding the proposal to encourage,
rather than allow, agencies to include
the information listed in paragraphs
(a)(1) through (a)(4), one commenter
asked CEQ to go further and make the
listed items a requirement. CEQ
declines to require agencies to include
this information, but strongly
encourages them to do so.
J. Revisions to Definitions (Part 1508)
In § 1508.1, CEQ proposed revisions
to the definitions of ‘‘categorical
exclusion,’’ ‘‘cooperating agency,’’
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‘‘effects’’ or ‘‘impacts,’’ ‘‘environmental
assessment,’’ ‘‘environmental
document,’’ ‘‘environmental impact
statement,’’ ‘‘finding of no significant
impact,’’ ‘‘human environment,’’ ‘‘lead
agency,’’ ‘‘major Federal action,’’
‘‘mitigation,’’ ‘‘notice of intent,’’ ‘‘page,’’
‘‘scope,’’ and ‘‘tiering.’’ CEQ proposed
to add definitions for ‘‘environmental
justice,’’ ‘‘environmentally preferable
alternative,’’ ‘‘extraordinary
circumstances,’’ ‘‘joint lead agency,’’
‘‘participating Federal agency,’’
‘‘programmatic environmental
document,’’ and ‘‘significant effects.’’
CEQ did not propose substantive edits
to any other definitions, but proposed to
redesignate most of the paragraphs to
keep the list of terms in alphabetical
order. CEQ invited comment on whether
it should modify the remaining
definitions or define additional terms.
Multiple commenters requested that
CEQ add other definitions or edit
existing definitions where no changes
were proposed. Commenters requested
that CEQ define a number of additional
terms including ‘‘unresolve conflicts,’’
‘‘Tribal consultation,’’ ‘‘final action,’’
‘‘monitoring,’’ ‘‘environmental design
arts,’’ ‘‘reasonably available for
inspection,’’ ‘‘substantive comments,’’
‘‘earliest reasonable time,’’ and ‘‘issues.’’
One commenter requested additional
modification to the definition of
‘‘publish’’ and ‘‘publication’’ to
encourage agencies to inform as broad
an audience as possible. CEQ declines
to make these changes in the final rule
and discusses the rationale for not
making these changes in the Phase 2
Response to Comments as well as in
other sections of the preamble. CEQ is
adding definitions for several additional
terms and modifying definitions
contained in the proposed rule as
explained below.
1. Applicant (§ 1508.1(c))
CEQ adds a definition of ‘‘applicant’’
to § 1508.1(c). CEQ defines this term as
a non-Federal entity that seeks an action
by a Federal agency and clarifies that
this term is inclusive of project
sponsors. The CEQ regulations have
long used the term ‘‘applicant’’ as well
as ‘‘non-Federal entity’’ and ‘‘project
sponsor.’’ The recent NEPA
amendments also use both terms
interchangeably. Because applicants can
include project sponsors, as well as nonFederal entities that are seeking agency
action for other activities that are not
ordinarily referred to as projects, CEQ is
electing to use the term ‘‘applicants’’
throughout these regulations. Therefore,
for consistency and clarity, CEQ revises
the regulations to use this term
consistently throughout, replacing
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references to ‘‘non-Federal entity’’ and
‘‘project sponsor’’ with ‘‘applicant.’’
2. Categorical Exclusion (§ 1508.1(e))
CEQ proposed to modify the
definition of ‘‘categorical exclusion’’ in
proposed paragraph (d) to add a cross
reference to proposed § 1501.4(c), in
which CEQ proposed to establish a new
way for agencies to establish CEs. CEQ
also proposed minor grammatical edits
to change ‘‘the agency’’ to ‘‘an agency’’
and ‘‘normally do not’’ to ‘‘normally
does not.’’
A number of commenters expressed
opposition to the existing term
‘‘normally’’ in the definition of
‘‘categorical exclusion,’’ which CEQ did
not propose to change, and asked that
the final rule clarify the meaning of the
term. Commenters opposed to the term
‘‘normally’’ asserted it makes the
standard for establishing a CE
insufficiently rigorous. Other
commenters specifically asked that the
final rule specify that ‘‘normally’’ means
‘‘in the absence of extraordinary
circumstances,’’ and that an agency
cannot establish a CE if some actions
will have significant adverse effects but
will nonetheless be approved under the
CE.
CEQ revises the definition of
‘‘categorical exclusion’’ as proposed in
the final rule at § 1508.1(e) because it is
consistent with section 111(1) of NEPA,
which defines a CE in part as ‘‘a
category of actions that a Federal agency
has determined normally does not
significantly affect the quality of the
human environment.’’ 42 U.S.C.
4336e(1) (emphasis added). CEQ has
long used the term ‘‘normally’’ to mean
in the absence of extraordinary
circumstances,117 and CEQ added
‘‘normally’’ in the definition of
‘‘categorical exclusion’’ in the 2020 rule
for this reason.118 Agency-established
CEs are not exemptions from the
requirement of section 102(2)(C) of
NEPA that an agency prepare an EIS
before taking a major Federal action
significantly affecting the environment.
42 U.S.C. 4332(2)(C). Instead, CEs are a
mechanism for complying with this
requirement for actions of a kind the
agency has determined will not
117 See, e.g., CEQ, CE Guidance, supra note 10, at
2 (‘‘Extraordinary circumstances are factors or
circumstances in which a normally excluded action
may have a significant environmental effect that
then requires further analysis in an environmental
assessment (EA) or an environmental impact
statement (EIS).’’).
118 See CEQ, 2020 Final Rule, supra note 39, at
43342 (‘‘CEQ proposed to revise the definition of
‘categorical exclusion’ in paragraph (d) by inserting
‘normally’ to clarify that there may be situations
where an action may have significant effects on
account of extraordinary circumstances.’’).
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normally have significant effects with
the extraordinary circumstances
applicable to a CE serving to identify
actions of the kind covered by the CE
that could nonetheless have significant
effects and therefore require additional
analysis pursuant to the documentation
requirement of § 1501.4(b)(1) or through
an EA or EIS. Therefore, when
developing a CE to identify categories of
actions that will not normally have
significant effects, an agency must also
provide for the consideration of
extraordinary circumstances to identify
when a specific action that falls within
the category is not of the normal variety
that the agency has already determined
will not have significant effects and,
therefore, requires further analysis.
3. Communities With Environmental
Justice Concerns (§ 1508.1(f))
CEQ did not propose a specific
definition of ‘‘communities with
environmental justice concerns’’ but
invited comment on whether the final
rule should define the term, and if so,
how. CEQ explained in the proposed
rule that it intended the phrase to mean
communities that do not experience
environmental justice as defined in
proposed § 1508.1(k) (88 FR 49960).
Multiple commenters recommended
the final rule define ‘‘communities with
environmental justice concerns.’’ Some
commenters recommended CEQ define
it as ‘‘communities that do not
experience environmental justice as
described in § 1508.1(k).’’ Another
commenter suggested the definition of
‘‘environmental justice’’ was
‘‘politicized’’ and therefore referring to
§ 1508.1(k) would do little to add
clarity. One commenter asserted that
CEQ’s intended meaning would burden
communities with raising concerns
rather than a definition with ‘‘objective
measures of adverse health and
environmental effects and
disproportionate impacts that warrant
alternatives analysis.’’
Numerous commenters requested the
final rule include a specific definition
because it would provide consistency
and clarity to Federal agencies on how
they should assess environmental
justice impacts and how they should
define communities with environmental
justice concerns. Commenters also
asserted that including a definition is
important because the phrase is used
frequently in the proposed rule. Many
commenters also requested that CEQ
provide additional guidance on how to
identify communities with
environmental justice concerns, and
some specifically asserted that a
definition will only be beneficial if there
is additional guidance that includes
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robust public engagement with
environmental justice stakeholders.
Some commenters provided specific
language for consideration, which CEQ
describes in the Phase 2 Response to
Comments.
Some commenters asserted that the
final rule does not need a definition,
and one commenter suggested that the
regulations already account for such
groups.
After considering the comments, CEQ
agrees that a definition would help
provide consistency and clarity for
Federal agencies and adds one at
§ 1508.1(f). CEQ defines ‘‘communities
with environmental justice concerns’’ to
mean communities ‘‘that may not
experience environmental justice as
defined . . . in § 1508.1(m).’’ The
definition also indicates that agencies
may use available screening tools, as
appropriate to their activities and
programs, to assist them in identifying
these communities and includes two
examples of existing tools that agencies
could use: the Climate and Economic
Justice Screening Tool and the EJScreen
Tool.119 The definition also clarifies that
agencies have flexibility to develop
procedures for the identification of such
communities in their agency NEPA
procedures. CEQ considers the
definition provided in paragraph (f) that
connects the definition of ‘‘communities
with environmental justice concerns’’
with the definition of ‘‘environmental
justice,’’ alongside an indication that
agencies may use available screening
tools to assist them, to strike the right
balance between providing additional
guidance to agencies and recognizing
that agencies should have flexibility to
identify communities with
environmental justice concerns in light
of the unique circumstances associated
with each action.
CEQ encourages agencies to make use
of all available tools and resources in
identifying communities with
environmental justice concerns. CEQ
notes that this definition is not intended
to make such communities self-identify;
it is incumbent on the agencies to
proactively identify such communities.
While many agencies have experience
in doing so, CEQ anticipates that
agencies will develop more expertise
over time, which is why CEQ
encourages agencies to consider further
defining their methodology for
identifying communities with
environmental justice concerns in their
agency NEPA procedures. CEQ also may
119 CEQ, Explore the Map, Climate and Economic
Justice Screening Tool, https://screeningtool.
geoplatform.gov/; EPA, EJScreen: Environmental
Justice Screening and Mapping Tool, https://
www.epa.gov/ejscreen.
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provide guidance to agencies in the
future as tools and methodologies for
identification of communities with
environmental justice concerns develop.
4. Cooperating Agency (§ 1508.1(g))
In proposed paragraph (d) of § 1508.1,
CEQ proposed to revise the definition of
‘‘cooperating agency’’ for clarity and
consistency with the definition of
‘‘cooperating agency’’ in sections 111(2)
of and 107(a)(3) of NEPA, which
provides that a lead agency may
designate as a cooperating agency ‘‘any
Federal, State, Tribal, or local agency
that has jurisdiction by law or special
expertise with respect to any
environmental impact involved in a
proposal.’’ See 42 U.S.C. 4336a(a)(3),
4336e(2).
One commenter requested CEQ
modify the definition to be more
inclusive of State and local governments
and Tribal entities by allowing them to
serve as cooperating agencies when
there are potential impacts in their
communities or jurisdictions, and they
are ‘‘involved in a proposal.’’ Another
commenter requested CEQ add a
specific exclusion of non-governmental
organizations or quasi-governmental
organizations from the definition.
CEQ declines to expand the definition
of ‘‘cooperating agency’’ to include
agencies ‘‘involved in a proposal’’ as
this is overly broad. Instead, CEQ
finalizes the definition in § 1508.1(g)
consistent with the proposal, which
incorporates the language in section
107(a)(3) of NEPA. See 42 U.S.C.
4336(a)(3). However, CEQ encourages
agencies to invite local governments and
Tribes to participate as cooperating
agencies where they have special
expertise about a proposed action and
its environmental effects. CEQ also
declines to add the recommended
explicit exclusion of non-governmental
organizations or quasi-governmental
organizations from the definition of
‘‘cooperating agency’’ because the
definition of ‘‘cooperating agency’’ sets
forth the entities that are eligible to
serve as cooperating agencies, and this
does not include non-governmental
organizations or quasi-governmental
organizations.
5. Effects or Impacts (§ 1508.1(i))
In proposed paragraph (g), CEQ
proposed to make clarifying edits to the
definition of ‘‘effects’’ and to add and
modernize examples. Paragraph (g)(4) of
40 CFR 1508.1 (2022) listed common
types of effects that may arise during
NEPA review. CEQ proposed to update
the list to add ‘‘disproportionate and
adverse effects on communities with
environmental justice concerns,
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whether direct, indirect, or cumulative’’
and ‘‘climate change-related effects.’’
For climate change-related effects, CEQ
proposed to clarify that these effects can
include both contributions to climate
change from a proposed action and its
alternatives as well as the potential
effects of climate change on the
proposed action and its alternatives.
CEQ proposed these changes to update
the definition to include effects that
have been an important part of NEPA
analysis for more than a decade and will
continue to be relevant, consistent with
best available science and NEPA’s
requirements. Also, CEQ proposed these
changes in response to comments
received during the Phase 1 rulemaking
that the definition of ‘‘effects’’ or
‘‘impacts’’ should explicitly address
environmental justice and climate
change.120
CEQ received a variety of comments
on the proposed definition of ‘‘effects’’
or ‘‘impacts.’’ Some commenters
supported the proposed definition
generally, and specifically supported
the retention of the changes made in the
Phase 1 rulemaking to include direct,
indirect, and cumulative effects in the
definition.
Some commenters requested CEQ add
additional examples of effects,
including vandalism, destruction of
cultural resources, and adverse effects to
resources crucial to the exercise of
Tribal Nations’ reserved rights or the
habitat such resources depend on for
any part of their lifecycle.
Some commenters characterized the
proposed definition of ‘‘effects’’ as an
attempt to inappropriately broaden the
definition, contravene NEPA, and invite
litigation, delays, and complexity. These
commenters primarily focused on the
additions of environmental justice and
climate change into proposed paragraph
(g)(4), taking issue with CEQ codifying
concepts that have previously only been
included in guidance documents and
Executive orders. One commenter
generally described the proposed
changes to the definition of ‘‘effects’’ as
broadening the non-statutory definition
of effects and asserted that it is at odds
with NEPA, going beyond what the
statute authorizes or requires. They also
asserted the proposed changes have
nothing to do with the mission of most
agencies.
CEQ adds the proposed examples in
§ 1501.8(i)(4) of the final rule, and also
adds ‘‘effects on Tribal resources’’ in
response to commenters’ suggestions.
CEQ also revises the last sentence of the
paragraph to substitute ‘‘adverse’’ for its
120 CEQ, Phase 1 Response to Comments, supra
note 52, at 87, 99.
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synonym ‘‘detrimental’’ before ‘‘effects,’’
for consistency with the usage of the
phrase ‘‘adverse effects’’ in other
provisions in the regulations. CEQ
declines to add the other proposed
examples as they are overly specific.
CEQ notes that this paragraph is a nonexhaustive list of examples, and that
effects vary widely depending on the
nature and scope of an agency action.
CEQ considers it irrelevant to this
rulemaking whether environmental
effects, including climate-related and
environmental justice effects, relate to
an agency’s mission. The purpose of
NEPA is for agency decision makers to
consider environmental effects in their
decision making regardless of the
agency’s mission or purpose.
CEQ acknowledges that the term
‘‘effects’’ is not statutorily defined. A
definition of ‘‘effects,’’ however, has
been a part of CEQ’s regulations since
1978, which included direct, indirect,
and cumulative effects, see 40 CFR
1508.8 (2019), and which CEQ restored
to the regulations in its Phase 1
rulemaking. Including explicit
references to ‘‘climate change-related
effects’’ and ‘‘disproportionate and
adverse effects on communities with
environmental justice concerns’’ as
examples of effects is consistent with
that definition of ‘‘effects,’’ and the
approach the CEQ regulations have
taken since 1978 of identifying
examples of categories of effects that fall
within the regulation’s definition of
‘‘effects.’’ See 40 CFR 1508.1(g)(1)
(2020); 40 CFR 1508.8 (2019). The
addition of these new examples to the
regulatory text provides further
specificity consistent with the statutory
text and do not expand the scope of the
definition of ‘‘effects.’’ For example,
section 2 of NEPA, 42 U.S.C. 4321, notes
that in enacting NEPA Congress
declared a national policy, among other
things, ‘‘to promote efforts which will
prevent or eliminate damage to the
environment and biosphere’’ (emphasis
added). Section 102 of NEPA, for
example, directs the ‘‘Federal
Government to use all practical means’’
to ensure ‘‘for all Americans safe,
healthful, productive, and esthetically
and culturally pleasing surroundings,’’
and that ‘‘Congress recognizes that each
person should enjoy a healthful
environment.’’ 42 U.S.C. 4331(b) and (c)
(emphasis added). And as section
102(2)(C)(i) of NEPA also notes, an
agency’s NEPA analysis must address
the ‘‘reasonably foreseeable adverse
environmental effects’’ of the proposed
action,which has long been interpreted
in CEQ’s regulations (and affirmed by
courts) to include direct, indirect, and
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cumulative effects. 42 U.S.C.
4332(2)(C)(ii). As a result, expressly
identifying climate change, effects to
communities with environmental justice
concerns, and similar considerations
simply draws attention to various
categories of effects that already merit
consideration.
A commenter recommended CEQ
clarify that agencies focus cumulative
effects analyses on ‘‘significant’’
cumulative effects to improve
efficiency. The commenter also asked
CEQ to recognize that a qualitative
analysis is sufficient when describing
potential cumulative effects. CEQ has
determined not to include these
suggestions in the regulatory definition
because they are overly specific and
prescriptive and notes that CEQ has
issued guidance on cumulative effects
that address these issues.
One commenter asserted that ‘‘effects
of the proposed agency action’’ in
section 102(2)(C) of NEPA cannot be
read to include effects that are totally
unrelated to the proposed agency action
and therefore inclusion of cumulative
effects in the definition of ‘‘effects’’ is
precatory and irrelevant to the legal
sufficiency of an EIS.
Some commenters asserted that the
amendments to NEPA prohibit
consideration of cumulative effects
because they do not demonstrate a
reasonably close causal relationship,
and stated that Congress intentionally
codified ‘‘reasonably foreseeable’’
effects rather than ‘‘cumulative’’ or
‘‘aggregate’’ effects and urged CEQ to
adopt language consistent with the
statutory amendments.
CEQ disagrees with the commenters’
assertions. The first sentence of the
definition of ‘‘effects’’ is clear—effects
must be reasonably foreseeable. Direct,
indirect, and cumulative effects are
categories of reasonably foreseeable
effects. Therefore, CEQ declines to make
changes to the definition to remove
‘‘cumulative’’ from the types of effects.
Some commenters requested that CEQ
restore the definition of ‘‘effects’’ from
the 2020 rule, in particular emphasizing
the restoration of ‘‘reasonably close
causal relationship to the proposed
action,’’ which CEQ removed in the
Phase 1 rulemaking. CEQ declines to
restore the 2020 definition for the
reasons discussed in the Phase 1
rulemaking, the Phase 1 Response to
Comments, and the Phase 2 Response to
Comments. CEQ also notes that
Congress did not include this language
in the 2023 NEPA amendments, but
instead used the phrase ‘‘reasonably
foreseeable effects.’’
CEQ also proposed minor, nonsubstantive edits to paragraph (g)(3)
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35539
regarding cumulative effects. Consistent
with CEQ’s proposal to ensure
‘‘significant’’ only modify ‘‘effects,’’
CEQ proposed to revise the phrase to
read ‘‘actions with individually minor
but collectively significant effects.’’ A
commenter on the Phase 1 rulemaking
had also noted that the word ‘‘actions’’
should be ‘‘effects.’’ CEQ did not receive
any comments specific to this proposed
change and makes it in the final rule in
§ 1508.1(i)(3).
6. Environmental Assessment
(§ 1508.1(j))
CEQ proposed to update the
definition of ‘‘environmental
assessment’’ in proposed paragraph (h)
for consistency with sections 106(b)(2)
and 111(4) of NEPA, proposed § 1501.5,
and longstanding agency practice. See
42 U.S.C. 4336(b)(2), 4336e(4). CEQ
proposed to strike ‘‘prepared by a
Federal agency’’ and change it to ‘‘for
which a Federal agency is responsible’’
for consistency with section 107(f) of
NEPA and § 1506.5, which allow a
project sponsor (following agency
issuance of procedures) or agencydirected contractor, respectively, to
prepare an EA but requires that the
agency take responsibility for the
accuracy of its contents irrespective of
who prepares it. See 42 U.S.C. 4336a(f).
To improve readability, CEQ
proposed to strike ‘‘to aid an agency’s
compliance with the Act’’ and replace it
with text from § 1501.5 clarifying that
an agency prepares an EA when a
proposed action is not likely to have a
significant effect or the significance of
the effects is unknown. CEQ also
proposed to insert additional language
to clarify that an EA is ‘‘used to support
an agency’s’’ determination of whether
to prepare an EIS, add a parenthetical
cross reference to part 1502, and make
the cross reference to the provision on
FONSIs a parenthetical to match. CEQ
noted in the proposed rule that the
proposed changes would not alter the
intention that an EA is used to support
an agency’s determination whether to
prepare an EIS (part 1502) or issue a
FONSI (§ 1501.6).
One commenter requested that the
definition of ‘‘environmental
assessment’’ reference the requirements
of an EA with a mitigated FONSI and
clarify that an agency may incorporate
mitigation to reach a FONSI
determination. CEQ revises the
definition of ‘‘environmental
assessment’’ as proposed in § 1508.1(j).
CEQ declines to make additional edits
to address mitigated FONSIs because
the definition already cross-references
to § 1501.6, which addresses mitigated
FONSIs.
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7. Environmental Document
(§ 1508.1(k))
8. Environmental Impact Statement
(§ 1508.1(l))
CEQ proposed to add ‘‘record of
decision’’ to the definition of
‘‘environmental document’’ in proposed
paragraph (i) for clarity. CEQ also
proposed to add a ‘‘documented
categorical exclusion determination’’ to
the definition to reflect the longstanding
agency practice of documenting some
CE determinations.
A few commenters opposed the
proposed addition of a documented CE
determination to the definition. One
commenter opposed the definition
stating that it is inconsistent with the
definition of ‘‘environmental
document’’ in section 111 of NEPA.
Another commenter opposed the change
asserting some of the regulatory
requirements for environmental
documents should only apply to EAs
and EISs, and that the proposed
definition further obscures the
distinction between a CE compared to
an EA or EIS. A third commenter
requested confirmation that
undocumented CEs are excluded from
the definition and also generally
opposed the inclusion of CEs in the
definition of ‘‘environmental
document.’’
CEQ makes the changes as proposed
to the definition of ‘‘environmental
document’’ in § 1508.1(k). This change
is consistent with the changes to
§§ 1501.4 and 1507.3 that reference CE
determinations. Therefore, for clarity
and efficiency, CEQ is incorporating
documented CE determinations into the
definition of ‘‘environmental
document.’’ As CEQ acknowledged in
its proposed rule, CEQ intentionally
proposed a broader definition of
‘‘environmental document’’ than the
definition in the NEPA statute because
the CEQ regulations have long defined
this term more broadly for the
regulation’s purposes, and narrowing
the definition in the regulations would
require substantial further conforming
revisions that could create additional
uncertainty and would disrupt existing
practices. In developing the proposed
and final rule, CEQ reviewed each use
of the term to ensure its definition is
appropriate as well as consistent with
the NEPA statute. CEQ is unclear how
this definition ‘‘obscures the
distinction’’ between CEs and EAs or
EISs, and therefore declines to make any
changes in response to this comment.
Lastly, CEQ agrees with the commenter
that this would exclude undocumented
CE determinations but declines to
remove documented CE determinations
as discussed earlier in this section.
CEQ proposed to change ‘‘as
required’’ to ‘‘that is required’’ in the
definition of ‘‘environmental impact
statement’’ in proposed paragraph (j) for
consistency with the definition of
‘‘environmental impact statement’’ in
section 111(6) of NEPA. See 42 U.S.C.
4336e(6). CEQ did not receive
comments on this proposed change.
CEQ makes this change in the final rule
in § 1508.1(l).
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9. Environmental Justice (§ 1508.1(m))
CEQ proposed to add a new definition
of ‘‘environmental justice’’ at proposed
paragraph (k) to define ‘‘environmental
justice’’ as the just treatment and
meaningful involvement of all people so
that they are fully protected from
disproportionate and adverse human
health and environmental effects and
hazards, and have equitable access to a
healthy, sustainable, and resilient
environment. In defining
‘‘environmental justice,’’ CEQ proposed
to use the phrase ‘‘cumulative impacts,’’
rather than the phrase ‘‘cumulative
effects,’’ as used elsewhere in the
proposed regulations because the phrase
‘‘cumulative impacts’’ has a meaning in
the context of environmental justice
relating to the aggregate effect of
multiple stressors and exposures on a
person, community, or population. See,
e.g., Environmental Protection Agency,
Cumulative Impacts Research:
Recommendations for EPA’s Office of
Research and Development (2022). CEQ
explained in the proposed rule that it
views the evolving science on
cumulative impacts as sufficiently
distinct from the general meaning of
cumulative effects under the NEPA
regulations such that using a different
term could be helpful to agencies and
the public. CEQ invited comment on
this approach.
Multiple commenters expressed
support for the proposed definition,
with many saying the language is clear
and comprehensive and others
welcoming the inclusion of a definition,
saying it is long overdue. Some
commenters expressed support for
specific components of the definition,
such as the inclusion of Tribal
affiliation. Numerous commenters
suggested specific revisions to the
definition or asked that the final rule
include additional elements, which CEQ
discusses in the Phase 2 Response to
Comments.
Some commenters supported use of
the phrase ‘‘cumulative impacts’’ in the
definition and CEQ’s rationale for doing
so. One commenter asserted that
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‘‘cumulative impacts’’ is a newly
introduced concept and urged CEQ to
clarify its meaning, expressing concern
that it is open-ended and could result in
agencies inaccurately interpreting the
term to call for an unnecessarily
expansive historical baseline in the
analysis that could slow or discourage
development or require projects to
mitigate historical environmental
burdens that go beyond the impacts of
a proposed project. One commenter
requested that CEQ add a separate
definition for ‘‘cumulative impacts’’ as
it is used in the definition of
‘‘environmental justice’’ to distinguish it
from ‘‘cumulative effects.’’
Multiple commenters opposed the
proposed definition of ‘‘environmental
justice’’ for a variety of reasons.
Commenters asserted that it was
subjective, vague, difficult to
implement, an impossibly high
standard, politically motivated,
inconsistent with § 1502.16(b), unlawful
and not supported by statute, vulnerable
to legal challenges, could open the door
to endless project delays, and changes
NEPA procedural requirements to
achieve substantive goals.
In the final rule, CEQ adds a
definition of ‘‘environmental justice’’ in
§ 1508.1(m) consistent with the
proposal. Consideration of
environmental justice is within the
scope of NEPA’s purpose to provide for
the social, economic, and other
requirements of present and future
generations and allowing for all
Americans to participate in a wide
sharing of life’s amenities. See 42 U.S.C.
4331. NEPA also recognizes that each
person should have the opportunity to
enjoy a healthy environment. 42 U.S.C.
4331. Consideration of environmental
justice also informs an agency’s analysis
of reasonably foreseeable effects.
Agencies have decades of experience
integrating consideration of
environmental justice in their NEPA
reviews and incorporating a definition
of ‘‘environmental justice’’ into the
regulations will provide additional
clarity and consistency as agencies
continue to analyze environmental
justice in environmental documents, as
they have for many years. The definition
added to the regulations is consistent
with longstanding agency practice
evaluating potential effects to
communities that experience
disproportionate and adverse human
health and environmental effects and
ensuring meaningful engagement with
communities affected by proposed
actions. The definition is also consistent
with the definition of ‘‘environmental
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justice’’ in section 2(b) of E.O. 14096.121
CEQ declines to define the phrase
‘‘cumulative impacts.’’ As noted in the
proposed rule, ‘‘cumulative impacts’’
has a meaning in the context of
environmental justice relating to the
aggregate effect of multiple stressors and
exposures on a person, community, or
population. The science of ‘‘cumulative
impacts’’ is an evolving field, and CEQ
has determined that it is premature and
inappropriately limiting to establish a
regulatory definition of the phrase at
this time. CEQ will consider whether
guidance on cumulative impacts would
assist agencies conducting
environmental reviews.
Some commenters asked CEQ to
provide clearer direction and guidance
on how to apply the definition and
consideration of environmental justice
to improve consistency and clarity
amongst Federal agencies. CEQ will
consider what additional guidance may
be necessary.
10. Environmentally Preferable
Alternative (§ 1508.1(n))
CEQ proposed to add a new definition
of ‘‘environmentally preferable
alternative’’ at § 1508.1(l), a concept that
has been in the regulations since 1978,
and define it as the alternative or
alternatives that will best promote the
national environmental policy in
section 101 of NEPA. CEQ based its
proposed definition on CEQ’s Forty
Questions guidance that was issued in
1981 and has remained an important
resource for agencies since that time.122
Some commenters expressed general
support for the proposed definition.
Others expressed support and suggested
changes, such as incorporating the
phrases ‘‘reasonable alternative’’ and
‘‘economically and technically
feasible.’’ Other commenters opposed
the proposed definition. Multiple
commenters asserted the definition
conflicts with the mandates of section
101 of NEPA and asserted that because
section 101 is about striking a balance,
the environmentally preferable
alternative should be defined as the
alternative that best strikes a balance.
Another commenter asserted the
proposed definition is at odds with the
statutory language of NEPA arguing that
agencies must only consider alternatives
that are technically and economically
feasible and asserting that the
environmentally preferable alternative
may not always be technically and
economically feasible.
CEQ adds the definition of
‘‘environmentally preferable
121 See
E.O. 14096, supra note 22, at 25253.
Forty Questions, supra note 5, at 6.
122 CEQ,
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alternative’’ in § 1508.1(n) as proposed.
As CEQ has clarified in § 1502.14(f) and
in the discussion in section II.D.9,
agencies identify the environmentally
preferable alternative amongst the
alternatives considered in the EIS,
which are the proposed action, no
action, and reasonable alternatives.
Therefore, the definition of
‘‘environmentally preferable
alternative’’ does not require agencies to
consider alternatives beyond those
already identified for consideration.
CEQ disagrees that it is necessary to
include text indicating that the
environmentally preferable alternative
must be a reasonable alternative,
because agencies select the
environmentally preferable alternative
from the alternatives analyzed in the
EIS, which include the proposed action,
no action, and reasonable alternatives,
which is defined as a range of
alternatives that are technically and
economically feasible, and meet the
purpose and need for the proposed
action. CEQ also disagrees that the
environmentally preferable alternative
should be defined as the alternative that
best balances competing considerations.
While balance is an important part of
NEPA, identifying the environmentally
preferable alternative provides
information to decision makers and the
public, and is a longstanding part of the
NEPA process. Agencies are not
required to adopt the environmentally
preferred alternative as its final
decision. Additionally, CEQ disagrees
that the definition is at odds with
section 101 of NEPA because that
section is incorporated into the
definition.
11. Extraordinary Circumstances
(§ 1508.1(o))
CEQ proposed to add a definition of
‘‘extraordinary circumstances’’ in
proposed paragraph (m). While the 1978
regulations explained the meaning of
extraordinary circumstances as part of
the definition of ‘‘categorical exclusion’’
at 40 CFR 1508.4 (2019), which the 2020
rule moved to 40 CFR 1501.4(b)
(describing how to apply extraordinary
circumstances when considering use of
a CE) and 40 CFR 1507.3(e)(2)(ii)
(requiring agencies to establish
extraordinary circumstances for CEs in
their procedures),123 CEQ proposed to
create a standalone definition to
improve clarity when this term is used
throughout the rule.
CEQ also proposed to add several
examples of extraordinary
circumstances to help agencies and the
123 CEQ, 2020 Final Rule, supra note 39, at
43342–43.
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public understand common situations
that agencies may consider in
determining whether an action normally
covered by a CE falls outside the
category of actions the agency has
determined will not have significant
effects and, therefore, additional
analysis is required either under
§ 1501.4(b), if the agency can determine
that it can rely on the CE
notwithstanding the presence of the
extraordinary circumstance, or through
an EA or EIS. The proposed examples
included effects on sensitive
environmental resources,
disproportionate and adverse effects on
communities with environmental justice
concerns, effects associated with climate
change, and effects on historic
properties or cultural resources. This
list of examples is not exclusive, and
agencies continue to have the discretion
to identify extraordinary circumstances
in their NEPA implementing
procedures, consistent with § 1507.3, as
well as through the new mechanism to
establish CEs in § 1501.4(c), that are
specific and appropriate to their
particular actions and CEs.
Multiple commenters expressed
general support for the proposed
definition of ‘‘extraordinary
circumstances.’’ A few commenters
specifically supported the inclusion of
the examples of extraordinary
circumstances, including the references
to climate change effects, effects on
sensitive environmental resources,
effects on communities with
environmental justice concerns, and
effects on historic properties and
cultural resources.
Other commenters criticized the
proposed definition, asserting it is too
broad, vague, and subjective. Some
commenters suggested the proposed
definition is contrary to the NEPA
amendments allowing expanded use of
CEs. Other commenters specifically
objected to the examples, specifically
effects on climate change and
communities with environmental justice
concerns. One commenter stated the
definition could result in confusion
because it does not provide clarity on
what agencies must evaluate. Similarly,
another commenter stated this lack of
clarity provides too much freedom to
agencies that may not properly assess
the effects of projects for the sake of
efficiency.
CEQ adds a definition of
‘‘extraordinary circumstances’’ in
§ 1508.1(o) as proposed with minor
changes. In the final rule, CEQ uses
‘‘means’’ instead of ‘‘are’’ for
consistency with other definitions in
§ 1508.1. The final rule removes
‘‘environmental’’ from ‘‘significant
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environmental effects’’ because
‘‘significant effects’’ is a defined term.
CEQ also revises the examples of
extraordinary circumstances to use the
same introductory text, ‘‘substantial’’
effects as discussed further in this
section. The operative language
included in this definition has been in
the regulations since 1978, and agencies
have decades of experience analyzing
proposed actions for extraordinary
circumstances. CEQ disagrees that the
definition is inconsistent with the
recent amendments to NEPA because
NEPA requires agencies to conduct an
EIS for actions that will have significant
effects, and extraordinary circumstances
are the mechanism by which an agency
assesses whether a particular proposed
action may have significant effects and,
therefore, that reliance on a CE is
inappropriate. CEQ disagrees that the
definition is overbroad and considers it
to provide agencies the necessary
flexibility to tailor their extraordinary
circumstances consistent with their
programs and authorities. CEQ also
disagrees that the proposed definition
impedes the ability of agencies to use
CEs or apply the provisions of NEPA
regarding CEs. The regulations have
always required agencies to consider
extraordinary circumstances when
applying a CE and providing a
definition within the regulations helps
provide clarity to agencies, applicants,
and the public.
Multiple commenters asserted that the
undefined phrase ‘‘substantial effects’’
used in the examples of extraordinary
circumstances may result in confusion,
delays, and increased litigation risk.
Another commenter questioned why
‘‘potential substantial effects’’ is used in
the examples instead of ‘‘reasonably
foreseeable’’ and ‘‘significant effects.’’
CEQ used this different phrasing
because the purpose of extraordinary
circumstances is to screen an individual
action, which would normally be
covered by a CE, for further analysis to
assess whether the action has
reasonably foreseeable significant effects
requiring the preparation of an EIS.
While an agency could adopt
extraordinary circumstances that
directly implement the reasonably
foreseeable significant effects standard,
doing so could degrade the efficiency of
applying CEs by requiring a more
complex analysis in applying its
extraordinary circumstances that would
consider the context and intensity
factors that govern an assessment of
significance. CEQ notes that many
agencies have long used this phrase in
their lists of existing extraordinary
circumstances and that this approach
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has resulted in an efficient process for
applying CEs.
Some commenters also questioned
why the example for effects on
communities with environmental justice
concerns or effects on historic
properties or cultural resources did not
use the phrase ‘‘substantial effects.’’
CEQ revises the examples to use
‘‘substantial’’ effects for consistency
with the other examples in § 1508.1(o),
although CEQ notes that agencies have
flexibility to design extraordinary
circumstances in a manner that makes
sense for their programs.
12. Finding of No Significant Impact
(§ 1508.1(q))
In the definition of ‘‘finding of no
significant impact’’ proposed in
paragraph (o), CEQ proposed to insert
‘‘agency’s determination that and’’ after
‘‘presenting the’’ for consistency with
the definition of ‘‘finding of no
significant impact’’ in section 111(7) of
NEPA, which defines the term to mean
‘‘a determination by a Federal agency
that a proposed agency action does not
require the issuance of an
environmental impact statement.’’ 42
U.S.C. 4336e(7).
One commenter suggested CEQ revise
the definition to clarify that the
proposed action will not have a
significant adverse effect on any aspect
of the human environment. CEQ revises
the definition of ‘‘finding of no
significant impact’’ in § 1508.1(q) as
proposed, and CEQ declines to make
additional changes to the definition.
CEQ agrees that the purpose of a FONSI
is to document the determination that
the proposed action will not have a
significant effect, which is specified in
§ 1501.3(d)(2)(i), and does not consider
repeating that proposition here
necessary. Another commenter
suggested the final rule include a
definition for mitigated FONSI, which
CEQ declines to add because the
meaning of a mitigated FONSI is
conveyed in § 1501.6(a).
13. Human Environment or
Environment (§ 1508.1(r))
CEQ proposed to clarify in proposed
paragraph (p) that ‘‘human
environment’’ and ‘‘environment’’ are
synonymous in the regulations given
that ‘‘environment’’ is the more
commonly used term across the
regulations.
A few commenters expressed support
for the use of ‘‘human environment’’
and ‘‘environment’’ synonymously. A
couple of commenters asked for CEQ to
define ‘‘human environment’’ and
‘‘environment’’ as separate terms but
did not include a rationale for doing so.
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One commenter was supportive but
requested that CEQ expand the
definition to explicitly include cultural
and socio-economic conditions.
CEQ makes this change as proposed
in the final rule at § 1508.1(r). CEQ
declines to explicitly reference cultural
and socio-economic conditions in the
definition, because the definition crossreferences the definition of ‘‘effects,’’
which notes that effects include
ecological, aesthetic, historic, cultural,
economic, social, or health.
CEQ proposed a minor edit to
‘‘human environment’’ in § 1508.1(p) to
remove ‘‘of Americans’’ after ‘‘present
and future generations.’’ This minor edit
improves consistency with section
101(a) of NEPA, which speaks generally
about the impact of people’s ‘‘activity
on the interrelations of all components
of the natural environment’’ and the
need ‘‘to create and maintain conditions
under which [humans] and nature can
exist in productive harmony.’’ 42 U.S.C.
4331(a).
One commenter opposed the removal
of the phrase ‘‘of Americans’’ and
disagreed with CEQ’s characterization of
the change as minor. CEQ disagrees
with the commenter’s assertion and
makes this change in the final rule. In
the 2020 rule, CEQ changed ‘‘people’’ to
‘‘of Americans,’’ explaining that this
change was made to be consistent with
section 101(a) of NEPA.124 However,
CEQ has reconsidered that explanation,
which overlooks the context in which
the phrase ‘‘present and future
generations of Americans’’ is used in
section 101(a). That paragraph of the
Act refers to Americans at the end of the
last sentence after using the broader
term ‘‘man’’ three times. ‘‘Human
environment’’ refers broadly to the
interrelationship between people and
the environment. The phrase ‘‘present
and future generations of Americans’’ is
used in a narrower context to ‘‘fulfill the
social, economic, and other
requirements of present and future
generations of Americans.’’ 42 U.S.C.
4331(a). CEQ notes that it considers the
removal of the phrase ‘‘of Americans’’ in
the definition of ‘‘human environment’’
to be consistent with CEQ’s
determination to retain the phrase in the
first sentence of § 1501.1(a). That
sentence specifically describes section
101(a) of NEPA and does not define the
undefined term ‘‘human environment,’’
which appears in NEPA section
102(2)(C). CEQ considers it appropriate
to define ‘‘human environment’’ in
consideration of the totality of section
101, rather than solely based on the last
phrase in section 101(a). A definition of
124 Id.
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‘‘human environment’’ that is not
limited by the phrase ‘‘of Americans’’ is
also consistent with the statutory
exclusion in section 111(10)(b)(vi) of
NEPA of activities or decisions with
effects located entirely outside of the
jurisdiction of the United States from
the definition of ‘‘major Federal action.’’
This exclusion—consistent with
decades of agency practice—requires
agencies to evaluate effects that occur
outside of U.S. jurisdiction as a
component of the human environment
because it does not limit the definition
of ‘‘effects,’’ but rather excludes a
narrow category of activities from the
definition of ‘‘major Federal action.’’ 42
U.S.C. 4336e(10)(b)(vi).
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14. Joint Lead Agency (§ 1508.1(s))
CEQ proposed to add a definition for
‘‘joint lead agency’’ to mean ‘‘a Federal,
State, Tribal, or local agency designated
pursuant to § 1501.7(c) that shares the
responsibilities of the lead agency’’ for
preparing an EA or EIS. CEQ proposed
the definition for consistency with the
usage of that term in section 107(a)(1)(B)
of NEPA and § 1501.7(b) and (c). See 42
U.S.C. 4336a(a)(1)(B).
One commenter expressed that NEPA
establishes two categories of joint lead
agencies: Federal joint lead agencies and
non-Federal joint lead agencies. The
commenter requested CEQ clarify this
distinction in the definition. CEQ
declines to make the commenter’s
recommended change. CEQ reviewed
the use of the term in the regulations
and identified no circumstance where
the term was used in a fashion that
required distinguishing between Federal
joint lead agencies and non-Federal
joint lead agencies. Therefore, CEQ
finalizes the definition of ‘‘joint lead
agency’’ as proposed in § 1508.1(s).
15. Lead Agency (§ 1508.1(u))
CEQ proposed in paragraph (s) to
revise the definition of ‘‘lead agency’’ as
‘‘the Federal agency that proposes the
agency action or is designated pursuant
to § 1501.7(c) for preparing or having
primary responsibility.’’ CEQ proposed
this revision for consistency with the
definition of ‘‘lead agency’’ in section
111(9) of NEPA and to expand the
definition ‘‘to also include EAs,
consistent with longstanding practice.
CEQ did not receive any comments on
its proposed revisions to the definition
of ‘‘lead agency’’ and finalizes the
definition of ‘‘lead agency’’ as proposed
in § 1508.1(u). See 42 U.S.C. 4336e(9).
16. Major Federal Action (§ 1508.1(w))
CEQ proposed to revise the definition
of ‘‘major Federal action’’ in proposed
paragraph (u) to clarify the list of
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example activities or decisions that
meet the definition, and revise the list
of exclusions from the definition
consistent with section 111(10) of
NEPA. See 42 U.S.C. 4336e(10). First,
CEQ proposed to revise the introductory
paragraph to change ‘‘activity or
decision’’ to ‘‘action that the agency
carrying out such action determines is’’
and insert ‘‘substantial’’ before ‘‘Federal
control and responsibility’’ and delete
‘‘subject to the following’’ to align the
text with the language in section 111(10)
of NEPA.
Some commenters requested the final
rule provide further clarity and
specificity regarding ‘‘substantial
Federal control and responsibility’’
contending that this phrase is
ambiguous and confusing. Another
commenter argued that Congress made a
significant change to the definition of
‘‘major Federal action’’ in section
111(10) of NEPA in using the phrase
‘‘substantial Federal control and
responsibility’’ over the action the
agency is carrying out, instead of
adopting the definition of ‘‘major
Federal action’’ from the 1978
regulations, ‘‘actions with effects which
are potentially subject to Federal control
and responsibility’’ or the 2020
regulations ‘‘Federal control and
responsibility.’’ This commenter argued
the use of ‘‘substantial’’ by Congress
further limits the definition of ‘‘major
Federal action’’ and therefore NEPA’s
applicability generally. Several other
commenters agreed with this premise
and suggested the intention of the NEPA
amendments was to narrow the
application of NEPA. Other commenters
asked CEQ to define the term
‘‘substantial’’ in the context of the
definition.
CEQ disagrees that ‘‘substantial
Federal control and responsibility’’
applies in a more limited manner than
‘‘Federal control and responsibility.’’
Substantial modifies Federal control
and responsibility and indicates that a
large amount, but not complete, control
and responsibility is required for an
action to be a major Federal action. This
interpretation is consistent with
Supreme Court precedent interpreting
the meaning of substantial in various
statutes. See, e.g., Ayestas v. Davis, 584
U.S., 28, 45 (2018); Life Technologies
Corp. v. Promega Corp., 580 U.S. 140,
145–46 (2017); Virginia v. Hicks, 539
U.S. 113, 119–20, 122–24 (2003). CEQ
interprets substantial Federal control
and responsibility to mean the agency
has a large amount of control and
responsibility over the action the agency
is carrying out but not complete control
over the action or its effects. The phrase
‘‘substantial Federal control and
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responsibility’’ could, therefore, be
interpreted to capture a broader set of
actions than the phrase in the absence
of the word ‘‘substantial,’’ because
‘‘Federal control and responsibility’’
unqualified could be read to require
complete control and responsibility.
Contrary to the commenters’ assertion,
the phrase ‘‘substantial Federal control
and responsibility’’ does not require a
narrower scope for the term major
Federal action than the phrase ‘‘Federal
control and responsibility.’’
CEQ notes that the phrase
‘‘substantial Federal control and
responsibility’’ in section 111(10)
applies to the actions an agency is
carrying out. 42 U.S.C. 4336e(10)(A). In
most cases, agencies exercise control
and responsibility over the actions they
carry out, unless those actions are nondiscretionary. CEQ declines to define
‘‘substantial’’ in the final rule but will
consider whether to issue guidance in
the future and will assist agencies in
evaluating circumstances in which the
agency carries out an action but lacks
complete control and responsibility for
it.
CEQ revises the introductory
paragraph of the definition of ‘‘major
Federal action’’ in § 1508.1(w) as
proposed because the text aligns with
the definition of ‘‘major Federal action’’
in section 111(10) of NEPA. 42 U.S.C.
4336e(10). The determination of
whether an activity or decision is a
major Federal action is a fact-specific
analysis that agencies have long engaged
in, and they should continue to exercise
judgment as they evaluate the contexts
in which they operate. The regulations
provide a list of example activities and
decisions in § 1508.1(w)(1) to assist
agencies in making these
determinations.
Second, CEQ proposed to reorder and
revise the definition to first list the
examples of activities or decisions that
may be included in the definition of
‘‘major Federal action’’ before the
exclusions. To that end, CEQ proposed
to move paragraph (q)(3) of 40 CFR
1508.1 (2020) to proposed paragraph
(u)(1), and revise ‘‘tend to fall within
one of the following categories’’ to read
‘‘generally include.’’
Several commenters opposed the
proposed list of example activities or
decisions that meet the definition of
‘‘major Federal action’’ and
recommended the final rule retain only
the exclusions set forth in section
111(10) of NEPA. The commenters
argued that these examples go beyond
the text of NEPA, subvert Congressional
intent, and limit an agency’s ability to
make case-by-case determinations.
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Other commenters expressed support
for the list of examples.
CEQ considered the range of
comments on the definition of ‘‘major
Federal action’’ and determined that
providing both examples of activities or
decisions that typically meet the
definition of ‘‘major Federal action’’ as
well as exclusions from the definition
strikes the right balance to help agencies
as they make case-by-case factual
determinations of whether an action
qualifies as a major Federal action and
for consistency with section 111(10).
See 42 U.S.C. 4336e(10). To provide
additionally clarity that this is a factspecific, case-by-case determination,
CEQ moves paragraph (q)(3) of 40 CFR
1508.1 (2020) to § 1508.1(w)(1) in the
final rule, revises it consistent with the
proposal, and adds an introductory
clause, ‘‘[e]xamples of’’ before ‘‘major
Federal actions generally include’’ to
the beginning of the paragraph to make
clear that this is a list of example
activities and decisions that may meet
the definition of ‘‘major Federal action.’’
Third, CEQ proposed to strike
paragraph (q)(2) of 40 CFR 1508.1 (2020)
and replace it with proposed paragraph
(u)(1)(i) to include the granting of
authorizations such as permits, licenses,
and rights-of way. CEQ proposed to
strike the examples in paragraph (q)(2)
40 CFR 1508.1 (2020) because the
proposed example addresses regulated
activities, and the other examples are
redundant to those listed in proposed
paragraphs (u)(1)(ii) through (u)(1)(vi).
CEQ did not receive any comments
specific to this proposal. CEQ strikes
paragraph (q)(2) of 40 CFR 1508.1 (2020)
in the final rule and replaces it in
§ 1508.1(w)(1)(i) with the language as
proposed.
Fourth, CEQ proposed to redesignate
paragraphs (q)(3)(i) through (q)(3)(iv) of
40 CFR 1508.1 (2020) as proposed
paragraphs (u)(1)(ii) through (u)(1)(v).
CEQ did not receive any comments
specific to this proposal. In the final
rule, CEQ redesignates paragraphs
(q)(3)(i) through (q)(3)(iv) of 40 CFR
1508.1 (2020) as § 1508.1(w)(3)(i)
through (w)(3)(iv), respectively.
Fifth, in paragraph (u)(1)(iv), CEQ
proposed to change the phrase
‘‘connected agency decisions’’ to
‘‘related agency decisions’’ to clarify
that the concept in this paragraph is not
meant to refer to ‘‘connected actions’’ as
discussed in § 1501.3. CEQ proposed
this as a non-substantive, clarifying
change to avoid any confusion with
connected actions. CEQ did not receive
specific comments on this proposed
change and revises this provision as
proposed in § 1508.1(w)(1)(iv).
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Sixth, CEQ proposed to revise
paragraph (u)(1)(v) to change ‘‘approval
of’’ to ‘‘carrying out’’ specific projects to
address projects carried out directly by
a Federal agency. CEQ proposed to
strike ‘‘located in a defined geographic
area’’ from the example of management
activities; while this is merely an
example, CEQ is concerned it could be
read as limiting. CEQ also proposed to
strike the sentence regarding permits
and address them in the example in
proposed paragraph (u)(1)(i).
One commenter requested removal of
the term ‘‘carrying out,’’ asserting that
CEQ has not shown that carrying out
construction activities constitutes major
Federal action. In the final rule, CEQ
retains the example in § 1501.8(w)(1)(v)
and adds ‘‘or carrying out’’ after
‘‘[a]pproval of’’ rather than replacing it
because the phrase ‘‘carrying out’’ is
consistent with section 111(10) of
NEPA, which includes the phrase ‘‘the
agency carrying out such action.’’ 42
U.S.C. 4336e(10)(A). CEQ also adds
‘‘agency’’ before ‘‘projects’’ to
distinguish this example from nonFederal projects. Because this is a list of
examples and both approving or
carrying out construction projects can
be major Federal actions, CEQ includes
both in the final rule. For example, an
agency may approve construction of a
Federal facility and then contract out
with another entity to actually carry out
that construction.
Seventh, CEQ proposed to add a new
example in proposed paragraph
(u)(1)(vi) to improve clarity and ensure
appropriate application of NEPA by
explaining when Federal financial
assistance is a major Federal action.
Generally, actions to provide Federal
financial assistance, other than actions
that provide only minimal Federal
funding, are major Federal actions so
long as the Federal agency has authority
and discretion over the financial
assistance in a manner that could
address environmental effects from the
activities receiving the financial
assistance. In such circumstances, the
agency has sufficient control and
responsibility over the use of the funds
or the effects of the action for the action
providing financial assistance to
constitute a major Federal action
consistent with the definition in section
111(10) of NEPA. 42 U.S.C.
4336e(10)(A). This includes
circumstances where the agency could
deny the financial assistance, in whole
or in part, due to environmental effects
from the activity receiving the financial
assistance, or could impose conditions
on the financial assistance that could
address the effects of such activity.
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Several commenters contended that
CEQ’s proposal to include financial
assistance as an example of a major
Federal action in proposed paragraph
(u)(1)(vi) is inconsistent with the
statutory definition of ‘‘major Federal
action’’ in section 111(10)(B) of NEPA.
The commenters stated that the
proposed language is overly broad and
could cover too many Federal loan or
grant programs. One commenter
asserted that this language ‘‘could cover
virtually any Federal grant or loan
program, including ones that are not
currently subject to NEPA.’’ Another
commenter asserted that financial
assistance should never be considered a
major Federal action.
CEQ disagrees that the examples of
how an agency may exercise ‘‘sufficient
control and responsibility’’ with regard
to financial assistance to meet the
statutory definition of ‘‘major Federal
action’’ are inconsistent with the statute.
The language in paragraph (u)(1)(vi)
provides examples of where financial
assistance meets the definition of
‘‘major Federal action’’ and is not
covered by the exclusion of ‘‘financial
assistance where a Federal agency does
not exercise sufficient control and
responsibility over the subsequent use
of such financial assistance or the effect
of the action.’’ 42 U.S.C.
4336e(10)(B)(iii).
CEQ adds the proposed examples in
the final rule at § 1508.1(w)(1)(vi) with
an additional clause to incorporate the
phrase ‘‘more than a minimal amount’’
into the example to avoid any confusion
about the relationship of the example to
the exclusion in paragraph (w)(2)(i)(A)
and NEPA section 111(10)(B)(ii). CEQ
also makes two editorial corrections to
add the missing word ‘‘to’’ after ‘‘due’’
and repeat the subject ‘‘authority to’’
before ‘‘impose conditions.’’ Except in
circumstances in which an agency
provides minimal Federal funding,
where an agency has substantial control
and responsibility over a recipient’s
environmental effects or sufficient
discretion to consider the
environmental effects when making
decisions, the agency must comply with
NEPA. While an agency can
appropriately tailor the scope of its
NEPA analysis to the environmental
effects that it can take into account in
making its decision, the agency cannot
exclude such actions from NEPA review
altogether.
CEQ disagrees with the assertion that
the example broadens the applicability
of NEPA to financial assistance that is
excluded by section 111(10)(B)(ii) and
§ 1508.1(w)(2)(iii). Rather, the example
describes circumstances in which an
agency exercises sufficient control or
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responsibility over the use of financial
assistance or the effect of the action to
fall outside the exception. In evaluating
whether a particular action qualifies as
a major Federal action consistent with
this example and the exclusion in
§ 1508.1(w)(2)(iii), agencies should
consider the specific circumstances and
legal authorities involved. As with any
NEPA review, where an agency
determines that an action providing
financial assistance constitutes a major
Federal action, the agency should scope
the NEPA review in light of the
statutory and factual context presented.
Other commenters specifically
questioned the inclusion of financial
assistance where the agency ‘‘otherwise
has sufficient control and responsibility
over the subsequent use of the financial
assistance or the effects of the activity
for which the agency is providing the
financial assistance’’ in the example. A
commenter asserted that this phrase’s
breadth and ambiguity could lead to
litigation and recommended narrowing
this flexibility clause to apply only
where the agency ‘‘otherwise has
authority to impose conditions on the
receipt of the financial assistance to
address environmental effects.’’
CEQ declines to make the
commenters’ proposed changes. The
text the commenter addresses reflects
the exclusion in section 111(10)(B)(iii)
of NEPA. See 42 U.S.C.
4336e(10)(B)(iii). CEQ agrees that
authority to impose conditions to
address environmental effects, along
with authority to deny in whole or in
part assistance due to environmental
effects, would satisfy the statutory test,
and those situations are identified in the
sentence immediately preceding the text
that is the focus of the comment.
Describing these situations, along with
the remainder of § 1508.1(w)(1)(vi), can
assist agencies in evaluating actions
providing financial assistance, in light
of the relevant statutory authorities and
factual context, to determine if such
action falls within the exclusion in
section 111(10)(B)(iii) of NEPA and
§ 1508.1(w)(2)(iii). In addition to
reflecting the statutory exclusion, this
clause recognizes the varying degrees of
control and responsibility agencies have
over a wide variety of financial
assistance programs, as well as the
agencies’ responsibility to determine the
proper scope of its NEPA review with
regard to such programs.
Eighth, CEQ proposed to replace the
exclusions in paragraphs (q)(1)(i)
through (vi) of 40 CFR 1508.1 (2020)
with the exclusions from the definition
of ‘‘major Federal action’’ codified in
the definition in section 111(10)(B) of
NEPA. See 42 U.S.C. 4336e(10)(B). CEQ
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proposed to include in proposed
paragraph (u)(2)(i), (u)(2)(i)(A), and
(u)(2)(i)(B) the exclusion of non-Federal
actions with no or minimal funding; or
with no or minimal Federal
involvement where the agency cannot
control the outcome of the project
consistent with section 111(10)(B)(i) of
NEPA. CEQ proposed these exclusions
to replace the exclusion in 40 CFR
1508.1(q)(1)(vi) (2020), which CEQ
proposed to strike. CEQ also invited
comment on whether it should add
additional provisions to the regulations
to implement the ‘‘minimal Federal
funding’’ exclusion in proposed
paragraph (u)(2)(i)(A), noting that
agencies currently evaluate the
provision of minimal Federal funding
based on specific factual contexts. CEQ
asked whether additional procedures,
including thresholds related to the
amount or proportion of Federal
funding, could increase predictability
while ensuring that Federal agencies do
not disregard effects to vital components
of the human environment, including
the health of children and vulnerable
populations, drinking water,
communities with environmental justice
concerns, and similar considerations.
CEQ received some comments on the
exclusion for non-Federal actions with
no or minimal Federal involvement
where the Federal agency cannot control
the outcome of the project, which
mirrors the exclusion in section
111(10)(B)(i)(II) of NEPA, and in
response to the request for comment.
One commenter recommended against
setting a threshold, given the factspecific nature of the inquiry. The
commenter expressed concern that
setting a threshold for the amount or
proportion of Federal funding necessary
for agency action to trigger NEPA would
undermine the statute’s emphasis that it
apply to the ‘‘fullest extent possible.’’
The commenter further asserted that the
2023 NEPA amendments, as clarified by
CEQ’s proposed regulations, are
sufficient to provide clarity on the scope
of NEPA’s application, and a threshold
amount is not necessary or useful.
Two commenters recommended that
the regulations establish thresholds for
minimal Federal funding or direct
agencies to establish thresholds in their
NEPA procedures, asserting that clear
thresholds will improve efficiency and
reduce litigation risk. Two other
commenters supported establishing a
threshold for minimum funding and
included suggestions for what that
threshold should be. A couple of
commenters requested CEQ define
‘‘minimum’’ in the context of minimum
funding.
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CEQ strikes 40 CFR 1508.1(q)(1)(vi)
(2020) and adds this exclusion in the
final rule as proposed at
§ 1508.1(w)(2)(i), (w)(2)(i)(A), and
(w)(2)(i)(B). CEQ has considered the
broad range of suggestions to thresholds
it received but has not identified a
threshold that would be appropriate
across the broad range of Federal
programs or that would address CEQ’s
concern about the health of children
and vulnerable populations, drinking
water, communities with environmental
justice concerns, and similar
circumstances. CEQ also notes that there
is limited case law as to what
constitutes ‘‘minimal Federal funding’’
and that the case law that exists does
not define a clear threshold that could
be incorporated into the regulations.
Therefore, agencies should continue to
evaluate whether funding is ‘‘minimal’’
based on the specific factual context of
the proposed action.
CEQ also adds the exclusion for nonFederal actions ‘‘with no or minimal
Federal involvement where a Federal
agency cannot control the outcome of
the project’’ in § 1508.1(w)(2)(i)(B) as
proposed. This provision reinforces the
general rule that major Federal actions
are actions carried out by an agency,
and not non-Federal actions, and that a
non-Federal action does not become a
Federal action due to only minimal
Federal involvement. Note, this
exclusion does not bear on whether an
action undertaken by a Federal agency,
such as issuing a regulatory
authorization or deciding to provide
funding assistance, is a major Federal
action, because in such circumstances
the agency is undertaking an action
itself. There are, however,
circumstances where Federal
involvement in a non-Federal action
does not constitute an action, for
example, where an agency informally
provides a non-Federal party
information that the non-Federal party
considers in developing the non-Federal
action. The provision of the information
may not qualify as an agency action and
the minimal Federal involvement would
not result in the non-Federal action
being considered a Federal action.
Ninth, CEQ proposed to include the
exclusion of funding assistance solely in
the form of general revenue sharing
funds consistent with section
111(10)(B)(ii) of NEPA in proposed
paragraph (u)(2)(ii). See 42 U.S.C.
4336e(10)(B)(ii). CEQ proposed this
exclusion to replace the similar
exclusion in 40 CFR 1508.1(q)(1)(v)
(2020), which CEQ proposed to strike.
CEQ did not receive substantive
comments on this proposed revision.
CEQ strikes 40 CFR 1508.1(q)(1)(v)
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(2020) and adds this exclusion in the
final rule as proposed at
§ 1508.1(w)(2)(ii).
Tenth, CEQ proposed to include the
exclusion of loans, loan guarantees, or
other forms of financial assistance
where a Federal agency does not
exercise sufficient control and
responsibility over the subsequent use
of such financial assistance or the
effects of the action, consistent with
section 111(10)(B)(iii) of NEPA, in
proposed paragraph (u)(2)(iii). See 42
U.S.C. 4336e(10)(B)(iii). CEQ did not
receive substantive comments on this
proposed revision, although as
discussed above, CEQ did receive
related comments on the example about
financial assistance added to paragraph
(w)(1)(vi). CEQ adds this exclusion in
the final rule as proposed at
§ 1508.1(w)(2)(iii).
Eleventh, CEQ proposed to include
the exclusion of certain business loan
guarantees provided by the Small
Business Administration, consistent
with section 111(10)(B)(iv) of NEPA, in
proposed paragraph (u)(2)(iv). See 42
U.S.C. 4336e(10)(B)(iv). CEQ proposed
this exclusion to replace the similar
exclusion in 40 CFR 1508.1(q)(1)(vii)
(2020), which CEQ proposed to strike.
In particular, CEQ proposed to strike the
example in 40 CFR 1508.1(q)(1)(vii) of
farm ownership and operating loan
guarantees by the Farm Service Agency
(FSA) pursuant to 7 U.S.C. 1925 and
1941 through 1949 because CEQ
considered it best left to agencies to
identify exclusions from the definition
of ‘‘major Federal action’’ absent
specific statutory authority like those for
the Small Business Administration loan
guarantees.
Several commenters requested that
CEQ retain the explicit exclusion of FSA
loans and loan guarantees from the
definition of ‘‘major Federal action.’’
These commenters contended that the
loan amounts are low, that activities
funded do not require an agency permit,
and that the agency does not have
sufficient control or authority over the
use of the funds. These commenters
disagreed with CEQ’s explanation that it
is best left to agencies to identify
exclusions from the definition of ‘‘major
Federal action’’ absent specific statutory
authority like those for the Small
Business Administration (SBA) loan
guarantees, arguing that the FSA loans
are clearly outside the statutory
definition, and that CEQ did not provide
sufficient justification for not retaining
the explicit exclusion.
CEQ strikes 40 CFR 1508.1(q)(1)(vii)
(2020) and adds this exclusion in the
final rule as proposed at
§ 1508.1(w)(2)(iv). When Congress
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amended NEPA to provide a definition
of ‘‘major Federal action’’ in section
111(10), it included an exclusion for one
of the two loan guarantee programs
identified in 40 CFR 1508.1(q)(1)(vii)
(2020), excluding business loan
guarantees provided by the Small
Business Administration, but not farm
ownership and operating loan
guarantees by the FSA. 42 U.S.C.
4336e(10)(B)(iv). In light of Congress’s
action, CEQ does not consider it
appropriate to retain the exclusion for
FSA loan guarantees in the NEPA
regulations. FSA, like other agencies
that administer loan and loan guarantee
programs, should evaluate specific
actions providing loans and loan
guarantees to determine if the action
falls within the exclusion in section
111(10) of NEPA and § 1508.1(w)(2)(iii)
and, if appropriate, could address the
applicability of this exclusion to this
program in its NEPA procedures.
CEQ disagrees with the assertion that
providing financial assistance for a nonFederal action cannot constitute a major
Federal action. As discussed earlier,
section 111(10)(B)(iii) of NEPA excludes
financial assistance ‘‘where a Federal
agency does not exercise sufficient
control and responsibility over the
subsequent use of such financial
assistance or the effect of the action.’’ 42
U.S.C. 4336e(10)(B)(iii). This limited
exclusion is inconsistent with treating
actions providing financial assistance
for non-Federal activities as
categorically excluded from the
definition of ‘‘major Federal action.’’
One commenter suggested that if CEQ
does not retain the explicit exclusion for
FSA loans and loan guarantees, CEQ
should clearly explain in the final rule
that it understands that FSA loans and
loan guarantees are the types of loans
and guarantees covered by proposed
paragraph (u)(1)(iv), and that no
additional procedures are necessary to
apply proposed paragraph
1508.1(u)(1)(iv) to the FSA loans and
loan guarantees. CEQ declines to make
these statements. FSA is in the best
position to determine whether its loans
and loan guarantees meet the
requirements for the exclusion
established in § 1508.1 (w)(2)(iii). FSA,
like other agencies administering
financial assistance programs, may
determine whether specific actions
providing financial assistance are major
Federal actions or may address such
programs in their NEPA implementing
procedures.
One commenter requested that CEQ
explicitly indicate that farm operations
funded through FSA loans or subject to
loan guarantees are not excluded from
the definition. Other commenters
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expressed support for CEQ’s proposed
removal of the exclusion but requested
further guidance on when loans and
loan guarantees are actions subject to
substantial Federal control and
responsibility, citing FSA and
Department of Energy programs
specifically.
CEQ disagrees with the commenter
that farm operations by non-Federal
actors are major Federal actions if they
are funded by FSA loans or loan
guarantees. Rather, the question that
FSA, like other agencies, will need to
consider is whether FSA’s action to
provide a loan or loan guarantee is a
major Federal action in consideration of
the exclusion. FSA is in the best
position to determine whether an action
or category of actions by the agency to
provide loan or loan guarantees involve
a circumstance where the agency does
not exercise sufficient control and
responsibility over the subsequent use
of the financial assistance or the effects
and, therefore are excluded.
Finally, one commenter requested
additional guidance regarding the
exclusion of SBA loans. While CEQ
incorporates the statutory exclusion of
certain business loan guarantees
provided by the Small Business
Administration (SBA) into
§ 1508.1(w)(2)(iv), CEQ considers it best
left to SBA, which has expertise with
the statutes it administers, to determine
the applicability of the exclusion to the
specific programs it administers.
Twelfth, CEQ proposed to move,
without change, the exclusions in
paragraphs (q)(1)(iv), (q)(1)(i), and
(q)(1)(ii) of 40 CFR 1508.1 (2020) to
proposed paragraphs (u)(2)(v) through
(u)(2)(vii), respectively because section
111(10)(B)(v) through (vii) of NEPA
codified these exclusions verbatim. See
42 U.S.C. 4336e(10)(B)(v)–(vii).
Specifically, proposed paragraph
(u)(2)(v) would exclude bringing
judicial or administrative civil or
criminal enforcement actions. Proposed
paragraph (u)(2)(vi) would exclude
extraterritorial activities or decisions.
Proposed paragraph (u)(2)(vii) would
exclude activities or decisions that are
non-discretionary.
One commenter requested that CEQ
expand the exclusion in proposed in
paragraph (u)(2)(v) to exclude from
NEPA applicability all judicial
proceedings when an agency joins a
lawsuit. CEQ declines to make this
revision in the final rule, which
incorporates the statutory text and is
consistent with long-standing agency
practice, but agrees with the commenter
that the exclusion encompasses an
agency’s decision to join a lawsuit. In
the final rule, CEQ moves, without
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change, the exclusion for bringing
judicial or administrative civil or
criminal enforcement actions in
paragraph (q)(1)(iv) of 40 CFR 1508.1
(2020) to § 1508.1(w)(2)(v).
A few commenters requested the final
rule remove proposed paragraph
(u)(2)(vi), arguing that it impermissibly
expands the scope of NEPA and is
inconsistent with the statute. CEQ
declines to make this change as the
language in proposed paragraph
(u)(2)(vi) aligns with the text of section
111(10)(B)(vi) of NEPA, 42 U.S.C.
4336e(10)(B)(vi). In the final rule, CEQ
moves, without change, the exclusion
for extraterritorial activities or
decisions, which refers to activities or
decisions with effects located entirely
outside the jurisdiction of the United
States,125 from paragraph (q)(1)(i) of 40
CFR 1508.1 (2020) to
§ 1508.1(w)(2)(vi).126
A few commenters supported the
inclusion of proposed (u)(2)(ii) asserting
that CEQ rightfully excluded nondiscretionary actions from NEPA, as
NEPA is designed to help agencies make
better decisions. In the final rule, CEQ
moves, without change, the exclusion
for non-discretionary activities or
decisions in paragraph (q)(1)(ii) of 40
CFR 1508.1 (2020) to § 1508.1(w)(2)(vii).
As discussed in section II.C.2
addressing § 1501.3, some activities or
decisions may be partially, but not
entirely, non-discretionary, and while
such actions may constitute major
Federal actions under this definition,
the agency may appropriately exclude
the non-discretionary aspects of its
decision from the scope of its NEPA
analysis.
Thirteenth, CEQ proposed to move
the exclusion regarding non-final
agency actions from 40 CFR
1508.1(q)(1)(iii) to § 1508.1(u)(2)(viii)
and make changes for consistency with
section 106(a)(1) of NEPA, 42 U.S.C.
4336(a)(1). CEQ proposed this revision
for consistency with longstanding case
125 CEQ notes that the jurisdiction of the United
States is not limited to the United States’ land
territory. ‘‘For purposes of the presumption against
extraterritoriality, the territorial jurisdiction of the
United States includes its land, internal waters,
territorial sea, the adjacent airspace, and other
places over which the United States has sovereignty
or some measure of legislative control.’’
Restatement (Fourth) of Foreign Relations Law
§ 404 cmt. d (Am. Law Inst. 2019).
126 NEPA statutorily excludes from the definition
of ‘‘major Federal action’’ ‘‘extraterritorial activities
or decisions, which means agency activities or
decisions with effects located entirely outside of the
jurisdiction of the United States.’’ 42 U.S.C.
4336e(10)(B)(vi). However, this exclusion does not
change the scope of environmental effects that
agencies must assess or expand the set of actions
that are subject to NEPA review to extraterritorial
matters that do not have effects within the
jurisdiction of the United States.
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law excluding non-final agency actions
from the definition of ‘‘major Federal
action.’’ Therefore, CEQ proposed to
include the finality of an action as a
threshold consideration as well as an
exclusion from the definition of ‘‘major
Federal action.’’ Upon further
consideration, CEQ considers finality to
be adequately addressed as a threshold
consideration in § 1501.3 and concludes
that both the existing regulatory text and
the proposed revision are confusing.
Therefore, CEQ strikes 40 CFR
1508.1(q)(1)(iii) (2020) in the final rule
and does not add proposed paragraph
(u)(2)(viii). CEQ does not intend this
deletion to have any substantive effect
because § 1501.3 provides that NEPA
does not apply where a proposed
activity or decision is not a final agency
action.
Finally, CEQ proposed a new
exclusion in paragraph (u)(2)(ix) for
activities or decisions for projects
approved by a Tribal Nation that occur
on or involve land held in trust or
restricted status when the activities
involve no Federal funding or other
Federal involvement. CEQ proposed this
exclusion in recognition of the unique
circumstances facing Tribal Nations due
to the United States’ holding land in
trust for them or the Tribal Nation
holding land in restricted status. CEQ
proposed to clarify that activities or
decisions for projects approved by a
Tribal Nation on trust lands are not
major Federal actions where such
activities do not involve Federal
funding or other Federal involvement.
CEQ proposed this exclusion because
Tribal leaders raised this issue during
consultations that CEQ held on its
NEPA regulations and voiced concerns
that the NEPA process placed Tribal
Nations in a disadvantageous position
relative to State and local governments
because of the United States’ ownership
interest in Tribal lands.
A few commenters argued that the
final rule should not include this
exclusion because it was not included
in the recent amendments to NEPA.
Numerous other commenters supported
the exclusion, and a large portion of
those commenters asked that the final
rule expand the exclusion to include
additional actions, activities, or lands.
One commenter asked CEQ to expand
the provision to exclude all Tribal
development from the definition of
‘‘major Federal action.’’ Another
commenter recommended that the
terminology in proposed paragraph
(u)(ix) ‘‘when no such activities or
decisions involve no Federal funding’’
be revised to match the language in
paragraph (2)(i)(A) which states ‘‘[w]ith
no or minimal Federal funding.’’
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CEQ adds the exclusion in the final
rule at § 1508.1(w)(2)(viii), but adds ‘‘or
minimal’’ before ‘‘involvement’’ for
consistency with section 111 of NEPA,
42 U.S.C. 4336e(10)(B). CEQ declines to
make the exclusion broader than this
because it considers the exclusion to
strike the right balance in recognizing
the unique circumstances facing Tribal
Nations and carrying out the purposes
of NEPA. CEQ notes that categories of
activities on trust lands that typically
will not constitute major Federal actions
include the transfer of existing
operation and maintenance activities of
Federal facilities to Tribal groups, water
user organizations, or other entities;
human resources programs such as
social services, education services,
employment assistance, Tribal
operations, law enforcement, and credit
and financing activities not related to
development; self-governance compacts
for Bureau of Indian Affairs programs;
service line agreements for an
individual residence, building, or well
from an existing facility where
installation will involve no clearance of
vegetation from the right-of-way other
than for placement of poles, signs
(including highway signs), or buried
power/cable lines; and approvals of
Tribal regulations or other documents
promulgated in exercise of Tribal
sovereignty, such as Tribal Energy
Resource Agreements, certification of a
Tribal Energy Development
Organization, Helping Expedite and
Advance Responsible Tribal
Homeownership Act Tribal regulations,
Indian Trust Asset Reform Act Tribal
regulations and trust asset management
plans, and Tribal liquor control
ordinances.
One commenter asked CEQ to clarify
if the proposed exclusion would extend
to activities or projects that are
approved by Tribal Nations and focused
entirely on managing, accessing, or
protecting resources or sites on Federal
land that is not held in trust but to
which the Tribe has reserved rights.
CEQ declines to make this change.
Because of the diversity of statutory,
treaty, and factual considerations that
can be involved, determining whether
such circumstances involve a major
Federal action is appropriately left to
the administering agency.
One commenter requested the
proposed provision be expanded to
include any grant funding awarded to a
Tribe. CEQ declines to make this change
as section 111(10) of NEPA sets the
standard for when actions to provide
financial assistance, including grants,
constitute a major Federal action. See 42
U.S.C. 4336e(10).
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Other commenters requested the
proposed exclusion be expanded to
include certain contracts, cooperative
agreements, and similar funding
vehicles authorizing the transfer of
Federal funding to a Tribe for carrying
out Federal programs. CEQ declines to
make this change due to the complexity
and numerosity of these arrangements
but notes that the agencies that
administer these programs could
consider whether to include provisions
addressing these programs in their
NEPA procedures.
One commenter argued the proposed
exclusion is impermissibly narrow, and
the final rule should exclude entire
categories of actions in the rule text.
CEQ declines to make this change as
agencies are in a better position to
consider the legal and factual
circumstances for their actions either on
a case-by-case basis or through their
agency NEPA procedures.
Several commenters asked for
clarification of the term ‘‘other Federal
involvement.’’ One commenter
suggested defining it as any proposed
Federal permits or other Federal
approvals. Other commenters suggested
‘‘other Federal involvement’’ be defined
as any proposed Federal permits or
other Federal approvals on Tribal lands
or ceded lands. CEQ declines to further
define the term as agencies
administering programs are best situated
to consider the factual and legal
contexts in which they operate to
determine whether there is other
Federal involvement that would make
application of this exclusion
inappropriate.
17. Mitigation (§ 1508.1(y))
CEQ proposed three edits to the
definition of ‘‘mitigation’’ in proposed
paragraph (w). First, CEQ proposed to
change ‘‘nexus’’ to the more commonly
used word ‘‘connection’’ to describe the
relationship between a proposed action
or alternatives and any associated
environmental effects. CEQ did not
receive comments specific to this
proposed change and makes this
revision in the final rule at § 1508.1(y).
Second, CEQ proposed to delete the
sentence that NEPA ‘‘does not mandate
the form or adoption of any mitigation’’
because this sentence was unnecessary
and could mislead readers because it
does not acknowledge that agencies may
use other authorities to require
mitigation or may incorporate
mitigation in mitigated FONSIs
(§ 1501.6) and RODs (§ 1505.2).
CEQ received comments that both
supported and opposed the removal of
this language from the definition of
‘‘mitigation.’’ Supportive commenters
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agreed with the approach CEQ proposed
in the definition because it is consistent
with established mitigation practices
and because they were generally
supportive regarding the prioritization
listed. Opponents generally questioned
the effect of this removal, suggesting it
contradicts the Supreme Court’s holding
in Robertson v. Methow Valley Citizens
Council that NEPA does not require
agencies to mitigate adverse effects. CEQ
disagrees with the commenters’
assertions regarding Methow Valley, as
discussed further in section II.G.2 and
the Phase 2 Response to Comments.
CEQ removes this language from the
final rule consistent with the proposal.
Third, CEQ proposed to add the
clause ‘‘in general order of priority’’ to
the sentence, ‘‘Mitigation includes’’
which introduces the list of mitigation
types. CEQ proposed this change to
clarify that the types of mitigation
provided in proposed paragraphs (u)(1)
though (u)(5) are listed in general order
of priority, consistent with the familiar
‘‘mitigation hierarchy.’’ 127 This list was
prioritized in the 1978 regulations with
avoidance coming before other types of
mitigation and the proposed addition
highlights that intent, which is
consistent with longstanding agency
practice.128
127 See e.g., U.S. Dep’t of the Interior, A Strategy
for Improving the Mitigation Policies and Practices
of the Department of the Interior (Apr. 2014),
https://www.doi.gov/sites/doi.gov/files/migrated/
news/upload/Mitigation-Report-to-the-Secretary_
FINAL_04_08_14.pdf at 2–3 (discussing the
development of a ‘‘mitigation hierarchy’’—which
starts with avoidance—in the implementation of
NEPA and the Clean Water Act); Bureau of Land
Mgmt., H–1794–1, Mitigation Handbook (P) (Sept.
22, 2021), https://www.blm.gov/sites/default/files/
docs/2021-10/IM2021-046_att2.pdf at 2–1 (citing
CEQ regulations and noting that the ‘‘five aspects
of mitigation (avoid, minimize, rectify, reduce/
eliminate, compensate) are referred to as the
mitigation hierarchy because they are generally
applied in a hierarchical manner’’); U.S. Env’t Prot.
Agency & U.S. Dep’t of Def., Memorandums of
Agreement (MOA); Clean Water Act Section
404(b)(1) Guidelines; Correction, 55 FR 9210, 9211
(Mar. 12, 1990) (noting that under section 404 of the
Clean Water Act, the Army Corps of Engineers
evaluates potential mitigation efforts sequentially,
starting with avoidance, minimization, and then
compensation).
128 See, e.g., 10 CFR 900.3 (defining a regional
mitigation approach under NEPA as ‘‘an approach
that applies the mitigation hierarchy (first seeking
to avoid, then minimize impacts, then, when
necessary, compensate for residual impacts)’’);
Presidential Memorandum, Mitigating Impacts on
Natural Resources From Development and
Encouraging Related Private Investment, 80 FR
68743, 68745 (Nov. 6, 2015) (addressing five
agencies and noting that, ‘‘[a]s a practical matter,
[mitigation is] captured in the terms avoidance,
minimization, and compensation. These three
actions are generally applied sequentially . . . .’’);
Fed. Highway Admin., NEPA and Transportation
Decisionmaking: Questions and Answers Regarding
the Consideration of Indirect and Cumulative
Impacts in the NEPA Process, https://
www.environment.fhwa.dot.gov/nepa/
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Some commenters supported the
added language clarifying the general
order of priority for mitigation.
Supportive commenters stated this
language is consistent with established
mitigation practices and asserted that it
will encourage agencies to avoid
adverse effects rather than try to rectify
or compensate for them after they have
occurred. Other commenters opposed
the added language, stating that
agencies may not in all cases have
authority to avoid adverse effects, and
that providing a rigid prioritization fails
to guide agencies to consider the full
range of mitigation opportunities.
CEQ adds the clause ‘‘in general order
of priority’’ to the definition in the final
rule. CEQ uses the qualifier ‘‘in general’’
to provide flexibility and acknowledge
that such prioritization will not apply to
every situation. Further, the language
does not prohibit agencies from
applying the elements of the mitigation
hierarchy out of order when they
determine it is appropriate to do so, and
CEQ encourages agencies to consider
the full range of mitigation
opportunities before deciding on an
appropriate mitigation approach.
Some commenters asserted that CEQ
has ‘‘concealed’’ its prioritization by
placing it in the definitions section of
the regulations. CEQ disagrees that
placing this language in the definitions
conceals it and CEQ notes that the
definitions are essential elements of the
NEPA regulations. Further, the
definition of ‘‘mitigation,’’ including
discussion of the categories of
mitigation, has been in the regulations
since 1978. Therefore, this is a logical
place in the regulations for agencies or
the public to look for text addressing the
categories of mitigation.
Some commenters provided specific
feedback on compensatory mitigation,
including some that expressed concern
that it can be ineffective. One
commenter asserted that some agencies
are prohibited from requiring
compensatory mitigation. Another
commenter requested CEQ clarify that
agencies may rely on third-party
mitigation or restoration providers to
carry out compensatory mitigation.
CEQ declines to make additional edits
to the definition of ‘‘mitigation.’’
Agencies must identify the authority for
any mitigation that they rely on in their
analysis, and agencies should not rely
on mitigation absent the authority to
ensure that the mitigation is performed.
Because NEPA requires agencies to
QAimpact.aspx (describing the importance of
‘‘sequencing,’’ which refers to the process of
prioritizing avoidance and minimization of effects
over replacement or compensation for NEPA
mitigation efforts).
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consider mitigation, not implement it,
CEQ defers to agencies regarding the
appropriate use of compensatory
mitigation, third-party mitigation, or
restoration providers.
One commenter requested that CEQ
establish a preference for mitigation that
is practicable, effective, and as
minimally disruptive to a proposed
project as possible. CEQ agrees that
mitigation measures should be
practicable and effective, but considers
these requirements to be clear from the
regulations as a whole and do not need
to be reiterated in the definition.
Finally, CEQ makes two additional
clarifying edits. First, CEQ adds
‘‘adverse’’ to modify ‘‘effects’’ in each
instance it is used in the definition of
‘‘mitigation’’ to clarify that mitigation
addresses adverse effects, not beneficial
effects, and for consistency with the
definition of ‘‘significant effects,’’ which
is defined as adverse effects. Second,
CEQ changes ‘‘effects’’ to ‘‘the adverse
effect’’ in paragraph (y)(2) for
consistency with paragraphs (y)(1) and
(y)(3) through (y)(5), which all use the
singular of effect.
18. Notice of Intent (§ 1508.1(aa))
CEQ proposed to modify the
definition of ‘‘notice of intent’’ to
include EAs, as applicable. CEQ
proposed this change for consistency
with § 1501.5(j), which provides that
agencies may issue an NOI for an EA
where it is appropriate to improve
efficiency and effectiveness, and
§ 1501.10(b)(3)(iii), which sets forth one
of the three potential starting points
from which deadlines are measured for
EAs consistent with section
107(g)(1)(B)(iii) of NEPA, 42 U.S.C.
4336a(g)(1)(B)(iii).
One commenter recommended the
final rule clarify whether the addition of
EA to the proposed definition requires
an NOI for EAs, and if so, noted that this
would be a new requirement. Another
commenter similarly stated that
including an EA in the definition will
cause confusion over whether an NOI is
required for an EA, and asserted that it
clearly is not.
CEQ adds ‘‘environmental
assessment’’ to the definition of ‘‘notice
of intent’’ for consistency with
§§ 1501.5(j) and 1501.10(b)(3), but
moves the qualifier ‘‘as applicable’’ to
precede ‘‘environmental assessment’’ to
make clear that the regulations do not
require agencies to issue an NOI for an
EA, but provide them the discretion to
do so.
19. Page (§ 1508.1(bb))
CEQ proposed to modify the
definition of ‘‘page’’ for consistency
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with section 107(e) of NEPA, 42 U.S.C.
4336a(e), to exclude citations from the
definition of ‘‘page’’ and therefore the
page limits for EISs and EAs. To
facilitate better NEPA documents, CEQ
proposed to retain the exclusions for
maps, diagrams, graphs, tables, and
other means of graphically displaying
quantitative or geospatial information
from the definition of ‘‘page.’’ While
agencies could move these visual
representations of information to
appendices, which could come at the
end of an EIS or the end of EIS chapters,
CEQ expressed concern that this will
make the documents less
understandable and useful to decision
makers and the public. Further, such
graphical displays themselves could be
considered appendices consistent with
the ordinary definition of appendix as
‘‘supplementary material usually
attached at the end of a piece of
writing.’’ 129
Multiple commenters supported the
proposed definition of ‘‘page,’’
specifically asserting that the listed
exclusions will help agencies integrate
those types of information into the body
of an EA or EIS without affecting the
document’s page limit and asserting that
inclusion of these elements in the body
of an EA or EIS provide a more readable
and accessible document. Conversely,
several commenters opposed the
exclusion of certain elements from the
definition of ‘‘page,’’ except for citations
and appendices as provided for in
section 107(e) of NEPA. These
commenters assert that the proposed
exclusion of other items—maps,
diagrams, graphs, and tables—
circumvents Congress’ intent to
mandate strict page limits, and that
these items should be included in the
definition of ‘‘page’’ and be subject to
the page limit. They also asserted that
the exclusion of these elements from the
page count results in environmental
documents that are longer, more
complex, and more difficult for the
public and decision makers to
understand.
NEPA does not define the term
‘‘page,’’ but rather provides, in section
107(e), that each type of environmental
document ‘‘shall not exceed [the
specified number of] pages, not
including any citations or appendices.’’
42 U.S.C. 4336a(e). When Congress
enacted this language in 2023, it had
before it the CEQ regulations, which
define ‘‘page’’ as excluding
‘‘explanatory maps, diagrams, graphs,
tables, and other means of graphically
displaying quantitative or geospatial
129 See Appendix, Merriam-Webster, https://
www.merriam-webster.com/dictionary/appendix.
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35549
information.’’ Had Congress intended to
eliminate these regulatory exclusions
from the definition of ‘‘page,’’ it could
have done so by providing a contrary
definition of ‘‘page’’ in section 111 of
NEPA, 42 U.S.C. 4336e. Instead,
Congress chose to leave the term ‘‘page’’
undefined, therefore leaving CEQ’s
definition undisturbed, while separately
specifying that the page limits of section
107(e) would exclude two additional
elements that were not specifically set
forth in the 2020 regulatory definition—
citations and appendices. See 42 U.S.C.
4336a(e). Therefore, CEQ’s continued
use of a regulatory definition based on
the one promulgated in 2020 does not
circumvent, but rather complements,
the statutory exclusion for citations and
appendices.
CEQ disagrees that the proposed
definition of ‘‘page’’ contradicts section
107(e) of NEPA or will make more
documents more complex and difficult
to understand. Rather, CEQ considers
the flexibility to include additional
visual elements in environmental
documents will reduce the complexity
of environmental documents by making
the content easier to understand for the
public and decision makers and
facilitate the delivery of clearer and
more useful documents. Agencies
should limit the visual elements in the
body of the document to those that
enhance comprehensibility and place
additional information in appendices, in
keeping with the general principles CEQ
has set forth regarding clear and concise
writing in NEPA documents.
20. Participating Federal Agency
(§ 1508.1(dd))
CEQ proposed to add a definition of
‘‘participating Federal agency’’ to
proposed paragraph (bb) and define it to
mean ‘‘a Federal agency participating in
an environmental review or
authorization of an action’’ consistent
with the definition of the same term in
section 111(8) of NEPA. 42 U.S.C.
4336e(8). CEQ did not receive any
substantive comments on the definition
of ‘‘participating Federal agency’’ and
finalizes it in § 1508.1(dd) as proposed.
21. Programmatic Environmental
Document (§ 1508.1(ee))
CEQ proposed to add a definition of
‘‘programmatic environmental
document’’ to proposed paragraph (cc)
and define it consistent with the
definition of the same term in section
111(11) of NEPA, 42 U.S.C. 4336e(11).
One commenter asserted that
‘‘programmatic’’ is not well defined in
the proposed rule, stating that neither
§ 1501.11 or the proposed definition of
‘‘programmatic environmental
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document’’ provide a clear way to
distinguish between programmatic and
non-programmatic analyses. The
commenter described that the essential
characteristic of a programmatic
document includes some aspect of the
decision that is deferred.
CEQ adds a definition of
‘‘programmatic environmental
document’’ at § 1508.1(ee) consistent
with the proposal and declines to
modify it as the commenter suggests
because the uses of programmatic
environmental documents are addressed
in § 1501.11, as discussed in section
II.C.10 and in the Phase 2 Response to
Comments.
22. Reasonable Alternatives
(§ 1508.1(hh))
CEQ did not propose revisions to the
definition of ‘‘reasonable alternatives’’
but received comments on the existing
definition. Commenters requested
guidance on the meaning of ‘‘technically
and economically feasible,’’ and one
commenter requested the regulations
direct agencies to consult with project
sponsors to determine economic and
technical feasibility. Some commenters
requested that CEQ use the Forty
Questions guidance as a starting point
for additional clarity on technical and
economic feasibility, specifically
referencing the description that
technical and economic feasibility must
be based on common sense rather than
a project proponent’s preferences.
One commenter requested guidance
on how to identify and evaluate
reasonable alternatives and include
clear criteria and examples for defining
and selecting reasonable alternatives,
such as feasibility, cost, effectiveness,
and public acceptability. One
commenter asserted that the regulations
should not define ‘‘reasonable
alternatives’’ as a ‘‘reasonable range of
alternatives’’ because the language
‘‘reasonable range’’ suggests that
agencies do not have to consider all
reasonable alternatives. The commenter
asserted that Federal courts have long
held that NEPA requires agencies to
consider all reasonable alternatives, and
that an agency’s failure to consider a
reasonable alternative is fatal to an
agency’s NEPA analysis. The
commenter further expressed that
‘‘reasonable range of alternatives’’ is
ambiguous.
CEQ does not make revisions to the
definition of ‘‘reasonable alternatives’’
in § 1508.1(hh). CEQ will consider
whether to issue additional guidance
but notes that agencies have long used
the Forty Questions to assist them in
identifying alternatives. With respect to
the phrase ‘‘reasonable range,’’ CEQ
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disagrees that agencies must consider
‘‘all’’ reasonable alternatives or that the
case law requires this. In some
circumstances, there could be a limitless
number of reasonable alternatives to a
proposed action, with each alternative
including slight changes to the action.
NEPA does not require agencies to
evaluate all such alternatives, but rather,
a reasonable range of alternatives to
inform decision makers and the public.
Agencies must consider a reasonable
range of alternatives that facilitates the
comparison of effects and helps inform
the decision maker and the public.
Further, the regulations have long
provided that agencies should discuss
alternatives that they dismiss from
detailed analysis and explain their
rationale.
22. Reasonably Foreseeable (§ 1508.1(ii))
CEQ did not propose to revise the
definition of ‘‘reasonably foreseeable’’
but received comments on the existing
definition. A few commenters described
the definition as vague, subject to
manipulation, and inconsistent with
case law and Congressional intent.
Some commenters suggested edits to the
definition, such as adding that an effect
is ‘‘reasonably foreseeable’’ when an
agency can conclude with a high degree
of confidence that the effect is more
likely than not to occur. Some
commenters asked for more clarity on
how certain industries might meet the
reasonably foreseeable standard, or
suggested that what constitutes
reasonably foreseeable, or a person of
ordinary prudence, is subjective.
Relatedly, another commenter stated
that agency decision makers have access
to knowledge, skills, resources, and
statutory duties not applicable to a
person of ordinary prudence. The
commenter recommended CEQ replace
‘‘person of ordinary prudence’’ with
‘‘prudent agency decision maker.’’
CEQ declines to make change to the
definition of ‘‘reasonably foreseeable’’
and finalizes it in § 1508.1(ii) as
proposed. Regarding additional
qualifiers or concerns that the definition
is subjective, CEQ declines additional
changes because the application of
reasonably foreseeable is influenced by
the context of the proposed action.
Inherent in the application of
reasonably foreseeable is the concept
that Federal agencies are not required to
‘‘foresee the unforeseeable’’ or engage in
speculative analysis. Agencies must
forecast to the extent they can do so
either quantitatively or qualitatively
within a reasonable range. Further, the
term ‘‘reasonably foreseeable’’ is
consistent with the ordinary person
standard—that is, what a person of
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ordinary prudence would consider in
reaching a decision. CEQ is unaware of
any practical challenges or confusion
that has arisen from connecting this
definition to the ordinary person, or
circumstances where an agency has
excluded analysis of an effect that the
agency views as reasonably foreseeable
because an ordinary person would not.
Changing the regulatory text could
create uncertainty as agencies and
courts consider what, if any,
implications the change would have,
and CEQ considers creating that
uncertainty unnecessary.
23. Scope (§ 1508.1(kk))
CEQ proposed to expand the
definition of ‘‘scope’’ to include EAs
and revise the definition to include both
the range and breadth of the actions,
alternatives, and effects to be considered
in an EIS or EA, consistent with CEQ’s
proposal to relocate the discussion of
scope in § 1501.3(b). CEQ also proposed
to strike the last sentence regarding
tiering because it was not definitional
language and was unnecessary because
this concept is more addressed in
§ 1501.11.
One commenter expressed support for
the proposed definition of ‘‘scope,’’
asserting it strengthens EAs and EISs.
CEQ revises the definition of ‘‘scope’’ in
§ 1501.8(kk) as proposed. As discussed
further in section II.C.2, agencies have
long examined the scope of their actions
to determine what alternatives and
effects they must analyze. This is a factspecific analysis that agencies undertake
informed by their statutory authority
and control and responsibility over the
activity. Other comments regarding
scope are further discussed in section
II.C.2 and the Phase 2 Response to
Comments.
24. Significant Effects (§ 1508.1(mm))
CEQ proposed to add a definition for
‘‘significant effects’’ to define those
effects that are central to determining
the appropriate level of review in the
NEPA process. CEQ proposed the
definition to align with the restoration
of the context and intensity factors for
determining significance in § 1501.3(d).
CEQ proposed to define ‘‘significant
effects’’ as adverse effects identified by
an agency as significant, based on the
criteria set forth in § 1501.3(d), to clarify
that beneficial effects are not significant
effects as the phrase is used in NEPA
and, therefore, do not require an agency
to prepare an EIS. CEQ proposed this as
an alternative approach to that taken by
the proposal in § 1501.3(d)(2)(i) where
an action ‘‘does not’’ require an EIS
when it would result only in significant
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beneficial effects and invited comment
on which approach is preferred.
One commenter supported a
standalone definition of ‘‘significant
effects’’ but expressed concern that only
including adverse effects could create
confusion over how agencies assess
which effects are truly beneficial and
from whose perspective. Other
commenters asserted that the limitation
of significant effects to adverse effects,
in conjunction with proposed
§ 1501.3(d)(2)(i) to only require an EIS
for significant adverse effects, is
unlawful and contrary to NEPA’s policy.
These commenters asserted that NEPA
requires an environmental review if an
action’s effects are significant,
regardless of whether those effects are
exclusively beneficial, and requested
that the final rule remove ‘‘adverse’’
from the definition. A few commenters
supported the proposed definition for
varying reasons, including because it is
straightforward and because it will help
encourage streamlined processes by
reducing the need for EISs.
Regarding CEQ’s request for comment
on the preferred approach—proposed
§ 1501.3(d)(2)(i) or proposed
§ 1508.1(kk)—one commenter
recommended the final rule include
both provisions because the definition
serves to strengthen the concept that
NEPA analyses should focus on actions
with adverse effects. Another
commenter preferred proposed
§ 1501.3(d)(2)(i), asserting it provides
stronger guidance for agencies.
CEQ adds the definition of
‘‘significant effects’’ as proposed in
§ 1508.1(mm), and CEQ revises
§ 1501.3(d) for greater clarity on this
approach as discussed in section II.C.2.
This approach means that an agency
does not need to prepare an EIS if a
proposed action’s effects are exclusively
beneficial. However, irrespective of the
level of NEPA review, agencies still
need to analyze both adverse and
beneficial effects in NEPA documents if
they are reasonably foreseeable.
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25. Tiering (§ 1508.1(oo))
CEQ proposed to revise the definition
of ‘‘tiering’’ to cross reference the
process as set forth in § 1501.11. CEQ
proposed this revision to avoid any
potential inconsistencies between the
definition and the provisions of
§ 1501.11. CEQ did not receive any
comments on the proposed definition of
‘‘tiering’’ and revises it as proposed in
§ 1508.1(oo). Other comments regarding
the application of tiering are discussed
in section II.C.10 and the Phase 2
Response to Comments.
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III. Rulemaking Analyses and Notices
A. Executive Order 12866, Regulatory
Planning and Review
E.O. 12866, as supplemented and
affirmed by E.O. 13563 and amended by
E.O. 14094, provides that the Office of
Information and Regulatory Affairs
(OIRA) will review all significant
rules.130 This final rule is a significant
regulatory action under section 3(f)(1) of
E.O. 12866, as amended by E.O. 14094,
that CEQ submitted to OIRA for review.
The changes in the final rule will
improve the CEQ regulations to benefit
agencies and the public. Furthermore,
an effective NEPA process can save time
and reduce overall project costs by
providing a clear process for evaluating
alternatives and effects, coordinating
agencies and relevant stakeholders
including the public, and identifying
and avoiding problems—including
potential significant effects—that may
occur in later stages of project
development.131 Additionally, if
agencies choose to consider additional
alternatives and conduct clearer or more
robust analyses, such analyses will
improve societal outcomes by
facilitating improved agency decision
making on the whole, even if the NEPA
statute and regulations do not dictate
the outcome of any specific decision.
Because individual cases will vary, the
magnitude of potential costs and
benefits resulting from these changes are
difficult to anticipate, but CEQ has
prepared a qualitative analysis in the
accompanying regulatory impact
analysis (RIA).
CEQ received two comments on the
draft RIA. One commenter stated that
CEQ should include more detailed
explanation of the flaws associated with
the 2020 Rule’s RIA and how the
revised rule rectifies those flaws to
produce net benefits, including by
discussing evidence that suggests the
NEPA process contributes to greater
environmental benefits that the 2020
RIA did not consider; aligning the
explanation of the alternative of
retaining the 2020 Rule, as amended by
the Phase I rulemaking, with guidance
regarding baselines as a scenario with
zero incremental benefits or costs; and
removing any distinction between direct
and indirect benefits or costs to avoid
130 See E.O. 12866, Regulatory Planning and
Review, 58 FR 51735, 51737 (Oct. 4, 1993); E.O.
14094, Modernizing Regulatory Review, 88 FR
21879, 21879–80 (Apr. 11, 2023); E.O. 13563,
Improving Regulation and Regulatory Review, 76 FR
3821, 3822 (Jan. 21, 2011).
131 See generally Cong. Rsch. Serv. R42479, The
Role of the Environmental Review Process in
Federally Funded Highway Projects: Background
and Issues for Congress (2012), https://crsreports.
congress.gov/product/pdf/R/R42479.
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35551
inadvertently downplaying the
proposed rule’s benefits and costs. The
second commenter stated that CEQ
should account for economic impacts of
NEPA-related delays in project
implementation in the RIA, and
provided information on how labor,
procurement, and material costs
increase as a project is delayed.
In response to the first comment, CEQ
has revised the RIA. In response to the
second comment, CEQ acknowledges
that project delays often result in labor,
procurement, and material costs
increases. The revisions to the NEPA
regulations in this final rule will
improve the efficiency and effectiveness
of the NEPA process, and thereby save
time and reduce overall project costs by
providing a clear process for evaluating
alternatives and effects; coordinating
agencies and relevant stakeholders,
including the public, more efficiently;
identifying and avoiding problems that
may occur in later stages of project
development; and reducing litigation.
CEQ provides its detailed analysis in the
accompanying Regulatory Impact
Analysis, which CEQ incorporates by
reference into this 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, Proper Consideration of
Small Entities in Agency Rulemaking,132
require agencies to assess the impacts of
proposed and final rules on small
entities. Under the RFA, small entities
include small businesses, small
organizations, and small governmental
jurisdictions. An agency must prepare
an Initial Regulatory Flexibility
Analysis unless it determines and
certifies that the rule will not have a
significant economic impact on a
substantial number of small entities. See
5 U.S.C. 605(b). This final rule does not
directly regulate small entities. Rather,
the rule applies to Federal agencies and
sets forth the process for their
compliance with NEPA. Accordingly,
CEQ hereby certifies that the rule will
not have a significant economic impact
on a substantial number of small
entities.
One commenter asserted that CEQ
should develop an economic
sustainability plan for the proposed
rule. Another commenter asserted that
CEQ’s statement in the proposed rule
that the rulemaking would not impact
small businesses was insufficient and
that CEQ must prepare a regulatory
132 67
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flexibility plan that describes the impact
of the proposed rule on small entities to
comply with the Small Business
Regulatory Enforcement Fairness Act.
The commenter asserted that the
proposed rulemaking will impact small
businesses, particularly in the mining
industry. For the reasons set forth in
this preamble, CEQ declines to prepare
the requested plan because the final rule
applies to Federal agencies and does not
directly regulate small businesses or
other small entities.
C. National Environmental Policy Act
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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. 11991.133 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.’’ 134 Similarly, in 1986,
while CEQ stated in the final rule that
there were ‘‘substantial legal questions
as to whether entities within the
Executive Office of the President are
required to prepare environmental
assessments,’’ it also prepared a special
EA.135 The special EA issued in 1986
supported a FONSI, and there was no
finding made for the assessment of the
1978 final rule. CEQ also prepared a
special EA and reached a FONSI for the
Phase 1 rulemaking.
The final rule makes it explicit that a
NEPA analysis is not required for
establishing or updating NEPA
procedures, see § 1507.3(b)(3), and CEQ
continues to consider NEPA not to
require a NEPA analysis for CEQ’s
NEPA regulations. See Heartwood v.
U.S. Forest Serv., 230 F.3d 947, 954–55
(7th Cir. 2000) (finding that neither
NEPA or the CEQ regulations required
the Forest Service to conduct an EA or
an EIS prior to the promulgation of its
procedures creating a CE). Nevertheless,
based on past practice, CEQ developed
a draft special EA, has posted it in the
docket, and invited comments in the
proposed rule.
CEQ received two comments on its
compliance with NEPA. The
commenters generally asserted that the
Special EA conducted for this
133 See CEQ, National Environmental Policy
Act—Regulations: Proposed Implementation of
Procedural Provisions, 43 FR 25230, 25232 (June 9,
1978); see E.O. 11991, supra note 29.
134 See CEQ, National Environmental Policy
Act—Regulations: Proposed Implementation of
Procedural Provisions, supra note 133, at 25232.
135 See National Environmental Policy Act
Regulations; Incomplete or Unavailable
Information, supra note 32, at 15619.
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rulemaking was inadequate and not
justified by precedent. One commenter
argued that this rulemaking requires an
EIS because the proposed changes can
reasonably be expected to have a
significant effect on the environment.
The commenter asserted that provisions
allowing the adoption and use of
another agency’s CEs, allowing agencies
to modify their NEPA procedures
without going through the rulemaking
process; and exempting large-scale
power plants from having to prepare an
EIS supported their position. The
commenter also argued that comments
on the rulemaking were not visible to
the public, and therefore did not fulfill
public comment requirements.
CEQ declines to prepare an EIS for the
reasons discussed earlier in this section.
CEQ notes that the first proposed
change noted by the commenter, related
to adopting CEs, implements section
109 of NEPA, which allows such
adoption and use by statute. See 42
U.S.C. 4336c. With respect to the second
proposed change noted by the
commenter, the CEQ regulations have
never required agencies to conduct
rulemaking for the development or
revision of their implementing
procedures, but have always required
agencies to provide public notice and
comment. Further, this final rule does
not specifically address NEPA reviews
for large-scale power plants. Rather the
regulations set the standards for when
agencies must prepare EISs and leaves
the decision of whether an EIS is
required to a case-by-case determination
by the agencies, as has always been the
case. Finally, CEQ notes that, in the
interest of transparency, comments
received on the proposed rule were
posted to the public docket.136
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.137
Policies that have federalism
implications include regulations that
have substantial direct effects on the
States, on the relationship between the
national government and the States, or
on the distribution of power and
responsibilities among the various
levels of government.138 CEQ received
one comment asserting that this
136 See National Environmental Policy Act
Implementing Regulations Revisions Phase 2,
Docket No. CEQ–2023–0003, https://
www.regulations.gov/docket/CEQ-2023-0003.
137 E.O. 13132, Federalism, 64 FR 43255 (Aug. 10,
1999).
138 Id. at 43256.
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rulemaking would impact States, and
requested that CEQ revisit its
conclusion that the rulemaking does not
pose federalism implications. CEQ
disagrees with the commenter. This rule
does not have federalism implications
because it applies to Federal agencies,
not States. CEQ notes that States may
elect to assume NEPA responsibilities
under Federal statutes,139 but States are
further governed by the regulations and
agreements under those programs.
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.140 Such policies include
regulations that have substantial direct
effects on one or more Tribal Nations,
on the relationship between the Federal
Government and Tribal Nations, or on
the distribution of power and
responsibilities between the Federal
Government and Tribal Nations.141 CEQ
has assessed the impact of this final rule
on Indian Tribal governments and has
determined that the rule does
significantly or uniquely affect Tribal
Nations. CEQ engaged in government-togovernment consultation with Tribal
Nations on the Phase 2 rulemaking. As
required by E.O. 13175, CEQ held a
Tribal consultation on the NEPA
regulations generally on September 30,
2021, on this rulemaking on November
12, 2021, prior to the publication of the
NPRM, and on September 6, 2023, and
September 12, 2023, following
publication of the NPRM.142 In addition
to the feedback provided during these
consultation sessions, CEQ received a
number of written comments from
Tribal Nations during the public
comment period, and considered these
written comments in the development
of the final rule.
Several Tribal Nations agreed with
CEQ’s preliminary determination that
the proposed rule significantly or
uniquely affects Tribal Nations. One
Tribal Nation requested that CEQ
acknowledge its written comments as
part of the Tribal consultation process,
and not only as public comments.
Several Tribes also requested additional
consultation with CEQ in the future.
CEQ acknowledges that the written
comments it received from Tribal
Nations constitute part of the Tribal
consultation process in addition to the
139 See,
e.g., 23 U.S.C. 327.
13175, supra note 57, at sec. 5(a).
141 Id. sec. 1(a).
142 Id. sec. 5.
140 E.O.
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public comment process and considered
those comments accordingly. CEQ
appreciates the considerable time and
effort that Tribal Nations invested in
their oral and written comments, which
helped illuminate many aspects of how
NEPA affects Tribal Nations, their lands
and legal rights, and their citizens.
These comments helped CEQ to develop
a better final rule. CEQ plans to
continue to engage in government-togovernment consultation with federally
recognized Tribes and in consultation
with Alaska Native Corporations on the
implementation of its NEPA regulations.
F. Executive Order 12898, Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations and Executive
Order 14096, Revitalizing Our Nation’s
Commitment to Environmental Justice
for All
E.O. 12898 and E.O. 14096 charge
agencies to make achieving
environmental justice part of their
missions, as appropriate and consistent
with applicable law, by identifying,
analyzing, and addressing
disproportionate and adverse human
health and environmental effects
(including risks) and hazards of Federal
activities, including those related to
climate change and cumulative impacts
of environmental and other burdens, on
communities with environmental justice
concerns.143
CEQ has analyzed this final rule and
determined that it will not cause
disproportionate and adverse human
health or environmental effects on
communities with environmental justice
concerns. This rule sets 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 received one comment
requesting that CEQ conduct research
into the effect of immigration on
environmental quality, including on
communities with environmental justice
concerns, and include study of
immigration impacts during NEPA
analysis. CEQ declines to conduct this
research because this rule does not
specifically address issues related to
immigration or make any changes to the
U.S. immigration laws or their
implementing regulations. Any
environmental effects resulting from
specific agency actions related to
immigration would be addressed by
agencies with relevant authorities and
143 E.O. 12898, supra note 8; E.O. 14096, supra
note 22.
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requirements to do so and are not
within the scope of the analysis of this
rulemaking.
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. 13211.144 CEQ has
determined that this rulemaking is not
a ‘‘significant energy action’’ because it
is not likely to have a significant
adverse effect on the supply,
distribution, or use of energy.
CEQ received one comment related to
its compliance with E.O. 13211. The
commenter disagreed with CEQ’s
determination that the proposed rule is
not a ‘‘significant energy action’’ as
described in E.O. 13211, and further
stated that the proposed rulemaking is
incongruous with E.O. 14008, which
directs agencies to deploy their full
capabilities in combating climate
change. The commenter asserted that
the proposed rule will have an effect on
the energy supply that exceeds $100
million and would hamper efforts to
achieve a clean energy transition.
For the reasons set forth in this
preamble, CEQ disagrees that the rule
will hamper efforts to achieve a clean
energy transition or have a significant
effect on the energy supply. To the
contrary, the proposed rule will
facilitate the responsible development
of energy resources, including carbon
pollution-free energy, by promoting
efficient and effective environmental
reviews.
H. Executive Order 12988, Civil Justice
Reform
Under section 3(a) of E.O. 12988,
agencies must review their proposed
regulations to eliminate drafting errors
and ambiguities, draft them to minimize
litigation, and provide a clear legal
standard for affected conduct.145
Section 3(b) provides a list of specific
issues for review to conduct the reviews
required by section 3(a).146 CEQ did not
receive any comments specific to E.O.
12988. CEQ has conducted the review
under E.O. 12988 and determined that
this final rule complies with its
requirements.
I. Unfunded Mandates Reform Act
Section 201 of the Unfunded
Mandates Reform Act of 1995, 2 U.S.C.
144 E.O. 13211, Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use, 66 FR 28355 (May 22, 2001).
145 E.O. 12988, Civil Justice Reform, 61 FR 4729,
4731 (Feb. 7, 1996).
146 Id.
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35553
1531, requires Federal agencies to assess
the effects of their regulatory actions on
Tribal, State, and local governments,
and the private sector to the extent that
such regulations incorporate
requirements specifically set forth in
law. Before promulgating a rule that
may result in the expenditure by a
Tribal, State, or local government, in the
aggregate, or by the private sector of
$100 million, adjusted annually for
inflation, in any 1 year, an agency must
prepare a written statement that assesses
the effects on Tribal, State, and local
governments and the private sector. 2
U.S.C. 1532. CEQ did not receive any
comments related to the Unfunded
Mandates Reform Act.
This final rule applies to Federal
agencies and will not result in
expenditures of $100 million or more
for Tribal, State, and local governments,
in the aggregate, or the private sector in
any 1 year. This action also will not
impose any enforceable duty, contain
any unfunded mandate, or otherwise
have any effect on small governments
subject to the requirements of 2 U.S.C.
1531 et seq.
J. Paperwork Reduction Act
This final rule will 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.
CEQ received one comment related to
the PRA. The commenter disagreed with
CEQ’s preliminary determination that
the proposed rule would not impose
additional burden under the PRA,
stating that the review of proposed
changes to NEPA and future changes to
agency NEPA procedures and guidelines
will impose significant burdens on State
agencies. The commenter also expressed
concern that the proposed changes to
include technical analyses in
appendices does not change or limit the
amount of material that must be
reviewed.
CEQ disagrees with the commenter’s
assertions. General solicitations of
public comments of the sort associated
with the development of agency NEPA
procedures and guidelines or the
publication of a draft environmental
document are not subject to the PRA.
See 5 CFR 1320.3(h)(4), (8) (exempting
from the PRA ‘‘[f]acts or opinions
submitted in response to general
solicitations of comments from the
public, published in the Federal
Register or other publications,
regardless of the form or format thereof,
provided that no person is required to
supply specific information pertaining
to the commenter, other than that
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necessary for self-identification, as a
condition of the agency’s full
consideration of the comment,’’ and
‘‘[f]acts or opinions obtained or solicited
at or in connection with public hearings
or meetings’’). Furthermore, while the
rule clarifies which material agencies
should include in the body of an
environmental document and which
they should include in an appendix, it
does not increase the overall amount of
materials available to States or members
of the public to review, or require States
or members of the public to review
those materials.
List of Subjects in 40 CFR Parts 1500,
1501, 1502, 1503, 1504, 1505, 1506,
1507, and 1508
Administrative practice and
procedure; Environmental impact
statements; Environmental protection;
Natural resources.
Brenda Mallory,
Chair.
For the reasons discussed in the
preamble, the Council on
Environmental Quality amends 40 CFR
chapter V by revising and republishing
subchapter A to read as follows:
■
Chapter V—Council on Environmental
Quality
Subchapter A—National Environmental
Policy Act Implementing Regulations
Part 1500—Purpose And Policy
Part 1501—NEPA And Agency Planning
Part 1502—Environmental Impact Statement
Part 1503—Commenting On Environmental
Impact Statements
Part 1504—Dispute Resolution And PreDecisional Referrals
Part 1505—NEPA and Agency Decision
Making
Part 1506—Other Requirements Of NEPA
Part 1507—Agency Compliance
Part 1508—Definitions
PART 1500—PURPOSE AND POLICY
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Sec.
1500.1 Purpose.
1500.2 Policy.
1500.3 NEPA compliance.
1500.4 Concise and informative
environmental documents.
1500.5 Efficient process.
1500.6 Agency authority.
Authority: 42 U.S.C. 4321–4347; 42 U.S.C.
4371–4375; 42 U.S.C. 7609; and E.O. 11514,
35 FR 4247, 3 CFR, 1966–1970, Comp., p.
902, as amended by E.O. 11991, 42 FR 26967,
3 CFR, 1977 Comp., p. 123.
§ 1500.1
Purpose.
(a) The National Environmental
Policy Act (NEPA) is the basic national
charter for protection of the
environment. It establishes policy, sets
goals, and provides direction for
carrying out the policy.
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(1) Section 101(a) of NEPA establishes
the national environmental policy of the
Federal Government to use all
practicable means and measures to
foster and promote the general welfare,
create and maintain conditions under
which humans and nature can exist in
productive harmony, and fulfill the
social, economic, and other
requirements of present and future
generations of Americans. Section
101(b) of NEPA establishes the
continuing responsibility of the Federal
Government to use all practicable
means, consistent with other essential
considerations of national policy, to:
(i) Help each generation serve as a
trustee of the environment for
succeeding generations;
(ii) Assure for all people safe,
healthful, productive, and aesthetically
and culturally pleasing surroundings;
(iii) Attain the widest range of
beneficial uses of the environment
without degradation, risk to health or
safety, or other undesirable and
unintended consequences;
(iv) Preserve important historic,
cultural, and natural aspects of our
national heritage, and maintain,
wherever possible, an environment
which supports diversity and variety of
individual choice;
(v) Achieve a balance between
population and resource use which will
permit high standards of living and a
wide sharing of life’s amenities; and
(vi) Enhance the quality of renewable
resources and approach the maximum
attainable recycling of depletable
resources.
(2) Section 102(2) of NEPA establishes
procedural requirements to carry out the
policy and responsibilities established
in section 101 of NEPA and contains
‘‘action-forcing’’ procedural provisions
to ensure Federal agencies implement
the letter and spirit of the Act. The
purpose of the regulations in this
subchapter is to set forth what Federal
agencies must and should do to comply
with the procedures and achieve the
goals of the Act. The President, the
Federal agencies, and the courts share
responsibility for enforcing the Act so as
to achieve the policy goals of section
101.
(b) The regulations in this subchapter
implement the requirements of NEPA
and ensure that agencies identify,
consider, and disclose to the public
relevant environmental information
early in the process before decisions are
made and before actions are taken. The
information shall be of high quality.
Accurate scientific analysis, expert
agency comments, and public scrutiny
are essential to implementing NEPA.
Most importantly, environmental
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documents must concentrate on the
issues that are truly relevant to the
action in question, rather than amassing
needless detail. The regulations in this
subchapter also are intended to ensure
that Federal agencies conduct
environmental reviews in a coordinated,
consistent, predictable, and timely
manner, and to reduce unnecessary
burdens and delays. Finally, the
regulations in this subchapter promote
concurrent environmental reviews to
ensure timely and efficient decision
making.
(c) Ultimately, of course, it is not
better documents but better decisions
that count. NEPA’s purpose is not to
generate paperwork—even excellent
paperwork—but to foster excellent
action. The NEPA process is intended to
help public officials make decisions that
are based on an understanding of
environmental consequences and take
actions that protect, restore, and
enhance the environment. The
regulations in this subchapter provide
the direction to achieve this purpose.
§ 1500.2
Policy.
Federal agencies shall to the fullest
extent possible:
(a) Interpret and administer the
policies, regulations, and public laws of
the United States in accordance with the
policies set forth in the Act and in these
regulations.
(b) Implement procedures to make the
NEPA process more useful to decision
makers and the public; to reduce
paperwork and the accumulation of
extraneous background data; and to
emphasize important environmental
issues and alternatives. Environmental
documents shall be concise, clear, and
supported by evidence that agencies
have conducted the necessary
environmental analyses.
(c) Integrate the requirements of
NEPA with other planning and
environmental review procedures
required by law or by agency practice so
that such procedures run concurrently
rather than consecutively where doing
so promotes efficiency.
(d) Encourage and facilitate public
engagement in decisions that affect the
quality of the human environment,
including meaningful engagement with
communities such as those with
environmental justice concerns.
(e) Use the NEPA process to identify
and assess the reasonable alternatives to
proposed actions that will avoid or
minimize adverse effects of these
actions upon the quality of the human
environment, such as alternatives that
will reduce climate change-related
effects or address adverse health and
environmental effects that
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disproportionately affect communities
with environmental justice concerns.
(f) Use all practicable means,
consistent with the requirements of the
Act and other essential considerations
of national policy, to restore and
enhance the quality of the human
environment and avoid or minimize any
possible adverse effects of their actions
upon the quality of the human
environment.
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§ 1500.3
NEPA compliance.
(a) Mandate. This subchapter is
applicable to and binding on all Federal
agencies for implementing the
procedural provisions of the National
Environmental Policy Act of 1969, as
amended (Pub. L. 91–190, 42 U.S.C.
4321 et seq.) (NEPA or the Act). The
regulations in this subchapter are issued
pursuant to NEPA; the Environmental
Quality Improvement Act of 1970, as
amended (Pub. L. 91–224, 42 U.S.C.
4371 et seq.); and Executive Order
11514, Protection and Enhancement of
Environmental Quality (March 5, 1970),
as amended by Executive Order 11991,
Relating to the Protection and
Enhancement of Environmental Quality
(May 24, 1977). The regulations in this
subchapter apply to the whole of section
102(2) of NEPA. The provisions of the
Act and the regulations in this
subchapter must be read together as a
whole to comply with the Act.
(b) Review of NEPA compliance. It is
the Council’s intention that judicial
review of agency compliance with the
regulations in this subchapter not occur
before an agency has issued the record
of decision or taken other final agency
action, except with respect to claims
brought by project sponsors related to
deadlines under section 107(g)(3) of
NEPA. It is also the Council’s intention
that minor, non-substantive errors that
have no effect on agency decision
making shall be considered harmless
and shall not invalidate an agency
action. It is the Council’s intention that
any allegation of noncompliance with
NEPA and the regulations in this
subchapter should be resolved as
expeditiously as appropriate.
(c) Severability. The sections of this
subchapter are separate and severable
from one another. If any section or
portion therein is stayed or determined
to be invalid, or the applicability of any
section to any person or entity is held
invalid, it is the Council’s intention that
the validity of the remainder of those
parts shall not be affected, with the
remaining sections to continue in effect.
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§ 1500.4 Concise and informative
environmental documents.
Agencies shall prepare analytical,
concise, and informative environmental
documents by:
(a) Meeting appropriate page limits
(§§ 1501.5(g) and 1502.7 of this
subchapter).
(b) Discussing only briefly issues
other than important ones (e.g.,
§ 1502.2(b) of this subchapter).
(c) Writing environmental documents
in plain language (e.g., § 1502.8 of this
subchapter).
(d) Following a clear format for
environmental impact statements
(§ 1502.10 of this subchapter).
(e) Emphasizing the portions of the
environmental document that are most
useful to decision makers and the public
(e.g., §§ 1502.14, 1502.15, and 1502.16
of this subchapter) and reducing
emphasis on background material (e.g.,
§ 1502.1 of this subchapter).
(f) Using the scoping process to
identify important environmental issues
deserving of study and to deemphasize
unimportant issues, narrowing the
scope of the environmental impact
statement process (or, where an agency
elects to do so, the environmental
assessment process) accordingly
(§§ 1501.9 and 1502.4 of this
subchapter).
(g) Summarizing the environmental
impact statement (§ 1502.12 of this
subchapter).
(h) Using programmatic
environmental documents and tiering
from documents of broad scope to those
of narrower scope, to eliminate
repetitive discussions of the same issues
(§ 1501.11 of this subchapter).
(i) Incorporating by reference
(§ 1501.12 of this subchapter).
(j) Integrating NEPA requirements
with other environmental review and
consultation requirements (§ 1502.24 of
this subchapter).
(k) Requiring that comments be as
specific as possible (§ 1503.3 of this
subchapter).
(l) When changes are minor, attaching
and publishing only changes to the draft
environmental impact statement rather
than rewriting and publishing the entire
statement (§ 1503.4(c) of this
subchapter).
(m) Eliminating duplication with
State, Tribal, and local procedures, by
providing for joint preparation of
environmental documents where
practicable (§ 1506.2 of this subchapter),
and with other Federal procedures, by
providing that an agency may adopt
appropriate environmental documents
prepared by another Federal agency
(§ 1506.3 of this subchapter).
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(n) Combining environmental
documents with other documents
(§ 1506.4 of this subchapter).
§ 1500.5
Efficient process.
Agencies shall improve efficiency of
their NEPA processes by:
(a) Establishing categorical exclusions
to define categories of actions that
normally do not have a significant effect
on the human environment (§§ 1501.4
and 1507.3(c)(8) of this subchapter) and
therefore do not require preparation of
an environmental assessment or
environmental impact statement.
(b) Using a finding of no significant
impact when an action not otherwise
excluded will not have a significant
effect on the human environment
(§ 1501.6 of this subchapter) and
therefore does not require preparation of
an environmental impact statement.
(c) Integrating the NEPA process into
early planning (§ 1501.2 of this
subchapter).
(d) Engaging in interagency
cooperation, including with affected
Federal, State, Tribal, and local
agencies, before or during the
preparation of an environmental
assessment or environmental impact
statement, rather than waiting to request
or submit comments on a completed
document (§§ 1501.7 and 1501.8 of this
subchapter).
(e) Ensuring the swift and fair
resolution of lead agency disputes
(§ 1501.7 of this subchapter).
(f) Using the scoping process for early
identification of the important issues
that require detailed analysis (§ 1502.4
of this subchapter).
(g) Meeting appropriate deadlines for
the environmental assessment and
environmental impact statement
processes (§ 1501.10 of this subchapter).
(h) Preparing environmental
documents early in the process
(§§ 1502.5 and 1501.5(d) of this
subchapter).
(i) Integrating NEPA requirements
with other environmental review and
consultation requirements (§ 1502.24 of
this subchapter).
(j) Eliminating duplication with State,
Tribal, and local procedures by
providing for joint preparation of
environmental documents where
practicable (§ 1506.2 of this subchapter)
and with other Federal procedures by
providing that agencies may jointly
prepare or adopt appropriate
environmental documents prepared by
another agency (§ 1506.3 of this
subchapter).
(k) Combining environmental
documents with other documents
(§ 1506.4 of this subchapter).
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(l) Using accelerated procedures for
proposals for legislation (§ 1506.8 of this
subchapter).
§ 1500.6
Agency authority.
Each agency shall interpret the
provisions of the Act as a supplement to
its existing authority and as a mandate
to view policies and missions in the
light of the Act’s national environmental
objectives, to the extent consistent with
its existing authority. Agencies shall
review their policies, procedures, and
regulations accordingly and revise them
as necessary to ensure full compliance
with the purposes and provisions of the
Act and the regulations in this
subchapter. The phrase ‘‘to the fullest
extent possible’’ in section 102 of NEPA
means that each agency of the Federal
Government shall comply with the Act
unless an agency activity, decision, or
action is exempted from NEPA by law
or compliance with NEPA is impossible.
PART 1501—NEPA AND AGENCY
PLANNING
Sec.
1501.1 Purpose.
1501.2 Apply NEPA early in the process.
1501.3 Determine the appropriate level of
NEPA review.
1501.4 Categorical exclusions.
1501.5 Environmental assessments.
1501.6 Findings of no significant impact.
1501.7 Lead agency.
1501.8 Cooperating agencies.
1501.9 Public and governmental
engagement.
1501.10 Deadlines and schedule for the
NEPA process.
1501.11 Programmatic environmental
documents and tiering.
1501.12 Incorporation by reference into
environmental documents.
Authority: 42 U.S.C. 4321–4347; 42 U.S.C.
4371–4375; 42 U.S.C. 7609; and E.O. 11514,
35 FR 4247, 3 CFR, 1966–1970, Comp., p.
902, as amended by E.O. 11991, 42 FR 26967,
3 CFR, 1977 Comp., p. 123.
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§ 1501.1
Purpose.
The purposes of this part include:
(a) Integrating the NEPA process into
agency planning at an early stage to
facilitate appropriate consideration of
NEPA’s policies, promote an efficient
process, and reduce delay;
(b) Providing for early engagement in
the environmental review process with
other agencies, State, Tribal, and local
governments, and affected or interested
persons, entities, and communities
before a decision is made;
(c) Providing for the swift and fair
resolution of interagency disputes;
(d) Identifying at an early stage the
important environmental issues
deserving of study, and deemphasizing
unimportant issues, narrowing the
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scope of the environmental review and
enhancing efficiency accordingly; and
(e) Promoting accountability by
establishing appropriate deadlines and
requiring schedules.
§ 1501.2
Apply NEPA early in the process.
(a) Agencies should integrate the
NEPA process with other planning and
authorization processes at the earliest
reasonable time to ensure that agencies
consider environmental effects in their
planning and decisions, to avoid delays
later in the process, and to head off
potential conflicts.
(b) Each agency shall:
(1) Comply with the mandate of
section 102(2)(A) of NEPA to utilize a
systematic, interdisciplinary approach,
which will ensure the integrated use of
the natural and social sciences and the
environmental design arts in planning
and in decision making that may have
an impact on the human environment,
as specified by § 1507.2(a) of this
subchapter.
(2) Identify environmental effects and
values in adequate detail so the decision
maker can appropriately consider such
effects and values alongside economic
and technical analyses. Whenever
practicable, agencies shall review and
publish environmental documents and
appropriate analyses at the same time as
other planning documents.
(3) Study, develop, and describe
appropriate alternatives to
recommended courses of action in any
proposal that involves unresolved
conflicts concerning alternative uses of
available resources, as provided by
section 102(2)(H) of NEPA.
(4) Provide for actions subject to
NEPA that are planned by applicants
before Federal involvement so that:
(i) Policies or designated staff are
available to advise potential applicants
of studies or other information
foreseeably required for later Federal
action.
(ii) The Federal agency consults early
with appropriate State, Tribal, and local
governments and with interested
persons and organizations when their
involvement is reasonably foreseeable.
(iii) The Federal agency commences
its NEPA process at the earliest
reasonable time (§§ 1501.5(d) and
1502.5(b) of this subchapter).
§ 1501.3 Determine the appropriate level of
NEPA review.
(a) Applicability. As a threshold
determination, an agency shall assess
whether NEPA applies to the proposed
activity or decision. In assessing
whether NEPA applies, Federal agencies
should determine:
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(1) Whether the proposed activity or
decision is exempted from NEPA by
law;
(2) Whether compliance with NEPA
would clearly and fundamentally
conflict with the requirements of
another provision of Federal law;
(3) Whether the proposed activity or
decision is not a major Federal action
(§ 1508.1(w) of this subchapter);
(4) Whether the proposed activity or
decision is not a final agency action
within the meaning of such term in
chapter 5 of title 5, United States Code;
or
(5) Whether the proposed activity or
decision is a non-discretionary action
with respect to which such agency does
not have authority to take
environmental factors into
consideration in determining whether to
take the proposed action.
(b) Scope of action and analysis. If the
agency determines that NEPA applies,
the agency shall consider the scope of
the proposed action and its effects to
inform the agency’s determination of the
appropriate level of NEPA review and
whether aspects of the action are nondiscretionary. The agency shall use, as
appropriate, the public engagement and
scoping mechanisms in §§ 1501.9 and
1502.4 of this subchapter to inform
consideration of the scope of the
proposed action and determination of
the level of NEPA review. The agency
shall evaluate, in a single review,
proposals or parts of proposals that are
related closely enough to be, in effect,
a single course of action. The agency
shall not avoid a determination of
significance under paragraph (c) of this
section by terming an action temporary
that is not temporary in fact or
segmenting an action into smaller
component parts. The agency also shall
consider whether there are connected
actions, which are closely related
Federal activities or decisions that
should be considered in the same NEPA
review that:
(1) Automatically trigger other actions
that may require NEPA review;
(2) Cannot or will not proceed unless
other actions are taken previously or
simultaneously; or
(3) Are interdependent parts of a
larger action and depend on the larger
action for their justification.
(c) Levels of NEPA review. In
assessing the appropriate level of NEPA
review, agencies may make use of any
reliable data source and are not required
to undertake new scientific or technical
research unless it is essential to a
reasoned choice among alternatives, and
the overall costs and timeframe of
obtaining it are not unreasonable.
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Agencies should determine whether the
proposed action:
(1) Is appropriately categorically
excluded (§ 1501.4);
(2) Is not likely to have significant
effects or the significance of the effects
is unknown and is therefore appropriate
for an environmental assessment
(§ 1501.5); or
(3) Is likely to have significant effects
and is therefore appropriate for an
environmental impact statement (part
1502 of this subchapter).
(d) Significance determination—
context and intensity. In considering
whether an adverse effect of the
proposed action is significant, agencies
shall examine both the context of the
action and the intensity of the effect. In
assessing context and intensity, agencies
should consider the duration of the
effect. Agencies may also consider the
extent to which an effect is adverse at
some points in time and beneficial in
others (for example, in assessing the
significance of a habitat restoration
action’s effect on a species, an agency
may consider both any short-term harm
to the species during implementation of
the action and any benefit to the same
species once the action is complete).
However, agencies shall not offset an
action’s adverse effects with other
beneficial effects to determine
significance (for example, an agency
may not offset an action’s adverse effect
on one species with its beneficial effect
on another species).
(1) Agencies shall analyze the
significance of an action in several
contexts. Agencies should consider the
characteristics of the geographic area,
such as proximity to unique or sensitive
resources or communities with
environmental justice concerns.
Depending on the scope of the action,
agencies should consider the potential
global, national, regional, and local
contexts as well as the duration,
including short-and long-term effects.
(2) Agencies shall analyze the
intensity of effects considering the
following factors, as applicable to the
proposed action and in relationship to
one another:
(i) The degree to which the action
may adversely affect public health and
safety.
(ii) The degree to which the action
may adversely affect unique
characteristics of the geographic area
such as historic or cultural resources,
parks, Tribal sacred sites, prime
farmlands, wetlands, wild and scenic
rivers, or ecologically critical areas.
(iii) Whether the action may violate
relevant Federal, State, Tribal, or local
laws or other requirements or be
inconsistent with Federal, State, Tribal,
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or local policies designed for the
protection of the environment.
(iv) The degree to which the potential
effects on the human environment are
highly uncertain.
(v) The degree to which the action
may adversely affect resources listed or
eligible for listing in the National
Register of Historic Places.
(vi) The degree to which the action
may adversely affect an endangered or
threatened species or its habitat,
including habitat that has been
determined to be critical under the
Endangered Species Act of 1973.
(vii) The degree to which the action
may adversely affect communities with
environmental justice concerns.
(viii) The degree to which the action
may adversely affect rights of Tribal
Nations that have been reserved through
treaties, statutes, or Executive Orders.
§ 1501.4
Categorical exclusions.
(a) For efficiency and consistent with
§ 1507.3(c)(8)(ii) of this subchapter or
paragraph (c), agencies shall establish
categorical exclusions for categories of
actions that normally do not have a
significant effect on the human
environment, individually or in the
aggregate, and therefore do not require
preparation of an environmental
assessment or environmental impact
statement unless extraordinary
circumstances exist that make
application of the categorical exclusion
inappropriate, consistent with
paragraph (b) of this section. Agencies
may establish categorical exclusions
individually or jointly with other
agencies.
(b) If an agency determines that a
categorical exclusion identified in its
agency NEPA procedures covers a
proposed action, the agency shall
evaluate the action for extraordinary
circumstances in which a normally
excluded action may have a significant
effect.
(1) If an extraordinary circumstance
exists, the agency nevertheless may
apply the categorical exclusion if the
agency conducts an analysis and
determines that the proposed action
does not in fact have the potential to
result in significant effects
notwithstanding the extraordinary
circumstance, or the agency modifies
the action to avoid the potential to
result in significant effects. In these
cases, the agency shall document such
determination and should publish it on
the agency’s website or otherwise make
it publicly available.
(2) If the agency cannot categorically
exclude the proposed action, the agency
shall prepare an environmental
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35557
assessment or environmental impact
statement, as appropriate.
(c) In addition to the process for
establishing categorical exclusions
under § 1507.3(c)(8) of this subchapter,
agencies may establish categorical
exclusions through a land use plan, a
decision document supported by a
programmatic environmental impact
statement or programmatic
environmental assessment, or other
equivalent planning or programmatic
decision for which an environmental
document has been prepared, so long as
the agency:
(1) Provides the Council an
opportunity to review and comment
prior to public comment;
(2) Provides notification and an
opportunity for public comment;
(3) Substantiates its determination
that the category of actions normally
does not have significant effects,
individually or in the aggregate;
(4) Identifies extraordinary
circumstances;
(5) Establishes a process for
determining that a categorical exclusion
applies to a specific action or actions in
the absence of extraordinary
circumstances, or, where extraordinary
circumstances are present, for
determining the agency may apply the
categorical exclusion consistent with
(b)(1) of this section; and
(6) Publishes a list of all categorical
exclusions established through these
mechanisms on its website.
(d) Categorical exclusions established
consistent with paragraph (c) of this
section or § 1507.3(c)(8) of this
subchapter may:
(1) Cover specific geographic areas or
areas that share common characteristics,
e.g., habitat type;
(2) Have a limited duration;
(3) Include mitigation measures that,
in the absence of extraordinary
circumstances, will ensure that any
environmental effects are not
significant, so long as a process is
established for monitoring and
enforcing any required mitigation
measures, including through the
suspension or revocation of the relevant
agency action; or
(4) Provide criteria that would cause
the categorical exclusion to expire
because the agency’s determination that
the category of action does not have
significant effects, individually or in the
aggregate, is no longer applicable,
including, as appropriate, because:
(i) The number of individual actions
covered by the categorical exclusion
exceeds a specific threshold;
(ii) Individual actions covered by the
categorical exclusion are too close to
one another in proximity or time; or
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(iii) Environmental conditions or
information upon which the agency’s
determination was based have changed.
(e) An agency may adopt and apply a
categorical exclusion listed in another
agency’s NEPA procedures to a
proposed action or a category of
proposed actions consistent with this
paragraph. The agency shall:
(1) Identify the categorical exclusion
listed in another agency’s NEPA
procedures that covers its proposed
action or a category of proposed actions;
(2) Consult with the agency that
established the categorical exclusion to
ensure that the proposed action or
category of proposed actions to which
the agency intends to apply the
categorical exclusion is appropriate;
(3) Provide public notification of the
categorical exclusion that the agency is
adopting, including a brief description
of the proposed action or category of
proposed actions to which the agency
intends to apply the adopted categorical
exclusion, the process the agency will
use to evaluate for extraordinary
circumstances consistent with
paragraph (b) of this section, and a brief
description of the agencies’
consultation;
(4) In applying the adopted
categorical exclusion to a proposed
action, evaluate the proposed action for
extraordinary circumstances, consistent
with paragraph (b) of this section; and
(5) Publish the documentation of the
application of the adopted categorical
exclusion.
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§ 1501.5
Environmental assessments.
(a) An agency shall prepare an
environmental assessment for a
proposed action that is not likely to
have significant effects or when the
significance of the effects is unknown
unless the agency finds that a
categorical exclusion (§ 1501.4) is
applicable or has decided to prepare an
environmental impact statement.
(b) An agency may prepare an
environmental assessment on any action
to assist agency planning and decision
making.
(c) An environmental assessment
shall:
(1) Briefly provide sufficient evidence
and analysis for determining whether to
prepare an environmental impact
statement or a finding of no significant
impact;
(2) Briefly discuss the:
(i) Purpose and need for the proposed
agency action;
(ii) Alternatives as required by section
102(2)(H) of NEPA; and
(iii) Environmental effects of the
proposed action and alternatives;
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(3) List the Federal agencies; State,
Tribal, and local governments and
agencies; or persons consulted; and
(4) Provide a unique identification
number for tracking purposes, which
the agency shall reference on all
associated environmental review
documents prepared for the proposed
action and in any database or tracking
system for such documents.
(d) For applications to the agency
requiring an environmental assessment,
the agency shall commence the
environmental assessment as soon as
practicable after receiving the
application.
(e) If an agency publishes a draft
environmental assessment, the agency
shall invite public comment and
consider those comments in preparing
the final environmental assessment.
(f) Agencies shall involve the public,
State, Tribal, and local governments,
relevant agencies, and any applicants, to
the extent practicable in preparing
environmental assessments (see
§ 1501.9).
(g) The text of an environmental
assessment shall not exceed 75 pages,
not including any citations or
appendices.
(h) Agencies:
(1) Should supplement environmental
assessments if a major Federal action is
incomplete or ongoing, and:
(i) The agency makes substantial
changes to the proposed action that are
relevant to environmental concerns; or
(ii) There are substantial new
circumstances or information about the
significance of the adverse effects that
bear on the analysis to determine
whether to prepare a finding of no
significant impact or an environmental
impact statement.
(2) May also prepare supplements
when the agency determines that the
purposes of the Act will be furthered by
doing so.
(i) Agencies may reevaluate an
environmental assessment to determine
that the agency does not need to prepare
a supplemental environmental
assessment and a new finding of no
significant impact or an environmental
impact statement.
(j) Agencies generally should apply
§ 1502.21 of this subchapter to
environmental assessments.
(k) As appropriate to improve
efficiency and effectiveness of
environmental assessments, agencies
may apply the other provisions of part
1502 and 1503 of this subchapter,
including §§ 1502.4, 1502.22, 1502.24,
and 1503.4, to environmental
assessments.
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§ 1501.6
Findings of no significant impact.
(a) After completing an environmental
assessment, an agency shall prepare:
(1) A finding of no significant impact
if the agency determines, based on the
environmental assessment, that NEPA
does not require preparation of an
environmental impact statement
because the proposed action will not
have significant effects;
(2) A mitigated finding of no
significant impact if the agency
determines, based on the environmental
assessment, that NEPA does not require
preparation of an environmental impact
statement because the proposed action
will not have significant effects due to
mitigation; or
(3) An environmental impact
statement if the agency determines,
based on the environmental assessment,
that the action will have significant
effects.
(b)(1) The agency shall make the
finding of no significant impact
available to the affected public as
specified in § 1501.9(c)(5).
(2) In the following circumstances, the
agency shall make the finding of no
significant impact available for public
review for 30 days before the agency
determines whether to prepare an
environmental impact statement and
before the action may begin:
(i) The proposed action is or is closely
similar to one that normally requires the
preparation of an environmental impact
statement under the procedures adopted
by the agency pursuant to § 1507.3 of
this subchapter; or
(ii) The nature of the proposed action
is one without precedent.
(c) The finding of no significant
impact shall include the environmental
assessment or incorporate it by
reference and shall note any other
environmental documents related to it
(§ 1502.4(d)(3) of this subchapter). If the
environmental assessment is included,
the finding need not repeat any of the
discussion in the assessment but may
incorporate it by reference.
(d) The finding of no significant
impact shall state the authority for any
mitigation that the agency has adopted
and any applicable monitoring or
enforcement provisions. If the agency
finds no significant effects based on
mitigation, the mitigated finding of no
significant impact shall state the
enforceable mitigation requirements or
commitments that will be undertaken
and the authority to enforce them, such
as terms and conditions or other
measures in a relevant permit,
incidental take statement, or other
agreement, and the agency shall prepare
a monitoring and compliance plan for
that mitigation consistent with
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§ 1505.3(c) of this subchapter. In
addition, the agency shall prepare a
monitoring and compliance plan for
other mitigation as required by
§ 1505.3(c) of this subchapter.
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§ 1501.7
Lead agency.
(a) A lead agency shall supervise the
preparation of an environmental impact
statement or environmental assessment
if more than one Federal agency either:
(1) Proposes or is involved in the
same action; or
(2) Is involved in a group of actions
directly related to each other because of
their functional interdependence or
geographical proximity.
(b) A Federal, State, Tribal, or local
agency may serve as a joint lead agency
to prepare an environmental impact
statement or environmental assessment
(§ 1506.2 of this subchapter). A joint
lead agency shall jointly fulfill the role
of a lead agency.
(c) If an action falls within the
provisions of paragraph (a) of this
section, the participating Federal
agencies shall determine, by letter or
memorandum, which agency will be the
lead agency, considering the factors in
paragraphs (c)(1) through (c)(5) of this
section, and the lead agency shall
determine which agencies will be joint
lead or cooperating agencies. The
agencies shall resolve the lead agency
question so as not to cause delay. If
there is disagreement among the
agencies, the following factors (which
are listed in order of descending
importance) shall determine lead agency
designation:
(1) Magnitude of agency’s
involvement;
(2) Project approval or disapproval
authority;
(3) Expertise concerning the action’s
environmental effects;
(4) Duration of agency’s involvement;
and
(5) Sequence of agency’s involvement.
(d) Any Federal, State, Tribal, or local
agency or person substantially affected
by the absence of a lead agency
designation, may make a written request
to the senior agency officials of the
potential lead agencies that a lead
agency be designated. An agency that
receives a request under this paragraph
shall transmit such request to each
participating Federal agency and to the
Council.
(e) If Federal agencies are unable to
agree on which agency will be the lead
agency or if the procedure described in
paragraph (c) of this section has not
resulted in a lead agency designation
within 45 days of the written request to
the senior agency officials, any of the
agencies or persons concerned may file
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a request with the Council asking it to
determine which Federal agency shall
be the lead agency. The Council shall
transmit a copy of the request to each
potential lead agency. The request shall
consist of:
(1) A precise description of the nature
and extent of the proposed action; and
(2) A detailed statement of why each
potential lead agency should or should
not be the lead agency under the criteria
specified in paragraph (c) of this
section.
(f) Any potential lead agency may file
a response no later than 20 days after a
request is filed with the Council. As
soon as possible, but not later than 40
days after receiving the request, the
Council shall designate which Federal
agency will be the lead agency and
which other Federal agencies will be
cooperating agencies.
(g) To the extent practicable, if a
proposal will require action by more
than one Federal agency and the lead
agency determines that the proposal
requires preparation of an
environmental impact statement, the
lead and cooperating agencies shall
evaluate it in a single environmental
impact statement; the lead and
cooperating agencies shall issue, except
where inappropriate or inefficient, a
joint record of decision. To the extent
practicable, if a proposal will require
action by more than one Federal agency
and the lead agency determines that it
requires preparation of an
environmental assessment, the lead and
cooperating agencies shall evaluate the
proposal in a single environmental
assessment and issue a joint finding of
no significant impact or jointly
determine to prepare an environmental
impact statement.
(h) With respect to cooperating
agencies, the lead agency shall:
(1) Request the participation of each
cooperating agency in the NEPA process
at the earliest practicable time;
(2) Consider any analysis or proposal
created by a cooperating agency and, to
the maximum extent practicable, use the
environmental analysis, proposal, and
information provided by cooperating
agencies;
(3) Meet with a cooperating agency at
the latter’s request; and
(4) Determine the purpose and need,
and alternatives in consultation with
any cooperating agency.
§ 1501.8
Cooperating agencies.
(a) The purpose of this section is to
emphasize agency cooperation early in
the NEPA process. Upon request of the
lead agency, any Federal agency with
jurisdiction by law shall be a
cooperating agency. In addition, upon
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request of the lead agency, any other
Federal agency with special expertise
with respect to any environmental issue
may be a cooperating agency. A State,
Tribal, or local agency of similar
qualifications may become a
cooperating agency by agreement with
the lead agency. Relevant special
expertise may include Indigenous
Knowledge. An agency may request that
the lead agency designate it a
cooperating agency, and a Federal
agency may appeal a denial of its
request to the Council.
(b) Each cooperating agency shall:
(1) Participate in the NEPA process at
the earliest practicable time.
(2) Participate in the scoping process
(described in § 1502.4).
(3) On request of the lead agency,
assume responsibility for developing
information and preparing
environmental analyses, including
portions of the environmental impact
statement or environmental assessment
concerning which the cooperating
agency has special expertise.
(4) On request of the lead agency,
make available staff support to enhance
the lead agency’s interdisciplinary
capability.
(5) Normally use its own funds. To
the extent available funds permit, the
lead agency shall fund those major
activities or analyses it requests from
cooperating agencies. Potential lead
agencies shall include such funding
requirements in their budget requests.
(6) Consult with the lead agency in
developing and updating the schedule
(§ 1501.10), meet the schedule, and
elevate, as soon as practicable, to the
senior agency official of the lead agency
any issues relating to purpose and need,
alternatives, or other issues that may
affect any agencies’ ability to meet the
schedule.
(7) Meet the lead agency’s schedule
for providing comments.
(8) To the maximum extent
practicable, jointly issue environmental
documents with the lead agency.
(c) In response to a lead agency’s
request for assistance in preparing the
environmental documents (described in
paragraph (b)(3), (4), or (5) of this
section), a cooperating agency may reply
that other program commitments
preclude any involvement or the degree
of involvement requested in the action
that is the subject of the environmental
impact statement or environmental
assessment. The cooperating agency
shall submit a copy of this reply to the
Council and the senior agency official of
the lead agency.
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§ 1501.9 Public and governmental
engagement.
(a) Purpose and responsibility. The
purpose of public engagement is to
inform the public of an agency’s
proposed action, allow for meaningful
engagement during the NEPA process,
and ensure decision makers are
informed by the views of the public.
The purpose of governmental
engagement is to identify the potentially
affected Federal, State, Tribal, and local
governments, invite them to serve as
cooperating agencies, as appropriate,
and ensure that participating agencies
have opportunities to engage in the
environmental review process, as
appropriate. This section sets forth
agencies’ responsibilities and best
practices to conduct public and
governmental engagement. Agencies
shall determine the appropriate
methods of public and governmental
engagement for their proposed actions.
(b) Determination of scope. Agencies
shall use public and governmental
engagement, as appropriate, to inform
the level of review for and scope of
analysis of a proposed action, consistent
with § 1501.3 of this subchapter. For
environmental impact statements, in
addition to the requirements of this
section, agencies also shall comply with
the requirements for scoping set forth in
§ 1502.4 of this subchapter. For
environmental assessments, in addition
to the requirements of this section,
agencies should consider applying the
requirements for scoping set forth in
§ 1502.4 of this subchapter, as
appropriate.
(c) Outreach and notification.
Agencies shall:
(1) Invite the participation of any
likely affected Federal, State, Tribal, and
local agencies and governments, as early
as practicable, including, as appropriate,
as cooperating agencies under § 1501.8
of this subchapter;
(2) Conduct, as appropriate, early
engagement with likely affected or
interested members of the public
(including those who might not be in
accord with the action), unless there is
a limited exception under § 1507.3(d)(3)
of this subchapter; and
(3) Consider what methods of
outreach and notification are necessary
and appropriate based on the likely
affected entities and persons; the scope,
scale, and complexity of the proposed
action and alternatives; the degree of
public interest; and other relevant
factors. When selecting appropriate
methods for providing public
notification, agencies shall consider the
ability of affected persons and agencies
to access electronic media and the
primary languages of affected persons.
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(4) Publish notification of proposed
actions they are analyzing through an
environmental impact statement,
including through a notice of intent
consistent with § 1502.4 of this
subchapter.
(5) Provide public notification of
NEPA-related hearings, public meetings,
and other opportunities for public
engagement, and the availability of
environmental documents to inform
those persons and agencies who may be
interested or affected by their proposed
actions.
(i) The agency shall notify those
entities and persons who have requested
notification on a particular action and
those who have requested regular
notification from the agency on its
actions.
(ii) In the case of an action with
effects of national concern, notification
shall also include publication of a
notice in the Federal Register.
(iii) In the case of an action with
effects primarily of local concern, the
notification may include distribution to
or through:
(A) State, Tribal, and local
governments and agencies that may be
interested or affected by the proposed
action.
(B) Following the affected State or
Tribe’s public notification procedures
for comparable actions.
(C) Publication in local newspapers
having general circulation.
(D) Other local media.
(E) Potentially interested community
organizations, including small business
associations.
(F) Publication in newsletters that
may be expected to reach potentially
interested persons.
(G) Direct mailing to owners and
occupants of nearby or affected
property.
(H) Posting of notification on- and offsite in the area where the action is to be
located.
(I) Electronic media (e.g., a project or
agency website, dashboard, email list, or
social media). Agencies should establish
email notification lists or similar
methods for the public to easily request
electronic notifications for a proposed
action.
(6) Make environmental impact
statements, the comments received, and
any underlying documents available to
the public pursuant to the provisions of
the Freedom of Information Act, as
amended (5 U.S.C. 552), and without
charge to the extent practicable.
(d) Public meetings and hearings.
Agencies shall hold or sponsor public
hearings, public meetings, or other
opportunities for public engagement
whenever appropriate or in accordance
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with statutory or regulatory
requirements or applicable agency
NEPA procedures. Agencies may
conduct public hearings and public
meetings by means of electronic
communication except where another
format is required by law. When
determining the format for a public
hearing or public meeting, such as
whether an in-person or virtual meeting,
or formal hearing or listening session is
most appropriate, agencies shall
consider the needs of affected
communities. When accepting
comments for electronic or virtual
public hearings or meetings, agencies
shall allow the public to submit
comments electronically, by regular
mail, or by other appropriate methods.
Agencies should make a draft
environmental document available to
the public at least 15 days in advance
when it is the subject of a public hearing
or meeting unless the purpose of such
hearing or meeting is to provide
information for the development of the
document.
(e) Agency procedures. Agencies shall
make diligent efforts to engage the
public in preparing and implementing
their NEPA procedures (§ 1507.3 of this
subchapter).
§ 1501.10 Deadlines and schedule for the
NEPA process.
(a) To ensure that agencies conduct
sound NEPA reviews as efficiently and
expeditiously as practicable, Federal
agencies shall set deadlines and
schedules appropriate to individual
actions or types of actions consistent
with this section and the time intervals
required by § 1506.10 of this subchapter.
Where applicable, the lead agency shall
establish the schedule for a proposed
action and make any necessary updates
to the schedule in consultation with and
seek the concurrence of any joint lead,
cooperating, and participating agencies,
and in consultation with any applicants.
(b) To ensure timely decision making,
agencies shall complete:
(1) Environmental assessments within
1 year, unless the lead agency extends
the deadline in writing and, as
applicable, in consultation with any
applicant, and establishes a new
deadline that provides only so much
additional time as is necessary to
complete the environmental assessment.
(2) Environmental impact statements
within 2 years, unless the lead agency
extends the deadline in writing and, as
applicable, in consultation with any
applicant and establishes a new
deadline that provides only so much
additional time as is necessary to
complete the environmental impact
statement.
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(3) The deadlines in paragraphs (b)(1)
and (2) of this section are measured
from the sooner of, as applicable:
(i) the date on which the agency
determines that NEPA requires an
environmental impact statement or
environmental assessment for the
proposed action;
(ii) the date on which the agency
notifies an applicant that the
application to establish a right-of-way
for the proposed action is complete; or
(iii) the date on which the agency
issues a notice of intent for the proposed
action.
(4) The deadlines in paragraphs (b)(1)
and (2) of this section are measured to,
as applicable:
(i) For environmental assessments, the
date on which the agency:
(A) Publishes an environmental
assessment;
(B) Where applicable, makes the
environmental assessment available
pursuant to an agency’s pre-decisional
administrative review process; or
(C) Issues a notice of intent to prepare
an environmental impact statement; and
(ii) For environmental impact
statements, the date on which the
Environmental Protection Agency
publishes a notice of availability of the
final environmental impact statement
or, where applicable, the date on which
the agency makes the final
environmental impact statement
available pursuant to an agency’s predecisional administrative review
process, consistent with § 1506.10(c)(1)
of this subchapter.
(5) Each lead agency shall annually
submit the report to Congress on any
missed deadlines for environmental
assessments and environmental impact
statements required by section 107(h) of
NEPA.
(c) To facilitate predictability, the lead
agency shall develop a schedule for
completion of environmental impact
statements and environmental
assessments as well as any
authorizations required to carry out the
action. The lead agency shall set
milestones for all environmental
reviews, permits, and authorizations
required for implementation of the
action, in consultation with any
applicant and in consultation with and
seek the concurrence of all joint lead,
cooperating, and participating agencies,
as soon as practicable. Schedules may
vary depending on the type of action
and in consideration of other factors in
paragraph (d) of this section. The lead
agency should develop a schedule that
is based on its expertise reviewing
similar types of actions under NEPA.
All agencies with milestones, including
those for a review, permit, or
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authorization, in the schedule shall take
appropriate measures to meet the
schedule. If a participating agency
anticipates that a milestone will be
missed, the agency shall notify, as
applicable, the agency responsible for
the milestone and the lead agency, and
request that they take appropriate
measures to comply with the schedule.
As soon as practicable, the lead and any
other agency affected by a potentially
missed milestone shall elevate any
unresolved disputes contributing to the
potentially missed milestone to the
appropriate officials of the agencies
responsible for the potentially missed
milestone, to ensure timely resolution
within the deadlines for the individual
action.
(d) The lead agency may consider the
following factors in determining the
schedule and deadlines:
(1) Potential for environmental harm.
(2) Size of the proposed action.
(3) State of the art of analytic
techniques.
(4) Degree of public need for the
proposed action, including the
consequences of delay.
(5) Number of persons and agencies
affected.
(6) Availability of relevant
information.
(7) Degree to which a substantial
dispute exists as to the size, location,
nature, or consequences of the proposed
action and its effects.
(8) Time limits imposed on the agency
by law, regulation, Executive order, or
court ordered deadlines.
(9) Time necessary to conduct
government-to-government Tribal
consultation.
(e) The schedule for environmental
impact statements shall include the
following milestones:
(1) The publication of the notice of
intent;
(2) The issuance of the draft
environmental impact statement;
(3) The public comment period on the
draft environmental impact statement,
consistent with § 1506.10 of this
subchapter;
(4) The issuance of the final
environmental impact statement; and
(5) The issuance of the record of
decision.
(f) The schedule for environmental
assessments shall include the following
milestones:
(1) Decision to prepare an
environmental assessment;
(2) Issuance of the draft
environmental assessment, where
applicable;
(3) The public comment period on the
draft environmental assessment,
consistent with § 1501.5 of this
subchapter, where applicable; and
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(4) Issuance of the final
environmental assessment and decision
on whether to issue a finding of no
significant impact or issue a notice of
intent to prepare an environmental
impact statement.
(g) An agency may designate a person
(such as the project manager or a person
in the agency’s office with NEPA
responsibilities) to expedite the NEPA
process.
(h) For environmental impact
statements, agencies shall make
schedules for completing the NEPA
process publicly available, such as on
their website or another publicly
accessible platform. If agencies make
subsequent changes to the schedule,
agencies shall publish revisions to the
schedule and explain the basis for
substantial changes.
§ 1501.11 Programmatic environmental
documents and tiering.
(a) Programmatic environmental
documents. Agencies may prepare
programmatic environmental
documents, which may be either
environmental impact statements or
environmental assessments, to evaluate
the environmental effects of policies,
programs, plans, or groups of related
activities. When agencies prepare such
documents, they should be relevant to
the agency decisions and timed to
coincide with meaningful points in
agency planning and decision making.
Agencies may use programmatic
environmental documents to conduct a
broad or holistic evaluation of effects or
policy alternatives; evaluate widely
applicable measures; or avoid
duplicative analysis for individual
actions by first considering relevant
issues at a broad or programmatic level.
(1) When preparing programmatic
environmental documents (including
proposals by more than one agency),
agencies may find it useful to evaluate
the proposal(s) in one of the following
ways:
(i) Geographically, including actions
occurring in the same general location,
such as body of water, region, or
metropolitan area.
(ii) Thematically or by sector,
including actions that have relevant
similarities, such as common timing,
effects, alternatives, methods of
implementation, technology, media, or
subject matter.
(iii) By stage of technological
development, including Federal or
federally assisted research,
development, or demonstration
programs for new technologies that, if
applied, could significantly affect the
quality of the human environment.
Documents on such programs should be
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completed before the program has
reached a stage of investment or
commitment to implementation likely to
determine subsequent development or
limit the choice of reasonable
alternatives.
(2) Agency actions that may be
appropriate for programmatic
environmental documents include:
(i) Programs, policies, or plans,
including land use or resource
management plans;
(ii) Regulations;
(iii) National or regional actions;
(iv) Actions that have multiple stages
or phases, and are part of an overall
plan or program; or
(v) A group of projects or related types
of projects.
(3) Agencies should, as appropriate,
employ scoping (§ 1502.4 of this
subchapter), tiering (paragraph (b) of
this section), and other methods listed
in §§ 1500.4 and 1500.5 of this
subchapter, to describe the relationship
between the programmatic
environmental document and related
individual actions and to avoid
duplication and delay. The
programmatic environmental document
shall identify any decisions or
categories of decisions that the agency
anticipates making in reliance on it.
(b) Tiering. Where an existing
environmental impact statement,
environmental assessment, or
programmatic environmental document
is relevant to a later proposed action,
agencies may employ tiering. Tiering
allows subsequent tiered environmental
analysis to avoid duplication and focus
on issues, effects, or alternatives not
fully addressed in a programmatic
environmental document,
environmental impact statement, or
environmental assessment prepared at
an earlier phase or stage. Agencies
generally should tier their
environmental impact statements and
environmental assessments when it
would eliminate repetitive discussions
of the same issues, focus on the actual
issues ripe for decision, and exclude
from consideration issues already
decided.
(1) When an agency has prepared an
environmental impact statement,
environmental assessment or
programmatic environmental document
for a program or policy and then
prepares a subsequent statement or
assessment on an action included
within the program or policy (such as a
project- or site-specific action), the
tiered document shall discuss the
relationship between the tiered
document and the previous review, and
summarize and incorporate by reference
the issues discussed in the broader
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document. The tiered document shall
concentrate on the issues specific to the
subsequent action, analyzing site-,
phase-, or stage-specific conditions and
reasonably foreseeable effects. The
agency shall provide for public
engagement opportunities consistent
with the type of environmental
document prepared and appropriate for
the location, phase, or stage. The tiered
document shall state where the earlier
document is publicly available.
(2) Tiering is appropriate when the
sequence from an environmental impact
statement or environmental assessment
is:
(i) From a programmatic, plan, or
policy environmental impact statement
or environmental assessment to a
program, plan, or policy statement or
assessment of lesser or narrower scope
or to a site-specific statement or
assessment.
(ii) From an environmental impact
statement or environmental assessment
on a specific action at an early stage
(such as need and site selection) to a
subsequent statement or assessment at a
later stage (such as environmental
mitigation). Tiering in such cases is
appropriate when it helps the agency to
focus on the issues that are ripe for
decision and exclude from
consideration issues already decided or
not yet ripe.
(c) Reevaluation. When an agency
prepares a programmatic environmental
document for which judicial review was
available, the agency may rely on the
analysis included in the programmatic
environmental document in a
subsequent environmental document for
related actions as follows:
(1) Within 5 years and without
additional review of the analysis in the
programmatic environmental document,
unless there are substantial new
circumstances or information about the
significance of adverse effects that bear
on the analysis; or
(2) After 5 years, so long as the agency
reevaluates the analysis in the
programmatic environmental document
and any underlying assumption to
ensure reliance on the analysis remains
valid. The agency shall briefly
document its reevaluation and explain
why the analysis remains valid
considering any new and substantial
information or circumstances.
§ 1501.12 Incorporation by reference into
environmental documents.
Agencies shall incorporate material,
such as planning studies, analyses, or
other relevant information, into
environmental documents by reference
when the effect will be to cut down on
bulk without impeding agency and
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public review of the action. Agencies
shall cite the incorporated material in
the document, briefly describe its
content, and briefly explain the
relevance of the incorporated material to
the environmental document. Agencies
shall not incorporate material by
reference unless it is reasonably
available for review, such as on a
publicly accessible website, by
potentially interested persons
throughout the time allowed for
comment or public review. Agencies
should provide digital references, such
as hyperlinks, to the incorporated
material or otherwise indicate how the
public can access the material for
review. Agencies shall not incorporate
by reference material based on
proprietary data that is not available for
review and comment.
PART 1502—ENVIRONMENTAL
IMPACT STATEMENT
Sec.
1502.1 Purpose of environmental impact
statement.
1502.2 Implementation.
1502.3 Statutory requirements for
environmental impact statements.
1502.4 Scoping.
1502.5 Timing.
1502.6 Interdisciplinary preparation.
1502.7 Page limits.
1502.8 Writing.
1502.9 Draft, final, and supplemental
statements.
1502.10 Recommended format.
1502.11 Cover.
1502.12 Summary.
1502.13 Purpose and need.
1502.14 Alternatives including the
proposed action.
1502.15 Affected environment.
1502.16 Environmental consequences.
1502.17 Summary of scoping information.
1502.18 List of preparers.
1502.19 Appendix.
1502.20 Publication of the environmental
impact statement.
1502.21 Incomplete or unavailable
information.
1502.22 Cost-benefit analysis.
1502.23 [Reserved]
1502.24 Environmental review and
consultation requirements.
Authority: 42 U.S.C. 4321–4347; 42 U.S.C.
4371–4375; 42 U.S.C. 7609; and E.O. 11514,
35 FR 4247, 3 CFR, 1966–1970, Comp., p.
902, as amended by E.O. 11991, 42 FR 26967,
3 CFR, 1977 Comp., p. 123.
§ 1502.1 Purpose of environmental impact
statement.
(a) The primary purpose of an
environmental impact statement
prepared pursuant to section 102(2)(C)
of NEPA is to serve as an action-forcing
device by ensuring agencies consider
the environmental effects of their action
in decision making, so that the policies
and goals defined in the Act are infused
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into the ongoing programs and actions
of the Federal Government.
(b) Environmental impact statements
shall provide full and fair discussion of
significant effects and shall inform
decision makers and the public of
reasonable alternatives that would avoid
or minimize adverse effects or enhance
the quality of the human environment.
Agencies shall focus on important
environmental issues and reasonable
alternatives and shall reduce paperwork
and the accumulation of extraneous
background data.
(c) Environmental impact statements
shall be concise, clear, and to the point,
and shall be supported by evidence that
the agency has made the necessary
environmental analyses. An
environmental impact statement is more
than a disclosure document. Federal
agencies shall use environmental impact
statements in conjunction with other
relevant material to plan actions,
involve the public, and make decisions.
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§ 1502.2
Implementation.
To achieve the purposes set forth in
§ 1502.1, agencies shall prepare
environmental impact statements in the
following manner:
(a) Environmental impact statements
shall not be encyclopedic.
(b) Environmental impact statements
shall discuss effects in proportion to
their significance. There shall be only
brief discussion of other than important
issues. As in an environmental
assessment and finding of no significant
impact, there should be only enough
discussion to show why more study is
not warranted.
(c) Environmental impact statements
shall be analytical, concise, and no
longer than necessary to comply with
NEPA and with the regulations in this
subchapter. Length should be
proportional to potential environmental
effects and the scope and complexity of
the action.
(d) Environmental impact statements
shall state how alternatives considered
in them and decisions based on them
will or will not achieve the
requirements of sections 101 and 102(1)
of NEPA, the regulations in this
subchapter, and other environmental
laws and policies.
(e) The range of alternatives discussed
in environmental impact statements
shall encompass those to be considered
by the decision maker.
(f) Agencies shall not commit
resources prejudicing the selection of
alternatives before making a decision
(see also § 1506.1 of this subchapter).
(g) Environmental impact statements
shall serve as the means of assessing the
environmental impact of proposed
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agency actions, rather than justifying
decisions already made.
§ 1502.3 Statutory requirements for
environmental impact statements.
As required by section 102(2)(C) of
NEPA, environmental impact statements
are to be included in every Federal
agency recommendation or report on
proposals for legislation and other major
Federal actions significantly affecting
the quality of the human environment.
§ 1502.4
Scoping.
(a) Purpose. Agencies shall use
scoping, an early and open process
consistent with § 1501.9 of this
subchapter, to determine the scope of
issues for analysis in an environmental
impact statement, including identifying
the important issues and eliminating
from further study unimportant issues.
Scoping should begin as soon as
practicable after the proposal for action
is sufficiently developed for agency
consideration. Scoping may include
appropriate pre-application procedures
or work conducted prior to publication
of the notice of intent (see §§ 1501.3 and
1501.9 of this subchapter).
(b) Scoping outreach. When preparing
an environmental impact statement,
agencies shall facilitate notification to
persons and agencies who may be
interested or affected by an agency’s
proposed action, consistent with
§ 1501.9 of this subchapter. As part of
the scoping process, the lead agency
may hold a scoping meeting or
meetings, publish scoping information,
or use other means to communicate
with those persons or agencies who may
be interested or affected, which the
agency may integrate with any other
early planning meeting.
(c) Inviting participation. As part of
the scoping process, and consistent with
§ 1501.9 of this subchapter, the lead
agency shall invite the participation of
likely affected Federal, State, Tribal, and
local agencies and governments as
cooperating or participating agencies, as
appropriate; any applicant; and other
likely affected or interested persons
(including those who might not be in
accord with the action), unless there is
a limited exception under § 1507.3(d)(3)
of this subchapter.
(d) Additional scoping
responsibilities. As part of the scoping
process, the lead agency shall:
(1) Identify and eliminate from
detailed study the issues that are not
important or have been covered by prior
environmental review(s) (§§ 1501.12
and 1506.3 of this subchapter),
narrowing the discussion of these issues
in the environmental impact statement
to a brief presentation of why they will
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35563
not be important or providing a
reference to their coverage elsewhere.
(2) Allocate assignments for
preparation of the environmental impact
statement among the lead and
cooperating agencies, with the lead
agency retaining responsibility for the
statement.
(3) Indicate any publicly available
environmental assessments and other
environmental impact statements that
are being or will be prepared and are
related to but are not part of the scope
of the environmental impact statement
under consideration.
(4) Identify other environmental
review, authorization, and consultation
requirements so the lead and
cooperating agencies may prepare other
required analyses and studies
concurrently and integrated with the
environmental impact statement, as
provided in § 1502.24.
(5) Indicate the relationship between
the timing of the preparation of
environmental analyses and the
agencies’ tentative planning and
decision-making schedule.
(e) Notice of intent. As soon as
practicable after determining that a
proposal is sufficiently developed to
allow for meaningful public comment
and requires an environmental impact
statement, the lead agency shall publish
a notice of intent to prepare an
environmental impact statement in the
Federal Register. In addition to the
Federal Register notice, an agency also
may publish notification in accordance
with § 1501.9 of this subchapter. The
notice shall include, as appropriate:
(1) The purpose and need for the
proposed agency action;
(2) A preliminary description of the
proposed action and alternatives the
environmental impact statement will
consider;
(3) A brief summary of expected
effects;
(4) Anticipated permits and other
authorizations;
(5) A schedule for the decisionmaking process;
(6) A description of the public
scoping process, including any scoping
meeting(s);
(7) A request for comment on
alternatives and effects, as well as on
relevant information, studies, or
analyses with respect to the proposed
action;
(8) Contact information for a person
within the agency who can answer
questions about the proposed action and
the environmental impact statement;
(9) Identification of any cooperating
and participating agencies, and any
information that such agencies require
in the notice to facilitate their decisions
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or authorizations that will rely upon the
resulting environmental impact
statement; and
(10) A unique identification number
for tracking purposes, which the agency
shall reference on all environmental
documents prepared for the proposed
action and in any database or tracking
system for such documents.
(f) Notices of withdrawal or
cancellation. If an agency withdraws,
cancels, or otherwise ceases the
consideration of a proposed action
before completing a final environmental
impact statement, the agency shall
publish a notice in the Federal Register.
(g) Revisions. An agency shall revise
the determinations made under
paragraphs (b), (c), and (d) of this
section if substantial changes are made
later in the proposed action, or if
important new circumstances or
information arise that bear on the
proposal or its effects.
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§ 1502.5
An agency should commence
preparation of an environmental impact
statement as close as practicable to the
time the agency is developing or
receives a proposal so that preparation
can be completed in time for the final
statement to be included in any
recommendation or report on the
proposal. The statement shall be
prepared early enough so that it can
serve as an important practical
contribution to the decision-making
process and will not be used to
rationalize or justify decisions already
made (§§ 1501.2 of this subchapter and
1502.2). For instance:
(a) For projects directly undertaken by
Federal agencies, the agency shall
prepare the environmental impact
statement at the feasibility analysis or
equivalent stage evaluating whether to
proceed with the project and may
supplement it at a later stage, if
necessary.
(b) For applications to the agency
requiring an environmental impact
statement, the agency shall commence
the statement as soon as practicable
after receiving the complete application.
Federal agencies should work together
and with potential applicants and
applicable State, Tribal, and local
agencies and governments prior to
receipt of the application.
(c) For adjudication, the final
environmental impact statement shall
normally precede the final staff
recommendation and that portion of the
public hearing related to the impact
study. In appropriate circumstances, the
statement may follow preliminary
hearings designed to gather information
for use in the statement.
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Interdisciplinary preparation.
Agencies shall prepare environmental
impact statements using an
interdisciplinary approach that will
ensure the integrated use of the natural
and social sciences and the
environmental design arts (section
102(2)(A) of NEPA). The disciplines of
the preparers shall be appropriate to the
scope and issues identified in the
scoping process (§ 1502.4 of this
subchapter).
§ 1502.7
Page limits.
The text of final environmental
impact statements, not including
citations or appendices, shall not exceed
150 pages except for proposals of
extraordinary complexity, which shall
not exceed 300 pages.
§ 1502.8
Timing.
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(d) For informal rulemaking, the draft
environmental impact statement shall
normally accompany the proposed rule.
Writing.
Agencies shall write environmental
impact statements in plain language and
should use, as relevant, appropriate
visual aids or charts so that decision
makers and the public can readily
understand such statements. Agencies
should employ writers of clear prose or
editors to write, review, or edit
statements, which shall be based upon
the analysis and supporting data from
the natural and social sciences and the
environmental design arts.
§ 1502.9 Draft, final, and supplemental
statements.
(a) Generally. Except for proposals for
legislation as provided in § 1506.8 of
this subchapter, agencies shall prepare
environmental impact statements in two
stages and, where necessary,
supplement them as provided in
paragraph (d)(1) of this section.
(b) Draft environmental impact
statements. Agencies shall prepare draft
environmental impact statements in
accordance with the scope decided
upon in the scoping process (§ 1502.4 of
this subchapter). The lead agency shall
work with the cooperating agencies and
shall obtain comments as required in
part 1503 of this subchapter. To the
fullest extent practicable, the draft
statement must meet the requirements
established for final statements in
section 102(2)(C) of NEPA and in the
regulations in this subchapter. If the
agency determines that a draft statement
is so inadequate as to preclude
meaningful analysis, the agency shall
prepare and publish a supplemental
draft of the appropriate portion. At
appropriate points in the draft
statement, the agency shall discuss all
major points of view on the
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environmental effects of the
alternatives, including the proposed
action.
(c) Final environmental impact
statements. Final environmental impact
statements shall consider and respond
to comments as required in part 1503 of
this subchapter. At appropriate points
in the final statement, the agency shall
discuss any responsible opposing view
that was not adequately discussed in the
draft statement and shall indicate the
agency’s response to the issues raised.
(d) Supplemental environmental
impact statements. Agencies:
(1) Shall prepare supplements to
either draft or final environmental
impact statements if a major Federal
action is incomplete or ongoing, and:
(i) The agency makes substantial
changes to the proposed action that are
relevant to environmental concerns; or
(ii) There are substantial new
circumstances or information about the
significance of adverse effects that bear
on the analysis.
(2) May also prepare supplements
when the agency determines that the
purposes of the Act will be furthered by
doing so.
(3) Shall prepare, publish, and file a
supplement to an environmental impact
statement (exclusive of scoping
(§ 1502.4 of this subchapter)) as a draft
and final environmental impact
statement, as is appropriate to the stage
of the environmental impact statement
involved, unless the Council approves
alternative arrangements (§ 1506.11 of
this subchapter).
(e) Reevaluation. An agency may
reevaluate an environmental impact
statement to determine that the agency
does need to prepare a supplement
under paragraph (d) of this section. The
agency should document its finding
consistent with its agency NEPA
procedures (§ 1507.3 of this subchapter),
or, if necessary, prepare a supplemental
environmental assessment and finding
of no significant impact.
§ 1502.10
Recommended format.
(a) Agencies shall use a format for
environmental impact statements that
will encourage good analysis and clear
presentation of the alternatives,
including the proposed action. Agencies
should use the following standard
format for environmental impact
statements unless the agency determines
that there is a more effective format for
communication:
(1) Cover (§ 1502.11);
(2) Summary (§ 1502.12);
(3) Table of contents;
(4) Purpose of and need for action
(§ 1502.13);
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(5) Alternatives including the
proposed action (sections 102(2)(C)(iii)
and 102(2)(H) of NEPA) (§ 1502.14);
(6) Affected environment and
environmental consequences (especially
sections 102(2)(C)(i), (ii), (iv), and (v) of
NEPA) (§§ 1502.15 and 1502.16); and
(7) Appendices (§ 1502.19), including
the summary of scoping information
(§ 1502.17) and the list of preparers
(§ 1502.18).
(b) If an agency uses a different
format, it shall include paragraph (a) of
this section, as further described in
§§ 1502.11 through 1502.19, in any
appropriate format.
§ 1502.11
Cover.
The environmental impact statement
cover shall not exceed one page and
shall include:
(a) A list of the lead, joint lead, and,
to the extent feasible, any cooperating
agencies;
(b) The title of the proposed action
that is the subject of the statement (and,
if appropriate, the titles of related
cooperating agency actions), together
with the State(s) and county(ies) (or
other jurisdiction(s), if applicable)
where the action is located;
(c) The name, address, and telephone
number of the person at the agency who
can supply further information;
(d) A designation of the statement as
a draft, final, or draft or final
supplement;
(e) A one-paragraph abstract of the
statement;
(f) The date by which the agency must
receive comments (computed in
cooperation with the Environmental
Protection Agency under § 1506.10 of
this subchapter); and
(g) The identification number
included in the notice of intent
(§ 1502.4(e)(10)).
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§ 1502.12
Summary.
Each environmental impact statement
shall contain a summary that adequately
and accurately summarizes the
statement. The summary shall include
the major conclusions and summarize
any disputed issues raised by agencies
and the public, any issues to be
resolved, and key differences among
alternatives, and identify the
environmentally preferable alternative
or alternatives. Agencies shall write the
summary in plain language and should
use, as relevant, appropriate visual aids
and charts. The summary normally
should not exceed 15 pages.
§ 1502.13
Purpose and need.
The environmental impact statement
shall include a statement that briefly
summarizes the underlying purpose and
need for the proposed agency action.
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§ 1502.14 Alternatives including the
proposed action.
The alternatives section is the heart of
the environmental impact statement.
The alternatives section should identify
the reasonably foreseeable
environmental effects of the proposed
action and the alternatives in
comparative form based on the
information and analysis presented in
the sections on the affected environment
(§ 1502.15) and the environmental
consequences (§ 1502.16). In doing so,
the analysis should sharply define the
issues for the decision maker and the
public and provide a clear basis for
choice among options. In this section,
agencies shall:
(a) Rigorously explore and objectively
evaluate reasonable alternatives to the
proposed action, and, for alternatives
that the agency eliminated from detailed
study, briefly discuss the reasons for
their elimination. The agency need not
consider every conceivable alternative
to a proposed action; rather, it shall
consider a reasonable range of
alternatives that will foster informed
decision making. Agencies also may
include reasonable alternatives not
within the jurisdiction of the lead
agency.
(b) Discuss each alternative
considered in detail, including the
proposed action, so that reviewers may
evaluate their comparative merits.
(c) Include the no action alternative.
(d) Identify the agency’s preferred
alternative or alternatives, if one or
more exists, in the draft statement and
identify such alternative in the final
statement unless another law prohibits
the expression of such a preference.
(e) Include appropriate mitigation
measures not already included in the
proposed action or alternatives.
(f) Identify the environmentally
preferable alternative or alternatives
amongst the alternatives considered in
the environmental impact statement.
The environmentally preferable
alternative will best promote the
national environmental policy
expressed in section 101 of NEPA by
maximizing environmental benefits,
such as addressing climate changerelated effects or disproportionate and
adverse effects on communities with
environmental justice concerns;
protecting, preserving, or enhancing
historic, cultural, Tribal, and natural
resources, including rights of Tribal
Nations that have been reserved through
treaties, statutes, or Executive Orders; or
causing the least damage to the
biological and physical environment.
The environmentally preferable
alternative may be the proposed action,
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the no action alternative, or a reasonable
alternative.
§ 1502.15
Affected environment.
(a) The environmental impact
statement shall succinctly describe the
environment of the area(s) to be affected
by the alternatives under consideration,
including the reasonably foreseeable
environmental trends and planned
actions in the area(s).
(b) Agencies shall use high-quality
information, including reliable data and
resources, models, and Indigenous
Knowledge, to describe reasonably
foreseeable environmental trends,
including anticipated climate-related
changes to the environment, and when
such information is incomplete or
unavailable, provide relevant
information consistent with § 1502.21.
This description of the affected
environment, including existing
environmental conditions, reasonably
foreseeable trends, and planned actions
in the area, should inform the agency’s
analysis of environmental consequences
and mitigation measures (§ 1502.16).
(c) The environmental impact
statement may combine the description
of the affected environment with
evaluation of the environmental
consequences (§ 1502.16). The
description should be no longer than
necessary to understand the relevant
affected environment and the effects of
the alternatives. Data and analyses in a
statement shall be commensurate with
the importance of the effect, with less
important material summarized,
consolidated, or simply referenced.
Agencies shall avoid useless bulk in
statements and shall concentrate effort
and attention on important issues.
Verbose descriptions of the affected
environment are themselves no measure
of the adequacy of an environmental
impact statement.
§ 1502.16
Environmental consequences.
(a) The environmental consequences
section forms the scientific and analytic
basis for the comparisons under
§ 1502.14. It shall consolidate the
discussions of those elements required
by sections 102(2)(C)(i), (ii), (iv), and (v)
of NEPA that are within the scope of the
environmental impact statement and as
much of section 102(2)(C)(iii) of NEPA
as is necessary to support the
comparisons. The comparison of the
proposed action and reasonable
alternatives shall be based on the
discussion of their reasonably
foreseeable effects and the significance
of those effects (§ 1501.3 of this
subchapter), focusing on the significant
or important effects. The no action
alternative should serve as the baseline
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against which the proposed action and
other alternatives are compared. This
section should not duplicate
discussions required by § 1502.14 and
shall include an analysis of:
(1) Any adverse environmental effects
that cannot be avoided should the
proposal be implemented.
(2) The effects of the no action
alternative, including any adverse
environmental effects;
(3) The relationship between shortterm uses of the human environment
and the maintenance and enhancement
of long-term productivity;
(4) Any irreversible or irretrievable
commitments of Federal resources that
would be involved in the proposal
should it be implemented;
(5) Where applicable, possible
conflicts between the proposed action
and the objectives of Federal, regional,
State, Tribal, and local plans, policies,
and controls for the area concerned,
including those addressing climate
change (§ 1506.2(d) of this subchapter);
(6) Where applicable, climate changerelated effects, including, where
feasible, quantification of greenhouse
gas emissions, from the proposed action
and alternatives and the effects of
climate change on the proposed action
and alternatives;
(7) Where applicable, energy
requirements and conservation potential
of various alternatives and mitigation
measures;
(8) Where applicable, natural or
depletable resource requirements and
conservation potential of various
alternatives and mitigation measures;
(9) Where applicable, relevant risk
reduction, resiliency, or adaptation
measures incorporated into the
proposed action or alternatives,
informed by relevant science and data
on the affected environment and
expected future conditions;
(10) Where applicable, urban quality,
historic and cultural resources, and the
design of the built environment,
including the reuse and conservation
potential of various alternatives and
mitigation measures;
(11) Means to mitigate adverse
environmental effects (if not fully
covered under § 1502.14(e));
(12) Where applicable, economic and
technical considerations, including the
economic benefits of the proposed
action; and
(13) Where applicable,
disproportionate and adverse human
health and environmental effects on
communities with environmental justice
concerns.
(b) Economic or social effects by
themselves do not require preparation of
an environmental impact statement.
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However, when the agency determines
that economic or social and natural or
physical environmental effects are
interrelated, the environmental impact
statement shall discuss these effects on
the human environment.
§ 1502.17 Summary of scoping
information.
(a) The draft environmental impact
statement or appendix shall include a
summary of information, including
alternatives and analyses, submitted by
commenters during the scoping process
for consideration by the lead and
cooperating agencies in their
development of the environmental
impact statement.
(b) The agency shall append to the
draft environmental impact statement or
publish all comments (or summaries
thereof where the response has been
exceptionally voluminous) received
during the scoping process.
§ 1502.18
List of preparers.
The environmental impact statement
shall list the names, together with their
qualifications (expertise, experience,
professional disciplines), of the persons
who were primarily responsible for
preparing the environmental impact
statement or important background
papers, including basic components of
the statement. Where possible, the
environmental impact statement shall
identify the persons who are responsible
for a particular analysis, including
analyses in background papers.
Normally the list will not exceed two
pages.
§ 1502.19
Appendix.
If an agency prepares an appendix,
the agency shall publish it with the
environmental impact statement, and it
shall consist of, as appropriate:
(a) Material prepared in connection
with an environmental impact statement
(as distinct from material that is not so
prepared and is incorporated by
reference (§ 1501.12 of this subchapter)).
(b) Material substantiating any
analysis fundamental to the impact
statement.
(c) Material relevant to the decision to
be made.
(d) For draft environmental impact
statements, all comments (or summaries
thereof where the response has been
exceptionally voluminous) received
during the scoping process that
identified information for the agency’s
consideration.
(e) For final environmental impact
statements, the comment summaries
and responses consistent with § 1503.4
of this chapter.
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§ 1502.20 Publication of the environmental
impact statement.
Agencies shall publish the entire draft
and final environmental impact
statements and unchanged statements as
provided in § 1503.4(c) of this
subchapter. The agency shall transmit
the entire statement electronically (or in
paper copy, if requested due to
economic or other hardship) to:
(a) Any Federal agency that has
jurisdiction by law or special expertise
with respect to any environmental
impact involved and any appropriate
Federal, State, Tribal, or local agency
authorized to develop and enforce
environmental standards.
(b) The applicant, if any.
(c) Any person, organization, or
agency requesting the entire
environmental impact statement.
(d) In the case of a final
environmental impact statement, any
person, organization, or agency that
submitted substantive comments on the
draft.
§ 1502.21 Incomplete or unavailable
information.
(a) When an agency is evaluating
reasonably foreseeable significant effects
on the human environment in an
environmental impact statement, and
there is incomplete or unavailable
information, the agency shall make clear
that such information is lacking.
(b) If the incomplete information
relevant to reasonably foreseeable
significant effects is essential to a
reasoned choice among alternatives, and
the overall costs of obtaining it are not
unreasonable, the agency shall include
the information in the environmental
impact statement.
(c) If the information relevant to
reasonably foreseeable significant effects
cannot be obtained because the overall
costs of obtaining it are unreasonable or
the means to obtain it are not known,
the agency shall include within the
environmental impact statement:
(1) A statement that such information
is incomplete or unavailable;
(2) A statement of the relevance of the
incomplete or unavailable information
to evaluating reasonably foreseeable
significant effects on the human
environment;
(3) A summary of existing credible
scientific evidence that is relevant to
evaluating the reasonably foreseeable
significant effects on the human
environment; and
(4) The agency’s evaluation of such
effects based upon theoretical
approaches or research methods
generally accepted in the scientific
community.
(d) For the purposes of this section,
‘‘reasonably foreseeable’’ includes
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effects that have catastrophic
consequences, even if their probability
of occurrence is low, provided that the
analysis of the effects is supported by
credible scientific evidence, is not based
on pure conjecture, and is within the
rule of reason.
§ 1502.22
Cost-benefit analysis.
If an agency is considering a costbenefit analysis for the proposed action
relevant to the choice among
alternatives with different
environmental effects, the agency shall
incorporate the cost-benefit analysis by
reference or append it to the statement
as an aid in evaluating the
environmental consequences. In such
cases, to assess the adequacy of
compliance with section 102(2)(B) of
NEPA (ensuring appropriate
consideration of unquantified
environmental amenities and values in
decision making, along with economical
and technical considerations), the
statement shall discuss the relationship
between that analysis and any analyses
of unquantified environmental impacts,
values, and amenities. For purposes of
complying with the Act, agencies need
not display the weighing of the merits
and drawbacks of the various
alternatives in a monetary cost-benefit
analysis and should not do so when
there are important qualitative
considerations. However, an
environmental impact statement should
at least indicate those considerations,
including factors not related to
environmental quality, that are likely to
be relevant and important to a decision.
§ 1502.23
[Reserved]
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§ 1502.24 Environmental review and
consultation requirements.
(a) To the fullest extent possible,
agencies shall prepare draft
environmental impact statements
concurrent and integrated with
environmental impact analyses and
related surveys and studies required by
all other Federal environmental review
laws and Executive orders applicable to
the proposed action, including the Fish
and Wildlife Coordination Act (16
U.S.C. 661 et seq.), the National Historic
Preservation Act of 1966 (54 U.S.C.
300101 et seq.), and the Endangered
Species Act of 1973 (16 U.S.C. 1531 et
seq.).
(b) The draft environmental impact
statement shall list all Federal permits,
licenses, and other authorizations that
must be obtained in implementing the
proposal. If it is uncertain whether a
Federal permit, license, or other
authorization is necessary, the draft
environmental impact statement shall so
indicate.
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PART 1503—COMMENTING ON
ENVIRONMENTAL IMPACT
STATEMENTS
satisfied that the environmental impact
statement adequately reflects its views,
it should reply that it has no comment.
Sec.
1503.1 Inviting comments and requesting
information and analyses.
1503.2 Duty to comment.
1503.3 Specificity of comments and
information.
1503.4 Response to comments.
§ 1503.3 Specificity of comments and
information.
Authority: 42 U.S.C. 4321–4347; 42 U.S.C.
4371–4375; 42 U.S.C. 7609; and E.O. 11514,
35 FR 4247, 3 CFR, 1966–1970, Comp., p.
902, as amended by E.O. 11991, 42 FR 26967,
3 CFR, 1977 Comp., p. 123.
§ 1503.1 Inviting comments and
requesting information and analyses.
(a) After preparing a draft
environmental impact statement and
before preparing a final environmental
impact statement the agency shall:
(1) Obtain the comments of any
Federal agency that has jurisdiction by
law or special expertise with respect to
any environmental impact involved or
is authorized to develop and enforce
environmental standards; and
(2) Request the comments of:
(i) Appropriate State, Tribal, and local
agencies that are authorized to develop
and enforce environmental standards;
(ii) State, Tribal, or local governments
that may be affected by the proposed
action;
(iii) Any agency that has requested it
receive statements on actions of the
kind proposed;
(iv) The applicant, if any; and
(v) The public, affirmatively soliciting
comments in a manner designed to
inform those persons or organizations
who may be interested in or affected by
the proposed action.
(b) An agency may request comments
on a final environmental impact
statement before the final decision and
set a deadline for providing such
comments. Other agencies or persons
may make comments consistent with
the time periods under § 1506.10 of this
subchapter.
(c) An agency shall provide for
electronic submission of public
comments, with reasonable measures to
ensure the comment process is
accessible to affected persons.
§ 1503.2
Duty to comment.
Cooperating agencies and agencies
that are authorized to develop and
enforce environmental standards shall
comment on environmental impact
statements within their jurisdiction,
expertise, or authority within the time
period specified for comment in
§ 1506.10 of this subchapter. A Federal
agency may reply that it has no
comment. If a cooperating agency is
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(a) To promote informed decision
making, comments on an environmental
impact statement or on a proposed
action shall be as specific as possible,
and may address either the adequacy of
the statement or the merits of the
alternatives discussed or both.
Comments should explain why the
issues raised are important to the
consideration of potential
environmental effects and alternatives
to the proposed action. Where possible,
comments should reference the
corresponding section or page number
of the draft environmental impact
statement, propose specific changes to
those parts of the statement, and
describe any data, sources, or
methodologies that support the
proposed changes.
(b) When a participating agency
criticizes a lead agency’s predictive
methodology, the participating agency
should describe the alternative
methodology that it prefers and why.
(c) A cooperating agency shall specify
in its comments whether it needs
additional information to fulfill other
applicable environmental review or
consultation requirements and what
information it needs. In particular, it
shall specify any additional information
it needs to comment adequately on the
draft statement’s analysis of significant
effects associated with the granting or
approving by that cooperating agency of
necessary Federal permits, licenses, or
authorizations.
(d) A cooperating agency with
jurisdiction by law shall specify
mitigation measures it considers
necessary to allow the agency to grant
or approve applicable authorizations or
concurrences and cite to its applicable
statutory authority.
§ 1503.4
Response to comments.
(a) An agency preparing a final
environmental impact statement shall
consider substantive comments timely
submitted during the public comment
period. The agency shall respond to
individual comments or groups of
comments. In the final environmental
impact statement, the agency may
respond by:
(1) Modifying alternatives including
the proposed action;
(2) Developing and evaluating
alternatives not previously given serious
consideration by the agency;
(3) Supplementing, improving, or
modifying its analyses;
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(4) Making factual corrections; or
(5) Explaining why the comments do
not warrant further agency response,
recognizing that agencies are not
required to respond to each comment.
(b) An agency shall append or
otherwise publish all substantive
comments received on the draft
statement (or summaries thereof where
the response has been exceptionally
voluminous).
(c) If changes in response to
comments are minor and are confined to
the responses described in paragraphs
(a)(4) and (5) of this section, an agency
may write any changes on errata sheets
and attach the responses to the
statement instead of rewriting the draft
statement. In such cases, the agency
shall publish the final statement
(§ 1502.20 of this subchapter), which
includes the errata sheet, a copy of the
draft statement, the comments, and the
responses to those comments. The
agency shall file the final statement with
the Environmental Protection Agency
(§ 1506.10 of this subchapter).
PART 1504—DISPUTE RESOLUTION
AND PRE-DECISIONAL REFERRALS
Sec.
1504.1 Purpose.
1504.2 Early dispute resolution.
1504.3 Criteria and procedure for referrals
and response.
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.
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§ 1504.1
Purpose.
(a) This part establishes procedures
for referring to the Council Federal
interagency disagreements concerning
proposed major Federal actions that
might cause unsatisfactory
environmental effects. It provides means
for early resolution of such
disagreements, and encourages Federal
agencies to engage with each other as
early as practicable to resolve
interagency disagreements concerning
proposed major Federal actions before
referring disputes to the Council. This
part also establishes procedures for
Federal agencies to submit a request to
the Council to provide informal dispute
resolution on NEPA issues.
(b) Section 309 of the Clean Air Act
(42 U.S.C. 7609) directs the
Administrator of the Environmental
Protection Agency to review and
comment publicly on the environmental
impacts of Federal activities, including
actions for which agencies prepare
environmental impact statements. If,
after this review, the Administrator
determines that the matter is
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‘‘unsatisfactory from the standpoint of
public health or welfare or
environmental quality,’’ section 309
directs that the matter be referred to the
Council.
(c) Under section 102(2)(C) of NEPA
(42 U.S.C. 4332(2)(C)), other Federal
agencies may prepare reviews of
environmental impact statements,
including judgments on the
acceptability of anticipated
environmental impacts. These agencies
must make these reviews available to
the President, the Council, and the
public.
§ 1504.2
Early dispute resolution.
(a) Federal agencies should engage in
interagency coordination and
collaboration in their planning and
decision-making processes and should
identify and resolve disputes
concerning proposed major Federal
actions early in the NEPA process. To
the extent practicable, agencies should
elevate issues to appropriate agency
officials or the Council in a timely
manner that will accommodate
schedules consistent with § 1501.10 of
this subchapter.
(b) A Federal agency may request that
the Council engage in informal dispute
resolution to provide recommendations
on how to resolve an interagency
dispute concerning an environmental
review. In making the request, the
agency shall provide the Council with a
summary of the proposed action,
information on the disputed issues, and
agency points of contact.
(c) In response to a request for
informal dispute resolution, the Council
may request additional information,
provide non-binding recommendations,
convene meetings of those agency
decision makers necessary to resolve
disputes, or determine that informal
dispute resolution is unhelpful or
inappropriate.
§ 1504.3 Criteria and procedure for
referrals and response.
(a) Federal agencies should make
environmental referrals to the Council
only after concerted, timely (as early as
practicable in the process), but
unsuccessful attempts to resolve
differences with the lead agency. In
determining what environmental
objections to the matter are appropriate
to refer to the Council, an agency should
weigh potential adverse environmental
effects, considering:
(1) Possible violation of national
environmental standards or policies;
(2) Severity;
(3) Geographical scope;
(4) Duration;
(5) Importance as precedents;
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(6) Availability of environmentally
preferable alternatives;
(7) Economic and technical
considerations, including the economic
costs of delaying or impeding the
decision making of the agencies
involved in the action; and
(8) Other appropriate considerations.
(b) A Federal agency making the
referral to the Council shall:
(1) Notify the lead agency at the
earliest possible time that it intends to
refer a matter to the Council unless a
satisfactory agreement is reached;
(2) Include such a notification
whenever practicable in the referring
agency’s comments on the
environmental assessment or draft
environmental impact statement;
(3) Identify any essential information
that is lacking and request that the lead
agency make it available at the earliest
possible time; and
(4) Send copies of the referring
agency’s views to the Council.
(c) The referring agency shall deliver
its referral to the Council no later than
25 days after the lead agency has made
the final environmental impact
statement available to the
Environmental Protection Agency,
participating agencies, and the public,
and in the case of an environmental
assessment, no later than 25 days after
the lead agency makes it available.
Except when the lead agency grants an
extension of this period, the Council
will not accept a referral after that date.
(d) The referral shall consist of:
(1) A copy of the letter signed by the
head of the referring agency and
delivered to the lead agency informing
the lead agency of the referral and the
reasons for it; and
(2) A statement supported by factual
evidence leading to the conclusion that
the matter is unsatisfactory from the
standpoint of public health or welfare or
environmental quality. The statement
shall:
(i) Identify any disputed material facts
and incorporate (by reference if
appropriate) agreed upon facts;
(ii) Identify any existing
environmental requirements or policies
that would be violated by the matter;
(iii) Present the reasons for the
referral;
(iv) Contain a finding by the agency
whether the issue raised is of national
importance because of the threat to
national environmental resources or
policies or for some other reason;
(v) Review the steps taken by the
referring agency to bring its concerns to
the attention of the lead agency at the
earliest possible time; and
(vi) Give the referring agency’s
recommendations as to what mitigation
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alternative, further study, or other
course of action (including
abandonment of the matter) are
necessary to remedy the situation.
(e) No later than 25 days after the
referral to the Council, the lead agency
may deliver a response to the Council
and the referring agency. If the lead
agency requests more time and gives
assurance that the matter will not go
forward in the interim, the Council may
grant an extension. The response shall:
(1) Address fully the issues raised in
the referral;
(2) Be supported by evidence and
explanations, as appropriate; and
(3) Give the lead agency’s response to
the referring agency’s recommendations.
(f) Applicants or other interested
persons may provide views in writing to
the Council no later than the response.
(g) No later than 25 days after receipt
of both the referral and any response or
upon being informed that there will be
no response (unless the lead agency
agrees to a longer time), the Council
may take one or more of the following
actions:
(1) Conclude that the process of
referral and response has successfully
resolved the problem.
(2) Initiate discussions with the
agencies with the objective of mediation
with referring and lead agencies.
(3) Obtain additional views and
information, including through public
meetings or hearings.
(4) Determine that the issue is not one
of national importance and request the
referring and lead agencies to pursue
their decision process.
(5) Determine that the referring and
lead agencies should further negotiate
the issue, and the issue is not
appropriate for Council consideration
until one or more heads of agencies
report to the Council that the agencies’
disagreements are irreconcilable.
(6) Publish its findings and
recommendations (including, where
appropriate, a finding that the submitted
evidence does not support the position
of an agency).
(7) When appropriate, submit the
referral and the response together with
the Council’s recommendation to the
President for action.
(h) The Council shall take no longer
than 60 days to complete the actions
specified in paragraph (g)(2), (3), or (5)
of this section.
(i) The referral process is not intended
to create any private rights of action or
to be judicially reviewable because any
voluntary resolutions by the agency
parties do not represent final agency
action and instead are only provisional
and dependent on later consistent
action by the action agencies.
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PART 1505—NEPA AND AGENCY
DECISION MAKING
Sec.
1505.1 [Reserved]
1505.2 Record of decision in cases requiring
environmental impact statements.
1505.3 Implementing the decision.
Authority: 42 U.S.C. 4321–4347; 42 U.S.C.
4371–4375; 42 U.S.C. 7609; and E.O. 11514,
35 FR 4247, 3 CFR, 1966–1970, Comp., p.
902, as amended by E.O. 11991, 42 FR 26967,
3 CFR, 1977 Comp., p. 123.
§ 1505.1
[Reserved]
§ 1505.2 Record of decision in cases
requiring environmental impact statements.
At the time of its decision (§ 1506.10
of this subchapter) or, if appropriate, its
recommendation to Congress, each
agency shall prepare and timely publish
a concise public record of decision or
joint record of decision. The record,
which each agency may integrate into
any other record it prepares, shall:
(a) State the decision.
(b) Identify alternatives considered by
the agency in reaching its decision. The
agency also shall specify the
environmentally preferable alternative
or alternatives (§ 1502.14(f) of this
subchapter). The agency may discuss
preferences among alternatives based on
relevant factors, including
environmental, economic, and technical
considerations and agency statutory
missions. The agency shall identify and
discuss all such factors, including any
essential considerations of national
policy, that the agency balanced in
making its decision and state how those
considerations entered into its decision.
(c) State whether the agency has
adopted all practicable means to
mitigate environmental harm from the
alternative selected, and if not, why the
agency did not. Mitigation shall be
enforceable when the record of decision
incorporates mitigation and the analysis
of the reasonably foreseeable effects of
the proposed action is based on
implementation of that mitigation. The
agency shall identify the authority for
enforceable mitigation, such as through
permit conditions, agreements, or other
measures, and prepare a monitoring and
compliance plan consistent with
§ 1505.3(c).
§ 1505.3
Implementing the decision.
(a) In addition to the requirements of
paragraph (c) of this section, agencies
may provide for monitoring to assure
that their decisions are carried out and
should do so in important cases.
Mitigation (§ 1505.2(c)) and other
conditions established in the
environmental impact statement or
during its review and committed as part
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35569
of the decision shall be implemented by
the lead agency or other appropriate
consenting agency. The agency shall:
(1) Include appropriate conditions in
grants, permits, or other approvals; and
(2) Condition funding of actions on
mitigation.
(b) The lead or cooperating agency
should, where relevant and appropriate,
incorporate into its decision mitigation
measures that address or ameliorate
significant human health and
environmental effects of proposed
Federal actions that disproportionately
and adversely affect communities with
environmental justice concerns.
(c) The lead or cooperating agency
shall prepare and publish a monitoring
and compliance plan for mitigation
when:
(1) The analysis of the reasonably
foreseeable effects of a proposed action
in an environmental assessment or
environmental impact statement is
based on implementation of mitigation;
and
(2) The agency incorporates the
mitigation into a record of decision,
finding of no significant impact, or
separate decision document.
(d) The agency should tailor the
contents of a monitoring and
compliance plan required by paragraph
(c) of this section to the complexity of
the mitigation committed to and
include:
(1) A basic description of the
mitigation measure or measures;
(2) The parties responsible for
monitoring and implementing the
mitigation;
(3) If appropriate, how monitoring
information will be made publicly
available;
(4) The anticipated timeframe for
implementing and completing
mitigation;
(5) The standards for determining
compliance with the mitigation and the
consequences of non-compliance; and
(6) How the mitigation will be funded.
(e) If an action is incomplete or
ongoing, an agency does not need to
supplement its environmental impact
statement (§ 1502.9(d) of this
subchapter) or environmental
assessment (§ 1501.5 of this subchapter)
or revise its record of decision or
finding of no significant impact or
separate decision document based
solely on new information developed
through a monitoring and compliance
plan required by paragraph (c) of this
section. The ongoing implementation of
a monitoring and compliance plan shall
not be considered an incomplete or
ongoing Federal action.
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PART 1506—OTHER REQUIREMENTS
OF NEPA
Sec.
1506.1 Limitations on actions during NEPA
process.
1506.2 Elimination of duplication with
State, Tribal, and local procedures.
1506.3 Adoption.
1506.4 Combining documents.
1506.5 Agency responsibility for
environmental documents.
1506.6 Methodology and scientific
accuracy.
1506.7 Further guidance.
1506.8 Proposals for legislation.
1506.9 Filing requirements.
1506.10 Timing of agency action.
1506.11 Emergencies.
1506.12 Effective date.
Authority: 42 U.S.C. 4321–4347; 42 U.S.C.
4371–4375; 42 U.S.C. 7609; and E.O. 11514,
35 FR 4247, 3 CFR, 1966–1970, Comp., p.
902, as amended by E.O. 11991, 42 FR 26967,
3 CFR, 1977 Comp., p. 123.
ddrumheller on DSK120RN23PROD with RULES4
§ 1506.1 Limitations on actions during
NEPA process.
(a) Except as provided in paragraphs
(b) and (c) of this section, until an
agency issues a finding of no significant
impact, as provided in § 1501.6 of this
subchapter, or record of decision, as
provided in § 1505.2 of this subchapter,
no action concerning the proposal may
be taken that would:
(1) Have an adverse environmental
effect; or
(2) Limit the choice of reasonable
alternatives.
(b) If an agency is considering an
application from an applicant and is
aware that the applicant is about to take
an action within the agency’s
jurisdiction that would meet either of
the criteria in paragraph (a) of this
section, then the agency shall promptly
notify the applicant that the agency will
take appropriate action to ensure that
the objectives and procedures of NEPA
are achieved. This section does not
preclude development by applicants of
plans or designs or performance of other
activities necessary to support an
application for Federal, State, Tribal, or
local permits or assistance. An agency
considering a proposed action for
Federal funding may authorize such
activities, including, but not limited to,
acquisition of interests in land (e.g., fee
simple, rights-of-way, and conservation
easements), purchase of long lead-time
equipment, and purchase options made
by applicants, if the agency determines
that such activities would not limit the
choice of reasonable alternatives and
notifies the applicant that the agency
retains discretion to select any
reasonable alternative or the no action
alternative regardless of any activity
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taken by the applicant prior to the
conclusion of the NEPA process.
(c) While work on a required
environmental review for a program is
in progress and an action is not covered
by an existing environmental document,
agencies shall not undertake in the
interim any major Federal action
covered by the program that may
significantly affect the quality of the
human environment unless such action:
(1) Is justified independently of the
program;
(2) Is itself accompanied by an
adequate environmental review; and
(3) Will not prejudice the ultimate
decision on the program. Interim action
prejudices the ultimate decision on the
program when it tends to determine
subsequent development or limit
alternatives.
§ 1506.2 Elimination of duplication with
State, Tribal, and local procedures.
(a) Federal agencies are authorized to
cooperate with State, Tribal, and local
agencies that are responsible for
preparing environmental documents,
including those prepared pursuant to
section 102(2)(G) of NEPA.
(b) To the fullest extent practicable
unless specifically prohibited by law,
agencies shall cooperate with State,
Tribal, and local agencies to reduce
duplication between NEPA and State,
Tribal, and local requirements,
including through use of studies,
analyses, and decisions developed by
State, Tribal, or local agencies. Except
for cases covered by paragraph (a) of
this section, such cooperation shall
include, to the fullest extent practicable:
(1) Joint planning processes.
(2) Joint environmental research and
studies.
(3) Joint public hearings (except
where otherwise provided by statute).
(4) Joint environmental assessments.
(c) To the fullest extent practicable
unless specifically prohibited by law,
agencies shall cooperate with State,
Tribal, and local agencies to reduce
duplication between NEPA and
comparable State, Tribal, and local
requirements. Such cooperation shall
include, to the fullest extent practicable,
joint environmental impact statements.
In such cases, one or more Federal
agencies and one or more State, Tribal,
or local agencies shall be joint lead
agencies. Where State or Tribal laws or
local ordinances have environmental
impact statement or similar
requirements in addition to but not in
conflict with those in NEPA, Federal
agencies may cooperate in fulfilling
these requirements, as well as those of
Federal laws, so that one document will
comply with all applicable laws.
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(d) To better integrate environmental
impact statements into State, Tribal, or
local planning processes, environmental
impact statements shall discuss any
inconsistency of a proposed action with
any approved State, Tribal, or local plan
or law (whether or not federally
sanctioned). Where an inconsistency
exists, the statement should describe the
extent to which the agency would
reconcile its proposed action with the
plan or law. While the statement should
discuss any inconsistencies, NEPA does
not require reconciliation.
§ 1506.3
Adoption.
(a) Generally. An agency may adopt a
draft or final environmental impact
statement, environmental assessment, or
portion thereof, or categorical exclusion
determination, consistent with this
section.
(b) Environmental impact statements.
An agency may adopt another agency’s
draft or final environmental impact
statement, or portion thereof, provided
that the adopting agency conducts an
independent review of the statement
and concludes that it meets the
standards for an adequate statement,
pursuant to the regulations in this
subchapter and the adopting agency’s
NEPA procedures.
(1) If the actions covered by the
original environmental impact
statement and the proposed action are
substantially the same, the adopting
agency shall republish and file it as a
final statement consistent with § 1506.9.
If the actions are not substantially the
same or the adopting agency determines
that the statement may require
supplementation consistent with
§ 1502.9 of this subchapter, the adopting
agency shall treat the statement as a
draft, supplement or reevaluate it as
necessary, and republish and file it,
consistent with § 1506.9.
(2) Notwithstanding paragraph (b)(1)
of this section, if a cooperating agency
does not issue a record of decision
jointly or concurrently consistent with
§ 1505.2 of this subchapter, a
cooperating agency may issue a record
of decision adopting the environmental
impact statement of a lead agency
without republication.
(c) Environmental assessments. An
agency may adopt another agency’s
environmental assessment, or portion
thereof, if the actions covered by the
original environmental assessment and
the proposed action are substantially the
same, and the assessment meets the
standards for an adequate
environmental assessment under the
regulations in this subchapter and the
adopting agency’s NEPA procedures. If
the actions are not substantially the
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same or the adopting agency determines
that the environmental assessment may
require supplementation consistent with
§ 1501.5(h) of this subchapter, the
adopting agency may adopt and
supplement or reevaluate the
environmental assessment as necessary,
issue its finding of no significant
impact, and provide notice consistent
with § 1501.6 of this subchapter.
(d) Categorical exclusion
determinations. An agency may adopt
another agency’s determination that a
categorical exclusion applies to a
particular proposed action if the action
covered by that determination and the
adopting agency’s proposed action are
substantially the same. In such
circumstances, the adopting agency
shall:
(1) Document its adoption, including
the determination that its proposed
action is substantially the same as the
action covered by the original
categorical exclusion determination and
that there are no extraordinary
circumstances present that require the
preparation of an environmental
assessment or environmental impact
statement; and
(2) Publish its adoption determination
on an agency website or otherwise make
it publicly available.
(e) Identification of certain
circumstances. The adopting agency
shall specify if one of the following
circumstances is present:
(1) The agency is adopting an
environmental assessment or
environmental impact statement that is
not final within the agency that
prepared it.
(2) The action assessed in the
environmental assessment or
environmental impact statement is the
subject of a referral under part 1504 of
this subchapter.
(3) The environmental assessment or
environmental impact statement’s
adequacy is the subject of a judicial
action that is not final.
§ 1506.4
Combining documents.
Agencies should combine, to the
fullest extent practicable, any
environmental document with any other
agency document to reduce duplication
and paperwork.
ddrumheller on DSK120RN23PROD with RULES4
§ 1506.5 Agency responsibility for
environmental documents.
(a) Agency responsibility. The agency
is responsible for the accuracy, scope
(§ 1501.3(b) of this subchapter), and
content of environmental documents
and shall ensure they are prepared with
professional and scientific integrity,
using reliable data and resources,
regardless of whether they are prepared
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by the agency or a contractor under the
supervision and direction of the agency
or by the applicant under procedures
the agency adopts pursuant to section
107(f) of NEPA and § 1507.3(c)(12) of
this subchapter. The agency shall
exercise its independent judgment and
briefly document its determination that
an environmental document meets the
standards under NEPA, the regulations
in this subchapter, and the agency’s
NEPA procedures.
(b) Applicant-provided information.
An agency may require an applicant to
submit environmental information for
possible use by the agency in preparing
an environmental document.
(1) The agency should assist the
applicant by outlining the types of
information required for the preparation
of environmental documents.
(2) The agency shall independently
evaluate the information submitted by
the applicant and, to the extent it is
integrated into the environmental
document, shall be responsible for its
accuracy, scope, and contents.
(3) An agency may allow an applicant
to prepare environmental assessments
and environmental impact statements
pursuant to its agency procedures,
consistent with section 107(f) of NEPA
and § 1507.3(c)(12) of this subchapter.
(c) Agency-directed contractor. An
agency may authorize a contractor to
prepare an environmental document
under the supervision and direction of
the agency.
(1) The agency shall provide guidance
to the contractor and participate in and
supervise the environmental
document’s preparation.
(2) The agency shall independently
evaluate the environmental document
prepared by the agency-directed
contractor, shall be responsible for its
accuracy, scope, and contents, and
document the agency’s evaluation in the
environmental document.
(3) The agency shall include in the
environmental document the names and
qualifications of the persons preparing
environmental documents, and
conducting the independent evaluation
of any information submitted or
environmental documents prepared by a
contractor, such as in the list of
preparers for environmental impact
statements (§ 1502.18 of this
subchapter). It is the intent of this
paragraph (c)(3) that acceptable work
not be redone, but that it be verified by
the agency.
(4) The lead agency or, where
appropriate, a cooperating agency shall
prepare a disclosure statement for the
contractor’s execution specifying that
the contractor has no financial or other
interest in the outcome of the action.
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35571
Such statement need not include
privileged or confidential trade secrets
or other confidential business
information.
(d) Information generally. Nothing in
this section is intended to prohibit an
agency from requesting any person,
including the applicant, to submit
information to it or to prohibit any
person from submitting information to
an agency for use in preparing
environmental documents.
§ 1506.6 Methodology and scientific
accuracy.
(a) Agencies shall ensure the
professional integrity, including
scientific integrity, of the discussions
and analyses in environmental
documents.
(b) In preparing environmental
documents, agencies shall use highquality information, including reliable
data and resources, models, and
Indigenous Knowledge. Agencies may
rely on existing information as well as
information obtained to inform the
analysis. Agencies may use any reliable
data sources, such as remotely gathered
information or statistical models.
Agencies shall explain any relevant
assumptions or limitations of the
information or the particular model or
methodology selected for use.
(c) Agencies shall identify any
methodologies used and shall make
explicit reference to the scientific and
other sources relied upon for
conclusions in the environmental
document. Agencies may place
discussion of methodology in an
appendix.
(d) Where appropriate, agencies shall
use projections when evaluating the
reasonably foreseeable effects, including
climate change-related effects. Such
projections may employ mathematical
or other models that project a range of
possible future outcomes, so long as
agencies disclose the relevant
assumptions or limitations.
§ 1506.7
Further guidance.
(a) The Council may provide further
guidance concerning NEPA and its
procedures.
(b) To the extent that Council
guidance issued prior to July 1, 2024 is
in conflict with this subchapter, the
provisions of this subchapter apply.
§ 1506.8
Proposals for legislation.
(a) When developing legislation,
agencies shall integrate the NEPA
process for proposals for legislation
significantly affecting the quality of the
human environment with the legislative
process of the Congress. Technical
drafting assistance does not by itself
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constitute a legislative proposal. Only
the agency that has primary
responsibility for the subject matter
involved will prepare a legislative
environmental impact statement.
(b) A legislative environmental impact
statement is the detailed statement
required by law to be included in an
agency’s recommendation or report on a
legislative proposal to Congress. A
legislative environmental impact
statement shall be considered part of the
formal transmittal of a legislative
proposal to Congress; however, it may
be transmitted to Congress up to 30 days
later to allow time for completion of an
accurate statement that can serve as the
basis for public and Congressional
debate. The statement must be available
in time for Congressional hearings and
deliberations.
(c) Preparation of a legislative
environmental impact statement shall
conform to the requirements of the
regulations in this subchapter, except as
follows:
(1) There need not be a scoping
process.
(2) Agencies shall prepare the
legislative statement in the same
manner as a draft environmental impact
statement and need not prepare a final
statement unless any of the following
conditions exist. In such cases, the
agency shall prepare and publish the
statements consistent with §§ 1503.1 of
this subchapter and 1506.10:
(i) A Congressional committee with
jurisdiction over the proposal has a rule
requiring both draft and final
environmental impact statements.
(ii) The proposal results from a study
process required by statute (such as
those required by the Wild and Scenic
Rivers Act (16 U.S.C. 1271 et seq.)).
(iii) Legislative approval is sought for
Federal or federally assisted
construction or other projects that the
agency recommends be located at
specific geographic locations. For
proposals requiring an environmental
impact statement for the acquisition of
space by the General Services
Administration, a draft statement shall
accompany the Prospectus or the 11(b)
Report of Building Project Surveys to
the Congress, and a final statement shall
be completed before site acquisition.
(iv) The agency decides to prepare
draft and final statements.
(d) Comments on the legislative
statement shall be given to the lead
agency, which shall forward them along
with its own responses to the
Congressional committees with
jurisdiction.
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§ 1506.9
Filing requirements.
(a) Agencies shall file environmental
impact statements together with
comments and responses with the
Environmental Protection Agency,
Office of Federal Activities, consistent
with the Environmental Protection
Agency’s procedures.
(b) Agencies shall file statements with
the Environmental Protection Agency
no earlier than they are also transmitted
to participating agencies and made
available to the public. The
Environmental Protection Agency may
issue guidelines to agencies to
implement its responsibilities under
this section and § 1506.10.
(c) Agencies shall file an adoption of
an environmental impact statement with
the Environmental Protection Agency
(see § 1506.3(b)(1)).
§ 1506.10
Timing of agency action.
(a) The Environmental Protection
Agency shall publish a notice in the
Federal Register each week of the
environmental impact statements filed
since its prior notice. The minimum
time periods set forth in this section are
calculated from the date of publication
of this notice.
(b) Unless otherwise provided by law,
including statutory provisions for
combining a final environmental impact
statement and record of decision,
Federal agencies shall not make or issue
a record of decision under § 1505.2 of
this subchapter for the proposed action
until the later of the following dates:
(1) 90 days after publication of the
notice described in paragraph (a) of this
section for a draft environmental impact
statement.
(2) 30 days after publication of the
notice described in paragraph (a) of this
section for a final environmental impact
statement.
(c) An agency may make an exception
to the rule on timing set forth in
paragraph (b) of this section for a
proposed action in the following
circumstances:
(1) Some agencies have formally
established administrative review
processes (e.g., appeals, objections,
protests), which may be initiated prior
to or after filing and publication of the
final environmental impact statement
with the Environmental Protection
Agency, that allow other agencies or the
public to raise issues about a decision
and make their views known. In such
cases where a real opportunity exists to
alter the decision, the agency may make
and record the decision at the same time
it publishes the environmental impact
statement. This means that the period
for administrative review of the decision
and the 30-day period set forth in
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paragraph (b)(2) of this section may run
concurrently. In such cases, the
environmental impact statement shall
explain the timing and the public’s right
of administrative review and provide
notification consistent with § 1506.9; or
(2) An agency engaged in rulemaking
under the Administrative Procedure Act
or other statute for the purpose of
protecting the public health or safety
may waive the time period in paragraph
(b)(2) of this section, publish a decision
on the final rule simultaneously with
publication of the notice of the
availability of the final environmental
impact statement, and provide
notification consistent with § 1506.9, as
described in paragraph (a) of this
section.
(d) If an agency files the final
environmental impact statement within
90 days of the filing of the draft
environmental impact statement with
the Environmental Protection Agency,
the minimum 30-day and 90-day
periods may run concurrently. However,
subject to paragraph (e) of this section,
agencies shall allow at least 45 days for
comments on draft statements.
(e) The lead agency may extend the
minimum periods in paragraph (b) of
this section and provide notification
consistent with § 1506.9. Upon a
showing by the lead agency of
compelling reasons of national policy,
the Environmental Protection Agency
may reduce the minimum periods and,
upon a showing by any other Federal
agency of compelling reasons of
national policy, also may extend the
minimum periods, but only after
consultation with the lead agency. The
lead agency may modify the minimum
periods when necessary to comply with
other specific statutory requirements
(§ 1507.3(d)(4) of this subchapter).
Failure to file timely comments shall
not be a sufficient reason for extending
a period. If the lead agency does not
concur with the extension of time, the
Environmental Protection Agency may
not extend it for more than 30 days.
When the Environmental Protection
Agency reduces or extends any period it
shall notify the Council.
§ 1506.11
Emergencies.
Where emergency circumstances
make it necessary to take an action with
significant effects without observing the
provisions of the regulations in this
subchapter, the Federal agency taking
the action shall consult with the
Council about alternative arrangements
for compliance with section 102(2)(C) of
NEPA. Agencies and the Council shall
limit such arrangements to actions
necessary to control the immediate
impacts of the emergency; other actions
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remain subject to NEPA review
consistent with this subchapter.
Alternative arrangements do not waive
the requirement to comply with the
statute, but establish an alternative
means for NEPA compliance.
§ 1506.12
Effective date.
The regulations in this subchapter
apply to any NEPA process begun after
July 1, 2024. An agency may apply the
regulations in this subchapter to
ongoing activities and environmental
documents begun before July 1, 2024.
PART 1507—AGENCY COMPLIANCE
Sec.
1507.1
1507.2
1507.3
1507.4
Compliance.
Agency capability to comply.
Agency NEPA procedures.
Agency NEPA program information.
Authority: 42 U.S.C. 4321–4347; 42 U.S.C.
4371–4375; 42 U.S.C. 7609; 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.
§ 1507.1
Compliance.
All agencies of the Federal
Government shall comply with the
regulations in this subchapter. It is the
intent of these regulations to allow each
agency flexibility in adapting its
implementing procedures authorized by
§ 1507.3 to the requirements of other
applicable laws.
ddrumheller on DSK120RN23PROD with RULES4
§ 1507.2
Agency capability to comply.
Each agency shall be capable (in terms
of personnel and other resources) of
complying with the requirements of
NEPA and the regulations in this
subchapter. Such compliance may
include use of the resources of other
agencies, applicants, and other
participants in the NEPA process, but
the agency using the resources shall
itself have sufficient capability to
evaluate what others do for it and
account for the contributions of others.
Agencies shall:
(a) Designate a senior agency official
to be responsible for overall review of
agency NEPA compliance, including
resolving implementation issues, and a
Chief Public Engagement Officer to be
responsible for facilitating community
engagement in environmental reviews
across the agency and, where
appropriate, the provision of technical
assistance to communities. When the
agency is a department, it may be
efficient for major subunits (with the
consent of the department) to identify
senior agency officials or Chief Public
Engagement Officers within those
subunits, whom the department-level
official or Officer oversees.
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(b) Fulfill the requirements of section
102(2)(A) of NEPA to utilize a
systematic, interdisciplinary approach
that will ensure the integrated use of the
natural and social sciences and the
environmental design arts in planning
and in decision making that may have
an impact on the human environment.
(c) Identify methods and procedures
required by section 102(2)(B) of NEPA
to ensure that presently unquantified
environmental amenities and values
may be given appropriate consideration.
(d) Prepare adequate environmental
impact statements pursuant to section
102(2)(C) of NEPA and cooperate on the
development of environmental impact
statements in the areas where the
agency has jurisdiction by law or special
expertise or is authorized to develop
and enforce environmental standards.
(e) Ensure environmental documents
are prepared with professional integrity,
including scientific integrity, consistent
with section 102(2)(D) of NEPA.
(f) Make use of reliable data and
resources in carrying out their
responsibilities under NEPA, consistent
with section 102(2)(E) of NEPA.
(g) Study, develop, and describe
technically and economically feasible
alternatives, consistent with section
102(2)(F) of NEPA.
(h) Study, develop, and describe
alternatives to recommended courses of
action in any proposal that involves
unresolved conflicts concerning
alternative uses of available resources,
consistent with section 102(2)(H) of
NEPA.
(i) Comply with the requirement of
section 102(2)(K) of NEPA that the
agency initiate and utilize ecological
information in the planning and
development of resource-oriented
projects.
(j) Fulfill the requirements of sections
102(2)(I), 102(2)(J), and 102(2)(L), of
NEPA, and Executive Order 11514,
Protection and Enhancement of
Environmental Quality, section 2, as
amended by Executive Order 11991,
Relating to Protection and Enhancement
of Environmental Quality.
§ 1507.3
Agency NEPA procedures.
(a) The Council has determined that
the revisions to this subchapter as of
July 1, 2024 do not affect the validity of
categorical exclusions contained in
agency NEPA procedures as of this date.
(b) No more than 12 months after July
1, 2024, or 9 months after the
establishment of an agency, whichever
comes later, each agency shall develop
or revise, as necessary, proposed
procedures to implement the regulations
in this subchapter, facilitate efficient
decision making, and ensure that the
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agency makes decisions in accordance
with the policies and requirements of
the Act. When the agency is a
department, it may be efficient for major
subunits (with the consent of the
department) to adopt their own
procedures.
(1) Each agency shall consult with the
Council while developing or revising its
proposed procedures and before
publishing them in the Federal Register
for comment. Agencies with similar
programs should consult with each
other and the Council to coordinate
their procedures, especially for
programs requesting similar information
from applicants.
(2) Agencies shall provide an
opportunity for public review and
review by the Council for conformity
with the Act and the regulations in this
subchapter before issuing their final
procedures. The Council shall complete
its review within 30 days of the receipt
of the proposed final procedures. Once
in effect, agencies shall publish their
NEPA procedures and ensure that they
are readily available to the public.
Agencies shall continue to review their
policies and procedures, in consultation
with the Council, and revise them as
necessary to ensure full compliance
with the purposes and provisions of the
Act.
(3) The issuance or update of agency
procedures is not subject to NEPA
review under this subchapter.
(c) Agency procedures shall:
(1) Designate the major decision
points for the agency’s programs and
actions subject to NEPA, ensuring that
the NEPA process begins at the earliest
reasonable time, consistent with
§ 1501.2 of this subchapter, and aligns
with the corresponding decision points;
(2) Require that relevant
environmental documents, comments,
and responses be part of the record in
rulemaking and adjudicatory
proceedings;
(3) Integrate the environmental review
into the decision-making process by
requiring that relevant environmental
documents, comments, and responses
accompany the proposal through
existing agency review processes so that
decision makers use them in making
decisions;
(4) Require that the alternatives
considered by the decision maker are
encompassed by the range of
alternatives discussed in the relevant
environmental documents and that the
decision maker consider the alternatives
described in the environmental
documents. If another decision
document accompanies the relevant
environmental documents to the
decision maker, agencies are encouraged
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to make available to the public before
the decision is made any part of that
document that relates to the comparison
of alternatives;
(5) Require the combination of
environmental documents with other
agency documents to facilitate sound
and efficient decision making and avoid
duplication, where consistent with
applicable statutory requirements;
(6) Include the procedures required by
§ 1501.2(b)(4) of this subchapter
(assistance to applicants);
(7) Include specific criteria for and
identification of those typical classes of
action that normally:
(i) Require environmental impact
statements; and
(ii) Require environmental
assessments but not necessarily
environmental impact statements;
(8) Establish categorical exclusions
and identify extraordinary
circumstances. When establishing new
or revising existing categorical
exclusions, agencies shall:
(i) Identify when documentation of a
determination that a categorical
exclusion applies to a proposed action
is required;
(ii) Substantiate the proposed new or
revised categorical exclusion with
sufficient information to conclude that
the category of actions does not have a
significant effect, individually or in the
aggregate, on the human environment
and provide this substantiation in a
written record that is made publicly
available as part of the notice and
comment process (§ 1507.3(b)(1) and
(2)); and
(iii) Describe how the agency will
consider extraordinary circumstances
consistent with § 1501.4(b) of this
subchapter;
(9) Include a process for reviewing the
agency’s categorical exclusions at least
every 10 years, which the agency may
conduct on a rolling basis, starting with
its oldest categorical exclusions;
(10) Include processes for
reevaluating and supplementing
environmental assessments and
environmental impact statements, as
appropriate;
(11) Explain where interested persons
can get information or status reports on
environmental impact statements,
environmental assessments, and other
elements of the NEPA process; and
(12) Where an agency has applicants
that seek its action, include procedures
to allow an applicant (including an
applicant-directed contractor) to prepare
environmental assessments and
environmental impact statements under
the agency’s supervision. Such
procedures shall not apply to applicants
when they serve as joint lead agencies.
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Such procedures shall be consistent
with § 1506.5(a) and (c) of this
subchapter, and at a minimum shall
include the following:
(i) Requirements that the agency
review and approve the purpose and
need (§§ 1501.5(c)(2)(i) or 1502.13 of
this subchapter) and reasonable
alternatives (§§ 1501.5(c)(2)(ii) or
1502.14 of this subchapter);
(ii) A process for the agency to
independently evaluate the applicantprepared environmental assessment or
environmental impact statement; take
responsibility for its accuracy, scope,
and contents; and document the
agency’s evaluation in the document;
and
(iii) A prohibition on the preparation
of a finding of no significant impact or
record of decision by applicants.
(d) Agency procedures also may:
(1) Identify activities or decisions that
are not subject to NEPA;
(2) Include processes for
consideration of emergency actions that
would not result in significant effects;
(3) Include specific criteria for
providing limited exceptions to the
provisions of the regulations in this
subchapter for classified proposals.
These are proposed actions that are
specifically authorized under criteria
established by an Executive order or
statute to be kept secret in the interest
of national defense or foreign policy and
are in fact properly classified pursuant
to such Executive order or statute.
Agencies may safeguard and restrict
from public dissemination
environmental assessments and
environmental impact statements that
address classified proposals in
accordance with agencies’ own
regulations applicable to classified
information. Agencies should organize
these documents so that classified
portions are included as annexes, so
that the agencies can make the
unclassified portions available to the
public; and
(4) Provide for periods of time other
than those presented in § 1506.10 of this
subchapter when necessary to comply
with other specific statutory
requirements, including requirements of
lead or cooperating agencies.
§ 1507.4 Agency NEPA program
information.
(a) To allow agencies and the public
to efficiently and effectively access
information about NEPA reviews,
agencies shall provide for agency
websites or other information
technology tools to make available
documents, relevant notices, and other
relevant information for use by agencies,
applicants, and interested persons. The
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website or other such means of
publication shall include the agency’s
NEPA procedures, including those of
subunits, and a list of environmental
assessments and environmental impact
statements that are in development and
complete. As appropriate, agencies also
should include:
(1) Agency planning and other
documents that guide agency
management and provide for public
involvement in agency planning
processes;
(2) Environmental documents;
(3) Agency policy documents, orders,
terminology, and explanatory materials
regarding agency decision-making
processes;
(4) Agency planning program
information, plans, and planning tools;
and
(5) A database searchable by
geographic information, document
status, document type, and project type.
(b) Agencies shall provide for efficient
and effective interagency coordination
of their environmental program websites
and other information technology tools,
such as use of shared databases or
application programming interfaces, in
their implementation of NEPA and
related authorities.
PART 1508—DEFINITIONS
Sec.
1508.1
1508.2
Definitions.
[Reserved]
Authority: 42 U.S.C. 4321–4347; 42 U.S.C.
4371–4375; 42 U.S.C. 7609; and E.O. 11514,
35 FR 4247, 3 CFR, 1966–1970, Comp., p.
902, as amended by E.O. 11991, 42 FR 26967,
3 CFR, 1977 Comp., p. 123.
§ 1508.1
Definitions.
The following definitions apply to the
regulations in this subchapter. Federal
agencies shall use these terms uniformly
throughout the Federal Government.
(a) Act or NEPA means the National
Environmental Policy Act, as amended
(42 U.S.C. 4321, et seq.).
(b) Affecting means will or may have
an effect on.
(c) Applicant means a non-Federal
entity, including a project sponsor, that
seeks an action by a Federal agency
such as granting a permit, license, or
financial assistance.
(d) Authorization means any license,
permit, approval, finding,
determination, or other administrative
decision issued by an agency that is
required or authorized under Federal
law in order to implement a proposed
action.
(e) Categorical exclusion means a
category of actions that an agency has
determined, in its agency NEPA
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procedures (§ 1507.3 of this subchapter)
or pursuant to § 1501.4(c) of this
subchapter, normally does not have a
significant effect on the human
environment.
(f) Communities with environmental
justice concerns means those
communities that may not experience
environmental justice as defined in
paragraph (m) of this section. To assist
in identifying communities with
environmental justice concerns,
agencies may use available screening
tools, such as the Climate and Economic
Justice Screening Tool and the EJScreen
Tool, as appropriate to their activities
and programs. Agencies also may
develop procedures for the
identification of such communities in
their agency NEPA procedures.
(g) Cooperating agency means any
Federal, State, Tribal, or local agency
with jurisdiction by law or special
expertise with respect to any
environmental impact involved in a
proposal that has been designated by the
lead agency.
(h) Council means the Council on
Environmental Quality established by
title II of the Act.
(i) Effects or impacts means changes
to the human environment from the
proposed action or alternatives that are
reasonably foreseeable and include the
following:
(1) Direct effects, which are caused by
the action and occur at the same time
and place.
(2) Indirect effects, which are caused
by the action and are later in time or
farther removed in distance, but are still
reasonably foreseeable. Indirect effects
may include growth-inducing effects
and other effects related to induced
changes in the pattern of land use,
population density or growth rate, and
related effects on air and water and
other natural systems, including
ecosystems.
(3) Cumulative effects, which are
effects on the environment that result
from the incremental effects of the
action when added to the effects of
other past, present, and reasonably
foreseeable actions regardless of what
agency (Federal or non-Federal) or
person undertakes such other actions.
Cumulative effects can result from
actions with individually minor but
collectively significant effects taking
place over a period of time.
(4) Effects include ecological (such as
the effects on natural resources and on
the components, structures, and
functioning of affected ecosystems),
aesthetic, historic, cultural, economic,
social, or health, such as
disproportionate and adverse effects on
communities with environmental justice
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concerns, whether direct, indirect, or
cumulative. Effects also include effects
on Tribal resources and climate changerelated effects, including the
contribution of a proposed action and
its alternatives to climate change, and
the reasonably foreseeable effects of
climate change on the proposed action
and its alternatives. Effects may also
include those resulting from actions
which may have both beneficial and
adverse effects, even if on balance the
agency believes that the effects will be
beneficial.
(j) Environmental assessment means a
concise public document, for which a
Federal agency is responsible, for an
action that is not likely to have a
significant effect or for which the
significance of the effects is unknown
(§ 1501.5 of this subchapter), that is
used to support an agency’s
determination of whether to prepare an
environmental impact statement (part
1502 of this subchapter) or a finding of
no significant impact (§ 1501.6 of this
subchapter).
(k) Environmental document means
an environmental assessment,
environmental impact statement,
documented categorical exclusion
determination, finding of no significant
impact, record of decision, or notice of
intent.
(l) Environmental impact statement
means a detailed written statement that
is required by section 102(2)(C) of
NEPA.
(m) Environmental justice means the
just treatment and meaningful
involvement of all people, regardless of
income, race, color, national origin,
Tribal affiliation, or disability, in agency
decision making and other Federal
activities that affect human health and
the environment so that people:
(1) Are fully protected from
disproportionate and adverse human
health and environmental effects
(including risks) and hazards, including
those related to climate change, the
cumulative impacts of environmental
and other burdens, and the legacy of
racism or other structural or systemic
barriers; and
(2) Have equitable access to a healthy,
sustainable, and resilient environment
in which to live, play, work, learn,
grow, worship, and engage in cultural
and subsistence practices.
(n) Environmentally preferable
alternative means the alternative or
alternatives that will best promote the
national environmental policy as
expressed in section 101 of NEPA.
(o) Extraordinary circumstances
means factors or circumstances that
indicate a normally categorically
excluded action may have a significant
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effect. Examples of extraordinary
circumstances include potential
substantial effects on sensitive
environmental resources; potential
substantial disproportionate and
adverse effects on communities with
environmental justice concerns;
potential substantial effects associated
with climate change; and potential
substantial effects on historic properties
or cultural resources.
(p) Federal agency means all agencies
of the Federal Government. It does not
mean the Congress, the Judiciary, or the
President, including the performance of
staff functions for the President in his
Executive Office. For the purposes of
the regulations in this subchapter,
Federal agency also includes States,
units of general local government, and
Tribal governments assuming NEPA
responsibilities from a Federal agency
pursuant to statute.
(q) Finding of no significant impact
means a document by a Federal agency
briefly presenting the agency’s
determination that and reasons why an
action, not otherwise categorically
excluded (§ 1501.4 of this subchapter),
will not have a significant effect on the
human environment and for which an
environmental impact statement
therefore will not be prepared.
(r) Human environment or
environment means comprehensively
the natural and physical environment
and the relationship of present and
future generations with that
environment. (See also the definition of
‘‘effects’’ in paragraph (i) of this
section.)
(s) Joint lead agency means a Federal,
State, Tribal, or local agency designated
pursuant to § 1501.7(c) that shares the
responsibilities of the lead agency for
preparing the environmental impact
statement or environmental assessment.
(t) Jurisdiction by law means agency
authority to approve, veto, or finance all
or part of the proposal.
(u) Lead agency means the Federal
agency that proposes the agency action
or is designated pursuant to § 1501.7(c)
for preparing or having primary
responsibility for preparing the
environmental impact statement or
environmental assessment.
(v) Legislation means a bill or
legislative proposal to Congress
developed by a Federal agency, but does
not include requests for appropriations
or legislation recommended by the
President.
(w) Major Federal action or action
means an action that the agency
carrying out such action determines is
subject to substantial Federal control
and responsibility.
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(1) Examples of major Federal actions
generally include:
(i) Granting authorizations, including
permits, licenses, rights-of-way, or other
authorizations.
(ii) Adoption of official policy, such
as rules, regulations, and interpretations
adopted under the Administrative
Procedure Act, 5 U.S.C. 551 et seq., or
other statutes; implementation of
treaties and international conventions or
agreements, including those
implemented pursuant to statute or
regulation; formal documents
establishing an agency’s policies that
will result in or substantially alter
agency programs.
(iii) Adoption of formal plans, such as
official documents prepared or
approved by Federal agencies, which
prescribe alternative uses of Federal
resources, upon which future agency
actions will be based.
(iv) Adoption of programs, such as a
group of concerted actions to implement
a specific policy or plan; systematic and
related agency decisions allocating
agency resources to implement a
specific statutory program or executive
directive.
(v) Approval of or carrying out
specific agency projects, such as
construction or management activities.
(vi) Providing more than a minimal
amount of financial assistance,
including through grants, cooperative
agreements, loans, loan guarantees, or
other forms of financial assistance,
where the agency has the authority to
deny in whole or in part the assistance
due to environmental effects, has
authority to impose conditions on the
receipt of the financial assistance to
address environmental effects, or
otherwise has sufficient control and
responsibility over the subsequent use
of the financial assistance or the effects
of the activity for which the agency is
providing the financial assistance.
(2) Major Federal actions do not
include the following:
(i) Non-Federal actions:
(A) With no or minimal Federal
funding; or
(B) With no or minimal Federal
involvement where the Federal agency
cannot control the outcome of the
project;
(ii) Funding assistance solely in the
form of general revenue sharing funds
that do not provide Federal agency
compliance or enforcement
responsibility over the subsequent use
of such funds;
(iii) Loans, loan guarantees, or other
forms of financial assistance where a
Federal agency does not exercise
sufficient control and responsibility
over the subsequent use of such
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financial assistance or the effects of the
action;
(iv) Business loan guarantees
provided by the Small Business
Administration pursuant to section 7(a)
or (b) and of the Small Business Act (15
U.S.C. 636(a) and (b)), or title V of the
Small Business Investment Act of 1958
(15 U.S.C. 695 through 697g);
(v) Judicial or administrative civil or
criminal enforcement actions;
(vi) Extraterritorial activities or
decisions, which means agency
activities or decisions with effects
located entirely outside of the
jurisdiction of the United States;
(vii) Activities or decisions that are
non-discretionary and made in
accordance with the agency’s statutory
authority; and
(viii) Activities or decisions for
projects approved by a Tribal Nation
that occur on or involve land held in
trust or restricted status by the United
States for the benefit of that Tribal
Nation or by the Tribal Nation when
such activities or decisions involve no
or minimal Federal funding or other
Federal involvement.
(x) Matter means for purposes of part
1504 of this subchapter:
(1) With respect to the Environmental
Protection Agency, any proposed
legislation, project, action, or regulation
as those terms are used in section 309(a)
of the Clean Air Act (42 U.S.C. 7609).
(2) With respect to all other agencies,
any proposed major Federal action to
which section 102(2)(C) of NEPA
applies.
(y) Mitigation means measures that
avoid, minimize, or compensate for
adverse effects caused by a proposed
action or alternatives as described in an
environmental document or record of
decision and that have a connection to
those adverse effects. Mitigation
includes, in general order of priority:
(1) Avoiding the adverse effect
altogether by not taking a certain action
or parts of an action.
(2) Minimizing the adverse effect by
limiting the degree or magnitude of the
action and its implementation.
(3) Rectifying the adverse effect by
repairing, rehabilitating, or restoring the
affected environment.
(4) Reducing or eliminating the
adverse effect over time by preservation
and maintenance operations during the
life of the action.
(5) Compensating for the adverse
effect by replacing or providing
substitute resources or environments.
(z) NEPA process means all measures
necessary for compliance with the
requirements of section 2 and title I of
NEPA.
(aa) Notice of intent means a public
notice that an agency will prepare and
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consider an environmental impact
statement or, as applicable, an
environmental assessment.
(bb) Page means 500 words and does
not include citations, explanatory maps,
diagrams, graphs, tables, and other
means of graphically displaying
quantitative or geospatial information.
(cc) Participating agency means a
Federal, State, Tribal, or local agency
participating in an environmental
review or authorization of an action.
(dd) Participating Federal agency
means a Federal agency participating in
an environmental review or
authorization of an action.
(ee) Programmatic environmental
document means an environmental
impact statement or environmental
assessment analyzing all or some of the
environmental effects of a policy,
program, plan, or group of related
actions.
(ff) Proposal means a proposed action
at a stage when an agency has a goal, is
actively preparing to make a decision on
one or more alternative means of
accomplishing that goal, and can
meaningfully evaluate its effects. A
proposal may exist in fact as well as by
agency declaration that one exists.
(gg) Publish and publication mean
methods found by the agency to
efficiently and effectively make
environmental documents and
information available for review by
interested persons, including electronic
publication, and adopted by agency
NEPA procedures pursuant to § 1507.3
of this subchapter.
(hh) Reasonable alternatives means a
reasonable range of alternatives that are
technically and economically feasible,
and meet the purpose and need for the
proposed action.
(ii) Reasonably foreseeable means
sufficiently likely to occur such that a
person of ordinary prudence would take
it into account in reaching a decision.
(jj) Referring agency means the
Federal agency that has referred any
matter to the Council after a
determination that the matter is
unsatisfactory from the standpoint of
public health or welfare or
environmental quality.
(kk) Scope consists of the range and
breadth of actions, alternatives, and
effects to be considered in an
environmental impact statement or
environmental assessment.
(ll) Senior agency official means an
official of assistant secretary rank or
higher (or equivalent) that is designated
for overall agency NEPA compliance,
including resolving implementation
issues.
(mm) Significant effects means
adverse effects that an agency has
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identified as significant based on the
criteria in § 1501.3(d) of this subchapter.
(nn) Special expertise means statutory
responsibility, agency mission, or
related program experience.
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(oo) Tiering refers to the process
described in § 1501.11 of this
subchapter by which an environmental
document may rely on an existing and
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document.
§ 1508.2
[Reserved]
[FR Doc. 2024–08792 Filed 4–30–24; 8:45 am]
BILLING CODE 3325–FC–P
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]]>Agencies
[Federal Register Volume 89, Number 85 (Wednesday, May 1, 2024)]
[Rules and Regulations]
[Pages 35442-35577]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08792]
[[Page 35441]]
Vol. 89
Wednesday,
No. 85
May 1, 2024
Part IV
Council on Environmental Quality
-----------------------------------------------------------------------
40 CFR Parts 1500, 1501, 1502, et al.
National Environmental Policy Act Implementing Regulations Revisions
Phase 2; Final Rule
Federal Register / Vol. 89, No. 85 / Wednesday, May 1, 2024 / Rules
and Regulations
[[Page 35442]]
-----------------------------------------------------------------------
COUNCIL ON ENVIRONMENTAL QUALITY
40 CFR Parts 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, and
1508
[CEQ-2023-0003]
RIN 0331-AA07
National Environmental Policy Act Implementing Regulations
Revisions Phase 2
AGENCY: Council on Environmental Quality.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Council on Environmental Quality (CEQ) is finalizing its
``Bipartisan Permitting Reform Implementation Rule'' to revise its
regulations for implementing the procedural provisions of the National
Environmental Policy Act (NEPA), including the recent amendments to
NEPA in the Fiscal Responsibility Act. CEQ is making these revisions to
provide for an effective environmental review process; ensure full and
fair public engagement; enhance efficiency and regulatory certainty;
and promote sound Federal agency decision making that is grounded in
science, including consideration of relevant environmental, climate
change, and environmental justice effects. These changes are grounded
in NEPA's statutory text and purpose, including making decisions
informed by science; CEQ's extensive experience implementing NEPA;
CEQ's perspective on how NEPA can best inform agency decision making;
longstanding Federal agency experience and practice; and case law
interpreting NEPA's requirements.
DATES: The effective date is July 1, 2024.
ADDRESSES: CEQ established a docket for this action under docket number
CEQ-2023-0003. All documents in the docket are listed on
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Amy B. Coyle, Deputy General Counsel,
202-395-5750, [email protected]; Megan Healy, Deputy Director for
NEPA, 202-395-5750, [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
This final rule completes a multiphase rulemaking process that CEQ
initiated in 2021 to revise its regulations to improve implementation
of the National Environmental Policy Act (NEPA). Throughout the
process, CEQ engaged with agency experts who implement NEPA on a daily
basis to develop revisions to the regulations to enhance the clarity of
the regulatory text, improve the efficiency and effectiveness of the
NEPA process, enhance regulatory certainty and address potential
sources of litigation risk, and promote consistency across the Federal
Government while recognizing the importance of providing agencies with
flexibility to tailor their NEPA processes to the specific statutes and
factual contexts in which they administer their programs and decisions.
CEQ also engaged with individuals affected by agency implementation of
NEPA, including representatives of Tribal Nations, environmental
justice experts, and representatives of various industries, to gather
input on how to improve the NEPA process. CEQ proposed and is now
finalizing this rule to reflect the input CEQ has received, the decades
of CEQ and agency experience implementing NEPA, and the recent
statutory amendments to NEPA. This final rule will help agencies more
successfully implement NEPA and facilitate a more efficient and
effective environmental review process.
A. NEPA Statute
To declare an ambitious and visionary national policy to promote
environmental protection for present and future generations, Congress
enacted NEPA in 1969 by a unanimous vote in the Senate and a nearly
unanimous vote in the House,\1\ and President Nixon signed it into law
on January 1, 1970. NEPA seeks to ``encourage productive and enjoyable
harmony'' between humans and the environment, recognizing the
``profound impact'' of human activity and the ``critical importance of
restoring and maintaining environmental quality'' to the overall
welfare of humankind. 42 U.S.C. 4321, 4331. Furthermore, NEPA seeks to
promote efforts that will prevent or eliminate damage to the
environment and biosphere and stimulate the health and welfare of
people, making it the continuing policy of the Federal Government to
use all practicable means and measures to create and maintain
conditions under which humans and nature can exist in productive
harmony and fulfill the social, economic, and other requirements of
present and future generations of Americans. 42 U.S.C. 4331(a). It also
recognizes that each person should have the opportunity to enjoy a
healthy environment and has a responsibility to contribute to the
preservation and enhancement of the environment. 42 U.S.C. 4331(c).
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\1\ See Linda Luther, Cong. Rsch. Serv., RL33152, The National
Environmental Policy Act: Background and Implementation, 4 (2011),
https://crsreports.congress.gov/product/details?prodcode=RL33152.
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NEPA requires Federal agencies to interpret and administer Federal
policies, regulations, and laws in accordance with NEPA's policies and
to consider environmental values in their decision making. 42 U.S.C.
4332. To that end, section 102(2)(C) of NEPA requires Federal agencies
to prepare ``detailed statement[s],'' referred to as environmental
impact statements (EISs), for ``every recommendation or report on
proposals for legislation and other major Federal actions significantly
affecting the quality of the human environment'' and, in doing so,
provide opportunities for public participation to help inform agency
decision making. 42 U.S.C. 4332(2)(C). The EIS process embodies the
understanding that informed decisions are better decisions and lead to
better environmental outcomes when decision makers understand,
consider, and publicly disclose environmental effects of their
decisions. The EIS process also enriches understanding of the
ecological systems and natural resources important to the Nation and
helps guide sound decision making based on high-quality information,
such as decisions on infrastructure and energy development.\2\ See,
e.g., Winter v. NRDC, 555 U.S. 7, 23 (2008) (``Part of the harm NEPA
attempts to prevent in requiring an EIS is that, without one, there may
be little if any information about prospective environmental harms and
potential mitigating measures.'').
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\2\ See CEQ, The National Environmental Policy Act: A Study of
Its Effectiveness after Twenty-five Years 17 (Jan. 1997) (noting
that study participants, which included academics, nonprofit
organizations, and businesses, ``applauded NEPA for opening the
federal process to public input and were convinced that this open
process has improved project design and implementation.'').
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In many respects, NEPA was a statute ahead of its time and remains
vital today. It codifies the common-sense idea of ``look before you
leap'' to guide agency decision making, particularly in complex and
consequential areas, because conducting sound environmental analysis
before agencies take actions reduces conflict and waste in the long run
by avoiding unnecessary harm and uninformed decisions. See, e.g., 42
U.S.C. 4332; Laclede Gas Co. v. FERC, 873 F.2d 1494, 1499 (D.C. Cir.
1989) (``When so much depends upon the agency having a sure footing, it
is not too much for us to demand that it look first, and then leap if
it likes.''). It establishes a framework for agencies to ground
decisions in science, by
[[Page 35443]]
requiring professional and scientific integrity, and recognizes that
the public may have important ideas and information on how Federal
actions can occur in a manner that reduces potential harms and enhances
ecological, social, and economic well-being. See, e.g., 42 U.S.C. 4332.
On June 3, 2023, President Biden signed into law the Fiscal
Responsibility Act of 2023, which included amendments to NEPA.
Specifically, it amended section 102(2)(C) and added sections 102(2)(D)
through (F) and sections 106 through 111. 42 U.S.C. 4332(2)(C)-(D),
4336-4336e. The amendments codify longstanding principles drawn from
CEQ's NEPA regulations, decades of agency practice, and case law
interpreting the NEPA regulations, and provide additional direction to
improve the efficiency and effectiveness of the NEPA process consistent
with NEPA's purposes. Section 102(2)(C) provides that EISs should
include discussion of reasonably foreseeable environmental effects of
the proposed action, reasonably foreseeable adverse environmental
effects that cannot be avoided, and a reasonable range of alternatives
to the proposed action; section 102(2)(D) requires Federal agencies to
ensure the professional integrity of the discussion and analysis in an
environmental document; section 102(2)(E) requires use of reliable data
and resources when carrying out NEPA; and section 102(2)(F) requires
agencies to study, develop, and describe technically and economically
feasible alternatives. 42 U.S.C. 4332(2)(C)-(F).
Section 106 adds provisions for determining the appropriate level
of NEPA review. It clarifies that an agency is required to prepare an
environmental document when proposing to take an action that would
constitute a final agency action, and codifies existing regulations and
case law that an agency is not required to prepare an environmental
document when doing so would clearly and fundamentally conflict with
the requirements of another law or a proposed action is non-
discretionary. See Flint Ridge Development Co. v. Scenic Rivers Ass'n
of Oklahoma, 426 U.S. 776, 791 (1976) (holding that a 30-day statutory
deadline for a certain agency action created a ``clear and fundamental
conflict of statutory duty'' that excused the agency from NEPA
compliance with regard to that action); Dep't of Transp. v. Pub.
Citizen, 541 U.S. 752, 756 (2004) (concluding that NEPA did not require
an agency to evaluate the environmental effects of certain actions
because the agency lacked discretion over those actions). Section 106
also largely codifies the current CEQ regulations and longstanding
practice with respect to the use of categorical exclusions (CEs),
environmental assessments (EAs), and EISs, as modified by the new
provision expressly permitting agencies to adopt CEs from other
agencies established in section 109 of NEPA. 42 U.S.C. 4336, 4336c.
Section 107 addresses timely and unified Federal reviews, largely
codifying existing practice with a few adjustments, including
provisions clarifying lead, joint-lead, and cooperating agency
designations, generally requiring development of a single environmental
document, directing agencies to develop procedures for project sponsors
to prepare EAs and EISs, and prescribing page limits and deadlines. 42
U.S.C. 4336a. Section 108 codifies time lengths and circumstances for
when agencies can rely on programmatic environmental documents without
additional review, and section 109 allows a Federal agency to adopt and
use another agency's CE. 42 U.S.C. 4336b, 4336c. Section 111 adds
statutory definitions. 42 U.S.C. 4336e. This final rule updates the
regulations to address how agencies should implement NEPA consistent
with these recent amendments.
Section 110 directs CEQ to conduct a study and submit a report to
Congress on the potential to use online and digital technologies to
improve NEPA processes. The development of this report is outside the
scope of this rulemaking and the final rule does not incorporate
provisions related to implementation of section 110.
B. The Council on Environmental Quality
NEPA codified the existence of the Council on Environmental Quality
(CEQ), which had been established 6 months earlier through E.O. 11472,
Establishing the Environmental Quality Council and the Citizen's
Advisory Committee on Environmental Quality, as a component of the
Executive Office of the President. 42 U.S.C. 4342. For more than 50
years, CEQ has advised presidents on national environmental policy,
assisted Federal agencies in their implementation of NEPA and engaged
with them on myriad of environmental policies, and overseen
implementation of a variety of other environmental policy initiatives
from the expeditious and thorough environmental review of
infrastructure projects \3\ to the sustainability of Federal
operations.\4\
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\3\ See, e.g., E.O. 14008, Tackling the Climate Crisis at Home
and Abroad, 86 FR 7619 (Feb. 1, 2021); E.O. 13604, Improving
Performance of Federal Permitting and Review of Infrastructure
Projects, 77 FR 18887 (Mar. 28, 2012); E.O. 13274, Environmental
Stewardship and Transportation Infrastructure Project Reviews, 67 FR
59449 (Sept. 23, 2002); see also Presidential Memorandum,
Modernizing Federal Infrastructure Review and Permitting
Regulations, Policies, and Procedures, 78 FR 30733 (May 22, 2013).
\4\ See, e.g., E.O. 14057, Catalyzing Clean Energy Industries
and Jobs Through Federal Sustainability, 86 FR 70935 (Dec. 13,
2021); E.O. 13834, Efficient Federal Operations, 83 FR 23771 (May
22, 2018); E.O. 13693, Planning for Federal Sustainability in the
Next Decade, 80 FR 15871 (Mar. 25, 2015); E.O. 13514, Federal
Leadership in Environmental, Energy, and Economic Performance, 74 FR
52117 (Oct. 8, 2009); E.O. 13423, Strengthening Federal
Environmental, Energy, and Transportation Management, 72 FR 3919
(Jan. 26, 2007); E.O. 13101, Greening the Government Through Waste
Prevention, Recycling, and Federal Acquisition, 63 FR 49643 (Sept.
16, 1998). For Presidential directives pertaining to other
environmental initiatives, see E.O. 13432, Cooperation Among
Agencies in Protecting the Environment With Respect to Greenhouse
Gas Emissions From Motor Vehicles, Nonroad Vehicles, and Nonroad
Engines, 72 FR 27717 (May 16, 2007) (requiring CEQ and OMB to
implement the E.O. and facilitate Federal agency cooperation to
reduce greenhouse gas emissions); E.O. 13141, Environmental Review
of Trade Agreements, 64 FR 63169 (Nov. 18, 1999) (requiring CEQ and
the U.S. Trade Representative to implement the E.O., which has the
purpose of promoting Trade agreements that contribute to sustainable
development); E.O. 13061, Federal Support of Community Efforts Along
American Heritage Rivers, 62 FR 48445 (Sept. 15, 1997) (charging CEQ
with implementing the American Heritage Rivers initiative); E.O.
13547, Stewardship of the Ocean, Our Coasts, and the Great Lakes, 75
FR 43023 (July 22, 2010) (directing CEQ to lead the National Ocean
Council); E.O. 13112, Invasive Species, 64 FR 6183 (Feb. 8, 1999)
(requiring the Invasive Species Council to consult with CEQ to
develop guidance to Federal agencies under NEPA on prevention and
control of invasive species).
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NEPA charges CEQ with overseeing and guiding NEPA implementation
across the Federal Government. In addition to issuing the regulations
for implementing NEPA, 40 CFR parts 1500 through 1508 (referred to
throughout as ``the CEQ regulations''), CEQ has issued guidance on
numerous topics related to NEPA review. In 1981, CEQ issued the ``Forty
Most Asked Questions Concerning CEQ's National Environmental Policy Act
Regulations,'' \5\ which CEQ has routinely identified as an invaluable
tool for Federal, Tribal, State, and local governments and officials,
and members of the public, who have questions about NEPA
implementation.
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\5\ CEQ, Forty Most Asked Questions Concerning CEQ's National
Environmental Policy Act Regulations, 46 FR 18026 (Mar. 23, 1981)
(Forty Questions), https://www.energy.gov/nepa/downloads/forty-most-asked-questions-concerning-ceqs-national-environmental-policy-act.
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CEQ also has issued guidance on a variety of other topics, from
scoping to cooperating agencies to consideration of
[[Page 35444]]
effects.\6\ For example, in 1997, CEQ issued guidance documents on the
consideration of environmental justice in the NEPA context \7\ under
E.O. 12898, Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations,\8\ and on analysis of
cumulative effects in NEPA reviews.\9\ From 2010 to the present, CEQ
developed additional guidance on CEs, mitigation, programmatic reviews,
and consideration of greenhouse gas (GHG) emissions in NEPA.\10\ To
ensure coordinated environmental reviews, CEQ has issued guidance to
integrate NEPA reviews with other environmental review requirements
such as the National Historic Preservation Act, E.O. 11988, Floodplain
Management, and E.O. 11990, Protection of Wetlands.\11\ Additionally,
CEQ has provided guidance to ensure efficient and effective
environmental reviews, particularly for infrastructure projects.\12\
Finally, CEQ has published resources for members of the public to
assist them in understanding the NEPA process and how they can
effectively engage in agency NEPA reviews to make sure their voices are
heard.\13\
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\6\ See, e.g., CEQ, Memorandum for General Counsels, NEPA
Liaisons and Participants in Scoping (Apr. 30, 1981), https://www.energy.gov/nepa/downloads/scoping-guidance-memorandum-general-counsels-nepa-liaisons-and-participants-scoping; CEQ, Incorporating
Biodiversity Considerations Into Environmental Impact Analysis Under
the National Environmental Policy Act (Jan. 1993), https://ceq.doe.gov/publications/incorporating_biodiversity.html; CEQ,
Council on Environmental Quality Guidance on NEPA Analyses for
Transboundary Impacts (July 1,1997), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/memorandum-transboundary-impacts-070197.pdf; CEQ, Designation of Non-Federal Agencies to be
Cooperating Agencies in Implementing the Procedural Requirements of
the National Environmental Policy Act (July 28, 1999), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ceqcoop.pdf; CEQ,
Identifying Non-Federal Cooperating Agencies in Implementing the
Procedural Requirements of the National Environmental Policy Act
(Sept. 25, 2000), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/memo-non-federal-cooperating-agencies-09252000.pdf; CEQ &
DOT Letters on Lead and Cooperating Agency Purpose and Need (May 12,
2003), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/CEQ-DOT_PurposeNeed_May-2013.pdf.
\7\ CEQ, Environmental Justice: Guidance under the National
Environmental Policy Act (Dec. 10, 1997) (Environmental Justice
Guidance), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ej/justice.pdf.
\8\ E.O. 12898, Federal Actions To Address Environmental Justice
in Minority Populations and Low-Income Populations, 59 FR 7629 (Feb.
16, 1994).
\9\ CEQ, Considering Cumulative Effects Under the National
Environmental Policy Act (Jan. 1997), https://ceq.doe.gov/publications/cumulative_effects.html; see also CEQ, Guidance on the
Consideration of Past Actions in Cumulative Effects Analysis (June
24, 2005), https://www.energy.gov/sites/default/files/nepapub/nepa_documents/RedDont/G-CEQ-PastActsCumulEffects.pdf.
\10\ CEQ, Establishing, Applying, and Revising Categorical
Exclusions under the National Environmental Policy Act (Nov. 23,
2010) (CE Guidance), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf; CEQ, Final Guidance for
Federal Departments and Agencies on the Appropriate Use of
Mitigation and Monitoring and Clarifying the Appropriate Use of
Mitigated Findings of No Significant Impact, 76 FR 3843 (Jan. 21,
2011) (Mitigation Guidance), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf; CEQ, National
Environmental Policy Act Guidance on Consideration of Greenhouse Gas
Emissions and Climate Change, 88 FR 1196 (Jan. 9, 2023) (2023 GHG
Guidance), https://ceq.doe.gov/guidance/ceq_guidance_nepa-ghg.html.
\11\ CEQ, Implementation of Executive Order 11988 on Floodplain
Management and Executive Order 11990 on Protection of Wetlands (Mar.
21, 1978), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Memorandum-Implementation-of-E.O.-11988-and-E.O.-11990-032178.pdf;
CEQ & Advisory Council on Historic Preservation, NEPA and NHPA: A
Handbook for Integrating NEPA and Section 106 (Mar. 2013), https://ceq.doe.gov/docs/ceq-publications/NEPA_NHPA_Section_106_Handbook_Mar2013.pdf.
\12\ See, e.g., CEQ, Final Guidance on Improving the Process for
Preparing Efficient and Timely Environmental Reviews Under the
National Environmental Policy Act, 77 FR 14473 (Mar. 12, 2012),
https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Improving_NEPA_Efficiencies_06Mar2012.pdf; CEQ, Effective Use of
Programmatic NEPA Reviews (Dec. 18, 2014) (Programmatic Guidance),
https://www.energy.gov/sites/default/files/2016/05/f31/effective_use_of_programmatic_nepa_reviews_18dec2014.pdf; OMB & CEQ,
M-15-20, Guidance Establishing Metrics for the Permitting and
Environmental Review of Infrastructure Projects (Sept. 22, 2015),
https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2015/m-15-20.pdf; OMB & CEQ, M-17-14, Guidance to
Federal Agencies Regarding the Environmental Review and
Authorization Process for Infrastructure Projects (Jan. 13, 2017),
https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2017/m-17-14.pdf.
\13\ CEQ, A Citizen's Guide to the National Environmental Policy
Act; Having Your Voice Heard (Jan. 2021), https://ceq.doe.gov/get-involved/citizens_guide_to_nepa.html.
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In addition to guidance, CEQ engages frequently with Federal
agencies on their implementation of NEPA. CEQ is responsible for
consulting with all agencies on the development of their NEPA
implementing procedures and determining that those procedures conform
with NEPA and the CEQ regulations. Through this process, CEQ engages
with agencies to understand their specific authorities and programs to
ensure agencies integrate consideration of environmental effects into
their decision-making processes. CEQ also provides feedback and advice
on how agencies may effectively implement NEPA through their
procedures. Additionally, CEQ provides recommendations on how agencies
can coordinate on or align their respective procedures to ensure
consistent implementation of NEPA across agencies. This role is
particularly important in situations where multiple agencies and
applicants are regularly involved, such as the review of infrastructure
projects.
Second, CEQ consults with agencies on the efficacy and
effectiveness of NEPA implementation. Where necessary or appropriate,
CEQ engages with agencies on NEPA reviews for specific projects or
project types to provide advice and identify any emerging or cross-
cutting issues that would benefit from CEQ issuing formal guidance or
assisting with interagency coordination. This includes establishing
alternative arrangements for compliance with NEPA when agencies
encounter emergency situations where they need to act swiftly while
also ensuring they meet their NEPA obligations. CEQ also advises on
NEPA compliance when agencies are establishing new programs or
implementing new statutory authorities. Finally, CEQ helps advance the
environmental review process for projects or initiatives deemed
important to an administration such as nationally and regionally
significant projects, major infrastructure projects, and consideration
of certain types of effects, such as climate change-related effects and
effects on communities with environmental justice concerns.\14\
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\14\ See, e.g., Presidential Memorandum, Speeding Infrastructure
Development Through More Efficient and Effective Permitting and
Environmental Review (Aug. 31, 2011), https://obamawhitehouse.archives.gov/the-press-office/2011/08/31/presidential-memorandum-speeding-infrastructure-development-through-more; E.O. 13807, Establishing Discipline and Accountability in the
Environmental Review and Permitting Process for Infrastructure
Projects, 82 FR 40463 (Aug. 24, 2017).
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Third, CEQ meets regularly with external stakeholders to understand
their perspectives on the NEPA process. These meetings can help inform
CEQ's development of guidance or other initiatives and engagement with
Federal agencies. Finally, CEQ coordinates with other Federal agencies
and components of the White House on a wide array of environmental
issues and reviews that intersect with the NEPA process, such as
Endangered Species Act consultation or effects to Federal lands and
waters from federally authorized activities.
In addition to its NEPA responsibilities, CEQ is currently charged
with implementing several of the administration's key environmental
priorities, including efficient and effective environmental review and
permitting. On January 27, 2021, the President signed E.O. 14008,
Tackling the Climate Crisis at Home and Abroad, to establish a
government-wide approach to the climate crisis by
[[Page 35445]]
reducing GHG emissions across the economy; increasing resilience to
climate change-related effects; conserving land, water, and
biodiversity; transitioning to a clean-energy economy; and advancing
environmental justice, including delivering the benefits of Federal
investments to disadvantaged communities.\15\ CEQ is leading the
President's efforts to secure environmental justice consistent with
sections 219 through 223 of the E.O. For example, CEQ has developed the
Climate and Economic Justice Screening Tool,\16\ and collaborates with
the Office of Management and Budget (OMB) and the National Climate
Advisor on implementing the Justice40 initiative, which sets a goal
that 40 percent of the overall benefits of certain Federal investments
flow to disadvantaged communities.\17\
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\15\ E.O. 14008, supra note 3.
\16\ CEQ, Explore the Map, Climate and Economic Justice
Screening Tool, https://screeningtool.geoplatform.gov/.
\17\ E.O. 14008, supra note 3, sec. 223.
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Section 205 of the E.O. also charged CEQ with developing the
Federal Sustainability Plan to achieve a carbon pollution-free
electricity sector and clean and zero-emission vehicle fleets.
Thereafter, CEQ issued the Federal Sustainability Plan,\18\ which
accompanied E.O. 14057, Catalyzing Clean Energy Industries and Jobs
Through Federal Sustainability.\19\ CEQ is leading the efforts with its
agency partners to implement E.O. 14057's ambitious goals, which
include reducing Federal agency GHG emissions by 65 percent and
improving the climate resilience of Federal infrastructure and
operations. CEQ also is collaborating with the Departments of the
Interior, Agriculture, and Commerce on the implementation of the
America the Beautiful Initiative, which was issued to achieve the goal
of conserving at least 30 percent of our lands and waters by 2030 as
set forth in E.O. 14008.\20\ Additionally, E.O. 14008 requires the
Chair of CEQ and the Director of OMB to ensure that Federal permitting
decisions consider the effects of GHG emissions and climate change.\21\
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\18\ CEQ, Federal Sustainability Plan (Dec. 2021), https://www.sustainability.gov/federalsustainabilityplan/.
\19\ E.O. 14057, supra note 4.
\20\ E.O. 14008, supra note 3.
\21\ Id. at sec. 213(a); see also id., sec. 219 (directing
agencies to ``make achieving environmental justice part of their
missions by developing programs, policies, and activities to address
the disproportionately high and adverse human health, environmental,
climate-related and other cumulative impacts on disadvantaged
communities'').
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CEQ is also instrumental to the President's efforts to institute a
government-wide approach to advancing environmental justice. On April
21, 2023, the President signed E.O. 14096, Revitalizing Our Nation's
Commitment to Environmental Justice for All, to further embed
environmental justice into the work of Federal agencies and ensure that
all people can benefit from the vital safeguards enshrined in the
Nation's foundational environmental and civil rights laws.\22\ The E.O.
charges each agency to make achieving environmental justice part of its
mission consistent with the agency's statutory authority,\23\ and
requires each agency to submit to the Chair of CEQ and make publicly
available an Environmental Justice Strategic Plan setting forth the
agency's goals and plans for advancing environmental justice.\24\
Further, section 8 of the E.O. establishes a White House Office of
Environmental Justice within CEQ.
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\22\ E.O. 14096, Revitalizing Our Nation's Commitment to
Environmental Justice for All, 88 FR 25251 (Apr. 26, 2023). E.O.
14096 builds upon efforts to advance environmental justice and
equity consistent with the policy advanced in documents including
E.O. 13985, E.O. 14091, and E.O. 14008, and supplements the
foundational efforts of E.O. 12898 to deliver environmental justice
to communities across America. See E.O. 13985, Advancing Racial
Equity and Support for Underserved Communities Through the Federal
Government, 86 FR 7009 (Jan. 25, 2021); E.O. 14091, Further
Advancing Racial Equity and Support for Underserved Communities
Through the Federal Government, 88 FR 10825 (Feb. 22, 2023); E.O.
14008, supra note 3; and E.O. 12898, supra note 8.
\23\ E.O. 14096, supra note 22, sec. 3.
\24\ Id. at sec. 4.
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Additionally, CEQ plays a significant role in improving interagency
coordination and providing for efficient environmental reviews and
permitting under the Biden-Harris Permitting Action Plan.\25\ The
Action Plan outlines the Administration's strategy for ensuring that
Federal environmental reviews and permitting processes are effective,
efficient, and transparent, guided by the best available science to
promote positive environmental and community outcomes, and shaped by
early and meaningful public engagement. The Action Plan contains five
key elements that build on strengthened Federal approaches to
environmental reviews and permitting: (1) accelerating permitting
through early cross-agency coordination to appropriately scope reviews,
reduce bottlenecks, and use the expertise of sector-specific teams; (2)
establishing clear timeline goals and tracking key project information
to improve transparency and accountability, providing increased
certainty for project sponsors and the public; (3) engaging in early
and meaningful outreach and communication with Tribal Nations, States,
Territories, and local communities; (4) improving agency
responsiveness, technical assistance, and support to navigate the
environmental review and permitting process effectively and
efficiently; and (5) adequately resourcing agencies and using the
environmental review process to improve environmental and community
outcomes.
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\25\ The Biden-Harris Permitting Action Plan to Rebuild
America's Infrastructure, Accelerate the Clean Energy Transition,
Revitalize Communities, and Create Jobs (May 22, 2022), https://www.whitehouse.gov/wp-content/uploads/2022/05/Biden-Harris-Permitting-Action-Plan.pdf.
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Finally, CEQ is staffed with experts with decades of NEPA
experience as well as other environmental law and policy experience. As
part of CEQ's broader environmental policy role, CEQ advises the
President on environmental issues facing the nation, and on the design
and implementation of the President's environmental initiatives. In
that role, CEQ collaborates with agencies and provides feedback on
their implementation of the numerous environmental statutes and
directives. CEQ's diverse array of responsibilities and expertise has
long influenced the implementation of NEPA, and CEQ relied extensively
on this experience in developing this rulemaking.
C. NEPA Implementation 1970-2019
Following shortly after the enactment of NEPA, President Nixon
issued E.O. 11514, Protection and Enhancement of Environmental Quality,
directing CEQ to issue guidelines for implementation of section
102(2)(C) of NEPA.\26\ In response, CEQ in April 1970 issued interim
guidelines, which addressed the provisions of section 102(2)(C) of the
Act regarding EIS requirements.\27\ CEQ revised the guidelines in 1971
and 1973 to address public involvement and introduce the concepts of
EAs and draft and final EISs.\28\
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\26\ E.O. 11514, Protection and Enhancement of Environmental
Quality, 35 FR 4247 (Mar. 7, 1970), sec. 3(h).
\27\ See CEQ, Statements on Proposed Federal Actions Affecting
the Environment, 35 FR 7390 (May 12, 1970) (interim guidelines).
\28\ CEQ, Statements on Proposed Federal Actions Affecting the
Environment, 36 FR 7724 (Apr. 23, 1971) (final guidelines); CEQ,
Preparation of Environmental Impact Statements, 38 FR 10856 (May 2,
1973) (proposed revisions to the guidelines); CEQ, Preparation of
Environmental Impact Statements: Guidelines, 38 FR 20550 (Aug. 1,
1973) (revised guidelines).
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In 1977, President Carter issued E.O. 11991, Relating to Protection
and Enhancement of Environmental Quality, amending E.O. 11514 and
directing CEQ to issue regulations for implementation
[[Page 35446]]
of section 102(2)(C) of NEPA and requiring that Federal agencies comply
with those regulations.\29\ CEQ promulgated its NEPA regulations in
1978.\30\ Issued 8 years after NEPA's enactment, the NEPA regulations
reflected CEQ's interpretation of the statutory text and Congressional
intent, expertise developed through issuing and revising the CEQ
guidelines and advising Federal agencies on their implementation of
NEPA, initial interpretations of the courts, and Federal agency
experience implementing NEPA. The 1978 regulations reflected the
fundamental principles of informed and science-based decision making,
transparency, and public engagement that Congress established in NEPA.
The regulations further required agency-level implementation, directing
Federal agencies to issue and periodically update agency-specific
implementing procedures to supplement CEQ's procedures and integrate
the NEPA process into the agencies' specific programs and processes.
Consistent with 42 U.S.C. 4332(2)(B), the regulations also required
agencies to consult with CEQ in the development or update of these
agency-specific procedures to ensure consistency with CEQ's
regulations.
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\29\ E.O. 11991, Relating to Protection and Enhancement of
Environmental Quality, 42 FR 26967 (May 25, 1977).
\30\ CEQ, Implementation of Procedural Provisions; Final
Regulations, 43 FR 55978 (Nov. 29, 1978).
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CEQ made typographical amendments to the 1978 implementing
regulations in 1979 \31\ and amended one provision in 1986 (CEQ refers
to these regulations, as amended, as the ``1978 regulations'' in this
preamble).\32\ Otherwise, CEQ left the regulations unchanged for over
40 years. As a result, CEQ and Federal agencies developed extensive
experience implementing the 1978 regulations, and a large body of
agency practice and case law developed based on them. See, e.g.,
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 355 (1989)
(``CEQ regulations are entitled to substantial deference.''); Wild Va.
v. Council on Env't Quality, 56 F.4th 281, 288 (4th Cir. 2022) (noting
that prior to the 2020 rule, CEQ's NEPA regulations ``had remained
virtually unchanged since 1978.'')
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\31\ CEQ, Implementation of Procedural Provisions; Corrections,
44 FR 873 (Jan. 3, 1979).
\32\ CEQ, National Environmental Policy Act Regulations;
Incomplete or Unavailable Information, 51 FR 15618 (Apr. 25, 1986)
(amending 40 CFR 1502.22).
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D. 2020 Amendments to the CEQ Regulations
On August 15, 2017, President Trump issued E.O. 13807, Establishing
Discipline and Accountability in the Environmental Review and
Permitting Process for Infrastructure Projects,\33\ which directed CEQ
to establish and lead an interagency working group to identify and
propose changes to the NEPA regulations.\34\ In response, CEQ issued an
advance notice of proposed rulemaking (ANPRM) on June 20, 2018,\35\ and
a notice of proposed rulemaking (NPRM) on January 10, 2020, proposing
broad revisions to the 1978 regulations.\36\ A wide range of
stakeholders submitted more than 12,500 comments on the ANPRM \37\ and
1.1 million comments on the proposed rule,\38\ including from State and
local governments, Tribes, environmental advocacy organizations,
professional and industry associations, other advocacy or non-profit
organizations, businesses, and private citizens. Many commenters
provided detailed feedback on the legality, policy wisdom, and
potential consequences of the proposed amendments. In keeping with the
proposed rule, the final rule, promulgated on July 16, 2020 (2020
regulations or 2020 rule), made wholesale revisions to the regulations;
it took effect on September 14, 2020.\39\
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\33\ E.O. 13807, supra note 14.
\34\ Id. at sec. 5(e)(iii).
\35\ CEQ, Update to the Regulations for Implementing the
Procedural Provisions of the National Environmental Policy Act, 83
FR 28591 (June 20, 2018).
\36\ CEQ, Update to the Regulations Implementing the Procedural
Provisions of the National Environmental Policy Act, 85 FR 1684
(Jan. 10, 2020).
\37\ See Docket No. CEQ-2018-0001, Update to the Regulations for
Implementing the Procedural Provisions of the National Environmental
Policy Act, https://www.regulations.gov/document/CEQ-2018-0001-0001.
\38\ See Docket No. CEQ-2019-0003, Update to the Regulations for
Implementing the Procedural Provisions of the National Environmental
Policy Act, https://www.regulations.gov/document/CEQ-2019-0003-0001.
\39\ CEQ, Update to the Regulations Implementing the Procedural
Provisions of the National Environmental Policy Act, 85 FR 43304
(July 16, 2020) (2020 Final Rule).
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In the months that followed the issuance of the 2020 rule, five
lawsuits were filed challenging the 2020 rule.\40\ These cases
challenge the 2020 rule on a variety of grounds, including under the
Administrative Procedure Act (APA), NEPA, and the Endangered Species
Act, and contend that the rule exceeded CEQ's authority and that the
related rulemaking process was procedurally and substantively
defective. The district courts issued temporary stays in each of these
cases, except for Wild Virginia v. Council on Environmental Quality,
which the district court dismissed without prejudice on June 21,
2021.\41\ The Fourth Circuit affirmed that dismissal on December 22,
2022.\42\
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\40\ Wild Va. v. Council on Env't Quality, No. 3:20cv45 (W.D.
Va. 2020); Env't Justice Health All. v. Council on Env't Quality,
No. 1:20cv06143 (S.D.N.Y. 2020); Alaska Cmty. Action on Toxics v.
Council on Env't Quality, No. 3:20cv5199 (N.D. Cal. 2020);
California v. Council on Env't Quality, No. 3:20cv06057 (N.D. Cal.
2020); Iowa Citizens for Cmty. Improvement v. Council on Env't
Quality, No. 1:20cv02715 (D.D.C. 2020). Additionally, in Clinch
Coalition v. U.S. Forest Serv., No. 2:21cv00003 (W.D. Va. 2021),
plaintiffs challenged the U.S. Forest Service's NEPA implementing
procedures, which established new CEs, and, relatedly, the 2020
rule's provisions on CEs.
\41\ Wild Va. v. Council on Env't Quality, 544 F. Supp. 3d 620
(W.D. Va. 2021).
\42\ Wild Va. v. Council on Env't Quality, 56 F.4th 281 (4th
Cir. 2022).
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E. CEQ's Review of the 2020 Regulations
On January 20, 2021, President Biden issued E.O. 13990, Protecting
Public Health and the Environment and Restoring Science To Tackle the
Climate Crisis,\43\ to establish an administration policy to listen to
the science; improve public health and protect our environment; ensure
access to clean air and water; limit exposure to dangerous chemicals
and pesticides; hold polluters accountable, including those who
disproportionately harm communities of color and low-income
communities; reduce GHG emissions; bolster resilience to the impacts of
climate change; restore and expand the Nation's treasures and
monuments; and prioritize both environmental justice and the creation
of well-paying union jobs necessary to achieve these goals.\44\ The
Executive Order calls for Federal agencies to review existing
regulations issued between January 20, 2017, and January 20, 2021, for
consistency with the policy it articulates and to take appropriate
action.\45\ The Executive Order also revokes E.O. 13807 and directs
agencies to take steps to rescind any rules or regulations implementing
it.\46\ An accompanying White House fact sheet, published on January
20, 2021, specifically identified the 2020 regulations for CEQ's review
for consistency with E.O. 13990's policy.\47\
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\43\ E.O. 13990, Protecting Public Health and the Environment
and Restoring Science To Tackle the Climate Crisis, 86 FR 7037 (Jan.
25, 2021).
\44\ Id. at sec. 1.
\45\ Id. at sec. 2.
\46\ Id. at sec. 7.
\47\ The White House, Fact Sheet: List of Agency Actions for
Review (Jan. 20, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/.
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[[Page 35447]]
Consistent with E.O. 13990 and E.O. 14008, CEQ has reviewed the
2020 regulations and engaged in a multi-phase rulemaking process to
ensure that the NEPA implementing regulations provide for sound and
efficient environmental review of Federal actions, including those
actions integral to tackling the climate crisis, in a manner that
enables meaningful public participation, provides for an expeditious
process, discloses climate change-related effects, advances
environmental justice, respects Tribal sovereignty, protects our
Nation's resources, and promotes better and more equitable
environmental and community outcomes.
On June 29, 2021, CEQ issued an interim final rule to amend the
requirement in 40 CFR 1507.3(b) (2020) \48\ that agencies propose
changes to existing agency-specific NEPA procedures to make those
procedures consistent with the 2020 regulations by September 14,
2021.\49\ CEQ extended the date by 2 years to avoid agencies proposing
changes to agency-specific implementing procedures on a tight deadline
to conform to regulations that were undergoing extensive review and
would likely change in the near future.
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\48\ In the preamble, CEQ uses the section symbol (Sec. ) to
refer to the proposed or final regulations; 40 CFR 150X.X (2020) or
(2022) to refer to the current CEQ regulations as set forth in 40
CFR parts 1500-1508, which this Final Rule amends; and 40 CFR 150X.X
(2019) to refer to the CEQ regulations as they existed prior to the
2020 rule.
\49\ CEQ, Deadline for Agencies to Propose Updates to National
Environmental Policy Act Procedures, 86 FR 34154 (June 29, 2021).
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Next, on October 7, 2021, CEQ issued a ``Phase 1'' proposed rule to
focus on a discrete set of provisions designed to restore three
elements of the 1978 regulations, which CEQ finalized on April 20,
2022.\50\ First, the Phase 1 rule revised 40 CFR 1502.13 (2020), with a
conforming edit to 40 CFR 1508.1(z) (2020), to clarify that agencies
have discretion to consider a variety of factors when assessing an
application for authorization by removing a requirement that an agency
base the purpose and need on the goals of an applicant and the agency's
statutory authority. Second, CEQ removed language in 40 CFR 1507.3
(2020) that could be construed to limit agencies' flexibility to
develop or revise procedures to implement NEPA specific to their
programs and functions that may go beyond CEQ's regulatory
requirements. Finally, CEQ revised the definition of ``effects'' in 40
CFR 1508.1(g) (2020) to restore the substance of the definitions of
``effects'' and ``cumulative impacts'' contained in the 1978
regulations.
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\50\ CEQ, National Environmental Policy Act Implementing
Regulations Revisions, 86 FR 55757 (Oct. 7, 2021) (Phase 1 proposed
rule); CEQ, National Environmental Policy Act Implementing
Regulations Revisions, 87 FR 23453 (Apr. 20, 2022) (Phase 1 Final
Rule).
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On July 31, 2023, CEQ published the Phase 2 notice of proposed
rulemaking (proposed rule or NPRM), initiating a broader rulemaking to
revise, update, and modernize the NEPA implementing regulations.\51\
Informed by CEQ's extensive experience implementing NEPA, public and
agency input, and Congress's amendments to NEPA, CEQ proposed further
revisions to improve the efficiency and effectiveness of environmental
reviews; ensure that environmental reviews are guided by science and
are consistent with the statute's text and purpose; enhance clarity and
certainty for Federal agencies, project proponents, and the public;
enable full and fair public participation and a process that informs
the public about the potential environmental effects of agency actions;
and ultimately promote better informed Federal decisions that protect
and enhance the quality of the human environment, including by ensuring
climate change, environmental justice, and other environmental issues
are fully accounted for in agencies' decision-making processes.
---------------------------------------------------------------------------
\51\ CEQ, National Environmental Policy Act Implementing
Regulations Revision Phase 2, 88 FR 49924 (July 31, 2023) (Phase 2
proposed rule).
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Publication of the proposed rule initiated a 60-day public comment
period that concluded on September 29, 2023. CEQ held four virtual
public meetings on the proposed rule on August 26, 2023; August 30,
2023; September 11, 2023; and September 21, 2023, as well as two Tribal
consultations on September 6, 2023, and September 12, 2023. CEQ
received approximately 147,963 written comments and 86 oral comments in
response to the proposed rule and considered these 148,049 comments in
the development of this final rule. A majority of the comments
(approximately 147,082) were campaign form letters sent in response to
an organized initiative and are identical or very similar in form and
content. CEQ received approximately 920 unique public comments, of
which 540 were substantive comments on a variety of aspects of the
rulemaking approach and contents of the proposed rule.
The majority of the unique comments expressed overall or
conditional support for the proposed rule. CEQ provides a summary of
the comments received on the proposed rule and responses to those
comment summaries in the document, ``National Environmental Policy Act
Implementing Regulations Revision Phase 2 Response to Comments'' (Phase
2 Response to Comments). Additionally, CEQ provides brief comment
summaries and responses for many of the substantive comments it
received as part of the summary and rationale for the final rule in
section II.
As discussed in section I.B, CEQ relies on its extensive experience
overseeing and implementing NEPA in the development of this rule. CEQ
has over 50 years of experience advising Federal agencies on the
implementation of NEPA and is staffed by NEPA practitioners who have
decades of experience implementing NEPA at agencies across the Federal
Government as well as from outside the government, including State
governments and applicants whose activities require Federal action. CEQ
collaborates daily with Federal agencies on specific NEPA reviews,
provides government-wide guidance on NEPA implementation, including the
recent NEPA amendments, consults with agencies on the development of
agency-specific NEPA implementing procedures and determines whether the
procedures conform with NEPA and the CEQ regulations, and advises the
President on a vast array of environmental issues. This experience also
enables CEQ to contextualize the patchwork of fact-specific judicial
decisions that have evolved under NEPA. This rulemaking seeks to bring
clarity and predictability to Federal agencies and outside parties
whose activities require Federal action and therefore trigger NEPA
review, while also facilitating better environmental and social
outcomes due to informed decision making.
II. Summary of and Rationale for the Final Rule
This section summarizes the changes CEQ proposed to its NEPA
implementing regulations in the notice of proposed rulemaking (NPRM or
proposed rule), the public comments CEQ received on those proposed
changes, a description of the revisions made through this final rule,
and the rationale for those changes. CEQ's revisions fall into five
general categories. First, CEQ makes revisions to the regulations to
implement the amendments to NEPA made by the Fiscal Responsibility Act.
Second, CEQ amends the regulations to enhance consistency and clarity.
Third, CEQ revises the regulations based on decades of CEQ and agency
experience implementing and complying with NEPA to improve the
efficiency and
[[Page 35448]]
effectiveness of the environmental review process, foster science-based
decision making, better effectuate NEPA's statutory purposes, and
reflect developments in case law. Fourth, CEQ reverts to and revises
for clarity certain language from the 1978 regulations, which were in
effect for more than 40 years before the 2020 rule revised them, where
CEQ determined the 1978 language provides clearer and more effective
and predictable direction or guidance to implement NEPA. Fifth, CEQ
removes certain provisions added by the 2020 rule that CEQ considers
imprudent or legally unsettled, or that create uncertainty or ambiguity
that could reduce efficiency or increase the risk of litigation.
Outside of those revisions, CEQ retains many of the changes made in the
2020 rulemaking, including changes that codified longstanding practice
or guidance or enhanced the efficiency and effectiveness of the NEPA
process. For example, CEQ identified for retention the inclusion of
Tribal interests throughout the regulations, the integration of
mechanisms to facilitate better interagency cooperation, and the
reorganization and modernization of provisions addressing certain
elements of the process to make the regulations easier to understand
and follow. CEQ considers it important that the regulations meet
current goals and objectives, including to promote the development of
NEPA documents that are concise but also include the information needed
to inform decision makers and reflect public input.
In response to the Phase 1 proposed rule, CEQ received many
comments on provisions not addressed in Phase 1. CEQ indicated in the
Phase 1 Final Rule that it would consider such comments during the
development of this Phase 2 rulemaking. CEQ has done so, and where
applicable, this final rule provides a high-level summary of the
important issues raised in those public comments. Where CEQ has
retained provisions as finalized in the Phase 1 rulemaking, CEQ
incorporates by reference the discussion of those provisions in the
Phase 1 proposed and final rule, as well as the Phase 1 Response to
Comments.\52\ CEQ is revising and republishing the entirety of the NEPA
regulations, Subpart A of Chapter V, Title 40 of the Code of Federal
Regulations.\53\
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\52\ CEQ, Phase 1 proposed rule, supra note 50; CEQ, Phase 1
Final Rule, supra note 50; CEQ, National Environmental Policy Act
Implementing Regulations Revision Phase 1 Response to Comments (Apr.
2022) (Phase 1 Response to Comments), https://www.regulations.gov/document/CEQ-2021-0002-39427.
\53\ Consistent with guidance from the Office of Federal
Register, republishing the provisions that are unchanged in this
rulemaking provides context for the revisions. See Office of the
Federal Register, Amendatory Instruction: Revise and Republish,
https://www.archives.gov/federal-register/write/ddh/revise-republish.
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A. Changes Throughout Parts 1500-1508
In the NPRM, CEQ proposed several revisions throughout parts 1500
through 1508 to provide consistency, improve clarity, and correct
grammatical errors. CEQ proposed clarifying edits because unclear
language can create confusion and undermine consistent implementation,
thereby improving the efficiency of the NEPA process and reducing the
risk of litigation.
For these reasons, CEQ proposed to change the word ``impact'' to
``effect'' throughout the regulations where this term is used as a noun
because these two words are synonymous, with three exceptions. The
regulations would continue to refer to a finding of no significant
impact (FONSI) because that term has been widely used and recognized
and making the substitution of effect for impact in that instance could
create confusion rather than add clarity, and environmental impact
statement because this term is used in the NEPA statute. Third, CEQ
proposed to use ``cumulative impact'' in the definition of
``environmental justice'' as discussed further in section II.J.9. CEQ
makes these change in the final rule as proposed.
Also, to enhance clarity, CEQ proposed to use the word
``significant'' only to modify the term ``effects'' throughout the
regulations. Accordingly, where ``significant'' modifies a word other
than ``effects,'' CEQ proposed to replace ``significant'' with another
synonymous adjective, typically ``important'' or ``substantial,'' which
have also been used in varying provisions throughout the CEQ
regulations since 1978. CEQ proposed this change to avoid confusion
about what ``significant'' means in these other contexts without
substantively changing any of the provisions so revised.
CEQ proposed this change based on public comments and agency
feedback on the Phase 1 rulemaking that use of the word ``significant''
in phrases such as ``significant issues'' or ``significant actions''
creates confusion on what the word ``significant'' means.\54\ CEQ also
proposed the change to align with the definition of ``significant
effects'' in Sec. 1508.1(mm), as discussed in section II.J.24.
---------------------------------------------------------------------------
\54\ CEQ, Phase 1 Response to Comments, supra note 52, at 120-
21.
---------------------------------------------------------------------------
One commenter supported the use of ``important'' in place of
``significant,'' asserting that the change will reduce unnecessary
confusion and delays because use of consistent terminology will
eliminate ambiguity and increase consistency and will speed up future
reviews because all parties will understand what is meant by a term. A
few other commenters supported the changes in terms generally, saying
that the changes help make the NEPA regulations easier to understand.
A separate commenter supported the use of the term ``important''
arguing that it would broaden the scope of what agencies should
consider under NEPA. The commenter described significance, in the
context of NEPA, as a high bar, and agreed with CEQ that important
issues should also be subject to thorough consideration in
environmental reviews.
Multiple commenters disagreed with the proposed use of
``important'' in place of ``significant'' or ``unimportant'' in place
of ``insignificant.'' These commenters expressed concern about the
interpretation of ``important'' without a definition or additional
guidance, and that the use of these adjectives could cause confusion
and increase litigation risk. A few commenters requested that the final
rule replace ``issues'' with ``effects'' and change ``important
issues'' to ``significant effects'' asserting that the phrase
``important issues'' is subjective. One commenter stated that while CEQ
described the changes as minor, these terms are well understood by
courts and agencies and as such changing them will result in numerous
updates of related procedures, regulations, and guidance documents that
use these terms just for editorial purposes.
Another commenter expressed concern that replacing the word
``significant'' with another adjective is unnecessary, and points to
CEQ's own description in the NPRM that it does not intend to
``substantively change the meaning of the provisions'' and suggesting
the replacement words will be synonymous. The commenter further
asserted that it will be difficult to ensure consistency of
implementation if CEQ continually changes language that has no
substantive effect on the regulations.
A separate commenter asserted that while they appreciated the
return of the definition of ``significance,'' the use of the new term
``important'' is confusing. The commenter further stated that with the
heightened focus on environmental justice, human health, and social or
societal effects, it is unclear what is
[[Page 35449]]
considered important and who determines whether something is important.
CEQ implements this change from ``significant'' to one of its
synonyms when it is not modifying ``effect'' in the final rule. The
NEPA regulations have long required agencies to focus on the
``important'' issues, see 40 CFR 1500.1 (2019), and agencies have
decades of experience doing just that--CEQ disagrees that use of this
term in other provisions as a substitute for ``significant issues''
alters the scope of the issues to which those provisions refer. CEQ
declines to add a definition for this term because its plain meaning is
sufficient and notes that the phrase ``significant issues'' was not
defined in the 1978 regulations.\55\ CEQ's intent is that agencies
focus their NEPA documents on the issues that are key for the public to
comment on and the agency to take into account in the decision-making
process, and only briefly explain why other, unimportant issues are not
discussed. As CEQ indicated in the proposed rule, it does not intend
the substitution of ``important'' and ``substantial'' for
``significant'' to substantively change the meaning of the provisions,
but rather to bring greater consistency and clarity to agencies in
implementing these provisions by eliminating a potential ambiguity that
these phrases incorporate the definition of ``significant effects'';
for example, ensuring that the phrase ``significant actions'' is not
mistakenly understood to mean actions that have significant effects,
which was not the meaning of the phrase in the regulations. CEQ
discusses comments on specific uses of the terms in specific sections
of the rule and in the Phase 2 Response to Comments.
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\55\ See, e.g., Significant, Merriam-Webster, https://www.merriam-webster.com/dictionary/significant (defining
``significant'' as ``having or likely to have influence or effect:
IMPORTANT'').
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For clarity, CEQ proposed to change ``statement'' to
``environmental impact statement'' and ``assessment'' to
``environmental assessment'' where the regulations only use the short
form in the paragraph. See, e.g., Sec. Sec. 1502.3 and 1506.3(e)(1)
through (e)(3). CEQ did not receive comments on this proposal and makes
these changes throughout the rule as proposed.
CEQ also proposed to make non-substantive grammatical corrections
or consistency edits throughout the regulations where CEQ considered
the changes to improve readability. Finally, CEQ proposed to update the
authorities for each part, update the references to NEPA as amended by
the Fiscal Responsibility Act, and fix internal cross references to
other sections of the regulations throughout to follow the correct
Federal Register format. CEQ makes these changes in the final rule.
B. Revisions To Update Part 1500, Purpose and Policy
CEQ proposed substantive revisions to all sections in part 1500.
These revisions include reinstating Sec. 1500.2, ``Policy,'' as its
own section separate from Sec. 1500.1, ``Purpose'' consistent with the
approach taken in the 1978 regulations. Some commenters recommended
that CEQ title Sec. 1500.1 ``Purpose and Policy'' and title Sec.
1500.2 ``Additional Policy'' because, in their view, Sec. 1500.2
reflects CEQ's policy judgments rather than the commands of the NEPA
statute.
CEQ declines to make this change. The purpose of Sec. Sec. 1500.1
and 1500.2 is to place the regulations into their broader context by
restating the policies of the Act within the regulations, which will
improve readability by avoiding the need for cross references to
material outside the text of the regulations. Section 1500.2 reflects
CEQ's interpretation of the policies of the Act, rather than CEQ's own
policy priorities.
1. Purpose (Sec. 1500.1)
In Sec. 1500.1, CEQ proposed to restore much of the language from
the 1978 regulations with revisions to further incorporate the policies
Congress established in the NEPA statute. CEQ proposed these changes to
restore text regarding NEPA's purpose and goals, placing the
regulations into their broader context and to restate the policies of
the Act within the regulations. Some commenters expressed general
support for proposed Sec. 1500.1 stating that the revisions
appropriately frame NEPA's purposes. CEQ revises Sec. 1500.1 as
discussed in this section to recognize that the procedural provisions
of NEPA are intended to further the purpose and goals of the Act. One
of those goals is to make informed and sound government decisions.
First, CEQ proposed to revise paragraph (a) of 40 CFR 1500.1 (2020)
by subdividing it into paragraphs (a), (a)(1), and (a)(2). In paragraph
(a), CEQ proposed to revise the first sentence to restore language from
the 1978 regulations stating that NEPA is ``the basic national charter
for protection of the environment'' and add a new sentence stating that
NEPA ``establishes policy, sets goals'' and ``provides direction'' for
carrying out the principles and policies Congress established in
sections 101 and 102 of NEPA. 42 U.S.C. 4331, 4332. CEQ proposed to
remove language from the first sentence of paragraph (a) describing
NEPA as a purely procedural statute because CEQ considers that language
to be an inappropriately narrow view of NEPA's purpose and ignores the
fact that Congress established the NEPA process for the purpose of
promoting informed decision making and improved environmental outcomes.
Some commenters objected to the proposed use of the phrase ``basic
national charter for protection of the environment'' in paragraph (a),
asserting it misrepresents NEPA's purpose as a procedural statute.
Other commenters opposed the proposed changes to remove the language
clarifying that NEPA is a procedural statute, asserting the proposed
changes could give the impression that CEQ seeks to expand NEPA beyond
its original mandate.
Another commenter objected to the restoration of the language in
paragraph (a) asserting that describing NEPA as the ``basic national
charter for the protection of the environment'' displaces the U.S.
Constitution from the role of ``America's basic national charter for
protection.'' CEQ declines to remove this language, which accurately
describes NEPA's purpose, was included in the 1978 regulations, and
remained in place until the 2020 rule. CEQ disagrees that describing
NEPA as the basic national charter for the protection of the
environment denigrates the role of the U.S. Constitution. Congress
enacted NEPA exercising its Constitutional authority to declare a
national environmental policy and describing NEPA as ``America's basic
national charter for the protection of the environment'' does not imply
that NEPA overshadows the U.S. Constitution. CEQ also notes that
several courts have quoted this language approvingly. See, e.g., Ctr.
for Biological Diversity v. Bernhardt, 982 F.3d 723, 734 (9th Cir.
2020); Habitat Educ. Ctr., Inc. v. United States Forest Serv., 673 F.3d
518, 533 (7th Cir. 2012).
In the final rule, CEQ revises paragraph (a) as proposed, but
removes the parenthetical references to sections 101 and 102 as
unnecessary and incomplete because other sections of NEPA also provide
direction for carrying out NEPA's policy, which are addressed
throughout the regulations. While CEQ agrees that the NEPA analysis
required by section 102(2)(C) and these regulations does not dictate a
particular outcome, Congress did not establish NEPA to create procedure
for procedure's sake, but rather, to provide for better informed
Federal decision making and improved environmental
[[Page 35450]]
outcomes. These goals are not fulfilled if the NEPA analysis is treated
merely as a check-the-box exercise. 42 U.S.C. 4332(2)(C). CEQ does not
consider it necessary to repeatedly emphasize in the regulations the
procedural nature of the statutory mechanism Congress chose to advance
the purposes of NEPA as described in section 2 and the policy
directions established in section 101 of NEPA. 42 U.S.C. 4321, 4331.
Doing so may suggest that NEPA mandates a rote paperwork exercise and
de-emphasizes the Act's larger goals and purposes. Instead, CEQ remains
cognizant of the goals Congress intended to achieve through the NEPA
process in developing CEQ's implementing regulations, and agencies
should carry out NEPA's procedural requirements in a manner faithful to
the purposes of the statute.
Second, in Sec. 1500.1(a)(1), CEQ proposed to retain the second
sentence of 40 CFR 1500.1(a) (2020) summarizing section 101(a) of NEPA,
change ``man'' to ``people'' to remove gendered language, and delete
``of Americans'' after ``present and future generations.'' 42 U.S.C.
4331(a). CEQ proposed to add a second sentence summarizing section
101(b) to clarify that agencies should advance the purposes in section
101(b) through their NEPA reviews. 42 U.S.C. 4331(b). CEQ proposed to
include this language in Sec. 1500.1(a)(1) to help agencies understand
what the regulations refer to when the regulations direct or encourage
agencies to act in a manner consistent with the purposes or policies of
the Act. See, e.g., Sec. Sec. 1500.2(a), 1500.6, 1501.1(a), 1502.1(a),
and 1507.3(b).
Some commenters objected to the proposal to remove ``of Americans''
from paragraph (a)(1) contending that the removal would be inconsistent
with the statute. After considering these comments, CEQ has determined
not to make this change and leave the phrase ``of Americans'' at the
end of the first sentence of paragraph (a)(1), because this sentence is
specifically describing section 101(a) of NEPA, which includes the
phrase. However, CEQ notes that this text in section 101(a) and
paragraph (a)(1) does not limit NEPA's concerns solely to Americans or
the United States. For example, other language in section 101 reflects
NEPA's broader purpose to ``create and maintain conditions under which
[humans] and nature can exist in productive harmony'' without
qualification. 42 U.S.C. 4331(a). As discussed further in section
II.J.13, CEQ removes ``of Americans'' from the definition of ``human
environment'' in Sec. 1508.1(r) for consistency with the statute's
overall broader purpose.
A commenter recommended CEQ add a dash after ``national policy'' in
the second sentence for consistency with the statute to ensure that all
six of the goals are modified by the phrase ``consistent with
considerations of national policy.'' CEQ agrees that the beginning of
the sentence, including the phrase ``consistent with other essential
considerations of national policy'' modifies all of the listed items
that follow and, in the final rule, revises the sentence to subdivide
it into paragraphs (a)(1)(i) through (vi) to make this clarification.
Lastly in paragraph (a)(1), in the final rule, CEQ changes ``man'' to
``humans'' rather than the proposed ``people'' to remove the gendered
language while also providing consistency with the term ``human'' and
``human environment'' used in the NEPA statute and throughout the
regulations.
Third, CEQ proposed to begin Sec. 1500.1(a)(2) with the third
sentence of 40 CFR 1500.1(a) (2020), modify it, and add two new
sentences to generally restore the language of the 1978 regulations
stating that the purpose of the regulations is to convey what agencies
should and must do to comply with NEPA to achieve its purpose.
Specifically, CEQ proposed to revise the first sentence to state that
section 102(2) of NEPA establishes the procedural requirements to carry
out the policies ``and responsibilities established'' in section 101,
and contains `` `action-forcing' procedural provisions to ensure
Federal agencies implement the letter and spirit of the Act.'' 42
U.S.C. 4332(2), 42 U.S.C. 4331. CEQ proposed to add a new second
sentence stating the purpose of the regulations is to set forth what
agencies must and should do to comply with the procedures and achieve
the goals of the Act. In the third new sentence, CEQ proposed to
restore the language from the 1978 regulations that the President,
Federal agencies, and the courts share responsibility for enforcing the
Act to achieve the policy goals of section 101. 42 U.S.C. 4331.
Fourth, CEQ proposed to strike the fourth and fifth sentences of 40
CFR 1500.1(a) (2020), added by the 2020 rule, which state that NEPA
requires Federal agencies to provide a detailed statement for major
Federal actions, that the purpose and function of NEPA is satisfied if
agencies have considered environmental information and informed the
public, and that NEPA does not mandate particular results. While the
NEPA process does not mandate that agencies reach specific decisions,
CEQ proposed to remove this language because CEQ considered this
language to unduly minimize Congress's understanding that procedures
ensuring that agencies analyze, consider, and disclose environmental
effects will lead to better substantive outcomes. CEQ also considered
this language inconsistent with Congress's statements of policy in the
NEPA statute.
Some commenters objected specifically to the proposed addition of
the phrase ``action-forcing,'' and others contended that the proposed
rule would revise the regulation not merely to force action, but to
require specific outcomes. Another commenter asserted that proposed
paragraph (a)(2) goes too far in separating policy goals from the
procedures passed by Congress to achieve them.
CEQ finalizes paragraph (a)(2) as proposed and removes the language
that describes NEPA as a purely procedural statute because CEQ
considers the language to reflect an inappropriately narrow view of
NEPA's purpose that minimizes Congress's broader goals in enacting the
statute, as specified in sections 2 and 101 of NEPA. 42 U.S.C. 4321,
4331. While NEPA does not mandate particular results in specific
decision-making processes, Congress intended the procedures required
under the Act to result in more informed decisions, with the goal that
information about the environmental effects of those decision would
facilitate better environmental outcomes. See, e.g., Andrus v. Sierra
Club, 442 U.S. 347, 350-51 (1979) (``If environmental concerns are not
interwoven into the fabric of agency planning, the action-forcing
characteristics of [NEPA] would be lost.'').
Fifth, CEQ proposed to strike the first two sentences of 40 CFR
1500.1(b) (2020), which the 2020 rule added, because they provide an
unnecessarily narrow view of the purposes of NEPA and its implementing
regulations. CEQ proposed to revise the third sentence and add two new
sentences to restore in paragraph (b) language from the 1978
regulations emphasizing the importance of the early identification of
high-quality information that is relevant to a decision. Early
identification and consideration of issues using high-quality
information have long been fundamental to the NEPA process,
particularly because such identification and consideration facilitates
comprehensive analysis of alternatives and timely and efficient
decision making, and CEQ considers it important to emphasize these
considerations in this section. CEQ also proposed the changes to
emphasize that the environmental information that agencies
[[Page 35451]]
use in the NEPA process should be high-quality, science-based, and
accessible.
Multiple commenters supported the proposed provisions of Sec.
1500.1(b). One commenter supported the provision for agencies to
``concentrate on the issues that are truly relevant to the action in
question, rather than amassing needless detail,'' and to use ``high
quality, science-based, and accessible'' information. One commenter
recommended that CEQ revise ``Most important'' to ``Most importantly''
in Sec. 1500.1(b). CEQ agrees that this change would improve the
readability of the sentence and makes this clarifying edit in the final
rule.
Other commenters opposed the change to proposed paragraph (b),
asserting it would delete important regulatory text. The commenters
asserted that by striking the language, CEQ has turned the section from
one that says follow the rules into one that adds to the rules. Upon
further consideration, CEQ has determined not to finalize the proposed
revisions to the beginning of paragraph (b) because the text from the
1978 regulations could be construed as a direction to agencies rather
than a statement about the purpose of the CEQ regulations.
Specifically, the final rule retains ``[t]he regulations in this
subchapter implement'' from the current regulations and then replaces
``section 102(2) of NEPA'' with ``the requirements of NEPA,'' because
the requirements of NEPA extend to additional sections following the
2023 NEPA amendments. Additionally, CEQ includes the proposed new
second sentence, with revisions. In the final rule, this provision
requires rather than recommends that information be high quality for
consistency with Sec. 1506.6. CEQ does not include the proposed
references to ``science-based'' and ``accessible'' to avoid potential
confusion that this provision was establishing a separate obligation
from Sec. 1506.6, which addresses methodology and scientific accuracy.
Finally, CEQ proposed a new paragraph (c) to restore text from the
1978 regulations, most of which the 2020 rule deleted, emphasizing the
importance of NEPA reviews for informed decision making. Some
commenters recommended CEQ further amend proposed paragraph (c) to
state that agencies only have to ``protect'' or ``restore and
protect,'' rather than ``enhance'' the environment for consistency with
sections 101 and 102 of NEPA. 42 U.S.C. 4331, 4332.
CEQ disagrees with the commenters' view of NEPA's purposes and
scope. To the extent that a substantive difference exists between the
terms in this context, CEQ notes that section 101(c) of NEPA recognizes
``that each person has a responsibility to contribute to the
preservation and enhancement of the environment.'' 42 U.S.C. 4331(c)
(emphasis added); see also, e.g., Douglas Ctny. v. Babbitt, 48 F.3d
1495, 1505 (9th Cir. 1995) (``The purpose of NEPA is to `provide a
mechanism to enhance or improve the environment and prevent further
irreparable damage.' '' (emphasis added) (quoting Pac. Legal Found. v.
Andrus, 657 F.2d 829, 837 (6th Cir. 1981)). Another commenter
recommended that CEQ qualify the second sentence of proposed paragraph
(c) by appending, ``within the agency's Congressional authorizations.''
CEQ declines to make this change. In implementing any statute, agencies
must act within the scope of their legal authority; adding a specific
qualification to that effect here is therefore unnecessary and could be
confusing. CEQ finalizes paragraph (c) as proposed.
2. Policy (Sec. 1500.2)
The 2020 rule struck 40 CFR 1500.2 (2019), stating that it was
duplicative of other sections, and integrated policy language into 40
CFR 1500.1 (2020).\56\ CEQ proposed to restore Sec. 1500.2 because a
robust articulation of NEPA's policy principles is fundamental to the
NEPA process. CEQ also proposed to restore the policy section because
it is helpful to agency practitioners and the public to have a
consolidated listing of policy objectives regardless of whether other
sections of the regulations address those objectives. CEQ proposed to
restore with some updates the language of the 1978 regulations to Sec.
1500.2.
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\56\ CEQ, 2020 Final Rule, supra note 39, at 43316-17.
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First, CEQ proposed to restore an introductory paragraph to require
agencies ``to the fullest extent possible'' to comply with the policy
set forth in paragraphs (a) through (f). One commenter asserted that
the final rule should delete ``to the fullest extent possible'' because
it improperly expands the regulation's authority. CEQ disagrees with
the commenter's interpretation of the phrase, which does not expand,
but rather qualifies, the scope of Sec. 1500.2 and conforms with the
text in section 102 of NEPA, which directs agencies to comply with that
section's requirements, including the requirement to prepare an EIS,
``to the fullest extent possible.'' See 42 U.S.C. 4332.
Second, CEQ proposed to restore in paragraph (a) the 1978 language
directing agencies to interpret and administer policies, regulations,
and U.S. laws consistent with the policies of NEPA and the CEQ
regulations. Some commenters recommended the final rule revise
paragraph (a) to replace ``the policies set forth in the Act and in
these regulations,'' with ``with other applicable laws and regulations,
in addition to NEPA.'' CEQ finalizes paragraph (a) as proposed and
declines to make this change because it aligns with the language of
section 102(1) of NEPA. See 42 U.S.C. 4332(1). The purpose of Sec.
1500.2(a) is to place the CEQ regulations into their broader context by
restating NEPA's policies. Doing so improves readability by avoiding
the need for cross references to material outside the text of the
regulations.
Third, in paragraph (b), CEQ proposed to restore with clarifying
edits the 1978 language directing agencies to implement procedures that
facilitate a meaningful NEPA process, including one that is useful to
decision makers and the public with environmental documents that are
concise and clear, emphasize the important issues and alternatives, and
are supported by evidence. CEQ did not receive comments specific to
this proposed paragraph and finalizes paragraph (b) as proposed.
Fourth, in paragraph (c), CEQ proposed to direct agencies to
integrate NEPA with other planning and environmental review
requirements to promote efficient, concurrent processes. One commenter
requested the final rule revise proposed paragraph (c) to add
qualifying language to require the integration be done at the earliest
reasonable time, consistent with Sec. 1501.2(a), except where
inconsistent with other statutory requirements or where inefficient.
The commenter generally supported integrating the NEPA process with
other processes when it is efficient, but asserted that sometimes it
may be more efficient to have other processes run consecutively instead
of concurrently. CEQ agrees that processes should run consecutively
where it is more efficient to do so, and that agencies should not
integrate processes when doing so would be inefficient. Therefore, in
the final rule, CEQ adds proposed paragraph (c) but does not include
``all'' before ``such procedures,'' and adds ``where doing so promotes
efficiency'' at the end of the paragraph.
Fifth, in paragraph (d) CEQ proposed to modernize language from the
1978 regulations in 40 CFR 1500.2(d) (2019) to emphasize public
engagement, including ``meaningful public
[[Page 35452]]
engagement with communities with environmental justice concerns, which
often include communities of color, low-income communities, indigenous
communities, and Tribal communities.''
One commenter requested that CEQ clarify whether the phrase
``affect the quality of the human environment'' in paragraph (d) refers
to beneficial or adverse effects and whether it covers temporary
effects in addition to permanent ones. CEQ declines to amend the
language in question, which CEQ is restoring from the 1978 regulations.
Because NEPA directs agencies to consider all of the reasonably
foreseeable effects of a proposed action--including positive, negative,
temporary, and permanent effects--this phrase is appropriately broad.
While the final rule defines ``significant effects'' as limited to only
adverse effects, see Sec. 1508.1(mm), paragraph (d) is broader because
the NEPA regulations encourage and facilitate public engagement for
actions that may not have significant effects, including actions that
agencies analyze through an EA.
Multiple commenters supported proposed Sec. 1500.2(d) and the
emphasis on public engagement. Some commenters recommended the final
rule expand the paragraph to clarify how agencies should facilitate
public engagement and education. CEQ declines to expand this paragraph
because the intent of Sec. 1500.2 is to place the regulations into
their broader policy context. Instead, Sec. 1501.9 describes agencies'
public engagement responsibilities in detail.
Some commenters opposed proposed paragraph (d) and the emphasis on
public engagement. One commenter expressed concern that the proposed
rule does not include a similar increased emphasis on State-specific
involvement, requested the final rule delineate between State
involvement and public involvement, and explicitly emphasize the
importance of State-specific engagement, much the same way CEQ has
outlined for Tribal engagement.
In the final rule, CEQ adds proposed paragraph (d) but omits the
last clause of the proposal and declines to specifically address State-
specific involvement in this paragraph because this paragraph is about
involving the public, rather than coordinating with other government
entities such as States and Tribes. While public involvement and inter-
governmental coordination are both critically important components of
the NEPA process, they implicate different considerations and are
addressed by different portions of the NEPA regulations. CEQ does not
include the proposed language describing what communities are often
included as communities with environmental justice concerns because
``environmental justice'' and ``communities with environmental justice
concerns'' are defined terms in Sec. 1508.1(f) and (m) and the
explanatory language is unnecessary in Sec. 1500.2. CEQ also revises
the clause in the final rule to clarify the example by adding ``such as
those'' after communities so that the example refers to communities in
general and communities with environmental justice concerns more
specifically, because the regulations encourage meaningful engagement
with all communities that are potentially affected by an action. The
reference to engagement with communities with environmental justice
concerns is an example and not exhaustive. Further, CEQ views an
emphasis on engagement with such communities to be important because
agencies have not always meaningfully engaged with them, and such
communities have been disproportionately and adversely affected by
certain Federal activities, and such communities often face challenges
in engaging with the Federal Government. In making this change to
emphasize public engagement, CEQ notes that consultation with Tribal
Nations on a nation-to-nation basis is distinct from the public
engagement requirements of NEPA.\57\
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\57\ See E.O. 13175, Consultation and Coordination with Indian
Tribal Governments, 65 FR 67249 (Nov. 9, 2000); Presidential
Memorandum, Tribal Consultation and Strengthening Nation-to-Nation
Relationships, 86 FR 7491 (Jan. 29, 2021).
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Sixth, in paragraph (e), CEQ proposed to restore language from the
1978 regulations regarding use of the NEPA process to identify and
assess the reasonable alternatives to proposed actions that avoid or
minimize adverse effects. CEQ also proposed to add examples of such
alternatives, including those that will reduce climate change-related
effects or address health and environmental effects that
disproportionately affect communities with environmental justice
concerns.
One commenter requested that the final rule further clarify
paragraph (e) by adding examples of reasonable alternatives. CEQ
declines to add examples to paragraph (e) because reasonable
alternatives are not amenable to easy generalization or simple
description as they depend on project-specific factors, such as purpose
and need, and technical and economic feasibility. Therefore, examples
of reasonable alternatives are ill-suited to regulatory text. Some
commenters opposed the references to climate change and environmental
justice in Sec. 1500.2(e), contending that the references indicate
that CEQ's regulations direct or favor particular substantive outcomes,
such as the disapproval of oil and gas projects, and will therefore
prejudice agencies' analysis of environmental effects; that the NEPA
statute does not explicitly address these subjects; or that it will be
difficult or burdensome for agencies to account for climate change when
conducting environmental reviews.
CEQ adds paragraph (e) as proposed in the final rule. CEQ agrees
that NEPA does not dictate a particular outcome, and disagrees that the
references to climate change and environmental justice in Sec.
1500.2(e) are contrary to this principle. Rather, Congress enacted and
amended NEPA based on the understanding that agency decision makers
will make better decisions if they are fully informed about each
decision's reasonably foreseeable environmental effects. Paragraph (e)
prompts agencies to give appropriate regard to environmental effects
related to climate change and environmental justice.
Further, the references to climate change and environmental justice
in paragraph (e) reflect and advance NEPA's statutory objectives, text,
and policy statements, which include analyzing a reasonable range of
alternatives; avoiding environmental degradation; preserving historic,
cultural, and natural resources; and ``attain[ing] the widest range of
beneficial uses of the environment without degradation, risk to health
or safety, or other undesirable and unintended consequences.'' 42
U.S.C. 4331(b), 4332(2)(C)(iii). The references emphasize that decision
makers should integrate those subjects into the analysis of the
environmental effects of a proposed action and any reasonable
alternatives, as appropriate. Additionally, these changes are
consistent with the goal of providing ``safe, healthful, productive,
and esthetically and culturally pleasing surroundings'' across the
Nation, and the goal that all people can ``enjoy a healthful
environment,'' 42 U.S.C. 4331(b), (c), and highlight the importance of
considering such effects in environmental documents, consistent with
NEPA's requirements and agency practice.\58\ The changes are also
[[Page 35453]]
consistent with E.O. 12898 and E.O. 14096.
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\58\ Consistent with section 102(2)(C) of NEPA, consideration of
environmental justice and climate change-related effects has long
been part of NEPA analysis. See, e.g., Ctr. for Biological Diversity
v. Nat'l Highway Traffic Safety Admin., 538 F.3d 1172 (9th Cir.
2008) and CEQ, Environmental Justice Guidance, supra note 7.
---------------------------------------------------------------------------
Finally, in paragraph (f), CEQ proposed to restore the direction
from the 1978 regulations to use all practicable means, consistent with
the policies of NEPA, to restore and enhance the environment and avoid
or minimize any possible adverse effects of agency actions. These
revisions to Sec. 1500.2(d), (e), and (f) reflect longstanding
practice among Federal agencies and align with NEPA's statutory
policies, including to avoid environmental degradation, preserve
historic, cultural, and natural resources, and ``attain the widest
range of beneficial uses of the environment without degradation, risk
to health or safety, or other undesirable and unintended
consequences.'' 42 U.S.C. 4331(b).
Multiple commenters expressed support for the proposed changes to
paragraphs (d), (e), and (f), asserting the changes appropriately
emphasize agency obligations to facilitate public participation in the
decision-making process, instead of merely keeping the public informed,
and to act on information they obtain in that process. These commenters
asserted the proposed changes properly describe the objectives of
environmental reviews under NEPA as informed decision making, robust
public engagement, and protection of the environment.
One commenter requested the final rule revise paragraph (f) to add
other laws and agency authorities after ``the requirements of the
Act.'' CEQ finalizes paragraph (f) as proposed and declines to make
this change because this paragraph aligns with section 101(b) of NEPA.
42 U.S.C. 4331(b). The purpose of Sec. Sec. 1500.1 and 1500.2 is to
place the regulations into their broader context by restating NEPA's
policies within the regulations. Doing so improves readability by
avoiding the need for cross references to material outside the text of
the regulations. CEQ agrees that agencies should comply with other laws
and with agency authorities, which are examples of ``other essential
considerations of national policy.'' CEQ also notes that this text was
in the 1978 regulation, in effect until 2020, and did not create
confusion that the NEPA regulations prevented agencies from complying
with other legal requirements.
Commenters recommended that CEQ add various qualifiers to Sec.
1500.2 asserting that agencies have limited authorities and resources
and must comply with other applicable laws in addition to NEPA. CEQ
declines to make these changes. The introductory paragraph of Sec.
1500.2 provides that agencies must carry out the policies set forth in
the section ``to the fullest extent possible,'' which renders the
suggested amendments redundant. Moreover, Sec. 1501.3 directs agencies
to consider, for a particular action, whether compliance with NEPA
would clearly and fundamentally conflict with the requirements of
another provision of Federal law when determining NEPA applicability to
that action, which is consistent with the manner in which Congress
addressed this issue in section 106 of NEPA. 42 U.S.C. 4336.
Likewise, commenters suggested that CEQ clarify particular points
of NEPA practice, such as defining ``all practicable means;''
explaining how agencies should facilitate public engagement and
education; adding examples of reasonable alternatives; requiring
environmental documents to describe the steps that the agency has taken
to avoid or minimize adverse effects; providing standards against which
to quantitatively assess agencies' implementation of the NEPA
regulations; requiring only that agencies minimize the ``significant''
adverse effects of a proposed action; or directing agencies to make
their planning efforts consistent with State and local plans to the
maximum extent possible.
CEQ declines to revise the regulations in response to these
comments. The purpose of Sec. Sec. 1500.1 and 1500.2 is to place the
regulations into their broader context by restating the purposes and
policies of the Act and addressing a variety of aspects of NEPA
practice would distract from that purpose. Other provisions in the
regulations implement the provisions of NEPA that effectuate these
purposes and policies, and set forth specific procedures that agencies
must and should follow. Accordingly, it is not necessary or appropriate
for Sec. 1500.2 to address these subjects in greater detail.
Lastly, one commenter recommended that CEQ add a new paragraph to
Sec. 1500.2 to require agencies to realize the Federal Government's
trust responsibility to Tribal Nations by acting on and not merely
considering Indigenous Knowledge. Another commenter made a related
recommendation that Sec. 1500.1 explicitly recognize the Federal
Government's trust responsibilities to Tribes.
CEQ agrees that agencies should consider and include Indigenous
Knowledge in Federal research, policies, and decision making, including
as part of the environmental review process under NEPA. CEQ also
recognizes that the Federal trust responsibility to Tribal Nations may
shape both the procedures that agencies follow and the substantive
outcomes of agencies' decision-making processes. CEQ does not, however,
view it as properly within the scope of CEQ's authority to direct
agencies to act on Indigenous Knowledge through the NEPA regulations,
because the NEPA statute includes procedural, rather than substantive
requirements, and the obligation to honor the trust responsibility,
including the obligation to engage in Tribal consultation, does not
arise from the NEPA statute.
3. NEPA Compliance (Sec. 1500.3)
CEQ proposed to revise Sec. 1500.3 to restore some language from
the 1978 regulations and remove some provisions added by the 2020 rule
regarding exhaustion and remedies, which aimed to limit legal
challenges and judicial remedies.\59\ The process established by the
2020 rule provided that first, an agency must request in its notice of
intent (NOI) comments on all relevant information, studies, and
analyses on potential alternatives and effects. 40 CFR 1500.3(b)(1)
(2020). Second, the agency must summarize all the information it
receives in the draft EIS and specifically seek comment on it. 40 CFR
1500.3(b)(2), 1502.17, 1503.1(a)(3) (2020). Third, decision makers must
certify in the record of decision (ROD) that they considered all the
alternatives, information, and analyses submitted by public commenters.
40 CFR 1500.3(b)(4), 1505.2(b) (2020). And fourth, any comments not
submitted within the comment period were considered forfeited as
unexhausted. 40 CFR 1500.3(b)(3), 1505.2(b) (2020).
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\59\ CEQ, 2020 Final Rule, supra note 39, at 43317-18.
---------------------------------------------------------------------------
First, CEQ proposed to revise paragraph (a) to remove the phrase
``except where compliance would be inconsistent with other statutory
requirements'' from the end of the first sentence because Sec. 1500.6
addresses this issue. CEQ also proposed to remove the references to
E.O. 13807, which E.O. 13990 revoked, as well as the reference to
section 309 of the Clean Air Act because this provision is implemented
by EPA.\60\
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\60\ See E.O. 13807, supra note 14; E.O. 13990, supra note 43.
---------------------------------------------------------------------------
CEQ removes the clause ``except where compliance would be
inconsistent with other statutory requirements'' in the final rule
because the relationship between NEPA and agency statutory authority is
addressed in Sec. 1500.6 and the circumstances in
[[Page 35454]]
which an agency does not need to prepare an environmental document due
to a conflict with other statutes is addressed in Sec. 1501.3.
Moreover, to the extent that this phrase could be read as identifying
when an agency does not need to conduct an environmental review, the
NEPA amendments address that in section 106(a)(3) using different
language, specifically, that an agency does not need to prepare an
environmental document where ``the preparation of such document would
clearly and fundamentally conflict with the requirements of another
provision of law.'' 42 U.S.C. 4336(a)(3). CEQ also removes the
references to E.O. 13807 and section 309 of the Clean Air Act
consistent with the proposal.
Second, CEQ proposed to delete paragraphs (b) and (b)(1) through
(b)(4) of 40 CFR 1500.3 (2020) addressing exhaustion. CEQ proposed to
remove these provisions because they establish an inappropriately
stringent exhaustion requirement for public commenters and agencies.
CEQ also proposed to delete this paragraph because it is unsettled
whether CEQ has the authority under NEPA to set out an exhaustion
requirement that bars parties from bringing claims on the grounds that
an agency's compliance with NEPA violated the APA, pursuant to 5 U.S.C.
702. As explained in the proposed rule, while the 2020 rule correctly
identifies instances in which courts have ruled that parties may not
raise legal claims based on issues that they themselves did not raise
during the comment period,\61\ other courts have sometimes ruled that a
plaintiff can bring claims where another party raised an issue in
comments or where the agency should have identified an issue on its
own. Pac. Coast Fed'n of Fishermen's Ass'ns v. U.S. Dep't of Interior,
929 F. Supp. 2d 1039, 1045-46 (E.D. Cal. 2013); Wyo. Lodging and Rest.
Ass'n v. U.S. Dep't of Interior, 398 F. Supp. 2d 1197, 1210 (D. Wyo.
2005); see Pub. Citizen, 541 U.S. at 765 (noting that ``[T]he agency
bears the primary responsibility to ensure that it complies with NEPA .
. . and an EA's or an EIS' flaws might be so obvious that there is no
need for a commentator to point them out specifically in order to
preserve its ability to challenge a proposed action''). Because the
fundamental question raised by these cases is the availability of a
cause of action under the APA and not a question of interpreting NEPA,
CEQ proposed to delete the exhaustion provision because CEQ considers
interpreting and applying the APA more appropriate for the courts.
---------------------------------------------------------------------------
\61\ CEQ, 2020 Final Rule, supra note 39, at 43317-18 (citing
Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 764-65 (2004); Karst
Env't. Educ. & Prot., Inc. v. Fed. Highway Admin., 559 F. App'x 421,
426-27 (6th Cir. 2014); Friends of the Norbeck v. U.S. Forest Serv.,
661 F.3d 969, 974 (8th Cir. 2011); Exxon Mobil Corp. v. U.S. EPA,
217 F.3d 1246, 1249 (9th Cir. 2000); and Nat'l Ass'n of Mfrs. v.
U.S. Dep't of the Interior, 134 F.3d 1095, 1111 (D.C. Cir. 1998)).
---------------------------------------------------------------------------
CEQ also proposed to remove the exhaustion requirement because it
is at odds with longstanding agency practice. While courts have ruled
that agencies are not required to consider comments that are not
received until after comment periods end, see, e.g., Pub. Citizen, 541
U.S. at 764-65 (finding that where a party does not raise an objection
in their comments on an EA, the party forfeits any objection to the EA
on that ground), agencies have discretion to do so and have sometimes
chosen to exercise this discretion, particularly where a comment
provides helpful information to inform the agency's decision. As
explained in the proposed rule, the exhaustion requirement could
encourage agencies to disregard important information presented to the
agency shortly after a comment period closes, and such a formalistic
approach would not advance NEPA's goal of informed decision making.
Many commenters supported CEQ's proposal to remove the exhaustion
provisions asserting that the provisions were unlawful, created
additional compliance burdens, did not improve the efficiency of the
NEPA process, and did not reduce litigation risk; and that removal is
consistent with the NEPA statute, which does not provide for an
exhaustion requirement. One commenter that supported removal, asserted
that because NEPA does not impose a statutory exhaustion requirement,
the determination of whether a particular plaintiff may go forward with
a particular claim is a matter for the judiciary. CEQ agrees with this
commenter's view. Where appropriate in light of the statutes they
administer, individual agencies may address exhaustion through their
agency-specific rules of procedure, and courts will continue to
consider exhaustion as a normal part of judicial review.
Commenters that opposed removing the exhaustion requirements argued
they are necessary to curb ``frivolous litigation claims;'' assist
agencies and the public by providing helpful information on filing
timely comments and incentivizing them to raise concerns during the
NEPA process; and communicate the need for prompt and active
participation in the NEPA review process. While CEQ agrees with these
commenters' assertions that the regulations should promote early
engagement and public participation and the timely identification of
concerns during the NEPA process, CEQ disagrees that the exhaustion
provisions are the mechanism to achieve these goals. CEQ considers
other provisions in the regulations, including Sec. Sec. 1501.9 and
1502.4, and part 1503, to be the better means of achieving these goals
without incurring the risk of including provisions in the regulations
that are legally uncertain.
For these reasons, CEQ removes the exhaustion provisions from the
regulations and strikes paragraphs (b) and (b)(1) through (b)(4) of 40
CFR 1500.3 (2020) consistent with the proposal. Removal of these
exhaustion provisions does not relieve parties interested in
participating in, commenting on, or ultimately challenging a NEPA
analysis of the obligation to ``structure their participation so that
it is meaningful.'' Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def.
Council, Inc., 435 U.S. 519, 553 (1978). As CEQ's regulations have made
clear since 1978, parties must provide comments that are as specific as
possible to enable agencies to consider and address information during
the decision-making processes. See 40 CFR 1503.3(a) (2019).
Further, nothing in this revision limits the positions the Federal
Government may take regarding whether, based on the facts of a
particular case, a particular issue has been forfeited by a party's
failure to raise it before the agency, and removing this provision does
not suggest that a party should not be held to have forfeited an issue
by failing to raise it. By deleting the exhaustion requirements, CEQ
does not take the position that plaintiffs may raise new and previously
unraised issues in litigation. Rather, CEQ considers this to be a
question of general administrative law best addressed by the courts
based on the facts of a particular case.
Third, CEQ proposed to redesignate paragraph (c), ``Review of NEPA
compliance,'' of 40 CFR 1500.3 (2020) as paragraph (b) and add a
clause, ``except with respect to claims brought by project sponsors
related to deadlines under section 107(g)(3) of NEPA'' to the end of
the first sentence stating that judicial review of NEPA compliance does
not occur before an agency issues a ROD or takes a final agency action.
CEQ did not receive specific comments on this proposal and adds to
redesignated paragraph (b) the exception clause to acknowledge the
ability of project sponsors to petition a
[[Page 35455]]
court when an agency allegedly fails to meet a deadline consistent with
section 107(g)(3) of NEPA. 42 U.S.C. 4336(a)(g)(3).
Fourth, CEQ proposed to move the last sentence of paragraph (d) of
40 CFR 1500.3 (2020) regarding harmless error for minor, non-
substantive errors, a concept that has been in place since the 1978
regulations, to redesignated paragraph (b). CEQ also proposed to delete
the second sentence of paragraph (c) of 40 CFR 1500.3 (2020) stating
that noncompliance with NEPA and the CEQ regulations should be resolved
as expeditiously as possible. While CEQ agrees with expeditious
resolution of issues, CEQ proposed to delete this sentence reasoning
that CEQ cannot compel members of the public or courts to resolve NEPA
disputes expeditiously.
One commenter opposed the proposed deletion of the second sentence
of paragraph (c) of 40 CFR 1500.3 (2020) and disagreed with CEQ's
rationale, asserting that it is proper for CEQ to express its interest
in agencies resolving NEPA compliance issues as soon as practicable.
The commenter further argued that doing so is in the interest of
Federal agencies, project proponents, and the public, and that
unresolved NEPA disputes can lead to costly litigation that prolongs
the NEPA process, wastes taxpayer and project proponent resources, and
deprives communities of infrastructure improvements.
CEQ agrees that efficiency is an important goal, and that resolving
claims of NEPA noncompliance can result in costly and time-consuming
litigation. Upon further consideration, CEQ retains the second sentence
of paragraph (c) of 40 CFR 1500.3(2020) in the final rule as the third
sentence of Sec. 1500.3(b), but revises the text from ``as
expeditiously as possible'' to ``as expeditiously as appropriate.''
While it is true that CEQ cannot compel members of the public or courts
to resolve disputes expeditiously, as noted in CEQ's justification for
proposing to delete this provision, CEQ considers this sentence to
appropriately express CEQ's intention, rather than purporting to
inappropriately bind those parties to litigation or dictate what
timeline is appropriate for any particular case. Further, CEQ notes
that the regulations promote public engagement, appropriate analysis,
and informed decision making to facilitate NEPA compliance and avoid
such disputes from the outset. CEQ moves the last sentence of 40 CFR
1500.3(d) (2020) to Sec. 1500.3(b) as proposed.
Fifth, CEQ proposed to strike the last sentence of paragraph (c) of
40 CFR 1500.3 (2020) allowing agencies to include bonding and other
security requirements in their procedures consistent with their organic
statutes and as part of implementing the exhaustion requirements
because this relates to litigation over an agency action and not the
NEPA process. CEQ explained in the proposed rule that it is unsettled
whether NEPA provides agencies with authority to promulgate procedures
that require plaintiffs to post bonds in litigation brought under the
APA, and that CEQ does not consider it appropriate to address this
issue in the NEPA implementing procedures.
Multiple commenters urged CEQ not to remove this sentence or
encouraged CEQ to revise the regulations to require parties to post
such a bond when petitioning a court to enjoin a NEPA decision during
the pendency of litigation. Conversely, many commenters supported the
proposed elimination of the bonding provision, which the commenters
said discourages public engagement, appropriate analysis, and informed
decision making and inequitably burdens disadvantaged communities.
CEQ removes the bonding provision in the final rule by striking the
last sentence of 40 CFR 1500.3(c) (2020). NEPA does not authorize CEQ
to require posting of bonds or other financial securities prior to a
party challenging an agency decision. Agencies may have various
authorities independent of NEPA to require bonds or other securities as
a condition of filing an administrative appeal or obtaining injunctive
relief; this rule does not modify those authorities. CEQ continues to
consider it unsettled whether NEPA provides agencies with authority to
promulgate procedures that require plaintiffs to post bonds in
litigation brought under the APA, commenters did not identify any
specific statutory authorities, and even if such authority exists, CEQ
does not view such a requirement as appropriate for inclusion in the
NEPA regulations. Agency authority to require bonds or other securities
as a condition of an administrative appeal or injunctive relief may
exist independent of NEPA, and to the extent that such authority does
exist, it likely varies by agency. The rule does not modify any
existing authority.
CEQ proposed to strike paragraph (d) of 40 CFR 1500.3 (2020)
regarding remedies, with the exception of the last sentence, which CEQ
proposed to move to proposed paragraph (c) as discussed earlier in this
section. CEQ proposed to remove this provision because it is
questionable whether CEQ has the authority to direct courts about what
remedies are available in litigation brought under the APA, and in any
case, CEQ considers the 2020 rule's addition of this paragraph to be
inappropriate.
CEQ strikes 40 CFR 1500.3(d) (2020) in the final rule. CEQ
considers courts to be in the best position to determine the
appropriate remedies when a plaintiff successfully challenges an
agency's NEPA compliance. See, e.g., N. Cheyenne Tribe v. Norton, 503
F.3d 836, 842 (9th Cir. 2007) (rejecting successful NEPA plaintiffs'
contention that CEQ regulations mandated a particular remedy and
holding that ``a NEPA violation is subject to traditional standards in
equity for injunctive relief'').
Finally, CEQ proposed to redesignate paragraph (e) of 40 CFR 1500.3
(2020) on Severability, as proposed paragraph (c), without change. CEQ
makes this change in the final rule because CEQ intends these
regulations to be severable. This final rule amends existing
regulations, and the NEPA regulations can be functionally implemented
if each revision in this final rule occurred on its own or in
combination with any other subset of revisions. As a result, if a court
were to invalidate any particular provision of this final rule,
allowing the remainder of the rule to remain in effect would still
result in a functional NEPA review process. This approach to
severability is the same as the approach that CEQ took when it
promulgated the 2020 regulations, because those amendments similarly
could be layered onto the 1978 regulations individually without
disrupting the overarching NEPA review process.
4. Concise and Informative Environmental Documents (Sec. 1500.4)
CEQ proposed to revise Sec. 1500.4, which briefly describes and
cross references certain other provisions of the CEQ regulations, to
emphasize the important values served by concise and informative NEPA
documents beyond merely reducing paperwork, such as promoting informed
and efficient decision making and facilitating meaningful public
participation and transparency. CEQ proposed these changes to encourage
the preparation of documents that can be easily read and understood by
decision makers and the public, which in turn promotes informed and
efficient decision making and public participation.
First, CEQ proposed to retitle Sec. 1500.4 from ``Reducing
paperwork'' to ``Concise and informative environmental documents'' and
revise the introductory text to clarify that the
[[Page 35456]]
listed paragraphs provide examples of the regulatory mechanisms that
agencies can use to prepare concise and informative environmental
documents. Multiple commenters supported the proposed changes in Sec.
1500.4, opining the changes properly direct agencies to streamline the
process of preparing environmental documents and make those documents
analytical, concise, and informative. One commenter recommended that
CEQ add ``for example'' and ``as appropriate'' to the introductory
paragraph.
CEQ revises the title and introductory text of Sec. 1500.4 in the
final rule as proposed. Concise and informational documents make the
NEPA process more accessible and transparent to the public, allowing
the public an opportunity to contribute to the NEPA process. The
changes in Sec. 1500.4 align the regulations with the intent of NEPA
to allow the public to provide input and enhance transparency, while
providing agencies flexibility on how to achieve concise and
informative documents. CEQ declines to add ``for example'' and ``as
appropriate'' to the introductory paragraph. Those qualifiers are
unnecessary because CEQ proposed and is adding ``e.g.,'' throughout
Sec. 1500.4, where appropriate, to clarify that the cross-references
are non-exclusive examples of strategies that agencies must use in
preparing analytical, concise, and informative environmental documents.
CEQ proposed to strike paragraphs (a) and (b) of 40 CFR 1500.4
(2020) because they are redundant with Sec. 1500.5(a) and (b) and are
more appropriately addressed in that section, which addresses an
efficient process. CEQ also proposed to strike paragraph (d) of 40 CFR
1500.4 (2020) because this provision would be addressed in the revised
introductory text.
A few commenters objected to the deletion of 40 CFR 1500.4(a) and
(b) (2020), which pertain to using CEs and FONSIs, respectively. The
commenters asserted that the use of CEs and FONSIs is critical to
ensuring ``analytical, concise, and informative'' environmental
documents, and that the inclusion of such language encourages concision
in the evaluation process. While recognizing the paragraphs are
redundant with Sec. 1500.5(a) and (b), they asserted that Sec.
1500.5(a) and (b) address improving efficiency in the process, while
Sec. 1500.4 addresses concise environmental documents. The commenters
further asserted that the two sections are separate in substance and in
form, and each should therefore include independent language addressing
any inefficiencies.
CEQ strikes paragraphs (a), (b), and (d) of 40 CFR 1500.4 (2020)
consistent with the proposal. While CEQ agrees that, where appropriate,
applying CEs and preparing EAs and FONSIs typically result in shorter
evaluation timelines, this section addresses the preparation of
documents, including CE determinations, EAs, and FONSIs, rather than
addressing the use of different types of environmental documents.
CEQ proposed to redesignate paragraphs (c) and (e) through (q) of
40 CFR 1500.4 (2020) as Sec. 1500.4 (a) and (b) through (n),
respectively. CEQ proposed to add ``e.g.,'' to the cross references
listed in proposed paragraphs (b), (c), and (e) to clarify that they
are non-exclusive examples of how agencies can briefly discuss
unimportant issues, write in plain language, and reduce emphasis on
background material. CEQ also proposed to update the regulatory section
cross references for consistency with the proposed changes in the rule.
CEQ makes these changes in the final rule as proposed.
In proposed paragraphs (c) and (e), CEQ proposed to expand the
reference from EISs to all environmental documents, as the concepts
discussed are more broadly applicable. Additionally, in paragraph (e),
CEQ proposed to insert ``most'' before ``useful'' to clarify that the
environmental documents should not contain portions that are useless.
In proposed paragraph (f), CEQ proposed to replace ``significant''
with ``important'' and insert ``unimportant'' to modify ``issues''
consistent with the proposal to only use ``significant'' to modify
``effects.'' CEQ also proposed to clarify in paragraph (f) that scoping
may apply to EAs. Additionally, CEQ proposed to expand paragraph (h),
regarding programmatic review and tiering, to include EAs to align with
the proposed changes to Sec. 1501.11. CEQ makes these changes to
paragraphs (c), (e), (f), and (h) in the final rule as proposed.
While CEQ did not propose any changes to paragraph (l) regarding
use of errata sheets, in the final rule, CEQ moves the clause ``when
changes are minor'' from the end to the beginning of the paragraph to
make the language clearer that agencies use errata sheets only when
changes between the draft EIS and final EIS are minor. Finally, in
paragraph (m), CEQ proposed to insert ``Federal'' before ``agency''
consistent with Sec. 1506.3, which allows adoption of NEPA documents
prepared by other Federal agencies.
One commenter objected to paragraph (m), contending that directing
agencies to eliminate duplication by preparing environmental documents
jointly with relevant State, Tribal, and local agencies would threaten
the autonomy of Tribes by obligating them to coordinate with Federal
agencies in preparing environmental documents. CEQ disagrees with this
commenter's interpretation of paragraph (m). Paragraph (m) refers
agencies to Sec. 1506.2, which makes clear that agencies should only
prepare joint environmental documents by mutual consent. CEQ makes the
changes as proposed in the final rule.
Commenters recommended including additional strategies in Sec.
1500.4, including minimizing unnecessary repetition in describing and
assessing alternatives, limiting discussion of effects to those that
are reasonably foreseeable, and resolving disagreements in the review
process expeditiously. CEQ declines to add additional paragraphs.
Section 1500.4 lists regulatory provisions that agencies must use in
preparing concise and informative environmental documents; these
provisions already direct agencies to minimize unnecessary repetition,
evaluate the reasonably foreseeable effects of proposed actions, and
resolve disagreements expeditiously.
5. Efficient Process (Sec. 1500.5)
CEQ proposed minor changes to Sec. 1500.5 to provide clarity and
flexibility regarding mechanisms by which agencies can apply the CEQ
regulations to improve efficiency in the environmental review process.
CEQ proposed these changes to acknowledge that unanticipated events and
circumstances beyond agency control may delay the environmental review
process, and to recognize that, while these approaches may improve
efficiency for many NEPA reviews, they could be inefficient for others.
To that end, CEQ proposed to retitle Sec. 1500.5 from ``Reducing
delay'' to ``Efficient process'' and revise the introductory text to
replace ``reduce delay'' with ``improve efficiency of the NEPA
processes'' consistent with the new title.
Some commenters recommended against these changes asserting that
they give the impression that it is unimportant for agencies to reduce
delays in the permitting process. CEQ revises the title and
introductory text as proposed. The purpose of the changes is not to
discount the importance of reducing delays in the environmental review
process, but to emphasize that agencies should make their review
processes broadly efficient and not merely fast--recognizing that
efficiency also requires effectiveness and quality of
[[Page 35457]]
work. CEQ agrees that reducing delays is important but considers the
text to give the wrong impression that there are always delays in the
NEPA process.
CEQ proposed to add EAs to paragraph (a) to make the provision
consistent with the definition of ``categorical exclusion;'' phrase
paragraph (d) in active voice; change ``real issues'' to ``important
issues that required detailed analysis'' in paragraph (f) for
consistency with Sec. 1502.4; change ``time limits'' to ``deadlines''
in paragraph (g) for consistency with Sec. 1501.10; and expand the
scope of paragraph (h) from EISs to environmental documents to make
clear that, regardless of the level of NEPA review, agencies should
prepare environmental documents early in the process. CEQ proposed
these revisions to recognize the importance of timely information for
decision making and encourage agencies to implement the 12 listed
mechanisms to achieve timely and efficient NEPA processes. CEQ did not
receive any comments specific to these proposed changes and makes them
in the final rule. Additionally, CEQ revises Sec. 1500.5(a) to change
``using'' to ``establishing'' and adds a cross reference to Sec.
1507.3(c)(8) because the language in this provision is addressing the
development of CEs, not their application to proposed actions.
One commenter recommended the final rule revise paragraph (d)--
requiring interagency cooperation during preparation of an EA or EIS
rather than waiting to submit comments on a completed document--to
require the lead agency to involve other relevant agencies in the
determination of whether to review a proposed action by applying a CE,
preparing an EA, or preparing an EIS.
CEQ revises paragraph (d) to incorporate some of the text proposed
by the commenter. Specifically, CEQ adds ``including with affected
Federal, State, Tribal, and local agencies'' to highlight the
efficiency benefits of interagency cooperation with those non-Federal
entities, and also adds the words ``request or'' before the ``submit
comments'' to highlight the importance of both the lead agency and
other agencies to interagency cooperation.
6. Agency Authority (Sec. 1500.6)
CEQ proposed revisions to Sec. 1500.6 to clarify that agencies
have an independent responsibility to ensure compliance with NEPA and a
duty to harmonize NEPA with their other statutory requirements and
authorities to the maximum extent possible. CEQ proposed to revise the
second and third sentences in Sec. 1500.6 and strike the fourth
sentence.
While CEQ did not propose changes to the first sentence, which
requires an agency to view its policies and missions in the light of
NEPA's environmental objectives to the extent consistent with its
existing authority, one commenter recommended that CEQ revise the
sentence to restore phrasing from the 1978 regulations. In particular,
the commenter recommended the final rule delete the last clause, ``to
the extent consistent with its existing authority'' because it is
``internally inconsistent and contrary to the plain language of NEPA
Section 105.'' 42 U.S.C. 4335. Another commenter recommended the final
rule delete the first sentence and disagreed with the description in
the proposed rule that ``an irreconcilable conflict exists only if the
agency's authorizing statute grants it no discretion to comply with
NEPA while also satisfying the statutory mandate,'' asserting that if a
statute delegates authority, it does so expressly and there is no
presumption that an agency's authorizing statute delegates the agency
authority to comply with NEPA.
CEQ declines to revise the first sentence. This provision generally
directs agencies to interpret the provisions of NEPA, including section
2's statement of purpose, section 101's statement of policy, and
sections 102 through 111's procedural provisions as a supplement to
their existing authorities, and agencies can only do so to the extent
consistent with those authorities. See 42 U.S.C. 4321 et seq. This
provision does not address the more specific issue of when an agency is
excused from completing an environmental document because of contrary
statutory authority. That issue is addressed in Sec. 1501.3(a)(2),
which incorporates section 106(a) of NEPA's directive that agencies are
not required to prepare an environmental document where ``the
preparation of such document would clearly and fundamentally conflict
with the requirements of another provision of law.'' 42 U.S.C.
4336(a)(3). NEPA applies to all Federal agencies and includes a
specific statutory directive that ``the policies, regulations, and
public laws of the United States shall be interpreted and administered
in accordance with the policies set forth in [NEPA].'' 42 U.S.C.
4332(1). While there may be situations in which compliance with another
Federal law precludes an agency from complying with NEPA, agencies have
an obligation to harmonize NEPA with their other statutes where
possible to do so.
CEQ proposed to revise the second sentence of Sec. 1500.6 to
remove the qualification added in the 2020 rule that agencies must
ensure full compliance with the Act ``as interpreted by'' the CEQ
regulations so the provision would instead state that agencies must
review and revise their procedures to ensure compliance with NEPA and
the CEQ regulations. CEQ proposed this change because the phrase ``as
interpreted by'' could be read to indicate that agencies have no
freestanding requirement to comply with NEPA itself, which would be
untrue. CEQ also considered the change necessary for consistency with
Sec. 1507.3(b), which CEQ revised in its Phase 1 rulemaking to make
clear that, while agency procedures must be consistent with the CEQ
regulations, agencies have discretion and flexibility to develop
procedures beyond the CEQ regulatory requirements, enabling agencies to
address their specific programs, statutory mandates, and the contexts
in which they operate. CEQ proposed to make conforming edits in
Sec. Sec. 1502.2(d) and 1502.9(b) to remove this phrase.
Several commenters expressed support for CEQ's proposal to restore
language emphasizing each Federal agency's independent obligation and
ability to implement NEPA. The commenters asserted that removing this
language would make it clear that agencies have an obligation to comply
with NEPA by following CEQ's regulations and also reviewing and
revising, as necessary, their own agency policies, procedures, and
activities. The commenter further asserted this independent obligation
to comply with NEPA, combined with revisions to Sec. 1507.3 in the
Phase 1 rule, provides Federal agencies with flexibility to craft
regulations tailored to their agency's work, even if they go beyond the
requirements of the CEQ NEPA regulations.
Another commenter expressed support for this proposed change and
agreed with CEQ's statement that the current text could be read to
mistakenly indicate that agencies have no freestanding requirement to
comply with NEPA. The commenter suggested that the final rule add to
the beginning of the second sentence, to state that ``[a]gencies shall
comply with the purposes and provisions of the Act and with the
requirements under this Part, to the fullest extent possible.'' The
commenter asserted that regardless of what an agency's policies,
procedures, and regulations say, it is critical that the agency comply
with both NEPA and the CEQ regulations, unless an agency activity,
decision, or action is exempted
[[Page 35458]]
by law or compliance with NEPA is impossible.
In the final rule, CEQ revises the second sentence of Sec. 1500.6
as proposed to replace ``as interpreted by'' with ``and'' and makes
conforming changes to Sec. Sec. 1502.2(d) and 1502.9(b). CEQ declines
to add the clause suggested by the commenter because compliance with
NEPA and the regulations is already addressed in the last sentence of
this section as well as Sec. Sec. 1507.1 and 1507.2.
In the third sentence, CEQ proposed to remove the cross-reference
to Sec. 1501.1 for consistency with the proposed revisions to Sec.
1501.1 and add the text, consistent with language from the 1978
regulations, explaining that the phrase ``to the fullest extent
possible'' means that each agency must comply with section 102 of NEPA
unless an agency activity, decision, or action is exempted by law or
compliance with NEPA is impossible. 42 U.S.C. 4332.
A couple of commenters suggested revisions to the last sentence of
Sec. 1500.6. They asserted that the proposed revisions would create
confusion by creating a distinction between complying with section 102
of NEPA and complying with all of NEPA, and that this was incorrect
given the recent NEPA amendments and the proposed implementation of
those amendments in these regulations. 42 U.S.C. 4321 et seq. The
commenters recommended the final rule replace ``that section unless''
with ``the Act and the regulations of this subchapter.''
CEQ agrees with the commenter that the statement in section 102 is
not limited to that section and replaces the phrase ``that section''
with ``the Act'' for consistency with the statute. Section 102(2)
authorizes and directs that, to the fullest extent possible the
policies, regulations, and public laws of the United States shall be
interpreted and administered in accordance with the policies set forth
in NEPA. 42 U.S.C. 4332(2). CEQ does not include a reference to the
regulations as these are not specifically identified in section 102,
and Sec. 1507.1 addresses the requirement to comply with the NEPA
regulations.
The commenters also recommended the final rule replace ``compliance
with NEPA is impossible'' with ``compliance is impracticable.'' The
commenters recommended this change because section 101 refers to the
Federal Government taking all ``practicable means'' to advance NEPA's
goals, implicitly sparing the need to pursue ``impracticable'' steps.
42 U.S.C. 4331.
CEQ declines to make this change and revises the last sentence as
proposed to strike ``consistent with Sec. 1501.1 of this chapter'' and
replace it with ``unless an agency activity, decision, or action is
exempted from NEPA by law or compliance with NEPA is impossible.''
Compliance with NEPA is only impossible within the meaning of this
subsection when the conflict between another statute and the
requirements of NEPA are clear, unavoidable, and irreconcilable. Absent
exemption by Congress or a court, an irreconcilable conflict exists if
the agency's authorizing statute does not provide the agency any
discretion to comply with NEPA while also satisfying its statutory
mandate. While NEPA requires agencies ``to use all practicable means''
to achieve the Act's environmental goals, see 42 U.S.C. 4331, the Act
does not limit its procedural requirements in the same fashion.
Instead, it directs agencies to fulfill the obligations in section 102
of NEPA, which establishes NEPA's procedural obligations, ``to the
fullest extent possible,'' 42 U.S.C. 4332, which the Supreme Court has
interpreted to require compliance except for ``where a clear and
unavoidable conflict in statutory authority exists.'' See Flint Ridge
Dev. Co, 426 U.S. at 788. Therefore, revising proposed paragraph (a)(3)
to replace ``impossible'' with ``impracticable'' would be inconsistent
with the statute and deviate from the established legal standard
implementing it.
Finally, CEQ proposed to strike the last sentence of 40 CFR 1500.6
(2020) stating that the CEQ regulations do not limit an agency's other
authorities or legal responsibilities. In the 2020 rule, CEQ stated
that it added this sentence to acknowledge the possibility of different
statutory authorities with different requirements and for consistency
with E.O. 11514, as amended by section 2(g) of E.O. 11991.\62\ CEQ
reconsidered its position and proposed to delete the sentence as
superfluous and unnecessarily vague. CEQ proposed that the revised last
sentence of Sec. 1500.6--agencies must comply with NEPA in carrying
out an activity, decision, or action unless exempted by law (including
where courts have held that a statute is functionally equivalent) or
compliance with NEPA is impossible--accurately reflects the directive
that Federal agencies comply with the CEQ regulations ``except where
such compliance would be inconsistent with statutory requirements.''
\63\ CEQ removes this sentence from 40 CFR 1500.6 (2020) in the final
rule.
---------------------------------------------------------------------------
\62\ E.O. 11514, supra note 26; E.O 11991, supra note 29.
\63\ CEQ, 2020 Final Rule, supra note 39, at 43319.
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C. Revisions To Update Part 1501, NEPA and Agency Planning
CEQ proposed substantive revisions to all sections in part 1501
except Sec. 1501.2, ``Apply NEPA early in the process,'' to which CEQ
proposed minor edits for readability that are non-substantive. CEQ
received a few comments on Sec. 1501.2 requesting additional revisions
but declines to make additional changes in response to the comments,
which are discussed in the Phase 2 Response to Comments.
1. Purpose (Sec. 1501.1)
CEQ proposed to revise Sec. 1501.1 to address the purpose and
goals of part 1501, consistent with the approach in the 1978
regulations, and move the text in paragraph (a) of 40 CFR 1501.1 (2020)
regarding NEPA thresholds to Sec. 1501.3(a). CEQ discusses the
revisions to that paragraph in section II.C.2 of this rule. Multiple
commenters expressed general support for the overall changes to Sec.
1501.1.
First, consistent with the approach in the 1978 regulations, CEQ
proposed to retitle Sec. 1501.1 to ``Purpose,'' and add an
introductory paragraph to indicate that this section would address the
purposes of part 1501. CEQ did not receive any specific comments on
these proposed changes and makes them in the final rule consistent with
the proposal.
Second, in paragraph (a), CEQ proposed to highlight the importance
of integrating NEPA early in agency planning processes by restoring
some of the language from the 1978 regulations, while also including
language that emphasizes that early integration of NEPA promotes an
efficient process and can reduce delay. CEQ proposed these revisions
for consistency with section 102(2)(C) of NEPA and the objective to
build into agency decision making, beginning at the earliest point, an
appropriate consideration of the environmental aspects of a proposed
action. 42 U.S.C. 4332(2)(C). CEQ did not receive any specific comments
on proposed paragraph (a) and includes it in the final rule as
proposed.
Third, CEQ proposed in paragraph (b) to emphasize early engagement
in the environmental review process to elevate the importance of early
coordination and engagement throughout the NEPA process to identify and
address potential issues early in the decision-making process, thereby
helping to reduce the overall time required to approve a project and
improving outcomes. Multiple commenters expressed support
[[Page 35459]]
for proposed paragraph (b) and the emphasis on early engagement in the
environmental review process. One commenter suggested additional
language to clarify that engagement should occur both prior to and
during preparation of environmental documents. CEQ agrees that public
engagement should continue throughout the NEPA process. However, this
section outlines the purposes of part 1501, and while Sec. 1501.1(b)
emphasizes that engagement should start early in the NEPA process, the
full breadth of appropriate engagement in the NEPA process is more
appropriately discussed in Sec. 1501.9. Therefore, CEQ includes
paragraph (b), which is consistent with other changes throughout the
regulations emphasizing the importance of engagement, as proposed, in
the final rule.
Fourth, CEQ proposed to add a new paragraph (c) to restore text
from the 1978 regulations regarding expeditious resolution of
interagency disputes. One commenter suggested appending ``and in the
best interest of the public'' to the end of paragraph (c) and expressed
concern that the proposed language, particularly the reference to
``fair,'' implies agencies have an interest of their own. The commenter
recommended the regulations clarify that interagency disputes should be
resolved in a manner that advances the public interest and not just the
interests of the agencies.
CEQ adds paragraph (c), as proposed, to the final rule. While CEQ
considers expeditious resolution of interagency disputes to be in the
best interest of the public, the purpose of part 1501 is to facilitate
the resolution of such disputes in an efficient fashion that
accommodates the perspectives, expertise, and relevant statutory
authority of the agencies involved in the dispute.
Fifth, CEQ proposed to add paragraph (d) to restore the direction
to identify the scope of the proposed action and important
environmental issues consistent with Sec. 1501.3, which can enhance
efficiency. One commenter requested clarity on what ``important
environmental issues'' means, while another commenter asserted that all
issues that acutely and negatively impact the environment deserve full
study. One commenter also requested the final rule add language to
clarify that agencies should remove unimportant issues from study or
analysis, not just deemphasize them.
CEQ adds paragraph (d), as proposed, to the final rule. CEQ
declines to make the commenter's recommended changes in paragraph (d).
Agencies must consider all issues during the environmental review
process, but the level of analysis should be commensurate with the
importance of the effect, with some issues requiring less analysis.
This approach is consistent with the approach of the 1978 regulations
that agencies have decades of experience implementing, which indicated
that agencies should ``concentrate on the issues that are truly
significant to the action in question, rather than amassing needless
detail.'' 40 CFR 1500.1(b) (2019).
Sixth, CEQ proposed to add paragraph (e) to highlight the
importance of schedules consistent with Sec. 1501.10, which includes
provisions requiring agencies to develop a schedule for all
environmental reviews and authorizations, as well as Sec. Sec. 1501.7
and 1501.8, which promote interagency coordination including with
respect to schedules. CEQ did not receive any specific comments on
proposed paragraph (e) and includes it in the final rule as proposed.
Seventh, as discussed further in section II.C.2, CEQ proposed to
combine the threshold considerations provision with the process to
determine the appropriate level of NEPA review in Sec. 1501.3 by
moving paragraphs (a)(1), (a)(2), (a)(4), and (a)(5) of 40 CFR 1501.1
(2020) to Sec. 1501.3(a)(1), (2), (4), and (4)(ii), respectively, and
striking paragraphs (a)(3) and (a)(6).
CEQ proposed to delete the factor listed in 40 CFR 1501.1(a)(3)
(2020), inconsistency with Congressional intent expressed in another
statute, because upon further consideration, CEQ considers this factor
to have inadequately accounted for agencies' responsibility to
harmonize NEPA with other statutes, as discussed further in section
II.C.2. As discussed in section II.B.5, the regulations provide that an
agency should determine if a statute or court decision exempts an
action from NEPA or if compliance with NEPA and another statute would
be impossible; if not, the agency must comply with NEPA. To the extent
the factor suggested that agencies should seek to go beyond these two
questions to determine Congress's intent regarding NEPA compliance in
enacting another statute, the factor is incorrect.
One commenter objected to CEQ's removal of the factor at 40 CFR
1501.1(a)(3) (2020) directing agencies to consider ``[w]hether
compliance with NEPA would be inconsistent with Congressional intent
expressed in another statute.'' The commenter asserted the proposed
rule does not provide sufficient guidance to Federal agencies to
determine whether an action is consistent with Congressional intent. In
the final rule, CEQ strikes 40 CFR 1501.1(a)(3) (2020) as proposed
because CEQ considers this factor to have inadequately accounted for
agencies' responsibility to harmonize NEPA with other statutes. Section
1501.3(a)(2) of the final rule requires agencies to consider
``[w]hether compliance with NEPA would clearly and fundamentally
conflict with the requirements of another provision of Federal law.''
As discussed further in section II.C.2, Sec. 1501.3(a)(2) incorporates
the language of section 106(a)(3) of NEPA, 42 U.S.C. 4336(a)(3), and
aligns with the statutory mandate in section 102 of NEPA, 42 U.S.C.
4332, that agencies comply with NEPA ``to the fullest extent
possible.'' Therefore, CEQ is removing this factor because it provides
an inadequately rigorous standard for exempting agency actions from
NEPA and is redundant with Sec. 1501.3(a)(2).
CEQ proposed to strike the factor in 40 CFR 1501.1(a)(6) (2020)
regarding functional equivalence to restore the status quo as it
existed in the longstanding 1978 regulations. The NPRM explained that
certain Environmental Protection Agency (EPA) actions are explicitly
exempted from NEPA's environmental review requirements, see, e.g., 15
U.S.C. 793(c)(1) (exempting EPA actions under the Clean Air Act); 33
U.S.C. 1371(c)(1) (exempting most EPA actions under the Clean Water
Act), and courts have found EPA's procedures under certain other
environmental statutes it administers and certain procedures under the
Endangered Species Act (ESA) to be functionally equivalent to or
otherwise exempt from NEPA. See, e.g., Env't Def. Fund, Inc. v. EPA,
489 F.2d 1247, 1256-57 (D.C. Cir. 1973) (exempting agency actions under
the Federal Insecticide, Fungicide, and Rodenticide Act); W. Neb. Res.
Council v. U.S. Env't Prot. Agency, 943 F.2d 867, 871-72 (8th Cir.
1991) (noting exemptions under the Safe Drinking Water Act); Douglas
County v. Babbitt, 48 F.3d 1495, 1503 (9th Cir. 1995) (holding that
Endangered Species Act procedures for designating a critical habitat
replace the NEPA requirements). Nevertheless, CEQ considered this
language added to the 2020 rule to go beyond the scope of the NEPA
statute and case law because the language could be construed to expand
functional equivalence beyond the narrow contexts in which it has been
recognized.
Some commenters opposed the proposed removal of the factor on
functional equivalence from 40 CFR 1501.1(a)(6) (2020) as well as in
other provisions of the regulations, including the removal of 40 CFR
1500.1(a), 1506.9,
[[Page 35460]]
1507.3(c)(5), and 1507.3(d)(6) (2020). One commenter asserted that
removing it would extend duplicative activity among agencies. Other
opponents underscored that courts have held on several occasions that
statutes that include their own environmental review processes can make
compliance with NEPA redundant. These commenters asserted that CEQ's
removal of regulatory language recognizing those decisions will
encourage duplication and inefficiency. One commenter asserted that
language in the rulemaking that encourages agencies ``to establish
mechanisms in their agency NEPA procedures to align processes and
requirements from other environmental laws with the NEPA process''
would turn the functional equivalence doctrine on its head, by
requiring a specific statute to give way to a general statute rather
than vice versa.
By contrast, supporters of these changes asserted that the language
in question had no justification in law, and that Congress had
considered incorporating language related to functional equivalence
into NEPA as part of the development of the Fiscal Responsibility Act
but had ultimately chosen not to do so.
CEQ strikes the factor in 40 CFR 1501.1(a)(6) (2020) from the final
rule. As several commenters acknowledged, courts decided some of the
cases addressing functional equivalence before CEQ issued the 1978
regulations, which encouraged agencies to combine environmental
documents with ``any other agency document[s] to reduce duplication and
paperwork,'' 40 CFR 1506.4 (2019),\64\ and to ``adapt[] [their]
implementing procedures authorized by Sec. 1507.3 to the requirements
of other applicable laws.'' 40 CFR 1507.1 (2019). CEQ acknowledges the
continuing validity of the judicial decisions finding EPA's procedures
under certain environmental statutes it administers and certain
procedures under the ESA are functionally equivalent to NEPA. CEQ
considers these circumstances to fall within the scope of the
activities and decisions addressed in Sec. 1501.3(a)(1) as ``exempted
from NEPA by law.'' CEQ considers it unhelpful to separately discuss
functional equivalence in the regulations to avoid suggesting that
other agencies and activities or decisions are also exempted from NEPA.
CEQ disagrees with commenters who contended that the functional
equivalence decisions give agencies license to create new NEPA
exemptions.\65\ Rather, the appropriate approach is for agencies to
align their NEPA procedures with their statutory requirements--an
approach that does not require a more specific statute to give way to a
more general one, as asserted by a commenter, but rather allows
agencies to comply with both statutes at once.
---------------------------------------------------------------------------
\64\ See CEQ, Phase 2 proposed rule, supra note 51, at 49956.
\65\ See also CEQ, Phase 2 proposed rule, supra note 51, at
49959 (``CEQ has concerns about . . . language added by the 2020
rule [in 40 CFR 1507.3(c)(5)] to substitute other reviews as
functionally equivalent for NEPA compliance, and therefore proposes
to remove it.'').
---------------------------------------------------------------------------
Eighth, CEQ proposed to remove the language in paragraph (b) of 40
CFR 1501.1 (2020) allowing agencies to make threshold determinations
individually or in their NEPA procedures because CEQ proposed to move
the consideration of thresholds into Sec. 1501.3 to consolidate the
steps agencies should take to determine whether NEPA applies and, if
so, what level of NEPA review is appropriate. CEQ also proposed to
strike this language because it is redundant to language in Sec.
1507.3(d)(1), which provides that agency NEPA procedures may identify
activities or decisions that are not subject to NEPA.
Ninth, CEQ proposed to remove as unnecessary paragraph (b)(1) of 40
CFR 1501.1 (2020) because agencies have discretion to consult with CEQ
and have done so for decades on a wide variety of matters, including on
determining NEPA applicability, without such specific language in the
CEQ regulations.
Finally, CEQ proposed to eliminate paragraph (b)(2) of 40 CFR
1501.1 (2020) directing agencies to consult with another agency when
they jointly administer a statute if they are making a threshold
applicability determination. CEQ proposed to delete this paragraph
because while CEQ agrees that consultation is a good practice in such
circumstances, it does not consider such a requirement necessary for
these regulations because consultation is best determined by the
agencies involved.
One commenter expressed appreciation for the consolidation of
threshold considerations from paragraph (b) but asserted that the final
rule should retain an acknowledgement that the threshold considerations
are a non-exhaustive list and that agencies should identify
considerations on a case-by-case basis. CEQ considers the language in
Sec. Sec. 1501.3(a) and 1507.3(d)(1) to address the commenter's
concern and removes paragraphs (b), (b)(1), and (b)(2) of 40 CFR 1501.1
(2020) in the final rule.
2. Determine the Appropriate Level of NEPA Review (Sec. 1501.3)
CEQ proposed substantive revisions to Sec. 1501.3 to provide a
more robust and consolidated description of the process agencies should
use to determine the appropriate level of NEPA review, including
addressing the threshold question of whether NEPA applies. CEQ also
proposed clarifying edits, including adding paragraph headings to
paragraphs (a) through (d). CEQ proposed these revisions to clarify the
steps for assessing the appropriate level of NEPA review to facilitate
a more efficient and predictable review process.
First, as noted in section II.C.1, CEQ proposed to move paragraph
(a) of 40 CFR 1501.1 (2020) to a new Sec. 1501.3(a), title it
``Applicability,'' and add a sentence requiring agencies to determine
whether NEPA applies to a proposed activity or decision as a threshold
matter. CEQ proposed this move because the inquiry into whether NEPA
applies is a component of determining the level of NEPA review. CEQ
proposed to consolidate the steps in this process into one regulatory
section to improve the clarity of the regulations. CEQ also noted that
this consolidated provision is consistent with the approach in section
106 of NEPA, which addresses threshold determinations on whether to
prepare an EA/FONSI or EIS. 42 U.S.C. 4336. In moving the text, CEQ
proposed to strike ``or is otherwise fulfilled'' after ``[i]n assessing
whether NEPA applies'' because, as discussed in section II.C.1, CEQ
proposed to remove the functional equivalence factor from the
regulation.
Second, CEQ proposed to move the threshold determination factors
agencies should consider when determining whether NEPA applies from
paragraphs (a)(1) and (a)(2) of 40 CFR 1501.1 (2020), to proposed
paragraphs (a)(1) and (2), respectively. CEQ proposed to align the text
in paragraph (a)(1) with the language proposed in Sec. 1500.6 by
deleting ``expressly'' and replacing ``exempt from NEPA under another
statute'' with ``exempted from NEPA by law.'' CEQ proposed to align the
text in paragraph (a)(2) with the language in section 106(a)(3) of
NEPA, changing ``another statute'' to ``another provision of law'' for
consistency with the statutory text. 42 U.S.C. 4336(a)(3).
One commenter requested that the final rule revise paragraph (a)(2)
to clarify that in the event of a clear and fundamental conflict with
another law, an agency should consider ``whether NEPA or that provision
prevails under legal rules for resolving such conflicts between Federal
laws.'' In requesting
[[Page 35461]]
this revision, the commenter described that if a situation arises in
which NEPA clearly and fundamentally conflicts with a provision of
State, Tribal, or local law, the agency has no further assessment to
make before determining that NEPA prevails. However, if a situation
arises in which NEPA clearly and fundamentally conflicts with another
provision of a Federal law or a U.S. treaty with a foreign power, the
commenter asserted the agency must make further assessments before it
can determine whether NEPA or the other provision prevails.
In the final rule, CEQ moves paragraph (a) of 40 CFR 1501.1 (2020)
to a new Sec. 1501.3(a), ``Applicability,'' and makes the changes to
paragraph (a) as proposed. CEQ also moves paragraphs (a)(1) and (a)(2)
of 40 CFR 1501.1 (2020), to Sec. 1501.3(a)(1) and (2), respectively,
except that CEQ adds the word ``Federal'' to the phrase ``another
provision of law.'' CEQ interprets section 106(a)(3), 42 U.S.C.
4336(a)(3), in light of the bedrock legal principle established by the
Supremacy Clause of the Constitution that State, Tribal, or local laws
do not override Federal law, the corollary that the Federal Government
is not subject to State regulation in the absence of clear and
unambiguous Congressional authorization, see EPA v. California ex rel.
State Water Resources Control Bd., 426 U.S. 200, 211 (1976), and
decades of case law that predated the NEPA amendments and informed
CEQ's 2020 rule considering whether NEPA conflicts with another Federal
law. See, e.g., Flint Ridge Development Co. v. Scenic Rivers Ass'n of
Oklahoma, 426 U.S. 776, 788 (1976). To improve the clarity of the NEPA
regulations, CEQ adds the word ``Federal'' to the sentence to avoid any
potential confusion that non-Federal legal requirements can override
NEPA. CEQ disagrees that an agency must apply principles of statutory
interpretation to determine whether NEPA applies where its application
would present a clear and fundamental conflict with the requirements of
another provision of Federal law, because section 106(a) of NEPA
provides that in such circumstances ``an agency is not required to
prepare an environmental document with respect to a proposed agency
action.'' 42 U.S.C. 4336(a).
Third, CEQ proposed a new factor in paragraph (a)(3) to address
circumstances where statutory provisions applicable to a proposed
activity or decision make compliance with NEPA impossible. CEQ
explained in the proposed rule that this factor is consistent with case
law, principles of statutory construction, and the statutory
requirement of section 102 of NEPA that agencies interpret and
administer ``the policies, regulations, and public laws of the United
States'' in accordance with NEPA's policies. 42 U.S.C. 4332(1).
One commenter recommended the final rule change ``impossible'' to
``impracticable'' while another commenter suggested that the final rule
remove paragraph (a)(3) because it is duplicative of paragraph (a)(2).
CEQ has considered the comments and agrees that proposed paragraph
(a)(3) is duplicative of proposed paragraph (a)(2) and could therefore
cause confusion. Therefore, CEQ does not include proposed paragraph
(a)(3) in the final rule.
Fourth, consistent with section 106(a)(1) and (4) of NEPA, 42
U.S.C. 4336(a)(1) and (4), CEQ proposed to move the threshold
determination factor regarding whether the activity or decision is a
major Federal action from paragraph (a)(4) of 40 CFR 1501.1 (2020) and
the factor regarding whether the activity or decision is non-
discretionary from paragraph (a)(5) of 40 CFR 1501.1 (2020), to
proposed Sec. 1501.3(a)(4) and (a)(4)(ii), respectively. CEQ proposed
to add a new paragraph (a)(4)(i) to add the factor regarding whether
the proposed activity or decision is a final agency action under the
APA. CEQ proposed to include whether an activity or decision is a final
agency action or non-discretionary as subfactors of whether an activity
or decision is a major Federal action in Sec. 1501.3(a)(4) because CEQ
also proposed these as exclusions from the definition of ``major
Federal action.'' The proposed rule explained that when agencies assess
whether an activity or decision is a major Federal action, agencies
determine whether they have discretion to consider environmental
effects consistent with the definition of ``major Federal action'' in
Sec. 1508.1.
One commenter recommended the final rule exclude proposed paragraph
(a)(4) because the question of whether NEPA applies precedes the
determination of whether the proposed action is a major Federal action,
and there is no need to consider whether an action is a major Federal
action if NEPA does not apply to the action. Other commenters
recommended proposed paragraphs (a)(4), (a)(4)(i), and (a)(4)(ii) be
separated from paragraph (a) in order to clearly distinguish the
factors for threshold applicability determination from the definition
of ``major Federal action.''
In the final rule, CEQ moves paragraph (a)(4) of 40 CFR
1501.1(2020) regarding major Federal action to Sec. 1501.3(a)(3) and
adds a cross reference to the definition Sec. 1508.1(w). CEQ makes
this revision to enhance the clarity of the regulation and for
consistency with section 106(a) of NEPA. 42 U.S.C. 4336(a). CEQ
disagrees with the commenter that determining whether an action
constitutes a major Federal action is not a component of determining
NEPA applicability or that treating this determination separately will
improve efficiency. Agencies have the flexibility to consider the
factors in paragraph (a) in any order and, therefore, the regulation
does not require an agency to evaluate whether an action is a major
Federal action if NEPA does not apply to it for other reasons.
In the final rule CEQ adds proposed paragraph (a)(4)(i) regarding
final agency action to Sec. 1501.3(a)(4) to make this a stand-alone
factor, rather than a component of determining whether an action is a
major Federal action, for consistency with section 106(a) of NEPA and
improved clarity. 42 U.S.C. 4336(a). The final rule also adds the word
``not'' to paragraph (a)(4), so that it reads ``[w]hether the proposed
activity or decision is not a final agency action'' for consistency
with section 106(a)(1) of NEPA and parallelism with the other factors,
which identify circumstances in which NEPA does not apply. 42 U.S.C.
4336(a)(1). CEQ notes that this factor requires the agency to evaluate
whether the proposed action would be a final agency action if
ultimately taken by the agency. CEQ does not include a cross reference
to the definition of ``major Federal action'' as proposed because the
final rule does not include this as an exclusion from the definition.
Lastly within paragraph (a), CEQ moves paragraph (a)(5) of 40 CFR
1501.1 (2020) on non-discretionary actions to Sec. 1501.3(a)(5) to
make this a stand-alone factor, rather than a sub-factor of major
Federal action, for consistency with section 106(a)(4) of NEPA. 42
U.S.C. 4336(a)(4). While non-discretionary actions are excluded from
the definition of ``major Federal action'' in section 111(10) of NEPA
and Sec. 1508.1(w), Congress determined that it was important to
highlight this category as a component of determining NEPA
applicability, and CEQ considers it appropriate for the regulations to
do so as well. 42 U.S.C. 4336e(10). CEQ does not include a cross
reference to the definition of ``major Federal action'' as proposed
because the language in the statutory exclusion from the definition of
``major Federal action'' is different from this exclusion.
CEQ notes that where some components of an action are non-
discretionary, but others are
[[Page 35462]]
discretionary, an agency can exclude considerations of the non-
discretionary components from its NEPA analysis. That circumstance more
logically presents an issue of the appropriate scope of the analysis,
rather than of NEPA applicability, so, as discussed below, CEQ has
included a reference to it in paragraph (b). For example, if a statute
mandated an agency to make an affirmative decision once a set of
criteria are met, but the agency has flexibility in how to meet those
criteria, the agency exercises discretion on aspects of its decision
and an analysis of alternatives and effects would inform the agency's
exercise of discretion. Similarly, if a statute directs an agency to
take an action, but the agency has discretion in how it takes that
action, the agency can still comply with NEPA while carrying out its
statutory mandate.
Fifth, CEQ proposed to move, with clarifying edits and additions,
paragraph (e) and its subparagraphs of 40 CFR 1501.9 (2020),
``Determination of scope,'' to a new Sec. 1501.3(b), ``Scope of action
and analysis,'' to provide the next step in determining the appropriate
level of NEPA review--the scope of the proposed action and its
potential effects. In addition, CEQ proposed moving into Sec.
1501.3(b) one sentence from paragraph (a) of 40 CFR 1502.4 (2020)
directing agencies to evaluate in a single NEPA review proposals
sufficiently closely related to be considered a single action, and the
text from paragraph (e)(1) of 40 CFR 1501.9 (2020) regarding connected
actions, which are closely related Federal activities or decisions that
agencies should consider in a single NEPA document. CEQ proposed to
move paragraphs (e)(1)(i) through (e)(1)(iii) of 40 CFR 1501.9 (2020)
providing the types of connected actions into Sec. 1501.3(b)(1)
through (b)(3), respectively.
CEQ proposed these changes because this longstanding principle from
the 1978 regulations--that agencies should not improperly segment their
actions--is relevant not only when agencies are preparing EISs, but
also when agencies determine whether to prepare an EA or apply a CE.
See, e.g., Fath v. Texas DOT, 924 F.3d 132, 137 (5th Cir. 2018)
(``Agencies generally should not segment, or divide artificially a
major Federal action into smaller components to escape the application
of NEPA to some of its segments.'') (quotations omitted). CEQ proposed
to consolidate this text into Sec. 1501.3(b) because the determination
of the scope of the action, including any connected actions,
necessarily informs the appropriate level of NEPA review. Because
including this provision in Sec. 1501.3 would make it applicable to
environmental reviews other than EISs, CEQ proposed to strike the
sentence that accompanied the text in 40 CFR 1502.4(a) (2020) directing
the lead agency to determine the scope and significant issues for
analysis in the EIS as part of the scoping process. CEQ proposed in
Sec. 1501.3(b)(1) to make a conforming change of ``environmental
impact statements'' to ``NEPA review.''
Multiple commenters provided feedback on the first sentence of
proposed Sec. 1501.3(b) suggesting the final rule include additional
language to limit it to an action that is under Federal agency control,
and that NEPA reviews should not be used as a ``Federal handle'' to
subject an entire project to Federal review where the Federal action
comprises only one portion of the project. CEQ declines these edits
because the sentence in question appropriately directs agencies to
consider the scope of the proposed action and its potential effects
consistent with longstanding agency practice.
In the final rule, CEQ moves paragraphs (e) and (e)(1) of 40 CFR
1501.9 (2020), to Sec. 1501.3(b), and moves paragraph (e)(1)(i)
through (e)(1)(iii) of 40 CFR 1501.9 (2020) to Sec. 1501.3(b)(1)
through (b)(3), respectively. CEQ adds the first sentence of proposed
Sec. 1501.3(b) as proposed with an additional phrase ``whether aspects
of the action are non-discretionary'' at the end of the first sentence
for consistency with agency practice and case law recognizing that
where some aspects of an agency's action are non-discretionary, the
agency can properly exclude them from the scope of its analysis. Adding
this reference to this sentence clarifies that while NEPA does not
apply to an action that is wholly non-discretionary, agencies should
approach circumstances in which aspects of an action are non-
discretionary, but others are discretionary, as a component of
determining scope.
Another commenter suggested use of ``potential effects'' be
replaced with ``reasonably foreseeable effects'' to emphasize that
agencies are not required to consider effects that are not reasonably
foreseeable. CEQ agrees that an agency only needs to consider
reasonably foreseeable effects in determining the scope of analysis but
declines to make this change as the word ``effects'' is a defined term
in the regulations meaning reasonably foreseeable effects. Upon further
consideration, CEQ deletes the word ``potential'' before the word
``effects'' to avoid any confusion that agencies must consider effects
other than reasonably foreseeable effects.
Some commenters requested additional clarity on the meaning of
scope and how determination of scope under paragraph (b) relates to
public engagement and the scoping process under Sec. 1502.4. CEQ adds
a new second sentence to paragraph (b) to require agencies to use, as
appropriate, the public engagement and scoping mechanisms in Sec. Sec.
1501.9 and 1502.4 to inform consideration of the scope of the proposed
action and determination of the level of NEPA review. CEQ adds this
language, consistent with other changes made in Sec. Sec. 1501.9 and
1502.4 to better explain the connection between scope, scoping, and
public engagement.
One commenter requested clarity on the relationship between the
second and third sentences of proposed Sec. 1501.3(b), specifically
suggesting deletion of the second sentence and revisions to the third
sentence to provide a clearer standard for connected actions. Another
commenter requested the final rule exclude ``Federal'' in the proposed
sentence. CEQ declines the suggested edits. These sentences are based
on longstanding provisions from 40 CFR 1502.4 and 1501.9(e)(1) (2020)
and 40 CFR 1508.25(a)(1) (2019), and agencies have decades of
experience applying them, including experience identifying those
components of a project that have independent utility and therefore can
be analyzed separately without running afoul of the prohibition on
segmentation. The two regulatory requirements of the proposed second
and third sentences--prohibiting agencies from breaking up a single
``action'' into separate reviews and requiring them to review together
closely related ``connected actions''--are related but distinct
requirements, which is why CEQ included them in a single paragraph but
in different sentences. CEQ also disagrees that connected actions
should be broadened to include non-Federal actions. Non-Federal actions
have long been excluded from connected actions because the purpose of
the doctrine is to prevent the Federal Government from segmenting
Federal actions into separate projects and thereby failing to consider
the scope and impact of the Federal activity. See Sierra Club v. U.S.
Army Corps of Engineers, 803 F.3d 31 (D.C. Cir. 2015). Including non-
Federal actions as connected actions would be inconsistent with the
purpose of the concept and unsettle an aspect of the NEPA
implementation that has been stable for decades.
One commenter suggested that CEQ add language to Sec. 1501.3(b)
stating that
[[Page 35463]]
to avoid segmentation, projects that are separate and distinct must
have a logical end point; substantial independent utility; do not
foreclose the opportunity to consider alternatives; and do not
irretrievably commit Federal funds for closely related projects during
the same time period, place, and type. CEQ declines to adopt the
language suggested by the commenter. CEQ recognizes that some courts
and agencies have included similar language in decisions and agency
NEPA procedures (see, e.g., Del. Riverkeeper Network v. FERC, 753 F.3d
1304, 1315 (D.C. Cir. 2014) (quoting Taxpayers Watchdog, Inc. v.
Stanley, 819 F.2d 294, 298 (D.C. Cir. 1987))); 23 CFR 771.111(f))
(2018), but considers providing additional details on segmentation more
appropriately addressed in agency procedures that can be tailored to
specific agency programs and actions.
In moving the text from 40 CFR 1501.9(e) (2020) to Sec. 1501.3(b),
CEQ proposed to strike paragraphs (e)(2) and (e)(3) of 40 CFR 1501.9
(2020) relating to alternatives and impacts, respectively. CEQ proposed
to delete these paragraphs because both the 2020 regulations and the
proposed rule separately address the analyses of alternatives and
effects regarding EISs (Sec. Sec. 1502.14, 1502.15) and EAs (Sec.
1501.5(c)(2)(ii) and (c)(2)(iii)). CEQ considers it to be premature in
the process, unnecessary, and unhelpful to address alternatives as part
of determining the level of NEPA review.
One commenter requested the final rule provide a better explanation
regarding the deletion of 40 CFR 1501.9(e)(2) and (e)(3) (2020) and
requested that CEQ provide more direction and guidance on consideration
of alternatives and impacts. The commenter stated that this text has
been in the regulations since 1978 and requested clearer justification
for the changes. CEQ agrees that the effects of a proposed action are
relevant to determining the scope of the action and analysis, which is
why the first sentence of Sec. 1501.3(b) references effects. However,
CEQ does not consider alternatives to be relevant to identifying the
scope of action and analysis under paragraph (b), which is intended to
inform an agency's determination under paragraph (c) of the appropriate
level of review.
In the final rule, CEQ adds the second sentence from proposed
paragraph (d)(2)(vi), in which CEQ proposed to include an intensity
factor from the 1978 regulations related to the relationship of
actions, to be the fourth sentence of Sec. 1501.3(b). CEQ revises the
language for clarity to specify that agencies ``shall not term an
action temporary that is not temporary in fact or segment an action
into smaller component parts to avoid significant effects.'' CEQ has
made this change in the final rule because the text in proposed
paragraph (d)(2)(vi) directs agencies not to segment actions, which is
more appropriately addressed in the paragraph on scope than in the
paragraph on intensity.
Sixth, CEQ proposed to redesignate paragraph (a) of 40 CFR 1501.3
(2020) as paragraph (c), title it ``Levels of NEPA review,''
incorporate the language of section 106(b)(3) of NEPA, 42 U.S.C.
4336(b)(3), addressing the sources of information agencies may rely on
when determining the appropriate level of NEPA review, and redesignate
paragraphs (a)(1) through (a)(3) describing three levels of review--
CEs, EAs, and EISs--as paragraphs (c)(1) through (c)(3), respectively
without change.
CEQ received multiple comments on the incorporation of section
106(b)(3) of NEPA into proposed paragraph (c). 42 U.S.C. 4336(b)(3).
Some commenters supported this incorporation, while others urged CEQ to
limit the standard established in section 106(b)(3) to the
determination of whether to prepare an EA or an EIS. CEQ disagrees with
these commenters and adds the proposed language in the final rule
because CEQ considers it appropriate to direct agencies to make use of
any reliable data source in considering whether to apply a CE to an
action and notes that a decision based on unreliable data would likely
be inconsistent with the principles of reasoned decision making. CEQ
also considers the approach to reliable data and producing new research
in section 106(b)(3) to be consistent with longstanding practice and
case law and appropriate to apply broadly to an agency's determination
of the appropriate level of NEPA review, including a determination that
no such review is required. 42 U.S.C. 4336(b)(3). Moreover, because
section 106(b)(3)(B) provides that an agency ``is not required to
undertake new scientific or technical research'' outside of the
identified circumstances, making this language inapplicable to CE
determinations would mean that agencies have a broader (but undefined)
obligation to undertake new scientific or technical research for those
determinations. 42 U.S.C. 4336(b)(3). Such a result would undermine the
efficiency of CEs and create confusion for agencies.
Multiple commenters requested additional guidance from CEQ on how
to apply the standard, what is considered a reliable data source, what
costs or delays make obtaining new information unreasonable, and how
long information will continue to be considered reliable. CEQ considers
those questions to raise detailed or fact-specific issues that may be
better suited to address in guidance or by agencies in considering
specific NEPA reviews. CEQ notes that agencies have extensive
experience in assessing the reliability of information in the NEPA
process, and the regulations provide additional direction in Sec. Sec.
1502.21 and 1506.6. CEQ will consider whether additional guidance is
necessary to assist agencies in applying the standard.
CEQ makes these revisions as proposed in the final rule with one
clarifying change to paragraph (c)(1) to replace ``[n]ormally does not
have significant effects and is'' with ``[i]s appropriately.'' As
phrased, this provision could be read to conflict with the process
provided for in Sec. 1501.4(b) for an agency to determine that a
proposed action can be categorically excluded notwithstanding the
existence of extraordinary circumstances. This change also provides for
a parallel structure with paragraphs (c)(2) and (c)(3).
Seventh, CEQ proposed to redesignate paragraph (b) of 40 CFR 1501.3
(2020) as Sec. 1501.3(d), title it ``Significance determination--
context and intensity,'' and address factors agencies must consider in
determining significance by restoring with some modifications the
consideration of ``context'' and ``intensity'' from the 1978
regulations, which appeared in the definition of ``significantly.'' See
40 CFR 1508.27 (2019). The proposed rule explained that because this
text provides direction on how agencies determine the significance of
an effect, rather than a definition, addressing significance
determinations in Sec. 1501.3 is more appropriate than Sec. 1508.1.
Eighth, CEQ proposed to modify the introductory language in
paragraph (d) by replacing the requirement that agencies ``analyze the
potentially affected environment and degree of the effects'' with a
requirement for agencies to consider the context of an action and the
intensity of the effects when considering whether the proposed action's
effects are significant. CEQ proposed to strike the second sentence of
40 CFR 1501.3(b) (2020) requiring agencies to consider connected
actions because this concept would be included in proposed paragraph
(c).
Multiple commenters expressed support for the overall restoration
of the context and intensity factors, as well as the proposed expansion
of the factors, asserting that doing so aligns with
[[Page 35464]]
longstanding case law and adds certainty to the process. A few
commenters generally opposed the reintroduction and expansion of the
factors, asserting they would expand the scope of NEPA review rather
than encourage streamlining and that the expansion of the factors is
inconsistent with the statutory amendments to NEPA. A few commenters
requested that proposed paragraph (d) clarify that agencies may
consider mitigation in making a significance determination.
In the final rule, consistent with the proposal, CEQ redesignates
paragraph (b) of 40 CFR 1501.3 (2020) as Sec. 1501.3(d), titles it
``Significance determination--context and intensity,'' revises the
first sentence of paragraph (d) with additional modifications to the
proposal, and strikes the second sentence of 40 CFR 1501.3(b) (2020).
CEQ adds and revises the factors as discussed further in this section.
CEQ disagrees that the factors will expand the scope of NEPA review.
Rather, these factors, including the additional factors, will assist
agencies in determining the appropriate level of NEPA review for their
proposed actions by focusing their review on the critical factors in
determining significance.
As discussed further in this section, CEQ moves language regarding
beneficial and adverse effects as well as the language regarding
segmentation to the end of paragraph (d) in response to commenters'
recommendations because this language is more generally applicable and
not specific to context or intensity. Finally, CEQ declines to address
the role of mitigation in this paragraph. CEQ has clarified in Sec.
1501.6 that if an agency determines that a proposed action would not
have a significant effect because of the implementation of mitigation,
then the agency must document its finding in a mitigated FONSI.
Therefore, addressing mitigation and its relation to significance is
unnecessary in this paragraph.
Ninth, CEQ proposed to strike 40 CFR 1501.3(b)(1) (2020), replace
it with proposed paragraph (d)(1), and restore the requirement for
agencies to analyze the significance of an action in several contexts
consistent with the 1978 regulations. CEQ also proposed to add examples
of contexts that may be relevant. In the first sentence, CEQ proposed
to encourage agencies to consider the characteristics of the relevant
geographic area, such as proximity to unique or sensitive resources or
vulnerable communities. The proposed rule indicated that such resources
may include historic or cultural resources, Tribal sacred sites, and
various types of ecologically sensitive areas. CEQ explained that this
revision relates to the intensity factor in proposed paragraph
(d)(2)(iii), which CEQ proposed to restore from the 1978 regulations.
CEQ proposed to include it as a context factor as well since it relates
to the setting of the proposed action and to encourage agencies to
consider proximity to communities with environmental justice concerns.
CEQ also proposed to add a third sentence to paragraph (d)(1)
encouraging agencies to consider the potential global, national,
regional, and local contexts, which may be relevant depending on the
scope of the action, consistent with the 2020 and 1978 regulations.
Additionally, CEQ proposed to move and revise text providing that the
consideration of short- and long-term effects is relevant to the
context of a proposed action from 40 CFR 1501.3(b)(2)(i) (2020) to the
end of the third proposed sentence in paragraph (d)(1) to encourage
agencies to consider the duration of the potential effects whether they
are anticipated to be short- or long-term.
Multiple commenters expressed support for the proposed restoration
of the consideration of context in determining significance, asserting
that doing so is consistent with case law and would promote compliance
with NEPA's mandate to consider all significant effects. A few
commenters requested the regulations define or add clarity on the terms
``unique or sensitive resources,'' ``vulnerable communities,'' and
``relevant geographic area.'' Some commenters supported the use of
these terms while others expressed concern that without clear
definitions there could be project delays or increased litigation risk.
In the final rule CEQ strikes 40 CFR 1501.3(b)(1) (2020) and
replaces it in Sec. 1501.3(d)(1) with the text in proposed paragraph
(d)(1) with a few modifications. CEQ notes that paragraph (d)(1)
requires agencies to analyze the significance of an action in several
contexts, as evidenced by use of the term ``shall'' in the first
sentence, while the second and third sentences use ``should'' to
clarify that the determination the appropriate contextual factors will
depend on the particular proposed action. In the final rule, CEQ uses
the term ``communities with environmental justice concerns'' instead of
``vulnerable communities'' because CEQ has added this as a defined term
in Sec. 1508.1, and it is consistent with use of this term elsewhere
in the rule. CEQ excludes the word ``relevant'' before ``geographic
area'' in the final rule text as an unnecessary modifier since the
encouragement is to consider the geographic area of the proposed
action, which will necessarily depend on the context and scope of the
proposed action. Moreover, agencies have decades of experience
implementing a similar provision in the 1978 regulations, which did not
include the word ``relevant'' before ``geographic area,'' and the
addition of ``relevant'' could have the unintended consequence of
indicating to agencies that this provision requires a substantially
different analysis. CEQ declines to define ``geographic area'' and
``unique or sensitive resources'' as these phrases have been used in
the regulations since 1978, and agencies have extensive experience
interpreting them in the context of particular proposed actions.
Further, CEQ is unaware of any misunderstanding about the meaning of
these phrases and is concerned that adding a new regulatory definition
could be disruptive for agencies.
Some commenters expressed support for the language encouraging
agencies to consider the potential global, national, regional, and
local contexts. Other commenters opposed the inclusion of all four
contexts, and in particular the inclusion of ``global,'' stating that
requiring agencies to consider all four would expand the complexity and
scope of NEPA reviews and lead to inappropriate determinations that
certain projects require an EIS, strain agency resources, cause delays
and increase litigation risk, and allow subjectivity to be introduced
to the decision. Other commenters requested more clarity on the types
of actions that require consideration of potential global, national,
regional, and local contexts, with another commenter requesting that
the language be modified to provide flexibility to consider appropriate
geographic contexts based on the site-specific action rather than
always require evaluation of all four contexts.
In the final rule, CEQ includes the language on global, national,
regional, and local contexts as proposed in Sec. 1501.3(d)(1). The
2020 rule described ``context'' as related to the potentially affected
environment in determining significance, stating that this reframing
relates more closely to physical, ecological, and socio-economic
aspects of the environment.\66\ CEQ has reconsidered this approach and
now finds it to be unhelpful and potentially limiting. While CEQ agrees
that the contexts relevant to an agency's assessment of significance
will be those that are potentially affected, identifying
[[Page 35465]]
the global, national, regional, and local contexts reminds agencies
that they should consider whether proposed actions have reasonably
foreseeable effects across these various contexts. Describing context
in this manner is also consistent with the decades of experience
agencies had implementing the 1978 regulations and is consistent with
the concepts of indirect and cumulative effects. CEQ has also
reconsidered the statement in the 2020 rule that the affected
environment, is ``usually'' only the local area, 40 CFR 1501.3(b)(1)
(2020) (``For instance, in the case of a site-specific action,
significance would usually depend only upon the effects in the local
area.'') (emphasis added), because many Federal actions have reasonably
foreseeable effects that extend regionally, nationally, or globally.
---------------------------------------------------------------------------
\66\ CEQ, 2020 Final Rule, supra note 39, at 43322.
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CEQ notes that Sec. 1501.3(d)(1) does not require agencies to
evaluate all four contexts--global, national, regional, and local--for
every proposed action. Rather, agencies should determine the
appropriate contexts to consider based on the scope of the action and
its anticipated reasonably foreseeable effects.
CEQ disagrees with commenters' assertion that this language will
lead agencies to expand the evaluation of effects beyond those that are
reasonably foreseeable. This provision provides guidance to agencies on
how to determine whether an effect is significant, and the word
``effect'' is a defined term in the regulations that is always limited
to reasonably foreseeable effects. This text recognizes that the
global, national, regional, or local context may bear on assessing the
significance of reasonably foreseeable effects. For example, in
determining the significance of an effect on highly migratory marine
species that travels thousands of miles each year from waters around
Antarctica to the Arctic Ocean, the agency may need to consider the
global context in which the species migrates, including other stressors
that occur at other points of the migration route. Conversely, dam
operations in a transboundary watershed may have consequences on
aquatic ecosystems that are appropriately considered at the regional or
watershed level and that may need to consider management and stressors
extending across national boundaries. The regional nature of the
resource effects, however, may not necessitate an analysis of global
context. A decision to fund a project to construct a building to
provide additional office space for a Federal agency on previously
developed land may have consequences limited to the local area around
the new building, and may not necessitate an analysis of global, State,
or regional context.
Tenth, CEQ proposed to strike 40 CFR 1501.3(b)(2) (2020), replace
it with proposed paragraph (d)(2), and reinstate ``intensity'' as a
consideration in determining significance, which CEQ reframed in the
2020 rule as the ``degree'' of the action's effects. Specifically, CEQ
proposed to strike the sentence in 40 CFR 1501.3(b)(2) (2020)
encouraging agencies to consider the list of factors in assessing the
degree of effects and replace it with a requirement to analyze the
intensity of effects in light of the list of factors as applicable to
the proposed action and in relation to one another. CEQ proposed to
reinstate consideration of intensity because the concept of intensity
and the intensity factors have long provided agencies with guidance in
how the intensity of an action's effects may inform the significance
determination. Further, CEQ noted it had reconsidered its position in
the 2020 rule that removal of intensity as a consideration was based in
part on the proposition that effects are not required to be intense or
severe to be considered significant.\67\ CEQ does not consider
``intense'' to be a synonym for ``significant;'' rather, it points to
factors to inform the determination of significance that are part of
longstanding agency practice.
---------------------------------------------------------------------------
\67\ CEQ, 2020 Final Rule, supra note 39, at 43322.
---------------------------------------------------------------------------
Multiple commenters expressed general support for the restoration
of the intensity factors in the proposed rule or identified support for
specific factors, whereas others expressed general opposition or
opposition to particular factors. One commenter suggested that the
final rule replace the phrases ``potential'' and ``degree to which the
proposed action may adversely affect'' in proposed paragraphs
(d)(2)(ii), (iii), (v), (viii), and (x) with ``the degree of any
reasonably foreseeable adverse effect of the proposed action on.'' The
commenter also suggested the final rule revise paragraph (d)(2)(ix) to
``the degree of any reasonably foreseeable and disproportionate adverse
effects from the proposed action on communities with environmental
justice concerns.'' The commenter asserted these changes would focus
the consideration on reasonably foreseeable effects, consistent with
the statute, while ``may adversely affect'' could be read to mean
agencies should consider speculative scenarios and effects that are not
reasonably foreseeable. Other commenters made similar suggestions,
requesting the regulations consistently refer to ``reasonably
foreseeable effects.'' Relatedly, a commenter recommended the
regulations consistently refer to ``the proposed action,'' rather than
``the action'' in the factors. Some commenters opposed the inclusion of
``adverse'' in front of multiple factors.
CEQ declines to make these changes in the final rule. The intensity
factors inform an agency's determination of whether an effect is
significant, and the word ``effect'' is a defined term that means
reasonably foreseeable effects. Therefore, paragraph (d)(2) applies
only to reasonably foreseeable effects and repeating the phrase
``reasonably foreseeable'' throughout this paragraph is unnecessary.
CEQ retains ``adverse'' in the final rule consistent with the
definition of ``significant effects'' and the language in Sec.
1501.3(d), which clarify that only adverse effects can be significant.
Eleventh, CEQ proposed to clarify in proposed paragraph (d)(2)(i)
that agencies should focus on adverse effects in determinations of
significance, consistent with NEPA's policies and goals as set forth in
section 101 of the statute. 42 U.S.C. 4331. CEQ proposed to redesignate
paragraph (b)(2)(ii) of 40 CFR 1501.3 (2020) as paragraph (d)(2)(i)
regarding beneficial and adverse effects and revise it to state that
``[e]ffects may be beneficial or adverse'' but ``only actions with
significant adverse effects require an [EIS].''
CEQ proposed to add a third sentence to this paragraph to indicate
that a significant adverse effect may exist even if the agency
considers that on balance the effects of the action will be beneficial.
The proposed rule explained that this provision is intended to be
distinct from weighing beneficial effects against adverse effects to
determine that an action's effects on the whole are not significant.
Rather, an action with only beneficial effects and no significant
adverse effects does not require an EIS, consistent with CEQ's proposed
revisions to Sec. 1501.3(d)(2), regarding the meaning of intensity.
CEQ proposed to strike paragraph (b)(2)(i) of 40 CFR 1501.3 (2020)
but incorporate the text into a fourth sentence in paragraph (d)(2)(i)
to clarify that agencies should consider the duration of effects and
include an example of such consideration--an action with short-term
adverse effects but long-term beneficial effects. The proposed rule
explained that while significant adverse effects may exist even if the
agency considers that on balance the effects of the action will be
beneficial, the agency should consider any related short- and long-term
effects in the same effect category together in evaluating intensity.
[[Page 35466]]
Multiple commenters supported proposed paragraph (d)(2)(i),
expressing support for the qualification that only actions with
significant adverse effects require an EIS because it will reduce
expenditure of agency resources on unnecessary EISs, streamline the
NEPA process, and promote a holistic review of projects. One commenter
cited Friends of Fiery Gizzard v. Farmers Home Admin., 61 F.3d 501 (6th
Cir. 1995) to support CEQ's proposed approach.
Multiple commenters also opposed the proposal to only require an
EIS for actions with significant adverse effects. Some commenters
asserted that proposed (d)(2)(i) and the reference to adverse effects
in other proposed intensity factors would illegally limit the scope of
NEPA because the statutory requirement to prepare an EIS does not
distinguish between adverse and beneficial effects. A few commenters
cited case law that they argued contravenes the proposed change. Hiram
Clarke Civil Club v. Lynn, 476 F.2d 421 (5th Cir. 1973); Environmental
Defense Fund v. Marsh, 651 F.2d 983 (5th Cir. 1981). One commenter also
asserted the proposal poses a risk that agencies will not assess
significant adverse effects or evaluate less damaging alternatives, and
that the proposed provision could be interpreted to give agencies
discretion to opt out of preparing an EIS based on unsupported claims
that the project will be beneficial or based on the project's stated
intent. One commenter further asserted that almost no environmentally
significant project completely avoids all potentially significant
adverse effects and also expressed concern about the lack of an EIS
limiting the opportunity for the public to provide comment where they
might raise other potentially adverse effects. A few commenters
expressed concern that the proposed language favors a certain type of
project over another without statutory or factual support for doing so.
Some commenters interpreted the language in the last two sentences
of proposed paragraph (d)(2)(i) to read that CEQ supported a
``netting'' approach to EISs, whereby if an action has significant
adverse effects but had net beneficial effects then the agency would
not have to prepare an EIS. Some commenters supported this
interpretation while others opposed it. A few commenters requested CEQ
clarify that the significance determination through the application of
context and intensity factors across timescales or duration applies to
each individual ``effect category'' that is implicated by the proposed
action. The commenters state that without this clarification, decision
makers could conflate categories of effects by considering an action's
effects as a whole thereby dismissing significant adverse effects
within an individual category on a given timescale if the decision
maker determines the action is beneficial overall. Another commenter
requested the regulations clarify that an EIS is not required where the
beneficial effects of a proposed action outweigh its adverse effects.
In the final rule, CEQ addresses the concept that only adverse
effects are significant by moving the last sentence of proposed
paragraph (d)(2)(i) to paragraph (d) and revising it because this
concept is a more general consideration and not specific to intensity.
CEQ also includes a definition of ``significant effect'' in Sec.
1508.1 to provide further clarity.
Specifically, CEQ strikes 40 CFR 1501.3(b)(2)(i) and (ii) (2020)
because Sec. 1501.3(d) addresses consideration of the duration of
effects and whether a particular category of effect is adverse or
beneficial coupled with the definition of ``significant effects'' in
Sec. 1508.1(mm). CEQ includes the first clause of the last sentence of
proposed paragraph (d)(2)(i), encouraging agencies to consider the
duration of effects, as the second sentence of Sec. 1501.3(d) and adds
an introductory clause to the sentence: ``[i]n assessing context and
intensity.'' CEQ also makes ``effects'' singular to emphasize that this
analysis is done on an effect-by-effect basis and does not allow
agencies to weigh a beneficial effect of one kind against an adverse
effect of another kind or evaluate whether an action is beneficial or
adverse in net to determine significance. For example, an agency cannot
compare and determine significance by weighing adverse water effects
against beneficial air effects, or adverse effects to one species
against beneficial effects to another species. Then, CEQ includes and
modifies the second clause of the last sentence of proposed paragraph
(d)(2)(i), providing that an action may have short-term adverse effects
but long-term beneficial effects, as the third sentence in Sec.
1501.3(d) to explain that agencies may consider the extent to which an
effect is adverse at some points in time and beneficial at others. CEQ
also includes an illustrative example of a proposed action for habitat
restoration where an agency may consider both any short-term harm to a
species during implementation of the action and any benefit to the same
species once the action is complete. As another example, an action that
will enhance recharge of a groundwater aquifer once completed could
have an adverse effect on groundwater recharge in the short term. In
evaluating the significance of the action's effect on groundwater
recharge, the agency should consider both the short-term harm and long-
term benefit. In some circumstances, an effect may be significant due
to the harm during one period of time regardless of the benefit at
another. For example, if implementation of a habitat restoration action
may extirpate a species from the area, then an agency could not
reasonably rely on long-term habitat improvements resulting from the
action to determine that the overall effect to the species is not
significant. The approach to considering duration contemplated by this
language is similar to the familiar analysis agencies engage in with
respect to compensatory mitigation, in which they may conclude that
benefits from the implementation of mitigation measures reduce the
anticipated adverse effects of a proposed action below the level of
significance.
In place of the third sentence of proposed paragraph (d)(2)(i), CEQ
adds a new third sentence at the end of paragraph (d) that prohibits
agencies from offsetting an action's adverse effects with other
beneficial effects to determine significance. This sentence also
includes a parenthetical example that agencies may not offset an
action's adverse effect on one species with a beneficial effect on
another species. The CEQ regulations have never allowed agencies to use
a net benefit analysis across environmental effects to inform the level
of NEPA review. Because the final rule clarifies that only adverse
effects may be significant, CEQ considers it especially important to
emphasize this prohibition in the regulatory text to ensure agencies
identify the appropriate level of review for their proposed actions.
Finally, CEQ does not include the second sentence of proposed paragraph
(d)(2)(i) stating that only actions with significant adverse effects
require an EIS because this is made clear through the limitation in the
definition of ``significant effects'' in Sec. 1508.1(mm) to adverse
effects.
The Fifth and Sixth Circuit cases cited by the commenters
illustrate the split among courts on whether actions with only
significant beneficial effects and no significant adverse effects
trigger an EIS. See also Humane Soc'y of U.S. v. Locke, 626 F.3d 1040,
1056 n.9 (9th Cir. 2010) and Drakes Bay Oyster Co. v. Jewell, 747 F.3d
1073, 1090 n.11 (2014) discussing the split in courts in dicta. CEQ
considers the Congressional declaration of purpose in section 2 of NEPA
and the Congressional declaration of national
[[Page 35467]]
environmental policy in section 101 of NEPA to indicate that Congress
intended for ``significant effects'' to be those that are damaging,
which is what CEQ interprets the phrase ``adverse effects'' to mean. 42
U.S.C. 4321, 4331. The recent amendments to NEPA bolster this
interpretation because section 102(2)(C)(iii) directs analysis of
``negative environmental impacts of the no action alternative'' and
section 108(1) refers to the significance of adverse effects related to
programmatic environmental documents. 42 U.S.C. 4332(2)(C)(iii),
4336b(l). CEQ notes too that the definition of ``significant effects''
and Sec. 1501.3(d) do not eliminate the requirement for agencies to
identify and discuss all reasonably foreseeable environmental effects
whether adverse or beneficial when preparing an EIS.
Twelfth, CEQ proposed to redesignate paragraph (b)(2)(iii) of 40
CFR 1501.3 (2020) as paragraph (d)(2)(ii) and make a clarifying edit to
the factor relating to effects on health and safety by adding language
indicating that the relevant consideration is ``the degree to which''
the proposed action may ``adversely'' affect public health and safety.
Commenters suggested that the final rule add ``welfare'' and ``public
well-being'' to this factor. CEQ declines these additions because
public health and safety have a more precise meaning than ``welfare''
and ``well-being'' and therefore, will be more readily applied by
agencies. Further, this factor has remained unchanged since 1978, so
agencies have a long history of examining these in the consideration of
significant effects on the human environment. In the final rule, CEQ
redesignates paragraph (b)(2)(iii) of 40 CFR 1501.3 (2020) as Sec.
1501.3(d)(2)(i) and revises it as proposed but omits ``proposed''
before ``action'' for consistency with the language of the factors.
Thirteenth, CEQ proposed to add a new paragraph (d)(2)(iii) to add
a new intensity factor to consider the degree to which the proposed
action may adversely affect unique characteristics of the geographic
area such as historic or cultural resources, park lands, Tribal sacred
sites, prime farmlands, wetlands, wild and scenic rivers, or
ecologically critical areas. CEQ proposed this factor to reinstate a
factor from the 1978 regulations, with clarifying edits, which agencies
have considered for decades. As noted earlier in this section, CEQ
proposed to use the wording from the 1978 factor on unique
characteristics in paragraph (d)(1) on context because they relate to
the setting of an action. The proposed rule indicated that
consideration of this factor is consistent with both the definition of
``effects'' and the policies and goals of NEPA. 42 U.S.C. 4331.
Some commenters expressed support for the restoration of the factor
in proposed paragraph (d)(2)(iii) and the proposed modifications to the
1978 regulatory text. One commenter recommended removing ``historic or
cultural resources'' because it is redundant and imprecise. Two
commenters asked that the final rule define ``park lands,'' ``prime
farmlands,'' and ``ecologically critical areas'' for clarity. A few
commenters requested that the final rule broaden the reference to
Tribal sacred sites to include culturally significant sites, including
sites of Native Hawaiians, Alaskan Natives, and indigenous peoples in
the United States and its Territories. Other commenters requested use
of ``and other indigenous communities'' to include non-federally
recognized Tribes.
CEQ adds proposed new paragraph (d)(2)(iii) at Sec.
1501.3(d)(2)(ii) in the final rule, revising ``park lands'' to
``parks'' to modernize the language that was included in the 1978
regulations and omitting ``proposed'' before ``action'' for consistency
with the language of the factors. CEQ declines to remove the word
``prime'' before ``farmlands,'' which would substantially expand this
factor beyond historical practice and including all farmland within
this factor would be inconsistent with directing agencies to consider
the ``unique characteristics of the geographic area.'' CEQ declines to
make the other changes suggested by the commenters. However, CEQ notes
that in addition to ``Tribal sacred sites,'' the list of intensity
factors includes several other factors that may be relevant to Tribal
and Indigenous cultural sites, including ``historic or cultural
resources'' and ``resources listed or eligible for listing in the
National Register of Historic Places.'' The list also directs agencies
to consider ``[w]hether the action may violate relevant Federal, State,
Tribal, or local laws,'' as well as ``[t]he degree to which the action
may have disproportionate and adverse effects on communities with
environmental justice concerns'' and ``[t]he degree to which the action
may adversely affect rights of Tribal Nations that have been reserved
through treaties, statutes, or Executive orders.'' Finally, CEQ notes
that the list is not intended to be an exhaustive list of all potential
factors, and agencies can consider other factors in their determination
of significance as appropriate for the proposed action.
Fourteenth, CEQ proposed to redesignate paragraph (b)(2)(iv) of 40
CFR 1501.3 (2020) as paragraph (d)(2)(iv) and revise ``effects that
would'' to ``actions that may'' violate ``relevant'' Federal, State,
Tribal, or local laws. CEQ proposed to add ``other requirements'' after
law as well as ``inconsistencies'' with ``policies designed for
protection of the environment'' because agencies should not necessarily
limit their inquiry to statutory requirements. CEQ explained that it
may be appropriate for agencies to give relatively more weight to
whether the action threatens to violate a law imposed for environmental
protection as opposed to a policy, but formally adopted policies
designed for the protection of clean air, clean water, or species
conservation, for example, may nonetheless be relevant in evaluating
intensity.
Some commenters recommended the final rule strengthen this factor
to identify examples of relevant environmental protection laws and
policies to ensure Federal agencies do not overlook actions taken by
States to address climate change or environmental justice. Another
commenter suggested CEQ provide guidance encouraging agencies to
coordinate with coastal programs to achieve consistency with all
relevant State and Territory plans, policies, and initiatives to
protect coastal uses and resources.
In the final rule, CEQ redesignates paragraph (b)(2)(iv) of 40 CFR
1501.3 (2020) as Sec. 1501.3(d)(2)(iii) and revises it as proposed.
CEQ declines to make the commenters' suggested edits as they are
unnecessarily specific for this rule and encompassed in the proposed
text. However, this does not preclude an agency from identifying more
specific examples in its agency NEPA procedures if the agency
determines it would be helpful for assessing significance for its
proposed actions.
Fifteenth, CEQ proposed to add a new paragraph (d)(2)(v) to
consider the degree to which effects are highly uncertain. The 1978
regulations included factors for ``controversial'' effects and those
that are ``highly uncertain or involve unique or unknown risks.'' CEQ
proposed to restore a modified version of this concept that makes clear
that the uncertainty of an effect is the appropriate consideration, and
not whether an action is controversial. The proposed rule explained
that while a legitimate disagreement on technical grounds may relate to
uncertainty, this approach would make clear that public controversy
over an activity or effect is not a factor for determining
significance.
A few commenters expressed support for proposed paragraph
(d)(2)(v). A couple of commenters suggested the
[[Page 35468]]
final rule include the phrase ``high degree of uncertainty'' to better
conform with NEPA practice under the 1978 regulations. Another
commenter requested clarity on what is meant by ``highly uncertain.'' A
few commenters recommended the regulations restore ``highly
controversial'' from the 1978 regulations because it was well-developed
in case law and doing so would provide clarity to agencies on how to
assess the degree to which effects were ``highly controversial.''
CEQ adds proposed new paragraph (d)(2)(v) at Sec. 1501.3(d)(2)(iv)
in the final rule. CEQ declines to use the term ``highly
controversial.'' While some may be familiar with the terminology, it
could mistakenly give the impression that it refers to public
controversy. CEQ also declines to use ``high degree of uncertainty,''
which means the same thing as ``highly uncertain,'' because the phrase
``highly uncertain'' has been included in the NEPA regulations since
1978 and making this substitution would require restructuring the
sentence in a manner that would reduce parallelism and readability
without otherwise improving the clarity or improving meaning. See 40
CFR 1508.27(b)(5) (2019).
Sixteenth, CEQ proposed to add a new paragraph (d)(2)(vi) to
consider the degree to which the action may relate to other actions
with adverse effects. CEQ proposed this paragraph to reinstate a factor
from the 1978 regulations and for consistency with the longstanding
NEPA principle that agencies cannot segment actions to avoid
significance. See, e.g., Sierra Club v. Marsh, 769 F.2d 868 (1st Cir.
1985); Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062 (9th Cir.
2002).
Some commenters supported the restoration of this factor, but
suggested removal of the term ``adverse.'' Other commenters indicated
that CEQ did not explain why it proposed to use ``in the aggregate''
instead of the 1978 regulations' phrasing ``cumulatively significant
impact on the environment'' and asserted that this would be a confusing
change. One commenter expressed support for the second sentence in the
factor specifying that an agency cannot segment or term an action
temporary that is not in fact temporary.
Another commenter opposed the restoration of this intensity factor,
asserted it would confuse the NEPA process and imply that an EIS can be
required solely based on the effects of other actions when the action
under consideration does not have significant adverse effects itself.
Another commenter also expressed concern about the factor and stated
that if CEQ's goal is to ensure that the potential for repetition or
recurrence of an impact is considered, the regulations should state
this more clearly.
Upon further consideration, CEQ is not restoring this text from the
1978 regulations to the final rule. The inclusion of cumulative effects
as a component of effects already addresses the interrelationship
between the effects of an action under consideration. Moreover, rather
than identifying a factor for an agency to consider in assessing
significance, this language more directly relates to the prohibition on
an agency segmenting an action, which the final rule addresses in Sec.
1501.3(b) related to the scope of an action and effects.
Seventeenth, CEQ proposed to add a new paragraph (d)(2)(vii) to add
a factor relating to actions that would affect historic resources
listed or eligible for listing in the National Register of Historic
Places. CEQ proposed this factor to generally reinstate a factor from
the 1978 regulations, which agencies have decades of experience
considering. The proposed rule explained that consideration of this
factor furthers the policies and goals of NEPA, including to ``preserve
important historic, cultural, and natural aspects of our national
heritage.'' 42 U.S.C. 4331.
A couple of commenters expressed support for proposed paragraph
(d)(2)(vii), while another commenter requested the final rule broaden
the factor by inserting ``or State or Tribal equivalents to registers
of historic places'' to the end of the factor. CEQ adds proposed new
paragraph (d)(2)(vii) at Sec. 1501.3(d)(2)(v) in the final rule. CEQ
declines the commenter's recommended addition because the revised
provision is consistent with decades of agency practice. CEQ notes that
the list of intensity factors is not exhaustive.
Eighteenth, CEQ proposed to add a new paragraph (d)(2)(viii) to add
the degree to which the action may adversely affect an endangered or
threatened species or its habitat, including critical habitat under the
Endangered Species Act. 16 U.S.C. 1532(5). CEQ proposed to reinstate
and expand an intensity factor from the 1978 regulations, which only
addressed critical habitat. CEQ proposed this addition to clarify that
agencies should consider effects to the habitat of endangered or
threatened species even if it has not been designated as critical
habitat.
Some commenters expressed support for the expansion of the factor
to include impacts to habitat regardless of whether they have been
designated as critical. A few commenters disagreed with the proposed
expansion of this intensity factor and suggested that the final rule
restore the 1978 language that ``limited'' this factor to review of
critical habitat. Multiple commenters requested the final rule exclude
this factor, asserting that CEQ failed to justify the proposed
expansion to require agencies to consider the effect of an action on
habitat that have not been designated as critical habitats under the
Endangered Species Act. Commenters stated that it was unclear why this
would be an intensity factor when agencies already must engage in ESA
section 7 consultation. One commenter expressed concern the proposed
expansion would expand the scope of the significance determination,
resulting in project delays and siting issues. Other commenters
specifically recommended removing ``habitat, including'' because the
language expands habitat considerations beyond what is protected by
Federal law.
CEQ adds proposed new paragraph (d)(2)(viii) in Sec.
1501.3(d)(2)(vi) of the final rule, as proposed, because critical
habitat is a regulatory category under the Endangered Species Act
designation process and does not necessarily align with the geographic
range of the species or the habitat a species is using. Major Federal
actions can have significant effects on endangered or threatened
species habitat regardless of whether critical habitat has been
designated. Moreover, the section 7 consultation process considers
effects to listed species generally, including where habitat that has
not been designated as critical habitat is used by a species and
therefore, damage to that habitat may affect the species. As a result,
revising the factor in this manner helps to align environmental review
under NEPA and the section 7 consultation process.
Nineteenth, CEQ proposed to add a new paragraph (d)(2)(ix) to
include consideration of the degree to which the action may have
disproportionate and adverse effects on communities with environmental
justice concerns. CEQ proposed this factor because evidence continues
to accumulate that communities with environmental justice concerns
often experience disproportionate environmental burdens such as
pollution or urban heat stress, and often experience disproportionate
health and other socio-economic burdens that make them more susceptible
to adverse effects.
Multiple commenters expressed support for the proposed addition of
environmental justice as an intensity factor. One commenter requested
clarity on what is meant by ``the degree to
[[Page 35469]]
which an action may have a disproportionate effect.'' Another commenter
recommended the final rule revise the factor to read ``the degree of
any reasonably foreseeable and adverse effects from the proposed action
on communities with environmental justice concerns'' to focus on
reasonably foreseeable effects.
CEQ adds the factor in proposed paragraph (d)(2)(ix) related to
communities with environmental justice concerns in Sec.
1501.3(d)(2)(vii) in the final rule with modifications. Specifically,
the final rule revises the factor to revise the phrase ``have
disproportionate and adverse effects'' to ``adversely affect'' to
enhance the consistency of this factor with the other intensity
factors. CEQ notes that the intensity factors inform an agency's
determination of whether an effect is significant, and the word
``effect'' is defined to mean reasonably foreseeable effect.
Finally, CEQ proposed to add a new proposed paragraph (d)(2)(x) to
include effects upon rights of Tribal Nations that have been reserved
through treaties, statutes, or Executive orders. CEQ proposed this
factor because Tribes' ability to exercise these rights often depends
on the conditions of the resources that support the rights, and
agencies should consider these reserved rights when determining whether
effects to such resources are significant. CEQ specifically sought
comments from Tribes on this proposed addition.
Multiple commenters, including Tribal government agencies and
Tribal leaders, supported the addition of proposed paragraph (d)(2)(x),
but also urged CEQ to specifically address effects on Tribal
sovereignty, reservations, religious and cultural practices and
cultural heritage, current cultural practices, and habitat on which
resources crucial to the exercise of Tribal Nations' reserved rights
depend. A few commenters recommended the factor include broader
references when discussing ``rights'' to ensure inclusion of the rights
of indigenous peoples not denominated as Tribes. A few commenters
opposed the proposed addition, asserting that it prejudges which
effects would be significant.
CEQ adds proposed new paragraph (d)(2)(x) in Sec.
1501.3(d)(2)(viii) of the final rule, as proposed. The provision
identifies an important factor that agencies should consider in
determining whether an effect is significant and will help agencies
consider rights that have been reserved through treaties, statutes, or
Executive orders during the NEPA process, without prejudging which
categories of environmental effects will be most important in any given
analysis. Regarding the additional considerations that commenters
suggest that CEQ incorporate into these provisions, CEQ notes that
paragraphs (d)(2)(ii), (iii), (v), and (vii) capture many of them in
whole or in part. Because the list of considerations in paragraph
(d)(2) is not exhaustive, CEQ declines to specify these additional
terms. Regarding the recommendation to add a reference to rights of
indigenous peoples in this factor, CEQ does not make this revision
because this factor addresses the unique and distinctive rights of
Tribal Nations that have a nation-to-nation relationship with the
United States.
3. Categorical Exclusions (Sec. 1501.4)
CEQ proposed revisions to Sec. 1501.4 regarding CEs to clarify
this provision, and provide agencies new flexibility to establish CEs
using additional mechanisms outside of their NEPA procedures to promote
more efficient and transparent development of CEs that may be tailored
to specific environmental contexts or project types.
Many commenters expressed general support for the proposed changes
to Sec. 1501.4. Some of these commenters suggested that the final rule
go further to encourage the use of CEs. Other commenters advocated for
additional provisions in the section, such as requiring agencies to
notify the public of the proposed use of a CE and make all
documentation on the use of a CE for a specific action available to the
public. CEQ addresses the specific comments throughout this section and
in the Phase 2 Response to Comments.
CEQ intends the changes in the final rule to promote agency use of
CEs whenever appropriate for a proposed action. The mechanisms in Sec.
1501.4 as well as Sec. 1507.3 will provide agencies with additional
flexibility in establishing CEs while ensuring that CEs are
appropriately substantiated and bounded to ensure they apply to actions
that normally do not have significant effects. CEQ declines to require
agencies to provide public notice in advance of using a CE. While
agencies may choose to do this where they deem appropriate, an across-
the-board requirement would burden agency resources and undermine the
efficiency of the CE process. Similarly, requiring agencies to publish
documentation of every CE determination would be overly burdensome.
Consistent with Sec. 1507.3(c)(8)(i), agencies must identify in their
NEPA procedures which of their CEs require documentation. Agencies also
can identify processes or specific CEs in their agency procedures for
which they will make determinations publicly available where they
determine this is appropriate. CEQ encourages agencies to notify the
public and make documentation publicly available for CEs when they
expect public interest in the determination.
CEQ proposed changes throughout Sec. 1501.4. First, CEQ proposed
to revise the first sentence in paragraph (a) to strike the clause
requiring agencies to identify CEs in their agency NEPA procedures and
replace it with a clause requiring agencies to establish CEs consistent
with Sec. 1507.3(c)(8), which requires agencies to establish CEs in
their NEPA procedures. CEQ proposed this revision because it would more
fully and accurately reflect the purposes of and requirements for CEs.
Because paragraph (c) provides mechanisms for agencies to establish CEs
outside of their NEPA procedures, CEQ makes this change to Sec.
1501.4(a) in the final rule but adds ``or paragraph (c)'' so that the
first sentence refers to the various mechanisms for establishing CEs.
As is reflected in the regulations, CEQ views CEs to be important tools
to promote efficiency in the NEPA process where agencies have long
exercised their expertise to identify and substantiate categories of
actions that normally do not have a significant effect on the human
environment.
Second, in the description of CEs in the first sentence of
paragraph (a), CEQ proposed to add the clause ``individually or in the
aggregate'' to modify the clause ``categories of actions that normally
do not have a significant effect on the human environment.'' CEQ
proposed to add this language to clarify that when establishing a CE,
an agency must determine that the application of the CE to a single
action and the repeated collective application to multiple actions
would not have significant effects on the human environment. CEQ
proposed this clarification to recognize that agencies often use CEs
multiple times over many years and for consistency with the reference
to a ``category of actions'' in the definition of ``categorical
exclusion'' provided by section 111(1) of NEPA, which highlights the
manner in which CEs consider an aggregation of individual actions. 42
U.S.C. 4336e(1).
CEQ intended the proposed change to have a meaning similar to the
1978 regulations' definition ``categorical exclusion'' as categories of
actions that do not ``individually or cumulatively'' have significant
effects, which the 2020 rule removed stating that the removal was
consistent with its removal of the term ``cumulative impacts'' from the
regulations. The Phase 1 rulemaking reinstated cumulative effects to
the
[[Page 35470]]
definition of ``effects,'' \68\ so the 2020 rule's justification for
removing the phrase no longer has a basis. However, CEQ proposed to use
the phrase ``in the aggregate'' rather than ``cumulatively'' to avoid
potential confusion. Cumulative effects refer to the incremental
effects of an agency action added to the effects of other past,
present, and reasonably foreseeable actions. In the context of
establishing CEs, agencies consider both the effects of a single action
as well as the aggregation of effects from anticipated multiple actions
covered by the CE such that the aggregate sum of actions covered by the
CE does not normally have a significant effect on the human
environment. As part of this analysis, agencies consider the effects--
direct, indirect, and cumulative--of the individual and aggregated
actions.
---------------------------------------------------------------------------
\68\ CEQ, Phase 1 Final Rule, supra note 50, at 23469.
---------------------------------------------------------------------------
Because the definition of ``effects'' includes cumulative effects,
CEQ proposed the phrase ``in the aggregate'' to more clearly define
what agencies must consider in establishing a CE--the full scope of
direct, indirect, and cumulative effects of the category of action
covered by the CE. Agencies have flexibility on how to evaluate whether
the aggregate actions covered by a CE will not ordinarily have
significant effects and may consider the manner in which the agency's
extraordinary circumstances may apply to avoid multiple actions taken
in reliance on the CE having reasonably foreseeable significant effects
in the aggregate.
Commenters both supported and opposed the addition of the phrase
``individually or in the aggregate'' in proposed Sec. 1501.4(a) and
Sec. 1507.3(c)(8)(ii). Commenters who supported the inclusion of the
text asserted that it restores an important clarification regarding the
proper scope of CEs from the 1978 regulations and that it gives meaning
to the statutory definition of ``categorical exclusion'' in section
111(1) of NEPA. 42 U.S.C. 4336e(1). Commenters opposed to this phrase
asserted it is undefined, lacks foundation in the statute, is
burdensome on agencies, and will require agencies to consider effects
beyond those that are reasonably foreseeable.
CEQ disagrees that the phrase ``individually or in the aggregate''
lacks foundation in the statute because use of the phrase ``does not
significantly affect'' in section 111(1) of NEPA indicates it is the
``category of actions'' that the agency has determined normally would
not result in significant effects to the environment, not an individual
action to which the CE would apply. See 42 U.S.C. 4336e(1) (emphasis
added). CEQ also disagrees that this phrase will add burden to agencies
because CEQ considers this a clarifying edit consistent with the
longstanding definition of ``categorical exclusion'' and agency
practice. Finally, CEQ notes that all effects analyses are bounded by
reasonable foreseeability, including in the establishment of CEs.
Some commenters also requested the regulations clarify the
relationship between the phrase ``individually or in the aggregate''
and the definition of cumulative effects. CEQ views these terms as
related. The term ``effects'' as used in the definition of
``categorical exclusion'' and throughout the regulations includes
cumulative effects, which, in turn, refers to the effects of the action
being analyzed in an environmental document when added to the effects
of other past, present, and reasonably foreseeable actions. The use of
``in the aggregate'' in this paragraph refers to the fact that in
substantiating a CE to determine that a category of actions normally
does not have significant effects, the agency must consider both the
effects--including cumulative effects as well as direct and indirect--
of an individual action within that category and of the aggregate of
the actions that the agency can reasonably foresee will be taken and
covered by the CE. Because the regulations use the phrase ``in the
aggregate'' consistent with the ordinary meaning of the phrase, CEQ
does not consider it necessary to add additional explanatory text.
A few commenters requested the regulations clarify that an agency
should ensure that actions covered by a CE will not have a significant
effect ``individually or in the aggregate'' at the time the agency
establishes and substantiates the CE. Conversely, another commenter
asserted considering the aggregate effects of a CE is inappropriate
when an agency establishes a CE, asserting that an agency should
consider any aggregate effects when applying the CE to a proposed
action. CEQ declines to address substantiation of CEs in Sec. 1501.4
as this issue is addressed in Sec. 1507.3(c)(8)(ii). Further, CEQ
disagrees that agencies would need to analyze aggregate effects each
time the agency applies a CE, except to the extent the agency's
extraordinary circumstances review requires such an analysis. Requiring
such an analysis each time an agency applies a CE, independent of any
analysis required as part of the agency's extraordinary circumstances
review, would undermine the efficiency of CEs. Instead, agencies must
consider whether a category of actions normally does not have a
significant effect individually or in the aggregate at the time that
the agency establishes a CE.
Some commenters opposed the use of the term ``normally'' in the
description of a CE in paragraph (a), which CEQ discusses in section
II.J.2. CEQ retains this term for the reasons discussed in the 2020
rule, section II.J.2, and the Phase 2 Response to Comments.
Third, CEQ proposed to revise the end of the first sentence of
paragraph (a) to add the qualifier, ``unless extraordinary
circumstances exist that make application of the categorical exclusion
inappropriate'' with a cross reference to paragraph (b). As discussed
in section II.J.11, CEQ proposed to add a definition of ``extraordinary
circumstances.'' CEQ stated in the proposed rule, that these provisions
are consistent with longstanding practice and recognize that, as the
definition provided by section 111(1) of NEPA indicates, CEs are a
mechanism to identify categories of actions that normally do not have
significant environmental effects. See 42 U.S.C. 4336e(1).
Extraordinary circumstances serve to identify individual actions whose
effects exceed those normally associated with that category of action
and therefore, may not be within the scope of the CE. CEQ did not
receive comments on this specific proposed change and makes this
addition to paragraph (a) in the final rule.
Fourth, CEQ proposed to add a new sentence at the end of paragraph
(a) to clarify that agencies may establish CEs individually or jointly
with other agencies. The proposed rule noted that where agencies
establish CEs jointly, they may use a shared substantiation document
and list the CE in both agencies' NEPA procedures or identify them
through another joint document as provided for by Sec. 1501.4(c). CEQ
proposed this addition to clarify that agencies may use this mechanism
to establish CEs transparently and with appropriate public process. The
proposed rule noted that agencies may save administrative time and
resources by establishing a CE jointly for activities that they
routinely work on together and where having a CE would create
efficiency in project implementation.
Multiple commenters supported the inclusion of this clarification
in paragraph (a), stating that joint establishment of CEs by agencies
can help improve efficiency, reduce redundancy, and improve cohesion
between agencies. On the other hand, one commenter opposed the proposed
addition asserting that joint CEs will not
[[Page 35471]]
help communities participate fully in the NEPA process. CEQ adds the
proposed language in Sec. 1501.4(a) in the final rule. The NEPA
regulations have never prohibited agencies from establishing CEs
jointly, and the proposed change in paragraph (a) provides clarity to
agencies and the public that this is an acceptable practice. The
requirement to substantiate CEs as described in Sec. 1507.3(c)(8),
including public review and comment, apply to establishment of joint
CEs in the same manner as CEs established by an individual agency.
Fifth, CEQ proposed edits to paragraph (b)(1) addressing what
agencies do when there are extraordinary circumstances for a particular
action. CEQ proposed to change ``present'' to ``exist'' and clarify the
standard for when an agency may apply a CE to a proposed action
notwithstanding the extraordinary circumstances. CEQ proposed to make
explicit that an agency must conduct an analysis to satisfy the
requirements of the paragraph. Next, CEQ proposed to change the
description of the determination that agencies must make from ``there
are circumstances that lessen the impacts'' to ``the proposed action
does not in fact have the potential to result in significant effects
notwithstanding the extraordinary circumstance.'' Then CEQ proposed to
change ``or other conditions sufficient to avoid significant effects''
to ``or the agency modifies the action to address the extraordinary
circumstance.'' CEQ proposed this standard for consistency with agency
practice and case law. Additionally, CEQ proposed this change because
the language in paragraph (b)(1) of 40 CFR 1501.4 (2020) could be
construed to mean that agencies may mitigate on a case-by-case basis
extraordinary circumstances that would otherwise have the potential for
significant effects and thereby apply a CE with no opportunity for
public review or engagement on such actions. While the 2020 Response to
Comments sought to distinguish ``circumstances that lessen the
impacts'' from required mitigation to address significant effects,\69\
based on CEQ's discussions with agency representatives and
stakeholders, the potential for confusion remained. CEQ proposed the
revised text to make clear that if an extraordinary circumstance
exists, an agency must make an affirmative determination that there is
no potential for significant effects in order to apply a CE. If the
agency cannot make this determination, the agency must either modify
its proposed action in a way that will address the extraordinary
circumstance, or prepare an EA or EIS.
---------------------------------------------------------------------------
\69\ CEQ, Update to the Regulations Implementing the Procedural
Provisions of the National Environmental Policy Act Final Rule
Response to Comments 130 (June 30, 2020) (2020 Response to
Comments), https://www.regulations.gov/document/CEQ-2019-0003-720629.
---------------------------------------------------------------------------
Sixth, CEQ proposed to add a sentence to paragraph (b)(1) to
require agencies to document their determinations in those instances
where an agency applies a CE notwithstanding extraordinary
circumstances. While not required, CEQ proposed to encourage agencies
to publish such documentation to provide transparency to the public of
an agency determination that there is no potential for significant
effects. CEQ proposed this sentence in response to feedback from the
public requesting such transparency.
Multiple commenters generally supported proposed Sec. 1501.4(b),
which sets out the process for applying a CE to a proposed action, and
its subparagraphs addressing consideration of extraordinary
circumstances. Several commenters opposed the proposed requirement in
paragraph (b)(1) to prepare a separate analysis as part of the
extraordinary circumstances review, asserting it will decrease
efficiency, disincentivize use of CEs, and strain already limited
agency resources.
Multiple commenters opposed allowing an agency to apply a CE when
extraordinary circumstances exist and expressed concerns that this
provision would allow the use of mitigated CEs. Some of these
commenters recommended the final rule remove paragraph (b)(1); further
specify what extraordinary circumstances agencies must consider, such
as the presence of endangered, threatened, or rare or sensitive
species; or include ``other protective measures.'' Some commenters
urged the final rule to require, rather than encourage, publication of
the CE determinations in paragraph (b)(1). Other commenters urged CEQ
not to make publication a requirement because it would be burdensome on
agencies. One commenter who supported proposed paragraph (b)(1) also
suggested the regulations clarify that the standard to apply a CE to a
proposed action also includes mitigation commitments to address
extraordinary circumstances.
CEQ revises paragraph (b)(1) as proposed with two additional
clarifying edits. In applying CEs, the evaluation of extraordinary
circumstances is critical to ensure that a proposed action to which a
CE may apply would not cause significant effects. However, mere
presence of an extraordinary circumstance does not mean that the
proposed action has the potential to result in significant effects. To
ensure both the efficient and the appropriate use of CEs, CEQ revises
paragraph (b)(1) to enable agencies to analyze and document that
analysis to ensure application of the CE is valid. CEQ disagrees that
requiring agencies to document this analysis is inefficient because
this provision does not require an agency to prepare documentation of
every extraordinary circumstance review. Rather, the provision requires
documentation only when the agency identifies the presence of
extraordinary circumstances but nevertheless determines that
application of the CE is appropriate. Documentation in such instances
is appropriate so that the agency can demonstrate that it adequately
assessed the extraordinary circumstances and determined that the action
will nonetheless not have the potential to result in significant
effects. CEQ declines to require agencies to publish this documentation
because it could burden agency resources and undermine the efficiency
of the CE process.
CEQ has considered the comments on this paragraph related to
mitigated CEs and modifies the text in the final rule to clarify what
it means for an agency to modify its action. Specifically, CEQ replaces
the phrase ``address the extraordinary circumstance'' with the phrase
``avoid the potential to result in significant effects.'' This change
clarifies that while an agency may rely on measures that avoid
potential significant effects, it may not rely on measures to
compensate for potential significant effects as the basis for relying
on a CE when extraordinary circumstances are present, and the agency
has determined that the proposed action has the potential to result in
significant effects. While CEQ has determined that reliance on
compensatory mitigation in this provision is inappropriate, it notes
that other provisions of the regulations, such as the allowance for
mitigated FONSIs in Sec. 1501.6, promote the use of compensatory
mitigation to promote efficient environmental reviews and quality
decision making. CEQ also revises the introductory clause of the last
sentence from ``In such cases'' to ``in these cases'' to make it clear
that the documentation requirement applies to both situations--(1) when
the agency conducts an analysis and determines that the proposed action
does not in fact have the potential to result in significant effects
notwithstanding the extraordinary circumstance or (2) the agency
modifies the action to avoid the potential to result in significant
effects.
[[Page 35472]]
Seventh, CEQ proposed to add a new paragraph (c) to provide
agencies more flexibility to establish CEs outside of their NEPA
procedures. CEQ proposed this provision to allow agencies to establish
CEs through a land use plan, a decision document supported by a
programmatic EIS or EA, or other equivalent planning or programmatic
decisions. Once established, the proposal would allow agencies to apply
CEs to future actions addressed in the program or plan, including site-
specific or project-level actions. CEQ proposed this provision because
it anticipated that expanding the mechanisms through which agencies may
establish CEs will encourage agencies to conduct programmatic and
planning reviews, increase the speed with which agencies can establish
CEs while ensuring public participation and adequate substantiation,
promote the development of CEs that are tailored to specific contexts,
geographies, or project-types, and allow decision makers to consider
the cumulative effects of related actions on a geographic area over a
longer time frame than agencies generally consider in a review of a
single action.
Proposed paragraph (c) would not require agencies to establish CEs
through this new mechanism, but rather would provide new options for
agencies to consider. CEQ also noted in the proposed rule that this
mechanism does not preclude agencies from conducting and relying on
programmatic analyses in making project-level decisions consistent with
Sec. 1501.11 in the absence of establishing a CE. Additionally, the
proposed rule noted that it does not require agencies to conduct a NEPA
analysis to establish CEs generally, consistent with Sec.
1507.3(c)(8).
Numerous commenters expressed support for proposed paragraph (c),
asserting it will improve flexibility and efficiency. Some commenters
opposed the proposed provision, expressing concern about public
engagement. One commenter requested CEQ exclude ``other equivalent
planning or programmatic decision'' from paragraph (c) asserting that
CEQ should limit the provision to documents prepared pursuant to NEPA
to ensure public transparency and early public involvement. Another
commenter recommended the final rule include an example in paragraph
(c) to illustrate the appropriateness of creating a CE for restoration
actions in a planning document, referencing Sec. 1500.3(d)(2)(i) for
proposed Federal actions with short-term, non-significant, adverse
effects and long-term beneficial effects, such as restoration projects.
CEQ adds paragraph (c) with additional text to clarify that the
phrase ``other equivalent planning or programmatic decision'' requires
that such decision be supported by an environmental document prepared
under NEPA. CEQ anticipates that this alternative approach will provide
agencies with more flexibility on how to identify categories of actions
that normally will not have significant effects and establish a CE for
those categories. An environmental document such as a programmatic EIS
prepared for land use plans or other planning and programmatic
decisions can provide the analysis necessary to substantiate a new CE
established by the associated decision document that makes sense in the
context of the overall program decision or land use plan. For example,
a land management agency could consider establishing a CE for zero or
minimal impact resilience-related activities through a land use plan
and the associated EIS. Enabling an agency to establish a CE through
this mechanism will reduce duplication of effort by obviating the need
for the agency to revise its NEPA procedures consistent with Sec.
1507.3 after completing a programmatic EIS. Agencies also may find it
efficient to establish a CE through a land use planning process rather
than undertaking a separate process to establish the CE via agency
procedures after completion of the land use planning process.
Eighth, CEQ proposed to add paragraphs (c)(1) through (c)(6) to set
forth the requirements for the establishment of CEs through the
mechanism proposed in paragraph (c). In paragraphs (c)(1) and (c)(2),
CEQ proposed to require agencies to provide CEQ an opportunity to
review and comment and provide opportunities for public comment. The
proposed rule noted that agencies may satisfy the requirement for
notification and comment under paragraph (c)(2) by incorporating the
proposed CEs into any interagency and public review process that
involves notice and comment opportunities applicable to the relevant
programmatic or planning document.
One commenter requested that paragraph (c)(1) include a requirement
for CEQ to provide review and comment to agencies within 30 days of the
receipt of the draft plan, programmatic environmental document, or
equivalent decision document, consistent with the timeframe included in
Sec. 1507.3(b)(2). Another commenter asserted that requiring agencies
to coordinate with CEQ defeats the purpose of having an alternative
mechanism for establishing CEs outside of an agency's NEPA procedures.
Some commenters asserted that bundling new CEs with other large
actions could make it hard for the public to track and result in a lack
of public participation and potential for abuse. CEQ disagrees that the
alternative process for establishing CEs will curtail meaningful public
engagement on proposed CEs and notes that paragraph (c)(2) would
require notification and an opportunity for public comment. Further,
programmatic environmental documents are subject to the public and
governmental engagement requirements in Sec. 1501.9.
The final rule adds paragraphs (c)(1) and (c)(2) as proposed. CEQ
declines to include a timeline in the final rule but notes that it will
strive to provide comments as quickly and efficiently as possible. CEQ
disagrees that requiring agencies to consult with CEQ defeats the
purpose of this alternative mechanism. Consultation with CEQ
facilitates consistency and coordination across the government, which
can lead to greater efficiency. CEQ also can help ensure that agencies
are adequately substantiating CEs through this new mechanism.
In paragraphs (c)(3) and (c)(4), CEQ proposed to include the same
requirements for agencies to substantiate CEs and provide for
extraordinary circumstances when they establish CEs under this section
as when they establish CEs through their agency NEPA procedures
pursuant to Sec. 1507.3. Specifically, paragraph (c)(3) would require
agencies to substantiate their determinations that the category of
actions covered by a CE normally will not result in significant
effects, individually or in the aggregate. Paragraph (c)(4) would
require agencies to identify extraordinary circumstances.
CEQ did not receive comments specific to paragraphs (c)(3) and
(c)(4) and adds them to the final rule as proposed. CEQ notes that
agencies have flexibility in how they identify the list of new
extraordinary circumstances. For example, agencies could rely on their
list set forth in their NEPA procedures. Or, the agency could identify
a list specific to the CEs established under paragraph (c). Agencies
also could do a combination of both. CEQ also notes that while agencies
would need to satisfy the requirements in paragraphs (c)(3) and (c)(4)
in a manner consistent with the establishment of CEs under Sec.
1507.3, agencies could document their compliance with these
requirements in the relevant programmatic or planning documents.
[[Page 35473]]
In paragraph (c)(5), CEQ proposed to direct agencies to establish a
process for determining that a CE applies to a specific action in the
absence of extraordinary circumstances or determine the CE still
applies notwithstanding the presence of extraordinary circumstances.
Finally, in paragraph (c)(6), CEQ proposed to direct agencies to
maintain a list of all such CEs on their websites, similar to the
requirement for agencies to publish CEs established in their agency
NEPA procedures consistent with Sec. Sec. 1507.3(b)(2) and 1507.4(a).
One commenter asserted that requiring agencies to publish a list of
all CEs established pursuant paragraph (c) on an agency's website
defeats the purpose of having an alternative mechanism for establishing
CEs outside of an agency's NEPA procedures. CEQ adds paragraphs (c)(6)
as proposed. CEQ disagrees that providing transparency on a website is
burdensome or will affect the efficiency of the alternative process for
establishing CEs. Agency websites should clearly link the CEs
established pursuant to Sec. 1504.1(c) to their underlying
programmatic or planning documents. Additionally, where they determine
it is efficient and helpful to do so, agencies may incorporate CEs
established through these mechanisms into their agency NEPA procedures
during a subsequent revision. Irrespective of whether agencies do this,
CEQ encourages agencies to list all agency CEs in one location,
regardless of how the agency established the CE, so that the public can
easily access the full list of an agency's CEs.
Ninth, CEQ proposed new paragraphs (d) and (d)(1) through (d)(4) to
identify a list of examples of features agencies may want to consider
including when establishing CEs, regardless of what mechanism they use
to do so. In paragraph (d)(1), CEQ proposed to specifically allow for
CEs that cover specific geographic areas or areas that share common
characteristics, such as a specific habitat type for a given species.
CEQ did not receive any comments specific to this proposal and adds
paragraphs (d) and (d)(1) to the final rule.
To promote experimentation and evaluation, CEQ proposed in
paragraph (d)(2) to indicate that agencies may establish CEs for
limited durations. CEQ did not receive any comments specific to this
proposal and adds paragraph (d)(2) to the final rule. Agencies may
establish CEs for limited durations when doing so will enable them to
narrow the scope of analysis necessary to substantiate that a class of
activities normally will not have a significant environmental effect
where uncertainty exists about changes to the environment that may
occur later in time that could affect the analysis or where an agency
anticipates that the frequency of actions covered by a CE may increase
in the future. As with all CEs, agencies should review their continued
validity periodically, consistent with the CE review timeframe in Sec.
1507.3(c)(9). Once the limited duration threshold is met, agencies may
either consider the CE expired, conduct additional analysis to create a
permanent CE, or reissue the CE for a new period if they can adequately
substantiate the reissued CE.
CEQ proposed in paragraph (d)(3) to provide that a CE may include
mitigation measures to address potential significant effects. The
proposed rule explained that a CE that includes mitigation is different
than an agency modifying an action to avoid an extraordinary
circumstance that would otherwise require preparation of an EA or EIS.
Numerous commenters interpreted proposed paragraph (d)(3) to allow
``mitigated CEs,'' and commenters expressed both support and opposition
for the proposed provision. Supportive commenters asserted that
mitigated CEs can provide efficiencies to agencies. Commenters opposed
to the provision expressed concern that this would allow agencies to
provide compensatory mitigation for impacts of CEs and asserted the
provision violates a bedrock principle of NEPA that an agency may not
weigh beneficial effects against adverse effects to determine that an
action's effects on a whole are not significant. Some commenters
objected to the proposal that mitigation included as part of a CE must
be legally binding, enforceable, and subject to monitoring.
CEQ includes paragraph (d)(3) as proposed. This provision provides
for a CE that includes mitigation measures integrated into the category
of action itself, which agencies would adopt through a public comment
process, and does not enable mitigation that is identified after the
fact or on a case-by-case basis. Where an agency establishes a CE for a
category of activities that include mitigation measures, agencies would
implement the activities covered by the CE as well as the mitigation
incorporated into those activities as described in the text of CE. This
provision would enable agencies to incorporate mitigation as part of
the category of action covered by a CE. The potential to integrate
compensatory mitigation into a CE does not authorize weighing
beneficial and adverse effects, just as agencies may not weigh
beneficial effects against adverse effects to determine significance of
a proposed action. Rather, a CE may incorporate compensatory mitigation
requirements as part of the action to ensure that an environmental
effect is not significant. For example, in appropriate circumstances an
agency might conclude that a category of activity that results in
degradation of five acres of habitat will not ordinarily have
significant effects where five acres of equivalent habitat are
effectively restored or conserved elsewhere within that same geographic
location. As another example, a CE might cover a category of activities
that result in releasing a certain volume of sediment into a waterway
if measures were taken to reduce sediment into the waterway from other
sources. In establishing a CE that incorporates a mitigation measure,
the agency would need to determine that implementation of the
mitigation measure will mean that the category of activities will not
normally have a significant effect. Where an agency establishes a CE
with a mitigation requirement, the agency would need to include such
mitigation in their proposed actions in order for the CE to apply.
In paragraph (d)(4), CEQ proposed to provide that agencies can
include criteria for when a CE might expire such that, if such criteria
occur, the agency could no longer apply that CE. For example, an agency
could establish a CE for certain activities up to a threshold, such as
a specified number of acres or occurrences. Once the applications of
the CE met the threshold, the agency could no longer use the CE.
Similarly, an agency might set an expiration date or threshold where
the agency can substantiate that a category of activities will not have
a significant effect up to a certain number of applications of the CE,
but beyond that point there is uncertainty or analytic difficulty
determining whether application of the CE would have significant
effects. Adopting CEs of this type may significantly reduce the
difficulty substantiating a CE and therefore, may promote more
efficient and appropriate establishment of CEs in certain
circumstances.
Some commenters requested that the criteria to cause a CE to expire
be mandatory while another commenter asserted the expiration criteria
would undermine the use of the CEs. CEQ includes paragraph (d)(4) as
proposed in the final rule and notes that this provision is merely an
example of a type of feature that can be incorporated into a CE. In
establishing the CE, agencies
[[Page 35474]]
would determine whether the criteria were mandatory.
Finally, CEQ proposed to add paragraph (e) to implement the process
for adoption and use of another agency's CE consistent with section 109
of NEPA. 42 U.S.C. 4336c. As discussed in section II.I.3, CEQ proposed
to strike the provision that would allow an agency to establish a
process in its agency NEPA procedures to apply a CE listed in another
agency's NEPA procedures in 40 CFR 1507.3(f)(5) (2020) and replace it
with this provision.
Numerous commenters generally opposed the concept of adopting and
using another agency's CE. A few commenters asserted that such an
allowance could be ``disastrous'' because it allows agencies to skip
full assessment of the potential environmental and socioeconomic
impacts of the proposed action required by NEPA, and it limits public
engagement.
CEQ includes paragraph (e) in the final rule because it implements
the provisions of section 109 of NEPA, which allows agencies to adopt
and apply the CEs of other agencies. 42 U.S.C. 4336c. CEQ notes that
the statutory provision only allows for agency adoption and use of CEs
established administratively by the agency, including those that
Congress directs agencies to establish administratively, but does not
permit adoption of CEs directly created by statute, for which an agency
has not evaluated whether the category of activities that fall within
the CE will not normally have significant effects. While CEQ encourages
agencies to include legislative CEs established by statute in their
NEPA procedures to provide transparency, they are not ``established''
by the agency, but rather by Congress. Therefore, this provision does
not apply to legislative CEs.
In paragraph (e)(1), CEQ proposed to require the adopting agency to
identify the proposed action or category of proposed actions that falls
within the CE. CEQ did not receive comments on this proposed paragraph
and adds it to the final rule as proposed.
In paragraph (e)(2), CEQ proposed to require the adopting agency to
consult with the agency that established the CE, consistent with the
requirement of section 109(2) of NEPA that an agency consult with ``the
agency that established the categorical exclusion.'' 42 U.S.C.
4336c(2). While some commenters opposed the consultation requirements
included in paragraph (e)(2), it is consistent with section 109(2) of
NEPA. Therefore, CEQ adds paragraph (e)(2) in the final rule with
revisions to clarify that ``the application'' refers to ``the proposed
action or category of proposed actions to which the agency intends to
apply'' the adopted CE. Consultation with the agency that established
the CE ensures that the CE is appropriate for the proposed action or
categories of action that the adopting agency is contemplating as well
as to ensure the adopting agency follows any process contemplated in
the establishing agency's procedures. Agencies structure their CEs in a
variety of manners, and it is essential that the adopting agency
comport with the establishing agency's process necessary for
appropriate application of the CE. For example, some agencies structure
their CEs to have a list of conditions or factors to consider in order
to apply the CE. Other agencies require documentation for certain CEs.
These conditions would apply to the adopting agency as well. In
contrast, procedures internal to the establishing agency and unrelated
to proper application of the CE, such as protocols for seeking legal
review or briefing agency leadership, would not.
CEQ proposed in paragraph (e)(3) to require the adopting agency to
evaluate the proposed action for extraordinary circumstances and to
incorporate the process for documenting use of the CE when
extraordinary circumstances are present but application of the CE is
still appropriate consistent with Sec. 1504.1(b)(1). One commenter
requested additional clarity on which agency's extraordinary
circumstances the adopting agency needs to consider while another
commenter asserted both agencies' extraordinary circumstances should
apply. Another commenter asserted that section 109 of NEPA does not
require the extraordinary circumstances review included in paragraph
(e)(3), and suggested the final rule include this in paragraph (e)(1).
The commenter further asserted that the cross-reference to Sec.
1501.4(b) in paragraph (e)(3) presents problems of action-specific
application.
In the final rule, CEQ swaps proposed paragraphs (e)(3) and (e)(4)
to better reflect the order in which these activities occur. CEQ
includes proposed paragraph (e)(3) at Sec. 1501.4(e)(4), adds an
introductory clause, ``[i]n applying the adopted categorical exclusion
to a proposed action,'' and removes reference to a ``category of
proposed actions'' since consideration of extraordinary circumstances
would come at the stage of application and evaluation of a particular
action, not at the adoption stage, because the purpose of assessing for
extraordinary circumstances is to determine whether a particular action
normally covered by a CE requires preparation of an EA or EIS.
CEQ declines to specify which agency's extraordinary circumstances
apply in this paragraph and instead adds language to Sec. 1501.4(e)(3)
(proposed paragraph (e)(4)) to require agencies to explain the process
the agency will use to evaluate for extraordinary circumstances. When
the agencies consult regarding the appropriateness of the CE consistent
with paragraph (e)(2), the agencies should discuss how the adopting
agency will review for extraordinary circumstances (e.g., whether the
adopting agency will apply the establishing agency's extraordinary
circumstances exclusively or both agencies' provisions), taking into
account how each agency's NEPA procedures define and require
consideration of extraordinary circumstances. The adopting agency
should then explain how it will address extraordinary circumstances in
its notification under Sec. 1501.4(e)(4). CEQ expects that agencies
will follow the extraordinary circumstances process set forth in the
NEPA procedures containing the CE, but may determine it is appropriate
to also consider the extraordinary circumstances process in their own
procedures because, for example, their extraordinary circumstances
address agency-specific considerations.
In proposed paragraph (e)(4), CEQ proposed to require the adopting
agency to provide public notice of the CE it plans to use for its
proposed action or category of proposed actions. Some commenters
asserted the procedural requirements under paragraph (e)(4) are
unnecessary and could make the process more difficult. One commenter
requested the regulations clarify that public notice is not intended
for each individual project using the other agency's CE, but rather
when one agency decides to use another agency's CE. Some commenters
requested the final rule require agencies to accept public comment on
the notice. Conversely, a few commenters expressed concern that the
requirement to provide notice contemplates the potential for pre-
adoption public comment and necessitates formal comment. These latter
commenters requested CEQ clarify that formal public comment and agency
response are not required for the notice.
In the final rule, CEQ adds proposed paragraph (e)(4) at Sec.
1501.4(e)(3) because section 109(3) of NEPA requires public notice of
CE adoption. 42 U.S.C. 4336c(3). In the final rule text, CEQ uses
``public notification'' instead of ``public
[[Page 35475]]
notice'' for consistency with use of ``notification'' throughout the
rule. CEQ changes ``use'' to ``is adopting'' to clarify that this
notice is about adoption of the CE for a proposed action or category of
actions, not the application of the adopted CE to a particular proposed
action. CEQ replaces ``for'' with ``including a brief description of''
before ``the proposed action or category of proposed actions'' and adds
the clause ``to which the agency intends to apply the adopted
categorical exclusion'' to further clarify the purpose of the notice.
Then, as discussed earlier in this section, the final rule requires
that the notice specify the process for consideration of extraordinary
circumstances. CEQ notes that several agencies have already
successfully adopted other agencies' CEs and provided such notice since
the NEPA amendments were enacted.\70\ CEQ declines to add a requirement
to this paragraph to require agencies to seek comment on the adoption.
While CEQ encourages agencies to do so in appropriate cases, such as
when there is community interest in the action, the statute does not
require agencies to seek public comment on the adoption and use of
another agency's CE. Finally, CEQ adds a requirement to include a brief
description of the consultation process required by Sec. 1501.4(c)(2)
to demonstrate that this process occurred.
---------------------------------------------------------------------------
\70\ See, e.g., U.S. Dep't of Com., Adoption of Energy
Categorical Exclusions under the National Environmental Policy Act,
88 FR 64884 (Sept. 20, 2023); U.S. Dep't of Transp., Notice of
Adoption of Electric Vehicle Charging Stations Categorical Exclusion
under the National Environmental Policy Act, 88 FR 64972 (Sept. 20,
2023).
---------------------------------------------------------------------------
Lastly, in paragraph (e)(5), CEQ proposed to require the adopting
agency to publish the documentation of the application of the CE. Some
commenters opposed this proposed requirement, asserting it is not
required by NEPA and differs from the section 109(4) requirement to
document adoption of the CE, and that the requirement will only delay
projects that clearly qualify for use of a CE. 42 U.S.C. 4336c(4).
Other commenters supported the documentation requirement and requested
that paragraph (e)(5) require agencies to publish decision documents.
CEQ adds Sec. 1501.4(e)(5) in the final rule with the addition of
``adopted'' to modify ``categorical exclusion'' for clarity and
consistency with Sec. 1501.4(c)(3) and (c)(4). Paragraph (e)(5)
implements sections 109(3) and 109(4) of NEPA and reflects CEQ's
understanding that section 109(4) of NEPA describes a step that is
distinct from and occurs later than the step described in section
109(3). See 42 U.S.C. 4336c(3), (4). Section 109(3) requires agencies
to ``identify to the public the categorical exclusion that the agency
plans to use for its proposed actions,'' while section 109(4) requires
an agency to ``document adoption of the categorical exclusion.'' CEQ
reads these provisions together to be consistent with requiring both
notice of the adopting agency's adoption, which would describe the
agency's intended use, as well as actual application of the adopted CE
to proposed actions. It also furthers the purposes of NEPA to inform
the public. Additionally, providing transparency about how agencies are
using the adopted CEs will help allay commenters' concerns about this
provision because they will be made aware of what CEs agencies are
adopting and how they are using them. Therefore, agencies must prepare
such documentation each time they apply the CE to a proposed action.
Paragraph (e)(5) requires agencies to publish this determination that
the application of the CE is appropriate for the proposed action, and
that there are no extraordinary circumstances requiring preparation of
an EA or EIS, including the analysis required by Sec. 1501.4(b)(1) if
the agency determines that there is no potential for significant
effects notwithstanding those extraordinary circumstances. CEQ notes
that use of the defined term ``publish'' in Sec. 1501.4(e)(5) provides
agencies with discretion to determine the appropriate manner in which
to publish the documentation and that Sec. 1501.4(e)(5) does not
require agencies to publish any pre-decisional or deliberative
materials the agencies may use to support a determination of the
applicability of the adopted CE.
When an agency is adopting one or more CEs that it plans to use for
one or more categories of actions, it may publish a single notice of
the adoption under Sec. 1501.4(e)(3), consistent with section 109(3)
of NEPA. See 42 U.S.C. 4336c(3). However, when the agency then applies
the adopted CE to a specific action, it must document that particular
use of the CE to satisfy section 109(4) of NEPA, as reflected in Sec.
1501.4(e)(4) and (5). See 42 U.S.C. 4336c(4). Finally, agencies must
publish the documentation to provide transparency to the public
consistent with section 109(3) and (4) of NEPA.
If an adopting agency anticipates long-term use of an adopted CE,
CEQ encourages agencies to establish the CE either in their own
procedures or through the process set forth in Sec. 1501.4(c). Section
1501.4(e) can serve as an important bridge when agencies are
implementing new programs where they have not yet established relevant
CEs or when existing programs begin to undertake new categories of
actions but where other agencies have experience with similar actions
and have established a CE for those actions. In these circumstances,
the agency can immediately begin to implement the new programs or
activities after adoption of another agency's CE for similar actions
without the need to first develop its own CE to cover them.
CEQ notes that section 109 of NEPA does not provide that an agency
can modify the CE it is adopting. 42 U.S.C. 4336c. Therefore, agencies
must adopt a CE as established and cannot modify the text of the
adopted CE. However, in the public notification required by Sec.
1501.4(e)(3), agencies must describe the action or category of actions
to which they intend to apply the adopted CE and the action or category
of actions for which the CE is adopted may be narrower in scope than
the CE might otherwise encompass. If an agency later seeks to apply the
adopted CE to a different category of actions than those identified in
the prior adoption notice, the agency must further consult with the
establishing agency and provide new public notification consistent with
Sec. 1501.4(e). If the agency publishes a consolidated list of CEs on
its website, as CEQ recommends, the adopting agency should include
identification of the action or category of actions for which it has
adopted the CE with the list. If an adopting agency would prefer to
narrow or otherwise modify the text of the adopted CE, it should
instead substantiate and establish a new CE in its agency NEPA
procedures.
4. Environmental Assessments (Sec. 1501.5)
CEQ proposed to revise Sec. 1501.5 to make it consistent with
section 106(b)(2) of NEPA, which addresses when an agency must prepare
an EA, and section 107(e)(2) of NEPA, which address EA page limits. 42
U.S.C. 4336(b)(2), 4336a(e)(2). CEQ also proposed to revise Sec.
1501.5 to provide greater clarity to agencies on the requirements that
apply to the preparation of EAs and codify agency practice. CEQ
proposed edits to address what agencies must discuss in an EA, how
agencies should consider public comments they receive on draft EAs,
what page limits apply to EAs, and what other requirements in the CEQ
regulations agencies should apply to EAs.
First, regarding the contents of an EA, CEQ proposed to split
paragraph (c)(2) of 40 CFR 1501.5 (2020), requiring an EA to briefly
discuss the purpose and need for the proposed action, alternatives, and
effects, into paragraphs
[[Page 35476]]
(c)(2)(i) through (iii) to improve readability and provide a clearly
defined list of requirements for EAs. CEQ proposed this formatting
change to make it easier for the public and agencies to ascertain
whether an EA includes the necessary contents. For example, when an
agency develops an EA for a proposal involving unresolved conflicts
concerning alternative uses of available resources, section 102(2)(H)
of NEPA requires an analysis of alternatives, which will generally
require analysis of one or more reasonable alternatives, in addition to
a proposed action and no action alternative. See 42 U.S.C. 4332(2)(H).
CEQ did not receive specific comments on these proposed changes and
makes them in the final rule.
Second, CEQ proposed to move the requirement for EAs to list the
agencies and persons consulted in the development of the EA from
paragraph (c)(2) of 40 CFR 1501.5 (2020) into its own paragraph at
Sec. 1501.5(c)(3). CEQ also proposed to clarify the term ``agencies''
in this paragraph by specifying that the EA should list the Federal
agencies and State, Tribal, and local governments and agencies
consulted. CEQ did not receive specific comments on these proposed
changes and makes them in the final rule to improve readability and
improve clarity.
Third, CEQ proposed to add a new paragraph at Sec. 1501.5(c)(4) to
require each EA to include a unique identification number that can be
used for tracking purposes, which the agency would then carry forward
to all other documents related to the environmental review of the
action, including the FONSI. As discussed in section II.D.4, CEQ
proposed a comparable provision for EISs in Sec. 1502.4(e)(10). CEQ
included this proposal because identification numbers can help the
public and agencies track the progress of an EA for a specific action
as it moves through the NEPA process and may allow for more efficient
and effective use of technology such as databases.
Many commenters expressed support for the addition of these
requirements. Commenters agreed with CEQ's proposal that having a
consistent reference point to facilitate public and agency engagement
would increase transparency and accessibility and improve the public's
ability to track agency reviews and decision making. Other supportive
commenters indicated that the use of unique identification numbers
would or should promote the use of technology, such as databases by
Federal agencies, for tracking purposes and some commenters encouraged
CEQ to require agencies to use technology and databases. Commenters
also suggested that the final rule provide additional information such
as standardizing the number format or specifying which documents
require the numbering. Commenters that raised concern about the
requirement suggested that without a requirement for electronic
tracking systems, the requirement is premature and burdensome.
In this final rule, CEQ is retaining the proposed text and, in
response to comments, adding a clause to also require use of the
identification numbers in any agency databases or tracking systems.
Identification numbers can help both the public and the agencies track
the progress of an action as it moves through the NEPA process from
initiation to final decision. The use of identification numbers will
increase transparency and accountability to the public when a proposed
action is tiered from an existing analysis or when an agency adopts
another agency's NEPA analysis to support its own decision making. In
addition to the Permitting Dashboard, many agencies already have
internal or external databases and tracking systems for their
environmental review documents.\71\ While the proposed requirement
would likely result in agencies using these tracking numbers in their
systems, CEQ considers it important to add text to the final rule to
emphasize their use as agencies continue to develop new ways to provide
transparency and improve efficiency in their processes.
---------------------------------------------------------------------------
\71\ See, e.g., U.S. Forest Serv. Schedule of Proposed Actions,
https://www.fs.usda.gov/sopa/index.php.
---------------------------------------------------------------------------
CEQ agrees with commenters that additional information will be
needed for agencies to implement this provision. For example, there is
the question whether to have a government-wide system assign the unique
identification number, to use a standardized numbering format, or
whether agencies will develop their own format. However, CEQ considers
these questions best answered through instructions to agencies, which
CEQ can revise or reissue as needed, especially given the speed at
which technology advances and changes. CEQ intends to develop such
instructions following issuance of this final rule.
Fourth, to reflect current agency practice and provide the public
with a clearer understanding about potential public participation
opportunities with respect to EAs, CEQ proposed to add a new paragraph
(e) that would provide that if an agency chooses to publish a draft EA,
it must invite public comment on the draft and consider those comments
when preparing a final EA.
Numerous commenters expressed support for this proposed change.
Some commenters recommend the final rule go further to require public
comment on all EAs, with at least one commenter suggesting a 30-day
minimum comment period. Another commenter requested the regulations
require agencies to respond to comments on an EA and publish the
comments on a website, similar to the requirements for EISs.
Some commenters opposed the proposed change, asserting that it
creates the perception that publication of a draft EA for public
comment should be the default practice when in fact, agencies have
discretion not to do this. They also requested CEQ explicitly state in
the rule and preamble that there is no obligation for agencies to
publish a draft EA for comment. Other commenters emphasized discretion,
stating that because agencies already have discretion to prepare a
draft EA, they should have discretion on whether to invite public
comment on it. The commenters also expressed concern that proposed
Sec. 1501.5(e) removes agency discretion on how to manage EAs and
could prolong the development of EAs. Some commenters asserted the
language on draft EAs contradicts case law, hinders the efficiency of
the EA process, and could disincentivize agencies from publishing draft
EAs.
CEQ considered these comments and includes paragraph (e) as
proposed. CEQ considers this approach to strike the right balance
between agency discretion and ensuring that agencies consider public
comments when they choose to prepare both a draft and final EA. As the
proposed rule articulated, this provision reflects the fact that one of
the primary purposes for which agencies choose to prepare draft EAs is
to facilitate public participation. Codifying this practice enhances
the public's understanding of the NEPA process and meaningful public
engagement and does not restrict agency discretion over whether to
choose to prepare a draft EA for public comment.
CEQ declines to mandate that all EAs be made available for comment
because agencies appropriately have flexibility to determine what level
of engagement is appropriate for an EA given the specific circumstances
of a proposed action, consistent with Sec. 1501.5(f). However, in
developing EAs, agencies must involve the public, State, Tribal, and
local governments, relevant agencies, and any applicants, to the extent
practicable, in accordance with Sec. 1501.5(f). CEQ also declines to
require agencies to respond to comments and
[[Page 35477]]
publish public comments on a website. Doing so would unduly limit the
discretion of agencies to tailor the public engagement process for EAs
to the specific circumstances of a proposed action, which could include
responding to comments or publishing them on a website though the
regulations do not require it. Adding such requirements instead of
leaving it to agency discretion could disincentivize agencies from
publishing draft EAs due to concerns about the burden of responding to
voluminous comments.
Fifth, CEQ proposed to redesignate paragraphs (e) and (f) of 40 CFR
1501.5 (2020) as Sec. 1501.5(f) and (g) respectively. CEQ makes these
changes in the final rule.
Sixth, CEQ proposed to revise paragraph (g) addressing page limits
to dispense with the requirement for senior agency official approval to
exceed 75 pages, not including any citations or appendices, for
consistency with section 107(e)(2) of NEPA. 42 U.S.C. 4336a(e)(2). CEQ
did not receive any comments on this proposed change and makes this
change in the final rule.
Seventh, CEQ proposed to add paragraph (h) to clarify that agencies
may reevaluate or supplement an EA if a major Federal action remains to
occur and the agency considers it appropriate to do so. Proposed
paragraph (h) also provided that agencies may reevaluate an EA or
otherwise document a finding that changes to the proposed action or new
circumstances or information relevant to environmental concerns are not
substantial, or the underlying assumptions of the analysis remain
valid. CEQ proposed to add this language to clarify that an agency may
apply the provisions at Sec. 1502.9 regarding supplemental EISs to a
supplemental EA to improve efficiency and effectiveness.
A few commenters expressed that supplemental EAs should consider
whether the effects analysis still supports a FONSI rather than merely
addressing underlying assumptions. Some commenters interpreted the
supplementation and reevaluation language to allow an agency to change
its finding after it issued the FONSI.
In the final rule, CEQ includes Sec. 1501.5(h) to address
supplementation and reevaluation, but revises it from the proposal to
address concerns raised by the commenters about potential confusion.
The final rule divides supplementation and revaluation into
subparagraphs and incorporates the same supplementation standard as
Sec. 1502.9. Paragraph (h)(1) provides that agencies ``should''
supplement EAs rather than ``may'' as proposed. CEQ uses ``should'' in
the final rule because there may be instances where an agency
determines that supplementation is appropriate because the changes to
the proposed action or new information indicate the potential for
significant effects, and in such instances, agencies should supplement
their analysis if an action remains to occur and is therefore
incomplete or ongoing. As discussed in section II.D.8, CEQ replaces
``remains to occur'' with ``incomplete or ongoing'' to more clearly
describe the standard for supplementation, and CEQ uses this same
phrasing in Sec. 1501.5(h)(1).
In Sec. 1501.5(h)(1)(i) and (ii), the final rule includes the same
criteria for supplementation as in Sec. 1502.9(d)(i) and (ii) with an
additional clause at the end of (h)(ii) to clarify the meaning in the
case of EAs. CEQ includes ``to determine whether to prepare a finding
of no significant impact or an environmental impact statement'' at the
end of paragraph (h)(ii) to clarify what ``that bear on the analysis''
means in the context of an EA. After considering the comments, CEQ
determined that it should not create a different supplementation
standard for EAs from EISs since the purpose of supplementation is to
address circumstances where the analysis upon which the agency based
its decision has changed and there is potential for new significant
effects. Aligning the standards for EISs and EAs will also reduce the
complexity of the NEPA regulations and the environmental review
process.
To further align this provision with Sec. 1502.9, CEQ adds in
Sec. 1501.5(h)(2) the same text in Sec. 1502.9 to state that agencies
may prepare supplements when the agency determines the purposes of NEPA
will be furthered in doing so. CEQ includes this paragraph for
consistency with EISs and to make clear that agencies have such
discretion.
Two commenters requested CEQ revise paragraph (h) to clarify that
new circumstances or information in the absence of remaining
discretionary approval involving a major Federal action do not trigger
a requirement to reevaluate or supplement an EA. The commenters stated
the proposed text could be interpreted to suggest that agencies are
obligated to reevaluate an EA whenever new circumstances or information
arise. While the proposed qualifier that ``an action remains to
occur,'' would address the commenters' concerns, as noted in this
section, the final rule clarifies that ``remains to occur'' means when
an action is incomplete or ongoing, which is consistent with Sec.
1502.9 as well as longstanding case law that makes clear that there
must be an incomplete or ongoing action in order for reevaluation or
supplementation to be necessary.
Some commenters expressed that paragraph (h) would result in the
public and project sponsor not having certainty on the whole of the
administrative record. These commenters requested the regulations
require an agency to rescind the FONSI until a new one is reached;
another commenter similarly requested CEQ add a paragraph on rescission
of FONSIs. CEQ declines to require agencies to rescind a FONSI while a
reevaluation or supplemental EA is ongoing because these processes are
intended to inform whether a FONSI remains valid. If an agency prepares
a supplemental EA, it will determine whether it is necessary to revise
or issue a new FONSI or whether the existing FONSI remains valid based
on the outcome of the supplemental analysis.
In the final rule, CEQ addresses reevaluation in its own paragraph,
consistent with Sec. 1502.9, by adding Sec. 1501.5(i) to provide that
an agency may use a reevaluation to document its consideration of
changes to the proposed action or new information and its determination
that supplementation is not required. For example, a reevaluation can
be a short memo describing a change in project design that briefly
explains why that change does not change the analysis conducted in the
EA in a manner that warrants supplementation.
Finally, CEQ proposed to clarify which provisions applicable to
EISs agencies should or may apply to EAs. CEQ proposed to replace
paragraph (g) of 40 CFR 1501.5 (2020), listing the provisions for
incomplete or unavailable information, methodology and scientific
accuracy, and environmental review and consultation requirements, with
proposed new paragraphs (i) and (j). CEQ proposed in paragraph (i) to
clarify that agencies generally should apply the provisions of Sec.
1502.21 regarding incomplete or unavailable information and Sec.
1502.23 regarding scientific accuracy. CEQ proposed to revise these
from ``may apply'' to ``should apply'' because CEQ considers it
important to disclose where information is incomplete or unavailable
and ensure scientific accuracy for all levels of NEPA review, not just
EISs.
CEQ proposed in paragraph (j) that agencies may apply the other
provisions of parts 1502 and 1503 as appropriate to improve efficiency
and effectiveness of EAs. The proposed list included example provisions
where this might be the case--scoping (Sec. 1502.4), cost-benefit
analysis (Sec. 1502.22), environmental review and consultation
[[Page 35478]]
requirements (Sec. 1502.24), and response to comments (Sec. 1503.4).
Various commenters asked for clarity regarding proposed Sec. Sec.
1501.5(i) and (j), expressing confusion on the difference between
``generally should apply'' and ``may apply.'' Some commenters requested
the final rule require application of Sec. Sec. 1502.4, 1502.21,
1502.22, 1502.23, 1502.24, and 1503.4 to EAs.
In the final rule, CEQ adds proposed paragraph (i) at Sec.
1501.5(j) but only references Sec. 1502.21 regarding incomplete and
unavailable information because CEQ has moved 40 CFR 1502.23 (2020),
which is applicable to environmental documents, including EAs, to Sec.
1506.6 as discussed in sections II.D.18 and II.H.4. CEQ retains
``generally should'' in the final rule. While CEQ encourages agencies
to follow Sec. 1502.21, CEQ retains the ``generally'' qualifier to
acknowledge that there may be some circumstances where the section does
not or should not apply. Additionally, because EAs can include
significant effects that an agency mitigates to reach a FONSI, it is
important that agencies apply Sec. 1502.21 in such cases. CEQ also
adds proposed paragraph (j) at Sec. 1501.5(k), consistent with the
proposal, to encourage agencies to apply the provisions of parts 1502
and 1503 where it will improve the efficiency and effectiveness of an
EA.
Some commenters provided general comments on EAs. Some commenters
requested the final rule add more requirements to align with EISs,
including requiring agencies to consider the same scope of effects as
those considered in an EIS; to provide decision makers with a summary
and comparison of effects; and to consider alternatives to address
adverse environmental effects. Other commenters argued generally that
the proposed changes to Sec. 1501.5 would result in EAs looking more
like EISs, which is contrary to goal of an efficient process.
CEQ declines to make additional changes to Sec. 1501.5. As
discussed in this section, CEQ concluded that Sec. 1501.5 strikes the
right balance to ensure agencies preparing an EA conduct an appropriate
and efficient review without imposing unnecessary requirements that
would mirror an EIS or result in a less efficient process.
5. Findings of No Significant Impact (Sec. 1501.6)
CEQ proposed two revisions to Sec. 1501.6 on findings of no
significant impact (FONSIs) to clarify the 2020 rule's codification of
the longstanding agency practice of relying on mitigated FONSIs in
circumstances where the agency incorporates mitigation into the action
to reduce its effects below significance. Mitigated FONSIs are an
important efficiency tool for NEPA compliance because they expand the
circumstances in which an agency may prepare an EA and reach a FONSI,
rather than preparing an EIS, consistent with the requirements of NEPA.
CEQ proposed to revise paragraph (a), which provides that an agency
must prepare a FONSI if it determines, based on an EA, not to prepare
an EIS because the action will not have significant effects. At the end
of paragraph (a), CEQ proposed to clarify that agencies can prepare a
mitigated FONSI if the action will include mitigation to avoid the
significant effects that would otherwise occur or minimize or
compensate for them to the point that the effects are not significant.
The proposed rule noted that so long as the agency can conclude that
effects will be insignificant in light of mitigation, the agency can
issue a mitigated FONSI. The proposed rule noted this change improved
consistency with the language in Sec. 1501.6(c) and aligns with CEQ's
guidance on appropriate use of mitigation, monitoring, and mitigated
FONSIs.\72\
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\72\ CEQ, Mitigation Guidance, supra note 10.
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Numerous commenters supported proposed Sec. 1501.6(a), viewing the
proposed changes as consistent with agency practice and longstanding
CEQ guidance as well as promoting efficiency in the NEPA process. In
contrast, multiple commenters opposed the proposed changes and raised
concerns that use of mitigated FONSIs would reduce opportunities for
public participation and allow agencies to trade off different kinds of
environmental effects to rely on a net benefit outcome to arrive at a
FONSI.
In the final rule, CEQ revises paragraph (a) with additional, non-
substantive edits for clarity, including subdividing paragraph (a) into
subparagraphs. In paragraph (a), CEQ adds an introductory clause to
make clear that an agency prepares a FONSI after completing an EA. In
paragraph (a)(1), CEQ revises the text to clarify that an agency
prepares a FONSI when it determines that NEPA does not require
preparation of an EIS because the proposed action will not have
significant effects. In paragraph (a)(2), CEQ also repeats the clause
``if the agency determines, based on the environmental assessment, that
NEPA does not require preparation of an environmental impact
statement'' after mitigated FONSI to make clear that a mitigated FONSI
is also based on the EA. Finally, CEQ adds a new paragraph (a)(3) to
clarify that an agency must prepare an EIS following an EA if the
agency determines that the action will have significant effects.
CEQ has long recognized in guidance that agencies may use
mitigation to reduce the anticipated adverse effects of a proposed
action below the level of significance, resulting in a FONSI. CEQ
agrees that mitigated FONSIs promote efficiency, and the final rule
includes safeguards to ensure that agencies will only use mitigated
FONSIs when they can reasonably conclude that the mitigation measures
will occur. Regarding opportunities for public engagement, the final
rule supports public engagement in the EA process, consistent with
Sec. 1501.9.
CEQ disagrees that the use of a mitigated FONSI allows agencies to
trade off different kinds of environmental effects and rely on a net
benefit outcome to arrive at a FONSI. The CEQ regulations have never
allowed agencies to use a net benefit analysis across environmental
effects to inform the level of review. Instead, agencies must consider
each type of effect or affected resources separately when determining
whether a proposed action would have a significant effect. Therefore,
an agency could not rely upon mitigation focused on one type of effect
to arrive at a FONSI if the proposed action would nonetheless have a
significant adverse effect of a different kind or on a different
resource. A mitigated FONSI only enables an agency, consistent with
existing practice, to determine that an effect is not significant in
light of mitigation.
To accommodate the changes to paragraph (a), in the final rule, CEQ
redesignates paragraphs (a)(1), (a)(2), and (b) of 40 CFR 1501.6 (2020)
as Sec. 1501.6(b)(1), (b)(2), and (c), respectively. CEQ also makes a
non-substantive, clarifying change to Sec. 1501.6(b)(2) to simplify
the language from ``makes its final determination'' to ``determines.''
Next, CEQ proposed to revise proposed Sec. 1501.6(c) addressing
what an agency must include in a FONSI regarding mitigation. The second
sentence provides that when an agency relies on mitigation to reach a
FONSI, the mitigated FONSI must state the enforceable mitigation
requirements or commitments that will be undertaken to avoid
significant effects. CEQ proposed to strike the last clause, ``to avoid
significant impacts'' at the end of the second sentence and replace
that phrase with a requirement for the FONSI to state the authorities
for the enforceable mitigation requirements or
[[Page 35479]]
commitments, since they must be enforceable for agencies to reach a
mitigated FONSI. CEQ proposed this change because, where a proposed
action evaluated in an EA may have significant effects, and an agency
is not preparing an EIS, the FONSI must include mitigation of the
significant effects. CEQ also proposed to add examples of enforcement
authorities including ``permit conditions, agreements, or other
measures.''
Commenters were generally supportive of proposed Sec. 1501.6(c). A
few commenters opposed the proposed changes or questioned CEQ's
authority to include them in the regulations. As discussed in sections
II.I.1 and II.I.2 on Sec. Sec. 1505.2(c) and 1505.3(c), the rule
reinforces the integrity of environmental reviews by ensuring that if
an agency assumes as part of its analysis that mitigation will occur
and will be effective, the agency takes steps to ensure that the
assumption is correct. In the final rule, which redesignates proposed
paragraph (c) as Sec. 1501.6(d), CEQ strikes the phrase ``to avoid
significant impacts,'' as proposed, from the end of the second sentence
and replaces it with the clause ``and the authority to enforce them''
such that the sentence requires agencies to both state the enforceable
mitigation requirements or commitments and the authority to enforce
those commitments when the agency finds no significant effects based on
mitigation. Next, the sentence includes a list of examples of such
commitments and authorities. The final rule includes more specificity
than the proposed rule, to include ``terms and conditions or other
measures in a relevant permit, incidental take statement, or other
agreement.''
Finally, as discussed further in section II.G.2, CEQ proposed to
add a new sentence at the end of paragraph (c) to require agencies to
prepare a monitoring and compliance plan when the EA relies on
mitigation as a component of the proposed action, consistent with Sec.
1505.3(c). CEQ proposed these changes to help effectuate NEPA's purpose
as articulated in section 101, including to ``attain the widest range
of beneficial uses of the environment without degradation, risk to
health or safety, or other undesirable and unintended consequences''
and to ``preserve important historic, cultural, and natural aspects of
our national heritage.'' 42 U.S.C. 4331(b).
For the reasons discussed in section II.G.2, CEQ adds this
requirement in the final rule in Sec. 1501.6(d). Specifically, the
final rule requires agencies to prepare a mitigation and compliance
plan for the enforceable mitigation and any other mitigation required
by Sec. 1505.3(c) to ensure that if an agency assumes as part of its
analysis that mitigation will occur and will be effective, the agency
takes steps to ensure that the assumption is correct.
6. Lead Agency (Sec. 1501.7)
CEQ proposed several changes to Sec. 1501.7, which addresses the
responsibilities of lead agencies. First, CEQ proposed to retitle Sec.
1501.7 from ``Lead agencies'' to ``Lead agency'' to align with section
107(a) of NEPA. 42 U.S.C. 4336a(a). CEQ did not receive comments
specific to the section title and makes this change in the final rule.
Second, in paragraph (a) of Sec. 1501.7, CEQ proposed to eliminate
the reference to ``complex'' EAs so that the regulations would require
a lead agency to supervise the preparation of any EIS or EA for an
action or group of actions involving more than one Federal agency. The
2020 rule added the concept of complex EAs to this section without
defining the term. CEQ invited comment on whether it should retain the
concept of a complex EA in the regulations, and if so, how the
regulations should define a complex EA.
Three commenters supported removal of complex EAs arguing it was
confusing and unnecessary. A commenter suggested that if CEQ retains
the concept, the rule define it as an EA that requires reviews from
multiple Federal agencies. CEQ removes the reference to complex EAs as
unnecessary given that the provision already states that a lead agency
must supervise preparation of an EA when more than one Federal agency
is involved and the term is not used elsewhere in the rule.
Some commenters suggested that the text of proposed Sec. 1501.7(a)
was inconsistent with sections 107(a)(2) and 111(9) of NEPA, which
address the role of and define ``lead agency.'' CEQ disagrees that the
language in paragraph (a) is inconsistent. CEQ considers the
longstanding language in paragraphs (a)(1) and (a)(2) to describe the
situations where there are more than one Federal agency participating
in the environmental review process for purposes of identifying the
lead agency and therefore retains this text in the final rule.
Third, CEQ proposed to revise paragraph (b) regarding joint lead
agencies for consistency with section 107(a)(1)(B) of NEPA. 42 U.S.C.
4336a(a)(1)(B). CEQ proposed to clarify that Federal, State, Tribal, or
local agencies may serve as a joint lead agency upon invitation from
the Federal lead agency and acceptance by the invited agency,
consistent with paragraph (c). CEQ proposed to retain Federal agencies
in the list of potential joint lead agencies because, consistent with
current practice, there are circumstances in which having another
Federal agency serving as a joint lead agency will enhance efficiency.
CEQ noted in the proposed rule that it does not read the text in
section 107(a)(1)(B) of NEPA, 42 U.S.C. 4336a(a)(1)(B), as precluding
this approach; rather, Congress specified that State, Tribal, and local
agencies may serve as joint lead agencies because they are ineligible
to serve as the lead agency. CEQ also proposed to add a sentence at the
end of paragraph (b) to require joint lead agencies to fulfill the role
of a lead agency, consistent with the last sentence of section
107(a)(1)(B) of NEPA. 42 U.S.C. 4336a(a)(1)(B).
One commenter asserted CEQ's proposal was inconsistent with section
107(a)(1)(B) of NEPA. 42 U.S.C. 4336a(a)(1)(B). Other commenters
expressed concerns or asked questions about how this might work in
practice and how agencies might manage and share responsibilities. One
commenter asserted that the proposal for lead agencies to jointly
fulfill the role of a lead agency may be complicated and difficult to
implement and requested CEQ maintain the existing regulatory approach
for providing for joint lead agencies generally.
In the final rule, CEQ revises paragraph (b) as proposed, but makes
agency singular in the first sentence for consistency with the rest of
the paragraph. In general, CEQ anticipates that there will only be one
joint lead agency but does not intend the regulations to be so
restrictive. While section 107(a)(1)(B) does not specifically refer to
Federal agencies, it makes clear that there is one lead agency when
there is more than one Federal agency, but it is silent as to what role
the other Federal agency or agencies will fulfill. 42 U.S.C.
4336a(a)(1)(B). Therefore, CEQ is clarifying in the final rule that
other Federal agencies may serve as joint lead agencies or cooperating
agencies. With respect to the questions about how agencies manage and
share responsibilities, CEQ notes that the provision for joint lead
agencies has been in the regulations since 1978, and agencies have a
great deal of experience in implementing these provisions. Sometimes
agencies will engage in an MOU or otherwise outline their respective
roles and responsibilities. CEQ encourages this as a best practice to
facilitate an efficient process, and agencies should consider using the
letter or memorandum required by
[[Page 35480]]
Sec. 1501.7(c) to set out their roles and responsibilities.
Fourth, CEQ proposed to revise paragraph (c) for consistency with
section 107(a)(1) of NEPA to clarify that the participating Federal
agencies must determine which agency will be the lead agency and any
joint lead agencies, and that the lead agency determines any
cooperating agencies. 42 U.S.C. 4336a(a)(1). CEQ also proposed this
change for consistency with the text in Sec. 1506.2(c) on joint EISs.
One commenter interpreted paragraph (c) to mean that the factors
listed in paragraphs (c)(1) through (c)(5) apply only if there is
disagreement among participating agencies on which agency should be the
lead agency and asserted this interpretation is inconsistent with
section 107(a)(1)(A) of NEPA. 42 U.S.C. 4336a(a)(1)(A). CEQ did not
intend this interpretation. Therefore, in the final rule, for clarity
and greater consistency with the statute, CEQ adds the clause
``considering the factors in paragraphs (c)(1) through (c)(5)'' to the
first sentence in paragraph (c) to clarify that participating Federal
agencies should consider these factors in determining which agency
should serve as the lead agency.
One commenter suggested that proposed paragraphs (b) and (c) might
create confusion between agencies and a project proponent regarding
which agency is ultimately the lead agency for the NEPA review, is
responsible for meeting timeframes and deadlines, and serves as the
contact for the project proponent.
In the final rule, CEQ revises the first sentence of paragraph (c)
for additional clarity by moving the reference to joint lead agencies
to the end. Consistent with this provision, participating Federal
agencies will first determine which agency will serve as the lead
agency. Then, the lead agency will determine which agencies will serve
as joint lead or cooperating agencies. While agencies are in the best
position to communicate with applicants about responsibilities and
appropriate points of contact, the language in paragraphs (b) and (c)
make clear that the lead agency is ultimately responsible, though it
may share responsibilities with a joint lead agency if the
participating agencies designate one. Further, Sec. 1501.10(a) sets
forth the provisions on setting deadlines and schedules and Sec.
1500.5(g) indicates that all agencies are responsible for meeting
deadlines.
Fifth, in paragraph (d), CEQ proposed to revise the text for
consistency with section 107(a)(4) of NEPA, which allows any Federal,
State, Tribal, or local agency or a person that is substantially
affected by a lack of lead agency designation to submit a request for
designation to a participating Federal agency. 42 U.S.C. 4336a(a)(4).
CEQ also proposed to add a requirement for the receiving agency to
provide a copy of such a request to CEQ consistent with the statute.
Finally, CEQ proposed to make a non-substantive change to replace the
phrase ``private person'' with the word ``individual'' for consistency
with this term's use in other sections of the regulations.
Sixth, in paragraph (e), which addresses what happens if Federal
agencies are unable to agree which agency will serve as the lead
agency, CEQ proposed to revise the text for consistency with section
107(a)(5) of NEPA, clarify that the 45 days is calculated from the date
of the written request to the senior agency officials as set forth in
Sec. 1501.7(d), and replace ``persons'' with ``individuals'' for
consistency with the rest of regulations. 42 U.S.C. 4336a(a)(5).
A commenter stated that the change of ``person'' to ``individual''
is inconsistent with sections 107(a)(4) and (a)(5)(A) of NEPA. 42
U.S.C. 4336a(a)(4), 4336a(a)(5)(A). While CEQ does not view this as a
substantive change, in the final rule, CEQ revises references to
``individual'' or ``private person'' to ``person'' throughout the
regulations for consistency with the recent amendments to NEPA,
including in Sec. 1501.7(d) and (e), and to avoid using the word
``person'' and the word ``individual'' in different sections of the
regulations where the same meaning is intended. Otherwise, CEQ makes
the changes to paragraph (d) and (e) as proposed.
Seventh, in paragraph (f), CEQ proposed to revise the text for
consistency with section 107(a)(5)(C) and (a)(5)(D) of NEPA, to change
``within 20 days'' to ``no later than 20 days'' in the first sentence,
and ``20 days'' to ``40 days'' and ``determine'' to ``designate'' in
the second sentence. 42 U.S.C. 4336a(a)(5)(C)-(D). CEQ did not receive
any comments to this specific proposal and revises paragraph (f) as
proposed in the final rule except that the final rule strikes ``and all
responses to it'' to clarify that the 40-day deadline for CEQ to
designate a lead agency runs from the date of request. This change is
consistent with section 107(a)(5)(D) which requires that CEQ designate
the lead agency ``[n]ot later than 40 days after the date of the
submission of a request.'' 42 U.S.C. 4336a(a)(5)(D).
Eighth, CEQ proposed minor edits to paragraph (g), which addresses
joint environmental documents, including EISs, RODs, EAs, and FONSIs.
While section 107(b) of NEPA addresses joint EISs, EAs, and FONSIs,
which are defined collectively as an ``environmental document'' in
section 111(5) of NEPA, the statute does not explicitly address joint
RODs. 42 U.S.C. 4336a(b); 4336e(5). Because joint RODs can in some
circumstances be inefficient, CEQ proposed to revise Sec. 1501.7(g) to
add a caveat that agencies must issue joint RODs except where it is
``inappropriate or inefficient'' to do so, such as when an agency has a
separate statutory directive, or it would take significantly longer to
issue a joint ROD than separate ones. Additionally, for consistency
with Sec. 1501.5, CEQ proposed to add that agencies can jointly
determine to prepare an EIS if a FONSI is inappropriate.
Commenters generally supported CEQ's proposal. Some commenters
recommended CEQ expand the inappropriate or inefficient exception to
EISs, EAs, and FONSIs. Another comment suggested the regulations
require agencies to document their rationale for not preparing a joint
document.
CEQ finalizes Sec. 1501.7(g) as proposed with minor, non-
substantive clarifying edits. CEQ is not applying the inappropriate or
inefficient exception to EISs, EAs, and FONSIs because section 107(b)
of NEPA directs agencies to prepare joint EISs, EAs, and FONSIs ``to
the extent practicable.'' 42 U.S.C. 4336a(b). With respect to RODs, CEQ
includes the inappropriate or inefficient exception in the final rule
text in recognition that, in some cases, requiring a joint ROD could
inadvertently slow the NEPA process down, and the exclusion of RODs
from section 107(b) of NEPA makes it appropriate to apply a tailored
standard to joint RODs. See 42 U.S.C. 4336a(b). For example, agencies
may have different procedures for issuing authorizations under their
applicable legal authorities or may need to consider different factors.
However, in other cases, a joint ROD could improve efficiency by
avoiding duplication of effort or analysis. Agencies collaborating on a
NEPA document for a specific action are in the best position to
identify when a joint ROD is not appropriate for that particular
action.
Lastly, in paragraph (h)(2), CEQ proposed to add a clause to the
beginning of the paragraph, consistent with section 107(a)(2)(C) of
NEPA, to require the lead agency to give consideration to a cooperating
agency's analyses and proposals. 42 U.S.C. 4336a(a)(2)(C). CEQ proposed
to move the qualifier clause--to the extent practicable--to precede the
existing
[[Page 35481]]
requirement to use the environmental analysis and information provided
by cooperating agencies. CEQ proposed this move to clarify that this
qualifier only modifies the second clause. CEQ also proposed to change
``proposals'' to ``information'' to make the text consistent with Sec.
1501.8(b)(3) and because the use of ``proposal'' here was inconsistent
with the definition of ``proposal'' provided in Sec. 1508.1(ff).
Finally, because the reference to jurisdiction by law or special
expertise was unnecessarily redundant given that the definition of
``cooperating agency'' in Sec. 1508.1(g) incorporates those phrases,
CEQ proposed to remove them from the sentence.
One commenter asserted that proposed Sec. 1501.7(h)(2)
unnecessarily conflicts with section 107(a)(2)(C) of NEPA, 42 U.S.C.
4336a(a)(2)(C), and is inconsistent with proposed Sec. Sec.
1501.8(b)(3), 1508.1(e), and 1508.1(dd). Another commenter opposed the
changes to paragraph (h)(2) and requested CEQ retain the existing
language. The commenter asserted that the existing text provides a
clear statement that agencies should use information and analyses
provided by cooperating agencies to the maximum extent practicable and
that the proposed changes remove this clarity. As a result, the
commenter opined that for cooperating agencies, it will be unclear on
what qualifies as an analysis or proposal for consideration and what
qualifies as information.
In the final rule, CEQ makes the changes as proposed but retains
``proposal'' in the second clause because, upon further consideration,
CEQ has determined removing ``proposal'' could introduce unnecessary
confusion and potential delay, particularly because both the 1978
regulations and the 2020 regulations treated proposals in the same
manner as environmental analysis for purposes of this provision, and
agencies have not raised concerns that the inclusion of proposals
creates challenges for lead agencies. CEQ retains the qualifier ``to
the maximum extent practicable,'' which CEQ views as striking the right
balance between ensuring that the lead agency uses the environmental
analysis, proposal, and information provided by cooperating agencies
and providing the lead agency with flexibility in determining the
content of a document. CEQ disagrees that this provision is in conflict
with Sec. 1501.8(b)(3), which merely states the requirement for
cooperating agencies to assist with developing information and analyses
for NEPA documents; it does not address the lead agency's role in
considering or using that content. CEQ similarly does not see a
conflict with the definitions of ``cooperating agency'' and
``proposal'' and the commenter who asserted that a conflict exists did
not explain the conflict. Finally, CEQ disagrees that this provision
conflicts with section 107(a)(2)(C) of NEPA; the provision incorporates
the text of the statute and goes beyond it to require lead agencies to
use the information in their documents to the maximum extent
practicable. 42 U.S.C. 4336a(a)(2)(C).
Other commenters requested CEQ add a requirement for lead agencies
to document how and to what extent they have considered the studies,
analyses, and other information provided by cooperating agencies. CEQ
declines to add this requirement as unnecessary and burdensome. In most
cases, lead and cooperating agencies can address these issues
informally and disclosure of this informal process is unnecessary for
the decision maker to make an informed decision and documenting them
would consume agency resources and could lead to a more formalized and
less collaborative process between the agencies.
CEQ did not propose edits to paragraph (h)(4) requiring the lead
agency to determine the purpose and need, and alternatives in
consultation with any cooperating agency. One commenter recommended the
final rule add ``with ultimate authority to finalize the purpose and
need and alternatives resting with the lead agency'' to the end of this
paragraph. CEQ declines to make this change. While the lead agency has
ultimate responsibility, in order for documents to address the
decisions of all agencies with jurisdiction by law and therefore result
in an efficient review and decision-making process, the cooperating
agency must have a consultative role. CEQ encourages agencies to
collaborate early on purpose and need and alternatives to resolve any
disputes early in the process and ensure the document will meet the
needs of all agencies relying on the documents for their actions.
As discussed further in section II.C.8, CEQ proposed to move the
requirements for schedules and milestones in paragraphs (i) and (j) of
40 CFR 1501.7 (2020) to Sec. 1501.10(c) in order to consolidate
provisions related to deadlines, schedules, and milestones in one
section. CEQ makes this change in the final rule as discussed further
in section II.C.9.
7. Cooperating Agencies (Sec. 1501.8)
CEQ proposed an addition to paragraph (a) of Sec. 1501.8 to
clarify the meaning of the phrase ``special expertise,'' which is one
of the criteria that qualifies an agency to serve as a cooperating
agency. Among other things, paragraph (a) provides that, at the request
of a lead agency, an agency with special expertise may elect to serve
as a cooperating agency. CEQ proposed to clarify in paragraph (a) that
special expertise may include Indigenous Knowledge.
While a few commenters opposed the inclusion of Indigenous
Knowledge as a form of special expertise, many commenters expressed
support. Having considered the comments, CEQ continues to view the
inclusion of Indigenous Knowledge as a form of special expertise as
appropriate and, therefore, finalizes the change to Sec. 1501.8(a) as
proposed except that CEQ removes the cross reference to Sec. 1507.3(e)
because this provision does not address the appeals procedures for
cooperating agencies. This addition of Indigenous Knowledge as a form
of special expertise helps ensure that Federal agencies respect and
benefit from the unique knowledge that Tribal governments bring to the
environmental review process.
CEQ invited comment on whether it should include a definition of
``Indigenous Knowledge'' in the regulations. CEQ received a range of
comments on this question. Some commenters opposed a definition, and
several commenters suggested a range of diverse definitions. Other
commenters recommended CEQ engage in Tribal consultation on the
definition, CEQ held two Tribal consultations on the rule but a
consensus view on a definition did not emerge from those consultations.
CEQ has determined not to define ``Indigenous Knowledge'' in this
rulemaking. The comments CEQ received did not provide an adequate basis
for CEQ to determine that providing a definition in the regulations
would be workable across contexts and Tribal Nations. CEQ, therefore,
considers it appropriate for agencies to have flexibility to approach
Indigenous Knowledge in a fashion that makes sense for their programs
and the Tribal Nations with which they work. Agencies' implementation
of this provision may be informed by the existing approaches that some
agencies have developed to Indigenous Knowledge \73\ and the Guidance
for
[[Page 35482]]
Federal Departments and Agencies on Indigenous Knowledge that CEQ and
the Office of Science and Technology Policy issued on November 30,
2022.\74\ CEQ will consider whether additional guidance specific to the
environmental review context or a regulatory definition is needed in
the future.
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\73\ See, e.g., U.S. Dep't of the Interior, 301 Departmental
Manual 7, Departmental Responsibilities for Consideration and
Inclusion of Indigenous Knowledge in Departmental Actions and
Scientific Research (Dec. 5, 2023), https://www.doi.gov/document-library/departmental-manual/301-dm-7-departmental-responsibilities-consideration-and.
\74\ See Office of Science and Technology Policy and CEQ,
Guidance for Federal Departments and Agencies on Indigenous
Knowledge (Nov. 30, 2022), https://www.whitehouse.gov/wp-content/uploads/2022/12/OSTP-CEQ-IK-Guidance.pdf.
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A couple of commenters requested CEQ clarify what is meant by
``jurisdiction by law'' in Sec. 1501.8(a). CEQ declines to add
additional language to explain this phrase, which has been in the
regulations since 1978 and generally has been construed to mean when an
agency has a role in an action that is conferred by law. CEQ has not
heard concern from agencies that the phrase is unclear or that a lack
of definition is creating practical problems. Therefore, establishing a
definition is unnecessary and could unsettle existing agency practice
that has successfully implemented this provision.
Another commenter requested CEQ revise paragraph (a) to require the
lead agency to grant cooperating agency status if a State or local
agency has jurisdiction by law or special expertise over a project that
could impact the local agency's interest. Other commenters requested
that CEQ compel lead agencies to invite certain parties as a
cooperating agency, such as substantially affected Tribal agencies. CEQ
declines to make it a requirement for the lead agency to invite or
grant cooperating agency status to a State, Tribal, or local agency.
Section 107(a)(3) of NEPA permits but does not require lead agencies to
designate Federal, State, Tribal, or local agencies that have
jurisdiction by law or special expertise as cooperating agencies. See
42 U.S.C. 4336a(a)(3). Because agency authorities and obligations can
vary dramatically, CEQ considers it important to maintain flexibility
for the lead agency to determine on a case-by-case basis whether a
State, Tribal, or local agency should serve as a cooperating agency.
One commenter requested that CEQ extend to potential non-Federal
cooperating agencies the right to appeal to CEQ when a lead Federal
agency denies them cooperating agency status. CEQ declines to make this
change in the final rule because lead agencies are in the best position
to make a case-by-case determination of whether to invite non-Federal
agencies to be cooperating agencies. Such an appeal process could also
unduly burden CEQ and its limited resources and delay the environmental
review process.
In paragraph (b)(6) regarding consultation with the lead agency on
developing schedules, CEQ adds ``and updating'' after ``developing''
for consistency with Sec. 1501.10(a) that provides for both the
development and updates to schedules. In paragraph (b)(7), CEQ proposed
to require cooperating agencies to meet the lead agency's schedule for
providing comments, but strike the second clause requiring cooperating
agencies to limit their comments to those for which they have
jurisdiction by law or special expertise with respect to any
environmental issue. CEQ proposed this deletion to align this paragraph
with section 107(a)(3) of NEPA, which provides that a cooperating
agency may submit comments to the lead agency no later than a date
specified in the lead agency's schedule. See 42 U.S.C. 4336a(a)(3).
Some commenters recommended CEQ retain this clause to avoid
unnecessary delays and avoid disagreements amongst lead and cooperating
agencies. CEQ disagrees that this clause will necessarily avoid
disagreements amongst lead and cooperating agencies because agencies
may disagree on whether an agency's comments fall within its
jurisdiction or special expertise. Imposing this limitation on the
participation of cooperating agencies may also undermine the kind of
collaborative engagement between lead agencies and cooperating agencies
that enhances the efficiency and quality of environmental reviews. CEQ
is also concerned that retaining the clause could have unintended
consequences that could delay decision making by cooperating agencies
with jurisdiction by law. For example, if a cooperating agency
considers a document to be legally insufficient with respect to a
particular issue, this could lead the cooperating agency to develop its
own, separate NEPA document, resulting in a delay in the cooperating
agency's action and potential legal risk to the lead agency with a
different analysis. CEQ encourages cooperating agencies to identify and
seek to resolve issues as early in the process as possible.
8. Public and Governmental Engagement (Sec. 1501.9)
CEQ proposed to address public and governmental engagement in a
revised Sec. 1501.9 by moving the provisions of 40 CFR 1506.6 (2020),
``Public involvement,'' into proposed Sec. 1501.9 and updating them as
described in this section, and moving the provisions of 40 CFR 1501.9
(2020) specific to the EIS scoping process to Sec. 1502.4. CEQ
proposed these updates to better promote agency flexibility to tailor
engagement to their specific programs and actions, maintaining the
requirements to engage the public and affected parties in the NEPA
process, and thereby fostering improved public and governmental
engagement. CEQ proposed the revisions to Sec. 1501.9 to emphasize the
importance of creating an accessible and transparent NEPA process. CEQ
also proposed many of these changes in response to feedback on the
Phase 1 proposed rule, the 2020 proposed rule, and input received from
stakeholders and agencies during development of this proposed rule.
Much of that feedback requested increased opportunities for public
engagement and increased transparency about agency decision making,
along with general requests that CEQ elevate the importance of public
engagement in the NEPA process. Finally, CEQ proposed to move general
requirements related to public engagement to part 1501 to emphasize
that public engagement is important to multiple components of the NEPA
process and agency planning, while moving other provisions related to
scoping for EISs to Sec. 1502.4.
First, CEQ proposed to move the provisions of 40 CFR 1501.9 (2020)
on scoping for EISs--paragraphs (a), (b), (c), (d), (d)(1) through (8),
(f), and (f)(1) through (5)--to proposed Sec. 1502.4, ``Scoping.'' As
discussed in sections II.C.2 and II.C.10 CEQ proposed to move the
provisions in 40 CFR 1502.4 (2020) on ``Major Federal actions requiring
the preparation of environmental impact statements'' to Sec. Sec.
1501.3 and 1501.11. Also, as discussed in section II.C.2, CEQ proposed
to move the remaining text of 40 CFR 1501.9(e) and (e)(1) through (3)
(2020) on the determination of scope to Sec. 1501.3 because
determining the scope of actions applies to all levels of NEPA review.
Many commenters were supportive of CEQ's proposed approach.
Commenters expressed support for the restoration of provisions related
to early review and coordination and the proposed revisions to
Sec. Sec. 1501.9 and 1502.4 to reinforce the importance of early
public engagement designed to meet the needs of the community.
Supportive commenters characterized CEQ's proposed changes as being
more in line with the statute as well as best practice by emphasizing
the importance of initiating public outreach and planning as early as
possible. Commenters also pointed to early engagement and opportunities
for comment as trademarks of an effective
[[Page 35483]]
NEPA process that can help prevent unexpected problems and delays by
helping agencies identify potential roadblocks early, design effective
solutions when proposals and alternatives are still being developed,
and build trust with communities. Some commenters opposed the outreach
and engagement requirements in proposed Sec. 1501.9, asserting that
they were too open ended and would add burden and time to the process.
In this final rule, CEQ is reorganizing these sections as proposed.
Public engagement is a foundational element of the NEPA process and is
appropriately addressed in part 1501. Agencies have decades of
experience designing effective outreach strategies that are tailored to
the specifics of their programs and actions. Technology, when used
appropriately, can further improve these strategies, and this final
rule will provide agencies with the flexibility and encouragement to
more effectively engage with interested or affected governments,
communities, and people.
Second, CEQ proposed to retitle Sec. 1501.9 to ``Public and
governmental engagement'' and accordingly update references to ``public
involvement'' within this section and throughout the CEQ regulations to
``public engagement.'' CEQ proposed this change to better reflect how
Federal agencies should interact with the public and interested or
affected parties, stating that the word ``engagement'' reflects a
process that is more interactive and collaborative compared to simply
including or notifying the public of an action. Engagement is also a
common term for Federal agencies with experience developing public
engagement strategies or that work with public engagement specialists.
CEQ proposed to add ``governmental'' to the title to better reflect the
description of the provisions included in the section, which relate to
both public and governmental entities.
Commenters were generally supportive of this proposed change
because it implies a process that is more interactive and collaborative
instead of just notifying the public of an action. CEQ is revising the
title of Sec. 1501.9 as proposed.
Third, CEQ proposed to add proposed paragraphs (a) and (b) to
articulate the purposes of public and governmental engagement and to
identify the responsibility of agencies to determine the appropriate
methods of public and governmental engagement and conduct scoping
consistent with Sec. 1502.4 for EISs. CEQ proposed to use the phrase
``meaningful'' engagement in this particular paragraph to better
describe the purpose of this process because public and governmental
engagement should not be a mere check-the-box exercise, and agencies
should conduct engagement with appropriate planning and active dialogue
or other interaction with stakeholders in which all parties can
contribute.
Many commenters expressed support for CEQ's use of ``meaningful
engagement.'' Commenters who disliked the descriptor ``meaningful''
stated that the word is too subjective, open to differing
interpretations, and likely to cause unnecessary controversy and delay.
Other commenters suggested the description of ``meaningful'' was not
strong or specific enough, as proposed, to result in the desired
outcome and recommended CEQ define meaningful engagement.
In the final rule, CEQ combines purpose and responsibility, which
it had proposed to address in separate paragraphs, in Sec. 1501.9(a)
because these concepts are linked, and upon further consideration, CEQ
considers addressing them together to reduce redundancy in proposed
paragraphs (a) and (b), and enhance the clarity of the final rule.
Additionally, the second sentence of proposed paragraph (b) addresses
the role of engagement in determining the scope of a NEPA review; as
discussed further in this section, CEQ revises Sec. 1501.9(b) to
address this topic. The first two sentences in Sec. 1501.9(a) describe
the purposes of public engagement and governmental engagement. CEQ is
retaining ``meaningful engagement'' as proposed to better describe the
overall purpose of public engagement. Public engagement should not be a
simple check-the-box exercise, and agencies should conduct engagement
with appropriate planning and active dialogue or other interaction with
interested parties in which all can contribute. Federal agencies have
flexibility to determine what methods are appropriate to achieve a
collaborative and inclusive process that meaningfully and effectively
engages communities affected by their proposed actions. As part of
meaningful engagement, CEQ encourages agencies to engage with all
potentially affected communities including communities with
environmental justice concerns, consistent with Sec. 1500.2(d).
In the final rule, CEQ adds a new third sentence to paragraph (a)
to clarify that the purpose of Sec. 1501.9 is to set forth agencies'
responsibilities and best practices for such engagement. Finally, CEQ
moves the first sentence of proposed paragraph (b) to be the last
sentence of paragraph (a) requiring agencies to determine the
appropriate methods of engagement for their proposed actions. Agencies
are best situated to carry out this responsibility, because agencies
understand their programs and authorities, and the communities that are
interested in and affected by them.
CEQ revises Sec. 1501.9(b) in the final rule, different from the
proposal, to clarify the role of public and governmental engagement in
determining the scope of a NEPA analysis. As discussed in section
II.C.2, agencies must identify the scope of their proposed action,
consistent with the definition of ``major Federal action,'' which in
turn informs the level of NEPA review, and what alternatives and
effects an agency must consider; public input has long informed this
process. Therefore, CEQ has added a sentence to Sec. 1501.9(b) to
require agencies to use public and governmental engagement to inform
the level of review for and scope of analysis of a proposed action
consistent with Sec. 1501.3. CEQ qualifies this provision ``as
appropriate'' to account for the variety of ways that agencies should
engage with the public and because not all actions will necessitate
public engagement. For example, agencies must engage with the public
when developing new CEs, but generally do not do so when applying CEs
to their proposed actions.
CEQ adds the second sentence of proposed paragraph (b) in the final
rule, which cross references to scoping for EISs as set forth in Sec.
1502.4. Finally, CEQ adds a new sentence to Sec. 1501.9(b) encouraging
agencies to apply that scoping provision to EAs as appropriate. This
addition is consistent with Sec. 1501.5(j), which encourages agencies
to apply Sec. 1502.4 to EAs as appropriate to improve efficiency and
effectiveness and is also responsive to public comments requesting more
clarity on what is required for an EIS versus an EA as well as comments
requesting increased opportunities for involvement on EAs. Agencies
have experience successfully using the scoping process for EAs, and the
regulatory text clarifies that agencies may continue to use the scoping
process to inform the level of review, or find it helpful when they
intend to rely on mitigation in an EA to reduce effects below
significance and reach a FONSI rather than preparing an EIS.
Fourth, in the proposed rule, Sec. 1501.9 had separate paragraphs
addressing outreach (paragraph (c)) and notification (paragraph (d))
with the former recommended procedures and the latter required.
Specifically, proposed
[[Page 35484]]
paragraph (c)(1) recommended that agencies invite likely affected
agencies and governments, and proposed paragraph (c)(2) recommended
that agencies conduct early engagement with likely affected or
interested members of the public. CEQ modeled these provisions on the
prior approaches in 40 CFR 1501.7(a)(1) (2019) and 40 CFR 1501.9(b)
(2020) requiring the lead agency to invite early participation of
likely affected parties. Proposed paragraph (c)(3) would provide
flexibility to agencies to tailor engagement strategies, considering
the scope, scale, and complexity of the proposed action and
alternatives, the degree of public interest, and other relevant
factors. CEQ proposed to move from 40 CFR 1506.6(c) (2020) to Sec.
1501.9(c)(3) the requirement that agencies consider the ability of
affected parties to access electronic media when selecting the
appropriate methods of notification. CEQ also proposed to add a clause
to the end of paragraph (c)(3) to require agencies to consider the
primary language of affected persons when determining the appropriate
notification methods to use.
At least one commenter noted that the use of ``should'' in proposed
paragraph (c)(1) was inconsistent with proposed Sec. 1501.7(h)(1)
requiring lead agencies to invite the participation of cooperating
agencies. Other commenters asked that the language on outreach be
stronger, recommending that CEQ change ``should'' to ``shall'' in
proposed paragraph (c) and ``consider'' to ``ensure'' in proposed
paragraph (c)(3).
In the final rule, CEQ combines proposed paragraphs (c) and (d) in
Sec. 1501.9(c) to address outreach and notification. CEQ revised the
introductory text from ``lead agency'' to ``agencies'' for consistency
with the use of ``agencies'' in the rest of Sec. 1501.9. This change
does not mean that each agency involved in an EIS or EA needs to
conduct these responsibilities independently or that the lead agency is
not ultimately responsible given its role in supervising the
preparation of an EIS or EA consistent with Sec. 1501.7(a), but rather
that there is flexibility in which agency conducts these
responsibilities under the lead agency's supervision.
CEQ also revises the introductory text from agencies ``should'' to
``shall'' for consistency with the both the 2020 and 1978 regulations
and to resolve the inconsistency between Sec. 1501.7(h)(1), which
requires the lead agency to invite cooperating agencies at the earliest
practicable time and proposed Sec. 1501.9(c)(1) encouraging the lead
agency to invite the participation of likely affected agencies and
governments, including cooperating agencies, as early as practicable.
CEQ also is changing ``should'' to ``shall'' because using ``should''
would be confusing and inaccurate to the extent that it could be read
to suggest that some requirements are optional. CEQ adds ``as
appropriate'' to qualify the requirement in paragraph (c)(2) to conduct
early engagement to make clear that when the regulations require or
encourage agencies to conduct engagement, they should do so early in
the process. These changes from the proposal do not establish new
obligations for agencies, but rather, clarify which provisions are
obligatory in light of the requirements of the NEPA statute and other
provisions in the regulations.
CEQ also adds ``any'' in paragraph (c)(1) to acknowledge that for
some actions, there will not be any likely affected agencies or
governments. CEQ finalizes paragraph (c)(3) as proposed with two
changes, which requires agencies to consider the appropriate methods of
outreach and notification, including the ability of affected persons
and agencies to access electronic media and the primary language of
affected persons. In the final rule, CEQ includes ``and persons'' after
entities consistent with the phrasing in paragraph (c)(5)(i) and makes
language plural for consistency with ``persons.'' Additionally, CEQ
notes that agencies will also need to consider other statutory
requirements, such as those under the Rehabilitation Act, when
selecting appropriate methods of outreach and notification.
Fifth, CEQ proposed to move the introductory clause of 40 CFR
1506.6 (2020), ``Agencies shall'' to proposed paragraph (d) and add the
paragraph heading ``Notification.'' As discussed earlier in this
section, CEQ is combining proposed paragraph (c) and (d) in the final
rule. CEQ proposed in Sec. 1501.9 and throughout the proposed
regulations to replace the word ``notice'' with ``notification,''
except where ``notice'' is used in reference to a Federal Register
notice. CEQ is making this change in the final rule to clearly
differentiate between those requirements to publish a notice in the
Federal Register and other requirements to provide notification of an
activity, which may include a notice in the Federal Register or use of
other mechanisms.
Sixth, in the proposed rule, CEQ proposed a new paragraph (d)(1) to
require agencies to publish notification of proposed actions they are
analyzing through an EIS. CEQ proposed this requirement in response to
feedback from multiple stakeholders and members of the public
requesting more transparency about agency proposed actions. CEQ
finalizes the proposed provision in Sec. 1501.9(c)(4) with an
additional clause at the end of its proposed language to reference that
this requirement can be met through a NOI consistent with Sec. 1502.4.
CEQ adds this language in response to at least one comment expressing
confusion on this point.
Agencies may publish notification through websites, email
notifications, or other mechanisms such as the Permitting
Dashboard,\75\ so long as the notification method or methods are
designed to adequately inform the persons and agencies who may be
interested or affected, consistent with the definition of ``publish''
in Sec. 1508.1(gg). An NOI in the Federal Register, consistent with
Sec. 1502.4(e), can fulfill the notification requirement, but agencies
also may elect to use additional notification methods.
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\75\ See Fed. Permitting Improvement Steering Council,
Permitting Dashboard for Federal Infrastructure Projects, https://www.permits.performance.gov/.
---------------------------------------------------------------------------
Seventh, CEQ proposed to move 40 CFR 1506.6(b) (2020), including
its subparagraphs, (b)(1) through (b)(3) and (b)(3)(i) through
(b)(3)(x), to proposed Sec. 1501.9(d)(2) (including (d)(2)(i) through
(d)(2)(iii) and (d)(2)(iii)(A) through (d)(2)(iii)(I)), and proposed to
make minor revisions to improve readability and consistency with the
rest of Sec. 1501.9. CEQ is finalizing these changes with some
additional edits as described in the following paragraphs.
In the final rule, proposed paragraph (d)(2) becomes Sec.
1501.9(c)(5) requiring agencies to provide public notification of NEPA-
related hearings, public meetings, or other opportunities for public
engagement, as well as the availability of environmental documents. At
least one commenter noted that CEQ's proposed addition of the qualifier
``as appropriate'' before the requirement to provide public
notification of the availability of documents could be read to give
agencies discretion to provide such notice. This was not CEQ's intent
as the regulations have always required agencies to provide such notice
so CEQ does not include this qualifier in the final rule.
In the proposed rule, paragraphs (d)(2)(i) through (d)(2)(iii)
expanded on these general public notification requirements in paragraph
(d)(2). Specifically, CEQ proposed to move 40 CFR 1506.6(b)(1) and
(b)(2) (2020) to proposed paragraphs (d)(2)(i) and (d)(2)(ii),
respectively, and change
[[Page 35485]]
``organizations'' to ``entities and persons'' in paragraph (d)(2)(ii).
In the final rule, CEQ strikes the introductory clause, ``In all
cases,'' as superfluous, and consolidates into Sec. 1501.9(c)(5)(i)
the requirement to notify both those entities and persons who have
requested notification on an individual action as well as those who
have requested regular notification, such as actions in a geographic
region or a category of actions an agency typically takes. Paragraph
(c)(5)(ii), which was proposed paragraph (d)(2)(ii), only addresses
when notification is required in the Federal Register--when an action
has effects of national concerns. CEQ also changes ``notice'' to
``notification'' in Sec. 1501.9(c)(5)(ii) for consistency with the
rest of Sec. 1501.9 and adds the word ``also'' to make clear that this
notification is in addition to the notification required by paragraph
(c)(5)(i).
Eighth, CEQ proposed to move 40 CFR 1506.6(b)(3) (2020) to proposed
paragraph (d)(2)(iii), which addressed notification for actions for
which the effects are primarily of local concern. CEQ proposed to
change ``notice may include'' to ``notification may include
distribution to or through'' followed by a list of mechanisms for
notification. CEQ makes this change as proposed in Sec.
1501.9(c)(5)(iii) the final rule.
Ninth, CEQ proposed to move 40 CFR 1506.6(b)(3)(i) and (b)(3)(iii)
through (b)(3)(x) (2020) to proposed Sec. 1501.9(d)(2)(iii)(A) through
(d)(2)(iii)(I), respectively. CEQ proposed to combine the provisions
from 40 CFR 1506.6(b)(3)(i) and (ii) (2020) on notice to State, Tribal,
and local governments and agencies in proposed Sec.
1501.9(d)(2)(iii)(A) to consolidate similar provisions. CEQ also
proposed to remove the parenthetical in proposed paragraph
(d)(2)(iii)(C) and instead refer to local newspapers ``having general
circulation.'' Lastly, CEQ proposed to add a sentence in proposed
paragraph (d)(2)(iii)(I) that recommended agencies establish email
notification lists or similar methods for the public to easily request
electronic notifications for proposed actions. CEQ includes all of
these changes as proposed in the final rule at Sec.
1501.9(c)(5)(iii)(A) through (I).
Tenth, CEQ proposed to move the requirements to make EISs available
under FOIA from 40 CFR 1506.6(f) (2020) to Sec. 1501.9(d)(3). CEQ
received comments on this provision requesting that CEQ restore the
language from the 1978 regulations because some members of the public
do not have easy access to electronic information, it is important for
the public to have access to agency comments, and that restoring the
language would help restore consistency in agency implementation of
FOIA to ensure transparency. CEQ considered the comments and the
changes between the 1978 and 2020 rules and determined the existing
language addresses access to underlying documents and comments.
However, CEQ determined it is appropriate to restore language related
to fees as the 2020 rule removed language that agencies should make
documents related to the development of NEPA documents free of charge
or no more than the cost of duplication. Therefore, in the final rule,
CEQ adds a clause to Sec. 1501.9(c)(6) to require agencies to make
EISs and any underlying documents available consistent with FOIA and
without charge to the extent practicable.
Eleventh, CEQ proposed to move 40 CFR 1506.6(c) (2020) requiring
agencies to hold or sponsor public meetings or hearings to Sec.
1501.9(e), with modification, including adding the paragraph heading
``Public meetings and hearings.'' Additionally, CEQ proposed to make
this provision discretionary, and add that agencies could do so in
accordance with ``regulatory'' requirements as well as statutory
requirements or in accordance with ``applicable agency NEPA
procedures.'' In the proposal, CEQ revised the sentence requiring
agencies to consider the ability of affected entities to access
electronic media and to instead encourage agencies to ``consider the
needs of affected communities'' when determining what format to use for
a public hearing or public meeting because the best option for the
communities involved may vary. Lastly, CEQ proposed to add a sentence
to clarify that when an agency accepts comments for electronic or
virtual meetings, agencies must allow the public to submit them
electronically, via regular mail, or another appropriate method.
Commenters raised concerns about the proposed change from ``shall''
to ``may'' suggesting that this would make discretionary whether to
hold public hearings, meetings and other opportunities for public
engagement. CEQ notes that this provision gives agencies the discretion
to determine the appropriate methods of public engagement except where
required by other statutory or regulatory requirements, including
agency NEPA procedures. However, CEQ did not intend to make a
substantive change to this provision, and therefore, in Sec. 1501.9(d)
of the final rule, retains the use of ``shall'' consistent with 40 CFR
1506.6(c) (2020). In the third sentence addressing format for hearings
or meetings, CEQ adds examples of formats agencies might consider--
whether an in-person or virtual meeting or a formal hearing or
listening session is most appropriate--and requires rather than
encourages agencies to consider the needs of affected communities.
Commenters also requested that CEQ restore the recommendation from
the 1978 regulations that agencies make draft EISs available at least
15 days in advance when they are the subject of a public meeting or
hearing. CEQ agrees that this recommendation is helpful to facilitate a
more effective public engagement, and therefore includes a new sentence
at the end of Sec. 1501.9(d) consistent with the longstanding
recommendation from the 1978 regulations but broadening it to apply to
draft environmental documents.
Twelfth, CEQ proposed to move 40 CFR 1506.6(a) (2020) requiring
agencies to involve the public in preparing and implementing their
agency NEPA procedures to proposed Sec. 1501.9(f), adding a paragraph
heading ``Agency procedures'' and changing the word ``involve'' to
``engage'' consistent with CEQ's proposed change of ``involvement'' to
``engagement'' through the regulations. CEQ finalizes this provision in
Sec. 1501.9(e) as proposed.
Finally, CEQ notes two provisions in 40 CFR 1506.6 (2020) that it
did not incorporate into Sec. 1501.9. First, as discussed in section
II.I.3, CEQ proposed to move the requirement for agencies to explain in
their NEPA procedures where interested persons can get information on
EISs and the NEPA process from 40 CFR 1506.6(e) (2020) to Sec.
1507.3(c)(11) since this is a requirement for NEPA procedures, not
public engagement. And second, CEQ proposed to delete 40 CFR 1506.6(d)
(2020) on soliciting information from the public because that concept
is present in the purpose and language of revised Sec. 1501.9. In the
final rule, CEQ strikes these paragraphs from 40 CFR 1506.6 (2020).
9. Deadlines and Schedule for the NEPA Process (Sec. 1501.10)
CEQ proposed to retitle Sec. 1501.10 to ``Deadlines and schedule
for the NEPA process'' from ``Time limits'' and revise the section to
direct agencies to set deadlines and schedules for NEPA reviews to
achieve efficient and informed NEPA analyses consistent with section
107 of NEPA, 42 U.S.C. 4336a. CEQ proposed these changes to improve
transparency and predictability for stakeholders and the public
regarding NEPA reviews.
[[Page 35486]]
Commenters were generally supportive of CEQ's proposed changes to
this provision in order to promote a timely NEPA process. Some
commenters expressed support while suggesting additional changes as
described further in this section and in the Phase 2 Response to
Comments. Other commenters opposed the inclusion of the deadlines,
expressing concerns that the deadlines would result in rushed analyses,
strain agency and applicant resources, and have negative impacts on
public engagement. CEQ addresses these concerns in the context of
specific provisions discussed in this section.
CEQ revises the title of Sec. 1501.10 and reorganizes and revises
the provision as discussed further in this section. As discussed in
section II.J.1, CEQ removes the references to ``project sponsor'' in
favor of the defined term ``applicant,'' which includes project
sponsors, throughout Sec. 1501.10 and the rest of the regulations.
In addition to those revisions, CEQ proposed revisions to specific
provisions of Sec. 1501.10. First, in paragraph (a), CEQ proposed an
edit to the first sentence to emphasize that while NEPA reviews should
be efficient and expeditious, they also must include ``sound''
analysis. CEQ also proposed to direct agencies to set ``deadlines and
schedules'' appropriate to individual or types of proposed actions to
facilitate meeting the deadlines proposed in Sec. 1501.10(b).
Consistent with section 107(a)(2)(D) of NEPA, CEQ also proposed in this
paragraph to require, where applicable, the lead agency to consult with
and seek concurrence of joint lead, cooperating, and participating
agencies and consult with project sponsors and applicants when
establishing and updating schedules. 42 U.S.C. 4336a(a)(2)(D).
Some commenters supported the proposed requirement for consultation
on schedules in paragraph (a), as well as in paragraph (c). Multiple
commenters opposed the proposed requirements to seek concurrence
asserting that it would result in delay and exceed the statutory
requirements of section 107(a)(2)(D) of NEPA. 42 U.S.C. 4336a(a)(2)(D).
Multiple commenters requested additional clarity on how agencies would
carry out consultation with the applicant pursuant to paragraphs (a)
and (c). One commenter suggested making reference to ``use of reliable
and currently accurate data'' as an example of sound analysis in
paragraph (a).
CEQ makes the revisions to paragraph (a) as proposed with three
additional edits. First, CEQ excludes the reference to project sponsors
in favor of the defined term ``applicant'' in Sec. 1508.1(c). Second,
CEQ adds ``for the proposed action'' after ``schedule'' to clarify that
lead agencies establish schedules for each action. Third, CEQ includes
the requirement to seek the concurrence of any joint lead, cooperating,
and participating agencies, and in consultation with any applicants,
adding the word ``any'' to clarify that not all actions will
necessarily have a joint lead, cooperating, and participating agencies
or applicants.
CEQ adds the requirement to ``seek the concurrence'' as proposed to
encourage up-front agreement on schedules to facilitate achieving the
statutory deadlines. This provision requires the lead agency to seek
concurrence, not obtain concurrence. While lead agencies should strive
to reach agreement on schedules because agreement on a schedule up
front will facilitate the agencies' meeting a deadline, lead agencies
do not need to obtain concurrence to proceed if the agencies cannot
reach an agreement on the schedule. CEQ considers this approach to
strike the right balance because requiring the lead agency to obtain,
rather than seek, concurrence could unreasonably delay the process if
an agency will not concur and not requiring any agreement would
undermine the efficacy of the schedule if other agencies cannot meet
the schedule or have unaddressed concerns with it. CEQ declines to add
a reference to the ``use of reliable and currently accurate data'' as
an example of sound analysis because Sec. 1506.6 addresses the
requirement to use reliable data, and CEQ does not consider it
necessary or appropriate to address data in this section on deadlines
and schedules.
Second, CEQ proposed to update paragraph (b) and its subparagraphs
for consistency with section 107(g) of NEPA. See 42 U.S.C. 4336a(g). In
the proposed revisions, paragraphs (b)(1) and (b)(2) would require
agencies to complete an EA within one year and an EIS in two years,
respectively, unless the lead agency, in consultation with any
applicant or project sponsor, extends the deadline in writing and
establishes a new deadline providing only as much time as necessary to
complete the EA or EIS. CEQ proposed to include ``any'' to account for
circumstances where there is no applicant or project sponsor, in which
case the consultation requirement would be inapplicable to extension of
deadlines.
Some commenters opposed the deadlines asserting that agencies will
shortcut public participation or Tribal consultation in the NEPA
process, and that the deadlines create conflicts with implementation of
section 106 of the National Historic Preservation Act. 54 U.S.C.
306101. Other commenters expressed concern that the deadlines will
impede the ability of ``minority and Indigenous communities'' to
organize and advise their communities of impending harm. Other
commenters expressed concerns that other proposed changes, including
consideration of reasonably foreseeable climate change related effects
and disproportionate and adverse effects on communities with
environmental justice concerns, will make it challenging for agencies
to meet the prescribed deadlines. One commenter asserted that the
proposed deadlines are arbitrary and at odds with the need for rigorous
scientific study to support NEPA findings.
CEQ makes the changes to paragraphs (b), (b)(1), and (b)(2) as
proposed with two additions to implement the statutory deadlines
established in section 107(g) of NEPA. 42 U.S.C. 4336a(g). First, CEQ
excludes the reference to project sponsors in favor of the defined term
``applicant'' in Sec. 1508.1(c). Second, CEQ includes ``as
applicable'' before ``in consultation with any applicant'' in Sec.
1501.10(b)(1) and (b)(2) to emphasize that not all actions have
applicants. In such cases, an agency may extend the deadline and set a
new deadline in writing. CEQ appreciates the concerns expressed by
commenters that timelines could lead to rushed analysis but recognizes
that establishing deadlines can improve the efficiency and timeliness
of the environmental review process and notes that section 107(g) of
NEPA and this provision provide agencies with the ability to extend the
deadline where necessary to ensure they meet their public engagement
and consultation obligations and conduct the requisite analysis. 42
U.S.C. 4336a(g). Further, agencies have demonstrated that they can
complete robust and high-quality environmental reviews within these
timelines. CEQ encourages agencies to conduct early public engagement,
consistent with Sec. 1501.9, because early engagement can improve the
efficiency and quality of the environmental review process and can help
ensure agencies conduct meaningful engagement while also meeting the
statutory timeframes.
CEQ also notes that nothing in the regulations modifies compliance
with section 106 of NHPA. CEQ disagrees that the updated provisions of
these regulations, including Sec. Sec. 1502.15(b); 1502.16(a)(6),
(a)(9), and (a)(13); and 1508.1(g)(4)--which reflect current practice
and requirements such as those requiring consideration of certain
effects
[[Page 35487]]
like climate-related effects--impose new requirements that will
increase review timeframes such that agencies will not be able to meet
timelines. Rather, as discussed in section II.D.14, II.D.15, and
II.J.5, CEQ is updating these provisions to reflect current practice
and categories of reasonably foreseeable effects long considered under
NEPA consistent with the statute and case law. CEQ disagrees that these
changes will prevent agencies from complying with the deadlines or that
the deadlines will prevent agencies from conducting rigorous analysis.
Many agencies already have considerable experience analyzing these
types of effects.
Third, consistent with section 107(g) of NEPA, CEQ proposed a new
paragraph (b)(3) to identify the starting points from which agencies
measure the deadline for EAs and EISs and to require agencies to
measure from the soonest of three dates, as applicable. 42 U.S.C.
4336a(g). Consistent with section 107(g)(1) of NEPA, the proposed dates
were: (i) the date the agency determines an EA or EIS is required; (ii)
the date the agency notifies an applicant that its application to
establish a right-of-way is complete; and (iii) the date the agency
issues an NOI. 42 U.S.C. 4336a(g)(1).
Multiple commenters expressed support for the starting points
proposed in paragraph (b)(3), with some commenters suggesting changes
for further clarification. Many of these commenters requested the
regulations require agencies to include in their agency NEPA procedures
criteria for automatically starting the one-year or two-year periods.
Suggestions included criteria for when an application for a permit,
authorization, or right-of-way is considered complete.
CEQ makes the changes as proposed in paragraph (b)(3) and (b)(3)(i)
through (b)(3)(iii) because they incorporate the statutory provisions
of section 107(g)(1) of NEPA. See 42 U.S.C. 4336a(g)(1). CEQ declines
to require agencies to include criteria in their agency NEPA
procedures, though agencies may do so at their discretion so long as
they are consistent with this provision.
Fourth, after considering the comments on this section and more
generally emphasizing the importance of consistency and clarity, in the
final rule, CEQ adds paragraph (b)(4) to address the end dates for
measuring the deadlines. This revision is consistent with CEQ's
approach in the proposed rule to implementing section 107(g)(1) in a
manner that is transparent and practical and will ensure consistency
across Federal agencies in measuring deadlines, avoiding
inconsistencies that could create confusion among agencies and
applicants. 42 U.S.C. 4336a(g)(1). Paragraphs (b)(4)(i) and
(b)(4)(i)(A) through (b)(4)(i)(C) specify that for EAs, the end date is
the date on which the agency publishes an EA; makes the EA available
pursuant to an agency's pre-decisional administrative review process,
where applicable; or issues an NOI to prepare an EIS. CEQ notes that in
situations where an agency publishes both a draft EA and a final EA,
the final EA is the EA used to determine the end date. Paragraph
(b)(4)(ii) specifies for EISs that the end date is the date on which
EPA publishes a notice of availability of the final EIS or, where
applicable, the date the agency makes the final EIS available pursuant
to its pre-decisional administrative review process, consistent with
Sec. 1506.10(c)(1).
Fifth, CEQ proposed in paragraph (b)(4) to require agencies to
submit the report to Congress on any missed deadlines as required by
section 107(h) of NEPA. 42 U.S.C. 4336a(h). Some commenters requested
the regulations include additional detail on the annual report to
Congress, including detail on the content and deadlines for submitting
the report. One commenter also requested that the regulations allow for
a pause in the time periods for specific scenarios, such as when the
agency is waiting for information from an applicant or to award
contracts to support analyses. Similarly, other commenters suggested
generally that the final rule include provisions to provide more
flexibility in measuring the deadlines to avoid rushed environmental
analyses.
CEQ finalizes proposed Sec. 1501.10(b)(4) in paragraph (b)(5) as
proposed but changes ``The'' to ``Each'' to clarify that each lead
agency separately has a responsibility to report to Congress if it
misses a deadline. CEQ declines to provide more specifics about the
report to Congress at this time, but will consider whether guidance is
necessary to assist agencies in their reporting obligations. CEQ also
declines to provide a mechanism for pausing the deadline clock. The
regulations, consistent with the statute, provide that a lead agency
may extend the deadline in order to provide any additional time
necessary to complete an EIS or EA. Where an agency has extended a
deadline for an EA or EIS in conformity with this section and section
107(g) of NEPA, the agency has not missed a deadline for purposes of
107(h) and would not need to submit a report to Congress. 42 U.S.C.
4336a(g)-(h). For example, if an agency is experiencing a delay outside
its control such that it does not have the requisite information to
complete its EA or EIS, the lead agency may extend the one- or two-year
deadlines. Because the statute and regulations provide agencies with
the flexibility to extend deadlines when necessary to complete an EA or
EIS, CEQ does not consider it necessary or appropriate to establish a
mechanism for agencies to pause the deadline clock.
Sixth, to enhance predictability, CEQ proposed to move the text
from paragraph (i) of 40 CFR 1501.7 (2020) to the beginning of a new
paragraph (c) and modify the language for consistency with sections
107(a)(2)(D) and 107(a)(2)(E) of NEPA, which require the lead agency to
develop schedules for EISs and EAs. 42 U.S.C. 4336a(a)(2)(D),
4336a(a)(2)(E). CEQ proposed to divide the first sentence moved from 40
CFR 1501.7(i) (2020) into two sentences and add an introductory clause,
``[t]o facilitate predictability,'' to reinforce the purpose of
schedules. CEQ proposed to add ``for completion of environmental impact
statements and environmental assessments as well as any authorizations
required to carry out the action'' after ``the lead agency shall
develop a schedule'' for consistency with section 107(a)(2)(D) of NEPA.
42 U.S.C. 4336a(a)(2)(D). CEQ proposed in the second sentence to retain
the requirement for the lead agency to set milestones for environmental
reviews and authorizations, and add ``permits'' for consistency with
section 107(a)(2)(D) of NEPA. 42 U.S.C. 4336a(a)(2)(D). CEQ also
proposed in the second sentence to require agencies to develop the
schedules in consultation with the applicant or project sponsor, and in
consultation with and seek the concurrence of any joint lead,
cooperating, and participating agencies.
CEQ proposed to add a new third and fourth sentence to paragraph
(c) to note that schedules may vary depending on the type of action;
agencies should develop schedules based on their experience reviewing
similar types of actions; and highlight factors listed in paragraph (d)
that may help agencies set specific schedules to meet the deadlines.
Finally, CEQ proposed to move the text from paragraph (j) of 40 CFR
1501.7 (2020) regarding missed schedule milestones to the end of
paragraph (c) and modify it to make it consistent with section
107(a)(2)(E) of NEPA and provide clarification to enhance interagency
communication and issue resolution. 42 U.S.C. 4336a(a)(2)(E). CEQ
proposed to require that, when the lead or any participating agency
anticipates a missed milestone, that agency notify the responsible
agency (and the lead agency if identified by another agency) and
request that they
[[Page 35488]]
take action to comply with the schedule. To emphasize the importance of
informed and efficient decision making, CEQ proposed to require
agencies to elevate any unresolved disputes contributing to the missed
milestone to the appropriate officials for resolution within the
deadlines for the individual action.
One commenter requested that the final rule include a deadline for
the development of a schedule. CEQ declines to include this proposal in
the final rule. While CEQ encourages agencies to work efficiently in
developing a schedule, CEQ recognizes that the complexity of the
schedule will vary considerably from case to case, and defers to
agencies to oversee the efficient and effective preparation of a
schedule. Also, as discussed earlier in this section, commenters both
supported and opposed the requirement for lead agencies to consult with
applicants and consult and seek concurrence of joint lead, cooperating,
and participating agencies when establishing schedule milestones.
Another commenter stated that, with respect to the fifth sentence of
paragraph (c), the final rule should require, not just recommend,
agencies to consider all previous relevant actions and incorporate that
information into their schedules.
In the final rule, CEQ revises the existing text of paragraph (c)
as proposed excluding the reference to project sponsors in favor of the
defined term ``applicant'' in Sec. 1508.1(c)) for consistency with
section 107(a)(2)(D) of NEPA and to ensure that agencies are
identifying at the beginning of the process the steps they need to take
and the timeframe in which they need to take them in order to meet the
statutory timeframes. 42 U.S.C. 4336a(a)(2)(D). For the reasons
articulated earlier in this section, CEQ includes the requirements for
consultation and seeking concurrence on schedules. Next, CEQ adds a new
sentence in the final rule to direct all agencies with milestones to
take appropriate measures to meet the schedule. Finally, CEQ moves
paragraph (j) of 40 CFR 1501.10 (2020) regarding missed milestones to
the end of paragraph (c) as proposed, but further revises it for
clarity in the final rule. CEQ simplifies the text to clarify that any
participating agency can identify a potentially missed milestone to the
lead agency and the agency responsible for the milestone. CEQ also adds
``potentially'' before ``missed milestone'' in the last sentence for
consistency of use in the sentence.
Seventh, CEQ proposed to redesignate paragraph (c) of 40 CFR
1501.10 (2020), addressing factors in setting deadlines, as paragraph
(d), and make changes to the text for consistency with proposed
paragraph (b). Specifically, CEQ proposed to change ``senior agency
official'' to ``lead agency'' and ``time limits'' to reference ``the
schedule and deadlines.''
Eighth, CEQ proposed to add a new factor that the lead agency may
consider in determining the schedule and deadlines to paragraph (d)(7):
the degree to which a substantial dispute exists regarding the size,
location, nature, or consequences of the proposed action and its
effects. CEQ proposed this factor to restore and clarify a factor
included in the 1978 regulations at 40 CFR 1501.8(a)(vii) (2019)
regarding the degree to which the action is controversial. While the
2020 regulations removed this factor because it overlapped with other
factors, CEQ reconsidered its position and determined that this is an
important factor that could have implications for establishing
schedules and milestones. CEQ noted in the proposed rule that, in such
instances, agencies should seek ways to resolve disputes early in the
process, including using conflict resolution and other tools, to
achieve efficient outcomes and avoid costly and time-consuming
litigation later in the process. To accommodate this new factor, CEQ
proposed to redesignate paragraph (c)(7) of 40 CFR 1501.10 (2020) to be
paragraph (d)(8).
One commenter suggested CEQ append ``or benefit'' to ``[p]otential
for environmental harm'' in paragraph (d)(1). CEQ declines this change
because ``environmental benefits'' is already covered by the factor in
paragraph (d)(4) regarding public need. Other commenters suggested CEQ
modify paragraph (d)(4) in the final rule to include consideration of
the impact on the environment in addition to public need or modify it
to reflect that the consequences of delay include cost considerations
of short- and long-term delays. CEQ declines to make these changes
because paragraph (d)(1) already covers potential for environmental
harm, and CEQ interprets ``consequences of delay'' to include any cost-
related consequences to the public of short- or long-term delays.
Regarding paragraph (d)(7), one commenter opposed the replacement
of ``controversial'' from the 1978 regulations with ``substantial
dispute'' asserting that ``controversial'' is well defined in case law
as scientific rather than public controversy. The commenter further
asserted that shifting this language could become a new source of
dispute. CEQ disagrees and considers this change consistent with case
law interpreting the term ``controversial,'' as used in the 1978
regulations as distinct from general public controversy or opposition.
See, e.g., Bark v. United States Forest Serv., 958 F.3d 865, 870 (9th
Cir. 2020) (``A project is `highly controversial' [under the 1978
regulations] if there is a `substantial dispute about the size, nature,
or effect of the major Federal action rather than the existence of
opposition to a use.' '' (quoting Native Ecosystems Council v. United
States Forest Serv., 428 F.3d 1233, 1240 (9th Cir. 2005) (alteration
omitted)); see also Standing Rock Sioux Tribe v. U.S. Army Corps of
Eng'rs, 985 F.3d 1032, 1042 (D.C. Cir. 2021).
One commenter recommended the final rule add a factor to
accommodate government-to-government consultation with Tribal Nations,
while other commenters requested inclusion of consideration of Tribal
consultation in developing schedules overall. In the final rule, CEQ
adds paragraph (d)(9) for consideration of the time necessary to
conduct government-to-government Tribal consultation. While agencies
are already able to take this into account when building schedules, CEQ
adds this factor to encourage agencies to ensure they are building
sufficient time in the schedule to conduct meaningful consultation.
Finally, CEQ adds ``court ordered deadlines'' to paragraph (d)(8),
which lists time limits imposed on the agency, since agencies are
sometimes conducting NEPA for actions subject to a court order.
Ninth, CEQ proposed to redesignate paragraph (d) of 40 CFR 1501.10
(2020) as paragraph (e), strike the text allowing a senior agency
official to set time limits because this is superseded by the enactment
of section 107(g) of NEPA, 42 U.S.C. 4336a(g), setting statutory
deadlines, and replace it with a requirement for EIS schedules to
include a list of specific milestones. CEQ proposed to strike the text
in paragraphs (d)(1) through (d)(7) of 40 CFR 1501.10 (2020) listing
potential time limits a senior agency official could set and replace
them with proposed new paragraphs (e)(1) through (e)(5) to list the
minimum milestones that an EIS schedule must include: publication of
the NOI, issuance of the draft EIS, the public comment period, issuance
of the final EIS, and issuance of the ROD.
Relatedly, CEQ proposed to add new paragraphs (f) and (f)(1)
through (f)(4) to identify the milestones that agencies must include in
schedules for EAs: the decision to prepare an EA; issuance of
[[Page 35489]]
a draft EA, where applicable; the public comment period, where
applicable; and issuance of the final EA and a decision whether to
issue a FONSI or NOI to prepare an EIS.
Multiple commenters expressed support for proposed Sec. 1501.10(e)
and (f), asserting the changes would improve the transparency,
timeliness, and certainty of environmental reviews. Some commenters
suggested additional milestones to further these goals, such as the
starting points in proposed paragraph (b)(3), specific stages of the
review process (i.e., decision to prepare a document and issuance of a
draft or final document), and 60-or 90-day deadlines for cooperating
and participating agency review stages.
CEQ declines to add additional milestones at this time. CEQ notes
that this is a non-exhaustive list, and CEQ may issue guidance with
recommendations for additional milestones in the future or agencies may
elect to include additional milestones on an action-by-action basis or
in their agency NEPA procedures.
Tenth, CEQ proposed to redesignate paragraph (e) of 40 CFR 1501.10
(2020) as paragraph (g) allowing an agency to designate a person to
expedite the NEPA process, with no proposed changes to the language.
One commenter asserted that paragraph (g) provides agencies too much
discretion as to whether they should designate someone to expedite the
NEPA process. The commenter suggested that, at a minimum, the paragraph
be expanded to discuss when that role would be beneficial and set
requirements on who can fill the role. CEQ declines additional edits to
paragraph (g), which has been in the regulations since 1978. CEQ
considers it appropriate to preserve agency flexibility to assign staff
to expedite the NEPA process.
Eleventh, CEQ proposed to strike paragraph (f) of 40 CFR 1501.10
(2020), allowing State, Tribal, or local agencies, or members of the
public to request a Federal agency set time limits. One commenter
opposed the proposed removal of this paragraph, expressing concern that
the proposal would diminish the involvement and use of information from
States. CEQ makes this change in the final rule because the NEPA
statute sets deadlines for EAs and EISs rendering this paragraph
unnecessary and inconsistent with the statute. However, CEQ notes that
State, Tribal, and local agencies have a role in the development of
schedules to the extent they are serving as joint lead, cooperating, or
participating agencies.
Finally, to increase predictability and enhance agency
accountability, CEQ proposed to add a new paragraph (h) to require
agencies to make schedules for EISs publicly available and to publish
revisions to the schedule. The proposal also would require agencies to
publish revisions to the schedule and include an explanation for
substantial revisions to increase transparency and public understanding
of decision making and to encourage agencies to avoid unnecessary
delays.
One commenter expressed concern that paragraph (h) would increase
the potential for litigation related to timelines. Another commenter
opposed the requirement for agencies to publicly post schedules for an
EIS, asserting that the requirement would distract from analyzing and
disclosing significant environmental effects.
CEQ adds paragraph (h) as proposed in the final rule. CEQ disagrees
that making schedules publicly available will have any meaningful
effect on the agency's analysis. CEQ also does not see litigation risk
attached to the posting of schedules, which would not constitute a
final agency action for purposes of judicial review, and the commenter
did not provide an explanation as to how this might be the case.
Multiple commenters requested clarity on what qualifies as
``substantial'' changes to an EIS schedule. CEQ declines to include
additional language in the rule and defers to agencies to determine
what schedule changes are ``substantial'' and require an explanation.
CEQ anticipates this may vary from case-to-case depending on the agency
and the complexity of the proposed action. CEQ will continue to
consider whether additional guidance would be helpful.
A few commenters requested that the final rule expand paragraph (h)
to require agencies to make EA schedules publicly available. CEQ
declines to require agencies to publish schedules for EAs, though CEQ
encourages agencies to do so, especially when doing so would facilitate
public engagement. CEQ is concerned that requiring agencies to make
schedules for all EAs publicly available could significantly increase
the administrative burden on agencies especially since not all EAs will
involve complex schedules, i.e., they may only include the dates for
the decision to prepare an EA and the issuance of an EA.
Some commenters expressed general support for Sec. 1501.10 but
suggested additional changes arguing that there are ``loopholes'' for
agencies to exploit or manipulate the deadlines. Commenters requested
the regulations provide for oversight of agencies to ensure they are
adhering to the deadlines. Another commenter suggested CEQ add
incentives to the final rule for agencies to adhere to the timelines.
CEQ declines to make additional revisions to address the
commenters' suggestions. The final rule implements the statutory
deadlines, and Congress has provided a reporting mechanism to address
situations where agencies miss deadlines. Further, section 107(g)(3) of
NEPA provides a mechanism for project sponsors to petition the courts
for relief if an agency fails to meet the deadlines. 42 U.S.C.
4336a(g)(3). The statute does not establish a mechanism for CEQ to
enforce deadlines, and CEQ declines to revise the regulations in a
manner that would substantially change the role that CEQ has played
with respect to environmental reviews for decades.
A commenter requested clarification on supplementation and whether
or not supplemental environmental documents would affect the timeline
of the original document. CEQ declines to add additional language to
Sec. 1501.10 in response to this comment. In cases where an agency
determines a supplemental draft EA or a supplemental draft EIS is
necessary, the end point remains the final EA or final EIS. However, as
provided in Sec. 1501.10(b), the lead agency may extend the deadline
to provide additional time necessary to complete the final EA or final
EIS. When an agency prepares a supplemental EA or EIS following the
completion of a final EA or EIS, the lead agency should adhere to the
deadlines and develop schedules for the supplemental NEPA review
consistent with paragraph (b) and section 107(g) of NEPA. 42 U.S.C.
4336a(g).
10. Programmatic Environmental Documents and Tiering (Sec. 1501.11)
CEQ has encouraged agencies to engage in environmental reviews for
broad Federal actions through the NEPA process since CEQ's initial
guidelines issued in 1970. This continues to be a best practice for
addressing broad actions, such as programs, policies, rulemakings,
series of projects, and larger or multi-phase projects. CEQ developed
guidance in 2014 on Effective Use of Programmatic NEPA Reviews,\76\
compiling best practices across the Federal Government on the
development of programmatic environmental reviews. CEQ proposed to
codify some of these principles in the CEQ regulations.
---------------------------------------------------------------------------
\76\ CEQ, Programmatic Guidance, supra note 12.
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First, CEQ proposed to revise and retitle Sec. 1501.11,
``Programmatic
[[Page 35490]]
environmental documents and tiering,'' for consistency with section 108
of NEPA, to consolidate relevant provisions, and to add new language to
codify best practices for developing programmatic NEPA reviews and
tiering, which are important tools to facilitate more efficient
environmental reviews and project approvals. 42 U.S.C. 4336b. As
discussed further in this section, CEQ proposed to move portions of 40
CFR 1502.4 (2020) on EISs for broad Federal actions to Sec. 1501.11
because agencies can review actions at a programmatic level in both EAs
and EISs.
Several commenters expressed support for the overall proposed
changes in Sec. 1501.11 and for use of programmatic reviews and
tiering. These commenters asserted that programmatic reviews and
tiering are important tools for efficiency and supported the clarity
provided in the proposed rule on both tools. In the final rule, CEQ
revises the title of Sec. 1501.11 and moves the text of 40 CFR 1502.4
(2020) to Sec. 1501.11 as further described in this section.
CEQ proposed to reorganize the paragraphs in Sec. 1506.11 to
address programmatic environmental documents and then tiering.
Accordingly, second, CEQ proposed to add a new paragraph (a) to address
programmatic environmental documents. CEQ proposed to move paragraph
(b) of 40 CFR 1502.4 (2020) to Sec. 1501.11(a) and revise the first
sentence to clarify that agencies may prepare programmatic EAs or EISs
to evaluate the environmental effects of policies, programs, plans, or
groups of related activities. CEQ proposed to revise the second
sentence to provide that programmatic environmental documents should be
relevant to the agency's decisions and timed to coincide with
meaningful points in agency planning and decision making; change
``statements'' to ``documents'' to include EAs; and change ``program''
to ``agency'' to broaden the language for consistency with the revised
first sentence of paragraph (a). Finally, CEQ proposed a third sentence
in paragraph (a) to clarify that agencies can use programmatic
environmental documents in a variety of ways, highlighting some
examples for agencies to consider to facilitate better and more
efficient environmental reviews.
One commenter requested that CEQ change paragraph (a) to require
agencies to prepare programmatic environmental documents. CEQ declines
to require preparation of programmatic environmental documents as
agencies need flexibility to determine when a programmatic
environmental document is appropriate.
Another commenter suggested CEQ add language stating if an agency
is preparing to make a programmatic decision on a policy, program,
plan, or group of related activities that meets other applicable
thresholds for NEPA analysis, an agency must prepare a programmatic
analysis commensurate with the scope of that decision. The commenter
asserted that while it may be permissible to prepare a programmatic
analysis when an agency is not presently making a decision, it is
mandatory to prepare one when making a programmatic decision.
A few commenters requested CEQ restore regulatory language from 40
CFR 1502.4(b) (2019) stating that programmatic EISs are sometimes
required for proposed decisions regarding new agency programs or
regulations. The commenter stated that the 2020 rule removed this
direction to focus the provision on the discretionary use of
programmatic EISs in support of clearly defined decision-making
purposes. The commenter asserted CEQ would better serve agencies and
the public by acknowledging that programmatic EISs are sometimes
required.
CEQ declines to make these change in the final rule. Agencies have
the discretion to determine whether to prepare a programmatic or non-
programmatic NEPA document to evaluate their actions, and CEQ is
concerned that the commenter's proposals are unnecessarily prescriptive
and declines to introduce a new concept of ``programmatic decision.''
Third, CEQ proposed to move the list of ways agencies may find it
useful to evaluate a proposal when preparing programmatic documents
from paragraphs (b)(1) and (b)(1)(i) through (b)(1)(iii) of 40 CFR
1502.4 (2020) to Sec. 1501.11(a)(1) and (a)(1)(i) through (a)(1)(iii),
respectively. CEQ proposed to expand the list to encompass EAs as well
as EISs. CEQ proposed to modify the beginning of paragraph (a)(1)(ii)
to clarify ``[g]enerically'' to mean ``[t]hematically or by sector,''
and add technology as an example action type. CEQ proposed in paragraph
(a)(1)(iii) to modify ``available'' to ``completed'' for clarity. CEQ
moves these provisions and makes these revisions as proposed in the
final rule.
One commenter opined that the language in proposed paragraph
(a)(i)(iii) regarding stage of technological development makes it seem
as though environmental review must happen more quickly than accrual of
significant investment. The commenter asserted that the accrual of
significant investment would prejudice the review and, therefore,
should be barred until the review takes place and suggested regulatory
language to that effect.
CEQ declines to modify paragraph (a)(1)(iii) to incorporate the
commenter's proposed language. The concept the commenter proposes to
add--to not prejudice the outcome of dependent decisions--is addressed
in Sec. 1506.1, and it is unnecessary and potentially confusing to
address that issue here. However, CEQ changes ``restrict later
alternatives'' to ``limit the choice of reasonable alternatives'' to
align the text with Sec. 1506.1(a).
Fourth, CEQ proposed to add a new paragraph (a)(2) to provide
examples of the types of agency actions that may be appropriate for
programmatic environmental documents, including programs, policies, or
plans; regulations; national or regional actions; or actions with
multiple stages and are part of an overall plan or program. CEQ did not
receive any comments specific to this paragraph and adds it in the
final rule.
Fifth, CEQ proposed to move paragraph (b)(2) of 40 CFR 1502.4
(2020) to Sec. 1501.11(a)(3) and revise it to recommend, rather than
require, that agencies employ scoping, tiering, and other tools to
describe the relationship between programmatic environmental documents
and related actions to reduce duplication. CEQ proposed to strike the
last sentence of 40 CFR 1502.4(b)(2) (2020) stating that agencies may
tier their analyses because tiering and programmatic environmental
documents would now be addressed together in this section, rendering
the language unnecessary.
A commenter requested CEQ replace ``should'' with ``shall'' in
paragraph (a)(3) because the discretionary language relaxes the
standard for agencies to seek efficiencies. CEQ declines to make this
change. While scoping is required for EISs, including programmatic
EISs, it is not required for EAs. It also would unnecessarily constrain
agency processes to require tiering for all programmatic environmental
documents, particularly because at the time that an agency prepares a
programmatic environmental document, it may not yet know whether or
what agency actions it may consider in the future related to the
programmatic environmental document. Rather, CEQ intends this provision
to encourage agencies to use scoping, tiering, and other methods to
make programmatic environmental documents more effective, efficient,
and transparent.
A commenter requested that CEQ add text to proposed paragraph
(a)(3)
[[Page 35491]]
providing that programmatic documents should explain which issues the
programmatic document analyzes and which issues the agency is
deferring. This commenter pointed to CEQ's 2014 memorandum on use of
programmatic NEPA reviews, which explains that the programmatic
analysis and the decision document should explain which decisions are
supported by the programmatic NEPA document and which decisions are
deferred to a later time. Two commenters further requested CEQ clarify
that tiering is required to analyze the deferred analysis of issues,
effects, or alternatives before making a final project-level or site-
specific decision; stating that the current text is permissive in that
it allows but does not require tiering.
CEQ considered the comments and in the final rule revises Sec.
1501.11(a)(3) to clarify that a programmatic document must identify any
decisions or categories of decisions that the agency anticipates making
in reliance on it. This direction includes any action or category of
action that the agency anticipates making in reliance on a programmatic
environmental document without additional analysis and any action or
category of action the agency anticipates making after developing a
subsequent, tiered environmental document. This provision only requires
agencies to identify actions the agency anticipates making when it
prepares a programmatic environmental document; it does not require
agencies to identify every conceivable circumstance in which the agency
could develop a tiered environmental review in the future. Including
this information in a programmatic environmental document ensures that
agencies are transparent about the relationship between their
programmatic documents and any subsequent documents and decisions.
Failure to anticipate and list a particular circumstance where a
programmatic environmental document could inform a future decision does
not preclude tiering to the programmatic environmental document in an
environmental document related to that future circumstance.
Sixth, CEQ proposed to redesignate paragraphs (a), (b), and (c) of
40 CFR 1501.11 (2020), which address tiering, as paragraphs (b),
(b)(1), and (b)(2), respectively, with some modifications as discussed
further in this section. CEQ also proposed to redesignate paragraphs
(c), (c)(1), and (c)(2) as paragraphs (b)(2), (b)(2)(i), and
(b)(2)(ii), respectively, with no proposed modifications. CEQ proposed
to title paragraph (b) ``Tiering.'' CEQ makes these changes in the
final rule.
Seventh, CEQ proposed to add two new sentences at the beginning of
paragraph (b) to describe when agencies may employ tiering. The first
proposed sentence would allow agencies to employ tiering with an EIS,
EA, or programmatic environmental document relevant to a later proposed
action. The sentence emphasizes the benefits of tiering to avoid
duplication and focus on issues, effects, or alternatives, not fully
addressed in the earlier document. In the existing text, CEQ proposed
to strike as redundant the reference to issues not yet ripe for
decision as well as the last sentence on applying tiering to different
stages of actions. CEQ did not receive comments specific to the changes
proposed in this paragraph and finalizes them as proposed except that
CEQ reorders the list of documents--EISs, EAs, and programmatic
environmental documents--in Sec. 1501.11(b)(1) for consistency with
paragraph (b).
Eighth, in Sec. 1501.11(b)(1) CEQ proposed to add ``programmatic
environmental review'' to the list of documents from which agencies may
tier. CEQ also proposed to clarify that the tiered document must
discuss the relationship between the tiered analysis and the previous
review; analyze site-, phase-, or stage-specific conditions and
effects; and allow for public engagement opportunities consistent with
the type of environmental document prepared and that are appropriate
for the location, phase, or stage. Finally, CEQ proposed to clarify
that the tiered document must state where the earlier document is
``publicly'' available.
One commenter requested CEQ clarify that tiering to a previous
programmatic analysis is only appropriate if those analyses took the
requisite ``hard look'' at site-specific environmental impacts. CEQ
declines to make this change. While agencies must ensure a hard look at
site-specific effects before finalizing a site-specific agency action,
agencies have discretion to consider such effects in a programmatic
environmental document or subsequent tiered documents. Multiple
commenters requested CEQ clarify that tiered reviews must include the
requisite site-specific analysis for the action, with some commenters
raising concerns that agencies do not provide the necessary opportunity
for the public to review alternatives and provide comments by using
programmatic environmental reviews without subsequent site-specific
reviews. CEQ agrees that tiering does not authorize an agency to avoid
the public engagement, including any opportunity for comment, that it
would need to do if it analyzed an action through a single
environmental document, rather than through a tiered approach and notes
that the text CEQ proposed in Sec. 1501.11(b)(1) addresses this issue.
Regardless of whether an agency employs tiering, agencies must comply
with the requirements for consideration of alternatives and public
comments consistent with the requirements for EAs or EISs, as
applicable.
A few commenters expressed concern that the use of tiering would
lead to delays in incorporating new scientific evidence into
environmental reviews and allow agencies to circumvent the requirement
to consider alternatives. Another commenter expressed similar concern
that the expanded use of programmatic documents with CEs would limit
consideration of alternatives. CEQ disagrees with the commenters'
concerns because agencies cannot use programmatic documents or tiering
to circumvent the requirements of NEPA, including section
102(2)(C)(iii) requirement to consider a reasonable range of
alternatives for actions requiring an EIS. 42 U.S.C. 4332(2)(C)(iii).
Other commenters requested CEQ clarify certain aspects of tiering,
including establishing bounds for use of programmatic CEs. As described
in Sec. 1501.11(a), programmatic environmental documents may be an EA
or EIS. As such, Sec. 1501.11 does not address programmatic CEs.
Section 1501.4 addresses circumstances in which agencies may conduct
programmatic reviews to establish new CEs.
One commenter stated that the rule needs to clearly distinguish
between tiering and supplementation and suggested CEQ could clarify the
different approaches in Sec. 1501.11(b)(2)(ii). CEQ agrees that the
reference to supplementation in Sec. 1501.11(b)(2)(ii) is confusing
because supplementation is a different concept. Section 1502.9(d) sets
forth the standard for supplementation of EISs, and agencies may
supplement EAs at their discretion. Therefore, CEQ strikes ``a
supplement (which is preferred)'' from the first sentence of this
paragraph.
CEQ makes the changes to Sec. 1501.11(b) and (b)(1) as proposed,
though CEQ revises programmatic environmental ``review'' to
``document'' in paragraph (b)(1) for consistency with the rest of the
section. CEQ notes that programmatic documents can most effectively
address later activities when they provide a description of planned
activities that would implement the program and consider the effects of
the program as specifically and
[[Page 35492]]
comprehensively as possible. A sufficiently detailed programmatic
analysis with such project descriptions can allow agencies to rely upon
programmatic environmental documents for further actions with no or
little additional environmental review necessary. When conducting
programmatic analyses, agencies should engage the public throughout the
NEPA process and consider when it is appropriate to re-engage the
public prior to implementation of the action.
Ninth, in paragraph (c), CEQ proposed to include the provisions of
section 108 of NEPA, which address when an agency may rely on a
programmatic document in subsequent environmental documents. 42 U.S.C.
4336b. CEQ notes that it interprets the reference to ``judicial
review'' in paragraph (c)(1) to mean an opportunity for a party to
challenge the programmatic document, including through an
administrative proceeding or challenge brought under the Administrative
Procedure Act. CEQ proposed in paragraph (c)(2) to require agencies to
briefly document their reevaluations when relying on programmatic
environmental documents older than 5 years. Two commenters opined that
there is no incentive for an agency to prepare a programmatic
environmental document if the statute and regulations require them to
complete it within one or two years and then review it every five
years. The commenters asserted that programmatic documents generally
take longer to prepare, but the long-term benefits are worth the
investment. The commenters are concerned that the time limits for EAs
and EISs will result in agencies preparing fewer programmatic
environmental documents. A separate commenter indicated that many
agencies review programmatic documents at longer intervals than five
years.
CEQ appreciates the commenters' concerns but notes that the
timeframes are statutory. CEQ encourages agencies to use programmatic
environmental documents and tiering whenever it will result in more
efficiency overall. CEQ also notes that a reevaluation of a
programmatic document need not be a lengthy process especially where
agencies can quickly and easily verify the ongoing accuracy of the
evaluation.
One commenter asserted that the process for reevaluation is unclear
in the statute and in the proposed rule and asked CEQ to clarify the
steps. The commenter requested that the regulations state that the
tiered environmental review is what triggers the need for reevaluation
and that it also serves as the documentation of the reevaluation.
CEQ declines to articulate additional steps for reevaluation. The
regulations already provide a process for reevaluation in Sec. Sec.
1501.5 and 1502.9(e). CEQ agrees that agencies may make use of tiered
documents to support their reevaluation. However, because of the nature
of tiering, such documents may not assess all of the underlying
assumptions of the programmatic document.
Another commenter recommended that the regulations allow agencies
to tier from programmatic documents while reevaluation is ongoing and
requested CEQ clarify that those projects are not at risk of
noncompliance for reliance on previous versions should the agency issue
a new version of the document.
CEQ declines to make these specifications in the final rule. CEQ
agrees that a tiered document may also serve as a reevaluation of the
programmatic document. CEQ considers the language in section 108(1) of
NEPA to be clear that agencies may tier from a programmatic review in a
subsequent environmental document for up to five years without
additional analysis, and therefore any tiered documents relying on the
programmatic document during those five years is entitled to the
statutory presumption that no additional review is required even where
the agency subsequently revises the programmatic document. 42 U.S.C.
4336b(1).
A few commenters requested that the regulations require the five-
year reevaluation for EISs and EAs be subject to public comment; that
agencies provide public notice of the reevaluation; and that
reevaluation of programmatic analyses be made publicly available.
CEQ declines to make these changes to retain flexibility depending
on the context of the reevaluation. Some reevaluations may be simple
and not require public comment. Other reevaluations may warrant and
benefit from public engagement, including public comment. If the agency
finds that any assumptions are no longer valid or that the criteria for
supplementation in Sec. 1502.9(d) are met, then the regulations
require the agency to conduct a supplemental analysis to continue to
rely on the programmatic review in subsequent environmental documents.
11. Incorporation by Reference Into Environmental Documents (Sec.
1501.12)
CEQ proposed minor modifications to Sec. 1501.12 to emphasize the
importance of transparency and accessibility of material that agencies
incorporate by reference. First, CEQ proposed to revise the title to
add ``into environmental documents'' at the end to clarify into what
agencies incorporate by reference. CEQ makes this change in the final
rule.
Second, CEQ proposed to add to the second sentence a specific
requirement for agencies to briefly explain the relevance of any
material incorporated by reference into the environmental document to
clarify that agencies must not only summarize the content incorporated
but also explain its relevance to the environmental review document.
CEQ proposed this addition because explaining the relevance of
incorporated material in addition to summarizing it will better inform
the decision maker and the public.
A few commenters opposed the proposed requirement for agencies to
briefly explain the relevance of the incorporated material to the
environmental document, asserting that the relevance of the material is
often obvious and that requiring this explanation would add burdensome
paperwork without additional benefit. A commenter also asserted that
the requirement defeats the purpose of incorporating material by
reference.
CEQ disagrees with the commenters' assertions and makes the
proposed addition in the final rule. CEQ adds the language to emphasize
the importance of transparency regarding material that agencies
incorporate by reference and rely upon as part of their analysis.
Briefly explaining the relevance of incorporated material should not
require substantial agency resources or lengthy text. Section 1501.11
already requires an agency to briefly summarize material that it
incorporates by reference; briefly explaining the relevance of the
material does not require additional analysis, but rather, only
requires that the agency briefly document how the material is related
to the agency action it is reviewing in an environmental document.
While in some cases the relevance of material incorporated by reference
may be obvious, in such cases, briefly explaining relevance will be a
trivial task that may require no more than a sentence. Where the
relevance of the material is not immediately obvious, a brief
explanation will help better inform both the public and decision
makers. CEQ disagrees that the requirement is burdensome or
duplicative, and encourages agencies to integrate the description of
relevance into the summary of the material.
Third, CEQ proposed to change ``may not'' to ``shall not'' in the
third sentence to eliminate a potential ambiguity over
[[Page 35493]]
whether agencies must make material they incorporate by reference
reasonably available for public inspection. One commenter supported the
preclusion of incorporation by reference if the material is not
reasonably available for public inspection. Another commenter requested
that CEQ define ``reasonably available for inspection'' to clarify what
information should be made available prior to public comment. In
considering this comment, CEQ determined that it was more appropriate
to revise the text in the final rule to improve clarity rather than
define this phrasing from the 1978 regulations, and therefore changes
``inspection'' to ``review.'' CEQ does not intend this change in
wording to be substantive, but rather to modernize the regulatory
language and, thereby, improve clarity of the requirement. CEQ
anticipates that agencies will generally make this material available
electronically or online, though it may be appropriate for agencies to
provide physical copies in certain circumstances such as for localized
actions where internet access or bandwidth is limited.
Another commenter expressed support for incorporation by reference,
but questioned whether the standard should allow agencies to
incorporate by reference proprietary data. CEQ declines to change the
``reasonably available for review'' standard. Incorporation by
reference is a tool that agencies can use to improve the efficiency of
their environmental review process. However, it cannot be used to
circumvent the public engagement, public comment, public access, and
transparency requirements of NEPA and these regulations, including
section 107(c)'s requirement that for an EIS, an agency must request
public comment on ``alternatives or impacts and on relevant
information, studies, or analyses with respect to the proposed agency
action.'' 42 U.S.C. 4336a(c). CEQ therefore retains the requirement
that has been in the NEPA regulations since 1978 that prohibits
agencies from incorporating by reference material that is not
reasonably available for review, including proprietary data that is not
available for review and comment.
Another commenter recommended CEQ revise existing regulatory text
in the third sentence. The commenter suggested CEQ replace ``within the
time'' with ``at the beginning of and throughout the time'' asserting
that the current language allows an agency to post documents near the
end of the comment period. The commenter stated that documents should
be available for the full comment period to allow for meaningful public
review and comment. CEQ agrees that materials that are incorporated by
reference should be reasonably available throughout the public comment
period. CEQ is unaware of agencies incorporating by reference material
that is not available throughout the comment period. However, CEQ
agrees that the reasonable availability of material incorporated by
reference is critical to the public comment process for EISs under the
regulations and under section 107(c) of NEPA, which requires agencies
preparing EISs to request public comment on ``relevant information,
studies, or analyses with respect to the proposed agency action.'' 42
U.S.C. 4336a(c). Therefore, the final rule replaces the word
``inspection'' with ``review'' and the word ``within'' with the word
``throughout'' to remove any ambiguity over when the materials an
agency incorporates by reference must be reasonably available to the
public. The final rule also adds ``or public review'' after ``comment''
to make it clear that the material must be available while an
environmental document is available for public review in those cases
where the regulations do not require an agency to seek public comment.
CEQ makes these changes in the final rule to ensure that material
incorporated by reference, including research publications and data, is
openly available and accessible to the public.
Fourth, CEQ proposed in the third sentence to add a reference to
``publicly accessible website'' as an example of a mechanism through
which material incorporated by reference may be reasonably available to
the public. CEQ did not receive any comments specific to this proposed
example. CEQ makes this change in the final rule.
Finally, CEQ proposed to add a new fourth sentence encouraging
agencies to provide digital references, such as hyperlinks, to
incorporated material or otherwise indicate how the public can access
the material for review. One commenter expressed support for the
proposed inclusion of digital references. CEQ adds this sentence in the
final rule.
A few commenters expressed general support for proposed Sec.
1501.12. Another supportive commenter appreciated the emphasis on
transparency and accessibility of material incorporated by reference,
but suggested CEQ establish standards for the digital format of
environmental documents and their underlying analysis to facilitate
interagency information sharing and collaboration. CEQ appreciates the
comment and notes that it is currently engaged in an eNEPA study,
consistent with section 110 of NEPA, to assesses such issues. See 42
U.S.C. 4336d. Following the completion of that study, CEQ may issue
guidance or consider additional rulemaking in the future to address
these issues.
Another commenter requested that the regulations require agencies
to disclose if the cited material is outdated, disputed, or not fully
proven. CEQ declines to make this change. Agencies generally have an
obligation under Sec. 1506.6 and Sec. 1502.21 for EISs to disclose
any relevant assumptions or limitations of the information on which
they rely, including information incorporated by reference. Imposing a
distinct requirement for material that is incorporated by reference is
unnecessary and could create confusion.
One commenter expressed agreement that incorporation by reference
can cut down on bulk but indicated that CEQ should expand Sec. 1501.12
to address other reasons to incorporate materials by reference, such as
to reduce duplicative work and ensure efficient use of agency
resources. The commenter also requested CEQ rephrase the section to
ensure that agencies can use pre-existing documents to further the
efficiency requirements of NEPA. While CEQ agrees that incorporation by
reference also reduces duplicative work and facilitates efficient use
of agency resources, CEQ does not consider it necessary to add
additional text to the regulations to make these points as the
regulations already emphasize efficiency and use of other documents.
See, e.g., Sec. Sec. 1506.2, 1506.3.
Finally, a commenter asserted the proposed rule did not
sufficiently address avoidance of duplication between the NEPA process
and States' environmental review and permitting processes. The
commenter requested that CEQ clarify in Sec. 1501.12 that there is a
presumption that agencies can incorporate by reference environmental
studies prepared in accordance with State procedural requirements akin
to NEPA. CEQ declines to make this change. Establishing a presumption
that agencies can incorporate by reference States' materials would be
confusing and is unnecessary because the language in Sec. 1501.12
allows agencies to incorporate material generated by States, and Sec.
1506.2 has long promoted elimination of duplication with State
requirements.
D. Revisions To Update Part 1502, Environmental Impact Statements
CEQ proposed to revise several sections of part 1502, as discussed
in section II.D of the NPRM. CEQ is not implementing any substantive
changes to Sec. 1502.3, but is revising the section title to read
``Statutory requirements for environmental impact statements.'' CEQ
[[Page 35494]]
is not making substantive changes to Sec. 1502.6, Interdisciplinary
preparation; Sec. 1502.18, List of preparers; Sec. 1502.19, Appendix;
Sec. 1502.20, Publication of the environmental impact statement; Sec.
1502.22, Cost-benefit analysis; or Sec. 1502.24, Environmental review
and consultation requirements. CEQ received some comments on these
sections but declines to make additional changes, as further explained
in the Phase 2 Response to Comments.
1. Codification of 2023 GHG Guidance
CEQ invited comment on whether it should codify any or all of its
2023 National Environmental Policy Act Guidance on Consideration of
Greenhouse Gas Emissions and Climate Change (2023 GHG guidance).\77\
CEQ also invited comment on which provisions of part 1502 or other
provisions of the CEQ regulations CEQ should amend if a commenter
recommended codification of part of the guidance.
---------------------------------------------------------------------------
\77\ See CEQ, 2023 GHG Guidance, supra note 10.
---------------------------------------------------------------------------
CEQ received numerous comments responding to this request for
comments on codification of the 2023 GHG guidance. Comments expressed
both support and opposition, with many commenters including general
recommendations or considerations that did not specify what amendments
to the rule CEQ should consider. Others identified specific text or
concepts they recommended CEQ include. Some commenters resubmitted the
same comments they submitted on the interim guidance, whereas others
reiterated points they made as part of their comments on the interim
guidance.
Some commenters requested that CEQ incorporate quantification and
contextualization of climate effects from the guidance into the final
rule, with specific suggestions for adding text to Sec. Sec.
1502.16(a)(1), 1501.3(d), and 1508.1(g). Another commenter requested
that CEQ modify Sec. 1502.16(a)(7) to align the provision with the
guidance for emphasizing quantification of emissions in determining
reasonably foreseeable climate change-related effects. This commenter
also recommended CEQ add provisions to Sec. 1501.3 recognizing that
while there is no particular threshold for GHG emissions that triggers
an EIS, Federal agencies should quantify, where relevant, the
reasonably foreseeable direct and indirect GHG emissions of their
proposed actions and reasonable alternatives and the effects associated
with those projected emissions in the determination of significance.
Another commenter asked that CEQ expand Sec. 1502.6(a)(7) or Sec.
1508.1(g)(4) to include key principles from the guidance. The commenter
provided as an example that CEQ could clarify that climate change
related effects should include analysis of reasonably foreseeable
direct, indirect, and cumulative GHG emissions over the expected
lifetime of the action.
Multiple commenters requested that CEQ add, in full, sections
IV(B), (E), and (F); V; VI(A) through (C) and (E); and VII of the
guidance. One commenter requested that CEQ strengthen proposed Sec.
1502.15(b) and proposed Sec. 1502.23(c) to require consideration of
projections based on varying emissions scenarios and related variations
in climate change effects on the proposed action and alternatives. The
commenter referenced information included in the 2023 GHG guidance that
provides important information on quantifying and analyzing uncertainty
in the long-range projects of climate change. The commenter requested
CEQ strengthen the final rule by codifying the need to manage this
uncertainty and analyze it; otherwise, the commenter asserted, agencies
may unlawfully seek to minimize or avoid analysis of long-range
projects of climate change altogether.
One commenter requested that CEQ add consideration for
proportionality and causality in the NEPA analysis of GHG-related
impacts to more appropriately assign mitigation efforts to the true
source of greenhouse gases. Another commenter suggested that CEQ
integrate the warning against perfect substitution analysis from the
guidance directly into the regulatory text. They also requested the
rule include a provision on the appropriate use of the social cost of
GHGs in climate change analyses.
Some commenters opposed codifying any part of the 2023 GHG guidance
for multiple reasons. Two commenters expressed that inclusion of the
guidance in the regulations would trigger concerns on overreach of the
authority of the administrative branch. Other commenters expressed the
view that CEQ should not codify any parts of the guidance until CEQ
resolves policy issues and addresses the comments submitted on the
guidance. A few other commenters were concerned that incorporation of
climate change would unlawfully expand the scope of NEPA analyses past
``foreseeable effects'' and result in agencies prioritizing climate
change above other environmental issues. One commenter expressed that
because climate change science continues to evolve, it would be
premature to codify the guidance and that retaining it as guidance
would provide flexibility to continue to update the manner in which
agencies address climate change in NEPA reviews as science evolves.
Another commenter stated that codification of guidance would be
arbitrary and capricious, and that NEPA was not intended to be a
climate policy framework.
Two commenters stated that if CEQ does decide to codify all or part
of the 2023 GHG guidance, CEQ should issue another NPRM to provide an
opportunity for the public to comment prior to issuing a final rule,
consistent with the APA. Similarly, a few other commenters stated that
CEQ did not provide enough information about how CEQ may incorporate
the guidance, including what parts of the guidance CEQ would include,
and that any attempt to codify the interim guidance through the final
rule would be contrary to CEQ's obligations under the APA.
A few commenters asserted that the guidance wrongfully elevates
climate change and its effects, no matter how small the effect may be,
and that this emphasis is inconsistent with the purpose of NEPA and
recent NEPA amendments.
After considering the comments, CEQ has determined not to revise
the text of the proposed rule in the final rule to codify the 2023 GHG
guidance, with the exception of one revision on quantification that was
requested by commenters and that is included in the final rule in Sec.
1502.16. CEQ responds to the comments summarized here in the Phase 2
Response to Comments, and CEQ will consider these and the comments
received on the 2023 GHG guidance during development of any final GHG
guidance. If CEQ deems it appropriate, CEQ may consider codification of
the 2023 GHG guidance in a future rulemaking.
2. Purpose of an Environmental Impact Statement (Sec. 1502.1)
CEQ proposed to divide Sec. 1502.1 into paragraphs (a), (b), and
(c) to enhance readability and amend the text in the section to restore
the approach taken in the 1978 regulations regarding the purpose of
EISs as they relate to NEPA.
In proposed paragraph (a), CEQ proposed to restore language from
the 1978 regulations clarifying that one purpose of an EIS is to
``serve as an action-forcing device'' for implementing the policies set
out in section 101 of NEPA by ensuring agencies consider the
environmental effects of their action in decision making. 42 U.S.C.
4331. CEQ proposed these changes because Congress did not enact NEPA to
create
[[Page 35495]]
procedure for procedure's sake; rather, NEPA's procedures serve the
substantive policies and goals Congress established and restoring the
action-forcing language would clarify how EISs serve this broader
function. CEQ proposed this change for consistency with the proposed
edits in Sec. 1500.1. See section II.B.1.
One commenter expressed support for the proposed changes in
paragraph (a), specifying that the action-forcing language captures the
intent of NEPA and serves the substantive policies and goals
established by Congress. Multiple commenters opposed the proposed
changes in paragraph (a), asserting that the language is contrary to
the procedural approach of NEPA, and that it elevates the goals of the
Act above the statutory requirements of other legislation. One
commenter requested CEQ replace the proposed clause at the end of the
sentence with language stating that the goals of NEPA cannot and do not
supersede the requirements of other Federal statutes. Specific to the
restoration of the action-forcing language, one commenter opposed the
language because they do not agree that an EIS could be an action-
forcing device on its own. The commenter described that an
environmental study could reveal information that could be action
forcing but that an EIS itself should not be and that an EIS is a
device used to disclose and study the environmental consequences of
actions. Other comments expressed that the phrasing inappropriately
inserts a substantive element into NEPA's procedural requirements.
CEQ disagrees with the assertions of the commenters opposing this
change and restores the language from the 1978 regulations as proposed
in Sec. 1502.1(a). As CEQ articulated in the proposed rule, CEQ
considers it appropriate to restore this text from the 1978 regulations
to ensure that agencies use the information gathered and analyzed in an
EIS in their decision-making processes. CEQ disagrees that this
language, which was part of the 1978 regulations implemented by
agencies and interpreted by courts for decades, imposes a substantive
requirement inconsistent with the statute. This provision does not
require agency decision makers to make any particular decision based on
the information in an EIS; it only requires that the information in an
EIS inform the agency's decision, which is consistent with NEPA, agency
practice, and case law.
In proposed paragraph (b), CEQ proposed minor edits for clarity and
consistency with other changes proposed throughout the regulations. CEQ
proposed to change ``It'' to ``Environmental impact statements'' to
improve readability in light of the proposal to break this section into
lettered paragraphs. CEQ also proposed to change ``significant'' to
``important'' before ``environmental issues'' and insert ``reasonable''
before ``alternatives'' for consistency with similar phrasing
throughout the regulations.
Two commenters requested that CEQ further revise paragraph (b). One
requested that CEQ replace ``enhance'' with ``restore and maintain''
because the underlying statute does not put the burden on Federal
decision makers or project sponsors to ``enhance'' the quality of the
human environment. This commenter pointed to 42 U.S.C. 4331(a) and the
language ``restoring and maintaining environmental quality.'' A second
commenter requested CEQ replace ``avoid and minimize'' with ``reduce to
the extent practical'' to conform to the plain language of the NEPA
statute.
CEQ finalizes Sec. 1502.1(b) as proposed. CEQ does not consider it
necessary to further revise this paragraph as the commenters suggested
because this language has been in the regulations since 1978, and CEQ
is unaware of any confusion or practical or legal problems created by
this language. In the absence of such confusion or problem, CEQ views
the potential cost to agencies and applicants of assessing what, if
any, change in practice is needed to accommodate revised text as likely
to outweigh any potential benefit of the language proposed by the
commenters.
In proposed paragraph (c), CEQ proposed to restore the 1978
language clarifying that an EIS is more than a disclosure document, and
that agencies must use EISs concurrently with other relevant
information to make informed decisions. CEQ considers this language to
provide important direction to agencies to ensure that EISs inform
planning and decision making and do not serve as a perfunctory check-
the-box exercise.
One commenter expressed support for the changes in proposed
paragraph (c) stating that it reinforces that EISs must state how
alternatives and decisions will or will not achieve the requirements of
NEPA, the CEQ regulations, and other environmental laws and policies.
Another commenter expressed that the language regarding an EIS being
more than a disclosure document suggests that something more than a
disclosure of environmental impacts is required to comply with the
regulations. The commenter asserted this is contrary to NEPA's original
intent.
One commenter requested that CEQ delete the last sentence of the
paragraph requiring agencies to use EISs in conjunction with other
relevant material to plan actions and make decisions. The commenter
asserted that the sentence is not tethered to the EIS review process
but addresses agency efforts to plan actions and make decisions, and
therefore, the commenter asserted, CEQ is inserting itself into ongoing
activities beyond environmental review pursuant to NEPA.
CEQ makes the changes as proposed in Sec. 1502.1(c) and adds
``involve the public'' to the last sentence directing agencies to use
other material to plan actions and make decisions. As CEQ noted
elsewhere in this final rule, CEQ disagrees that NEPA is merely a
check-the-box exercise, and considers it appropriate to reinforce this
point in the regulations. CEQ also declines to exclude the proposed
last sentence of paragraph (c). This provision does not go beyond NEPA,
but rather emphasizes that an EIS is one of the documents agencies must
use in their decision-making processes along with other relevant
documents.
3. Implementation (Sec. 1502.2)
CEQ proposed minor modifications to Sec. 1502.2. First, CEQ
proposed to restore from the 1978 regulations the introductory
paragraph directing agencies to prepare EISs consistent with paragraphs
(a) through (g) to achieve the purpose established in Sec. 1502.1.
While the 2020 rule removed this paragraph as unnecessary, upon
reconsideration CEQ proposed to restore the language to provide clarity
on the purpose of this section and improve readability.
One commenter expressed support for all of the proposed revisions
in Sec. 1502.2 to ensure that lead agencies explain in an EIS how
alternatives and agency decisions will or will not achieve the
requirements of NEPA, CEQ regulations, and other environmental
policies. Further, the commenter characterized the proposed changes as
necessary to facilitate NEPA's goals of transparency and public
participation. CEQ appreciates the commenters' supportive statements
and in the final rule adds the introductory paragraph to Sec. 1502.2
as proposed.
Next, in paragraph (b), CEQ proposed to replace the word
``significant'' with ``important'' and add a reference to an EA for
clarity and consistency. In paragraph (c), CEQ proposed to change
``analytic'' to ``analytical,'' and ``project size'' to ``the scope and
complexity of the action'' since this provision is
[[Page 35496]]
applicable to more than projects, and the length of an EIS should be
proportional to the scope and complexity of the action analyzed in the
document.
One commenter expressed support for EISs being brief, concise, and
no longer than necessary, but expressed concern over the language
encouraging that the length of an EIS should be proportional to the
effects and scope because this language conflicts with the page limits
identified in Sec. 1502.7. The commenter requested CEQ delete the
sentence discussing proportionality to resolve any confusion.
CEQ disagrees with the commenter. The page limits provide the
maximum length for EISs. Agencies should not automatically use every
page allowable under the page limits and should not write documents
longer than necessary. This statement acknowledges that some EISs may
be less than the page limits.
CEQ proposed to delete ``as interpreted in'' before ``the
regulations in this subchapter'' in paragraph (d), for consistency with
the changes in Sec. Sec. 1500.6 and 1502.9 as discussed in section
II.B.6. The proposed rule explained that this phrase could
inappropriately constrain agencies whose agency NEPA procedures go
beyond the CEQ regulations. One commenter opposed the deletion of this
language, expressing support for the inclusion of it to meet the spirit
and flexibility of the 2020 rule.
CEQ removes ``as interpreted in'' from paragraph (d) in the final
rule because CEQ considers this language inappropriately constricting
and potentially causing confusion in light of changes CEQ is making to
other provisions of the regulations allowing agencies to tailor their
procedures to their programs and include more specific requirements and
suggestions. Under the revisions, EISs must state how alternatives and
decisions will or will not achieve the requirements of NEPA, the CEQ
regulations, and other environmental laws and policies.
Finally, CEQ proposed to delete the word ``final'' in paragraph (f)
because the regulations do not distinguish between a decision and final
decision and, therefore, using the phrase ``final decision'' is
inconsistent with use of ``decision'' elsewhere in the regulations. CEQ
makes this change as proposed in the final rule.
4. Scoping (Sec. 1502.4)
As discussed in section II.C.8 on Sec. 1501.9, ``Public and
governmental engagement,'' section II.C.2 on Sec. 1501.3, ``Determine
the appropriate level of NEPA review,'' and section II.C.10 on Sec.
1501.11, ``Programmatic environmental document and tiering,'' CEQ
proposed to revise Sec. 1502.4 by retitling it ``Scoping'' and moving
provisions from 40 CFR 1501.9 (2020) to this section and moving the
existing provisions of 40 CFR 1502.4 (2020), ``Major Federal actions
requiring the preparation of environmental impact statements'' to
Sec. Sec. 1501.3 and 1501.11. CEQ proposed to move the requirements of
scoping for EISs to part 1502, which addresses the requirements
specific to EISs, while moving requirements for determining scope
applicable to all environmental reviews to Sec. 1501.3(b). CEQ also
proposed to revise the provisions moved from 40 CFR 1501.9 (2020) to
proposed Sec. 1502.4 to align scoping with related changes made on
public engagement in Sec. 1501.9 and to add requirements focused on
increasing efficiency in the EIS scoping process.
As discussed further in sections II.C.8 and section II.C.10,
commenters were generally supportive of this approach. Commenters did
provide a few targeted comments as discussed further in this section
and the Phase 2 Response to Comments.
CEQ proposed these changes because it has heard from multiple
Federal agencies that there is uncertainty over the differences between
the scoping process required for EISs and other public involvement or
engagement requirements for NEPA reviews more generally. By revising
Sec. 1501.9 on public and governmental engagement and moving the
scoping provisions to Sec. 1502.4, CEQ is emphasizing the importance
of public engagement in the NEPA process generally, clarifying what
requirements are specific to the scoping process for EISs, and
clarifying what requirements and best practices agencies should
consider regardless of the level of NEPA review.
First, CEQ proposed to move 40 CFR 1501.9(a) (2020), outlining the
general purpose of scoping, to Sec. 1502.4(a) and proposed to change
the words ``significant'' and ``non-significant'' to ``important'' and
``unimportant,'' respectively, to align with CEQ's proposed change to
only use the word ``significant'' when describing effects, which CEQ
indicated was a clarifying, non-substantive change. CEQ finalizes this
paragraph as proposed with three additional changes to replace the
paragraph heading ``Generally'' with ``Purpose,'' to more accurately
describe the paragraph; to add use of the word ``scoping'' in the first
sentence to make clear that this sentence is describing the purpose of
scoping; and to change ``may'' to ``should'' in the second sentence to
address comments requesting clarification that scoping can and should
begin prior to issuance of the NOI. This last change also emphasizes
the importance for agencies to begin scoping work early to facilitate
meeting the statutory two-year deadline for completing EISs. CEQ made
clear in the 2020 regulations that scoping should begin as soon as
practicable, so the agency can gather the requisite information to
allow the public to provide meaningful input on the NOI, including on
the topics specifically identified for inclusion in the notice in Sec.
1502.4(e)(1) through (e)(10). Agencies cannot be reasonably expected to
have this information available to them without beginning scoping prior
to issuance of the NOI.
Second, CEQ proposed to move paragraph (c) of 40 CFR 1501.9 (2020)
on scoping outreach to Sec. 1502.4(b) and add an introductory sentence
requiring agencies to facilitate notification to persons and agencies
that may be interested or affected by an agency's proposed action,
consistent with the public and governmental engagement requirements in
proposed Sec. 1501.9. CEQ finalizes this paragraph as proposed.
Third, CEQ proposed to move paragraph (b) of 40 CFR 1501.9 (2020)
on cooperating and participating agencies to Sec. 1502.4(c) and
retitle it ``Inviting participation'' to better reflect that the
paragraph covers cooperating and participating agencies as well as
proponents of the action and other likely affected or interested
persons. CEQ also proposed to strike the last sentence providing an
example of when an agency might hold a scoping meeting.
Some commenters expressed concern for the removal of the language
requiring cooperating and participating agencies be invited and
consulted, and noted their specific reference in the NEPA statute. CEQ
did not intend a substantive change by modifying the paragraph heading
and notes that Sec. Sec. 1501.7 and 1501.8 have long provided for the
invitation of such agencies to serve as cooperating or participating
agencies. In the final rule, CEQ adds a clause to the regulatory text
to make clear that the invitation to Federal, State, Tribal, and local
agencies and governments is to participate as cooperating or
participating agencies. CEQ also notes that agencies invited to serve
as cooperating or participating agencies should respond in a timely
manner to facilitate the inclusion in the NOI of any information that
these agencies may need as part of the scoping process.
A commenter also expressed confusion about the reference to ``the
[[Page 35497]]
proponent of the action'' since that is the lead agency. This phrase,
which has been in the regulations since 1978, refers to an outside
party such as a project sponsor or applicant. Therefore, in this final
rule, CEQ revises this phrase to ``any applicant'' for consistency with
the final rule's definition of ``applicant'' and includes ``any'' since
not all actions will involve such parties.
Fourth, CEQ proposed to move paragraphs (f) and (f)(1) through
(f)(5) of 40 CFR 1501.9 (2020), which addresses additional scoping
responsibilities, to Sec. 1502.4(d) and (d)(1) through (d)(5),
respectively. Within this list, CEQ proposed modifications to paragraph
(d)(1) to change ``significant'' to ``important'' to align with changes
in paragraph (a) and the use of ``significant'' throughout the
regulations, which CEQ intended to be a clarifying, non-substantive
change. CEQ finalizes these changes consistent with its proposal.
Additionally, in paragraph (d)(3) of the final rule, CEQ changes
``public'' EAs and other EISs to ``publicly available'' to clarify the
meaning of this provision.
Fifth, CEQ proposed to move the requirements for an NOI from
paragraphs (d) and (d)(1) through (d)(8) of 40 CFR 1501.9 (2020) to
Sec. 1502.4(e) and (e)(1) through (e)(8), respectively. CEQ proposed
to delete the reference to 40 CFR 1507.3(f)(3) (2020) because CEQ
proposed to remove that provision from the regulations, as discussed in
section II.I.3 of the proposed rule. CEQ proposed to revise the
language in paragraph (e)(7) for consistency with section 107(c) of
NEPA requiring the NOI to include a request for public comment on
alternatives or impacts and on relevant information, studies, or
analyses, and proposed to delete the cross reference to Sec. 1502.17
because CEQ proposed to broaden the language in Sec. 1502.17. 42
U.S.C. 4336a(c). CEQ also proposed to delete the cross reference
because it would no longer be necessary since CEQ proposed to remove
the exhaustion process in 40 CFR 1500.3 (2020), which relied, in part,
on this provision as the first step in that process. Lastly, CEQ
proposed these edits because the purpose of scoping is to receive input
from the public on the proposed action and alternatives as well as
other information relevant to consideration of the proposed action, and
CEQ considered the language in this paragraph to be redundant to the
other required information in proposed paragraph (e). CEQ is finalizing
these changes as proposed for the reasons set forth in the NPRM and
this final rule. Also, CEQ revises paragraph (e)(1) to add the word
``agency'' between ``proposed action'' to align the text with changes
to Sec. 1502.13 and for consistency with section 107(d) of NEPA. See
42 U.S.C. 4336a(d).
Sixth, to this list of NOI requirements, CEQ proposed to add
paragraph (e)(9) to require the lead agency to list any cooperating and
participating agencies that have been identified at the time of the
NOI, as well as any information those agencies require to facilitate
their decisions or authorizations related to the EIS. CEQ proposed to
add this requirement to ensure that lead and cooperating agencies
communicate about any unique statutory or regulatory requirements of
each agency so that the necessary information is included in the
initial NOI and does not require re-issuance of a second NOI by the
cooperating or participating agency. For example, the U.S. Forest
Service's regulations regarding administrative review require the
responsible official to disclose during the NEPA scoping process that a
proposed project or activity or proposed plan, plan amendment, or plan
revision is subject to one of its administrative review regulations. 36
CFR 218.7(a), 219.52(a). When the Forest Service acts as a cooperating
agency and the lead agency does not include the necessary information
in the NOI, the Forest Service then must issue its own NOI, which can
add additional time to the NEPA process. CEQ is finalizing this
proposal consistent with the NPRM.
Seventh, CEQ proposed to add paragraph (e)(10) to require that the
NOI include a unique identification number for tracking purposes that
would be carried forward in all other documents related to the action
such as the draft and final EISs and ROD (comparable to the provision
in Sec. 1501.5(c)(4) requiring tracking numbers for EAs). As discussed
in greater detail in section II.C.4, CEQ proposed this provision
because identification numbers can help both the public and agencies
track the progress of an EIS for a specific action as it moves through
the NEPA process. In the final rule, CEQ has retained the proposal and,
in response to comments, added a clause to also require use of the
unique identification numbers in any agency databases or tracking
systems.
Eighth, CEQ proposed to move and edit the second sentence regarding
supplemental notices in 40 CFR 1507.3(f)(3) (2022) to paragraph (f),
``Notices of withdrawal or cancellation,'' to require that an agency
publish in the Federal Register a notice of withdrawal of the NOI or a
supplemental notice to inform the public that it is no longer
considering a proposed action and, therefore, discontinuing preparation
of an EIS. CEQ proposed this requirement to codify common agency
practice and to increase transparency to the public. CEQ is finalizing
this change as proposed because agencies should publish such notices if
they withdraw, cancel, or otherwise cease the consideration of a
proposed action before completing a final EIS in order to provide
notice to the public that a proposed action is no longer under
consideration. Such a notice does not need to be lengthy, but should
clearly reference the original NOI, name of the project in the original
notice, unique identification number, and who to contact for additional
information.\78\
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\78\ See, e.g., U.S. Forest Serv., Powell Ranger District; Utah;
Powell Travel Management Project; Withdrawal of Notice of Intent to
Prepare an Environmental Impact Statement, 87 FR 1109 (Jan. 10,
2022); U.S. Army Corps of Eng'rs, Withdrawal of the Notice of Intent
to Prepare an Environmental Impact Statement for the Carpinteria
Shoreline, a Feasibility Study in the City of Carpinteria, Santa
Barbara County, CA, 86 FR 41028 (July 30, 2021).
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Finally, CEQ proposed to move paragraph (g) of 40 CFR 1501.9 (2020)
on NOI revisions to Sec. 1502.4(g), updating the cross references and
changing ``significant'' to ``important'' and ``impacts'' to
``effects,'' which CEQ indicated was a clarifying, non-substantive
edit. CEQ makes this change in the final rule, consistent with the NPRM
to align the text with the changes to Sec. 1502.9(d)(1)(ii).
5. Timing (Sec. 1502.5)
CEQ proposed to make three clarifying amendments to Sec. 1502.5.
First, in paragraph (a), CEQ proposed to add ``e.g.,'' in the
parenthetical ``(go/no-go).'' CEQ proposed this amendment in response
to agency feedback during the development of the proposed rule to
clarify that the feasibility analysis and the ``go/no-go'' stage may
not occur at the same point in time and may differ depending on what is
included in the feasibility analysis and how the agency has structured
that analysis. CEQ proposed this change for consistency with the
longstanding practice that agencies have discretion to decide the
appropriate time to begin the NEPA analysis, but also that agencies
should integrate the NEPA process and other planning or authorization
processes early. See Sec. 1501.2(a).
Two commenters recommended CEQ delete the introductory paragraph of
Sec. 1502.5 encouraging agencies to commence preparation of an EIS as
close as practicable to the time the agency is developing or receives a
proposal, as well as the feasibility analysis and go/no-go language in
[[Page 35498]]
paragraph (a). The commenters asserted that the feasibility analysis
stage is generally considered an early stage of project management and
suggested this stage was pre-proposal and therefore pre-NEPA. The
commenters explained that this stage can and should take considerable
time, and therefore should not be covered by the time limits, or
agencies will likely miss the statutory deadlines. The commenters
asserted that the NEPA process should not commence until this stage is
completed. One of these commenters further pointed to the statutory
definition of ``proposal'' added in 2023 and asserted this should be
the starting point for the timing requirements for EISs and EAs. The
commenter further asserted that CEQ should encourage pre-NEPA
``environmental considerations'' early in agency planning and decision
making prior to issuing a NOI to file an EIS.
In the final rule CEQ revises Sec. 1502.5(a) to revise ``at the
feasibility analysis (go/no-go) stage'' to instead refer to the
feasibility analysis or equivalent stage evaluating whether to proceed
with the project. This revised text improves the clarity of the
sentence and recognizes that feasibility analyses are not a component
of project authorizations for every agency. The regulations have long
encouraged agencies to integrate NEPA into their planning and decision-
making processes. As CEQ advised in the 2020 regulatory revisions,
agencies often begin ``pre-NEPA'' work before they make the formal
determination to prepare an EIS by issuing a NOI. As discussed in
section II.D.4, agencies must commence this work before issuing an NOI
in order to meet the content requirements for an NOI. CEQ does not
consider it necessary to delineate these phases in the regulations, as
the commenter suggests, because agencies have decades of experience in
developing EISs consistent with this provision, and CEQ is unaware of
any agency concerns with or practical problems created by this
provision.
Second, CEQ proposed to add ``complete'' in the first sentence of
paragraph (b) to clarify that agencies must begin preparing an EIS
after receiving a complete application, though agencies can elect to
begin the process earlier if they choose to do so. CEQ also proposed to
add ``together and'' in the second sentence of paragraph (b) to clarify
further that agencies should work ``together and with'' potential
applicants and other entities before receiving the application. CEQ
proposed these changes based on its experience that early conversations
and coordination among Federal agencies, the applicant, and other
interested entities can improve efficiencies in the NEPA process and
ultimately lead to better environmental outcomes. Additionally, CEQ
noted that similar to the proposed change to paragraph (a), the
proposed changes to paragraph (b) are consistent with other directions
in the regulations to integrate the NEPA process and other processes
early. See Sec. Sec. 1500.5(h)-(i), 1501.2(a).
One commenter requested CEQ revise paragraph (b) in order to ensure
there are no unnecessary delays in proceeding. The commenter suggested
language be added to require agencies to commence review of the
application and decide on its completeness within 30 days and issue a
NOI within 6 months. The commenter also requested CEQ add language
requiring agencies to establish objective measures in their regulations
for determining when an application is complete.
CEQ declines to add this level of specificity in its regulations
because the regulations apply to a broad range of agencies and
contexts, and these specific requirements may not work for all of them.
Instead, it is best left to agency-specific NEPA procedures or agency
program regulations to articulate these sorts of deadlines. In the
final rule, CEQ adds ``complete'' in paragraph (b) consistent with its
proposal.
6. Page Limits (Sec. 1502.7)
CEQ proposed to amend Sec. 1502.7, to align the text with section
107(e) of NEPA, which sets page limits for EISs at 150 pages or 300
pages for proposals of extraordinary complexity, not including
citations or appendices. 42 U.S.C. 4336a(e). CEQ proposed to remove the
requirement for the senior agency official of the lead agency to
approve longer documents for consistency with the statute, which does
not provide a mechanism to approve longer documents.
CEQ received a number of comments on page limits. Some commenters
expressed concerns that the page limits would prevent agencies from
conducting the requisite analysis under NEPA. Some of those commenters
requested that CEQ retain the provision allowing the senior agency
official to authorize an exceedance of the page limits. Other
commenters expressed support for the page limits and requested that CEQ
impose additional requirements to ensure agencies do not circumvent the
page limits. Commenters also requested CEQ define ``extraordinary
complexity.''
CEQ makes the changes as proposed in the final rule. The NEPA
statute sets clear page limits for EAs and EISs and does not establish
a mechanism for exceeding those page limits. Allowing senior agency
officials to approve an exceedance of the page limits would undermine
the direction in the statute and CEQ's longstanding goals of developing
concise, readable NEPA documents that will inform the decision maker
and the public. CEQ is confident that agencies can both meet page
limits and fully consider the elements required by the statute and
these regulations.
CEQ has long encouraged and continues to strongly encourage
agencies to prepare EISs that are both comprehensive and informative,
as well as understandable, to the decision maker and the public.
Agencies should consider establishing within their procedures
mechanisms to do so that will be most effective for their programs and
activities. These mechanisms could include placing technical analyses
in appendices and summarizing them in plain language in the EIS; making
use of visual aids, which are excluded from the definition of ``page''
provided by Sec. 1508.1(bb), including sample images, maps, drawings,
charts, graphs, and tables; and using interactive documents, insets,
colors, and highlights to create visually interesting ways to draw
attention to key information and conclusions. Agencies should consider
making EISs and technical appendices machine readable, where possible
and feasible, to facilitate data sharing and reuse in future analyses.
7. Writing (Sec. 1502.8)
CEQ proposed minor edits to Sec. 1502.8 to change ``may'' to
``should'' and change ``graphics'' to ``visual aids or charts'' for
consistency with modifications proposed in Sec. 1502.12 regarding
visual aids or charts. One commenter expressed support for the proposed
changes to require agencies to use plain language and encourage use of
visual aids and charts. However, this commenter stated that use of
visual aids and charts must be designed to be understandable to non-
technical audiences, pointing to documents they have reviewed that
included tables that are difficult to understand.
CEQ makes the edits as proposed in Sec. 1502.8 in the final rule.
The CEQ regulations have long required agencies to write environmental
documents in plain language as a means to preparing readable, concise,
and informative documents. See, e.g., Sec. Sec. 1500.4 and 1502.8.
Agencies commonly use visual aids, such as graphics, maps, and
pictures, throughout their environmental documents. CEQ agrees with the
commenters that the visual
[[Page 35499]]
aids and charts must be understandable but does not consider it
necessary to make additional changes to the regulatory text since the
text indicates that the purpose of visual aids and charts is to enable
decision makers and the public to readily understand the EIS. EISs must
be written in plain language, and this requirement would also apply to
visual aids and charts.
8. Draft, Final, and Supplemental Statements (Sec. 1502.9)
CEQ did not propose any substantive changes to paragraph (a) of
Sec. 1502.9 and did not receive any comments on it. Therefore, CEQ
finalizes paragraph Sec. 1502.9(a) as proposed.
CEQ proposed to revise paragraph (b) addressing draft EISs by
deleting ``as interpreted'' from the requirement that draft EISs meet
the requirements for final EISs in section 102(2)(C) of NEPA ``as
interpreted in the regulations in this subchapter.'' 42 U.S.C.
4332(2)(c). CEQ proposed to delete this clause as inappropriately
restrictive and for consistency with the same proposed change in
Sec. Sec. 1500.6 and 1502.2. CEQ makes this change in the final rule
for the reasons discussed in section II.B.6 with respect to deleting
the same phrase in Sec. 1500.6.
CEQ also proposed to add the phrase ``the agency determines that''
to the introductory clause of the third sentence of Sec. 1502.9(b) so
that the beginning of the sentence would read, ``If the agency
determines that a draft statement is so inadequate as to preclude
meaningful analysis.'' CEQ proposed this addition to clarify that it is
the agency preparing a draft EIS that determines a draft statement
requires supplementation to inform its decision-making process.
A commenter suggested additional language for the second sentence
of paragraph (b) to clarify that a lead agency must work with a
cooperating agency to develop the proposed action and subsequent range
of all alternatives. Another commenter recommended CEQ add the phrase
``may identify a preferred alternative'' to the end of Sec. 1502.9(b)
to clarify that agencies have the authority to identify a preferred
alternative in a draft EIS.
In the final rule, CEQ revises paragraph (b) consistent with its
proposed clarifying changes. CEQ declines to make the edits suggested
by the commenters as Sec. Sec. 1501.7 and 1501.8 address the roles of
lead and cooperating agencies, and Sec. 1502.14(d) already requires
agencies to identify a preferred alternative or alternatives in the
draft EIS, if one or more exists.
In Sec. 1502.9(c), CEQ proposed to clarify that a final EIS should
``consider and respond'' to comments rather than just ``address'' them,
thereby restoring language from the 1978 regulations and aligning the
language with text in Sec. 1503.4(a) regarding consideration of
comments. The proposed rule explained that the 2020 rule did not
explain the change from ``consider and respond'' to ``address,'' \79\
and CEQ is concerned that it could be read as weakening the standard
for responding to comments within Sec. 1502.9 and in Sec. 1503.4. CEQ
makes this change in the final rule for consistency with Sec.
1503.4(a).
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\79\ See CEQ, 2020 Final Rule, supra note 39, at 43364-65.
---------------------------------------------------------------------------
One commenter suggested that CEQ replace ``responsible opposing
view'' in paragraph (c) with ``relevant and non-frivolous opposing
view'' to promote transparency and remove subjectivity regarding the
definition of ``responsible.'' In the final rule, CEQ revised paragraph
(c) consistent with its proposed clarifying changes. CEQ declines to
change ``responsible,'' which has been in the regulations since 1978,
and CEQ has not heard that there is confusion regarding the meaning of
this term or that it is creating practical problems for agencies
implementing NEPA or the public seeking to participate in NEPA reviews.
CEQ interprets this phrasing to mean that there is a reasoned basis for
the opposing view, not one that is arbitrary.
Paragraph (d) of Sec. 1502.9 and its subparagraphs address the
standards for supplemental EISs. While CEQ did not propose changes to
paragraph (d)(1), a commenter suggested that the phrase ``if a major
Federal action remains to occur'' is vague. In the final rule, CEQ
revises the text in paragraph (d)(1) addressing when an agency has to
consider a supplemental EIS. In the 2020 rule, CEQ added a clause to
specify that agencies prepare supplements if an action ``remains to
occur.'' Upon further consideration, CEQ revises this phrase in the
final rule to ``is incomplete or ongoing'' to provide more clarity and
specifically identify the circumstances when an agency needs to
consider supplementation. CEQ intends the phrase ``incomplete and
ongoing'' to have the same substantive meaning as ``remains to occur,''
and notes that courts have used both phrases. See, e.g., Marsh v. Or.
Nat. Res. Council, 490 U.S. 360, 373 (1989) (holding that
supplementation may be required ``[i]f there remains major Federal
action to occur''; Norton v. S. Utah Wilderness All., 542 U.S. 55, 73
(2004) (citing Marsh and holding that an agency is not required to
supplement when the action in question is ``completed,'' and is no
longer ``ongoing'').
In paragraph (d)(1)(ii), CEQ proposed to replace the word
``significant'' with ``important'' and ``impacts'' with ``effects''
(except where ``impact'' is used as part of the term FONSI) for
consistency, as discussed in section II.A. CEQ also proposed to add
``substantial or'' before ``important new circumstances or
information,'' for consistency with language in section 108(1) of NEPA,
which confirms that an agency may rely on the analysis in an existing
programmatic environmental document for five years without having to
supplement or reevaluate the analysis, provided no substantial new
circumstances or information exists. 42 U.S.C. 4336b(1).
Two commenters indicated that the proposed rule does not align with
the statutory language in section 108 of NEPA regarding supplementation
and reevaluation, because that section does not include the words ``or
important'' before ``new circumstances.'' See 42 U.S.C. 4336b. Two
commenters opposed the replacement of ``significant'' with
``substantial,'' expressing concern that it will increase uncertainty.
A few commenters also requested that CEQ add definitions for
``substantial changes,'' ``substantial or important new
circumstances,'' and ``environmental concerns are not substantial.''
In the final rule, CEQ revises paragraph (d)(1)(ii) by replacing
``significant'' with ``substantial'' to track the language of section
108(1) of NEPA requiring agencies to supplement if there are
substantial new circumstances or information about the significance of
adverse effects that bear on the analysis. 42 U.S.C. 4336b(1). CEQ
interprets this language as consistent with the longstanding standard
for supplementation and considers it a non-substantive change that
clarifies one of the standards for supplementation of an EIS. Directly
incorporating the language from section 108(1) of NEPA also avoids
creating an implication that there are different supplementation
standards for programmatic environmental documents and other
environmental documents. As noted, the language in section 108(1) is
consistent with longstanding practice, so there are not different
standards for supplementation for programmatic environmental documents.
42 U.S.C. 4336b(1). This approach also obviates the need for the
definitions requested by commenters because agencies have extensive
experience applying the supplementation standard.
One commenter suggested that CEQ revise Sec. 1502.9(d)(1)(ii) to
clarify that
[[Page 35500]]
supplementation is not limited to new environmental effects and that it
also would apply to situations where the purpose and need or the
alternatives are changed. CEQ declines to edit this paragraph to
clarify this point because this scenario would be covered by the other
criterion for supplementation in paragraph (d)(1)(i). Consistent with
existing agency practice, agencies should continue to focus on whether
a change to the proposed action could have environmental effects that
have not been analyzed in determining whether changes to the proposed
action require supplementation.
Another commenter noted that the cross-reference to the Emergencies
section, Sec. 1506.11, was incorrect in proposed paragraph (d)(3). In
the final rule, CEQ fixes the cross reference and revises ``alternative
procedures'' to ``alternative arrangements'' for consistency with the
phrasing of Sec. 1506.11.
CEQ proposed to redesignate paragraph (d)(4) of 40 CFR 1502.9
(2020) as paragraph (e) of Sec. 1502.9 and title it ``Reevaluation''
to clarify that reevaluation is a separate tool to document new
information when supplementation is not required. CEQ proposed to add
in paragraph (e) that agencies may ``reevaluate'' an EIS in part to
determine that changes to the proposed action or new circumstances or
information relevant to environmental concerns are not ``substantial''
or ``that the underlying assumptions of the analysis remains valid,''
and therefore, the agency does not need to prepare a supplemental EIS.
CEQ proposed this language in part for consistency with section 108(2)
of NEPA's rule that an agency may rely on programmatic documents that
are more than five years old if it reevaluates the underlying analysis.
42 U.S.C. 4336b(2). However, while section 108(2) requires reevaluation
for programmatic documents more than five years old, CEQ proposed to
leave agencies discretion over whether and when to reevaluate non-
programmatic documents. 42 U.S.C. 4336b(1).
One commenter requested that CEQ revise paragraph (e) to clarify
that when agencies reevaluate their NEPA documents, supplementation is
required if the changes are substantial or the underlying assumptions
of the analysis do not remain valid. A couple of commenters requested
specific wording changes, including adding ``or important'' after
``substantial'' in the first sentence of paragraph (e) and changing
``the agency should'' to ``the agency must document the finding.''
Another commenter asked CEQ to revise paragraph (e) to clarify that new
circumstances or information in the absence of a major Federal action
do not trigger a requirement to reevaluate an EIS. Another commenter
recommended language to clarify that reevaluation should only be
permitted in circumstances for which the proposed action has not
changed physical location.
In the final rule, CEQ revises paragraph (e) to simplify the
paragraph on reevaluation and provide that agencies may reevaluate EISs
to determine that supplementation is not required. This text is
substantively the same as the proposed rule, but avoids unnecessary
repetition of the standard for supplementation and avoids any potential
confusion that there is an independent standard for reevaluation.
Agencies may use reevaluation to document why a change to an action or
new information does not require supplementation. Additionally,
agencies may use reevaluation to conduct additional analysis to
determine whether the change to the action or the new information meets
either of the criteria for supplementation; in such cases, the agency
would then prepare a supplemental EIS. Some agency procedures already
provide such processes and Sec. 1507.3(c)(10) provides that agencies
must include such processes in their NEPA procedures, as appropriate.
CEQ revises the last sentence of paragraph (e) to clarify that agencies
also may prepare a supplemental EA and FONSI to reevaluate an EIS. Some
agencies already do this in practice, and CEQ is revising this language
in the final rule to codify the practice.
One commenter provided general feedback on Sec. 1502.9
recommending CEQ include language requiring that final EISs and
reevaluated EISs adhere to the regulatory requirements in place at the
time the agency develops the supplement. CEQ declines to make these
changes as agencies are in the best position to determine which
regulatory requirements apply on a case-by-case basis, consistent with
Sec. 1506.12, which addresses the effective date of the final rule.
9. Recommended Format (Sec. 1502.10)
In Sec. 1502.10, CEQ proposed to revise the recommended format of
an EIS. CEQ proposed to add cross references to the relevant regulatory
sections at the end of paragraphs (a)(1), (a)(2), and (a)(4) through
(a)(6). In paragraph (a)(7), CEQ proposed to strike the reference to
``submitted alternatives, information, and analyses'' given the
proposed revisions to Sec. 1502.17. CEQ proposed to move appendices to
paragraph (a)(7), include the summary of scoping information required
by Sec. 1502.17 and the list of preparers required by Sec. 1502.18 in
appendices, rather than the main body of the EIS, and add cross
references to the relevant regulatory sections. Therefore, CEQ proposed
to strike paragraphs (a)(8) and (a)(9) of 40 CFR 1502.10 (2020)
referencing the list of preparers and appendices since these lists
would be addressed in paragraph (a)(7). Finally, CEQ proposed to revise
paragraph (b) to require agencies to include all of the sections
referenced in paragraph (a) if they choose to use a different format.
CEQ received minimal comments on the proposed changes to Sec.
1502.10, and the few comments submitted expressed support for the
proposed changes. One commenter also requested that CEQ require the EIS
format for EAs. CEQ makes the changes to Sec. 1502.10 as proposed. CEQ
declines to apply this section to EAs as well because Sec. 1501.5
already addresses the required sections of an EA.
10. Cover (Sec. 1502.11)
CEQ proposed to revise Sec. 1502.11(a) to clarify that the list of
``responsible agencies'' on an EIS cover are the ``lead, joint lead,
and any cooperating agencies.'' CEQ did not receive comments specific
to this proposal but has added the phrase ``to the extent feasible''
before ``any cooperating agencies'' to address the rare circumstance in
which there may be such a large number of cooperating agencies that
listing all of them on the cover would make the cover unreadable. In
such circumstances, an agency may include a note on the cover that
identifies where in the EIS a list of the cooperating agencies is
found.
Consistent with the proposed change in Sec. 1502.4(e)(10) to
require a unique identification number for tracking purposes, CEQ
proposed to amend paragraph (g) to require the cover to include the
identification number identified in the NOI. As discussed further in
sections II.C.4 and II.D.4, CEQ is including the requirement for unique
identification numbers in the final rule, and therefore adds this
requirement to Sec. 1502.11(g) as proposed. The inclusion of the
identification number on the cover clarifies the relationships of
documents to one another, helps the public and decision makers easily
track the progress of the EIS as it moves through the NEPA process, and
facilitates digitization and analysis.
CEQ proposed to strike the requirement in paragraph (g) of 40 CFR
1502.11 (2020) to include on the cover
[[Page 35501]]
of the final EIS the estimated preparation cost. Multiple agencies
requested this change during development of the proposed rule. The 2020
rule added this requirement stating that including estimated total
costs would be helpful for tracking such costs, and that agencies could
develop their own methodologies for tracking EIS preparation costs in
their agency NEPA procedures.\80\ However, Federal agency commenters
stated that agencies typically do not estimate total costs, that they
are difficult to monitor especially when applicants and contractors are
bearing some of the cost, that the methodology for estimating costs is
inconsistent across agencies, and that providing these estimates would
be burdensome. At least one agency commenter noted that agencies
inconsistently implemented a similar requirement in E.O. 13807,\81\
which undermined the utility of the estimates, that tracking costs
added a significant new burden on staff, and that it was not clear
whether tracking such costs provided useful information for agencies or
the public.
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\80\ Id. at 43329.
\81\ E.O. 13807, supra note 14.
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Commenters both supported and opposed the proposal to remove the
requirement to include the estimated preparation costs on the cover of
the final EIS. Commenters who supported removing the requirement stated
that the requirement added in 2020 imposed a substantial administrative
burden on agencies and increased the length of the EIS preparation
process because accurately tracking the total cost of preparation is
difficult and labor-intensive. A few commenters expressed support for
removing the requirement but suggested that, in order to facilitate
transparency, CEQ could encourage agencies to include estimated cost
information in the EIS, indicating this information could easily be
included in an appendix.
Commenters who opposed the removal expressed that the requirement
improves transparency and accountability and also suggested that
tracking costs can improve the efficiency of the NEPA process. One
commenter also asserted that CEQ failed to explain why it is no longer
necessary to fulfill the data gap that was outlined in the 2020
rulemaking as a basis for adding the requirement.
As stated in the proposed rule, CEQ does not consider EIS costs to
be germane to the purpose of an EIS. Requiring that they be included on
the cover could incorrectly lead the public and decision makers to
believe that those costs provide information about the proposed action
addressed in the EIS. In general, the purpose of the cover is to
indicate the subject matter of the document and provide the public with
an agency point of contact, provide a short abstract of the EIS, and
indicate the date by which the public must submit comments. Further,
CEQ was concerned that requiring agencies to calculate costs may
unnecessarily add time and expense to the EIS preparation process,
particularly where aspects of an environmental review serve multiple
purposes, and allocating costs to NEPA compliance and other obligations
may be complicated.
CEQ recognizes the value in gathering information on overall costs,
trends in costs, and approaches that can reduce costs, as this can
provide a full picture of how and whether agencies are effectively
using their resources, including to conduct environmental reviews. Each
agency should track and monitor these costs through their own
procedures and mechanisms and consult with CEQ about any lessons
learned to inform CEQ's ongoing evaluation of the efficiency and
effectiveness of the NEPA process. However, CEQ does not consider
requiring in the NEPA regulations that agencies publish costs on the
cover of EISs to be the appropriate mechanism to develop that
information.
CEQ considered the comments it received and is removing the
requirement to include costs from paragraph (g). Removing this
requirement does not preclude agencies from developing cost information
or including it in an EIS if they deem it appropriate, but CEQ is
concerned that the increased administrative burden of tracking costs,
including the potential additional time needed to gather information,
will unnecessarily delay NEPA processes. Further, the lack of
consistent methodology across agencies coupled with the significant
burden to develop consistent methodology, for which CEQ lacks the
specialized expertise to do so, limits the utility of requiring
agencies to present this information.
11. Summary (Sec. 1502.12)
CEQ proposed modifications to Sec. 1502.12 to clarify the purpose
of the summary and update what elements agencies should include in the
summary, with a goal of creating summaries that are more useful to the
public and agency decision makers. CEQ proposed these changes so that
the summary would provide the public and agency decision makers with a
clear, high-level overview of the proposed action and alternatives, the
significant effects, and other critical information in the EIS.
In the second sentence of Sec. 1502.12, CEQ proposed to replace
the word ``stress'' with ``include'' in describing the contents of the
summary to clarify that an adequate and accurate summary may include
more than what is listed in Sec. 1502.12. Next, CEQ proposed to
clarify that the summary should ``summarize any disputed issues,''
``any issues to be resolved,'' and ``key differences among
alternatives.''
CEQ proposed these changes to provide the public and decision
makers with a more complete picture of the disputed issues, rather than
focusing on ``areas of'' disputed issues, and to facilitate informed
decision making and transparency. CEQ also proposed these edits for
consistency with Sec. 1502.14(b), which requires agencies to discuss
alternatives in detail. CEQ explained in the proposed rule that
summarizing the key differences between alternatives would enhance the
public's and decision makers' understandings of the relative trade-offs
between the alternatives that the agency considered in detail.
One commenter expressed concern with CEQ's proposal stating that
summarizing ``any'' issue trivializes the analytical process and makes
the summary more like a catalog of issues raised, regardless of how
ill-informed or baseless the issues may be.
CEQ finalizes the changes as proposed. CEQ disagrees with the
commenter's interpretation of the use of the term ``any.'' CEQ's intent
in using the qualifier ``any'' is to acknowledge that some EISs will
not have any disputed issues or issues for resolution. It is not CEQ's
intent for agencies to include a laundry list of every minor issue.
Rather, CEQ intends the summary to explain the big-picture and
important issues that the EIS addresses.
CEQ also proposed to add language to the second sentence to require
that the summary identify the environmentally preferable alternative or
alternatives. CEQ proposed this addition to enhance the public's and
decision makers' understandings of the alternative or alternatives that
will best promote the national environmental policy, as expressed in
section 101 of NEPA, by providing a summary of that alternative early
on in the document. As discussed further in section II.D.13, CEQ is
finalizing its proposal to require agencies to identify the
environmentally preferable alternative in the EIS, and therefore
finalizes this addition to Sec. 1502.12 as proposed.
[[Page 35502]]
CEQ proposed to add a third sentence to Sec. 1502.12 to require
agencies to write the summary in plain language and encourage use of
visual aids and charts. CEQ proposed this addition to make EIS
summaries easier to read and understand.
One commenter expressed support for the proposed changes to require
agencies to write the summary in plain language and to encourage use of
visual aids and charts. However, this commenter stated that agencies
must design their use of visual aids and charts to be understandable to
non-technical audiences, pointing to documents they have reviewed that
included tables that are difficult to understand.
CEQ adds the proposed sentence to Sec. 1502.12 in the final rule.
The CEQ regulations have long required agencies to write environmental
documents in plain language as a means to preparing readable, concise,
and informative documents. See, e.g., 40 CFR 1500.4 and 1502.8 (2019).
Agencies commonly use visual aids, such as graphics, maps, and
pictures, throughout their environmental documents. CEQ agrees with the
commenters that visual aids and charts should be understandable but
does not consider it necessary to make additional changes to the
regulatory text. Section 1502.8 explains that agencies should use
visual aids or charts in EISs so that decision makers and the public
can readily understand them, which includes in the summary.
Finally, similar to other changes regarding page limits, CEQ
proposed to allow agencies flexibility in the length of a summary. CEQ
proposed to remove the 15-page limitation on summaries and instead to
encourage that summaries not exceed 15 pages. Although summaries should
be brief, CEQ acknowledged with this proposed change that some proposed
actions are more complex and may require additional pages.
One commenter suggested that CEQ require the summary to include a
consistency analysis that compares the proposed action and alternatives
with applicable State and county resource management plans and State
statutes. To accommodate their suggestion, the commenters indicated
that the page limit might need to be adjusted to more than 15 pages.
CEQ makes the change to the length of summaries as proposed to
provide agencies with flexibility to vary the length of documents based
on the complexity of the action. Because summaries count toward the
page limits set in Sec. 1502.7, agencies have an incentive to keep
summaries as short as possible while providing necessary information to
the public and decision makers. While CEQ declines to require the
summary to include a consistency analysis per the commenter's
suggestion because it is inappropriately specific for government-wide
regulations, the additional flexibility for length would accommodate
such an approach, should an agency choose to do so.
12. Purpose and Need (Sec. 1502.13)
CEQ proposed to revise Sec. 1502.13 to align the language with the
text of section 107(d) of NEPA, which requires an EIS to include a
statement that briefly summarizes the underlying purpose and need for
the proposed agency action. See 42 U.S.C. 4336a(d).
CEQ received multiple comments requesting that CEQ revise Sec.
1502.13 to revert to the 2020 rule's language providing that when an
agency's statutory duty is to review an application for authorization,
the agency must base the purpose and need on the applicant's goals and
the agency's authority. CEQ revised this language in the Phase 1
rulemaking and declines to restore the 2020 language for the reasons
discussed in the Phase 1 rulemaking, the Phase 1 Response to Comments,
and the Phase 2 Response to Comments. Additionally, CEQ declines to
include this language in the final rule because it is inconsistent with
section 107(d) of NEPA. 42 U.S.C. 4336a(d). CEQ revises Sec. 1502.13
as proposed.
One commenter requested CEQ clarify that the purpose and need of a
proposed action should define or limit the reasonableness of the range
of alternatives, which is identified in the statutory amendments. CEQ
addresses alternatives in Sec. 1502.14 and declines to edit this
section to address alternatives. Another commenter requested CEQ add a
direction for agencies to use narrow purpose and need statements that
limit the potential reasonable alternatives. CEQ declines to make this
change because it would be inconsistent with section 107(d) of NEPA and
would undermine the discretion and judgment that agencies appropriately
exercise in defining the purpose and need for their actions. See 42
U.S.C. 4336a(d).
13. Alternatives Including the Proposed Action (Sec. 1502.14)
CEQ proposed revisions to Sec. 1502.14 to promote the rigorous
analysis and consideration of alternatives. To that end, CEQ proposed
to reintroduce to Sec. 1502.14 much of the 1978 text that the 2020
rule removed and to modernize it to ensure agency decision makers are
well-informed. Many commenters on the Phase 1 rule requested CEQ revise
this provision to revert to the 1978 language or otherwise revise it to
ensure agencies fully explore the reasonable alternatives to their
proposed actions.\82\
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\82\ See CEQ, Phase 1 Response to Comments, supra note 52, at
162.
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First, CEQ proposed to revise the introductory paragraph of Sec.
1502.14 to reinstate the language from the 1978 regulations that
provided that the alternatives analysis ``is the heart of the
environmental impact statement.'' As CEQ explained in the NPRM, while
the 2020 rule described this clause as ``colloquial language'' to
justify its removal,\83\ CEQ has reconsidered its position and now
considers the language to be an integral policy statement that
emphasizes the importance of the alternatives analysis to allow
decision makers to assess a reasonable range of possible approaches to
the matters before them, and notes that numerous court decisions quoted
this language from the 1978 regulations in stressing the importance of
the alternatives analysis. See, e.g., Wyoming v. U.S. Dep't of Agric.,
661 F.3d 1209, 1243 (10th Cir. 2011). The proposed rule also noted that
numerous commenters on the 2020 rule and the 2022 Phase 1 rule
supported the inclusion of this language.\84\
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\83\ See CEQ, 2020 Final Rule, supra note 39, at 43330.
\84\ See, e.g., CEQ, 2020 Response to Comments, supra note 69,
at 274; CEQ, Phase 1 Response to Comments, supra note 52, at 55.
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Multiple commenters supported restoring the language that describes
the alternatives section as the heart of the EIS, citing pre-1978 case
law and asserting that without evaluation of reasonable alternatives,
the NEPA process loses its potential to truly inform better decision
making. Another commenter asserted that robust analysis of the relative
environmental effects of a range of reasonable alternatives is
necessary to ensure the EIS serves the regulatory purpose of providing
for meaningful public input and informed agency decision making. In the
final rule, CEQ reinstates the language from the 1978 regulations to
the introductory paragraph of Sec. 1502.14, as proposed.
Second, CEQ proposed a clarifying edit in the second sentence of
the introductory paragraph to replace ``present the environmental
impacts'' with ``identify the reasonably foreseeable environmental
effects'' for consistency with Sec. 1500.2(e) and section 102(2)(C)(i)
of NEPA. 42 U.S.C. 4332(2)(C)(i). CEQ did not receive comments specific
to this proposal and makes this change in the final rule.
Third, in the introductory paragraph, CEQ proposed to add a third
sentence
[[Page 35503]]
stating that the alternatives analysis should sharply define issues for
the decision maker and the public and provide a clear basis for choice
among the alternatives. CEQ proposed reintroducing this language from
the 1978 regulations because it provides an important policy statement,
concisely explaining the goals of the alternatives analysis. CEQ
received generally supportive comments on this proposal, and CEQ makes
this edit to the third sentence of the introductory paragraph in the
final rule.
Fourth, CEQ proposed in paragraph (a) to restore from the 1978
regulations the clause that agencies must ``rigorously explore and
objectively evaluate'' reasonable alternatives at the beginning of the
first sentence. CEQ proposed to reinsert this language because it
provides a standard that agencies have decades of experience applying
in the analysis of alternatives.
Some commenters expressed general support for restoring the
requirement to rigorously explore and objectively evaluate reasonable
alternatives in paragraph (a). Other commenters opposed the restoration
of this language, asserting that it is arbitrary and subjective and has
the potential to increase litigation over whether an agency met the
subjective test of rigorous and objective evaluation. CEQ makes this
change in the final rule because restoring this language will help
ensure agencies conduct a robust analysis of alternatives and their
effects, rather than a cursory, box-checking analysis.
One commenter asserted that the first sentence of paragraph (a)
should refer to the definition of ``reasonable alternatives'' to make
it clear that alternatives proposed in scoping that do not meet the
purpose and need and that are not technically and economically feasible
should be eliminated from further consideration. CEQ declines to add a
cross reference to the definition of ``reasonable alternatives'' as
unnecessary because the phrase ``reasonable alternatives'' is a defined
term in the regulations, and the definition applies whenever the
regulations use the term.
Fifth, CEQ proposed to add two additional sentences to paragraph
(a). CEQ proposed the first sentence to clarify that agencies need not
consider every conceivable alternative to a proposed action, but rather
must consider a reasonable range of alternatives that fosters informed
decision making. CEQ proposed to add this sentence to replace the first
sentence in paragraph (f) of 40 CFR 1502.14 (2020), which required
agencies to limit their consideration to a reasonable number of
alternatives. CEQ proposed this language for consistency with
longstanding CEQ guidance \85\ and to reinforce that the alternatives
analysis is not boundless; the key is to provide the decision maker
with reasonable options to ensure informed decision making. CEQ did not
receive specific comments on this proposed change and adds the proposed
new sentence to Sec. 1502.14(a).
---------------------------------------------------------------------------
\85\ See CEQ, Forty Questions, supra note 5.
---------------------------------------------------------------------------
CEQ also proposed a second new sentence in paragraph (a) to clarify
that agencies have the discretion to consider reasonable alternatives
not within their jurisdiction, but NEPA and the CEQ regulations
generally do not require them to do so. CEQ explained that such
alternatives may be relevant, for instance, when agencies are
considering program-level decisions \86\ or anticipate funding for a
project not yet authorized by Congress.\87\
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\86\ See, e.g., Fed. R.R. Admin., Final Program Environmental
Impact Report/Environmental Impact Statement (EIR/EIS) for the
proposed California High-Speed Train System (2005), https://hsr.ca.gov/programs/environmental-planning/program-eir-eis-documents-for-the-statewide-high-speed-rail-system-tier-1/final-program-environmental-impact-report-environmental-impact-statement-eir-eis-for-the-proposed-california-high-speed-train-system-2005/.
\87\ See, e.g., U.S. Army Corps of Eng'rs, Final Environmental
Impact Statement for Savannah Harbor Expansion Project (rev. July
2012), https://www.sas.usace.army.mil/Missions/Civil-Works/Savannah-Harbor-Expansion/Final-Environmental-Impact-Statement/.
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Several commenters opposed this proposal, asserting that if an
agency has no authority to implement an alternative, it is
unreasonable, and the agency should not consider it. One commenter
stated that NEPA is a procedural statute that does not confer
substantive authority; as such, NEPA cannot authorize an agency to
pursue an action that is otherwise not authorized. Some commenters
characterized consideration of alternatives outside the agency's
jurisdiction as inefficient and a waste of agency resources. Others
expressed that allowing consideration of such alternatives would be
contrary to law, and the alternatives would not be consistent with the
purpose and need of the proposal. Multiple commenters stated that
Public Citizen supports the proposition that an agency's NEPA analysis
is properly limited by the scope of the agency's authority and that, as
such, CEQ's proposed language is in tension with this ruling as well as
other case law. However, other commenters stated the opposite--that
case law has well established that agencies may and in some cases must
consider alternatives beyond the agency's jurisdiction.
CEQ adds this second new sentence to the end of Sec. 1502.14(a) in
the final rule to acknowledge that in limited situations, it may be
appropriate for an agency to consider an alternative outside its
jurisdiction. As noted in the proposed rule, CEQ anticipates that such
consideration will occur relatively infrequently and notes that such
alternatives would still need to be technically and economically
feasible and meet the purpose and need for the proposed action,
consistent with the definition of ``reasonable alternatives.'' CEQ's
revision is intended to strike a balance; the final rule does not
require agencies to consider alternatives outside their jurisdiction or
preclude agencies from doing so. Further, the final rule retains the
qualification that the agency need only consider reasonable
alternatives.
Some commenters requested CEQ revise Sec. 1502.14(a) to expressly
comply with the statutory direction that alternatives must be
technically and economically feasible and must meet the purpose and
need of the proposal. 42 U.S.C. 4332(2)(C)(iii). The commenters stated
the alternatives that do not meet those criteria are not consistent
with the statute. CEQ declines to add additional language in Sec.
1502.14(a) because the definition of ``reasonable alternatives''
already includes the requirement that an alternative be technically and
economically feasible and meet the purpose and need. CEQ addresses
additional comments on the definition of ``reasonable alternatives'' in
section II.J.22.
Sixth, as noted earlier in this section, CEQ proposed to strike the
requirement to limit consideration to a reasonable number of
alternatives from paragraph (f) and to add a sentence to paragraph (a)
directing agencies to consider a reasonable range of alternatives that
fosters informed decision making. CEQ proposed to repurpose paragraph
(f) to establish a requirement to identify the environmentally
preferable alternative. In addition to proposing a new definition of
``environmentally preferable alternative'' in Sec. 1508.1(l), CEQ
proposed in this provision to describe elements that the
environmentally preferable alternative may generally include. CEQ
proposed to use ``or'' in the list to make clear that the
environmentally preferable alternative need not include each delineated
element and recognize that identifying the environmentally preferable
alternative may entail making trade-offs in some cases. CEQ explained
that it proposed this approach to provide agencies flexibility to rely
on
[[Page 35504]]
their discretion and expertise to strike an appropriate balance in
identifying the environmentally preferable alternative. Finally, CEQ
proposed to clarify in paragraph (f) that the environmentally
preferable alternative may be the proposed action, the no action
alternative, or a reasonable alternative and that agencies may identify
more than one environmentally preferable alternative as they deem
appropriate.
Two commenters opposed the removal of ``limit their consideration
to a reasonable number of alternatives'' in paragraph (f), asserting
the statement is consistent with long-standing CEQ guidance and case
law. The commenter further opined that the proposed paragraph (f)
unnecessarily and inexplicably creates an open question regarding the
number of alternatives an agency must consider and is likely to result
in delays and increase litigation risk. One commenter stated that while
they recognize that proposed paragraph (a) states that an agency does
not need to consider every conceivable alternative, they asserted that
it is helpful and consistent with judicial precedent to describe what
constitutes a ``reasonable number.'' Another commenter asserted that
removal of this language could lead agencies to develop more
alternatives than are reasonable or necessary under NEPA.
CEQ declines to retain the statement that agencies must limit their
consideration to a reasonable number of alternatives because CEQ
considers the new sentence in paragraph (a) to provide clearer
direction to agencies that they should consider a reasonable range of
alternatives that foster informed decision making. Agencies have long
had discretion to identify that range, and CEQ encourages agencies to
identify and consider an appropriate range and explain why it
considered and dismissed other alternatives so that agency decision
makers and the public have a clear understanding as to how the agency
arrived at the alternatives it considered in the document. While CEQ
considers the new sentence in paragraph (a) to be clearer than the
sentence previously included in paragraph (f), it does not interpret
the new sentence to require agencies to consider a greater number of
alternatives and does not intend for agencies to do so.
Multiple commenters supported proposed Sec. 1502.14(f), while
other commenters opposed it. Those who supported identification of the
environmentally preferable alternative in the EIS expressed that
earlier identification will provide more transparency to the public and
allow the public an opportunity to comment on it. Some commenters also
specifically supported the inclusion of addressing climate-change
related effects and disproportionate and adverse effects on communities
with environmental justice concerns in the examples of an
environmentally preferable alternative.
Commenters who opposed the proposed language expressed concern that
the concept of an environmentally preferable alternative would create
new complexity and risk for litigation. They expressed that the
identification of such an alternative is inherently subjective and
would result in unnecessarily broad and time-consuming environmental
reviews not supported by the statute. One commenter contended that the
proposed new requirement inappropriately introduces political doctrine
into the rule. One commenter suggested that if CEQ retains the
requirement to identify the environmental preferable alternative in the
EIS, that the final rule should be less prescriptive about the
attributes of the environmentally preferable alternative.
CEQ adds the requirement to identify the environmentally preferable
alternative or alternatives in the EIS in Sec. 1502.14(f), and adds a
clause to clarify that the agency must identify the environmentally
preferable alternative from amongst the alternatives considered in the
EIS. CEQ adds this clarification to address a misunderstanding by some
of the commenters that the environmentally preferable alternative or
alternatives that Sec. 1502.14(f) requires agencies to identify is an
additional alternative to the proposed action, no action, and
reasonable alternatives that the agency would otherwise consider in an
EIS. Rather, this provision requires agencies to identify which
alternative amongst the proposed action, no action, and reasonable
alternatives is the environmentally preferable alternative.
CEQ disagrees that requiring agencies to identify the
environmentally preferable alternative in the EIS requires an
inherently subjective determination, would result in unnecessarily
broad and time-consuming environmental reviews, or introduces political
doctrine. As CEQ noted in the proposed rule, the regulations have
always required agencies to identify the environmentally preferable
alternative in a ROD. 40 CFR 1505.2 (2019) and 40 CFR 1505.2 (2020).
Agencies, therefore, have decades of experience with identifying the
environmentally preferable alternative.
Moreover, CEQ views this information as helpful for decision makers
and the public. Requiring agencies to identify the environmentally
preferrable alternative in the draft EIS will enable public comment on
this determination, which can include comment on whether the agency has
adequately explained its conclusion or whether the determination is
overly subjective. This new provision provides additional guidance on
what this alternative entails, improving consistency and furthering
NEPA's goal of ensuring that agencies make informed decisions regarding
actions that impact the environment. Additionally, requiring the draft
and final EIS to identify the environmentally preferable alternative
will increase the transparency of the agency's decision-making process
at an earlier stage, as well as provide an opportunity for the public
to comment on the environmentally preferable alternative before the
agency makes its decision.
CEQ disagrees that merely requiring agencies to identify which
alternative or alternatives are environmentally preferable in the EIS,
rather than only in the ROD, will increase litigation. The requirement
in the final rule shifts the timing of identifying the environmentally
preferred alternative or alternatives, but commenters have not
explained why requiring agencies to make this identification earlier in
the decision-making process would increase litigation risk, and CEQ
does not view this shift as materially affecting litigation risk, since
claims alleging a violation of NEPA must be brought after an agency
issues a ROD. See, e.g., Oregon Nat. Res. Council v. Harrell, 52 F.3d
1499, 1504 (9th Cir. 1995). CEQ also notes the regulations do not
require agencies to select the environmentally preferable alternative,
just as the long-standing requirement for agencies to identify the
environmentally preferable alternative in a ROD did not. Rather,
identifying the environmentally preferable alternative will increase
transparency and allow the public to comment on it.
Some commenters expressed that, overall, the proposed changes to
Sec. 1502.14 expand the alternatives analysis and could interfere with
agencies' ability to meet the page and time limits. CEQ disagrees with
the commenters' assertions because the revised regulations clarify,
rather than expand, the requirements for alternatives analysis.
While CEQ did not propose edits to Sec. 1502.14(b), one commenter
requested that CEQ restore the 1978 language to ensure agencies devote
substantial treatment to each alternative they considered in detail.
The 2020 rule removed the substantial treatment
[[Page 35505]]
language and replaced it with the requirement to discuss each
alternative. The commenter asserted that CEQ should restore this
language because restoring direction to rigorously explore and
objectively evaluate reasonable alternatives would ensure agencies take
a hard look at their proposed action. CEQ declines to add this
language. The language that CEQ adds to paragraph (a), requiring
agencies to rigorously explore and objectively evaluate alternatives to
foster informed decision making, addresses this concern and provides
agencies sufficient direction to take a hard look at their proposed
actions and alternatives.
14. Affected Environment (Sec. 1502.15)
CEQ proposed revisions to Sec. 1502.15 to emphasize the use of
high-quality information; clarify considerations of reasonably
foreseeable environmental trends; and emphasize efficiency and concise
documents. CEQ also proposed to divide Sec. 1502.15 into separate
lettered paragraphs.
First, CEQ proposed to move the first sentence of 40 CFR 1502.15
(2020) into paragraph (a) of Sec. 1502.15 but did not propose any
changes to the text. One commenter suggested changes to proposed
paragraph (a) to more clearly describe that the affected environment
must be a clear, unambiguous base case against which the agency can
compare all effects equally and noted a particular example in which,
the commenter asserted, confusion about this point had resulted in
distorted analyses for a category of actions that did not provide the
agency decision maker and the public an appropriate comparison of the
proposed actions, no action alternatives, and reasonable alternatives.
In the final rule, CEQ deletes ``or created'' in the first sentence
because areas created by the proposed action or alternatives would
constitute reasonably foreseeable effects, and are not part of the
affected environment. CEQ notes, however, that the affected environment
cannot be frozen in time and therefore must examine reasonably
foreseeable environmental trends in the affected areas.
Second, CEQ proposed to add new paragraph (b) to encourages
agencies to use high-quality information, including best available
science and data--in recognition that high-quality information should
inform all agency decisions--to describe reasonably foreseeable
environmental trends. CEQ also proposed to note explicitly that such
trends include anticipated climate-related changes to the environment
and that agencies should provide relevant information, consistent with
Sec. 1502.21, when such information is lacking. CEQ proposed this
paragraph to articulate clearly NEPA's statutory mandate that science
inform agencies' decisions as part of a systematic, interdisciplinary
approach. See 42 U.S.C. 4332(2)(A).
In the second sentence of paragraph (b), CEQ proposed to encourage
agencies to use the description of baseline environmental conditions
and reasonably foreseeable trends to inform its analysis of
environmental consequences and mitigation measures by connecting the
description of the affected environment with the agency's analysis of
effects and mitigation. CEQ proposed this language to clarify that
agencies should consider reasonably foreseeable future changes to the
environment, including changes of climate conditions on affected areas,
rather than merely describing environmental trends or climate change
trends at the global or national level. When describing the proposed
changes to paragraph (b) in the proposed rule, CEQ noted that, in line
with scientific projections, accurate baseline assessment of the
affected environment over an action's lifetime should incorporate
forward-looking climate projections rather than relying on historical
data alone.
A few commenters opposed proposed Sec. 1502.15(b), with some
commenters particularly taking issue with the singling out of climate
change. A few commenters requested that the final rule require agencies
to use high-quality information, with some further requesting that the
regulations define high-quality information. One commenter expressed
that it will be nearly impossible to use best available science, and
another requested that Indigenous Knowledge be included as a source of
high-quality information.
CEQ adds proposed Sec. 1502.15(b) in the final rule with a few
modifications. In the first sentence, CEQ changes ``should'' to
``shall'' before ``use high-quality information'' for consistency with
Sec. 1506.6 (proposed as Sec. 1502.23) and modifies the clause
providing examples of high-quality information for consistency with the
changes to the examples CEQ makes in Sec. 1506.6, as discussed in
section II.H.4. The final rule includes ``reliable data and resources,
models, and Indigenous Knowledge'' as examples of high-quality
information in lieu of the proposed phrase ``including the best
available science and data.'' As noted in section II.H.4, this change
incorporates the language of section 102(2)(E) of NEPA and is
consistent with section 102(2)(D) of NEPA. 42 U.S.C. 4332(2)(D)-(E).
Peer-reviewed studies and models are examples of reliable data and
resources.\88\ The final rule also replaces ``lacking'' with
``incomplete or unavailable'' for consistency with the language of
Sec. 1502.21, which the sentence cross-references. CEQ declines to
remove the example of climate change from this sentence. Because
climate change has implications for numerous categories of effects--
from species to water to air quality--it is a particularly important
environmental trend for agencies to consider in addressing the affected
environment.\89\ See 42 U.S.C. 4321, 4331, 4332(2)(C)(iv). Lastly, CEQ
includes the third proposed sentence in the final rule but uses
``affected environment'' instead of ``baseline'' and describes existing
``environmental conditions, reasonably foreseeable trends, and planned
actions in the area'' as examples of the affected environmental that
should inform the agency's analysis of environmental consequences and
mitigation measures.
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\88\ See, e.g., OMB, Guidelines for Ensuring and Maximizing the
Quality, Objectivity, Utility, and Integrity of Information
Disseminated by Federal Agencies, 67 FR 8452 (Feb. 22, 2002); OMB,
Final Information Quality Bulletin for Peer Review, 70 FR 2664 (Jan.
14, 2005); and OMB, M-19-15, Improving Implementation of the
Information Quality Act (2019), https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-15.pdf.
\89\ See, e.g., U.S. Glob. Change Rsch. Program, Fifth National
Climate Assessment (2023), https://nca2023.globalchange.gov.
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Third, CEQ proposed to move the second through fourth sentences of
40 CFR 1502.15 (2020) to new paragraph (c) and revise the second
sentence to divide it into two sentences to enhance readability. In the
first sentence of paragraph (c), CEQ proposed minor revisions to
clarify that agencies may combine the affected environment and
environmental consequences sections in an EIS. In the second sentence,
CEQ proposed to clarify that the description ``should,'' rather than
``shall'', be no longer than necessary to understand the ``relevant
affected environment'' and the effects of the alternatives.
One commenter disagreed with allowing agencies to combine the
affected environment and environmental consequences sections of the
EIS. The commenter asserted that agencies should discuss the two issues
separately so that it is clear in the EIS how much attention is paid to
each section and in order to ``force the agency to present actual''
effects in the EIS. The commenter asserted that agencies will provide
more material on the affected environment instead of describing
effects.
CEQ makes the change as proposed in Sec. 1502.15(c) of the final
rule. The final rule allows but does not require
[[Page 35506]]
agencies to combine the description of the affected environment with
the analysis of environmental consequences. CEQ added this provision in
the 2020 regulations to promote more efficient documents, and CEQ
encourages agencies to reduce redundancy in their documents and provide
clear and concise but thorough descriptions in the EIS. CEQ disagrees
that allowing agencies to combine these discussions also allows them to
give more weight to one section or the other. Agencies must thoroughly
discuss both the affected environment and the environmental
consequences of their proposed actions and alternatives to meet the
requirements of both Sec. Sec. 1502.15 and 1502.16.
15. Environmental Consequences (Sec. 1502.16)
CEQ proposed several changes to Sec. 1502.16 to clarify the role
of this section and methods of analysis and make updates to ensure that
agencies integrate climate change and environmental justice
considerations into the analysis of environmental effects. First, CEQ
proposed to add ``reasonably foreseeable'' in proposed paragraph (a)(1)
before ``environmental effects'' for consistency with section
102(2)(C)(i) of NEPA and in proposed paragraph (a)(2) before ``adverse
environmental effects'' for consistency with section 102(2)(C)(ii) of
NEPA. 42 U.S.C. 4332(2)(C)(i)-(ii). In the final rule, CEQ reorganizes
Sec. 1502.16 to integrate proposed paragraph (a)(1) into Sec.
1502.16(a), as discussed further in this section, and adds the
reference to ``reasonably foreseeable'' effects in paragraph (a) to
make clear that agencies must discuss the environmental consequences
described in paragraphs (a)(1) through (a)(13) when they are reasonably
foreseeable effects of the proposed action or alternatives. Therefore,
CEQ omits further references to ``reasonably foreseeable'' in
paragraphs (a)(1) through (a)(13) to avoid duplication. The recent
amendments to NEPA codified the longstanding principle from the 1978
regulations and recognized by the courts that effects must be
reasonably foreseeable. CEQ also notes that the definition of
``effects'' in Sec. 1508.1(i) incorporates ``reasonably foreseeable''
into the definition such that the term ``effects'' incorporates the
reasonably foreseeable standard each time it is used in this section
and throughout the regulations.
Second, in proposed paragraph (a)(1), CEQ proposed to modify the
second sentence, requiring agencies to base the comparison of the
proposed action and reasonable alternatives on the discussion of
effects, to add a clause at the end: ``focusing on the significant or
important effects.'' CEQ proposed this change to emphasize that
agencies' analyses of effects should be proportional to the
significance or importance of the effects. CEQ did not receive specific
comments on this proposal, and CEQ makes this change in the final rule
in paragraph (a), into which CEQ integrates proposed paragraph (a)(1)
as discussed further in this section. CEQ includes the word
``important'' in addition to ``significant'' because even if an agency
does not identify which effects rise to the level of significance, it
should still focus on the effects that are important for the agency
decision maker to be aware of and consider. Consistent with this
provision, agencies should generally identify the effects they deem
significant to inform the public and decision makers.
While CEQ did not propose any substantive changes to paragraph (a),
a few commenters suggested changes. One commenter expressed that even
though paragraph (a) specifies that the environmental consequences
discussion should not duplicate discussions from Sec. 1502.14, it is
confusing and unnecessary for the regulations to essentially require
the same information in both sections. Another commenter requested that
CEQ add qualifying language, ``as relevant or appropriate'' to the last
sentence of paragraph (a) stating that ``[t]he discussion shall
include.'' The commenter asserted this language would help improve
efficiency by providing lead agencies flexibility to tailor the EIS to
the specifics of the action.
CEQ agrees with the commenter that the language in paragraph (a)
could be confusing. To enhance clarity, the final rule integrates
proposed paragraph (a)(1) into Sec. 1502.16(a) and combines the first
two sentences of proposed paragraph (a)(1), to require that the
comparison of the proposed action and alternatives ``be based on their
reasonably foreseeable effects and the significance of those effects''
and that this discussion focus on the significant and important
effects. The final rule also consolidates the last two sentences of
proposed paragraph (a) to state that the environmental consequences
section should not duplicate discussions ``required by'' Sec. 1502.14,
which CEQ revises to address the commenter's confusion about this text,
and must include ``an analysis of'' the issues discussed in the
subparagraphs to paragraph (a).
CEQ declines to add the qualifier ``as relevant or appropriate'' to
the last sentence, because some of the items in the list are always
required. For paragraphs (a)(5) through (a)(10) and (a)(13), which are
only required when they are reasonably foreseeable, the final rule adds
the qualifier ``where applicable''--in some cases replacing the word
``any,'' as used in the proposed rule--to make clear that an EIS need
only include the specific topics where those effects are reasonably
foreseeable. Where the effects that relate to a particular topic in the
list exist but are not significant or important, the EIS can briefly
describe the effect and explain why the agency has reached the
conclusion that it is not significant or important.
Third, CEQ proposed to add a new sentence to the end of proposed
paragraph (a)(1) clarifying the proper role of the no action
alternative to ensure that agencies do not distort the comparative
analysis by selecting a different alternative (for example, the
preferred alternative) as the baseline against which the agency
assesses all other alternatives. CEQ also invited comment on whether it
should include additional direction or guidance regarding the no action
alternative in the final rule.
One commenter requested that the regulations clarify the proper
role of the no action alternative and disagreed with the direction
included in the proposed rule. The commenter asserted that establishing
a no action alternative as the baseline against which alternatives are
compared, rather than establishing the proposed action as the baseline,
favors the no action alternative over the proposed action and is
contrary to NEPA's goals of informing rather than driving decisions.
CEQ disagrees with the commenter's position as agencies have long used
the no action alternative as the baseline from which to assess the
proposed action and alternatives,\90\ and this approach is consistent
with the requirement of section 102(2)(C)(i)-(ii) of NEPA that an EIS
include the reasonably foreseeable environmental effects of the
proposed agency action. 42 U.S.C. 4332(2)(C)(i)-(ii). The no action
alternative is a particularly useful comparison for the effects of the
proposed action, and the CEQ
[[Page 35507]]
regulations require agencies to compare effects across alternatives.
---------------------------------------------------------------------------
\90\ See CEQ, Forty Questions, supra note 5, Question 3, ``No
Action Alternative'' (stating that the no action alternative
``provides a benchmark, enabling decisionmakers to compare the
magnitude of environmental effects of the action alternatives.'');
see also Ctr. for Biological Diversity v. United States DOI, 72
F.4th 1166, 1185 (10th Cir. 2023) (```In general, NEPA analysis uses
a no-action alternative as a baseline for measuring the effects of
the proposed action.''' (quoting Biodiversity Conservation All. v.
U.S. Forest Serv., 765 F.3d 1264, 1269 (10th Cir. 2014)).
---------------------------------------------------------------------------
Multiple commenters requested guidance on how to evaluate the no
action alternative in circumstances in which the Federal action does
not dictate whether the underlying project will occur. CEQ declines to
add additional specifications to the regulations but will consider
whether additional guidance on this topic will help agencies carry out
their NEPA responsibilities. CEQ notes that agencies have decades of
experience with this issue even prior to the addition of this provision
into NEPA and the CEQ regulations.
One commenter requested CEQ revise the language to make it clear
that the no action alternative is focused on the environmental
consequences of not issuing the approval rather than on the proposed
facility not being built or the proposed physical action not occurring.
CEQ declines to add this specific additional language to the
regulations as the consideration of the no action alternative is
specific to the agency's authority and the scope of the NEPA review.
One commenter stated CEQ should provide additional guidance to
ensure that Federal agencies fully disclose the environmental
implications of the no action alternative. Another commenter requested
CEQ provide additional guidance encouraging agencies to select the no
action alternative, when appropriate. Relatedly, another commenter
stated that the no action alternative should be more than a baseline
for comparison; it should also be an alternative that the agency can
select even if it does not meet the applicant's or project's purpose
and need. CEQ agrees that in many cases, the no action alternative is
among the alternatives that the agency may select, and that doing so is
consistent with the regulations and long-standing agency practice, but
this is a fact-specific inquiry based on the agency's authority. CEQ
will consider this and the other recommended topics when developing
guidance.
One commenter requested the regulations include a new section on
the no action alternative instead of including it in Sec. 1502.16.
Another commenter requested the regulations include a definition of
``no action alternative'' and requested clarification that agencies
should analyze more than one action alternative and therefore must
include more than just the no action alternative and one action
alternative. CEQ declines to add a separate section on or define the
phrase ``no action alternative.'' CEQ includes the proposed language in
the final rule, as the fourth sentence of paragraph (a), to provide
additional context for the longstanding requirement in Sec. 1502.14 to
assess the no action alternative and for consistency with section
102(2)(C)(iii) of NEPA and longstanding agency practice. 42 U.S.C.
4332(2)(C)(iii).
Fourth, CEQ proposed to add a new paragraph (a)(3), requiring an
analysis of the effects of the no action alternative, including any
adverse environmental effects. CEQ proposed this change for consistency
with section 102(2)(C)(iii) of NEPA, which requires ``an analysis of
any negative environmental impacts of not implementing the proposed
action in the case of a no action alternative.'' 42 U.S.C.
4332(2)(C)(iii).
One commenter suggested that the phrase ``including any adverse
effects'' does not conform with section 102(2)(C)(iii) of NEPA. CEQ
disagrees with the commenter's characterization. The difference in
phrasing between proposed paragraph (a)(3) and section 102(2)(C)(iii)
is because paragraph (a)(3) addresses what needs to be contained in the
discussion of environmental consequences, while section 102(2)(C)(iii)
of NEPA addresses the range of alternatives. 42 U.S.C. 4332(2)(C)(iii).
Multiple commenters were generally supportive of the requirement to
analyze the adverse effects of the no action alternative.
CEQ adds proposed paragraph (a)(3) in the final rule at Sec.
1502.16(a)(2). As CEQ noted in the proposed rule, CEQ interprets
``negative'' to have the same meaning as the term ``adverse.'' For
example, an environmental restoration project that helps mitigate the
effects of climate change and restores habitat could have adverse
effects if it were not implemented or the construction of a commuter
transit line could have adverse effects from persistent traffic
congestion, air pollution, and related effects to local communities if
it were not implemented.
Fifth, to accommodate proposed new paragraph (a)(3), CEQ proposed
to redesignate paragraphs (a)(3) through (a)(5) of 40 CFR 1502.16
(2020) as paragraphs (a)(4) through (a)(6), respectively. CEQ did not
receive any comments on this proposed reorganization. However, because
the final rule integrates proposed paragraph (a)(1) into paragraph (a),
the final rule does not redesignate these paragraphs.
Sixth, in proposed paragraph (a)(5), CEQ proposed to insert
``Federal'' before ``resources'' for consistency with section
102(2)(C)(v) of NEPA. 42 U.S.C. 4332(2)(C)(v). One commenter asserted
that the proposed insertion of ``Federal'' ignores analysis and
reporting of potentially significant resources committed by other
entities. CEQ adds the word ``Federal'' to the final rule in Sec.
1502.16(a)(4) because Congress added it to the corresponding phrase in
the statute. Another commenter suggested CEQ revise this paragraph to
encompass resources held in trust. CEQ declines to make this addition,
as CEQ interprets the phrase ``Federal resources'' to plainly mean
resources owned by the Federal Government or held in trust for Tribal
Nations.
Seventh, CEQ proposed to add references to two specific elements
that agencies must include in the analysis of environmental
consequences and revise the reference to another element, all related
to climate change. CEQ proposed to revise proposed paragraph (a)(6),
addressing possible conflicts between the proposed action and the
objectives of Federal, regional, State, Tribal and local land use
plans, policies, and controls for the area concerned. CEQ proposed to
broaden ``land use plans'' to ``plans'' generally and to add an example
that clarifies that these plans, policies, and controls include those
addressing climate change.
Eighth, CEQ proposed to add a new paragraph (a)(6) to clarify that
the discussion of environmental consequences in an EIS must include any
reasonably foreseeable climate change-related effects, including
effects of climate change on the proposed action and alternatives
(which may in turn alter the effects of the proposed action and
alternatives).
Ninth, CEQ proposed to add a new paragraph (a)(9) to require
agencies to address any risk reduction, resiliency, or adaptation
measures included in the proposed action and alternatives. CEQ proposed
this addition to ensure that agencies consider resiliency to the risks
associated with a changing climate, including wildfires, extreme heat
and other extreme weather events, drought, flood risk, loss of historic
and cultural resources, and food scarcity. CEQ noted in the proposed
rule that these analyses further NEPA's mandate that agencies use ``the
environmental design arts'' in decision making and consider the
relationship between the ``uses'' of the environment ``and the
maintenance and enhancement of long-term productivity.'' 42 U.S.C.
4332(2)(A), 4332(2)(C)(iv). CEQ also noted that the proposed change
helps achieve NEPA's goals of protecting the environment across
generations, preserving important cultural and other resources, and
attaining ``the widest range of beneficial uses of the environment
without degradation, risk to health or safety, or
[[Page 35508]]
other undesirable and unintended consequences.'' 42 U.S.C. 4331(b)(3).
Multiple commenters expressed support generally for both proposed
paragraphs (a)(6) and (a)(7), asserting that it is necessary to
emphasize climate change. On the other hand, one commenter opposed
proposed paragraphs (a)(6) and (a)(7) and asserted that they are based
on political doctrine rather than scientific and technical analyses.
CEQ disagrees with the commenter's assertion and notes that the
inclusion of climate change in proposed paragraphs (a)(6) and (a)(7) is
consistent with section 102(2)(C)(i) of NEPA, 42 U.S.C. 4332(2)(C)(i),
which requires agencies to address ``reasonably foreseeable
environmental effects of the proposed agency action;'' with section
102(2)(I) of NEPA, 42 U.S.C. 4332(I), which requires Federal agencies
to ``recognize the worldwide and long-range character of environmental
problems;'' and with a large volume of case law invalidating NEPA
analyses that failed to adequately consider reasonably foreseeable
effects related to climate change. See e.g., Vecinos para el Bienestar
de la Comunidad Costera v. FERC, 6 F.4th 1321 (D.C. Cir. 2021) (holding
NEPA analysis for pipeline and liquified natural gas port deficient due
to inadequate climate change analysis); WildEarth Guardians v. Zinke,
368 F.3d 41 (D.C. Cir. 2019) (invalidating oil and gas leases for
failure to consider downstream greenhouse gas emissions during the NEPA
process); and WildEarth Guardians v. BLM, 870 F.3d 1222 (10th Cir.
2017) (holding that EIS and ROD for four coal leases were arbitrary and
capricious because they failed to adequately consider climate change).
With respect to proposed paragraph (a)(6), a couple of commenters
asserted the regulations should not direct agencies to discuss a
proposed action's relationship with governmental plans related to
climate change. The commenters urged CEQ to exclude the language
``those addressing climate change'' from the final rule or recommended
the regulations clarify that NEPA does not require agencies to attempt
to resolve these conflicts. Another commenter opined that the proposal
to remove ``land use plans'' and instead include plans addressing
climate change threatens to lead to speculative analyses. Further, the
commenter asserted that the regulations do not explain how agencies
should analyze multi-State projects or determine how a particular
project conflicts with a State- or region-wide plan or emissions
target.
In the final rule, CEQ removes ``land use'' and adds the example of
plans that address climate change in the final rule at Sec.
1502.16(a)(5). CEQ notes that the reference to climate change plans is
only an example, but also that the example is consistent with the 2023
GHG guidance, which identifies climate change plans as having the
potential to assist agencies in their analysis of reasonably
foreseeable GHG emissions. CEQ also notes that nothing in this
provision or any other provision of the NEPA regulations has ever
required agencies to resolve conflicts; it merely requires agencies to
discuss any possible conflicts. With respect to multi-State projects,
CEQ does not consider it appropriate to modify this provision to
address a specific type of project. However, CEQ is unaware of agency
confusion regarding how to address multi-State projects. CEQ will
consider whether additional guidance is needed in the future. CEQ
retains the term ``policies'' to promote inclusive consideration of
positions taken by regional, State, Tribal and local government
entities, noting that policies are formally adopted by those entities
while preferences or positions generally are not formally adopted.
Multiple commenters specifically opposed proposed paragraph (a)(7)
and the singling out of reasonably foreseeable climate change-related
effects in the regulations. One commenter stated that the integration
of one specific category of potential environmental effects is a
notable break from NEPA precedent and historic practice, which
emphasizes that NEPA is neutral towards the type of resource concern
and the type of potential environmental effect. CEQ disagrees with the
assertion that identifying a category of effects is unprecedented and
notes that this provision has always referenced certain types of
effects, including effects related to energy, natural and depletable
resources, and historic and cultural resources.
A commenter asserted that the references to climate change-related
effects in proposed paragraph (a)(7) and other provisions of the
regulations inconsistently refer to NEPA's reasonable foreseeability
limitation and otherwise ignore the fundamental principle of causation.
A few other commenters also raised the issue of causation, arguing that
NEPA only requires an agency to consider effects that have a
sufficiently close causal connection to the proposed action and stating
that the proposed rule, and specifically proposed paragraph (a)(7),
diverges from this principle by requiring analysis of any reasonably
foreseeable climate-change related effects of the proposed action. One
commenter asserted CEQ is rewriting the standard that requires an
agency to consider effects that have a sufficiently close causal
relationship to the proposed action. They also asserted proposed
paragraph (a)(7) could require an agency to discuss effects that are
remote and speculative because it does not require the ability to
demonstrate a direct causal chain between a project and climate change
or how a specific project's greenhouse gas emissions would lead to
actual environmental effects in that specific location.
Another commenter asserted that proposed paragraph (a)(7) places
unnecessary emphasis on climate change when there are many other
effects on the environment that may occur due to a proposed action. A
separate commenter asserted the proposed paragraph conflicts with the
flexibility provided in CEQ's Interim Greenhouse Gas Guidance, which
explains that agencies have the flexibility to discuss climate change
and any other environmental issues to the extent the information will
or will not be useful to the decision-making process and the public
consistent with the ``rule of reason.'' Another commenter stated
proposed paragraph (a)(7) is inconsistent with NEPA and would be
impractical, resulting in lengthy reviews for projects without climate
consequences.
CEQ disagrees with these commenters' assertions and includes
proposed paragraph (a)(7) at Sec. 1502.16(a)(6) in the final rule. CEQ
adds the phrase ``where feasible, quantification of greenhouse gas
emissions from the proposed action and alternatives and'' before ``the
effects of climate change on the proposed action and alternatives.''
This provision incorporates into the final rule one of the
recommendations of CEQ's 2023 GHG guidance.\91\ CEQ includes this
provision in response to comments that CEQ received in response to
CEQ's request for comment on potentially codifying elements of the
Guidance in the rule. See section II.D.1.\92\ CEQ agrees with the
comments discussed in section II.D.1 that contend that requiring
agencies to quantify greenhouse gas emissions, where feasible, will
increase the clarity of the regulations and is consistent with case
law. See, e.g., Food & Water Watch v. FERC, 28 F.4th 277, 289 (D.C.
Cir. 2022) (remanding to the agency to prepare a supplemental EA
[[Page 35509]]
``in which it must either quantify and consider the project's
downstream carbon emissions or explain in more detail why it cannot do
so''); Sierra Club v. FERC, 867 F.3d 1357, 1375 (D.C. Cir. 2017)
(holding that the agency ``must either quantify and consider the
project's downstream carbon emissions or explain in more detail why it
cannot do so''); WildEarth Guardians v. Zinke, 368 F.Supp.3d 41, 68
(D.D.C. 2019) (BLM's failure to quantify greenhouse gas emissions that
were reasonably foreseeable effects of oil and gas development during
the leasing and development process was arbitrary and capricious). As
such, CEQ disagrees with the commenters' assertions that the rule
requires agencies to go beyond what case law generally already requires
them to consider under NEPA. Moreover, as CEQ indicates earlier in this
section and makes clearer with its edits to paragraph (a) in the final
rule, this paragraph indicates that agencies must analyze climate-
related effects that meet the definition of ``effects''--that is, are
reasonably foreseeable--and includes the qualifier ``where applicable''
to acknowledge that not all actions will have climate-related effects
that require analysis in the EIS.
---------------------------------------------------------------------------
\91\ See CEQ, 2023 GHG Guidance, supra note 10.
\92\ See CEQ, Phase 2 proposed rule, supra note 51, at 49945.
---------------------------------------------------------------------------
A few commenters opposed the addition of proposed paragraphs (a)(7)
and (a)(10), stating that taken together, the proposed changes expand
the scope of NEPA effects and alternatives analyses relative to
discrete projects and authorizations and will result in agencies
relying on unsubstantiated projections on a project's potential to
impact climate change locally or globally.
Other commenters opposed proposed paragraph (a)(10) for various
reasons. One commenter asserted risk reduction, resiliency, or
adaptation measures are best addressed through planning and
programming, asset management, and emergency response that occurs
programmatically prior to NEPA review and in final design that occurs
after the NEPA review, instead of as part of the project-specific
review. Similarly, another commenter stated requiring an EIS to
incorporate these measures into the proposed action or alternatives
will be costly if completed during the NEPA process and should be done
earlier, such as during long-range planning processes that occur prior
to NEPA. CEQ notes that if an agency engages in long-range planning
processes, the agency may incorporate by reference any analyses that
are completed programmatically prior to the NEPA review for a specific
action. With respect to final design, agencies may discuss such
measures generally in the EIS. Further, agencies have decades of
experience analyzing proposed actions before final design, and agencies
can do so similarly for risk reduction, resiliency, or adaptation
measures.
Another commenter asserted that the term ``relevant'' is subjective
and suggested that CEQ define it to include peer-reviewed science and
data made available by independent sources. CEQ declines to add this
specificity in the final rule and leaves it to agency judgment to
identify what is relevant for a particular proposed action.
One commenter supported proposed paragraph (a)(10) but requested
the regulations clarify that the language does not require an agency to
gather new data, consistent with NEPA. Another commenter also supported
the proposal, but suggested that CEQ remove the mandate to use accurate
and up-to-date information from proposed Sec. 1502.21. CEQ considers
it important to specifically reference science and data on the affected
environment and expected future conditions in this paragraph because
they are essential to determine what resiliency and adaptation measures
are relevant. CEQ declines to specify that agencies do not need to
gather new data as this is addressed in Sec. 1502.21, regarding
incomplete or unavailable information as well, as Sec. 1506.6,
regarding methodology and scientific accuracy. Therefore, CEQ adds
proposed paragraph (a)(10) at Sec. 1502.16(a)(9) in the final rule.
In the final rule, CEQ revises Sec. 1502.16(a)(5) and adds Sec.
1502.16(a)(6) and (a)(9) to clarify that agencies must address both the
effects of the proposed action and alternatives on climate change, and
the resiliency of the proposed action and alternatives in light of
climate change.\93\ These revisions are consistent with what NEPA has
long required: using science to make decisions informed by an
understanding of the effects of the proposed action and of its
alternatives. In particular, understanding how climate change will
affect the proposed action and the various alternatives to that action
is necessary to understanding what constitutes ``a reasonable range of
alternatives'' and which alternatives are ``technically and
economically feasible'' and ``appropriate,'' see 42 U.S.C.
4332(2)(C)(iii), (F), (H). Moreover, the effects that climate change
will have on the proposed action and its alternatives may in turn alter
the effects that the action has on the environment. For example, an
increase in extreme weather events may affect the amount of stream
sedimentation that results from a new road or the risk that an
industrial facility will experience a catastrophic release. Therefore,
considering the effects of climate change on the action and its
alternatives is necessary to understand the ``reasonably foreseeable
environmental effects'' of the proposed action and its alternatives, 42
U.S.C. 4332(2)(C)(i). These revisions also align with the definition of
``effects'' to encompass reasonably foreseeable indirect and cumulative
effects, which are integral to NEPA analyses.
---------------------------------------------------------------------------
\93\ Such analysis is not new, and CEQ has issued guidance
consistent with these proposed provisions for nearly a decade. See
generally CEQ, Final Guidance for Federal Departments and Agencies
on Consideration of Greenhouse Gas Emissions and the Effects of
Climate Change in National Environmental Policy Act Reviews, 81 FR
51866 (Aug. 8, 2016), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/nepa_final_ghg_guidance.pdf, and CEQ, 2023 GHG Guidance,
supra note 10.
---------------------------------------------------------------------------
Tenth, to accommodate the newly proposed paragraphs (a)(7) and
(a)(10), CEQ proposed to redesignate paragraphs (a)(6) and (a)(7) of 40
CFR 1502.16 (2020) as paragraphs (a)(8) and (a)(9), respectively. In
the final rule, CEQ redesignates these paragraphs as Sec.
1502.16(a)(7) and (a)(8). CEQ also proposed to redesignate paragraphs
(a)(8) through (a)(10) of 40 CFR 1502.16 (2020) as paragraphs (a)(11)
through (a)(13), respectively. In the final rule, CEQ redesignates
these paragraphs as Sec. 1502.16(a)(10) through (a)(12).
Eleventh, CEQ proposed to add a new paragraph (a)(14) to require
agencies to discuss any potential for disproportionate and adverse
health and environmental effects on communities with environmental
justice concerns, consistent with sections 101, 102(2)(A),
102(2)(C)(i), and 102(2)(I) of NEPA. See 42 U.S.C. 4331, 4332(2)(A),
4332(2)(C)(i), 4332(2)(I). CEQ proposed this paragraph to clarify that
EISs generally must include an environmental justice analysis to ensure
that decision makers consider disproportionate and adverse effects on
these communities.
A few commenters expressed general support for proposed paragraph
(a)(14), with some stating that the inclusion of disproportionate
effects on communities with environmental justice concerns is long
overdue. Some of these supportive commenters requested CEQ provide
additional clarity in the regulations or through guidance on what
constitutes a robust environmental justice analysis. One commenter
suggested the final rule include additional text to emphasize welfare
effects and to state that the evaluation should not offset positive
effects on one community with environmental justice concerns against
[[Page 35510]]
negative effects on another community with environmental justice
concerns.
Multiple commenters opposed proposed paragraph (a)(14) for reasons
similar to the opposition to including climate change-related effects,
asserting that it is inappropriate to single out these types of
effects. One commenter suggested the proposed paragraph will allow
consideration of remote and speculative environmental justice concerns
and is in conflict with case law. Another commenter stated the proposed
paragraph requires agencies to consider effects that are not
``reasonably foreseeable.'' Further, another commenter requested that
the regulations clarify that not all environmental effects will be
``disproportionate and adverse.''
In the final rule, CEQ adds proposed paragraph (a)(14) at Sec.
1502.16(a)(13) and modifies the text from the proposal to replace
``[t]he potential for'' with ``[w]here applicable'' before
``disproportionate and adverse human health and environmental effects
on communities with environmental justice concerns.'' As discussed
earlier in this section, CEQ adds the ``where applicable'' qualifier to
make clear that not all proposed actions will have such effects. The
final rule also omits ``potential,'' given the changes to paragraph (a)
to clarify that all effects in the list must be reasonably foreseeable.
Multiple commenters grouped their general concerns on proposed
Sec. 1502.16(a)(7), (a)(10), and (a)(14) together, expressing overall
concern regarding the inclusion of climate change and environmental
justice-related provisions in Sec. 1502.16. These commenters asserted
that these proposed additions are contrary to the purpose of NEPA and
inappropriately elevate climate change and environmental justice over
other issues, such as water quality, waste management, and air quality.
Other commenters expressed concern over the addition of policy
priorities to the regulations. As CEQ has discussed in this section and
elsewhere in this preamble and the Phase 2 Response to Comments, CEQ
considers these additions consistent with the text of NEPA,
longstanding practice, and case law and finds it appropriate to
recognize the importance of climate change and environmental justice
effects to inform agency decision making and the public about a
proposed action. CEQ notes that the list of effects in Sec. 1502.16(a)
is not exhaustive, and that agencies must determine on a case-by-case
basis which effects are relevant to address in an EIS.
Finally, in paragraph (b), which addresses economic or social
effects, CEQ proposed to strike ``and give appropriate consideration
to'' from paragraph (b). CEQ proposed this revision to remove
unnecessary language that could be read to require the decision maker
to make consideration of such effects a higher priority than other
effects listed in this section.
One commenter expressed support for the proposed change in
paragraph (b) but requested that the final rule include language
requiring specific analyses of housing affordability, availability, and
quality. CEQ declines to add this language because, while these
considerations may be appropriate for some projects, this level of
specificity is unnecessary in the regulations, as housing-related
effects are a subset of social and economic effects. Another commenter
requested that the final rule include cultural effects in the second
sentence. CEQ declines to add cultural effects to paragraph (b) because
historic and cultural resources are included in Sec. 1502.16(a)(10),
and agencies also may address effects to cultural resources consistent
with Sec. 1502.16(a)(5).
CEQ did not receive comments specific to its proposed edits to
paragraph (b). In the final rule, CEQ strikes the phrase ``and give
appropriate consideration to,'' as proposed, from Sec. 1502.16(b).
16. Summary of Scoping Information (Sec. 1502.17)
CEQ proposed to revise Sec. 1502.17 and retitle it ``Summary of
scoping information'' to more accurately reflect the proposed revisions
to this section and align it with the common practice of what many
agencies produce in scoping reports. CEQ proposed other changes in this
section to simplify and remove unnecessary or redundant text and
clarify requirements. Commenters were generally supportive of CEQ's
proposal and provided a few suggested edits to the regulatory text, as
discussed in this section. A few commenters expressed concern about the
additional burden of preparing a summary of scoping information.
CEQ finalizes this section as proposed with a few additional edits.
Agencies have long collected the information addressed in this section
as part of the scoping process and provided it in various formats, such
as in scoping reports or by integrating it into the EIS itself.
Transparency about this information is valuable to the NEPA process
because it demonstrates what agencies have considered in preparing an
EIS. Further, CEQ disagrees that preparing a summary of such
information is a significant burden on agencies because the regulations
do not require a lengthy, detailed summary and provide agencies
sufficient flexibility to exercise their discretion in what to prepare.
CEQ proposed to revise paragraph (a) to require agencies to include
a summary of the information they receive from commenters during the
scoping process in draft EISs, consistent with the revisions to
Sec. Sec. 1500.4, 1501.9, and 1502.4. CEQ proposed to replace ``State,
Tribal, and local governments and other public commenters'' with
``commenters'' because this phrase is all encompassing. CEQ also
proposed to clarify that a draft EIS should include a summary of
information, including alternative and analyses, that commenters
submitted during scoping.
At least one commenter inquired whether an agency could meet the
requirements of paragraph (a) by including a summary in an appendix to
the draft EIS. CEQ did not intend its proposal to limit where agencies
provide the summary of scoping information. To make clear that agencies
have the flexibility on where to place this section in their EISs, CEQ
has added ``or appendix'' after ``draft environmental impact
statement.'' Another commenter asked whether inserting the word
``draft'' before the second instance of ``environmental impact
statement'' in paragraph (a) precluded agencies from considering such
information in the final EIS. This was not CEQ's intent, so the final
rule text does not include the word ``draft'' as CEQ proposed. CEQ
otherwise revises paragraph (a) as proposed. This change provides
agencies flexibility to develop a broader summary of information
received during scoping. While agencies should still summarize
alternatives and analyses, this provision does not require them to
provide a specific summary of every individual alternative, piece of
information, or analysis commenters submit during scoping.
CEQ proposed to redesignate paragraph (a)(1) as paragraph (b) and
modify it to clarify that agencies can either append comments received
during scoping to the draft EIS or otherwise make them publicly
available. CEQ proposed this modification to clarify that the
requirements of this paragraph can be met through means other than an
appendix, such as a scoping report, which is common practice for some
Federal agencies. CEQ proposed a conforming edit in paragraph (d) of
Sec. 1502.19, ``Appendix,'' for consistency with this language.
CEQ received a comment questioning why CEQ would change ``publish''
to ``otherwise make publicly available all
[[Page 35511]]
comments,'' which could suggest an agency could make comments publicly
available by providing them in response to a FOIA request rather than
by affirmatively providing them. This was not the intent of CEQ's
proposed change. Therefore, CEQ is not making this change in the final
rule. With these modifications, CEQ amends this provision as proposed.
Finally, CEQ proposed to delete 40 CFR 1502.17(a)(2) and (b) (2020)
because the requirements of these paragraphs are redundant to the
requirements in part 1503 for Federal agencies to invite comment on
draft EISs in their entirety and review and respond to public comments.
CEQ makes this change in the final rule.
17. Incomplete or Unavailable Information (Sec. 1502.21)
CEQ proposed one revision to paragraph (b) of Sec. 1502.21, which
addresses when an agency needs to obtain and include incomplete
information in an EIS. CEQ proposed to strike ``but available'' from
the sentence, which the 2020 rule added, to clarify that agencies must
obtain information relevant to reasonably foreseeable significant
adverse effects when that information is essential to a reasoned choice
between alternatives, where the overall costs of doing so are not
unreasonable, and the means of obtaining that information are known.
CEQ proposed to remove the phrase ``but available'' because it could be
read to significantly narrow agencies' obligations to obtain additional
information even when it is easily attainable and the costs are
reasonable. During the development of the proposed rule, agency NEPA
experts indicated that this qualifier could be read to say that
agencies do not need to collect additional information that could and
should otherwise inform the public and decision makers.
Some commenters supported the proposed deletion of ``but
available'' in paragraph (b), reasoning that this edit will ensure
agencies obtain necessary information regarding reasonably foreseeable
significant adverse effects that is essential to a reasoned choice
among alternatives rather than dismissing the information as
unavailable. Another commenter supported the change because it better
ensures agencies obtain high quality information to inform their
analyses. Other commenters opposed the change, asserting it unduly
expands agencies' obligations to obtain additional information. One
commenter stated the change removes a bright-line requirement to rely
on existing information and another commenter agreed, stating the
inclusion of ``but available'' helped to focus the scope of the inquiry
on available information. Without this limitation, the commenter
asserted agencies could face litigation over the subjective
reasonableness of failing to obtain new information. Some commenters
expressed concern that the proposed change broadens the circumstances
when agencies must obtain new information and increases the risk of
reliance on poor quality information developed quickly to meet the
statutory timeframes.
One commenter provided that if CEQ finalizes the proposed change,
it should clarify that agencies should not delay the NEPA process by
obtaining non-essential information. This commenter also requested that
CEQ clarify that agencies only need to produce new information where
the agencies would not be able to make an informed decision about the
reasonably foreseeable effects of a project otherwise. Similarly,
another commenter stated that if finalized, CEQ should clarify that new
agency research is required only in limited circumstances and is the
exception, not the rule.
CEQ makes the change to remove ``but available'' from Sec.
1502.21(b) in the final rule. CEQ has reconsidered its position in the
2020 rule and now considers it vital to the NEPA process for agencies
to undertake studies and analyses where the information from those
studies and analyses is essential to a reasoned choice among
alternatives and the overall costs are not unreasonable, rather than
relying solely on available information. In particular, CEQ notes its
longstanding interpretation of ``incomplete information'' as
articulated in the 1986 amendments to this provision. CEQ defined
``incomplete information'' as information that an agency cannot obtain
because the overall costs of doing so are exorbitant and ``unavailable
information'' as information that an agency cannot obtain it because
``the means to obtain it are not known.'' \94\ In response to comments
in 1986, CEQ further explained that the phrase `` `the means to obtain
it are not known' is meant to include circumstances in which the
unavailable information cannot be obtained because adequate scientific
knowledge, expertise, techniques or equipment do not exist.'' \95\ The
2020 rule disregarded this longstanding interpretation and instead
suggested that new scientific or technical research is ``unavailable
information.'' Upon further consideration, CEQ disagrees with the
interpretation in the 2020 rule and re-adopts its longstanding
interpretation that the phrase ``incomplete information'' applies only
to information from new scientific or technical research, the cost of
which are unreasonable.
---------------------------------------------------------------------------
\94\ CEQ, National Environmental Policy Act Regulations;
Incomplete or Unavailable Information, supra note 32, at 15621.
\95\ Id. at 15622.
---------------------------------------------------------------------------
Removing the phrase ``but available'' also is consistent with
section 106(b)(3) of NEPA, which was added by the recent NEPA
amendments and states that in determining the level of NEPA review,
agencies are only required to undertake new scientific or technical
research where essential to a reasoned choice among alternatives and
the overall costs and time frame of obtaining it are not unreasonable.
42 U.S.C. 4336(b)(3). While section 106(3) only directly applies to
determining the level of NEPA review, the provision's limitation on
when agencies need to undertake new scientific or technical research in
that context refutes an interpretation of NEPA as limiting agencies to
considering available information. 42 U.S.C. 4336(b)(3). Establishing a
consistent standard to address incomplete information in the NEPA
review process that is consistent with the text of section 106(3) will
lead to a more orderly and predictable environmental review process. 42
U.S.C. 4336(b)(3). Similarly, CEQ considers it appropriate to require
agencies to ensure professional integrity, including scientific
integrity, and use reliable data and resources, as well as other
provisions in the regulations emphasizing the importance of relying on
high-quality and accurate information throughout implementation of
NEPA. See, e.g., Sec. Sec. 1500.1(b), 1506.6.
CEQ disagrees that this change will unduly expand agencies'
obligations to obtain additional information. CEQ is reverting to the
longstanding approach in the regulations that will ensure agencies
appropriately gather information when it is necessary to inform the
decision maker and the public. CEQ considers the bounding language of
reasonable costs and necessity to make a reasoned choice to be the
appropriate cabining so that agencies are reasonably gathering any
additional information needed for a sufficient NEPA analysis without
creating undue burden or facilitating a boundless collection of
information. With respect to litigation risk, as with many other
aspects of a NEPA review, agencies should explain in their documents
their rationale when they determine it is unreasonable or
[[Page 35512]]
unnecessary to obtain new information. Finally, CEQ acknowledges the
potential tension between the time it takes to gather new information
and statutory deadlines. CEQ encourages agencies to identify incomplete
information as early as possible in the process to ensure they have
time to gather the information necessary to satisfy their NEPA
obligations during the statutory timeframes. CEQ also notes that where
an agency cannot obtain incomplete information within the statutory
timeframes, but the costs are reasonable, the agency could conclude
that it is necessary to set a new deadline that allows only as much
time as necessary to obtain the information so long as the costs of
obtaining the information, including any cost from extending the
deadline and delaying the action, are reasonable.
Finally, CEQ removes the modifier ``adverse'' from ``significant
adverse effects'' throughout this section because the final rule
defines ``significant effects'' to be adverse effects. CEQ makes this
change for clarity and consistency with the definition.
18. Methodology and Scientific Accuracy (Proposed Sec. 1502.23)
In the proposed rule, CEQ proposed updates to Sec. 1502.23,
``Methodology and Scientific Accuracy,'' which requires agencies to
ensure the professional integrity, including scientific integrity, of
the discussions and analyses in environmental documents. CEQ proposed
revisions to promote use of high-quality information; require agencies
to explain assumptions; and, where appropriate, incorporate
projections, including climate change-related projections, in the
evaluation of reasonably foreseeable effects.
CEQ received a number of comments expressing confusion regarding
the applicability of this provision. In particular, since 1978, the
provision has used the term ``environmental documents,'' making it
broadly applicable. However, it is included in part 1502, which
addresses requirements for EISs. Additionally, the amendments to NEPA
make clear that agencies must ensure the professional integrity,
including scientific integrity, of the discussion and analysis in their
NEPA documents, not just in EISs, and make use of reliable data and
resources in carrying out NEPA. To address the confusion amongst
commenters and for consistency with the NEPA statute, CEQ moves this
provision to part 1506, specifically Sec. 1506.6, which addresses
other requirements of NEPA.
For the discussion of the specific proposed changes and comments on
those changes as well as a description of the final rule, refer to
section II.H.4.
E. Revisions To Update Part 1503, Commenting on Environmental Impact
Statements
CEQ is making substantive revisions to all sections of part 1503,
except Sec. 1503.2, ``Duty to comment.'' While CEQ invited comment on
whether it should make any substantive changes to this section, CEQ did
not receive any specific comments recommending such changes to Sec.
1503.2. Therefore, CEQ finalizes Sec. 1503.2 with the non-substantive
edits proposed in the NPRM (spelling out EIS and fixing citations).
1. Inviting Comments and Requesting Information and Analyses (Sec.
1503.1)
CEQ did not propose substantive changes to Sec. 1503.1 except to
delete paragraph (a)(3) of 40 CFR 1503.1 (2020), requiring agencies to
invite comment specifically on the submitted alternatives, information,
and analyses and the summary thereof, for consistency with the proposed
changes to the exhaustion provision in Sec. 1500.3 and the
corresponding revisions to Sec. 1502.17. CEQ discusses the comments on
removal of the exhaustion provisions generally in section II.B.3, and
CEQ did not receive any comments specific to the proposed deletion of
40 CFR 1503.1(a)(3) (2020). CEQ deletes this paragraph in the final
rule because CEQ is revising Sec. 1500.3 to remove the exhaustion
provision in this final rule as discussed in section II.B.3. Therefore,
this requirement to invite comment is unnecessary and redundant as
Federal agencies invite comment on all sections of draft EISs,
including any appendices, and thus need not invite comment on one
specific section of an EIS.
2. Specificity of Comments and Information (Sec. 1503.3)
CEQ proposed edits to Sec. 1503.3 to clarify the expected level of
detail in comments submitted by the public and other agencies to
facilitate consideration of such comments by agencies in their
decision-making processes. CEQ proposed these edits to remove or
otherwise modify provisions that could inappropriately restrict public
comments and place unnecessary burden on public commenters.
Multiple commenters expressed support for the proposed rule's edits
to Sec. 1503.3 to remove language in the 2020 rule and argued that the
language impeded public participation and unlawfully sought to limit
access to the courts. Commenters asserted that the 2020 language
impeded participation in the NEPA process by members of the public with
valuable information and perspective on the proposed action.
Specifically, the commenters supported the removal of the requirement
for the public to provide as much detail as necessary in paragraph (a),
along with the proposed clarification that commenters do not need to
describe their data, sources, or methodologies. Commenters further
stated that the requirement to provide as much detail as necessary was
ambiguous and could have been interpreted to establish an unjustified
barrier to public comment to those who do not have access to technical
experts or consultants. As discussed further in this section, CEQ is
finalizing all but one of its proposed changes.
CEQ proposed to remove language from Sec. 1503.3(a), which the
2020 rule added, that requires comments to be as detailed ``as
necessary to meaningfully participate and fully inform the agency of
the commenter's position'' because this requirement could lead
commenters to provide unnecessarily long comments that will impede
efficiency. Commenters generally supported this proposal. In support of
the proposed removal, one commenter asserted that the ambiguity of the
requirement to provide as much detail as necessary would prompt
unnecessary litigation over whether particular comments were sufficient
to ``fully inform'' the agency.
CEQ strikes this language in the final rule. Paragraph (a) of Sec.
1503.3 has always required comments to be ``as specific as possible,''
see 40 CFR 1503.3(a) (2019); 40 CFR 1503.3(a) (2020), and the language
CEQ is removing could be read to require commenters to provide detailed
information that either is not pertinent to the NEPA analysis or is
about the commenter's position on the proposed action, the project
proponent, the Federal agency, or other issues. For example, the text
could be read to require a commenter to provide a detailed explanation
of a moral objection to a proposed action or a personal interest in it
if those inform the commenter's position on the project. The text also
could imply that commenters must either be an expert on the subject
matter or hire an expert to provide the necessary level of detail.
Further, the text could be read to imply that commenters are under an
obligation to collect or produce information necessary for agencies to
fully evaluate issues raised in comments even if the commenters do not
possess that information or the skills necessary to produce it.
As CEQ explained in the proposed rule, some commenters on the 2020
rule
[[Page 35513]]
raised this issue, expressing concerns that this language could be read
to require the general public to demonstrate a level of sophistication
and technical expertise not required historically under the CEQ
regulations or consistent with the NEPA statute.\96\ Commenters also
expressed concern that the requirement would discourage or preclude
laypersons or communities with environmental justice concerns from
commenting.\97\ Other commenters on the 2020 rule expressed concern
that the changes would shift the responsibility of analysis from the
agencies to the general public.\98\ Finally, CEQ is removing this
language because the requirements that comments provide as much detail
as necessary to ``meaningfully'' participate and ``fully inform'' the
agency are vague and put the burden on the commenter to anticipate the
appropriate level of detail to meet those standards.
---------------------------------------------------------------------------
\96\ CEQ, 2020 Response to Comments, supra note 69, at 326-27.
\97\ Id.at 327.
\98\ Id. at 328.
---------------------------------------------------------------------------
CEQ also proposed to delete from the second sentence in paragraph
(a) language describing certain types of impacts that a comment should
cover, including the reference to economic and employment impacts as
well as the phrase ``and other impacts affecting the quality of the
human environment'' because it is unnecessary and duplicative of
``consideration of potential effects and alternatives,'' which appears
earlier in the sentence. CEQ proposed to delete the reference to
economic and employment impacts because this language imposes an
inappropriate burden on commenters by indicating that comments need to
explain why an issue matters for economic and employment purposes. NEPA
requires agencies to analyze the potential effects on the human
environment and does not require that these effects be specified in
economic terms or related specifically to employment considerations.
Therefore, it is inappropriate to single out these considerations for
special consideration by commenters and unduly burdensome to expect
every commenter to address economic and employment impacts.
A few commenters opposed the deletion, expressing concerns that
removal of this language would discourage agencies from considering
economic or employment impacts, or indicate that agencies are not
interested in considering such information. CEQ disagrees with the
commenters' assertions. This provision addresses the role of
commenters, who are in the best position to assess the appropriate
scope of their comments. CEQ broadens the language in the final rule,
consistent with the proposal, to invite and welcome comments on effects
of all kinds. The revision in the final rule will not have the effect
of limiting commenters from addressing economic or employment impacts
in their comments but would avoid the implication that members of the
public are welcome to comment only if they address those issues.
Further, the removal of this language in the provisions on public
comments for an EIS does not affect potential consideration of these
effects during the environmental review process. Specifically, Sec.
1501.2(b)(2) requires agencies to identify environmental effects and
values in adequate detail so the decision maker can appropriately
consider such effects and values alongside economic and technical
analyses. For these reasons, CEQ makes the edits as proposed to the
second sentence of Sec. 1503.3(a) in the final rule.
Finally, in paragraph (a), CEQ proposed changes to the last
sentence to clarify that, only where possible, the public should
include citations or proposed changes to the EIS or describe the data,
sources, or methodologies that support the proposed changes in their
comments. While such information is helpful to the agency whenever it
is readily available, CEQ had concerns that this could be construed to
place an unreasonable burden on commenters. CEQ did not receive any
comments specific to this change and makes these edits as proposed in
the final rule.
CEQ proposed to strike paragraph (b) of 40 CFR 1503.3 (2020) and
redesignate paragraphs (c) and (d) as Sec. 1503.3(b) and (c),
respectively. CEQ proposed to delete paragraph (b) for consistency with
the proposed removal of the exhaustion requirement from 40 CFR 1500.3
(2020) and corresponding changes to Sec. 1502.17. CEQ also proposed to
remove this paragraph because it is unrelated to the subject addressed
in Sec. 1503.3, which addresses the specificity of comments, rather
than when commenters should file their comments. Finally, CEQ proposed
to remove this paragraph because agencies have long had the discretion
to consider special or unique circumstances that may warrant
consideration of comments outside those time periods.
While most commenters were supportive of the deletion of the
provisions related to exhaustion, a few commenters specifically
requested CEQ retain paragraph (b) of 40 CFR 1503.3 (2020) in the final
rule. These commenters expressed concern about increased litigation and
commenters raising issues at the last minute or in litigation for the
first time.
CEQ removes paragraph (b) of 40 CFR 1503.3 (2020) in the final
rule. The CEQ regulations have long encouraged the identification of
issues early in the NEPA process by providing multiple opportunities
for the public to engage--first through the scoping process and then
through the public comment period on the draft EIS. As CEQ explains in
section II.B.3, CEQ has determined it is appropriate to remove the
exhaustion provisions in 40 CFR 1500.3 (2020), which CEQ considers
related to general principles of administrative law applied by courts
rather than to principles specific to NEPA. Therefore, CEQ removes this
paragraph for the reasons set forth in the NPRM, the Phase 2 Response
to Comments, and the preamble of this final rule.
Next, CEQ proposed to strike ``site-specific'' from 40 CFR
1503.3(d) (2020) in proposed paragraph (c) to clarify that cooperating
agencies must identify additional information needed to address
significant effects generally. CEQ proposed this change to enhance
efficiency because it ensures that cooperating agencies have the
information they need to fully comment on EISs, averting potential
delay in the environmental review process. CEQ did not receive any
comments specific to this proposed change. CEQ makes this change for
clarity in the final rule.
Finally, CEQ proposed to strike the requirement for cooperating
agencies to cite their statutory authority for recommending mitigation
from 40 CFR 1503.3(e) (2020). The NPRM explained that this requirement
is unnecessary since, at this stage in development of an EIS, those
agencies with jurisdiction by law have already established their legal
authority to participate as cooperating agencies. Two commenters
opposed this change, suggesting that requiring cooperating agencies to
provide this additional detail to the lead agency will help the lead
agency and applicants assess the reasonableness of such
recommendations. Upon further consideration, CEQ has decided not to
remove this requirement in the final rule. CEQ revises the beginning of
the sentence from ``When a cooperating agency with jurisdiction by law
specifies'' to ``A cooperating agency with jurisdiction by law shall
specify'' to clarify the requirement to identify mitigation measures.
Then, in the last clause, CEQ replaces ``the cooperating agency shall''
with ``and'' to retain the requirement for a cooperating agency to cite
to its applicable statutory authority.
[[Page 35514]]
CEQ agrees that identifying the statutory authorities for mitigation is
useful information. CEQ encourages cooperating agencies to identify
such information as early as practicable in development of the EIS, but
no later than at the time of their review of a draft EIS. CEQ also
proposed in paragraph (d) to replace the reference to ``permit,
license, or related requirements'' with ``authorizations'' because the
definition of ``authorization'' in Sec. 1508.1(d) is inclusive of
those terms. CEQ makes this change as proposed for clarity and
consistency in the final rule.
3. Response to Comments (Sec. 1503.4)
CEQ proposed to revise paragraph (a) of Sec. 1503.4 to clarify
that agencies must respond to comments but may do so either
individually, in groups, or in some combination thereof. CEQ proposed
to change ``may'' to ``shall,'' which would revert a change made in the
2020 rule, because the change created ambiguity that could be read to
mean that agencies have discretion in whether to respond to comments at
all, not just in the manner in which they respond, i.e., individually
or in groups. CEQ did not indicate that it intended to make responding
to comments voluntary when it made this change in the 2020 rule, and
CEQ has determined that amending the regulations to avoid this
ambiguity improves the clarity of the regulations.
CEQ received a few comments on paragraph (a). A commenter suggested
that the rule provide greater latitude to agencies to summarize and
respond to comments of a similar nature or decline to respond to
comments that the agency determines provide no substantive information
applicable to the EIS. CEQ agrees that Federal agencies should have
flexibility to summarize and respond to similar comments or decline to
respond to non-substantive comments where appropriate. The proposed
language provides this flexibility, and CEQ makes this change in the
final rule. Restoring ``shall'' in place of ``may'' removes any
ambiguity created by revisions to the paragraph in the 2020 regulations
and is consistent with the longstanding requirement and expectation for
agencies to respond to comments received on an EIS, while also
clarifying that agencies have discretion on how to respond to comments
to promote the efficiency of the NEPA process.
A couple of commenters requested that CEQ define ``substantive
comments;'' modify the last sentence of paragraph (a) to make the list
of means by which an agency may respond in the final EIS to be a
required list by changing ``may respond'' to ``will respond;'' and
modify paragraph (a)(2) to clarify that the only alternatives an agency
should develop and evaluate following public comments are those that
are consistent with the purpose and need and are technically and
economically feasible. CEQ declines to make these changes in the final
rule. Agencies have extensive experience assessing whether a comment is
substantive and should have the flexibility to do so--CEQ is concerned
that a definition would be unnecessarily restrictive. Similarly, CEQ
declines to make the list of means by which an agency responds to
comments mandatory, as unnecessarily prescriptive; paragraph (a) lists
the key ways agencies may address comments, but as long as agencies
respond to individual comments or groups of comments, as required by
the second sentence of paragraph (a), they should have flexibility to
determine the appropriate means of response. Lastly, CEQ does not
consider the proposed change to paragraph (a)(2) necessary because
alternatives already must be consistent with the purpose and need
consistent with Sec. 1502.14.
In paragraph (c), CEQ proposed changes to clarify that when an
agency uses an errata sheet, the agency must publish the entire final
EIS, which would include the errata sheet, a copy of the draft EIS, and
the comments with their responses. CEQ proposed these edits to reflect
typical agency practice and to reflect the current requirement for
electronic submission of EISs rather than the old practice of printing
EISs for distribution. One commenter suggested that proposed edits
would eliminate the errata sheet. The intent of CEQ's edits is to
ensure that the public can access the complete analysis in one place.
CEQ disagrees with the commenter's interpretation of the proposed text,
but to remove any ambiguity, CEQ has revised the provision in the final
rule to make clear that the final EIS includes the errata sheet and ``a
copy of the draft statement.''
F. Revisions To Update Part 1504, Dispute Resolution and Pre-Decisional
Referrals
In the NPRM, CEQ proposed to revise part 1504 to add a new section
on early dispute resolution and reorganize the existing sections. As
discussed further in this section, CEQ makes the changes in the final
rule with some additional edits that are responsive to commenters. One
commenter noted that CEQ did not propose to revise the title of part
1504 to reflect this approach. Therefore, in this final rule, CEQ
revises and simplifies the title of part 1504 to ``Dispute resolution
and pre-decisional referrals'' for consistency with the revisions to
this part. CEQ notes that the criteria and procedures for agencies to
make a referral apply to agencies that make a referral under the NEPA
regulations and do not apply to EPA when exercising its referral
authority under section 309 of the Clean Air Act, 42 U.S.C. 7609.
1. Purpose (Sec. 1504.1)
CEQ proposed in Sec. 1504.1(a) to add language encouraging
agencies to engage early with each other to resolve interagency
disagreements concerning proposed major Federal actions before such
disputes are referred to CEQ. CEQ also proposed to add language
clarifying that part 1504 establishes procedures for agencies to submit
requests to CEQ for informal dispute resolution, expanding the purpose
to reflect the changes proposed in Sec. 1504.2 and described in
section II.F.2. While CEQ did not receive any comments on the language
of this specific provision, CEQ revises the proposed language to make
clear that agencies need not engage in dispute resolution before a
referral. At least one commenter interpreted the optional early dispute
resolution provision in Sec. 1504.2 as a required precursor to a
referral. Therefore, in the final rule, CEQ revises the first sentence
as proposed to encourage agencies to engage with one another to resolve
interagency disputes and adds the proposed new sentence indicating that
part 1504 establishes the procedures for early dispute resolution, but
does not include the clause referencing the referral process. As
discussed further in section II.F.2, these revisions are consistent
with CEQ's ongoing role in promoting the use of environmental
collaboration and conflict resolution,\99\ and serving as a convener
and informal mediator for interagency disputes. CEQ strongly encourages
agencies to resolve disputes informally and as early as possible so
that referrals under part 1504 are used only as a last resort. Early
resolution of disputes is essential to ensuring an efficient and
effective environmental review process.
---------------------------------------------------------------------------
\99\ See OMB & CEQ, Memorandum on Environmental Collaboration
and Conflict Resolution (Sept. 7, 2012), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/OMB_CEQ_Env_Collab_Conflict_Resolution_20120907.pdf; OMB & CEQ,
Memorandum on Environmental Conflict Resolution (Nov. 28, 2005),
https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/OMB_CEQ_Joint_Statement.pdf.
---------------------------------------------------------------------------
In paragraph (b), which notes EPA's role pursuant to section 309 of
the Clean Air Act, 42 U.S.C. 7609, CEQ proposed to strike the
parenthetical providing the
[[Page 35515]]
term ``environmental referrals,'' as this term is not used elsewhere in
part 1504. CEQ notes that EPA's section 309 authority is distinct from
the ability of an agency to make a referral pursuant to Sec. 1504.3,
and therefore part 1504 does not apply to EPA when it is exerting its
section 309 authority. Finally, CEQ proposed to revise the second
sentence in paragraph (c) to eliminate the passive voice to improve
clarity. CEQ did not receive any specific comments on its proposed
changes to paragraphs (b) and (c). Consistent with the NPRM, this final
rule removes the parenthetical in paragraph (b) and revises paragraph
(c) to add the second sentence as proposed. Additionally, the final
rule strikes ``similar'' from the first sentence of paragraph (c)
because the bases for referral under NEPA and section 309 are distinct.
2. Early Dispute Resolution (Sec. 1504.2)
As discussed further in section II.F.3, CEQ proposed to move the
provisions in 40 CFR 1504.2 (2020) to Sec. 1504.3(a) and to repurpose
Sec. 1504.2 for a new section on early dispute resolution. CEQ
proposed to add this section to codify agencies' current and
longstanding practice of engaging with one another and enlisting CEQ to
help resolve interagency disputes. While CEQ did not receive many
comments on this provision, the vast majority of those it did receive
supported the new provision, and some recommended CEQ make the language
in the provision stronger and more directive. On the other hand, one
commenter suggested dispute resolution would slow the environmental
review process. CEQ is finalizing the provision as proposed because CEQ
considers a flexible, informal, and non-binding approach rather than a
mandatory and prescriptive process to strike the right balance to
advance early resolution of interagency disputes. CEQ does not consider
this provision to abrogate CEQ's authorities, as one commenter
suggested, but rather to encourage agencies to resolve disputes early
amongst themselves and elevate issues to CEQ when doing so will help
advance resolution. Making the language in the regulations
discretionary rather than mandatory does not affect CEQ's authorities.
CEQ revises Sec. 1504.2 as proposed. Specifically, new paragraph
(a) encourages agencies to engage in interagency coordination and
collaboration within planning and decision-making processes and to
identify and resolve interagency disputes. Further, paragraph (a)
encourages agencies to elevate issues to appropriate agency officials
or to CEQ in a timely manner that is consistent with the schedules for
the proposed action established under Sec. 1501.10.
Paragraph (b) allows a Federal agency to request that CEQ engage in
informal dispute resolution. When making such a request to CEQ, the
agency must provide CEQ with a summary of the proposed action,
information on the disputed issues, and agency points of contact. This
provision codifies the longstanding practice of CEQ helping to mediate
and resolve interagency disputes outside of and well before the formal
referral process (Sec. 1504.3) and to provide additional direction to
agencies on what information CEQ needs to mediate effectively.
Paragraph (c) provides CEQ with several options to respond to a
request for informal dispute resolution, including requesting
additional information, convening discussions, and making
recommendations, as well as the option to decline the request.
3. Criteria and Procedure for Referrals and Response (Sec. 1504.3)
As noted in section II.F.2, CEQ proposed to move the criteria for
referral set forth in 40 CFR 1504.2 (2020) to a new paragraph (a) in
Sec. 1504.3 and redesignate paragraphs (a) through (h) of 40 CFR
1504.3 (2020) as Sec. 1504.3(b) through (i), respectively. Because of
this consolidation, CEQ proposed to revise the title of Sec. 1504.3 to
``Criteria and procedure for referrals and response.''
At least one commenter supported the move of 40 CFR 1504.2 (2020)
to proposed Sec. 1504.3(a) to facilitate the addition of the informal
dispute resolution process. A few commenters requested that CEQ make
additional changes to Sec. 1504.3 to restore language from the 1978
regulations allowing public comment during CEQ's deliberations on
whether to accept a particular referral and, if CEQ accepts a referral,
during CEQ's consideration of recommendations to resolve the dispute.
In the final rule, CEQ adds an additional factor, ``other
appropriate considerations,'' at Sec. 1504.3(a)(8) to clarify that the
list of considerations for referral is not an exclusive list.
Additionally, CEQ revises paragraph (f) to allow ``other interested
persons'' to provide views on the referrals because CEQ agrees with the
commenters that the opportunity to provide views should not be limited
to applicants. Relatedly, CEQ clarifies in paragraph (g)(3) that CEQ
may obtain additional views and information ``including through public
meetings or hearings.'' While the language in 40 CFR 1504.3(f)(3)
(2020) and the proposed rule would not preclude CEQ from holding public
meetings or hearings, CEQ considers it important to provide this
clarification in the regulations to respond to comments. CEQ otherwise
finalizes this provision as proposed.
G. Revisions to NEPA and Agency Decision Making (Part 1505)
1. Record of Decision in Cases Requiring Environmental Impact
Statements (Sec. 1505.2)
The proposed rule included proposed modifications in Sec. 1505.2
to align this section with other proposed changes to the regulations
relating to exhaustion and to clarify which alternatives agencies must
identify in RODs. CEQ also proposed to modify the provision on
mitigation. As discussed further in this section, CEQ proposed to
strike paragraph (b) of 40 CFR 1505.2 (2020), make paragraph (a) of 40
CFR 1505.2 (2020) the undesignated introductory paragraph in Sec.
1505.2, and redesignate paragraphs (a)(1) through (a)(3) of 40 CFR
1505.2 (2020) as Sec. 1505.2(a) through (c), respectively. CEQ makes
these reorganizational changes in the final rule.
In proposed paragraph (b), CEQ proposed to restructure the first
sentence--by splitting it into two sentences and reframing it in active
voice--to improve readability and clarify that an agency must identify
the alternatives it considered in reaching its decision and also
specify one or more environmentally preferable alternatives in the ROD,
consistent with proposed changes to Sec. 1502.14(f) requiring an
agency to identify one or more environmentally preferable alternatives
in the EIS. CEQ makes these changes as proposed in the final rule.
CEQ received a number of comments on the ``environmentally
preferable alternative'' generally, which are discussed in detail in
sections II.D.13 and II.J.10. CEQ notes that it did not intend a
substantive change to the longstanding requirement to identify which
alternative (or alternatives) considered in the EIS is the
environmentally preferable alternative(s). Some commenters suggested
that the ``environmentally preferable alternative'' could be an
alternative other than the proposed action, no action, or reasonable
alternatives (which must be technically and economically feasible and
meet the definition of purpose and need). However, this is incorrect
because the environmentally preferable alternative is one of the
alternatives included in the analysis, which consist of the proposed
action, no action, or reasonable
[[Page 35516]]
alternatives. CEQ is revising Sec. 1502.14(f) in the final rule, to
which Sec. 1505.2(b) cross references, to make this clear. CEQ revises
Sec. 1505.2 as proposed in the final rule.
Another commenter suggested CEQ require an agency to specify if it
selected the environmentally preferable alternative and if not, why
not. CEQ declines to make this change in the final rule because it is
overly prescriptive. The regulations have long required agencies to
discuss myriad factors and considerations that agencies balance in
making their decisions without specifically requiring an agency to
explain why it did not select the environmentally preferable
alternative, and CEQ does not consider a change from this longstanding
practice to be warranted.
In the third sentence of proposed Sec. 1505.2(b), CEQ added
environmental considerations to the list of example relevant factors
upon which an agency may base discussion of preferences among
alternatives. CEQ did not receive any specific comments on this
proposed change to Sec. 1505.2(b) and makes the changes in the final
rule consistent with its proposal.
In proposed Sec. 1505.2(c), CEQ proposed to change ``avoid or
minimize'' to ``mitigate'' in the first sentence for consistency with
the remainder of the paragraph. One commenter opposed this change,
arguing that it would impose a burdensome requirement on agencies to
consider mitigation for each of the effects of the proposed action and
explain in a ROD why each impacted resource will not be replaced with a
substitute. CEQ disagrees with the commenter's interpretation of the
proposed revision. This provision has never required agencies to
discuss avoidance or minimization at this level of detail, i.e., for
each resource category. Rather, it requires an agency to discuss
generally whether it has ``adopted all practicable means'' and if not,
the reasons for not doing so. CEQ makes this change in the final rule
to clarify that agencies should discuss generally whether they have
adopted practicable mitigation to address environmental harms from the
selected alternative. Agencies need not do so on an impact category-by-
impact category basis.
Additionally, CEQ proposed to clarify in proposed Sec. 1505.2(c)
that any mitigation must be enforceable, such as through permit
conditions or grant agreements, if an agency includes the mitigation as
a component of the selected action in the ROD, and the analysis of
reasonably foreseeable effects in the EISs relies on effective
implementation of that mitigation. CEQ also proposed to require
agencies to identify the authority for enforceable mitigation. Lastly,
CEQ proposed to replace the requirement to adopt and summarize a
monitoring and enforcement program for any enforceable mitigation
requirements or commitments, with a requirement to adopt a monitoring
and compliance plan consistent with proposed Sec. 1505.3(c).
CEQ received a large number of comments both supporting and
opposing the proposed requirement to ensure that mitigation is
enforceable in certain cases and to identify the authority for the
enforceable mitigation. Supporters of the proposed change generally
expressed concerns that mitigation incorporated in RODs or FONSIs is
often not carried out, undermining the evaluation of effects required
by NEPA. By contrast, opponents of the proposed change expressed
concern that the provision would require enforceable mitigation in
every case, and that the requirement for enforceability would
discourage project proponents from proposing voluntary mitigation.
These commenters also stated that NEPA does not require mitigation of
adverse effects or give agencies the authority to require or enforce
mitigation measures. They expressed concern that to the extent that the
authority to require or enforce mitigation comes from other statutes,
the requirement in proposed Sec. 1505.2(c) would be duplicative.
Finally, commenters noted that ``enforcement'' may be the
responsibility of an agency other than the lead agency and may consist
of suspension or revocation of an authorization under terms and
conditions included in the authorization rather than direct civil or
administrative enforcement actions.
In the final rule, CEQ retains the requirement to make mitigation
enforceable in those circumstances in which agencies rely upon that
mitigation as part of its analysis. CEQ has revised the sentence in
Sec. 1505.2(c) to enhance readability and to address some of the
confusion raised by commenters by specifying that mitigation must be
enforceable by a lead, joint lead, or cooperating agency when the ROD
incorporates mitigation and the analysis of the reasonably foreseeable
effects of the proposed action is based on implementation of that
mitigation. The final rule further revises the second sentence of
proposed Sec. 1505.2(c) by breaking it into two sentences. The first
identifies when mitigation must be enforceable. The second requires
agencies to identify the authority for enforceable mitigation, provides
examples of enforceable mitigation--specifically, permit conditions,
agreements, or other measures--and requires agencies to prepare a
monitoring and compliance plan. CEQ received a number of comments on
the monitoring and compliance plan proposal, which are discussed in
detail in section II.G.2. For the reasons discussed in that section, as
well as the Phase 2 Response to Comments and NPRM, CEQ revises the last
sentence of Sec. 1505.2(c) to require agencies to prepare a monitoring
and compliance plan consistent with Sec. 1505.3.
Section 1505.2(c) does not require agencies to include enforceable
mitigation measures in every decision subject to NEPA or require them
to adopt mitigation in any circumstance; rather, the provision
reinforces the integrity of environmental reviews by ensuring that if
an agency assumes as part of its analysis that mitigation will occur
and will be effective, the agency takes steps to ensure that this
assumption is correct, including by making the mitigation measures
enforceable.
This provision does not prohibit agencies from approving proposals
with unmitigated adverse environmental effects or from approving
proposals that include unenforceable mitigation measures so long as the
agency does not rely on the effective implementation of those measures
to determine the potential reasonably foreseeable effects of the
action. Rather, the provision only prohibits an agency from basing its
environmental analysis on mitigation that the agency cannot be
reasonably sure will occur. If an agency treats the proposal's
unmitigated effects as ``reasonably foreseeable,'' and analyzes them in
its environmental review, then the rule does not require the agency to
make the mitigation measures discussed in the environmental document
enforceable or to identify the authority for those measures.
The text in the final rule is consistent with CEQ's longstanding
position that agencies should not base their NEPA analyses on
mitigation measures that they lack the authority to carry out or to
require others to carry out. CEQ agrees with the commenters that
enforcing mitigation measures will generally rely on authorities
conferred on the agency (or other participating agencies) by statutes
other than NEPA. Rather than duplicating work done under those other
statutes, however, the requirement to identify those authorities will
help integrate NEPA with other
[[Page 35517]]
statutory processes and promote efficiency and transparency.
Finally, CEQ proposed to strike paragraph (b) of 40 CFR 1505.2
(2020), requiring a decision maker to certify in the ROD that the
agency considered all of the submitted alternatives, information, and
analyses in the final EIS, consistent with paragraph (b) of 40 CFR
1502.17 (2020), and stating that such certification is entitled to a
presumption that the agency considered such information in the EIS. CEQ
proposed to strike this paragraph because such certification is
redundant--the discussion in the ROD and the decision maker's signature
on such document have long served to verify the agency has considered
the entirety of the EIS's analysis of the proposed action,
alternatives, and effects, as well as the public comments received. As
a result, the certification that this paragraph required could have the
unintended consequence of suggesting that the agency has not considered
other aspects of the EIS, such as the comments and response to
comments, in making the decision. CEQ also proposed this change because
agencies are entitled to a presumption of regularity under the tenets
of generally applicable administrative law, rather than this
presumption arising from NEPA; therefore, CEQ considers it
inappropriate to address in the NEPA regulations.
CEQ also proposed to strike paragraph (b) for consistency with its
proposal to remove the exhaustion provision in 40 CFR 1500.3 (2020), as
discussed in section II.B.3. As CEQ discussed in that section, CEQ now
considers it more appropriately the purview of the courts to make
determinations regarding exhaustion. Therefore, to the extent that the
certification requirement was intended to facilitate the exhaustion
provision in 40 CFR 1500.3 (2020), it is no longer necessary.
As discussed in section II.B.3, CEQ considered the comments
regarding the exhaustion-related provisions and is removing them in
this final rule. While most commenters discussed the provisions
collectively, at least one commenter recommended removing this
certification provision because it created an additional compliance
burden on agencies without improving efficiency or reducing litigation
risk. CEQ agrees that the certification provision does not increase
efficiency or reduce litigation risk, and that this is an additional
reason to remove this provision. For the reasons discussed here and in
section II.B.3, CEQ removes this paragraph in the final rule. As noted
in this section, CEQ considers such certification to be redundant to
the decision maker's signature on a ROD, which indicates that the
decision maker has considered all of the information, including the
public comments.
2. Implementing the Decision (Sec. 1505.3)
CEQ proposed to add provisions to Sec. 1505.3 for mitigation and
related monitoring and compliance plans. To accommodate the changes,
CEQ proposed to designate the undesignated introductory paragraph of 40
CFR 1505.3 (2020) as paragraph (a) and redesignate 40 CFR 1505.3(a) and
(b) (2020) as Sec. 1505.3(a)(1) and (a)(2), respectively. CEQ makes
these reorganizational changes in the final rule with two clarifying
edits to Sec. 1505.3(a). First, CEQ adds an introductory clause in
Sec. 1505.3, ``[i]n addition to the requirements of paragraph (c) of
this section,'' to distinguish the discussion of monitoring in
paragraph (a) from the new monitoring and compliance plans provided for
in paragraph (c). Second, CEQ deletes ``lead'' before agency in the
last sentence for consistency with the prior sentence, stating that the
lead or other appropriate consenting agency shall implement mitigation
committed to as part of the decision.
CEQ proposed to add new Sec. 1505.3(b) to encourage lead and
cooperating agencies to incorporate, where appropriate, mitigation
measures addressing a proposed action's significant adverse human
health and environmental effects that disproportionately and adversely
affect communities with environmental justice concerns. CEQ proposed
this addition to highlight the importance of considering environmental
justice and addressing disproportionate effects through the NEPA
process and the associated decision. CEQ proposed this addition based
on public and agency feedback received during development of this
proposed rule requesting that this rule address mitigation of
disproportionate effects. Additionally, CEQ proposed this change to
encourage agencies to incorporate mitigation measures to address
disproportionate burdens on communities with environmental justice
concerns.
Numerous commenters opposed CEQ's proposed addition of Sec.
1505.3(b), pointing to the Supreme Court's decision in Robertson v.
Methow Valley Citizens Council, 490 U.S. 332 (1989). These commenters
stated that as a procedural statute, NEPA does not empower CEQ to
require agencies to adopt mitigation measures. In contrast, other
commenters supported CEQ's inclusion of the proposed new language in
Sec. 1505.3(b), and in some cases, encouraged CEQ to go further to
require agencies to mitigate adverse effects to communities with
environmental justice concerns.
CEQ finalizes Sec. 1505.3(b) as proposed with two edits. The final
rule includes ``into its decision'' after ``incorporate'' to clarify
where agencies incorporate mitigation measures and does not include
``adverse'' after ``significant'' since ``significant effects'' is
defined to only be adverse effects. CEQ has long encouraged agencies,
as a policy matter, to adopt mitigation measures that will reduce the
adverse environmental effects of their actions.\100\ The addition of
the language in Sec. 1505.3(b) is consistent with this approach
without imposing new legal requirements on Federal agencies.
---------------------------------------------------------------------------
\100\ See, e.g., CEQ, Mitigation Guidance, supra note 10, at
3847 (``CEQ encourages agencies to commit to mitigation to achieve
environmentally preferred outcomes, particularly when addressing
unavoidable adverse environmental impacts'').
---------------------------------------------------------------------------
CEQ recognizes the Supreme Court's holding in Methow Valley that
NEPA does not require ``that a complete mitigation plan be actually . .
. adopted,'' 490 U.S. at 352, and has not changed its longstanding
position that ``NEPA in itself does not compel the selection of a
mitigated approach.'' \101\ Accordingly, this provision does not impose
any binding requirements on agencies, but rather codifies a portion of
CEQ's longstanding position that agencies should, as a policy matter,
mitigate significant adverse effects where relevant and appropriate, in
particular for ``actions that disproportionately and adversely affect
communities with environmental justice concerns.'' The encouragement to
agencies to mitigate disproportionate and adverse human health and
environmental effects on communities with environmental justice
concerns is grounded in NEPA, which, while not imposing a requirement
to mitigate adverse effects, nonetheless does ``set forth significant
substantive goals for the Nation.'' See Vt. Yankee, 435 U.S. at 558.
Specifically, NEPA declares that the purposes of the statute are ``to
promote efforts which will prevent or eliminate damage to the
environment and biosphere and stimulate the health and welfare of
[people]''; establishes ``the continuing policy of the Federal
Government'' to ``assure for all Americans safe, healthful, productive,
and esthetically and culturally pleasing surroundings'' and to
``preserve important historic, cultural, and natural aspects of our
national heritage''; and ``recognizes that each person should
[[Page 35518]]
enjoy a healthful environment.'' 42 U.S.C. 4321, 4331(a), (b)(2),
(b)(4), (c).
---------------------------------------------------------------------------
\101\ See id. at 3844.
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CEQ's policy guidance has long ``encourage[d] agencies to commit to
mitigation to achieve environmentally preferred outcomes, particularly
when addressing unavoidable adverse environmental impacts.'' \102\
CEQ's choice to encourage agencies in Sec. 1505.3(b) to mitigate,
``where relevant and appropriate,'' the significant effects of
``actions that disproportionately and adversely affect communities with
environmental justice concerns,'' reflects the particular importance of
addressing environmental justice. CEQ does not intend the codification
of its encouragement to mitigate this category of effects to imply that
CEQ does not also continue to encourage agencies to commit to
mitigation more broadly as set forth in CEQ's guidance. Rather, CEQ has
determined to focus the regulation on mitigation where actions
disproportionately and adversely affect communities with environmental
justice concerns, due to its heightened policy concern when actions
further burden communities that already experience disproportionate
burdens.
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\102\ See id. at 3847.
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Next, CEQ proposed to revise the text in paragraph (c) regarding
mitigation and strike 40 CFR 1505.3(d) (2020) regarding publication of
monitoring results, and replace them with new language in Sec.
1505.3(c) regarding the contents of a monitoring and compliance plan.
As proposed, this provision would require agencies to prepare a
monitoring and compliance plan in certain circumstances when the agency
commits to mitigation in a ROD, FONSI, or separate document. CEQ
proposed to require agencies to prepare a plan for any mitigation
committed to and adopted as the basis for analyzing the reasonably
foreseeable effects of a proposed action, not just mitigation to
address significant effects. In the NPRM, CEQ explained that it views
such plans as necessary in order for an agency to conclude that it is
reasonably foreseeable that a mitigation measure will be implemented,
and, therefore, that the agency does not have to analyze and disclose
the effects of the action without mitigation because they are not
reasonably foreseeable. The proposal would not require a monitoring and
compliance plan where an agency analyzes and discloses the effects of
the action without the mitigation measure because, in that
circumstance, the agency would not base its identification of
reasonably foreseeable effects on the mitigation measure.
CEQ received many comments both supporting and opposing the
requirement for mitigation monitoring and compliance plans under
prescribed circumstances. Supporters of the proposed changes generally
expressed concerns that without monitoring and compliance plans,
agencies' assumptions regarding the ability of mitigation to reduce the
adverse effects of the proposed action may be speculative. Opponents of
the changes, meanwhile, raised similar concerns to those raised in
connection with the language in Sec. 1505.2(c) regarding the
enforceability of mitigation, as discussed in section II.G.1.
Specifically, commenters expressed concern that enforceable mitigation
would be required in every case, and that the requirement for
enforceability would discourage project proponents from proposing
voluntary mitigation. These commenters also noted that NEPA does not
require or authorize CEQ to require detailed mitigation plans and
expressed concern that preparing monitoring and compliance plans would
be duplicative and burdensome. Commenters also suggested that CEQ
require monitoring plans in a broader range of cases; require plans to
include more detailed information regarding effectiveness and
uncertainty; require agencies to engage the public in connection with
mitigation plans; and provide guidance on topics including interagency
coordination and mitigation funding.
In the final rule, CEQ strikes paragraph (d) of 40 CFR 1505.3
(2020) and revises Sec. 1505.3(c) to require the lead or cooperating
agency to prepare and publish a monitoring and compliance plan for
mitigation in certain circumstances identified in Sec. 1505.3(c)(1)
and (c)(2)--the final rule subdivides the text from proposed paragraph
(c) to improve readability. The final rule clarifies that an agency
must publish the plan. While publication is implied in the proposed
rule, since such plans would be completed in or with the ROD or FONSI,
and these documents must be published, commenters requested CEQ address
this explicitly in the final rule, and CEQ has done so to avoid any
confusion over whether agencies must publish these plans.
CEQ revises the language from the proposed rule to make clear that
agencies must prepare such plans when the following conditions are met.
First, the analysis of the reasonably foreseeable effects of a proposed
action in an EA or EIS is based on implementation of mitigation.
Second, the agency incorporates the mitigation into its ROD, FONSI, or
separate decision document.
As with the requirements related to mitigation enforceability in
Sec. 1505.2(c), this provision does not require agencies to include
mitigation monitoring and compliance plans for every action subject to
NEPA or even for every decision that includes mitigation. Rather, the
final rule requires the agency to prepare and publish a mitigation
monitoring and compliance plan when an agency bases its identification
of the reasonably foreseeable effects of the action, as required by
section 102(2)(C) of NEPA, on implementation of mitigation.
Specifically, the statutory text requires an agency to identify the
``reasonably foreseeable environmental effects'' of the proposed
action; to the extent that identification assumes the implementation of
mitigation measures to avoid adverse effects, it follows, in turn, that
implementation of mitigation must also be reasonably foreseeable. The
preparation of a monitoring and compliance plan therefore provides the
agency with reasonable certainty that the mitigation measures upon
which it has based its effects analysis will be implemented, and
therefore, that the effects of the action in the absence of mitigation
do not need to be analyzed and disclosed to satisfy the requirements of
the NEPA statute. For example, if an agency concluded that issuing a
permit allowing fill of five acres of wetlands would not have a
significant effect based on the applicant's agreement to restore five
acres of comparable wetlands in the same watershed, then the agency has
based its conclusion that the action to grant the permit does not have
significant effects on implementation of the mitigation measure and
would need to prepare a monitoring and compliance plan. The same would
be true if the agency's analysis in its EA or EIS found that
authorizing the filling of five acres of wetlands would not have a
reasonably foreseeable effect on the availability of wetlands habitat
in the watershed based on the implementation of the wetlands
restoration measure.
The language in Sec. 1505.3 builds on CEQ's longstanding positions
regarding the information that agencies must include in NEPA documents
when agencies choose to base their effects analysis on the
implementation of mitigation measures. To the extent that other
authorities may require monitoring and compliance plans, agencies
should leverage those existing plans to comply with the requirements of
the rule, rather than duplicating efforts.
[[Page 35519]]
CEQ proposed paragraphs (c)(1) and (c)(1)(i) through (c)(1)(vi) of
Sec. 1505.3 to describe the contents of a monitoring and compliance
plan and provide agencies flexibility to tailor plans to the complexity
of the mitigation that the agency has incorporated into a ROD, FONSI,
or other document. Contents should include a description of the
mitigation measures; the parties responsible for monitoring and
implementation; how the information will be made publicly available, as
appropriate; the anticipated timeframe for implementing and completing
the mitigation; the standards for compliance with the mitigation; and
how the mitigation will be funded.
A commenter suggested that CEQ require in Sec. 1505.3(c)(1)(v)
that the standards address effectiveness of the mitigation. CEQ
declines to make this change in the final rule. The goal of this
provision is to ensure that agencies have reasonable certainty that
mitigation measures that serve as the basis for the effects analysis
will be implemented, and therefore, that the effects of the action in
the absence of implementation of mitigation are not reasonably
foreseeable and can be excluded from the analysis. Agencies
appropriately evaluate the effectiveness of mitigation measures as part
of the NEPA process and rely on various techniques, such as adaptive
management plans, to address circumstances where there is substantial
uncertainty over effectiveness, for example where a mitigation measure
is new or novel.
CEQ finalizes these paragraphs in Sec. 1505.3(d) and (d)(1)
through (d) as proposed, with an addition to Sec. 1505.3(d) to
reference the monitoring and compliance plan required by paragraph (c).
Agencies may tailor monitoring and compliance plans to the particular
action, but they should contain sufficient detail to inform the
participating and cooperating agencies and the public about relevant
considerations, such as the magnitude of the environmental effects that
would be subject to mitigation, the degree to which the mitigation
represents an innovative approach, any technical or other challenges
with implementation, the time frame for implementation and monitoring,
and other relevant facts that support a determination that the
mitigation will be implemented. Where a proposed action involves more
than one agency, the lead and cooperating agencies should
collaboratively develop a monitoring and compliance plan that clearly
defines agency roles and avoids duplication of effort.
Requiring agencies to prepare a monitoring and compliance plan for
mitigation in the circumstances identified in paragraph Sec. 1505.3(c)
is intended to address concerns that mitigation measures included in
agency decisions are not always carried out. If it is reasonably
foreseeable that a mitigation measure will not be implemented, then the
agency cannot appropriately base its analysis of the effects of the
action on the implementation of the mitigation measure. A monitoring
and compliance plan will address this concern and support an agency
relying on mitigation for purposes of analyzing and disclosing the
reasonably foreseeable environmental effects of a proposed action, as
required by section 102(2)(C) of NEPA, and, in some circumstances,
concluding that a FONSI is appropriate.
Finally, CEQ proposed to add a new paragraph (c)(2) to provide that
any new information developed through the monitoring and compliance
plan would not require an agency to supplement its environmental
documents solely because of this new information. CEQ proposed this
provision to clarify that the existence of a monitoring and compliance
plan by itself would not mean that the action to which it relates is an
ongoing action if it would otherwise be considered completed.
CEQ received comments supporting, opposing, and asking CEQ to
clarify proposed Sec. 1505.3(c)(2). In the final rule, CEQ includes
proposed paragraph (c)(2) at Sec. 1505.3(e) with some revisions to the
proposal. CEQ revises the beginning of the first sentence to clarify
that where an action is incomplete or ongoing, the information
developed through the monitoring and compliance plan itself cannot
induce the requirement to supplement or revise environmental documents.
CEQ includes this provision to avoid perverse incentives that could
lead agencies to adopt less effective monitoring and compliance plans,
or forgo commitments to mitigation entirely, to avoid revision and
supplementation. This clarification is also consistent with the purpose
of the monitoring and compliance plan, which is to ensure that the
agency has a reasonable basis for assessing environmental effects at
the time that it makes its decision, rather than creating a new
obligation for ongoing NEPA analysis after a decision is made. Second,
CEQ adds an additional sentence at the end of the paragraph to clarify
that the ongoing implementation of a monitoring and compliance plan by
itself is not an incomplete or ongoing Federal action that induces
supplementation under Sec. Sec. 1501.5(h) or 1502.9(d).
The changes to Sec. 1505.3 are consistent with the final rule's
revisions to Sec. 1505.2(c), which direct agencies to adopt and
summarize a monitoring and enforcement program for any enforceable
mitigation requirements or commitments for a ROD, and to Sec.
1501.6(a) to clarify the use of mitigated FONSIs. The changes also
provide more consistency in the content of monitoring and compliance
plans, increase transparency in the disclosure of mitigation measures,
and provide the public and decision makers with relevant information
about mitigation measures and the process to comply with them.
H. Revisions to Other Requirements of NEPA (Part 1506)
CEQ proposed multiple revisions to part 1506, as described in this
section. As noted in section II.C.8, CEQ proposed to move 40 CFR 1506.6
(2020), ``Public involvement,'' to Sec. 1501.9, ``Public and
governmental engagement.'' CEQ did not propose changes to Sec. 1506.2,
``Elimination of duplication with State, Tribal, and local
procedures;'' Sec. 1506.4, ``Combining documents;'' or Sec. 1506.8,
``Proposals for legislation,'' but invited comments on whether it
should make changes to these provisions in the final rule.
CEQ received several general comments of support on Sec. 1506.2
regarding elimination of duplication with State, Tribal, and local
procedures, and one commenter suggested the final rule change Sec.
1506.2(d) to require rather than recommend that EISs describe how the
agency will reconcile an inconsistency between the proposed action and
an approved State, Tribal, or local plan or law. CEQ declines to make
this change to this longstanding language from the 1978 regulations. As
also noted in this provision, NEPA does not require such
reconciliation.
CEQ did not receive any recommendations to amend Sec. 1506.4
regarding combining documents, though one commenter requested
additional guidance on use of this and other provisions to facilitate
sound and efficient decision making and avoid duplication. Finally, CEQ
received one comment on Sec. 1506.8 regarding legislative EISs,
requesting CEQ include public notification and participation
requirements for legislative EAs/EISs in Sec. 1506.8(b). CEQ notes
that consistent with Sec. 1506.8(c), agencies must provide for public
notice and seek comment like any other draft EIS. After considering
these comments, CEQ has determined to finalize the rule without making
changes to Sec. Sec. 1506.2, 1506.4, or 1506.8.
[[Page 35520]]
1. Limitations on Actions During NEPA Process (Sec. 1506.1)
CEQ proposed to edit Sec. 1506.1(b) to provide further clarity on
the limitations on actions during the NEPA process to ensure that
agencies and applicants do not take actions that will adversely affect
the environment or limit the choice of reasonable alternatives until an
agency concludes the NEPA process.
CEQ proposed to amend the last sentence in paragraph (b), which
provides that agencies may authorize certain activities by applicants
for Federal funding while the NEPA process is ongoing. To better align
this provision with NEPA's requirements, CEQ proposed to add a clause
to the sentence clarifying that such activities cannot limit the choice
of reasonable alternatives, and the Federal agency must notify the
applicant that the agency retains discretion to select any reasonable
alternative or the no action alternative regardless of any potential
prior activity taken by the applicant prior to the conclusion of the
NEPA process. CEQ also proposed this revision to provide additional
clarity consistent with Sec. 1506.1(a) and the 2020 Response to
Comments, which state that this provision allows certain activities to
proceed, prior to a ROD or FONSI, so long as they do not have an
adverse environmental impact or limit the choice of reasonable
alternatives.\103\ The NPRM also noted that the proposed change is
responsive to comments received on the 2020 rule expressing concern
that the existing language could allow pre-decisional activities to
proceed that would inappropriately narrow the range of alternatives
considered by an agency.
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\103\ CEQ, 2020 Response to Comments, supra note 69, at 356.
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A few commenters expressed support for the proposed changes to
Sec. 1506.1(b), including commenters who also requested additions to
the list of examples of potentially permissible activities. Several
other commenters opposed the proposed language, pointing to sector-
specific reasons; citing cases where courts issued preliminary
injunctions predicated on a ruling that limiting reasonable
alternatives before the NEPA analysis is complete is irreparable harm;
citing cases where courts ruled that undertaking project actions before
NEPA is completed undermines the law; and asserting that allowing any
economic investment in an action before completing the NEPA process
undermines confidence in agency decisions.
Some commenters opposed the examples of activities an agency could
authorize, asserting that land rights acquisition and long lead time
equipment purchases are apt to bias agency decision making and
recommended CEQ revise the list to prohibit acquisition of interests in
land, purchase of long lead-time equipment, and purchase options made
by applicants before NEPA review.
One commenter asserted that the proposed revisions to paragraph (b)
undermine the value of an agency authorization and recommended the
provision state that project applicants may proceed at their own risk
without agency authorization. Another commenter requested that CEQ add
language to paragraph (b) to provide Tribes with more flexibility to
undertake interim actions.
CEQ considered the comments and finalizes Sec. 1506.1(b) as
proposed with two additional revisions. Specifically, CEQ changes the
phrase ``non-Federal entity'' to ``applicant'' in the first sentence of
paragraph (b) for consistency with the definition of ``applicant''
added to Sec. 1508.1(c) and does not include the phrase ``potential
prior'' before the word ``activity,'' so that the provision requires
notification that the agency retains discretion regardless of any
activity taken by the applicant prior to the conclusion of the NEPA
process. CEQ has deleted this phrase because, upon further
consideration, it considers it to be confusing because the sentence
refers to activity taken prior to the conclusion of the NEPA process,
and, therefore, the earlier use of ``prior'' is redundant and the use
of ``potential'' is unnecessary because such activity would be actual
and not potential at the conclusion of the NEPA process. CEQ considers
the provision as revised to strike the right balance between preserving
the integrity of the NEPA process, including preserving an agency's
right to select no action or a reasonable alternative, and providing
applicants sufficient flexibility to make business decisions. This
approach is consistent with the fact that NEPA applies to Federal
agencies and does not directly regulate applicants (unless the
applicants are themselves Federal agencies). This approach is also
consistent with longstanding practice under Sec. 1506.1. Further,
applicants are in the best position to assess and determine their
tolerance for risk, and agencies should never be unduly influenced by
these decisions in their NEPA processes.
CEQ also proposed to strike ``required'' in paragraph (c). This
edit is consistent with Sec. 1501.11, which encourages, but does not
require, the use of programmatic environmental reviews.
A few commenters opposed the proposed change to paragraph (c),
asserting that it is contrary to NEPA and multiple other laws by
restricting actions during discretionary or non-required programmatic
environmental reviews. One commenter stated that the proposal would
authorize agencies to suspend programs like Federal coal leasing while
environmental studies are ongoing, and that NEPA does not provide
agencies with authority for such action. The commenter asserted that
expanding proposed Sec. 1506.1 beyond required programmatic
environmental reviews is arbitrary and capricious because CEQ has
failed to describe a valid purpose for the deletion.
CEQ has reviewed this provision in response to comments and retains
``required'' in the final rule. CEQ also revises ``programmatic
environmental review'' to ``environmental review for a program'' to
revert to the approach in the 1978 regulations. The 2020 rule changed
``program'' EIS to ``programmatic environmental review'' stating that
``programmatic'' is the term commonly used by NEPA practitioners.\104\
However, paragraphs (c) and (c)(1) continue to refer to ``program,''
and the definition of ``programmatic environmental document'' in Sec.
1508.1(ee) is not limited to reviews of programs, but extends other
reviews such as reviews of groups of related actions. To resolve any
ambiguity, the final rule is using ``program'' throughout these
paragraphs and changes ``existing programmatic review'' to
``environmental document.'' CEQ also notes that the longstanding
principles set forth in paragraph (c)--that agencies must comply with
NEPA for specific Federal actions before taking the action and that
agencies cannot engage in activities that prejudice the outcome of the
NEPA process--apply to programmatic environmental reviews irrespective
of whether a programmatic review is required.
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\104\ CEQ, 2020 Final Rule, supra note 39, at 43327.
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2. Adoption (Sec. 1506.3)
CEQ proposed changes to Sec. 1506.3 in the NPRM to facilitate an
agency's adoption of the EISs, EAs, and CE determinations of another
agency in an appropriate and transparent manner. As CEQ noted in the
proposed rule, the 2020 regulations expanded Sec. 1506.3 to codify
longstanding agency practice of adopting EAs and explicitly allowed for
adoption of other agencies' CE determinations. CEQ proposed
[[Page 35521]]
modifications to Sec. 1506.3 to improve clarity, reduce redundancy,
and ensure that when an agency adopts an EIS, EA, or CE determination,
the agency conducts an independent review to determine that the EIS,
EA, or CE determination meets certain basic standards. CEQ also
proposed to add new requirements regarding the adoption of another
agency's CE determination to increase public transparency.
Comments on the proposed changes to Sec. 1506.3 expressed both
opposition and support for adoption in general, the approach to
enabling adoption taken in the proposed rule, and its application to
EISs, EAs, and CE determinations. Commenters who supported the adoption
provisions as proposed point to the efficiencies gained in reducing
time. Commenters who opposed CEQ's proposed changes asserted that the
proposed rule went beyond the intended goal of NEPA and that adoption
limits public engagement. Additionally, one commenter requested that
throughout this section, CEQ replace ``substantially the same'' with
``the same'' to strengthen the requirements for adoption.
CEQ finalizes the proposed changes to Sec. 1506.3 as discussed in
this section. CEQ disagrees that adoption goes beyond NEPA's intended
goals. Because actions must be substantially the same, the public will
have had the opportunity to engage during the preparation of the
original document to the extent engagement is required or appropriate
for that particular action; and, where the actions are not
substantially the same, additional public engagement may be required
consistent with the requirements for the document type. Additionally,
the CEQ regulations have provided for adoption since 1978 and included
the ``substantially the same'' standard. Such language is critical to
facilitating adoption because agency actions are often not the same,
but relate to the same overall project. For example, one agency's
funding decision is not the same action as another agency's decision to
issue a permit. However, if the underlying activity analyzed in the
NEPA document is the same project, then adoption is appropriate.
In paragraph (a), which provides that an agency may adopt EISs, EAs
or CE determinations, CEQ proposed to strike the language requiring an
EIS, EA, or CE determination to meet relevant standards and instead
articulate the standards in paragraphs (b) through (d), which address
adoption of EISs, EAs, and CE determinations, respectively. CEQ
proposed to replace this clause with language that requires adoption to
be done ``consistent with this section.'' CEQ proposed to remove
``Federal'' before the types of documents an agency may adopt as
unnecessary and to make clear that agencies can adopt NEPA documents
prepared by non-Federal entities that are doing so pursuant to
delegated authority from a Federal agency. See, e.g., 23 U.S.C. 327.
CEQ makes these changes in the final rule as proposed.
In paragraph (b), CEQ proposed to add text after the heading
``Environmental impact statements'' to provide that an agency may adopt
a draft or final EIS, or a portion of a draft or final EIS, if the
adopting agency independently reviews the statement and concludes it
meets the standards for an adequate statement pursuant to the CEQ
regulations and the adopting agency's NEPA procedures.
A commenter opposed the proposed requirement for agencies to
confirm that an adopted EIS, as well as an EA under paragraph (c),
meets the standards of the adopting agency's NEPA procedures. The
commenter asserted that this requirement is burdensome and can cause
delays. One commenter also asserted that paragraph (b) requires
standards for EIS adoption in agency NEPA procedures and that because
agencies have a year to adopt new procedures, this will set adoption
back by a year.
CEQ finalizes the changes to paragraph (b) as proposed but replaces
``a draft or final'' EIS with ``another agency's draft or final'' EIS
to respond to commenters' requests for additional clarity and for
consistency with the existing phrasing in paragraph (d). CEQ disagrees
that requiring adopting agencies to assess consistency with their
procedures will add substantial additional burden. Ensuring consistency
with the adopting agency's procedures is a codification of longstanding
agency practice and is necessary so that an agency can ensure that the
adopted document satisfies the requirements applicable to the adopting
agency. CEQ also disagrees that agencies must update their procedures
to address adoption before they can make use of this tool. While
agencies may consider including the adoption process in their
procedures, Sec. 1507.3 does not require agencies to do so and does
not preclude an agency from using adoption before its procedures are
updated. Therefore, CEQ disagrees with the commenter's assertion that
agencies cannot adopt EISs until their agency NEPA procedures are
updated.
In paragraph (b)(1), which addresses adoption of an EIS for actions
that are substantially the same, CEQ proposed to insert ``and file''
after ``republish'' to improve consistency with Sec. 1506.9 and
because agencies must both publish the EIS and file it with EPA.
Further in paragraph (b)(1), CEQ proposed to add text to clarify that
agencies should supplement or reevaluate an EIS if the agency
determines that the EIS requires additional analysis.
One commenter questioned if the phrase ``or reevaluate it as
necessary'' means an agency could adopt an EIS through an EA and FONSI.
Another commenter requested that CEQ more clearly require agencies to
supplement an EIS, interpreting the proposed rule text to encourage,
rather than require, supplementation when there is new or updated data.
Similarly, the commenter also requested that CEQ define when it is
necessary to supplement or reevaluate an EA in paragraph (c). CEQ
finalizes this provision with an additional revision to change ``the
statement requires supplementation'' to ``the statement may require
supplementation consistent with Sec. 1502.9 of this subchapter,''
which adds a cross-reference to the section of the regulations
addressing supplementation and reevaluation. CEQ includes these
revisions to clarify that agencies can conduct additional analysis to
determine whether the supplementation criteria of Sec. 1502.9(d) are
met or document why supplementation is not required. This revised
provision codifies agency practice and provides agencies more
flexibility to use the efficiency mechanism of adoption while also
ensuring that the analysis included in an adopted document is valid and
complete. For example, if an agency is adopting an EIS that was
prepared several years prior, and there is more recent data or updated
information available on one of the categories of effects, the agency
may need to do additional analysis if the supplementation standard in
Sec. 1502.9(d) is met, or document in a reevaluation, consistent with
Sec. 1502.9(e), why the supplementation standard is not met.
Similarly, if an action is not substantially the same, and the adopting
agency determines that the EIS requires supplemental analysis, the
agency would treat the EIS as a draft, prepare the additional analysis,
and publish the new draft EIS for notice and comment. Where a proposed
action is not substantially the same, an agency must, at minimum,
supplement the adopted EIS to ensure it adequately covers its proposed
action.
In paragraph (b)(2), which addresses adoption of an EIS by a
cooperating agency, CEQ proposed to clarify that this provision is
triggered when a
[[Page 35522]]
cooperating agency does not issue a joint or concurrent ROD consistent
with Sec. 1505.2. In the proposed rule, CEQ explained that this
provision covers instances when a cooperating agency adopts an EIS for
an action the cooperating agency did not anticipate at the time the EIS
was issued, such as a funding action for a project that was not
contemplated at the time of the EIS. In such instances, the cooperating
agency may issue a ROD adopting the EIS of the lead agency without
republication of the EIS. CEQ proposed to strike the text at the end of
paragraph (b)(2) regarding independent review because CEQ proposed to
capture that standard in paragraph (b).
CEQ did not receive comments on its proposed changes to paragraph
(b)(2). Therefore, CEQ finalizes this provision consistent with its
proposal.
In paragraph (c), CEQ proposed to add language to clarify the
standard for adopting an EA, which mirrors the standard for adoption of
an EIS. CEQ similarly proposed edits to align the process with the
processes for EISs by clarifying that the adopting agency may adopt the
EA, and supplement or reevaluate it as necessary, in its FONSI.
A few commenters opposed the adoption of EAs, in particular
expressing opposition to the adoption of draft EAs or EAs that are the
subject of formal dispute resolution or litigation, and suggested these
should instead be incorporated by reference pursuant to Sec. 1501.12.
One commenter requested that CEQ revise paragraph (c) to align it with
paragraph (d) to require agencies to document the reasons for its
adoption and make its reasoning publicly available.
In the final rule, CEQ finalizes the text as proposed in paragraph
(c) with an additional revision to replace ``an environmental
assessment'' with ``another agency's environmental assessment'' to
respond to commenters' requests for additional clarity and for
consistency with the same change to paragraph (b) and the existing
language in paragraph (d). For the reasons articulated with respect to
EISs, CEQ revises the language that if an agency determines an EA ``may
require supplementation consistent with Sec. 1501.5(h) of this
subchapter,'' it may adopt and supplement or reevaluate the EA as
necessary and issue its FONSI. CEQ agrees that an agency may only adopt
a final EA, and that use of a draft EA through incorporation by
reference is appropriate. However, CEQ interprets the proposed text as
precluding adoption of a draft EA and, therefore, does not consider
additional revisions necessary to address this comment. The reference
to EAs in this section necessarily means final EAs, since the
regulations do not require a draft and final EA; therefore, the
reference to EA without specification means a final EA.
For additional clarity, CEQ proposed to add ``determinations'' to
the title of paragraph (d). CEQ also proposed to revise this paragraph
to improve readability and clarify that the adopting agency is adopting
another agency's determination that a CE applies to a particular
proposed action where the adopting agency's proposed action is
substantially the same. As CEQ noted in the proposed rule, this
provision does not allow an agency to unilaterally use another agency's
CE for an independent proposed action; rather, the process for such
reliance on another agency's CE is addressed in Sec. 1501.4(e).
To ensure that there is public transparency for adoption of CE
determinations, like adoption of EAs and EISs, CEQ proposed new
paragraphs (d)(1) and (d)(2) to require agencies to document and
publish their adoptions of CE determinations, such as on their website.
CEQ proposed in paragraph (d)(1) to specify that agencies must document
a determination that the proposed action is substantially the same as
the action covered by the original CE determination, and there are no
extraordinary circumstances present requiring preparation of an EA or
EIS. Because agencies typically already make such determinations in the
course of adopting CE determinations for actions that are substantially
the same, CEQ has concluded that this documentation requirement will
not be onerous or time consuming. In paragraph (d)(2), CEQ proposed to
require agencies to publicly disclose when they are adopting a CE
determination. CEQ stated in the proposed rule that this proposed
change was intended to increase transparency on use of CEs to respond
to feedback from stakeholders that they often do not know when an
agency is proceeding with a CE. This adds a standard to adoption of CE
determinations that is similar to the practice for adoption of EAs and
EISs. Agencies, however, have flexibility to determine how to make this
information publicly available, including through posting on an
agency's website.
One commenter requested that CEQ require an agency to both publish
a determination on its website and make it publicly available in other
ways, as opposed to one or the other. CEQ declines to require agencies
to publish CE adoption determinations in multiple places as
unnecessarily burdensome on agencies. However, CEQ notes that the
language in paragraph (d)(2) does not preclude agencies from both
publishing an adoption of a CE determination on its website and making
it publicly available in other ways when they determine doing so is
appropriate. CEQ finalizes these paragraphs as proposed with one
clarifying change to add introductory language at the end of paragraph
(d)--``In such circumstances the adopting agency shall''--to make clear
that paragraphs (d)(1) and (d)(2) apply when adopting another agency's
CE determination to distinguish this process from the adoption process
under Sec. 1501.4(e).
3. Agency Responsibility for Environmental Documents (Sec. 1506.5)
CEQ proposed modifications and additions to Sec. 1506.5 to clarify
the roles and responsibilities for agencies, applicants, and agency-
directed contractors in preparing environmental documents and to make
the provision consistent with section 107(f) of NEPA, which requires
agencies to prescribe procedures to allow project sponsors to prepare
EAs and EISs under the agencies' supervision and to independently
evaluate and take responsibility for such documents. 42 U.S.C.
4336a(f). The 2020 rule amended Sec. 1506.5 to allow an applicant to
prepare EISs on behalf of the agency; however, the 2023 amendments to
NEPA make clear that agencies themselves must establish procedures for
project sponsors to prepare EAs and EISs, not the CEQ regulations. As
noted in the NPRM, CEQ understands the 2023 amendments to NEPA to use
the terms ``applicant'' and ``project sponsor'' interchangeably and,
therefore, CEQ proposed to use the term ``applicant'' and, in the final
rule, CEQ uses and defines the term ``applicant.'' See section II.J.1.
However, as discussed further in this section, CEQ notes that the 2023
NEPA amendments' requirement that agencies establish procedures for
project sponsors to prepare EAs and EIS does not affect the ability of
applicants and project sponsors to provide information to agencies to
assist agencies or their agency-directed contractors in the preparation
of environmental documents consistent with Sec. 1506.5(c).
CEQ received multiple comments that generally supported the
proposed changes to allow applicants to prepare EAs and EISs, as well
as multiple commenters who generally opposed the provision and opposed
section 107(f) of NEPA, 42 U.S.C. 4336a(f). CEQ discusses these
comments and responses in section II.I.3 of this final rule, which
addresses the statutory
[[Page 35523]]
requirement for agencies to prescribe applicant procedures.
In paragraph (a), CEQ proposed to clarify that regardless of who
prepares an environmental document--the agency itself, a contractor
under the direction of the agency, or the applicant pursuant to agency
procedures--the agency must ensure the document is prepared with
professional and scientific integrity using reliable data and
resources, consistent with sections 102(2)(D) and (2)(E) of NEPA, 42
U.S.C. 4332(2)(D)-(E), and exercise its independent judgment to review,
take responsibility for, and briefly document its determination that
the document meets all necessary requirements and standards related to
NEPA, the CEQ regulations, and the agency's NEPA procedures.
A few commenters provided suggestions for CEQ to consider regarding
the changes in paragraph (a). These commenters asked CEQ to define what
``under the supervision of the agency'' means; require agencies to
fully rather than briefly document its determination that an
environmental document meets the standards of NEPA, the CEQ
regulations, and the agency's NEPA procedures; and adopt a clearer
standard for guaranteeing professional and scientific integrity to
ensure all EISs and EAs receive the same level of scrutiny regardless
of who prepares them.
Multiple commenters also provided feedback on the language in
paragraph (a) referring to agency procedures adopted pursuant to Sec.
1507.3(c)(12), which are discussed in section II.I.3 of this final
rule.
In the final rule, CEQ makes a few clarifying updates to the
proposed text in paragraph (a). Specifically, CEQ revises the paragraph
heading to ``agency responsibility'' to clarify that this paragraph
addresses agency responsibility for environmental documents generally.
CEQ adds ``and direction'' after ``supervision'' to better distinguish
contractors under the supervision of the agency from applicant-directed
contractors. This provision addresses contractors hired directly by the
agency and third-party contractors where the applicant pays for the
contractor but otherwise has no role in directing that contractor
during the preparation of the document; rather, the agency supervises
and provides the direction. Contractors hired by the applicant and
supervised by the applicant directly are covered by the language in the
regulation addressing applicant-prepared EAs and EISs pursuant to Sec.
1507.3(c)(12).
CEQ declines to specifically define ``supervision'' as this is a
commonly understood term, and CEQ considers the addition of the word
``direction'' in this paragraph to capture the appropriate role of
agencies, which have decades of experience with supervising the work of
contractors preparing NEPA documents. CEQ also declines to require
agencies to do more than briefly document their determination that an
environmental document meets the standards under NEPA, the regulations
in this subchapter, and the agency's NEPA procedures. In general, NEPA
documents themselves demonstrate that they meet these standards; the
determination required by this paragraph merely requires that an agency
documents that it has also made this determination.
Lastly with respect to paragraph (a), CEQ declines to include
standards for scientific and professional integrity. These concepts
have been in the regulations since 1978, and the final rule further
clarifies these concepts by moving 40 CFR 1502.23 (2020) to Sec.
1506.6 as discussed further in section II.H.4.
In the NPRM, CEQ proposed in the second sentence of paragraph (b)
to remove text providing that agencies may direct an applicant to
prepare an environmental document and also replace the phrase
``environmental document'' with specific reference to EAs or EISs. CEQ
also proposed to add a clause to allow agencies to authorize a
contractor to draft a FONSI or ROD, while also providing that the
agency is nevertheless responsible for the accuracy, scope, and
contents of contractor-drafted FONSIs and RODs. CEQ proposed to add
this clause because a FONSI or ROD represents an agency's conclusions
regarding potential environmental effects and other aspects of a
proposed action. CEQ also proposed these changes to exclude applicants
from directly preparing EAs and EISs under this section, given the
direction in section 107(f) of NEPA that a lead agency must prescribe
procedures to allow a project sponsor to prepare an EA or EIS, 42
U.S.C. 4336a(f), and CEQ proposed to require agencies to include these
procedures as part of their agency NEPA procedures in Sec.
1507.3(c)(12). CEQ also proposed these edits to clarify the role of
contractors because finalizing and verifying the contents of FONSIs and
RODs is appropriately the responsibility of the Federal agency and is
consistent with longstanding agency practice.
CEQ received comments expressing confusion regarding this paragraph
given the reference to applicants in the first sentence. CEQ also
received multiple comments interpreting this provision to allow
applicants to prepare draft FONSIs or RODs. Some of these commenters
objected to this perceived allowance asserting that applicants should
not be allowed to draft decision documents because they are biased and
have a conflict of interest. Conversely, three commenters supported the
ability of applicants, contractors, or project sponsors to prepare
FONSIs and RODs, pointing to time and cost savings, with one commenter
specifically interpreting section 107(f) of NEPA, 42 U.S.C. 4336a(f),
to allow applicants to prepare all environmental documents. One
commenter suggested CEQ edit the beginning of the second sentence of
proposed paragraph (b) to address conflict of interest by adding a
qualifier that would limit the applicability of the paragraph to
circumstances in which an agency has established the absence of any
conflict of interest.
In the final rule, CEQ addresses the confusion around this
provision by separating the provisions related to applicants from
provisions related to agency-directed contractors. First, CEQ revises
the paragraph heading for paragraph (b) to read ``applicant
information'' and retains the first sentence allowing agencies to
require applicants to submit environmental information for agency use
in preparing an environmental document. The CEQ regulations have long
allowed agencies to collect information from applicants to help them
prepare NEPA documents, and CEQ considers this allowance essential to
an efficient environmental review process because in many cases, the
applicant will already have obtained or be in the best position to
obtain information that an agency needs.
Second, in paragraphs (b)(1) through (b)(3) of the final rule, CEQ
includes the provisions that provide directions related to applicant-
provided information. Paragraph (b)(1) retains the first sentence from
paragraph (b)(1) of the proposed rule, which provides that agencies
should outline the information that the agency needs from the applicant
to prepare an environmental document.
Paragraph (b)(2) retains the requirement in the current regulations
and proposed paragraph (b)(2) that the agency independently evaluate
the environmental information provided by an applicant and be
responsible for the accuracy, scope, and contents of any applicant-
provided environmental information included in the environmental
document. CEQ does not require agencies to specifically document their
evaluation of this information since the agencies are
[[Page 35524]]
responsible for preparing the NEPA document, and therefore any
applicant-provided environmental information included in the NEPA
document becomes the agency's responsibility. While paragraph (a)
requires agencies to briefly document its determination that a
contractor-prepared environmental document meets the standards under
NEPA, the CEQ regulations, and the agency's NEPA procedures, requiring
an agency to specifically address each piece of information or analysis
provided by an applicant that the agency has incorporated into an
environmental document would be burdensome. Under this provision,
agencies have discretion to integrate applicant-provided information in
environmental documents as the agency sees fit, and the agency is
responsible for the accuracy of that information, just as it is
responsible for the accuracy of information from other sources that the
agency relies upon. And, as with all NEPA documents, the agencies are
responsible for ensuring their documents are appropriately scoped and
satisfy all legal requirements including compliance with these
regulations and their agency NEPA procedures. Lastly, CEQ includes a
new paragraph (b)(3) to note that an agency may allow applicants to
prepare EAs or EISs consistent with agency procedures issued pursuant
to section 107(f) of NEPA, 42 U.S.C. 4336a(f), and Sec. 1507.3(c)(12).
Third, the second sentence of proposed Sec. 1506.5(b) becomes
paragraph (c) in the final rule, and CEQ adds a paragraph heading,
``Agency-directed contractor,'' to clarify that this provision
addresses contractors where the agency supervises and directs their
work. CEQ adds ``and direction'' after ``supervision'' for consistency
with its edit in paragraph (a) and to clarify that this provision does
not apply to contractors hired and overseen by applicants. In the final
rule, CEQ does not revise ``environmental document'' to be
``environmental assessment or environmental impact statement'' or
include the language allowing an action to authorize a contractor to
draft a FONSI or ROD. Since this provision is specific to agency-
directed contractors, and an agency may direct a contractor in helping
to draft any environmental document, these limitations are unnecessary.
Fourth, paragraph (c)(1) of the final rule contains the second
sentence of proposed Sec. 1506.5(b)(1) and requires agencies to
provide their contractors guidance, and participate in and supervise
the environmental document's preparation. Fifth, paragraph (c)(2) of
the final rule addresses proposed Sec. 1506.5(b)(2) and requires
agencies to independently evaluate contractor-prepared environmental
documents, be responsible for their accuracy, scope, and contents, and
document the evaluations in the environmental documents themselves. As
discussed earlier in this section, CEQ addresses applicant-submitted
information in paragraph (b)(2).
One commenter requested that CEQ add in proposed paragraph (b)(2),
which is Sec. 1506.5(c)(2) in the final rule, a requirement for
agencies to explain how it independently evaluated the information
prepared by the contractor and upon what basis the agency is able to
vouch for the accuracy, scope, and contents of the information or
documents submitted. This comment aligns with other commenters who
requested that CEQ strengthen agency responsibility for the accuracy,
scope, and contents of environmental documents.
CEQ declines to add greater specificity about how agencies must
evaluate and document their evaluations. Such evaluations may vary
greatly depending on what the agency is evaluating and setting a
regulatory standard would be inappropriate and inefficient. Further,
the level of evaluation needed may vary depending on the guidance and
direction agencies provide to the contractors in the first place.
Fifth, paragraph (c)(3) of the final rule requires agencies to
include the names and qualifications of the persons preparing and
independently evaluating the contractor-prepared environmental
documents, such as in the list of preparers for EISs, consistent with
Sec. 1502.18. This provision is identical to proposed Sec.
1506.5(b)(3), in which CEQ proposed to remove the reference to
applicants as discussed earlier in this section.
Next, CEQ proposed to revise paragraph (b)(4) of 40 CFR 1506.5
(2020) to clarify that the Federal agency is responsible for preparing
a disclosure statement for the contractor to execute, specifying that
the contractor does not have any financial or other interest in the
outcome of the proposed action.
CEQ received multiple comments regarding the proposed changes to
paragraph (b)(4). One commenter expressed that the paragraph provides
for less disclosure than the 1978 regulations did. One commenter
expressed direct support for the paragraph and encouraged CEQ to retain
the disclosure requirement. Another commenter requested that CEQ delete
``where appropriate'' interpreting the clause to modify ``shall
prepare'' instead of ``cooperating agency'' and arguing deletion of
this clause will minimize conflicts of interest. One commenter opposed
paragraph (b)(4), asserting that it is not workable for a contractor to
have no financial or other interest in the outcome of an action because
it is common for a firm that assists with preparing the NEPA documents
to perform subsequent engineering and design work if a project moves
forward.
CEQ finalizes this provision in Sec. 1506.5(c)(4) as proposed, but
adds ``where appropriate'' to precede rather than follow (as proposed)
``a cooperating agency'' to make it clear that the clause modifies
``cooperating agency.'' CEQ makes this change in the final rule to
address commenters' concerns that the provision, as drafted in the
proposed rule, would have given agencies the discretion whether to
prepare a disclosure statement. The revised language is generally
consistent with the approach in the 1978 regulations, and CEQ disagrees
that it provides for less disclosure than the 1978 regulations. CEQ
does not consider the potential for a contractor to perform future
engineering and design work to present a conflict of interest in the
outcome of an action. Instead, a conflict of interest would exist if a
contractor possessed a direct financial interest in the project, for
example if it entered into a contingency fee arrangement that provided
for an additional payment if an agency authorized an action. However,
CEQ encourages agencies to disclose this information to the public in
their contractor disclosure statements.
Finally, CEQ proposed to change ``any agency'' to ``an agency'' in
paragraph (b)(5). In the final rule, CEQ redesignates paragraph (b)(5)
of 40 CFR 1506.5 (2020) to be paragraph (d) as this paragraph is a
general statement about the operations of Sec. 1506.5 and is not
specific to agency-directed contractors. CEQ adds a paragraph heading,
``Information generally'' for consistency with the paragraph headings
added throughout.
4. Methodology and Scientific Accuracy (Sec. 1506.6)
As discussed in section II.D.18, in the final rule, CEQ moves the
provision on methodology and scientific accuracy, from proposed Sec.
1502.23 to Sec. 1506.6, because this provision is generally applicable
to NEPA reviews. As discussed further in this section, CEQ finalizes
the text from proposed Sec. 1502.23 with additional clarifying edits.
[[Page 35525]]
CEQ proposed to separate 40 CFR 1502.23 (2020) into paragraphs (a)
and (b), with some modification, and add a new paragraph (c). In the
final rule, CEQ further subdivides these paragraphs for additional
clarity.
First, the first sentence of proposed Sec. 1502.23(a), which is
the opening sentence of 40 CFR 1502.23 (2020), requires agencies to
ensure the professional integrity, including scientific integrity, of
the discussions and analyses in environmental documents. This sentence
has been in the regulations unchanged since 1978, is consistent with
section 102(2)(D) of NEPA, 42 U.S.C. 4332(2)(D), and CEQ did not
propose any revisions to this sentence in the proposed rule. CEQ
finalizes this sentence in a standalone paragraph, Sec. 1506.6(a), in
the final rule.
Second, CEQ proposed to use the term high-quality information,
which the 1978 regulations required agencies to use, see 40 CFR 1500.1
(2019), in the second sentence of proposed Sec. 1502.23(a). CEQ
proposed to clarify that such information includes best available
science and reliable data, models, and resources.
Some commenters requested that CEQ add definitions for ``high-
quality information'' and ``best available science.'' One commenter
expressed that ``high-quality information'' is ambiguous and
recommended CEQ remove it. Other commenters interpreted the example
best available science to set a standard and asserted that this
conflicts with the direction in section 102 of NEPA to establish
information quality standards. Some commenters opposed the use of best
available science and stated that the high-quality information standard
is sufficient to ensure scientific integrity.
A few commenters pointed to case law to support their opinion that
NEPA does not require agencies to use the best scientific methodology
available. These commenters expressed concerns that a best available
science standard could result in increased costs and delays that may
not be justified and instead supported the high-quality information
standard. Another commenter asserted that a best available science
standard could be inconsistent with the rule of reason, which is
supported by case law, and result in agencies unreasonably gathering
information to meet a best available science standard. Conversely,
another commenter stated that the reference to best available science
and data is consistent with the rule of reason and relevant case law.
In Sec. 1506.6(b) of the final rule, CEQ makes the change in the
second sentence of proposed Sec. 1502.23(a) to require agencies to use
high-quality information. For clarity, CEQ replaces the last clause of
the sentence, ``to analyze effects resulting from a proposed action and
alternatives,'' with a more general clause at the beginning of the
first sentence of Sec. 1506.6(b) to avoid an ambiguity in the proposed
text that could be read to imply that agencies do not need to rely on
high-quality information for aspects of their environmental documents
other than analyzing the effects of a proposed action and alternatives.
CEQ did not intend to suggest that agencies can rely on anything other
than high-quality information in their decision making, and the
revision in the final rule makes clear that agencies must use high-
quality information ``[i]n preparing environmental documents.'' Given
the more general language in the NEPA statute and the general
applicability of this provision, CEQ considers this phrasing to more
accurately reflect the standard. CEQ includes, with minor
reorganization, three of the proposed examples of high-quality
information in the final rule: ``reliable data,'' ``models,'' and
``resources.'' The final rule uses the combined phrase ``reliable data
and resources'' as one example to directly track the provision in
section 102(2)(E) of NEPA, 42 U.S.C. 4332(2)(E), with ``models'' being
another example. CEQ also notes that the Information Quality Act (Pub.
L. 106-554, 44 U.S.C. 3516 note) and other authorities establish
requirements for the quality, utility, objectivity, and integrity of
the information that agencies disseminate, including, in some cases,
requirements for peer review, and agencies should ensure compliance
with those authorities as applicable.\105\
---------------------------------------------------------------------------
\105\ See OMB, Guidelines for Ensuring and Maximizing the
Quality, Objectivity, Utility, and Integrity of Information
Disseminated by Federal Agencies, 67 FR 8452 (Feb. 22, 2002); OMB,
Final Information Quality Bulletin for Peer Review, 70 FR 2664 (Jan.
14, 2005); and OMB, M-19-15, Improving Implementation of the
Information Quality Act (2019), https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-15.pdf.
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In the final rule, CEQ does not include ``best available science''
as an example of high-quality information. While CEQ considers ``best
available science'' to be one example of high-quality information, CEQ
agrees with commenters that NEPA does not require use of ``best
available science'' in order to meet the statute's requirement for
professional integrity, including scientific integrity. While CEQ did
not intend for the inclusion of ``best available science'' as one
example of ``high quality information'' in the proposed rule to require
agencies to use the best available science, based on the comments, CEQ
is concerned that this text could be misconstrued by agencies and
potential litigants to require use of best available science in all
cases. Therefore, CEQ does not include this example in the final rule
to avoid any confusion.
Third, in the preamble to the proposed rule, CEQ provided
Indigenous Knowledge as an example of high-quality information. Several
commenters recommended CEQ include this as an example in the regulatory
text to make clear that Indigenous Knowledge can constitute high-
quality information upon which agencies could rely consistent with the
regulations. One commenter expressed concern about the addition of
Indigenous Knowledge in the preamble because the commenter worried that
agencies may weigh Indigenous Knowledge more heavily than other sources
of scientific expertise. Another commenter requested that CEQ define
``Indigenous Knowledge'' and explain how agencies can best use it as
high-quality information. Some commenters provided a suggested
definition, while others opposed CEQ defining ``Indigenous Knowledge''
in the rule.
In the final rule, CEQ includes Indigenous Knowledge as an example
of high-quality information in the regulatory text. CEQ disagrees with
the concern that identifying Indigenous Knowledge as an example of
high-quality information--whether in the preamble or regulatory text--
requires agencies to weigh this knowledge more heavily than other
sources of scientific expertise. The regulations require agencies to
rely on high-quality information and provide several examples, one of
which is Indigenous Knowledge, and do not create a preference for one
kind of high-quality information over others. CEQ declines to define
Indigenous Knowledge in the regulations as it did not receive
sufficient input from commenters or through its Tribal consultation for
it to develop an appropriate definition that could apply to all of the
contexts in which Federal agencies operate governed by the CEQ
regulations. Additionally, while some Tribes provided feedback on a
definition, others expressed concerns about a regulatory definition.
While CEQ is not including a definition in the final rule, CEQ notes
that agencies may look to the CEQ/OSTP guidance as a resource, and CEQ
will consider whether additional guidance is needed to help agencies
incorporate Indigenous Knowledge into its NEPA reviews.
[[Page 35526]]
Fourth, CEQ proposed to include a clause in the second sentence of
proposed Sec. 1502.23(a) to reference that high-quality information
includes existing sources and materials. This proposed change moved the
word ``existing'' in the second sentence of 40 CFR 1502.23 (2020) to
the end of the sentence. CEQ proposed these changes to clarify that
while agencies must use reliable data and resources, which can include
existing data and resources, they are not limited to using existing
sources and materials. CEQ proposed these changes in response to public
commenters on the 2020 rule and Federal agency experts who raised
concerns that the 2020 language could limit agencies to ``existing''
resources and preclude agencies from undertaking site surveys and
performing other forms of data collection, which have long been
standard practice when analyzing an action's potential environmental
effects and may be necessary for agencies to adequately understand
particular effects.
Some commenters stated the removal of the word ``existing'' in
proposed paragraph (a) is in conflict with section 106(b)(3) of NEPA,
42 U.S.C. 4336(b)(3), because it suggests agencies have the discretion
to undertake new, non-essential scientific or technical research
without regard for whether the information to be obtained is essential
to a reasoned choice among alternatives or for the cost or time
considerations under NEPA. Another commenter requested that CEQ amend
this statement to specify that where project-specific data is
available, agencies should rely on that information rather than
theoretical models. One commenter suggested that CEQ clarify that while
new research may not be required, agencies must consider new
information in their analyses.
In the final rule, CEQ replaces the proposed clause in the second
sentence of proposed Sec. 1502.23(a), ``including existing sources and
materials,'' with a new sentence, ``Agencies may rely on existing
information as well as information obtained to inform the analysis,''
to make clear that agencies can and should rely on existing
information, but may also undertake new or additional information
gathering as needed to adequately analyze their proposed actions. For
example, in the context of analyzing historical, cultural, or
biological effects, agencies may need to conduct survey work or
reassess existing survey work periodically. Requiring an agency to rely
on outdated data would not comport with sections 102(2)(D) through (F)
of NEPA, 42 U.S.C. 4332(2)(D)-(F). While there are numerous reliable
data sources for a variety of resources analyzed in NEPA documents, and
the CEQ regulations encourage the use of existing information wherever
possible, see Sec. 1501.12, agencies should be permitted to exercise
their judgment in determining when additional data and analyses are
necessary for their analyses and decision making.
Fifth, CEQ moves the third sentence of 40 CFR 1502.23 (2020), which
allows agencies to use any reliable data sources, such as remotely
gathered information or statistical models to be the third sentence of
Sec. 1506.6(b) in the final rule and makes the clarifying edits
consistent with the proposal.
Sixth, CEQ proposed to add a new sentence at the end of proposed
Sec. 1502.23(a) to encourage agencies to explain their assumptions and
any limitations of their models and methods. CEQ proposed this addition
to support this section's overall purpose of ensuring the integrity of
the discussions and analyses in environmental documents. Additionally,
CEQ proposed this addition to codify typical agency practice to explain
relevant assumptions or limitations of the information in environmental
documents.
A commenter recommended CEQ change the proposed new sentence from a
recommendation to a requirement, stating that it is necessary for
agencies to explain relevant assumptions or limitations of any models
or methodologies on which they rely for their analyses to adequately
inform the public and the agency decision makers. CEQ agrees that
disclosing this information is necessary in order for the decision
maker and the public to assess the reliability of the information.
Therefore, CEQ includes the proposed sentence at the end of Sec.
1506.6(b), but changes ``should'' to ``shall'' in the final rule.
Seventh, in proposed Sec. 1502.23(b), CEQ proposed to strike the
statement that agencies are not required to undertake new research to
inform their analyses, consistent with the proposed change to proposed
Sec. 1502.23(a) regarding existing information. Some commenters
opposed the proposed deletion of this language in proposed Sec.
1502.23(b) and disagreed with CEQ's rationale for the deletion, stating
that the existing language could not be reasonably read to prohibit
agencies from undertaking additional analyses. One commenter opposed
the proposed deletion, expressing concern that without the language,
agencies may feel compelled to complete new research, which could
interfere with agencies' ability to provide services, not just
analysis, in contravention of NEPA's broad purposes in sections 101(a)
and (b) of NEPA, 42 U.S.C. 4331(a)-(b) to balance other national
priorities, including conserving agency resources. Another commenter
suggested that CEQ clarify that while new research may not be required,
agencies must consider new information in their analyses. Other
commenters opposed to the proposed deletion stated that the proposed
change conflicts with other provisions of the proposed rule, such as
the intent of proposed Sec. 1506.5(b)(3) for acceptable work to not be
redone and proposed Sec. 1506.4 to reduce duplication and paperwork.
Multiple commenters expressed concern that deleting this language could
result in additional litigation risk and delays by encouraging agencies
to conduct additional analyses. One commenter also suggested that the
deletion is unnecessary because agencies already know that they are not
limited to existing materials.
CEQ strikes this sentence in the final rule. In order for agencies
to meet the requirements of the NEPA statute to analyze the effects of
their proposed actions and, where appropriate, study alternatives,
while ensuring professional integrity, including scientific integrity,
CEQ considers it necessary to remove this statement because in some
instances, in order to meet the statutory requirements, agencies will
need to undertake research. CEQ disagrees that agencies will read this
deletion to mean they need to do so in all cases, even where
unnecessary or unreasonable. As one commenter noted, the CEQ
regulations have long encouraged agencies to rely on existing
information and analyses, and incorporate them by reference, see, e.g.,
Sec. Sec. 1501.12, 1506.2, and 1506.3.
A few commenters stated that the deletion of this text conflicts
with section 106(b)(3) of NEPA, 42 U.S.C. 4336(b)(3), by implying
agencies have discretion to undertake new, non-essential scientific or
technical research without regard to whether the information to be
obtained is essential to a reasoned choice among alternatives. CEQ
disagrees with this assertion because section 106(b)(3) expressly
applies only to an agency's determination of the level of NEPA review
it needs to perform for an action, and does not apply to the analysis
in an environmental document. Further, these comments suggest conflict
with the statute because deleting this sentence disregards direction to
make use of reliable data and resources. CEQ disagrees that section
102(2)(E) of NEPA, 42 U.S.C. 4332(2)(E), refers only to existing
reliable data and resources,
[[Page 35527]]
because such a reading of 102(2)(E) would be inconsistent with the
provision of section 106(b)(3) indicating that agencies are only
required to undertake new scientific or technical research in
determining the level of NEPA review in certain circumstances. Rather,
section 102(2)(E) does not address whether agencies can conduct new
research or gather new data, but only provides that any data or
resources an agency relies upon, whether existing or new, must be
reliable. As noted in this section, it is common practice for agencies,
when necessary or appropriate, to engage in additional research and
create new data based on an action's particular circumstances (such as
the affected environment) when analyzing proposed actions under NEPA.
By striking the sentence added in 2020, CEQ is not imposing a new
requirement for agencies to undertake new research in all cases, but
rather is allowing agencies to continue to exercise their judgment and
expertise in determining whether and when to undertake new research.
Eighth, CEQ strikes the last sentence in 40 CFR 1502.23 (2020),
which the NPRM proposed to retain as the second sentence in proposed
Sec. 1502.23(b) regarding continued compliance with other statutory
requirements related to scientific and technical research. In the 2020
rule, CEQ added this sentence to clarify the preceding sentence that
agencies are not required to undertake new scientific and technical
research to inform their analyses. Because the final rule strikes that
sentence, it is unnecessary to retain the sentence that follows.
Therefore, the final rule removes the last sentence of 40 CFR 1502.23
(2020) because it is unnecessary.
Some commenters suggested additional items be added to proposed
Sec. 1502.23(b). One commenter requested that CEQ incorporate the
language from section 106(b)(3) of NEPA, 42 U.S.C. 4336(b)(3), to
establish a clear standard for when new scientific research is needed.
As CEQ noted earlier in this section, section 106(b)(3) applies only to
determining the level of NEPA review. Another commenter requested CEQ
add language to address information quality standards and transparency
requirements for modeling. CEQ does not consider this level of detail
appropriate for the regulations but will consider whether additional
guidance on this topic could assist agencies in carrying out their NEPA
responsibilities.
Ninth, CEQ moves to Sec. 1506.6(c) the first and second sentences
in proposed Sec. 1502.23(b), which are the fourth and fifth sentences
in 40 CFR 1502.23 (2020), requiring agencies to identify any
methodologies used and make explicit reference to the scientific and
other sources relied upon for conclusions in the environmental
document, which agencies may place in an appendix. This change improves
the organizational clarity of the section and is non-substantive.
Finally, CEQ proposed to add a new paragraph (c) to proposed Sec.
1502.23 to require agencies to use projections when evaluating
reasonably foreseeable effects, including climate change-related
effects, where appropriate. CEQ also proposed to clarify that such
projections may employ mathematical or other models that project a
range of possible future outcomes, so long as agencies disclose the
relevant assumptions or limitations. CEQ proposed this addition for
consistency with the other proposed amendments to this section.
Some commenters expressed support for proposed Sec. 1502.23(c) but
recommended that CEQ provide guidance on how to support agencies in
evaluating climate modeling projects or add additional language to
address localized impacts of climate change on a project along with
global impacts of the project on climate change. Another commenter
requested that CEQ recommend, rather than require, use of projections,
while another commenter expressed that the rule strikes an appropriate
balance between allowing modeling necessary to project future effects
and providing transparency for public viewing of the modeling on which
agencies rely.
One commenter opposed the changes in paragraph (c) to require the
use of projections because they interpret the language to be referring
to the social cost of greenhouse gases and argued that this is
inappropriate for project-specific NEPA reviews. They also offered the
opinion that social cost of greenhouse gas models is not best available
science. Another commenter requested CEQ remove the reference to
climate-change related effects in paragraph (c) because it elevates
climate change effects over other potential effects. Another commenter
also expressed concern about the requirement to use projections because
they asserted it may encourage agencies to attempt to model
relationships between incremental greenhouse gas emissions from a
particular project with actual environmental impacts, which is
impossible, or use metrics like social cost of greenhouse gas
emissions, which are not suited to environmental reviews. Another
commenter also expressed concern that the project effects of climate
change are too difficult to model and that the proposed language could
create delays and increase litigation risk.
CEQ includes proposed Sec. 1502.23(c) in the final rule at Sec.
1506.6(d). CEQ notes that projections are required only where an agency
considers them appropriate. CEQ disagrees that including the example of
climate-change related effects elevates these above other effects; it
is an example, and agencies may determine projections are appropriate
in analyzing a variety of other effects such as water or air quality,
or effects on endangered species or historic properties. CEQ also
disagrees that this language is intended to require agencies to use the
social cost of greenhouse gases. As discussed in CEQ's 2023 GHG
guidance, agencies may use this as a proxy to compare alternatives, but
the regulations and the guidance do not require agencies to use this
tool.
As CEQ noted in the proposed rule, based on existing agency
practice and academic literature, agencies can and do use reliable
projections to analyze reasonably foreseeable effects, including
climate change-related effects. Where available and appropriate,
agencies also can use or rely on projections that are scaled to a more
targeted and localized geographic scope, such as land use projections,
air emissions, and modeling, or to evaluate effects, including climate
effects, experienced locally in relation to the proposed action. When
doing so, agencies should explain the basis for relying on those
projections and their underlying assumptions. In particular, climate
projections can vary based on different factors and assumptions such as
geography, location, and existing and future GHG emissions, and
agencies should disclose the assumptions and limitations underlying any
projection upon which the agency relies. Agencies can use models that
analyze a range of possible future outcomes, but again agencies must
disclose the underlying relevant assumptions or limitations of those
models.
CEQ expects that modeling techniques will continue to improve in
the future, resulting in more precise projections. To be consistent
with Sec. 1506.6, as modeling techniques advance, agencies should
continue to rely on high-quality information when evaluating reasonably
foreseeable effects.
5. Further Guidance (Sec. 1506.7)
CEQ proposed to simplify Sec. 1506.7(a) by deleting references to
Executive orders that have been revoked. CEQ will continue to provide
guidance
[[Page 35528]]
concerning NEPA and its implementation on an as-needed basis. Any such
guidance will be consistent with NEPA, the CEQ regulations, and any
other applicable requirements. Future guidance could include updates to
existing CEQ guidance \106\ or new guidance. CEQ also proposed to
update paragraph (b) to reflect the date upon which the final rule is
effective. If there is a conflict between existing guidance and an
issued final rule, the final rule will prevail after the date upon
which it becomes effective. CEQ did not receive any comments on these
proposed changes and finalizes this section as proposed.
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\106\ See CEQ, CEQ Guidance Documents, https://www.energy.gov/nepa/ceq-guidance-documents.
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6. Proposals for Regulations (40 CFR 1506.9)
CEQ proposed to strike 40 CFR 1506.9 (2020), ``Proposals for
regulations.'' The 2020 rule added this provision to allow agencies to
substitute processes and documentation as part of the rulemaking
process for corresponding requirements in these regulations.\107\ Since
1978, the CEQ regulations have encouraged agencies to combine
environmental documents with any other agency document to reduce
duplication and paperwork (40 CFR 1506.4 (2019)), and agencies also may
combine procedural steps, for example, to satisfy the public comment
requirements of a rulemaking process and NEPA. See Sec. 1507.3(c)(5).
As such, CEQ concluded that the provision at 40 CFR 1506.9 (2020) was
unnecessary to achieve the desired effect of improved efficiency.
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\107\ CEQ, 2020 Final Rule, supra note 39, at 43338-39.
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CEQ received one comment on this proposed change expressing support
for the removal of the section. CEQ removes this section as proposed.
Removing this section avoids confusion and controversy over whether the
procedures of a separate process meet the requirements of CEQ's
regulations. Further, courts have questioned whether separate
regulatory processes can be a substitute for NEPA in some cases. See
e.g., Sierra Club v Fed. Energy Regul. Comm'n, 867 F.3d 1357, 1375
(D.C. Cir. 2017) (``[T]he existence of permit requirements overseen by
another [F]ederal agency or [S]tate permitting authority cannot
substitute for a proper NEPA analysis.''). Additionally, CEQ does not
consider it appropriate to single out one particular type of action--
rulemaking--for combining procedural steps. Indeed, one of the key
objectives of agency NEPA procedures is to integrate the NEPA process
into other agency processes. Therefore, the more prudent approach is
for agencies to combine NEPA reviews with other reviews for rulemaking,
similar to longstanding agency practice to combine NEPA documents with
other review processes, such as compliance with section 106 of the
National Historic Preservation Act or section 7 of the Endangered
Species Act, or set out processes in their NEPA procedures to comply
concurrently with multiple legal requirements.
7. Filing Requirements (Sec. 1506.9)
CEQ proposed to redesignate 40 CFR 1506.10 (2020) as Sec. 1506.9,
which would restore the same numbering for this and subsequent sections
used in the 1978 regulations. CEQ proposed to replace the acronym for
EPA with the full name ``Environmental Protection Agency'' here and in
Sec. 1506.10, consistent with the format in the rest of the CEQ
regulations. CEQ also proposed to add a new paragraph (c) to clarify
that agencies must notify EPA when they adopt an EIS consistent with
Sec. 1506.3(b). CEQ proposed this change to codify common practice and
guidance from EPA.\108\ EPA notification ensures initiation of the
appropriate comment or review period. Such notification, even where a
cooperating agency is adopting an EIS without public comment consistent
with Sec. 1506.3(b)(1), improves transparency to the public regarding
the status of the EIS and also helps track the status of EISs across
the Federal Government.
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\108\ EPA must be notified when a Federal agency adopts an EIS
to commence the appropriate comment or review period. If a Federal
agency chooses to adopt an EIS written by another agency, and it was
not a cooperating agency in the preparation of the original EIS, the
EIS must be republished and filed with EPA. See EPA, Environmental
Impact Statement Filing Guidance, https://www.epa.gov/nepa/environmental-impact-statement-filing-guidance.
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One commenter provided feedback on this proposed change, asking CEQ
to insert the word ``timely'' or more clearly specify a period within
which agencies must notify EPA when they adopt EISs. CEQ declines the
commenter's suggested edit because the language specifies that the
agency must notify EPA when they adopt the EIS; therefore, notification
must occur at the same time as adoption. CEQ adds paragraph (c) in the
final rule to require agencies to file an adoption of an EIS with EPA
consistent with current practice and agency guidance. CEQ modifies the
text from the proposal to cross reference to Sec. 1506.3(b)(1) rather
than require the notice be consistent with Sec. 1506.3(b). It is only
an adoption made pursuant to Sec. 1506.3(b)(1) that requires agencies
to file their adoption notices with EPA.
8. Timing of Agency Action (Sec. 1506.10)
To accommodate the change in numbering described in section II.H.6,
CEQ proposed to renumber 40 CFR 1506.11 (2020), ``Timing of agency
action,'' to Sec. 1506.10. CEQ proposed in paragraph (b) to change
``may not'' to ``shall not'' to eliminate a potential ambiguity and
make clear that the minimum periods between a draft EIS and ROD as set
forth in paragraph (b)(1) and between a final EIS and ROD as set forth
in paragraph (b)(2) are mandatory. CEQ did not receive any comments
specific to this proposal and revises the final rule consistent with
the proposal.
Two commenters requested that CEQ remove the minimum time periods
prescribed in paragraphs (b)(1) and (2) as well as the minimum 45-day
public comment period for draft EISs prescribed in paragraph (d),
asserting that these timing requirements conflict with the statutory
timeframes. The commenters suggested that CEQ instead allow agencies
more flexibility for public engagement and comment within the statutory
timeframes. Another commenter requested that CEQ expand the minimum
comment period for a draft EIS to 90 days because commenters are often
not notified of an open comment period until midway through.
CEQ considered the commenters' suggested changes but declines to
revise the final rule to adopt them. Agencies and the public have
worked within these timeframes since issuance of the 1978 regulations.
CEQ intends these provisions to facilitate a transparent and open
process that ensures agencies are taking the time to carefully consider
public input and analyze alternatives prior to making a decision. CEQ
is concerned that shortening these periods will significantly impede
the public's ability to engage in the NEPA process. Further, CEQ notes
that the minimum timeframe between a final EIS and ROD does not
implicate the statutory deadlines because the statutory timeframe ends
upon completion of the EIS, not issuance of the EIS.
Finally, with respect to the concern raised about the delay in
notification to the public regarding open comment periods, CEQ intends
the revisions to Sec. 1501.9 regarding public engagement to better
facilitate notification to interested parties, and considers improving
notification to be the more appropriate mechanism to address the
concern that interested parties sometimes do not receive notice until
partway through a comment period, rather than extending
[[Page 35529]]
the comment period. Agencies must notify the public of opportunities
for public comment, and CEQ encourages agencies to consider effective
and efficient ways to do so, such as providing opportunities for the
public to sign up for distribution lists to be notified of an ongoing
review and opportunities for engagement.
CEQ proposed changes to paragraph (c)(1), addressing appeals
processes, to update this provision to reflect current practices within
Federal agencies. Specifically, CEQ proposed to change references to
``appeal processes'' to ``administrative review processes'' and add
examples, which can include processes such as appeals, objections, and
protests. CEQ further proposed updates to the text to provide
flexibility in timing to agencies that use these administrative review
processes and clarify that such a process may be initiated either prior
to or after the filing and publication of a final EIS with EPA,
depending on the specifics of the agency's authorities. Depending on
the agency involved and its associated authorities, administrative
review processes generally allow other agencies or the public to raise
issues about a decision and make their views known. CEQ proposed to
clarify that the period for administrative review of the decision and
the 30-day review period prescribed in paragraph (b)(2) for when a ROD
can be issued may run concurrently. CEQ proposed these changes to
reflect changes in Federal agency regulations and procedures since this
text was promulgated in 1978 and to allow for greater efficiency.
CEQ did not receive comments on these proposed changes and makes
the changes as proposed in the final rule to better accommodate
existing agency practices. For example, the U.S. Department of
Agriculture's Forest Service has an objections process outlined at 36
CFR part 218 whereby the public can object to a draft decision; these
regulations replaced the prior appeal process formerly used by the
agency. To initiate the objections process, Forest Service regulations
require that the final EIS and a draft ROD be made available to the
public, but the Forest Service does not have to publish the final EIS
with EPA until the conclusion of the objections process. See 36 CFR
218.7(b). The objections process can take 120 to 160 days, during which
the agency makes the final EIS available to the public. Allowing the
agency to file the final EIS with EPA and issue a ROD at the same time
as the conclusion of the objections process rather than waiting an
additional 30 days following the official filing will avoid
inefficiency. These changes also will accommodate similar
administrative review procedures maintained by other agencies. See
e.g., 43 CFR 1610.5-2 (outlining the Bureau of Land Management (BLM)
protest procedures).
CEQ also proposed minor edits in paragraphs (d) and (e) for clarity
and readability. CEQ did not receive comments on the proposed changes.
CEQ has made an additional revision to paragraphs (c)(2) and (e) to
correct the reference to Sec. 1506.9 to Sec. 1506.10.
Finally, one commenter requested that CEQ remove the language in
paragraph (e), arguing that the failure to file timely comments is not
a sufficient reason for extending a timeframe because the public often
does not find out about the draft EIS until late in the 45-day comment
period. The commenter stated that CEQ should recognize that agencies do
not notify the public about when an EA or EIS is released and therefore
commenters may be late in providing comments because they did not
receive adequate, proper, timely notification. CEQ declines to make
this change. As discussed in II.C.8 and II.E.I, Sec. 1501.9 identifies
requirements for how and when agencies must notify the public of an
action and Sec. 1503.1 requires agencies to request comments from the
public on an EIS. Further, agencies have long had the discretion to
consider special or unique circumstances that may warrant consideration
of comments outside the public comment period.
9. Emergencies (Sec. 1506.11)
Consistent with changes in the preceding sections, CEQ proposed to
renumber 40 CFR 1506.12 (2020), ``Emergencies,'' to Sec. 1506.11. CEQ
proposed to strike the last sentence, stating other actions remain
subject to NEPA review because it erroneously implies that actions
covered by Sec. 1506.11 are not subject to NEPA review. Instead, CEQ
proposed to replace the sentence with language clarifying that
alternative arrangements are not a waiver of NEPA; rather, they
establish an alternative means for NEPA compliance.
Commenters recommended CEQ make it a requirement rather than a
recommendation for agencies to consult with CEQ about alternative
arrangements. Additionally, commenters disagreed with CEQ's deletion of
the statement that other actions remain subject to NEPA, expressing
concern that the revised provision would rely on negative implication
as a substitute for this clear statement.
In the final rule, CEQ has revised this provision to change
``should'' to ``shall'' to make clear that agencies must consult with
CEQ on alternative arrangements for an action with significant effects.
CEQ agrees with commenters' suggestion, which is consistent with
longstanding agency practice. Such consultation ensures that the agency
is limiting the scope of such arrangements to those actions that are
necessary to address the emergency and that the public is appropriately
notified and involved in the process. CEQ is also revising ``will'' to
``shall'' in the second sentence to clarify that this is a regulatory
requirement rather than a statement of fact. Upon further
consideration, CEQ retains the clause ``other actions remain subject to
NEPA review'' and adds the clause ``consistent with this subchapter''
to make clear that agencies and CEQ are required to limit such
arrangements, and that any remaining actions not covered by the
alternative arrangements must comply with the regulations.
Finally, CEQ adds the last sentence as proposed to address
confusion \109\ as to whether, during emergencies, agency actions are
exempted from NEPA. This addition clarifies that the regulations do not
create a NEPA exemption; rather, they provide a pathway for compliance
with NEPA where the exigencies of emergency situations do not provide
sufficient time for an agency to complete an EIS in conformity with the
CEQ regulations for an action with significant environmental effects.
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\109\ See CEQ, 2020 Response to Comments, supra note 69, at 417-
19.
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CEQ does not have the authority to exempt agency actions from NEPA,
regardless of whether an emergency exists. The changes to Sec. 1506.11
clarify that CEQ does not offer ``alternative arrangements'' to
circumvent appropriate NEPA analysis but rather to enable Federal
agencies to establish alternative means for NEPA compliance to ensure
that agencies can act swiftly to address emergencies while also meeting
their statutory obligations under NEPA. CEQ's revisions clarify that
when emergencies arise, Sec. 1506.11 allows agencies to adjust the
means by which they achieve NEPA compliance. This approach is also
consistent with CEQ's guidance on NEPA and emergencies, updated in
2020.\110\
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\110\ See CEQ, Emergencies and the National Environmental Policy
Act Guidance (Sept. 14, 2020), https://ceq.doe.gov/docs/nepa-practice/emergencies-and-nepa-guidance-2020.pdf.
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Finally, CEQ notes that, consistent with longstanding practice,
agencies have discretion to determine how to proceed with actions to
respond to
[[Page 35530]]
emergencies that do not have significant environmental effects, which
agencies would ordinarily analyze through an EA. Agencies may continue
to consult with CEQ where they are unsure whether alternative
arrangements or an EA is the appropriate course of action. And, as
discussed in section II.I.3, some agencies include procedures for
addressing such situations in their agency NEPA procedures, and CEQ
encourages agencies to do so where appropriate for their programs and
activities.
10. Innovative Approaches to NEPA Reviews (Proposed Sec. 1506.12)
CEQ proposed to add a new section to the regulations in Sec.
1506.12 to allow CEQ to grant a request for modification to authorize
Federal agencies to pursue innovative approaches to comply with NEPA
and the regulations in order to address extreme environmental
challenges. CEQ proposed this new concept to be distinct from the
emergency provisions in Sec. 1506.11 with different considerations and
criteria.
Commenters generally opposed this proposed provision. Some
commenters thought it was unnecessary, and CEQ did not receive concrete
examples of situations where commenters thought agencies could
successfully use such approaches. Other commenters were concerned the
proposal did not contain enough guideposts for agencies. Commenters
also raised concerns that the lack of notice and comment for rulemaking
could lead to uncertainty about durability of the provisions and
potential litigation and delay.
Upon further consideration, including the public comments received
on the proposed provision, CEQ is not including this provision in the
final rule. The mechanisms provided in this final rule, including
updated provisions on programmatic environmental reviews and agency
NEPA procedures that should be tailored to agencies' unique programs
and actions, as well as new methods of establishing or adopting CEs,
provide agencies sufficient flexibility to innovate and address extreme
environmental challenges.
11. Effective Date (Sec. 1506.12)
CEQ proposed to remove the 2020 effective date in Sec. 1506.13 and
replace it with the date upon which a final rule is effective. CEQ
received a variety of comments on this provision, including one
commenter requesting that it require agencies to apply the final rule
to ongoing actions. Conversely, a group of commenters requested that
the final rule explicitly state that agencies should follow the NEPA
regulations that were effective at the time at which the agency
initiated the environmental review, asserting that allowing agencies
flexibility to apply the final rule to ongoing actions will cause
delays, create uncertainty, and increase costs for project proponents.
Some commenters requested that CEQ revise this section to not allow
the regulations to apply to a Federal agency's actions until the agency
adopts new agency procedures under Sec. 1507.3 to avoid confusion and
inconsistency, and that CEQ provide additional clarity on which version
of CEQ's regulations and an agency's procedures apply to each Federal
action moving forward.
CEQ finalizes this section as proposed in Sec. 1506.12. Section
1506.12 requires agencies to comply with the regulations for proposed
actions begun after the effective date of the final rule. Agencies are
in the best position to determine on a case-by-case basis whether
applying provisions of the revised regulations to ongoing reviews will
facilitate a more effective and efficient process, and CEQ declines to
limit agency flexibility in this regard. Regarding potential conflict
with existing agency procedures, an agency's existing NEPA procedures
remain in effect until the agency revises its procedures consistent
with Sec. 1507.3; however, agencies should read their existing
procedures in concert with the final rule to ensure they are meeting
the requisite requirements of both wherever possible. Additionally, CEQ
notes that the Fiscal Responsibility Act's amendments to NEPA were
effective upon enactment, so to the extent the regulations implement
provisions of the NEPA amendments, these are applicable to ongoing
reviews.
For the last several years, agencies have had experience
reconciling differences between their procedures and the current
regulations, and CEQ is unaware of significant issues that have arisen.
While certain provisions included in this final rule may be missing
from agency procedures, these provisions are requirements that agencies
would need to add to their procedures and are therefore less likely to
pose a direct conflict or create inconsistencies. Additionally, where
CEQ is restoring the regulatory text or approach from the 1978
regulations, CEQ notes that most agency procedures are consistent with
the 1978 regulations, and therefore there is less likely to be conflict
with those provisions. To the extent that there is conflict between an
agency's procedures and CEQ's regulations, the CEQ regulations
generally will apply, and CEQ is available to assist in addressing any
such conflicts. Lastly, CEQ notes that Federal agencies would not need
to redo or supplement a completed NEPA review (e.g., where a CE
determination, FONSI, or ROD has been issued) as a result of the
issuance of this rulemaking.
I. Revisions to Agency Compliance (Part 1507)
1. Compliance (Sec. 1507.1)
CEQ proposed to add a second sentence to Sec. 1507.1 to restore
language from the 1978 regulations to state that agencies have
flexibility to adapt their implementing procedures to the requirements
of other applicable laws. CEQ made this proposal because restoring this
language is consistent with the changes CEQ made to 40 CFR 1507.3
(2022) in its Phase 1 rulemaking to restore agency discretion to tailor
their NEPA procedures to their unique missions and contexts, creating
opportunity for agencies to innovate and improve efficiency.
One commenter requested that CEQ delete the first sentence of Sec.
1507.1, which requires all agencies to comply with the CEQ regulations,
and add a clause at the end of the proposed second sentence making
requirements with other applicable laws dependent upon compliance with
the regulations. The commenter asserted this change would allow an
agency to tailor its NEPA procedures as appropriate, but make clear
that the agency still must comply with these regulations.
Another commenter expressed concerns that the flexibility proposed
in Sec. 1507.1 will result in inconsistency, especially where a State
agency serves as a co-lead agency or as a participating agency for a
project over which multiple Federal agencies have jurisdiction. The
commenter asserted that the flexibility in the proposed text in Sec.
1507.1 undermines predictability and consistency and will result in
delays in the environmental review process.
CEQ considered the commenters' suggestions and finalizes the
language as proposed. With respect to the first comment, CEQ considers
the language in the final rule to be consistent with the commenter's
objective and longstanding practice: agencies may tailor their
procedures to their unique programs, but they must also comply with
NEPA and the CEQ regulations. This point is reinforced in Sec. 1500.6,
which requires agencies to fully comply with the purposes and
provisions of the NEPA statute and CEQ's NEPA regulations unless an
agency activity, decision, or action is exempted from NEPA by law or
compliance with NEPA is impossible.
[[Page 35531]]
CEQ disagrees with the other commenter's assertions that this
provision undermines predictability. To ensure NEPA reviews inform
decision making, Federal agencies need to integrate the NEPA process
into the decision-making process, and having a ``one size fits all''
approach to agency procedures would not achieve that objective. The CEQ
regulations encourage agencies to engage in early coordination to
prevent delays in individual NEPA reviews. Further, the regulations
have long encouraged agencies to consult with other agencies with which
they have similar programs or frequently take actions on the same
projects, and CEQ encourages agencies to strive to reconcile their
processes as they update their procedures for consistency with this
rule. See Sec. 1507.3(b)(1).
2. Agency Capability To Comply (Sec. 1507.2)
CEQ proposed edits to Sec. 1507.2 to emphasize agencies'
responsibilities under NEPA, including to incorporate the requirements
added to section 102(2) of NEPA, 42 U.S.C. 4332, and to require
agencies to designate a Chief Public Engagement Officer. First, CEQ
proposed to move the first sentence of paragraph (a) of 40 CFR 1507.2
(2020), which requires agencies to fulfil the requirements of section
102(2)(A) of NEPA, 42 U.S.C. 4332(2)(A), to use a systematic,
interdisciplinary approach, to a new Sec. 1507.2(b). Second, CEQ
proposed to require in Sec. 1507.2(a) that in addition to designating
a senior agency official responsible for overall agency NEPA
compliance, agencies identify a Chief Public Engagement Officer who
would be responsible for facilitating community engagement across the
agency and, where appropriate, the provision of technical assistance to
communities.
CEQ received multiple comments on the requirement for Federal
agencies to identify a Chief Public Engagement Officer. Numerous
supportive commenters expressed that this position would benefit all
stakeholders, quicken public engagement processes by making the
environmental review processes more accessible and transparent,
facilitate consistent engagement practices, and promote a level of
accountability that enhances engagement. Some supportive commenters
asked CEQ to clarify expectations for the position, such as identifying
a minimum level of seniority within the agency and to clarify that
``community engagement'' includes ``industry engagement.'' A couple of
commenters were supportive of the general idea, but expressed concern
about how agencies would define the role and whether agencies would
have resources to support the Officer. A few commenters suggested that
the person who serves in the position within an agency must be a
neutral party and trusted expert with necessary experience to be
effective in the position. Multiple commenters also provided
suggestions for additional guidance regarding the duties of the Chief
Public Engagement Officer.
Several commenters opposed the proposed requirement for agencies to
designate a Chief Public Engagement Officer asserting that the NEPA
amendments do not require it; there is lack of clarity on whether this
position would help mediate resolutions to allow more efficient
completion of the environmental review process; and it would create a
burden on agencies because they will need to hire a Chief Public
Engagement Officer.
Another commenter raised the concern that by requiring agencies to
identify a Chief Public Engagement Officer, CEQ is creating a new and
potentially overlapping position with the Chief Environmental Review
and Permitting Officer (CERPO) that already exists to manage
environmental review and authorization processes.
CEQ considered the comments and includes the requirement in Sec.
1507.2(a) to identify a Chief Public Engagement Officer with clarifying
edits. To address commenters' concerns about agency burden and the
scope of the position, CEQ adds language to clarify that the
regulations make the Chief Public Engagement Officer responsible for
facilitating community engagement in environmental reviews and does not
direct agencies to make the officer responsible for all engagement
activities within an agency, though agencies have the discretion to
define the role more broadly should they determine doing so is
appropriate.
CEQ also adds a sentence to the end of paragraph (a) to clarify
that when an agency is a department, it may be efficient for major
subunits to identify senior agency officials or Chief Public Engagement
Officers within those subunits. This language is consistent with the
approach for agency NEPA procedures in Sec. 1507.3(b), and the
regulations provide that the department-level official or Officer would
have oversight over the subunit officials or officers. CEQ adds this
language to provide large departments the flexibility to effectively
manage their programs while ensuring that there is also centralized,
consistent coordination across the whole department. CEQ notes that a
senior agency official must be ``an official of assistant secretary
rank or higher (or equivalent),'' in accordance with Sec. 1508.1(ll);
in the case of a senior agency official designated by a major subunit,
that individual must have a degree of authority and responsibility
within the subunit that is equivalent to the authority and
responsibility that an assistant secretary would have within a
department.
CEQ notes that Federal agencies may designate current employees to
serve as the senior agency official and Chief Public Engagement
Officer, and need not hire new employees. Regarding the variety of
comments recommending specific responsibilities for the Chief Public
Engagement Officer, CEQ will consider providing guidance to agencies
that addresses the role and expectations of the Officer, but CEQ
considers this level of detail unnecessary for the regulations. Lastly,
CEQ revises paragraph (a) to strike ``Agencies shall'' from the
beginning of the paragraph because it is duplicative to the end of the
introductory paragraph of Sec. 1507.2.
Third, CEQ proposed to redesignate paragraphs (b) and (c), and (d)
through (f) of 40 CFR 1507.2 (2020) as Sec. 1507.2(c) and (d), and (h)
through (j) respectively. CEQ makes these changes in the final rule.
Fourth, CEQ proposed to add a new paragraph (e) to require agencies
to prepare environmental documents with professional integrity
consistent with section 102(2)(D) of NEPA, 42 U.S.C. 4332(2)(D). In a
new paragraph (f), CEQ proposed to require agencies to make use of
reliable data and resources, consistent with section 102(2)(E) of NEPA,
42 U.S.C. 4332(2)(E). And, in a new paragraph (g), CEQ proposed to
require agencies to study, develop, and describe technically and
economically feasible alternatives, consistent with section 102(2)(F)
of NEPA, 42 U.S.C. 4332(2)(F). Finally, in redesignated paragraph (j),
CEQ proposed to delete the reference to E.O. 13807 because E.O. 13990
revoked E.O. 13807.\111\
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\111\ E.O. 13990, supra note 43.
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CEQ did not receive any substantive comments on these proposed
changes. CEQ finalizes these provisions as proposed.
3. Agency NEPA Procedures (Sec. 1507.3)
CEQ proposed several updates to Sec. 1507.3 to reorganize
paragraphs to improve readability, consolidate related provisions,
restore text from the 1978 regulations, and codify CEQ guidance on CEs.
First, in paragraphs (a) and (b), CEQ proposed to update the effective
date to reflect the effective date of a
[[Page 35532]]
final rule. CEQ received several comments expressing concern about
paragraph (a), which provides that CEQ determined that the CEs
contained in agency NEPA procedures as of the final rule effective date
are consistent with the CEQ regulations. Commenters raised concerns
about the lack of evidence that all CEs are consistent with CEQ's
proposal and, in some instances, identified particular CEs that the
commenters stated were inconsistent. Commenters also asked about how
this provision would interact with Sec. 1507.3(c)(8) and (9) regarding
the process for establishing and periodically reviewing existing CEs.
CEQ considered the comments and revises this paragraph in the final
rule for clarity. CEQ's intent with this provision is to clarify that
the changes made in the final rule, including revisions to the
definition of ``categorical exclusion'' and Sec. 1501.4 do not
implicate the validity of existing CEs. CEQ revises the paragraph to
clarify that it has determined that the revisions to its regulations
made in this final rule do not affect the validity of agency CEs that
are in place as of the effective date of this rule. Further, as
discussed more in this section, CEQ is encouraging agencies to
prioritize their older CEs for review.
Second, in Sec. 1507.3(b), CEQ proposed to give agencies 12 months
after the effective date to develop proposed procedures and initiate
consultation with CEQ to implement the CEQ regulations. CEQ also
proposed moving, with some modification, language from paragraph (c) of
40 CFR 1507.3 (2022) to Sec. 1507.3(b) for clarity and to improve
organization since the language is generally applicable to all agency
NEPA procedures. The NPRM explained that proposed procedures should
facilitate efficient decision making and ensure that agencies make
decisions in accordance with the policies and requirements of NEPA.
One commenter requested that CEQ explicitly state that in the case
of conflicts, an agency's NEPA procedures supersede the CEQ
regulations, and that such a statement would increase certainty and
reduce litigation risks. CEQ declines to add this language. Agencies
and courts have extensive experience applying both CEQ's regulations
and agency-specific procedures, and in CEQ's experience, this
relationship has not led to uncertainty or litigation risk that would
outweigh the uncertainty that could be created from a new regulatory
provision on this subject.
Two commenters asserted that 12 months is not enough time for
agencies to propose procedures, take public comment, and produce final
procedures. CEQ declines to revise the timing provided in Sec.
1507.3(b). While CEQ will work with agencies to update their procedures
as quickly as possible, agencies only need to provide CEQ with proposed
revisions within 12 months. Therefore, CEQ considers 12 months
sufficient for agencies to propose procedures and finalizes Sec.
1507.3(b) as proposed, except a grammatical change from ``agencies
make'' to ``the agency makes'' for consistency with the rest of the
sentence.
Third, in paragraph (b)(2), CEQ proposed to change ``adopting'' to
``issuing'' to avoid confusion with adoption under Sec. 1506.3. CEQ
also proposed to restore text from the 1978 regulations requiring
agencies to continue to review their policies and procedures and revise
them as necessary to be in full compliance with NEPA. The 2020 rule
deleted this language as redundant to language added to paragraph (b)
of 40 CFR 1507.3 (2020) requiring agencies to update their procedures
to implement the final rule.\112\
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\112\ CEQ, 2020 Final Rule, supra note 39, at 43340.
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One commenter opposed CEQ's proposed restoration of this language
in Sec. 1507.3(b)(2), asserting that the requirement for agencies to
continually review their NEPA policies and procedures could reduce
stability because agencies will be in a constant cycle of revision. CEQ
disagrees with the commenter's assertions because this provision was in
the 1978 regulations and has not resulted in agencies continually
updating their procedures. CEQ also considers it important for agencies
to review their procedures to ensure that they are meeting the intent
of NEPA and are updated to address any changes to agencies' authorities
or programs so that the NEPA process is effectively integrated in
agencies' decision-making processes.
CEQ makes the changes to paragraph (b)(2) as proposed with one
additional change in the fourth sentence to change ``to'' to ``and''
for clarity. CEQ is restoring this language because the requirement for
an agency to continue to review their policies and procedures is
different than the requirement in paragraph (b) to initially update
procedures consistent with the final rule. Further, restoring this
requirement is consistent with the requirement in Sec. 1507.3(c)(9)
for agencies to review CEs at least every 10 years.
Fourth, CEQ proposed to add a new paragraph (b)(3) to clarify that,
consistent with longstanding practice, the issuance of new agency
procedures or an update to existing agency procedures is not itself
subject to NEPA review. CEQ did not receive comments on this paragraph
and adds it with the language as proposed in the final rule.
Fifth, paragraphs (c) and (c)(1) through (c)(10) of 40 CFR 1507.3
(2022) list the items that all agency NEPA procedures must include, and
CEQ proposed minor revisions to paragraphs (c)(1) through (c)(4) to
improve clarity and conciseness. Specifically, CEQ proposed to modify
paragraph (c)(1) to clarify that agencies should designate the major
decision points for their programs and actions subject to NEPA and
ensure that the NEPA process begins at the earliest reasonable time. In
paragraph (c)(2), CEQ proposed to remove the reference to ``formal'' as
unnecessarily limiting since agencies generally engage in informal
rulemaking, and change ``or'' to ``and'' to clarify that agencies
should make relevant environmental documents, comments, and responses
part of the record in both rulemakings and adjudicatory proceedings.
CEQ proposed to modify paragraph (c)(3) to clarify that procedures
should integrate environmental review into agency decision-making
processes so that decision makers use the information in making
decisions. CEQ did not receive comments on these specific changes and
makes the edits as proposed in the final rule.
Sixth, CEQ proposed to modify paragraph (c)(5) to emphasize that
combining environmental documents should be done to facilitate sound
and efficient decision making and avoid duplication. CEQ proposed to
strike the language from this paragraph allowing agencies to designate
and rely on other procedures or documents to satisfy NEPA compliance.
As discussed further in sections II.C.1 and II.C.2 of the NPRM, CEQ had
concerns about this language added by the 2020 rule to substitute other
reviews as functionally equivalent for NEPA compliance, and therefore
proposed to remove it.
One commenter stated that paragraph (c)(5) should implement section
107(b) of NEPA, 42 U.S.C. 4336a(b). Section 107(b) of NEPA addresses
preparation of a single environmental document for lead and cooperating
agencies. CEQ addresses this in Sec. 1501.7(g) and therefore declines
to make this change. The intent of paragraph (c)(5) is to ensure that
agency procedures require the combination of environmental documents
with other agency documents in order to facilitate sound and efficient
decision making and avoid duplication where consistent with
[[Page 35533]]
applicable statutory requirements. CEQ makes the changes to Sec.
1507.3(c)(5) as proposed.
Seventh, to consolidate into one paragraph--paragraph (c)--the
required aspects of agency NEPA procedures, CEQ proposed to move
paragraphs (e)(1), (e)(2), (e)(2)(i), and (e)(2)(iii) of 40 CFR 1507.3
(2022) to paragraphs (c)(6), (c)(7), (c)(7)(i) and (c)(7)(ii),
respectively, with minor wording modification for readability. Proposed
paragraph (c)(6) addressed procedures required by Sec. 1501.2(b)(4)
regarding assistance to applicants. Proposed paragraphs (c)(7),
(c)(7)(i), and (c)(7)(ii) addressed criteria to identify of typical
classes of action that normally require EISs and EAs.
One commenter questioned if paragraphs (c)(7)(i) and (ii) are
intended to make EIS and EA thresholds more definitive. These
provisions--which have been in the CEQ regulations since 1978 and to
which CEQ only proposed minor, non-substantive edits for readability--
require agencies to identify their common activities or decisions that
typically require an EIS or EA. While not determinative for any
particular action, these lists put the public on notice of the
decisions agencies regularly make that require these levels of NEPA
review. CEQ has not substantively changed these provisions and,
therefore, does not intend for them to affect EIS and EA thresholds or
otherwise change current practice. CEQ makes the changes to Sec.
1507.3(6) and (7) as proposed.
Eighth, CEQ proposed to move with modification paragraph (e)(2)(ii)
of 40 CFR 1507.3(2022), requiring agencies to establish CEs and
identify extraordinary circumstances, to paragraph (c)(8). CEQ proposed
in paragraphs (c)(8)(i) through (c)(8)(iii) to include more specificity
about the process for establishing new or revising existing CEs,
consistent with CEQ's 2010 CE guidance and agency practice. CEQ
proposed to move the existing requirement that agencies identify when
documentation is required for a determination that a CE applies to a
proposed action from paragraph (e)(2)(i) of 40 CFR 1507.3 (2022) to
proposed paragraph (c)(8)(i). CEQ proposed a new paragraph (c)(8)(ii)
to require agencies to substantiate new or revised CEs with sufficient
information to conclude that the category of actions does not have a
significant effect, individually or in the aggregate, and make the
documentation publicly available for comment. Lastly, CEQ proposed to
add paragraph (c)(8)(iii) to require agencies to describe how they will
consider extraordinary circumstances, a concept that was moved from
paragraph (e)(2)(ii) of 40 CFR 1507.3 (2022). CEQ proposed these
provisions for consistency with its 2010 guidance and CEQ's
longstanding practice requiring agencies to demonstrate that agency
activities are eligible for CEs.\113\
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\113\ See CEQ, CE Guidance, supra note 10.
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One commenter requested that CEQ revise proposed paragraph
(c)(8)(i) to require agencies to provide the public with documentation
of a determination that a CE applies to a proposed action. CEQ declines
to require agencies to document and publish all determinations that a
CE applies to an action, as many CEs are used for routine actions with
no potential for environmental effects and documentation of all
determinations would result in burdensome and unnecessary paperwork.
CEQ considers the better approach to be for agencies to identify which
CEs require documentation and whether to make that documentation
publicly available.
One commenter requested that CEQ expand paragraph (c)(8)(ii) to
preclude agencies from establishing CEs if similar categories of
actions have historically been controversial, are known to have
substantial environmental justice considerations, or have previously
resulted in preparation of an EIS. Another commenter suggested that CEQ
replace the use of ``or in the aggregate'' with ``cumulative,'' to use
the term from the 1978 regulations.
Some commenters opposed proposed paragraph (c)(8)(iii), stating
that agencies should not have to delineate the extraordinary
circumstances under which an action normally excluded from further NEPA
review nonetheless requires additional review. The commenters asserted
that the proposed section substantially limits the breadth of
extraordinary circumstances under which an action normally excluded
requires further review. CEQ disagrees with the commenters' assertions.
The provision clarifies that an explanation of how the agency will
consider extraordinary circumstances when applying a proposed CE is a
necessary component of substantiating the CE. The provision should be
read in context with the definition of ``extraordinary circumstances''
in Sec. 1508.1(o).
CEQ considers these comments but finalizes the provisions in Sec.
1507.3(c)(8) and (c)(8)(i) through (iii) as proposed, with one change:
instead of restating the process for consideration of extraordinary
circumstances in paragraph (c)(8)(iii), the final rule cross-references
to Sec. 1501.4(b), which sets for the process for consideration of
extraordinary circumstances, including documenting when an agency
determines that a CE applies notwithstanding extraordinary
circumstances. CEQ declines to make the commenters' recommended
changes. When establishing CEs, agencies must provide sufficient
information to CEQ and to the public to substantiate the determination
that the category of actions normally does not result in significant
effects. Agencies must also address how they will consider
extraordinary circumstances in applying CEs. CEQ does not consider it
appropriate to specify these limitations within its regulations;
rather, agencies and CEQ must consider these concerns on a case-by-case
basis when substantiating and reviewing proposed new CEs.
As discussed further in section II.C.3, CEQ also declines to
replace ``or in the aggregate'' in the paragraph because it is
consistent with Sec. 1501.4 on establishment of CEs. CEQ considers
``individually or in the aggregate'' to have the same meaning as the
1978 regulation's definition of ``categorical exclusion'' as a category
of actions that do not ``individually or cumulatively'' have
significant effects. CEQ uses ``in the aggregate'' instead of
``cumulatively'' within the regulations to avoid potential confusion
with the definition of ``effects,'' which includes cumulative effects.
Ninth, CEQ proposed to add a new paragraph (c)(9) to require
agencies to include in their NEPA procedures a process for reviewing
their CEs every 10 years to codify recommendations in CEQ's guidance on
establishing CEs,\114\ which encourages agencies to review CEs
periodically. While the guidance recommends every 7 years,\115\ CEQ
proposed requiring that review occur at least every 10 years because it
can take about a year to complete the steps involved to conduct such a
review and revise CEs. These steps typically include conducting the
analysis, developing a proposal to update procedures to reflect the
review, consulting with CEQ on any proposed update to procedures,
soliciting public comment, developing final procedures, and receiving a
CEQ conformity determination. CEQ noted in the proposed rule that
Federal agencies should review their CEs for multiple reasons,
including to determine if CEs remain useful, whether they should modify
them, and to determine if circumstances have changed resulting in
[[Page 35534]]
an existing category rising the potential for significant effects.
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\114\ Id. at 15-18.
\115\ Id. at 16.
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Multiple commenters supported this requirement, with some
suggesting that this review be subject to notice and public comment and
others requesting the 10-year timeframe start at the time the agency
issues the CE. One commenter requested that the regulations instruct
agencies to take a holistic and comprehensive look at their current CEs
to determine if any changes are needed, while another suggested that
the periodic reviews need to account for the latest science and design
practices.
CEQ declines to require agencies to provide notice and comment for
their periodic review of CEs, but notes that where an agency decides to
revise a CE based on the review, such revisions would require notice
and comment under Sec. 1507.3(b), for CEs established through agency
procedures, or Sec. 1501.4(c), for CEs developed through the
mechanisms identified in that paragraph. CEQ declines to require
agencies to comprehensively review their CEs, because allowing agencies
to review their CEs on a rolling basis will provide for a more orderly
and efficient review process and allow agencies to complete their
review of their oldest CEs more quickly than would occur if the agency
were to review all of its CEs at one time. CEQ declines to include
additional requirements for the periodic review but agrees that the
standard set forth in Sec. 1501.4(d)(4) may help inform agencies as to
when an agency should revise or remove a CE.
Some commenters opposed the proposed requirement to review existing
CEs, asserting that it places an administrative burden on agencies that
is unjustified to the extent it goes beyond how agencies currently
administer CEs. While CEQ recognizes that this review process may be
new for some agencies, CEQ has encouraged agencies to review CEs since
the 2010 guidance. CEQ's experience with agencies that have undertaken
this review is that it is a valuable process for agencies because it
results in revised and new CEs that better align with the agencies'
programs and experience. Such reviews are animated by the same
principle as the longstanding practices to reexamine an analysis when
an agency has an ongoing action, such as reevaluation and
supplementation. A periodic analysis of existing CEs serves the same
purpose--to ensure the underlying analysis and conclusions remain
valid.
One commenter requested that the final rule add ``which does not
impact projects approved under a categorical exclusion that existed at
the time'' to paragraph (c)(9) to clarify that review of and changes to
CEs are forward-looking and do not affect previously approved actions.
CEQ agrees that any review of CEs does not have implications for prior
CE determinations and does not consider the text in the final rule to
raise any question that a review would require an agency to reopen the
approval process for such actions. As a result, CEQ views this addition
to be unnecessary.
In the final rule, CEQ adds this provision with an additional
clause to clarify that agencies do not need to review all of their CEs
at once and may do so on a rolling basis, but should focus on the
oldest CEs first. CEQ adds this provision to clarify that agencies need
not undertake a comprehensive review of all CEs but could instead break
them up such that they review them in tranches on some periodic
schedule but where the review of each CE occurs once every 10 years.
Additionally, in response to comments on the interaction between Sec.
1507.3(a) regarding the validity of existing CEs and this provision,
CEQ clarifies that agencies should prioritize its oldest CEs first.
Tenth, CEQ proposed to move 40 CFR 1507.3(e)(3) (2020) to paragraph
(c)(10) without substantive change. This provision addresses the
requirement that agencies include a process for introducing a
supplemental EA or EIS into its formal administrative record. CEQ did
not receive comments on this provision. In the final rule, CEQ moves 40
CFR 1507.3(e)(3) (2020) to Sec. 1507.3(c)(10) and revises the text to
require agencies to include processes for reevaluating and
supplementing EAs and EISs, as appropriate. CEQ has revised the text in
this provision to enhance clarity by referring to ``processes for''
rather than ``a process for introducing'' and removing the reference to
including supplemental materials in a formal administrative record to
enable agencies flexibility to develop procedures that work with their
programs consistent with longstanding agency practice. Additionally, 40
CFR 1502.9(d)(4) (2020) implicitly requires agency procedures to
address reevaluation by encouraging agencies to document their findings
consistent with their agency NEPA procedures. CEQ adds an explicit
requirement in Sec. 1507.3(c)(10) in the final rule for consistency
with Sec. 1502.9(e) and to make clear that agencies must include such
a process in their agency procedures.
Eleventh, CEQ proposed to move the requirement for agencies to
explain in their NEPA procedures where interested persons can get
information on EISs and the NEPA process from paragraph (e) of 40 CFR
1506.6 (2020) to Sec. 1507.3(c)(11) and add a reference to EAs as
well. CEQ did not receive comments on this provision and makes this
change as proposed in the final rule.
Twelfth, CEQ proposed to codify section 107(f) of NEPA, 42 U.S.C.
4336a(f), in a new paragraph (c)(12) requiring agencies to include
procedures, where applicable, to allow a project sponsor to prepare EAs
and EISs consistent with Sec. 1506.5. Since not all agency actions
involve project sponsors, CEQ proposed to include ``where applicable''
to qualify this requirement so that it applies only where agencies have
actions where there is a project sponsor. The proposal included
``consistent with Sec. 1506.5'' so that such procedures would ensure
environmental documents prepared by project sponsors (or a contractor
on the project sponsor's behalf) are prepared with professional and
scientific integrity, and ensure that the agency independently
evaluates and takes responsibility for the contents of such documents.
The proposed rule also explained that this would ensure that agencies
require project sponsors to execute a disclosure statement to address
financial or other interests. In addition to procedures, agencies may
provide project sponsors with guidance and assist in the preparation of
the documents consistent with Sec. 1506.5(b)(1).
CEQ received multiple comments that generally supported the
proposed changes to allow applicants to prepare EAs and EISs, as well
as multiple commenters who generally opposed the provision and opposed
section 107(f) of NEPA. Some commenters who oppose the proposed changes
recognized that it is not within CEQ's authority to modify section
107(f) of NEPA but stated that CEQ could provide more oversight and
guardrails for how agencies carry this out and that CEQ should provide
more guidance on avoiding conflicts of interest. Another group of
commenters asked CEQ to provide more specificity for what agency
procedures should specify regarding applicant or project sponsor-
prepared EAs and EISs.
Commenters who supported the proposal pointed to time and cost
savings and asserted that allowing project proponents, applicants, and
contractors more opportunities to prepare EAs and EISs will help reduce
inaccuracies and delays. Some supportive commenters also requested that
CEQ go further, such as by allowing
[[Page 35535]]
a project sponsor a first right of refusal to prepare an EA or EIS.
One commenter opposed the addition of paragraph (c)(12) and the
general allowance of project sponsors to prepare EAs and EISs. However,
they noted that their concerns could be mitigated if there is a
definition of ``project sponsor.'' Another commenter requested that CEQ
add to paragraph (c)(12) a requirement for agencies to include specific
public engagement requirements in their procedures when a project
sponsor prepares an EA or EIS. Additionally, as discussed further in
section II.H.3, commenters were confused about the applicability of
this provision and Sec. 1506.5.
In the final rule, CEQ includes Sec. 1507.3(c)(12) to address
preparation of EAs and EISs by applicants, including project sponsors.
As discussed in section II.J.1, CEQ is adding a definition of
``applicant,'' which is inclusive of ``project sponsors'' to address
confusion regarding the meaning of this term here and elsewhere in the
regulations. CEQ also revises the ``where applicable'' language to
``where an agency has applicants that seek its action'' to address
concerns that the provision could be read as discretionary. As CEQ
noted in the preamble to the proposed rule, not all agencies have
applicants or project sponsors; therefore, such agencies need not
include procedures for non-existent applicants. This phrasing is
consistent with the definition of ``applicant'' in the final rule.
Additionally, CEQ adds a sentence in the final rule to clarify that
such procedures will not apply to applicants when they serve as joint
lead agencies. Section 107 of NEPA allows the Federal lead agency to
appoint a State, Tribal, or local agency as a joint lead agency and
jointly fulfill the role of the lead agency. In such cases, the joint
lead agency and lead agency would work together to prepare the
document, including development of the purpose and need, identification
of alternatives, and preparing the FONSI or ROD.
In Sec. 1507.3(c)(12), CEQ also revises the cross reference to
Sec. 1506.5(a) and (c). As discussed in section II.H.3, CEQ is
modifying Sec. 1506.5 for clarity, and therefore the provisions in
Sec. 1506.5 regarding applicant-provided information for a NEPA
document prepared by the agency or an agency-directed contractor are
inapplicable in this instance where the applicant or its contractor is
preparing the EA or EIS.
In the final rule, CEQ adds paragraphs (c)(12)(i), (ii) and (iii),
to set out minimum requirements for such procedures. CEQ includes these
provisions to respond to comments requesting CEQ include more
specificity about the agency's role with respect to applicant prepared
EAs and EIS. Paragraph (c)(12)(i) requires that agency procedures
provide for agency review and approval of the purpose and need and
alternatives. Agency involvement in development of these key features
of the environmental document is critical to ensure that applicant
prepared EISs and EAs will be appropriately scoped and include the
reasonable alternatives as determined by the agency. Paragraph
(c)(12)(ii) requires agencies to include process for the agency to
independently evaluate the applicant-prepared EA or EIS; take
responsibility for its accuracy, scope, and contents; and document the
agency's evaluation in the document consistent with the requirements in
Sec. 1506.5(a). CEQ adds paragraph (c)(12)(iii) to address comments
requesting that CEQ clarify that applicants cannot prepare FONSIs or
RODs. CEQ agrees that this is consistent with section 107(f) of NEPA
and agrees that it is an important clarification to ensure that the
agency's determinations and decisions are its own.
CEQ declines to add additional requirements regarding public
engagement in paragraph (c)(12) because the regulations require
agencies to engage the public in the preparation of an EA and EIS,
which is required regardless of the preparer.
Numerous commenters expressed the view that CEQ is not fully
implementing section 107(f) of NEPA because it is not specifically
requiring agencies to allow project sponsors or applicants the
opportunity to prepare documents in the absence of prescribed
procedures. Some commenters referred to the fact that agencies have 12
months to propose procedures to CEQ following the effective date of the
final rule, which means it will be more than a year before agencies
have final procedures in place and be able to implement section 107(f)
of NEPA. One commenter also pointed to some agencies already accepting
sponsor-prepared documents for years and having a process in place to
facilitate doing so and asserting that those agencies should not be
prevented from continuing to accept these documents.
CEQ agrees that agencies have long allowed applicants to prepare
EAs and that many agencies already have procedures in place for
applicant-prepared documents. CEQ disagrees that this provision in the
regulations precludes agencies from implementing applicant-prepared
documents if they already have procedures that enable them to do so.
Agencies are currently implementing section 107(f) of NEPA and this
provision does not prevent them from continuing to do so. Rather, this
provision ensures that going forward, agencies include their procedures
for applicant prepared EAs and EISs in their NEPA procedures. Doing so
will ensure that the procedures include the criteria set forth in this
final rule and that the public has an opportunity to review and comment
on the agency procedures without disrupting existing practice
implementing 107(f) of NEPA.
Thirteenth, CEQ proposed to move, with revisions, paragraph (d) of
40 CFR 1507.3 (2022) to Sec. 1507.3(d)(1) and strike the provisions in
paragraphs (d)(1) through (d)(6) of 40 CFR 1507.3 (2022), which
recommended agency procedures identify different classes of activities
or decisions that may not be subject to NEPA. CEQ proposed to remove
these provisions for consistency with its revisions to Sec. 1501.1.
See section II.C.1.
Instead, CEQ proposed Sec. 1507.3(d) and its subparagraphs to
provide a list of items that agencies may include in their procedures,
as appropriate, which would include, at paragraph (d)(1), identifying
activities or decisions that are not subject to NEPA. CEQ proposed in
paragraph (d)(2) to allow agencies to include processes for emergency
actions that would not result in significant environmental effects.
Finally, CEQ proposed to move, without modification, paragraphs (f)(1)
and (f)(2) of 40 CFR 1507.3 (2022) to paragraphs (d)(3) and (d)(4),
respectively.
One commenter expressed support for the proposed Sec. 1507.3(d),
and specifically identified additional support for paragraphs (d)(1)
and (d)(2) through (6). Another commenter requested that CEQ make the
list of items in Sec. 1507.3(d) required rather than optional for
inclusion in agency procedures. This commenter also opposed the
allowance in paragraph (d)(3) regarding classified proposals, asserting
that this language invites abuse by agencies that will classify
proposals that should not be classified to avoid public input and
requested that there be public comment periods for classified
proposals.
CEQ finalizes the list of items agencies may include in their
procedures in Sec. 1507.3(d) as proposed. It is appropriate for this
list of items to be optional because the items included in the list
will not always be applicable to every agency.
CEQ notes that the provision in (d)(2) regarding emergency actions
is similar to CEQ's emergency process for EISs provided in Sec.
1506.11, but relates to activities that would not require
[[Page 35536]]
preparation of an EIS. Some agencies have programs that focus on these
types of emergency actions and may need to consider special
arrangements for their EAs in these circumstances. These special
arrangements could focus on the format of the documents, special
distribution and public involvement procedures, and timing
considerations. Some agencies have already established such processes
in their procedures to ensure efficient NEPA compliance in an
emergency. See, e.g., 36 CFR 220.4(b); U.S. Dep't of Homeland Sec.,
Instruction Manual #023-01-001-01, Section VI.\116\
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\116\ DHS, 023-01-001-01, Implementation of the National
Environmental Policy Act (Nov. 6, 2014), https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf.
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Regarding classified proposals, CEQ declines to further modify
paragraph (d)(3), which has been in place since the 1978 regulations
and is important for agencies who handle classified information. CEQ
notes that the provision encourages agencies to withhold only what is
necessary for the protection of classified information and structure
the document such that it can easily make unclassified portions
available for public comment.
Fourteenth, CEQ proposed to strike paragraph (e) of 40 CFR 1507.3
(2020) because it was unnecessary and potentially confusing. CEQ makes
this change in the final rule because this provision is redundant with
the regulations' longstanding requirement that agencies develop agency
NEPA procedures that CEQ has determined conform to the NEPA
regulations. Further, its requirement that agency procedures ``comply''
with the CEQ regulations could be read to suggest that agencies must
complete a NEPA review when establishing their procedures, which is
inconsistent with paragraph (b)(3).
Fifteenth, CEQ proposed to remove, as superfluous, the first
sentence of paragraph (f)(3) of 40 CFR 1507.3 (2020) regarding lengthy
periods between an agency's decision to prepare an EIS and actual
preparation, as the regulations prescribe specific timelines for
preparation of environmental documents. As discussed in section II.D.3,
CEQ proposed to move the second sentence of 40 CFR 1507.3(f)(3)
regarding supplemental notices when an agency withdraws, cancels, or
otherwise ceases the consideration of a proposed action before
completing an EIS to Sec. 1502.4(f) with modifications. CEQ makes
these changes in the final rule.
Sixteenth, CEQ proposed to remove as unnecessary paragraph (f)(4)
of 40 CFR 1507.3 (2022) regarding combining the agency's EA process
with its scoping process. Section 1501.5(k) clarifies that agencies can
employ scoping at their discretion when it will improve the efficiency
and effectiveness of EAs, including combining scoping with a comment
period on a draft EA.
One commenter opposed this deletion because integrating scoping
with the EA process can be an inclusive method of soliciting input and
save time and money during the NEPA process. CEQ agrees that
integrating scoping with an EA process can provide efficiency benefits,
which Sec. Sec. 1501.5(k) and 1501.9(b) address. CEQ finalizes the
proposal to remove paragraph (f)(4) because it is redundant with those
provisions.
Finally, as discussed in section II.C.3, CEQ proposed to strike
paragraph (f)(5) of 40 CFR 1507.3 (2022) and replace it with a
provision in Sec. 1501.4(e) that is consistent with the process
established by section 109 of NEPA, 42 U.S.C. 4336c, for adoption or
use of another agency's CE. CEQ makes this change in the final rule.
4. Agency NEPA Program Information (Sec. 1507.4)
CEQ proposed revisions to Sec. 1507.4, which describes the use of
agency websites and other information technology tools to promote
transparency and efficiency in the NEPA process. In paragraph (a), CEQ
proposed to change ``other means'' to ``other information technology
tools'' and to remove ``environmental'' before ``documents'' because
``environmental documents'' is a defined term, and the intent of the
sentence is to refer to NEPA-related information and documents more
broadly and not only to those documents that are included in the
definition of ``environmental document.'' CEQ proposed the same edit,
removing ``environmental'' before ``documents,'' in paragraph (a)(1).
CEQ also proposed in paragraph (a) to require agencies to provide on
their websites or through other information technology tools (to
account for new technologies) their agency NEPA procedures and a list
of EAs and EISs that are in development and complete. Lastly, in
paragraph (a), CEQ proposed to encourage rather than allow agencies to
include the information listed in paragraphs (a)(1) through (a)(4) on
agency websites or other information technology tools.
CEQ proposed to revise paragraph (a)(2) to encourage agencies to
post their environmental documents to their websites or other
information technology tools. Finally, CEQ proposed edits to paragraph
(b), which promotes interagency coordination of environmental program
websites and shared databases, to provide agencies with additional
flexibility and clarify that the section is not limited to the listed
technology.
One commenter opposed CEQ's proposed requirement for agencies to
provide a list of EAs and EISs that are in development and complete
because the regulations already require publication of the NOI, draft
EIS, final EIS, and ROD; require completed EISs to be publicly
accessible via EPA's EIS database; encourage publication of draft EAs;
and require publication of FONSIs. Combined with CEQ's proposed
requirements for notification in Sec. 1501.9(d)(2), the commenter
asserted the requirement to post a list of EAs and EISs is redundant
and adds another administrative burden on agencies.
CEQ makes the changes as proposed, including the requirement for
agencies to provide a list of EAs and EISs that are in development and
complete. During the rulemaking process, CEQ heard from multiple
members of the public that it can be challenging to identify what NEPA
reviews are active within an agency. CEQ considers the requirement to
maintain a website or other electronic listing of EAs and EISs to be an
important method of transparency that provides easily accessible
information to the public. CEQ notes that the provision does not
require agencies to publish the documents themselves, rather, it only
requires a list of documents that are in development or completed.
Agencies already routinely consolidate this type of information and can
cross-reference to other repositories, such as the Federal Register or
EPA's EIS database, on the agency website in order to reduce or avoid
duplication. Agencies have discretion to determine when a NEPA review
is sufficiently in development to list it on its website, and this
provision does not require agencies to post publicly pre-decisional or
deliberative information, including non-public information that an
agency is working on an environmental document.
Regarding the proposal to encourage, rather than allow, agencies to
include the information listed in paragraphs (a)(1) through (a)(4), one
commenter asked CEQ to go further and make the listed items a
requirement. CEQ declines to require agencies to include this
information, but strongly encourages them to do so.
J. Revisions to Definitions (Part 1508)
In Sec. 1508.1, CEQ proposed revisions to the definitions of
``categorical exclusion,'' ``cooperating agency,''
[[Page 35537]]
``effects'' or ``impacts,'' ``environmental assessment,''
``environmental document,'' ``environmental impact statement,''
``finding of no significant impact,'' ``human environment,'' ``lead
agency,'' ``major Federal action,'' ``mitigation,'' ``notice of
intent,'' ``page,'' ``scope,'' and ``tiering.'' CEQ proposed to add
definitions for ``environmental justice,'' ``environmentally preferable
alternative,'' ``extraordinary circumstances,'' ``joint lead agency,''
``participating Federal agency,'' ``programmatic environmental
document,'' and ``significant effects.''
CEQ did not propose substantive edits to any other definitions, but
proposed to redesignate most of the paragraphs to keep the list of
terms in alphabetical order. CEQ invited comment on whether it should
modify the remaining definitions or define additional terms.
Multiple commenters requested that CEQ add other definitions or
edit existing definitions where no changes were proposed. Commenters
requested that CEQ define a number of additional terms including
``unresolve conflicts,'' ``Tribal consultation,'' ``final action,''
``monitoring,'' ``environmental design arts,'' ``reasonably available
for inspection,'' ``substantive comments,'' ``earliest reasonable
time,'' and ``issues.'' One commenter requested additional modification
to the definition of ``publish'' and ``publication'' to encourage
agencies to inform as broad an audience as possible. CEQ declines to
make these changes in the final rule and discusses the rationale for
not making these changes in the Phase 2 Response to Comments as well as
in other sections of the preamble. CEQ is adding definitions for
several additional terms and modifying definitions contained in the
proposed rule as explained below.
1. Applicant (Sec. 1508.1(c))
CEQ adds a definition of ``applicant'' to Sec. 1508.1(c). CEQ
defines this term as a non-Federal entity that seeks an action by a
Federal agency and clarifies that this term is inclusive of project
sponsors. The CEQ regulations have long used the term ``applicant'' as
well as ``non-Federal entity'' and ``project sponsor.'' The recent NEPA
amendments also use both terms interchangeably. Because applicants can
include project sponsors, as well as non-Federal entities that are
seeking agency action for other activities that are not ordinarily
referred to as projects, CEQ is electing to use the term ``applicants''
throughout these regulations. Therefore, for consistency and clarity,
CEQ revises the regulations to use this term consistently throughout,
replacing references to ``non-Federal entity'' and ``project sponsor''
with ``applicant.''
2. Categorical Exclusion (Sec. 1508.1(e))
CEQ proposed to modify the definition of ``categorical exclusion''
in proposed paragraph (d) to add a cross reference to proposed Sec.
1501.4(c), in which CEQ proposed to establish a new way for agencies to
establish CEs. CEQ also proposed minor grammatical edits to change
``the agency'' to ``an agency'' and ``normally do not'' to ``normally
does not.''
A number of commenters expressed opposition to the existing term
``normally'' in the definition of ``categorical exclusion,'' which CEQ
did not propose to change, and asked that the final rule clarify the
meaning of the term. Commenters opposed to the term ``normally''
asserted it makes the standard for establishing a CE insufficiently
rigorous. Other commenters specifically asked that the final rule
specify that ``normally'' means ``in the absence of extraordinary
circumstances,'' and that an agency cannot establish a CE if some
actions will have significant adverse effects but will nonetheless be
approved under the CE.
CEQ revises the definition of ``categorical exclusion'' as proposed
in the final rule at Sec. 1508.1(e) because it is consistent with
section 111(1) of NEPA, which defines a CE in part as ``a category of
actions that a Federal agency has determined normally does not
significantly affect the quality of the human environment.'' 42 U.S.C.
4336e(1) (emphasis added). CEQ has long used the term ``normally'' to
mean in the absence of extraordinary circumstances,\117\ and CEQ added
``normally'' in the definition of ``categorical exclusion'' in the 2020
rule for this reason.\118\ Agency-established CEs are not exemptions
from the requirement of section 102(2)(C) of NEPA that an agency
prepare an EIS before taking a major Federal action significantly
affecting the environment. 42 U.S.C. 4332(2)(C). Instead, CEs are a
mechanism for complying with this requirement for actions of a kind the
agency has determined will not normally have significant effects with
the extraordinary circumstances applicable to a CE serving to identify
actions of the kind covered by the CE that could nonetheless have
significant effects and therefore require additional analysis pursuant
to the documentation requirement of Sec. 1501.4(b)(1) or through an EA
or EIS. Therefore, when developing a CE to identify categories of
actions that will not normally have significant effects, an agency must
also provide for the consideration of extraordinary circumstances to
identify when a specific action that falls within the category is not
of the normal variety that the agency has already determined will not
have significant effects and, therefore, requires further analysis.
---------------------------------------------------------------------------
\117\ See, e.g., CEQ, CE Guidance, supra note 10, at 2
(``Extraordinary circumstances are factors or circumstances in which
a normally excluded action may have a significant environmental
effect that then requires further analysis in an environmental
assessment (EA) or an environmental impact statement (EIS).'').
\118\ See CEQ, 2020 Final Rule, supra note 39, at 43342 (``CEQ
proposed to revise the definition of `categorical exclusion' in
paragraph (d) by inserting `normally' to clarify that there may be
situations where an action may have significant effects on account
of extraordinary circumstances.'').
---------------------------------------------------------------------------
3. Communities With Environmental Justice Concerns (Sec. 1508.1(f))
CEQ did not propose a specific definition of ``communities with
environmental justice concerns'' but invited comment on whether the
final rule should define the term, and if so, how. CEQ explained in the
proposed rule that it intended the phrase to mean communities that do
not experience environmental justice as defined in proposed Sec.
1508.1(k) (88 FR 49960).
Multiple commenters recommended the final rule define ``communities
with environmental justice concerns.'' Some commenters recommended CEQ
define it as ``communities that do not experience environmental justice
as described in Sec. 1508.1(k).'' Another commenter suggested the
definition of ``environmental justice'' was ``politicized'' and
therefore referring to Sec. 1508.1(k) would do little to add clarity.
One commenter asserted that CEQ's intended meaning would burden
communities with raising concerns rather than a definition with
``objective measures of adverse health and environmental effects and
disproportionate impacts that warrant alternatives analysis.''
Numerous commenters requested the final rule include a specific
definition because it would provide consistency and clarity to Federal
agencies on how they should assess environmental justice impacts and
how they should define communities with environmental justice concerns.
Commenters also asserted that including a definition is important
because the phrase is used frequently in the proposed rule. Many
commenters also requested that CEQ provide additional guidance on how
to identify communities with environmental justice concerns, and some
specifically asserted that a definition will only be beneficial if
there is additional guidance that includes
[[Page 35538]]
robust public engagement with environmental justice stakeholders. Some
commenters provided specific language for consideration, which CEQ
describes in the Phase 2 Response to Comments.
Some commenters asserted that the final rule does not need a
definition, and one commenter suggested that the regulations already
account for such groups.
After considering the comments, CEQ agrees that a definition would
help provide consistency and clarity for Federal agencies and adds one
at Sec. 1508.1(f). CEQ defines ``communities with environmental
justice concerns'' to mean communities ``that may not experience
environmental justice as defined . . . in Sec. 1508.1(m).'' The
definition also indicates that agencies may use available screening
tools, as appropriate to their activities and programs, to assist them
in identifying these communities and includes two examples of existing
tools that agencies could use: the Climate and Economic Justice
Screening Tool and the EJScreen Tool.\119\ The definition also
clarifies that agencies have flexibility to develop procedures for the
identification of such communities in their agency NEPA procedures. CEQ
considers the definition provided in paragraph (f) that connects the
definition of ``communities with environmental justice concerns'' with
the definition of ``environmental justice,'' alongside an indication
that agencies may use available screening tools to assist them, to
strike the right balance between providing additional guidance to
agencies and recognizing that agencies should have flexibility to
identify communities with environmental justice concerns in light of
the unique circumstances associated with each action.
---------------------------------------------------------------------------
\119\ CEQ, Explore the Map, Climate and Economic Justice
Screening Tool, https://screeningtool.geoplatform.gov/; EPA,
EJScreen: Environmental Justice Screening and Mapping Tool, https://www.epa.gov/ejscreen.
---------------------------------------------------------------------------
CEQ encourages agencies to make use of all available tools and
resources in identifying communities with environmental justice
concerns. CEQ notes that this definition is not intended to make such
communities self-identify; it is incumbent on the agencies to
proactively identify such communities. While many agencies have
experience in doing so, CEQ anticipates that agencies will develop more
expertise over time, which is why CEQ encourages agencies to consider
further defining their methodology for identifying communities with
environmental justice concerns in their agency NEPA procedures. CEQ
also may provide guidance to agencies in the future as tools and
methodologies for identification of communities with environmental
justice concerns develop.
4. Cooperating Agency (Sec. 1508.1(g))
In proposed paragraph (d) of Sec. 1508.1, CEQ proposed to revise
the definition of ``cooperating agency'' for clarity and consistency
with the definition of ``cooperating agency'' in sections 111(2) of and
107(a)(3) of NEPA, which provides that a lead agency may designate as a
cooperating agency ``any Federal, State, Tribal, or local agency that
has jurisdiction by law or special expertise with respect to any
environmental impact involved in a proposal.'' See 42 U.S.C.
4336a(a)(3), 4336e(2).
One commenter requested CEQ modify the definition to be more
inclusive of State and local governments and Tribal entities by
allowing them to serve as cooperating agencies when there are potential
impacts in their communities or jurisdictions, and they are ``involved
in a proposal.'' Another commenter requested CEQ add a specific
exclusion of non-governmental organizations or quasi-governmental
organizations from the definition.
CEQ declines to expand the definition of ``cooperating agency'' to
include agencies ``involved in a proposal'' as this is overly broad.
Instead, CEQ finalizes the definition in Sec. 1508.1(g) consistent
with the proposal, which incorporates the language in section 107(a)(3)
of NEPA. See 42 U.S.C. 4336(a)(3). However, CEQ encourages agencies to
invite local governments and Tribes to participate as cooperating
agencies where they have special expertise about a proposed action and
its environmental effects. CEQ also declines to add the recommended
explicit exclusion of non-governmental organizations or quasi-
governmental organizations from the definition of ``cooperating
agency'' because the definition of ``cooperating agency'' sets forth
the entities that are eligible to serve as cooperating agencies, and
this does not include non-governmental organizations or quasi-
governmental organizations.
5. Effects or Impacts (Sec. 1508.1(i))
In proposed paragraph (g), CEQ proposed to make clarifying edits to
the definition of ``effects'' and to add and modernize examples.
Paragraph (g)(4) of 40 CFR 1508.1 (2022) listed common types of effects
that may arise during NEPA review. CEQ proposed to update the list to
add ``disproportionate and adverse effects on communities with
environmental justice concerns, whether direct, indirect, or
cumulative'' and ``climate change-related effects.'' For climate
change-related effects, CEQ proposed to clarify that these effects can
include both contributions to climate change from a proposed action and
its alternatives as well as the potential effects of climate change on
the proposed action and its alternatives. CEQ proposed these changes to
update the definition to include effects that have been an important
part of NEPA analysis for more than a decade and will continue to be
relevant, consistent with best available science and NEPA's
requirements. Also, CEQ proposed these changes in response to comments
received during the Phase 1 rulemaking that the definition of
``effects'' or ``impacts'' should explicitly address environmental
justice and climate change.\120\
---------------------------------------------------------------------------
\120\ CEQ, Phase 1 Response to Comments, supra note 52, at 87,
99.
---------------------------------------------------------------------------
CEQ received a variety of comments on the proposed definition of
``effects'' or ``impacts.'' Some commenters supported the proposed
definition generally, and specifically supported the retention of the
changes made in the Phase 1 rulemaking to include direct, indirect, and
cumulative effects in the definition.
Some commenters requested CEQ add additional examples of effects,
including vandalism, destruction of cultural resources, and adverse
effects to resources crucial to the exercise of Tribal Nations'
reserved rights or the habitat such resources depend on for any part of
their lifecycle.
Some commenters characterized the proposed definition of
``effects'' as an attempt to inappropriately broaden the definition,
contravene NEPA, and invite litigation, delays, and complexity. These
commenters primarily focused on the additions of environmental justice
and climate change into proposed paragraph (g)(4), taking issue with
CEQ codifying concepts that have previously only been included in
guidance documents and Executive orders. One commenter generally
described the proposed changes to the definition of ``effects'' as
broadening the non-statutory definition of effects and asserted that it
is at odds with NEPA, going beyond what the statute authorizes or
requires. They also asserted the proposed changes have nothing to do
with the mission of most agencies.
CEQ adds the proposed examples in Sec. 1501.8(i)(4) of the final
rule, and also adds ``effects on Tribal resources'' in response to
commenters' suggestions. CEQ also revises the last sentence of the
paragraph to substitute ``adverse'' for its
[[Page 35539]]
synonym ``detrimental'' before ``effects,'' for consistency with the
usage of the phrase ``adverse effects'' in other provisions in the
regulations. CEQ declines to add the other proposed examples as they
are overly specific. CEQ notes that this paragraph is a non-exhaustive
list of examples, and that effects vary widely depending on the nature
and scope of an agency action. CEQ considers it irrelevant to this
rulemaking whether environmental effects, including climate-related and
environmental justice effects, relate to an agency's mission. The
purpose of NEPA is for agency decision makers to consider environmental
effects in their decision making regardless of the agency's mission or
purpose.
CEQ acknowledges that the term ``effects'' is not statutorily
defined. A definition of ``effects,'' however, has been a part of CEQ's
regulations since 1978, which included direct, indirect, and cumulative
effects, see 40 CFR 1508.8 (2019), and which CEQ restored to the
regulations in its Phase 1 rulemaking. Including explicit references to
``climate change-related effects'' and ``disproportionate and adverse
effects on communities with environmental justice concerns'' as
examples of effects is consistent with that definition of ``effects,''
and the approach the CEQ regulations have taken since 1978 of
identifying examples of categories of effects that fall within the
regulation's definition of ``effects.'' See 40 CFR 1508.1(g)(1) (2020);
40 CFR 1508.8 (2019). The addition of these new examples to the
regulatory text provides further specificity consistent with the
statutory text and do not expand the scope of the definition of
``effects.'' For example, section 2 of NEPA, 42 U.S.C. 4321, notes that
in enacting NEPA Congress declared a national policy, among other
things, ``to promote efforts which will prevent or eliminate damage to
the environment and biosphere'' (emphasis added). Section 102 of NEPA,
for example, directs the ``Federal Government to use all practical
means'' to ensure ``for all Americans safe, healthful, productive, and
esthetically and culturally pleasing surroundings,'' and that
``Congress recognizes that each person should enjoy a healthful
environment.'' 42 U.S.C. 4331(b) and (c) (emphasis added). And as
section 102(2)(C)(i) of NEPA also notes, an agency's NEPA analysis must
address the ``reasonably foreseeable adverse environmental effects'' of
the proposed action,which has long been interpreted in CEQ's
regulations (and affirmed by courts) to include direct, indirect, and
cumulative effects. 42 U.S.C. 4332(2)(C)(ii). As a result, expressly
identifying climate change, effects to communities with environmental
justice concerns, and similar considerations simply draws attention to
various categories of effects that already merit consideration.
A commenter recommended CEQ clarify that agencies focus cumulative
effects analyses on ``significant'' cumulative effects to improve
efficiency. The commenter also asked CEQ to recognize that a
qualitative analysis is sufficient when describing potential cumulative
effects. CEQ has determined not to include these suggestions in the
regulatory definition because they are overly specific and prescriptive
and notes that CEQ has issued guidance on cumulative effects that
address these issues.
One commenter asserted that ``effects of the proposed agency
action'' in section 102(2)(C) of NEPA cannot be read to include effects
that are totally unrelated to the proposed agency action and therefore
inclusion of cumulative effects in the definition of ``effects'' is
precatory and irrelevant to the legal sufficiency of an EIS.
Some commenters asserted that the amendments to NEPA prohibit
consideration of cumulative effects because they do not demonstrate a
reasonably close causal relationship, and stated that Congress
intentionally codified ``reasonably foreseeable'' effects rather than
``cumulative'' or ``aggregate'' effects and urged CEQ to adopt language
consistent with the statutory amendments.
CEQ disagrees with the commenters' assertions. The first sentence
of the definition of ``effects'' is clear--effects must be reasonably
foreseeable. Direct, indirect, and cumulative effects are categories of
reasonably foreseeable effects. Therefore, CEQ declines to make changes
to the definition to remove ``cumulative'' from the types of effects.
Some commenters requested that CEQ restore the definition of
``effects'' from the 2020 rule, in particular emphasizing the
restoration of ``reasonably close causal relationship to the proposed
action,'' which CEQ removed in the Phase 1 rulemaking. CEQ declines to
restore the 2020 definition for the reasons discussed in the Phase 1
rulemaking, the Phase 1 Response to Comments, and the Phase 2 Response
to Comments. CEQ also notes that Congress did not include this language
in the 2023 NEPA amendments, but instead used the phrase ``reasonably
foreseeable effects.''
CEQ also proposed minor, non-substantive edits to paragraph (g)(3)
regarding cumulative effects. Consistent with CEQ's proposal to ensure
``significant'' only modify ``effects,'' CEQ proposed to revise the
phrase to read ``actions with individually minor but collectively
significant effects.'' A commenter on the Phase 1 rulemaking had also
noted that the word ``actions'' should be ``effects.'' CEQ did not
receive any comments specific to this proposed change and makes it in
the final rule in Sec. 1508.1(i)(3).
6. Environmental Assessment (Sec. 1508.1(j))
CEQ proposed to update the definition of ``environmental
assessment'' in proposed paragraph (h) for consistency with sections
106(b)(2) and 111(4) of NEPA, proposed Sec. 1501.5, and longstanding
agency practice. See 42 U.S.C. 4336(b)(2), 4336e(4). CEQ proposed to
strike ``prepared by a Federal agency'' and change it to ``for which a
Federal agency is responsible'' for consistency with section 107(f) of
NEPA and Sec. 1506.5, which allow a project sponsor (following agency
issuance of procedures) or agency-directed contractor, respectively, to
prepare an EA but requires that the agency take responsibility for the
accuracy of its contents irrespective of who prepares it. See 42 U.S.C.
4336a(f).
To improve readability, CEQ proposed to strike ``to aid an agency's
compliance with the Act'' and replace it with text from Sec. 1501.5
clarifying that an agency prepares an EA when a proposed action is not
likely to have a significant effect or the significance of the effects
is unknown. CEQ also proposed to insert additional language to clarify
that an EA is ``used to support an agency's'' determination of whether
to prepare an EIS, add a parenthetical cross reference to part 1502,
and make the cross reference to the provision on FONSIs a parenthetical
to match. CEQ noted in the proposed rule that the proposed changes
would not alter the intention that an EA is used to support an agency's
determination whether to prepare an EIS (part 1502) or issue a FONSI
(Sec. 1501.6).
One commenter requested that the definition of ``environmental
assessment'' reference the requirements of an EA with a mitigated FONSI
and clarify that an agency may incorporate mitigation to reach a FONSI
determination. CEQ revises the definition of ``environmental
assessment'' as proposed in Sec. 1508.1(j). CEQ declines to make
additional edits to address mitigated FONSIs because the definition
already cross-references to Sec. 1501.6, which addresses mitigated
FONSIs.
[[Page 35540]]
7. Environmental Document (Sec. 1508.1(k))
CEQ proposed to add ``record of decision'' to the definition of
``environmental document'' in proposed paragraph (i) for clarity. CEQ
also proposed to add a ``documented categorical exclusion
determination'' to the definition to reflect the longstanding agency
practice of documenting some CE determinations.
A few commenters opposed the proposed addition of a documented CE
determination to the definition. One commenter opposed the definition
stating that it is inconsistent with the definition of ``environmental
document'' in section 111 of NEPA. Another commenter opposed the change
asserting some of the regulatory requirements for environmental
documents should only apply to EAs and EISs, and that the proposed
definition further obscures the distinction between a CE compared to an
EA or EIS. A third commenter requested confirmation that undocumented
CEs are excluded from the definition and also generally opposed the
inclusion of CEs in the definition of ``environmental document.''
CEQ makes the changes as proposed to the definition of
``environmental document'' in Sec. 1508.1(k). This change is
consistent with the changes to Sec. Sec. 1501.4 and 1507.3 that
reference CE determinations. Therefore, for clarity and efficiency, CEQ
is incorporating documented CE determinations into the definition of
``environmental document.'' As CEQ acknowledged in its proposed rule,
CEQ intentionally proposed a broader definition of ``environmental
document'' than the definition in the NEPA statute because the CEQ
regulations have long defined this term more broadly for the
regulation's purposes, and narrowing the definition in the regulations
would require substantial further conforming revisions that could
create additional uncertainty and would disrupt existing practices. In
developing the proposed and final rule, CEQ reviewed each use of the
term to ensure its definition is appropriate as well as consistent with
the NEPA statute. CEQ is unclear how this definition ``obscures the
distinction'' between CEs and EAs or EISs, and therefore declines to
make any changes in response to this comment. Lastly, CEQ agrees with
the commenter that this would exclude undocumented CE determinations
but declines to remove documented CE determinations as discussed
earlier in this section.
8. Environmental Impact Statement (Sec. 1508.1(l))
CEQ proposed to change ``as required'' to ``that is required'' in
the definition of ``environmental impact statement'' in proposed
paragraph (j) for consistency with the definition of ``environmental
impact statement'' in section 111(6) of NEPA. See 42 U.S.C. 4336e(6).
CEQ did not receive comments on this proposed change. CEQ makes this
change in the final rule in Sec. 1508.1(l).
9. Environmental Justice (Sec. 1508.1(m))
CEQ proposed to add a new definition of ``environmental justice''
at proposed paragraph (k) to define ``environmental justice'' as the
just treatment and meaningful involvement of all people so that they
are fully protected from disproportionate and adverse human health and
environmental effects and hazards, and have equitable access to a
healthy, sustainable, and resilient environment. In defining
``environmental justice,'' CEQ proposed to use the phrase ``cumulative
impacts,'' rather than the phrase ``cumulative effects,'' as used
elsewhere in the proposed regulations because the phrase ``cumulative
impacts'' has a meaning in the context of environmental justice
relating to the aggregate effect of multiple stressors and exposures on
a person, community, or population. See, e.g., Environmental Protection
Agency, Cumulative Impacts Research: Recommendations for EPA's Office
of Research and Development (2022). CEQ explained in the proposed rule
that it views the evolving science on cumulative impacts as
sufficiently distinct from the general meaning of cumulative effects
under the NEPA regulations such that using a different term could be
helpful to agencies and the public. CEQ invited comment on this
approach.
Multiple commenters expressed support for the proposed definition,
with many saying the language is clear and comprehensive and others
welcoming the inclusion of a definition, saying it is long overdue.
Some commenters expressed support for specific components of the
definition, such as the inclusion of Tribal affiliation. Numerous
commenters suggested specific revisions to the definition or asked that
the final rule include additional elements, which CEQ discusses in the
Phase 2 Response to Comments.
Some commenters supported use of the phrase ``cumulative impacts''
in the definition and CEQ's rationale for doing so. One commenter
asserted that ``cumulative impacts'' is a newly introduced concept and
urged CEQ to clarify its meaning, expressing concern that it is open-
ended and could result in agencies inaccurately interpreting the term
to call for an unnecessarily expansive historical baseline in the
analysis that could slow or discourage development or require projects
to mitigate historical environmental burdens that go beyond the impacts
of a proposed project. One commenter requested that CEQ add a separate
definition for ``cumulative impacts'' as it is used in the definition
of ``environmental justice'' to distinguish it from ``cumulative
effects.''
Multiple commenters opposed the proposed definition of
``environmental justice'' for a variety of reasons. Commenters asserted
that it was subjective, vague, difficult to implement, an impossibly
high standard, politically motivated, inconsistent with Sec.
1502.16(b), unlawful and not supported by statute, vulnerable to legal
challenges, could open the door to endless project delays, and changes
NEPA procedural requirements to achieve substantive goals.
In the final rule, CEQ adds a definition of ``environmental
justice'' in Sec. 1508.1(m) consistent with the proposal.
Consideration of environmental justice is within the scope of NEPA's
purpose to provide for the social, economic, and other requirements of
present and future generations and allowing for all Americans to
participate in a wide sharing of life's amenities. See 42 U.S.C. 4331.
NEPA also recognizes that each person should have the opportunity to
enjoy a healthy environment. 42 U.S.C. 4331. Consideration of
environmental justice also informs an agency's analysis of reasonably
foreseeable effects. Agencies have decades of experience integrating
consideration of environmental justice in their NEPA reviews and
incorporating a definition of ``environmental justice'' into the
regulations will provide additional clarity and consistency as agencies
continue to analyze environmental justice in environmental documents,
as they have for many years. The definition added to the regulations is
consistent with longstanding agency practice evaluating potential
effects to communities that experience disproportionate and adverse
human health and environmental effects and ensuring meaningful
engagement with communities affected by proposed actions. The
definition is also consistent with the definition of ``environmental
[[Page 35541]]
justice'' in section 2(b) of E.O. 14096.\121\ CEQ declines to define
the phrase ``cumulative impacts.'' As noted in the proposed rule,
``cumulative impacts'' has a meaning in the context of environmental
justice relating to the aggregate effect of multiple stressors and
exposures on a person, community, or population. The science of
``cumulative impacts'' is an evolving field, and CEQ has determined
that it is premature and inappropriately limiting to establish a
regulatory definition of the phrase at this time. CEQ will consider
whether guidance on cumulative impacts would assist agencies conducting
environmental reviews.
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\121\ See E.O. 14096, supra note 22, at 25253.
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Some commenters asked CEQ to provide clearer direction and guidance
on how to apply the definition and consideration of environmental
justice to improve consistency and clarity amongst Federal agencies.
CEQ will consider what additional guidance may be necessary.
10. Environmentally Preferable Alternative (Sec. 1508.1(n))
CEQ proposed to add a new definition of ``environmentally
preferable alternative'' at Sec. 1508.1(l), a concept that has been in
the regulations since 1978, and define it as the alternative or
alternatives that will best promote the national environmental policy
in section 101 of NEPA. CEQ based its proposed definition on CEQ's
Forty Questions guidance that was issued in 1981 and has remained an
important resource for agencies since that time.\122\
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\122\ CEQ, Forty Questions, supra note 5, at 6.
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Some commenters expressed general support for the proposed
definition. Others expressed support and suggested changes, such as
incorporating the phrases ``reasonable alternative'' and ``economically
and technically feasible.'' Other commenters opposed the proposed
definition. Multiple commenters asserted the definition conflicts with
the mandates of section 101 of NEPA and asserted that because section
101 is about striking a balance, the environmentally preferable
alternative should be defined as the alternative that best strikes a
balance. Another commenter asserted the proposed definition is at odds
with the statutory language of NEPA arguing that agencies must only
consider alternatives that are technically and economically feasible
and asserting that the environmentally preferable alternative may not
always be technically and economically feasible.
CEQ adds the definition of ``environmentally preferable
alternative'' in Sec. 1508.1(n) as proposed. As CEQ has clarified in
Sec. 1502.14(f) and in the discussion in section II.D.9, agencies
identify the environmentally preferable alternative amongst the
alternatives considered in the EIS, which are the proposed action, no
action, and reasonable alternatives. Therefore, the definition of
``environmentally preferable alternative'' does not require agencies to
consider alternatives beyond those already identified for
consideration. CEQ disagrees that it is necessary to include text
indicating that the environmentally preferable alternative must be a
reasonable alternative, because agencies select the environmentally
preferable alternative from the alternatives analyzed in the EIS, which
include the proposed action, no action, and reasonable alternatives,
which is defined as a range of alternatives that are technically and
economically feasible, and meet the purpose and need for the proposed
action. CEQ also disagrees that the environmentally preferable
alternative should be defined as the alternative that best balances
competing considerations. While balance is an important part of NEPA,
identifying the environmentally preferable alternative provides
information to decision makers and the public, and is a longstanding
part of the NEPA process. Agencies are not required to adopt the
environmentally preferred alternative as its final decision.
Additionally, CEQ disagrees that the definition is at odds with section
101 of NEPA because that section is incorporated into the definition.
11. Extraordinary Circumstances (Sec. 1508.1(o))
CEQ proposed to add a definition of ``extraordinary circumstances''
in proposed paragraph (m). While the 1978 regulations explained the
meaning of extraordinary circumstances as part of the definition of
``categorical exclusion'' at 40 CFR 1508.4 (2019), which the 2020 rule
moved to 40 CFR 1501.4(b) (describing how to apply extraordinary
circumstances when considering use of a CE) and 40 CFR 1507.3(e)(2)(ii)
(requiring agencies to establish extraordinary circumstances for CEs in
their procedures),\123\ CEQ proposed to create a standalone definition
to improve clarity when this term is used throughout the rule.
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\123\ CEQ, 2020 Final Rule, supra note 39, at 43342-43.
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CEQ also proposed to add several examples of extraordinary
circumstances to help agencies and the public understand common
situations that agencies may consider in determining whether an action
normally covered by a CE falls outside the category of actions the
agency has determined will not have significant effects and, therefore,
additional analysis is required either under Sec. 1501.4(b), if the
agency can determine that it can rely on the CE notwithstanding the
presence of the extraordinary circumstance, or through an EA or EIS.
The proposed examples included effects on sensitive environmental
resources, disproportionate and adverse effects on communities with
environmental justice concerns, effects associated with climate change,
and effects on historic properties or cultural resources. This list of
examples is not exclusive, and agencies continue to have the discretion
to identify extraordinary circumstances in their NEPA implementing
procedures, consistent with Sec. 1507.3, as well as through the new
mechanism to establish CEs in Sec. 1501.4(c), that are specific and
appropriate to their particular actions and CEs.
Multiple commenters expressed general support for the proposed
definition of ``extraordinary circumstances.'' A few commenters
specifically supported the inclusion of the examples of extraordinary
circumstances, including the references to climate change effects,
effects on sensitive environmental resources, effects on communities
with environmental justice concerns, and effects on historic properties
and cultural resources.
Other commenters criticized the proposed definition, asserting it
is too broad, vague, and subjective. Some commenters suggested the
proposed definition is contrary to the NEPA amendments allowing
expanded use of CEs. Other commenters specifically objected to the
examples, specifically effects on climate change and communities with
environmental justice concerns. One commenter stated the definition
could result in confusion because it does not provide clarity on what
agencies must evaluate. Similarly, another commenter stated this lack
of clarity provides too much freedom to agencies that may not properly
assess the effects of projects for the sake of efficiency.
CEQ adds a definition of ``extraordinary circumstances'' in Sec.
1508.1(o) as proposed with minor changes. In the final rule, CEQ uses
``means'' instead of ``are'' for consistency with other definitions in
Sec. 1508.1. The final rule removes ``environmental'' from
``significant
[[Page 35542]]
environmental effects'' because ``significant effects'' is a defined
term. CEQ also revises the examples of extraordinary circumstances to
use the same introductory text, ``substantial'' effects as discussed
further in this section. The operative language included in this
definition has been in the regulations since 1978, and agencies have
decades of experience analyzing proposed actions for extraordinary
circumstances. CEQ disagrees that the definition is inconsistent with
the recent amendments to NEPA because NEPA requires agencies to conduct
an EIS for actions that will have significant effects, and
extraordinary circumstances are the mechanism by which an agency
assesses whether a particular proposed action may have significant
effects and, therefore, that reliance on a CE is inappropriate. CEQ
disagrees that the definition is overbroad and considers it to provide
agencies the necessary flexibility to tailor their extraordinary
circumstances consistent with their programs and authorities. CEQ also
disagrees that the proposed definition impedes the ability of agencies
to use CEs or apply the provisions of NEPA regarding CEs. The
regulations have always required agencies to consider extraordinary
circumstances when applying a CE and providing a definition within the
regulations helps provide clarity to agencies, applicants, and the
public.
Multiple commenters asserted that the undefined phrase
``substantial effects'' used in the examples of extraordinary
circumstances may result in confusion, delays, and increased litigation
risk. Another commenter questioned why ``potential substantial
effects'' is used in the examples instead of ``reasonably foreseeable''
and ``significant effects.'' CEQ used this different phrasing because
the purpose of extraordinary circumstances is to screen an individual
action, which would normally be covered by a CE, for further analysis
to assess whether the action has reasonably foreseeable significant
effects requiring the preparation of an EIS. While an agency could
adopt extraordinary circumstances that directly implement the
reasonably foreseeable significant effects standard, doing so could
degrade the efficiency of applying CEs by requiring a more complex
analysis in applying its extraordinary circumstances that would
consider the context and intensity factors that govern an assessment of
significance. CEQ notes that many agencies have long used this phrase
in their lists of existing extraordinary circumstances and that this
approach has resulted in an efficient process for applying CEs.
Some commenters also questioned why the example for effects on
communities with environmental justice concerns or effects on historic
properties or cultural resources did not use the phrase ``substantial
effects.'' CEQ revises the examples to use ``substantial'' effects for
consistency with the other examples in Sec. 1508.1(o), although CEQ
notes that agencies have flexibility to design extraordinary
circumstances in a manner that makes sense for their programs.
12. Finding of No Significant Impact (Sec. 1508.1(q))
In the definition of ``finding of no significant impact'' proposed
in paragraph (o), CEQ proposed to insert ``agency's determination that
and'' after ``presenting the'' for consistency with the definition of
``finding of no significant impact'' in section 111(7) of NEPA, which
defines the term to mean ``a determination by a Federal agency that a
proposed agency action does not require the issuance of an
environmental impact statement.'' 42 U.S.C. 4336e(7).
One commenter suggested CEQ revise the definition to clarify that
the proposed action will not have a significant adverse effect on any
aspect of the human environment. CEQ revises the definition of
``finding of no significant impact'' in Sec. 1508.1(q) as proposed,
and CEQ declines to make additional changes to the definition. CEQ
agrees that the purpose of a FONSI is to document the determination
that the proposed action will not have a significant effect, which is
specified in Sec. 1501.3(d)(2)(i), and does not consider repeating
that proposition here necessary. Another commenter suggested the final
rule include a definition for mitigated FONSI, which CEQ declines to
add because the meaning of a mitigated FONSI is conveyed in Sec.
1501.6(a).
13. Human Environment or Environment (Sec. 1508.1(r))
CEQ proposed to clarify in proposed paragraph (p) that ``human
environment'' and ``environment'' are synonymous in the regulations
given that ``environment'' is the more commonly used term across the
regulations.
A few commenters expressed support for the use of ``human
environment'' and ``environment'' synonymously. A couple of commenters
asked for CEQ to define ``human environment'' and ``environment'' as
separate terms but did not include a rationale for doing so. One
commenter was supportive but requested that CEQ expand the definition
to explicitly include cultural and socio-economic conditions.
CEQ makes this change as proposed in the final rule at Sec.
1508.1(r). CEQ declines to explicitly reference cultural and socio-
economic conditions in the definition, because the definition cross-
references the definition of ``effects,'' which notes that effects
include ecological, aesthetic, historic, cultural, economic, social, or
health.
CEQ proposed a minor edit to ``human environment'' in Sec.
1508.1(p) to remove ``of Americans'' after ``present and future
generations.'' This minor edit improves consistency with section 101(a)
of NEPA, which speaks generally about the impact of people's ``activity
on the interrelations of all components of the natural environment''
and the need ``to create and maintain conditions under which [humans]
and nature can exist in productive harmony.'' 42 U.S.C. 4331(a).
One commenter opposed the removal of the phrase ``of Americans''
and disagreed with CEQ's characterization of the change as minor. CEQ
disagrees with the commenter's assertion and makes this change in the
final rule. In the 2020 rule, CEQ changed ``people'' to ``of
Americans,'' explaining that this change was made to be consistent with
section 101(a) of NEPA.\124\ However, CEQ has reconsidered that
explanation, which overlooks the context in which the phrase ``present
and future generations of Americans'' is used in section 101(a). That
paragraph of the Act refers to Americans at the end of the last
sentence after using the broader term ``man'' three times. ``Human
environment'' refers broadly to the interrelationship between people
and the environment. The phrase ``present and future generations of
Americans'' is used in a narrower context to ``fulfill the social,
economic, and other requirements of present and future generations of
Americans.'' 42 U.S.C. 4331(a). CEQ notes that it considers the removal
of the phrase ``of Americans'' in the definition of ``human
environment'' to be consistent with CEQ's determination to retain the
phrase in the first sentence of Sec. 1501.1(a). That sentence
specifically describes section 101(a) of NEPA and does not define the
undefined term ``human environment,'' which appears in NEPA section
102(2)(C). CEQ considers it appropriate to define ``human environment''
in consideration of the totality of section 101, rather than solely
based on the last phrase in section 101(a). A definition of
[[Page 35543]]
``human environment'' that is not limited by the phrase ``of
Americans'' is also consistent with the statutory exclusion in section
111(10)(b)(vi) of NEPA of activities or decisions with effects located
entirely outside of the jurisdiction of the United States from the
definition of ``major Federal action.'' This exclusion--consistent with
decades of agency practice--requires agencies to evaluate effects that
occur outside of U.S. jurisdiction as a component of the human
environment because it does not limit the definition of ``effects,''
but rather excludes a narrow category of activities from the definition
of ``major Federal action.'' 42 U.S.C. 4336e(10)(b)(vi).
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\124\ Id. at 43344-45.
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14. Joint Lead Agency (Sec. 1508.1(s))
CEQ proposed to add a definition for ``joint lead agency'' to mean
``a Federal, State, Tribal, or local agency designated pursuant to
Sec. 1501.7(c) that shares the responsibilities of the lead agency''
for preparing an EA or EIS. CEQ proposed the definition for consistency
with the usage of that term in section 107(a)(1)(B) of NEPA and Sec.
1501.7(b) and (c). See 42 U.S.C. 4336a(a)(1)(B).
One commenter expressed that NEPA establishes two categories of
joint lead agencies: Federal joint lead agencies and non-Federal joint
lead agencies. The commenter requested CEQ clarify this distinction in
the definition. CEQ declines to make the commenter's recommended
change. CEQ reviewed the use of the term in the regulations and
identified no circumstance where the term was used in a fashion that
required distinguishing between Federal joint lead agencies and non-
Federal joint lead agencies. Therefore, CEQ finalizes the definition of
``joint lead agency'' as proposed in Sec. 1508.1(s).
15. Lead Agency (Sec. 1508.1(u))
CEQ proposed in paragraph (s) to revise the definition of ``lead
agency'' as ``the Federal agency that proposes the agency action or is
designated pursuant to Sec. 1501.7(c) for preparing or having primary
responsibility.'' CEQ proposed this revision for consistency with the
definition of ``lead agency'' in section 111(9) of NEPA and to expand
the definition ``to also include EAs, consistent with longstanding
practice. CEQ did not receive any comments on its proposed revisions to
the definition of ``lead agency'' and finalizes the definition of
``lead agency'' as proposed in Sec. 1508.1(u). See 42 U.S.C. 4336e(9).
16. Major Federal Action (Sec. 1508.1(w))
CEQ proposed to revise the definition of ``major Federal action''
in proposed paragraph (u) to clarify the list of example activities or
decisions that meet the definition, and revise the list of exclusions
from the definition consistent with section 111(10) of NEPA. See 42
U.S.C. 4336e(10). First, CEQ proposed to revise the introductory
paragraph to change ``activity or decision'' to ``action that the
agency carrying out such action determines is'' and insert
``substantial'' before ``Federal control and responsibility'' and
delete ``subject to the following'' to align the text with the language
in section 111(10) of NEPA.
Some commenters requested the final rule provide further clarity
and specificity regarding ``substantial Federal control and
responsibility'' contending that this phrase is ambiguous and
confusing. Another commenter argued that Congress made a significant
change to the definition of ``major Federal action'' in section 111(10)
of NEPA in using the phrase ``substantial Federal control and
responsibility'' over the action the agency is carrying out, instead of
adopting the definition of ``major Federal action'' from the 1978
regulations, ``actions with effects which are potentially subject to
Federal control and responsibility'' or the 2020 regulations ``Federal
control and responsibility.'' This commenter argued the use of
``substantial'' by Congress further limits the definition of ``major
Federal action'' and therefore NEPA's applicability generally. Several
other commenters agreed with this premise and suggested the intention
of the NEPA amendments was to narrow the application of NEPA. Other
commenters asked CEQ to define the term ``substantial'' in the context
of the definition.
CEQ disagrees that ``substantial Federal control and
responsibility'' applies in a more limited manner than ``Federal
control and responsibility.'' Substantial modifies Federal control and
responsibility and indicates that a large amount, but not complete,
control and responsibility is required for an action to be a major
Federal action. This interpretation is consistent with Supreme Court
precedent interpreting the meaning of substantial in various statutes.
See, e.g., Ayestas v. Davis, 584 U.S., 28, 45 (2018); Life Technologies
Corp. v. Promega Corp., 580 U.S. 140, 145-46 (2017); Virginia v. Hicks,
539 U.S. 113, 119-20, 122-24 (2003). CEQ interprets substantial Federal
control and responsibility to mean the agency has a large amount of
control and responsibility over the action the agency is carrying out
but not complete control over the action or its effects. The phrase
``substantial Federal control and responsibility'' could, therefore, be
interpreted to capture a broader set of actions than the phrase in the
absence of the word ``substantial,'' because ``Federal control and
responsibility'' unqualified could be read to require complete control
and responsibility. Contrary to the commenters' assertion, the phrase
``substantial Federal control and responsibility'' does not require a
narrower scope for the term major Federal action than the phrase
``Federal control and responsibility.''
CEQ notes that the phrase ``substantial Federal control and
responsibility'' in section 111(10) applies to the actions an agency is
carrying out. 42 U.S.C. 4336e(10)(A). In most cases, agencies exercise
control and responsibility over the actions they carry out, unless
those actions are non-discretionary. CEQ declines to define
``substantial'' in the final rule but will consider whether to issue
guidance in the future and will assist agencies in evaluating
circumstances in which the agency carries out an action but lacks
complete control and responsibility for it.
CEQ revises the introductory paragraph of the definition of ``major
Federal action'' in Sec. 1508.1(w) as proposed because the text aligns
with the definition of ``major Federal action'' in section 111(10) of
NEPA. 42 U.S.C. 4336e(10). The determination of whether an activity or
decision is a major Federal action is a fact-specific analysis that
agencies have long engaged in, and they should continue to exercise
judgment as they evaluate the contexts in which they operate. The
regulations provide a list of example activities and decisions in Sec.
1508.1(w)(1) to assist agencies in making these determinations.
Second, CEQ proposed to reorder and revise the definition to first
list the examples of activities or decisions that may be included in
the definition of ``major Federal action'' before the exclusions. To
that end, CEQ proposed to move paragraph (q)(3) of 40 CFR 1508.1 (2020)
to proposed paragraph (u)(1), and revise ``tend to fall within one of
the following categories'' to read ``generally include.''
Several commenters opposed the proposed list of example activities
or decisions that meet the definition of ``major Federal action'' and
recommended the final rule retain only the exclusions set forth in
section 111(10) of NEPA. The commenters argued that these examples go
beyond the text of NEPA, subvert Congressional intent, and limit an
agency's ability to make case-by-case determinations.
[[Page 35544]]
Other commenters expressed support for the list of examples.
CEQ considered the range of comments on the definition of ``major
Federal action'' and determined that providing both examples of
activities or decisions that typically meet the definition of ``major
Federal action'' as well as exclusions from the definition strikes the
right balance to help agencies as they make case-by-case factual
determinations of whether an action qualifies as a major Federal action
and for consistency with section 111(10). See 42 U.S.C. 4336e(10). To
provide additionally clarity that this is a fact-specific, case-by-case
determination, CEQ moves paragraph (q)(3) of 40 CFR 1508.1 (2020) to
Sec. 1508.1(w)(1) in the final rule, revises it consistent with the
proposal, and adds an introductory clause, ``[e]xamples of'' before
``major Federal actions generally include'' to the beginning of the
paragraph to make clear that this is a list of example activities and
decisions that may meet the definition of ``major Federal action.''
Third, CEQ proposed to strike paragraph (q)(2) of 40 CFR 1508.1
(2020) and replace it with proposed paragraph (u)(1)(i) to include the
granting of authorizations such as permits, licenses, and rights-of
way. CEQ proposed to strike the examples in paragraph (q)(2) 40 CFR
1508.1 (2020) because the proposed example addresses regulated
activities, and the other examples are redundant to those listed in
proposed paragraphs (u)(1)(ii) through (u)(1)(vi). CEQ did not receive
any comments specific to this proposal. CEQ strikes paragraph (q)(2) of
40 CFR 1508.1 (2020) in the final rule and replaces it in Sec.
1508.1(w)(1)(i) with the language as proposed.
Fourth, CEQ proposed to redesignate paragraphs (q)(3)(i) through
(q)(3)(iv) of 40 CFR 1508.1 (2020) as proposed paragraphs (u)(1)(ii)
through (u)(1)(v). CEQ did not receive any comments specific to this
proposal. In the final rule, CEQ redesignates paragraphs (q)(3)(i)
through (q)(3)(iv) of 40 CFR 1508.1 (2020) as Sec. 1508.1(w)(3)(i)
through (w)(3)(iv), respectively.
Fifth, in paragraph (u)(1)(iv), CEQ proposed to change the phrase
``connected agency decisions'' to ``related agency decisions'' to
clarify that the concept in this paragraph is not meant to refer to
``connected actions'' as discussed in Sec. 1501.3. CEQ proposed this
as a non-substantive, clarifying change to avoid any confusion with
connected actions. CEQ did not receive specific comments on this
proposed change and revises this provision as proposed in Sec.
1508.1(w)(1)(iv).
Sixth, CEQ proposed to revise paragraph (u)(1)(v) to change
``approval of'' to ``carrying out'' specific projects to address
projects carried out directly by a Federal agency. CEQ proposed to
strike ``located in a defined geographic area'' from the example of
management activities; while this is merely an example, CEQ is
concerned it could be read as limiting. CEQ also proposed to strike the
sentence regarding permits and address them in the example in proposed
paragraph (u)(1)(i).
One commenter requested removal of the term ``carrying out,''
asserting that CEQ has not shown that carrying out construction
activities constitutes major Federal action. In the final rule, CEQ
retains the example in Sec. 1501.8(w)(1)(v) and adds ``or carrying
out'' after ``[a]pproval of'' rather than replacing it because the
phrase ``carrying out'' is consistent with section 111(10) of NEPA,
which includes the phrase ``the agency carrying out such action.'' 42
U.S.C. 4336e(10)(A). CEQ also adds ``agency'' before ``projects'' to
distinguish this example from non-Federal projects. Because this is a
list of examples and both approving or carrying out construction
projects can be major Federal actions, CEQ includes both in the final
rule. For example, an agency may approve construction of a Federal
facility and then contract out with another entity to actually carry
out that construction.
Seventh, CEQ proposed to add a new example in proposed paragraph
(u)(1)(vi) to improve clarity and ensure appropriate application of
NEPA by explaining when Federal financial assistance is a major Federal
action. Generally, actions to provide Federal financial assistance,
other than actions that provide only minimal Federal funding, are major
Federal actions so long as the Federal agency has authority and
discretion over the financial assistance in a manner that could address
environmental effects from the activities receiving the financial
assistance. In such circumstances, the agency has sufficient control
and responsibility over the use of the funds or the effects of the
action for the action providing financial assistance to constitute a
major Federal action consistent with the definition in section 111(10)
of NEPA. 42 U.S.C. 4336e(10)(A). This includes circumstances where the
agency could deny the financial assistance, in whole or in part, due to
environmental effects from the activity receiving the financial
assistance, or could impose conditions on the financial assistance that
could address the effects of such activity.
Several commenters contended that CEQ's proposal to include
financial assistance as an example of a major Federal action in
proposed paragraph (u)(1)(vi) is inconsistent with the statutory
definition of ``major Federal action'' in section 111(10)(B) of NEPA.
The commenters stated that the proposed language is overly broad and
could cover too many Federal loan or grant programs. One commenter
asserted that this language ``could cover virtually any Federal grant
or loan program, including ones that are not currently subject to
NEPA.'' Another commenter asserted that financial assistance should
never be considered a major Federal action.
CEQ disagrees that the examples of how an agency may exercise
``sufficient control and responsibility'' with regard to financial
assistance to meet the statutory definition of ``major Federal action''
are inconsistent with the statute. The language in paragraph (u)(1)(vi)
provides examples of where financial assistance meets the definition of
``major Federal action'' and is not covered by the exclusion of
``financial assistance where a Federal agency does not exercise
sufficient control and responsibility over the subsequent use of such
financial assistance or the effect of the action.'' 42 U.S.C.
4336e(10)(B)(iii).
CEQ adds the proposed examples in the final rule at Sec.
1508.1(w)(1)(vi) with an additional clause to incorporate the phrase
``more than a minimal amount'' into the example to avoid any confusion
about the relationship of the example to the exclusion in paragraph
(w)(2)(i)(A) and NEPA section 111(10)(B)(ii). CEQ also makes two
editorial corrections to add the missing word ``to'' after ``due'' and
repeat the subject ``authority to'' before ``impose conditions.''
Except in circumstances in which an agency provides minimal Federal
funding, where an agency has substantial control and responsibility
over a recipient's environmental effects or sufficient discretion to
consider the environmental effects when making decisions, the agency
must comply with NEPA. While an agency can appropriately tailor the
scope of its NEPA analysis to the environmental effects that it can
take into account in making its decision, the agency cannot exclude
such actions from NEPA review altogether.
CEQ disagrees with the assertion that the example broadens the
applicability of NEPA to financial assistance that is excluded by
section 111(10)(B)(ii) and Sec. 1508.1(w)(2)(iii). Rather, the example
describes circumstances in which an agency exercises sufficient control
or
[[Page 35545]]
responsibility over the use of financial assistance or the effect of
the action to fall outside the exception. In evaluating whether a
particular action qualifies as a major Federal action consistent with
this example and the exclusion in Sec. 1508.1(w)(2)(iii), agencies
should consider the specific circumstances and legal authorities
involved. As with any NEPA review, where an agency determines that an
action providing financial assistance constitutes a major Federal
action, the agency should scope the NEPA review in light of the
statutory and factual context presented.
Other commenters specifically questioned the inclusion of financial
assistance where the agency ``otherwise has sufficient control and
responsibility over the subsequent use of the financial assistance or
the effects of the activity for which the agency is providing the
financial assistance'' in the example. A commenter asserted that this
phrase's breadth and ambiguity could lead to litigation and recommended
narrowing this flexibility clause to apply only where the agency
``otherwise has authority to impose conditions on the receipt of the
financial assistance to address environmental effects.''
CEQ declines to make the commenters' proposed changes. The text the
commenter addresses reflects the exclusion in section 111(10)(B)(iii)
of NEPA. See 42 U.S.C. 4336e(10)(B)(iii). CEQ agrees that authority to
impose conditions to address environmental effects, along with
authority to deny in whole or in part assistance due to environmental
effects, would satisfy the statutory test, and those situations are
identified in the sentence immediately preceding the text that is the
focus of the comment. Describing these situations, along with the
remainder of Sec. 1508.1(w)(1)(vi), can assist agencies in evaluating
actions providing financial assistance, in light of the relevant
statutory authorities and factual context, to determine if such action
falls within the exclusion in section 111(10)(B)(iii) of NEPA and Sec.
1508.1(w)(2)(iii). In addition to reflecting the statutory exclusion,
this clause recognizes the varying degrees of control and
responsibility agencies have over a wide variety of financial
assistance programs, as well as the agencies' responsibility to
determine the proper scope of its NEPA review with regard to such
programs.
Eighth, CEQ proposed to replace the exclusions in paragraphs
(q)(1)(i) through (vi) of 40 CFR 1508.1 (2020) with the exclusions from
the definition of ``major Federal action'' codified in the definition
in section 111(10)(B) of NEPA. See 42 U.S.C. 4336e(10)(B). CEQ proposed
to include in proposed paragraph (u)(2)(i), (u)(2)(i)(A), and
(u)(2)(i)(B) the exclusion of non-Federal actions with no or minimal
funding; or with no or minimal Federal involvement where the agency
cannot control the outcome of the project consistent with section
111(10)(B)(i) of NEPA. CEQ proposed these exclusions to replace the
exclusion in 40 CFR 1508.1(q)(1)(vi) (2020), which CEQ proposed to
strike. CEQ also invited comment on whether it should add additional
provisions to the regulations to implement the ``minimal Federal
funding'' exclusion in proposed paragraph (u)(2)(i)(A), noting that
agencies currently evaluate the provision of minimal Federal funding
based on specific factual contexts. CEQ asked whether additional
procedures, including thresholds related to the amount or proportion of
Federal funding, could increase predictability while ensuring that
Federal agencies do not disregard effects to vital components of the
human environment, including the health of children and vulnerable
populations, drinking water, communities with environmental justice
concerns, and similar considerations.
CEQ received some comments on the exclusion for non-Federal actions
with no or minimal Federal involvement where the Federal agency cannot
control the outcome of the project, which mirrors the exclusion in
section 111(10)(B)(i)(II) of NEPA, and in response to the request for
comment. One commenter recommended against setting a threshold, given
the fact-specific nature of the inquiry. The commenter expressed
concern that setting a threshold for the amount or proportion of
Federal funding necessary for agency action to trigger NEPA would
undermine the statute's emphasis that it apply to the ``fullest extent
possible.'' The commenter further asserted that the 2023 NEPA
amendments, as clarified by CEQ's proposed regulations, are sufficient
to provide clarity on the scope of NEPA's application, and a threshold
amount is not necessary or useful.
Two commenters recommended that the regulations establish
thresholds for minimal Federal funding or direct agencies to establish
thresholds in their NEPA procedures, asserting that clear thresholds
will improve efficiency and reduce litigation risk. Two other
commenters supported establishing a threshold for minimum funding and
included suggestions for what that threshold should be. A couple of
commenters requested CEQ define ``minimum'' in the context of minimum
funding.
CEQ strikes 40 CFR 1508.1(q)(1)(vi) (2020) and adds this exclusion
in the final rule as proposed at Sec. 1508.1(w)(2)(i), (w)(2)(i)(A),
and (w)(2)(i)(B). CEQ has considered the broad range of suggestions to
thresholds it received but has not identified a threshold that would be
appropriate across the broad range of Federal programs or that would
address CEQ's concern about the health of children and vulnerable
populations, drinking water, communities with environmental justice
concerns, and similar circumstances. CEQ also notes that there is
limited case law as to what constitutes ``minimal Federal funding'' and
that the case law that exists does not define a clear threshold that
could be incorporated into the regulations. Therefore, agencies should
continue to evaluate whether funding is ``minimal'' based on the
specific factual context of the proposed action.
CEQ also adds the exclusion for non-Federal actions ``with no or
minimal Federal involvement where a Federal agency cannot control the
outcome of the project'' in Sec. 1508.1(w)(2)(i)(B) as proposed. This
provision reinforces the general rule that major Federal actions are
actions carried out by an agency, and not non-Federal actions, and that
a non-Federal action does not become a Federal action due to only
minimal Federal involvement. Note, this exclusion does not bear on
whether an action undertaken by a Federal agency, such as issuing a
regulatory authorization or deciding to provide funding assistance, is
a major Federal action, because in such circumstances the agency is
undertaking an action itself. There are, however, circumstances where
Federal involvement in a non-Federal action does not constitute an
action, for example, where an agency informally provides a non-Federal
party information that the non-Federal party considers in developing
the non-Federal action. The provision of the information may not
qualify as an agency action and the minimal Federal involvement would
not result in the non-Federal action being considered a Federal action.
Ninth, CEQ proposed to include the exclusion of funding assistance
solely in the form of general revenue sharing funds consistent with
section 111(10)(B)(ii) of NEPA in proposed paragraph (u)(2)(ii). See 42
U.S.C. 4336e(10)(B)(ii). CEQ proposed this exclusion to replace the
similar exclusion in 40 CFR 1508.1(q)(1)(v) (2020), which CEQ proposed
to strike. CEQ did not receive substantive comments on this proposed
revision. CEQ strikes 40 CFR 1508.1(q)(1)(v)
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(2020) and adds this exclusion in the final rule as proposed at Sec.
1508.1(w)(2)(ii).
Tenth, CEQ proposed to include the exclusion of loans, loan
guarantees, or other forms of financial assistance where a Federal
agency does not exercise sufficient control and responsibility over the
subsequent use of such financial assistance or the effects of the
action, consistent with section 111(10)(B)(iii) of NEPA, in proposed
paragraph (u)(2)(iii). See 42 U.S.C. 4336e(10)(B)(iii). CEQ did not
receive substantive comments on this proposed revision, although as
discussed above, CEQ did receive related comments on the example about
financial assistance added to paragraph (w)(1)(vi). CEQ adds this
exclusion in the final rule as proposed at Sec. 1508.1(w)(2)(iii).
Eleventh, CEQ proposed to include the exclusion of certain business
loan guarantees provided by the Small Business Administration,
consistent with section 111(10)(B)(iv) of NEPA, in proposed paragraph
(u)(2)(iv). See 42 U.S.C. 4336e(10)(B)(iv). CEQ proposed this exclusion
to replace the similar exclusion in 40 CFR 1508.1(q)(1)(vii) (2020),
which CEQ proposed to strike. In particular, CEQ proposed to strike the
example in 40 CFR 1508.1(q)(1)(vii) of farm ownership and operating
loan guarantees by the Farm Service Agency (FSA) pursuant to 7 U.S.C.
1925 and 1941 through 1949 because CEQ considered it best left to
agencies to identify exclusions from the definition of ``major Federal
action'' absent specific statutory authority like those for the Small
Business Administration loan guarantees.
Several commenters requested that CEQ retain the explicit exclusion
of FSA loans and loan guarantees from the definition of ``major Federal
action.'' These commenters contended that the loan amounts are low,
that activities funded do not require an agency permit, and that the
agency does not have sufficient control or authority over the use of
the funds. These commenters disagreed with CEQ's explanation that it is
best left to agencies to identify exclusions from the definition of
``major Federal action'' absent specific statutory authority like those
for the Small Business Administration (SBA) loan guarantees, arguing
that the FSA loans are clearly outside the statutory definition, and
that CEQ did not provide sufficient justification for not retaining the
explicit exclusion.
CEQ strikes 40 CFR 1508.1(q)(1)(vii) (2020) and adds this exclusion
in the final rule as proposed at Sec. 1508.1(w)(2)(iv). When Congress
amended NEPA to provide a definition of ``major Federal action'' in
section 111(10), it included an exclusion for one of the two loan
guarantee programs identified in 40 CFR 1508.1(q)(1)(vii) (2020),
excluding business loan guarantees provided by the Small Business
Administration, but not farm ownership and operating loan guarantees by
the FSA. 42 U.S.C. 4336e(10)(B)(iv). In light of Congress's action, CEQ
does not consider it appropriate to retain the exclusion for FSA loan
guarantees in the NEPA regulations. FSA, like other agencies that
administer loan and loan guarantee programs, should evaluate specific
actions providing loans and loan guarantees to determine if the action
falls within the exclusion in section 111(10) of NEPA and Sec.
1508.1(w)(2)(iii) and, if appropriate, could address the applicability
of this exclusion to this program in its NEPA procedures.
CEQ disagrees with the assertion that providing financial
assistance for a non-Federal action cannot constitute a major Federal
action. As discussed earlier, section 111(10)(B)(iii) of NEPA excludes
financial assistance ``where a Federal agency does not exercise
sufficient control and responsibility over the subsequent use of such
financial assistance or the effect of the action.'' 42 U.S.C.
4336e(10)(B)(iii). This limited exclusion is inconsistent with treating
actions providing financial assistance for non-Federal activities as
categorically excluded from the definition of ``major Federal action.''
One commenter suggested that if CEQ does not retain the explicit
exclusion for FSA loans and loan guarantees, CEQ should clearly explain
in the final rule that it understands that FSA loans and loan
guarantees are the types of loans and guarantees covered by proposed
paragraph (u)(1)(iv), and that no additional procedures are necessary
to apply proposed paragraph 1508.1(u)(1)(iv) to the FSA loans and loan
guarantees. CEQ declines to make these statements. FSA is in the best
position to determine whether its loans and loan guarantees meet the
requirements for the exclusion established in Sec. 1508.1 (w)(2)(iii).
FSA, like other agencies administering financial assistance programs,
may determine whether specific actions providing financial assistance
are major Federal actions or may address such programs in their NEPA
implementing procedures.
One commenter requested that CEQ explicitly indicate that farm
operations funded through FSA loans or subject to loan guarantees are
not excluded from the definition. Other commenters expressed support
for CEQ's proposed removal of the exclusion but requested further
guidance on when loans and loan guarantees are actions subject to
substantial Federal control and responsibility, citing FSA and
Department of Energy programs specifically.
CEQ disagrees with the commenter that farm operations by non-
Federal actors are major Federal actions if they are funded by FSA
loans or loan guarantees. Rather, the question that FSA, like other
agencies, will need to consider is whether FSA's action to provide a
loan or loan guarantee is a major Federal action in consideration of
the exclusion. FSA is in the best position to determine whether an
action or category of actions by the agency to provide loan or loan
guarantees involve a circumstance where the agency does not exercise
sufficient control and responsibility over the subsequent use of the
financial assistance or the effects and, therefore are excluded.
Finally, one commenter requested additional guidance regarding the
exclusion of SBA loans. While CEQ incorporates the statutory exclusion
of certain business loan guarantees provided by the Small Business
Administration (SBA) into Sec. 1508.1(w)(2)(iv), CEQ considers it best
left to SBA, which has expertise with the statutes it administers, to
determine the applicability of the exclusion to the specific programs
it administers.
Twelfth, CEQ proposed to move, without change, the exclusions in
paragraphs (q)(1)(iv), (q)(1)(i), and (q)(1)(ii) of 40 CFR 1508.1
(2020) to proposed paragraphs (u)(2)(v) through (u)(2)(vii),
respectively because section 111(10)(B)(v) through (vii) of NEPA
codified these exclusions verbatim. See 42 U.S.C. 4336e(10)(B)(v)-
(vii). Specifically, proposed paragraph (u)(2)(v) would exclude
bringing judicial or administrative civil or criminal enforcement
actions. Proposed paragraph (u)(2)(vi) would exclude extraterritorial
activities or decisions. Proposed paragraph (u)(2)(vii) would exclude
activities or decisions that are non-discretionary.
One commenter requested that CEQ expand the exclusion in proposed
in paragraph (u)(2)(v) to exclude from NEPA applicability all judicial
proceedings when an agency joins a lawsuit. CEQ declines to make this
revision in the final rule, which incorporates the statutory text and
is consistent with long-standing agency practice, but agrees with the
commenter that the exclusion encompasses an agency's decision to join a
lawsuit. In the final rule, CEQ moves, without
[[Page 35547]]
change, the exclusion for bringing judicial or administrative civil or
criminal enforcement actions in paragraph (q)(1)(iv) of 40 CFR 1508.1
(2020) to Sec. 1508.1(w)(2)(v).
A few commenters requested the final rule remove proposed paragraph
(u)(2)(vi), arguing that it impermissibly expands the scope of NEPA and
is inconsistent with the statute. CEQ declines to make this change as
the language in proposed paragraph (u)(2)(vi) aligns with the text of
section 111(10)(B)(vi) of NEPA, 42 U.S.C. 4336e(10)(B)(vi). In the
final rule, CEQ moves, without change, the exclusion for
extraterritorial activities or decisions, which refers to activities or
decisions with effects located entirely outside the jurisdiction of the
United States,\125\ from paragraph (q)(1)(i) of 40 CFR 1508.1 (2020) to
Sec. 1508.1(w)(2)(vi).\126\
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\125\ CEQ notes that the jurisdiction of the United States is
not limited to the United States' land territory. ``For purposes of
the presumption against extraterritoriality, the territorial
jurisdiction of the United States includes its land, internal
waters, territorial sea, the adjacent airspace, and other places
over which the United States has sovereignty or some measure of
legislative control.'' Restatement (Fourth) of Foreign Relations Law
Sec. 404 cmt. d (Am. Law Inst. 2019).
\126\ NEPA statutorily excludes from the definition of ``major
Federal action'' ``extraterritorial activities or decisions, which
means agency activities or decisions with effects located entirely
outside of the jurisdiction of the United States.'' 42 U.S.C.
4336e(10)(B)(vi). However, this exclusion does not change the scope
of environmental effects that agencies must assess or expand the set
of actions that are subject to NEPA review to extraterritorial
matters that do not have effects within the jurisdiction of the
United States.
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A few commenters supported the inclusion of proposed (u)(2)(ii)
asserting that CEQ rightfully excluded non-discretionary actions from
NEPA, as NEPA is designed to help agencies make better decisions. In
the final rule, CEQ moves, without change, the exclusion for non-
discretionary activities or decisions in paragraph (q)(1)(ii) of 40 CFR
1508.1 (2020) to Sec. 1508.1(w)(2)(vii). As discussed in section
II.C.2 addressing Sec. 1501.3, some activities or decisions may be
partially, but not entirely, non-discretionary, and while such actions
may constitute major Federal actions under this definition, the agency
may appropriately exclude the non-discretionary aspects of its decision
from the scope of its NEPA analysis.
Thirteenth, CEQ proposed to move the exclusion regarding non-final
agency actions from 40 CFR 1508.1(q)(1)(iii) to Sec.
1508.1(u)(2)(viii) and make changes for consistency with section
106(a)(1) of NEPA, 42 U.S.C. 4336(a)(1). CEQ proposed this revision for
consistency with longstanding case law excluding non-final agency
actions from the definition of ``major Federal action.'' Therefore, CEQ
proposed to include the finality of an action as a threshold
consideration as well as an exclusion from the definition of ``major
Federal action.'' Upon further consideration, CEQ considers finality to
be adequately addressed as a threshold consideration in Sec. 1501.3
and concludes that both the existing regulatory text and the proposed
revision are confusing. Therefore, CEQ strikes 40 CFR 1508.1(q)(1)(iii)
(2020) in the final rule and does not add proposed paragraph
(u)(2)(viii). CEQ does not intend this deletion to have any substantive
effect because Sec. 1501.3 provides that NEPA does not apply where a
proposed activity or decision is not a final agency action.
Finally, CEQ proposed a new exclusion in paragraph (u)(2)(ix) for
activities or decisions for projects approved by a Tribal Nation that
occur on or involve land held in trust or restricted status when the
activities involve no Federal funding or other Federal involvement. CEQ
proposed this exclusion in recognition of the unique circumstances
facing Tribal Nations due to the United States' holding land in trust
for them or the Tribal Nation holding land in restricted status. CEQ
proposed to clarify that activities or decisions for projects approved
by a Tribal Nation on trust lands are not major Federal actions where
such activities do not involve Federal funding or other Federal
involvement. CEQ proposed this exclusion because Tribal leaders raised
this issue during consultations that CEQ held on its NEPA regulations
and voiced concerns that the NEPA process placed Tribal Nations in a
disadvantageous position relative to State and local governments
because of the United States' ownership interest in Tribal lands.
A few commenters argued that the final rule should not include this
exclusion because it was not included in the recent amendments to NEPA.
Numerous other commenters supported the exclusion, and a large portion
of those commenters asked that the final rule expand the exclusion to
include additional actions, activities, or lands. One commenter asked
CEQ to expand the provision to exclude all Tribal development from the
definition of ``major Federal action.'' Another commenter recommended
that the terminology in proposed paragraph (u)(ix) ``when no such
activities or decisions involve no Federal funding'' be revised to
match the language in paragraph (2)(i)(A) which states ``[w]ith no or
minimal Federal funding.''
CEQ adds the exclusion in the final rule at Sec.
1508.1(w)(2)(viii), but adds ``or minimal'' before ``involvement'' for
consistency with section 111 of NEPA, 42 U.S.C. 4336e(10)(B). CEQ
declines to make the exclusion broader than this because it considers
the exclusion to strike the right balance in recognizing the unique
circumstances facing Tribal Nations and carrying out the purposes of
NEPA. CEQ notes that categories of activities on trust lands that
typically will not constitute major Federal actions include the
transfer of existing operation and maintenance activities of Federal
facilities to Tribal groups, water user organizations, or other
entities; human resources programs such as social services, education
services, employment assistance, Tribal operations, law enforcement,
and credit and financing activities not related to development; self-
governance compacts for Bureau of Indian Affairs programs; service line
agreements for an individual residence, building, or well from an
existing facility where installation will involve no clearance of
vegetation from the right-of-way other than for placement of poles,
signs (including highway signs), or buried power/cable lines; and
approvals of Tribal regulations or other documents promulgated in
exercise of Tribal sovereignty, such as Tribal Energy Resource
Agreements, certification of a Tribal Energy Development Organization,
Helping Expedite and Advance Responsible Tribal Homeownership Act
Tribal regulations, Indian Trust Asset Reform Act Tribal regulations
and trust asset management plans, and Tribal liquor control ordinances.
One commenter asked CEQ to clarify if the proposed exclusion would
extend to activities or projects that are approved by Tribal Nations
and focused entirely on managing, accessing, or protecting resources or
sites on Federal land that is not held in trust but to which the Tribe
has reserved rights. CEQ declines to make this change. Because of the
diversity of statutory, treaty, and factual considerations that can be
involved, determining whether such circumstances involve a major
Federal action is appropriately left to the administering agency.
One commenter requested the proposed provision be expanded to
include any grant funding awarded to a Tribe. CEQ declines to make this
change as section 111(10) of NEPA sets the standard for when actions to
provide financial assistance, including grants, constitute a major
Federal action. See 42 U.S.C. 4336e(10).
[[Page 35548]]
Other commenters requested the proposed exclusion be expanded to
include certain contracts, cooperative agreements, and similar funding
vehicles authorizing the transfer of Federal funding to a Tribe for
carrying out Federal programs. CEQ declines to make this change due to
the complexity and numerosity of these arrangements but notes that the
agencies that administer these programs could consider whether to
include provisions addressing these programs in their NEPA procedures.
One commenter argued the proposed exclusion is impermissibly
narrow, and the final rule should exclude entire categories of actions
in the rule text. CEQ declines to make this change as agencies are in a
better position to consider the legal and factual circumstances for
their actions either on a case-by-case basis or through their agency
NEPA procedures.
Several commenters asked for clarification of the term ``other
Federal involvement.'' One commenter suggested defining it as any
proposed Federal permits or other Federal approvals. Other commenters
suggested ``other Federal involvement'' be defined as any proposed
Federal permits or other Federal approvals on Tribal lands or ceded
lands. CEQ declines to further define the term as agencies
administering programs are best situated to consider the factual and
legal contexts in which they operate to determine whether there is
other Federal involvement that would make application of this exclusion
inappropriate.
17. Mitigation (Sec. 1508.1(y))
CEQ proposed three edits to the definition of ``mitigation'' in
proposed paragraph (w). First, CEQ proposed to change ``nexus'' to the
more commonly used word ``connection'' to describe the relationship
between a proposed action or alternatives and any associated
environmental effects. CEQ did not receive comments specific to this
proposed change and makes this revision in the final rule at Sec.
1508.1(y).
Second, CEQ proposed to delete the sentence that NEPA ``does not
mandate the form or adoption of any mitigation'' because this sentence
was unnecessary and could mislead readers because it does not
acknowledge that agencies may use other authorities to require
mitigation or may incorporate mitigation in mitigated FONSIs (Sec.
1501.6) and RODs (Sec. 1505.2).
CEQ received comments that both supported and opposed the removal
of this language from the definition of ``mitigation.'' Supportive
commenters agreed with the approach CEQ proposed in the definition
because it is consistent with established mitigation practices and
because they were generally supportive regarding the prioritization
listed. Opponents generally questioned the effect of this removal,
suggesting it contradicts the Supreme Court's holding in Robertson v.
Methow Valley Citizens Council that NEPA does not require agencies to
mitigate adverse effects. CEQ disagrees with the commenters' assertions
regarding Methow Valley, as discussed further in section II.G.2 and the
Phase 2 Response to Comments. CEQ removes this language from the final
rule consistent with the proposal.
Third, CEQ proposed to add the clause ``in general order of
priority'' to the sentence, ``Mitigation includes'' which introduces
the list of mitigation types. CEQ proposed this change to clarify that
the types of mitigation provided in proposed paragraphs (u)(1) though
(u)(5) are listed in general order of priority, consistent with the
familiar ``mitigation hierarchy.'' \127\ This list was prioritized in
the 1978 regulations with avoidance coming before other types of
mitigation and the proposed addition highlights that intent, which is
consistent with longstanding agency practice.\128\
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\127\ See e.g., U.S. Dep't of the Interior, A Strategy for
Improving the Mitigation Policies and Practices of the Department of
the Interior (Apr. 2014), https://www.doi.gov/sites/doi.gov/files/migrated/news/upload/Mitigation-Report-to-the-Secretary_FINAL_04_08_14.pdf at 2-3 (discussing the development of a
``mitigation hierarchy''--which starts with avoidance--in the
implementation of NEPA and the Clean Water Act); Bureau of Land
Mgmt., H-1794-1, Mitigation Handbook (P) (Sept. 22, 2021), https://www.blm.gov/sites/default/files/docs/2021-10/IM2021-046_att2.pdf at
2-1 (citing CEQ regulations and noting that the ``five aspects of
mitigation (avoid, minimize, rectify, reduce/eliminate, compensate)
are referred to as the mitigation hierarchy because they are
generally applied in a hierarchical manner''); U.S. Env't Prot.
Agency & U.S. Dep't of Def., Memorandums of Agreement (MOA); Clean
Water Act Section 404(b)(1) Guidelines; Correction, 55 FR 9210, 9211
(Mar. 12, 1990) (noting that under section 404 of the Clean Water
Act, the Army Corps of Engineers evaluates potential mitigation
efforts sequentially, starting with avoidance, minimization, and
then compensation).
\128\ See, e.g., 10 CFR 900.3 (defining a regional mitigation
approach under NEPA as ``an approach that applies the mitigation
hierarchy (first seeking to avoid, then minimize impacts, then, when
necessary, compensate for residual impacts)''); Presidential
Memorandum, Mitigating Impacts on Natural Resources From Development
and Encouraging Related Private Investment, 80 FR 68743, 68745 (Nov.
6, 2015) (addressing five agencies and noting that, ``[a]s a
practical matter, [mitigation is] captured in the terms avoidance,
minimization, and compensation. These three actions are generally
applied sequentially . . . .''); Fed. Highway Admin., NEPA and
Transportation Decisionmaking: Questions and Answers Regarding the
Consideration of Indirect and Cumulative Impacts in the NEPA
Process, https://www.environment.fhwa.dot.gov/nepa/QAimpact.aspx
(describing the importance of ``sequencing,'' which refers to the
process of prioritizing avoidance and minimization of effects over
replacement or compensation for NEPA mitigation efforts).
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Some commenters supported the added language clarifying the general
order of priority for mitigation. Supportive commenters stated this
language is consistent with established mitigation practices and
asserted that it will encourage agencies to avoid adverse effects
rather than try to rectify or compensate for them after they have
occurred. Other commenters opposed the added language, stating that
agencies may not in all cases have authority to avoid adverse effects,
and that providing a rigid prioritization fails to guide agencies to
consider the full range of mitigation opportunities.
CEQ adds the clause ``in general order of priority'' to the
definition in the final rule. CEQ uses the qualifier ``in general'' to
provide flexibility and acknowledge that such prioritization will not
apply to every situation. Further, the language does not prohibit
agencies from applying the elements of the mitigation hierarchy out of
order when they determine it is appropriate to do so, and CEQ
encourages agencies to consider the full range of mitigation
opportunities before deciding on an appropriate mitigation approach.
Some commenters asserted that CEQ has ``concealed'' its
prioritization by placing it in the definitions section of the
regulations. CEQ disagrees that placing this language in the
definitions conceals it and CEQ notes that the definitions are
essential elements of the NEPA regulations. Further, the definition of
``mitigation,'' including discussion of the categories of mitigation,
has been in the regulations since 1978. Therefore, this is a logical
place in the regulations for agencies or the public to look for text
addressing the categories of mitigation.
Some commenters provided specific feedback on compensatory
mitigation, including some that expressed concern that it can be
ineffective. One commenter asserted that some agencies are prohibited
from requiring compensatory mitigation. Another commenter requested CEQ
clarify that agencies may rely on third-party mitigation or restoration
providers to carry out compensatory mitigation.
CEQ declines to make additional edits to the definition of
``mitigation.'' Agencies must identify the authority for any mitigation
that they rely on in their analysis, and agencies should not rely on
mitigation absent the authority to ensure that the mitigation is
performed. Because NEPA requires agencies to
[[Page 35549]]
consider mitigation, not implement it, CEQ defers to agencies regarding
the appropriate use of compensatory mitigation, third-party mitigation,
or restoration providers.
One commenter requested that CEQ establish a preference for
mitigation that is practicable, effective, and as minimally disruptive
to a proposed project as possible. CEQ agrees that mitigation measures
should be practicable and effective, but considers these requirements
to be clear from the regulations as a whole and do not need to be
reiterated in the definition.
Finally, CEQ makes two additional clarifying edits. First, CEQ adds
``adverse'' to modify ``effects'' in each instance it is used in the
definition of ``mitigation'' to clarify that mitigation addresses
adverse effects, not beneficial effects, and for consistency with the
definition of ``significant effects,'' which is defined as adverse
effects. Second, CEQ changes ``effects'' to ``the adverse effect'' in
paragraph (y)(2) for consistency with paragraphs (y)(1) and (y)(3)
through (y)(5), which all use the singular of effect.
18. Notice of Intent (Sec. 1508.1(aa))
CEQ proposed to modify the definition of ``notice of intent'' to
include EAs, as applicable. CEQ proposed this change for consistency
with Sec. 1501.5(j), which provides that agencies may issue an NOI for
an EA where it is appropriate to improve efficiency and effectiveness,
and Sec. 1501.10(b)(3)(iii), which sets forth one of the three
potential starting points from which deadlines are measured for EAs
consistent with section 107(g)(1)(B)(iii) of NEPA, 42 U.S.C.
4336a(g)(1)(B)(iii).
One commenter recommended the final rule clarify whether the
addition of EA to the proposed definition requires an NOI for EAs, and
if so, noted that this would be a new requirement. Another commenter
similarly stated that including an EA in the definition will cause
confusion over whether an NOI is required for an EA, and asserted that
it clearly is not.
CEQ adds ``environmental assessment'' to the definition of ``notice
of intent'' for consistency with Sec. Sec. 1501.5(j) and
1501.10(b)(3), but moves the qualifier ``as applicable'' to precede
``environmental assessment'' to make clear that the regulations do not
require agencies to issue an NOI for an EA, but provide them the
discretion to do so.
19. Page (Sec. 1508.1(bb))
CEQ proposed to modify the definition of ``page'' for consistency
with section 107(e) of NEPA, 42 U.S.C. 4336a(e), to exclude citations
from the definition of ``page'' and therefore the page limits for EISs
and EAs. To facilitate better NEPA documents, CEQ proposed to retain
the exclusions for maps, diagrams, graphs, tables, and other means of
graphically displaying quantitative or geospatial information from the
definition of ``page.'' While agencies could move these visual
representations of information to appendices, which could come at the
end of an EIS or the end of EIS chapters, CEQ expressed concern that
this will make the documents less understandable and useful to decision
makers and the public. Further, such graphical displays themselves
could be considered appendices consistent with the ordinary definition
of appendix as ``supplementary material usually attached at the end of
a piece of writing.'' \129\
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\129\ See Appendix, Merriam-Webster, https://www.merriam-webster.com/dictionary/appendix.
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Multiple commenters supported the proposed definition of ``page,''
specifically asserting that the listed exclusions will help agencies
integrate those types of information into the body of an EA or EIS
without affecting the document's page limit and asserting that
inclusion of these elements in the body of an EA or EIS provide a more
readable and accessible document. Conversely, several commenters
opposed the exclusion of certain elements from the definition of
``page,'' except for citations and appendices as provided for in
section 107(e) of NEPA. These commenters assert that the proposed
exclusion of other items--maps, diagrams, graphs, and tables--
circumvents Congress' intent to mandate strict page limits, and that
these items should be included in the definition of ``page'' and be
subject to the page limit. They also asserted that the exclusion of
these elements from the page count results in environmental documents
that are longer, more complex, and more difficult for the public and
decision makers to understand.
NEPA does not define the term ``page,'' but rather provides, in
section 107(e), that each type of environmental document ``shall not
exceed [the specified number of] pages, not including any citations or
appendices.'' 42 U.S.C. 4336a(e). When Congress enacted this language
in 2023, it had before it the CEQ regulations, which define ``page'' as
excluding ``explanatory maps, diagrams, graphs, tables, and other means
of graphically displaying quantitative or geospatial information.'' Had
Congress intended to eliminate these regulatory exclusions from the
definition of ``page,'' it could have done so by providing a contrary
definition of ``page'' in section 111 of NEPA, 42 U.S.C. 4336e.
Instead, Congress chose to leave the term ``page'' undefined, therefore
leaving CEQ's definition undisturbed, while separately specifying that
the page limits of section 107(e) would exclude two additional elements
that were not specifically set forth in the 2020 regulatory
definition--citations and appendices. See 42 U.S.C. 4336a(e).
Therefore, CEQ's continued use of a regulatory definition based on the
one promulgated in 2020 does not circumvent, but rather complements,
the statutory exclusion for citations and appendices.
CEQ disagrees that the proposed definition of ``page'' contradicts
section 107(e) of NEPA or will make more documents more complex and
difficult to understand. Rather, CEQ considers the flexibility to
include additional visual elements in environmental documents will
reduce the complexity of environmental documents by making the content
easier to understand for the public and decision makers and facilitate
the delivery of clearer and more useful documents. Agencies should
limit the visual elements in the body of the document to those that
enhance comprehensibility and place additional information in
appendices, in keeping with the general principles CEQ has set forth
regarding clear and concise writing in NEPA documents.
20. Participating Federal Agency (Sec. 1508.1(dd))
CEQ proposed to add a definition of ``participating Federal
agency'' to proposed paragraph (bb) and define it to mean ``a Federal
agency participating in an environmental review or authorization of an
action'' consistent with the definition of the same term in section
111(8) of NEPA. 42 U.S.C. 4336e(8). CEQ did not receive any substantive
comments on the definition of ``participating Federal agency'' and
finalizes it in Sec. 1508.1(dd) as proposed.
21. Programmatic Environmental Document (Sec. 1508.1(ee))
CEQ proposed to add a definition of ``programmatic environmental
document'' to proposed paragraph (cc) and define it consistent with the
definition of the same term in section 111(11) of NEPA, 42 U.S.C.
4336e(11). One commenter asserted that ``programmatic'' is not well
defined in the proposed rule, stating that neither Sec. 1501.11 or the
proposed definition of ``programmatic environmental
[[Page 35550]]
document'' provide a clear way to distinguish between programmatic and
non-programmatic analyses. The commenter described that the essential
characteristic of a programmatic document includes some aspect of the
decision that is deferred.
CEQ adds a definition of ``programmatic environmental document'' at
Sec. 1508.1(ee) consistent with the proposal and declines to modify it
as the commenter suggests because the uses of programmatic
environmental documents are addressed in Sec. 1501.11, as discussed in
section II.C.10 and in the Phase 2 Response to Comments.
22. Reasonable Alternatives (Sec. 1508.1(hh))
CEQ did not propose revisions to the definition of ``reasonable
alternatives'' but received comments on the existing definition.
Commenters requested guidance on the meaning of ``technically and
economically feasible,'' and one commenter requested the regulations
direct agencies to consult with project sponsors to determine economic
and technical feasibility. Some commenters requested that CEQ use the
Forty Questions guidance as a starting point for additional clarity on
technical and economic feasibility, specifically referencing the
description that technical and economic feasibility must be based on
common sense rather than a project proponent's preferences.
One commenter requested guidance on how to identify and evaluate
reasonable alternatives and include clear criteria and examples for
defining and selecting reasonable alternatives, such as feasibility,
cost, effectiveness, and public acceptability. One commenter asserted
that the regulations should not define ``reasonable alternatives'' as a
``reasonable range of alternatives'' because the language ``reasonable
range'' suggests that agencies do not have to consider all reasonable
alternatives. The commenter asserted that Federal courts have long held
that NEPA requires agencies to consider all reasonable alternatives,
and that an agency's failure to consider a reasonable alternative is
fatal to an agency's NEPA analysis. The commenter further expressed
that ``reasonable range of alternatives'' is ambiguous.
CEQ does not make revisions to the definition of ``reasonable
alternatives'' in Sec. 1508.1(hh). CEQ will consider whether to issue
additional guidance but notes that agencies have long used the Forty
Questions to assist them in identifying alternatives. With respect to
the phrase ``reasonable range,'' CEQ disagrees that agencies must
consider ``all'' reasonable alternatives or that the case law requires
this. In some circumstances, there could be a limitless number of
reasonable alternatives to a proposed action, with each alternative
including slight changes to the action. NEPA does not require agencies
to evaluate all such alternatives, but rather, a reasonable range of
alternatives to inform decision makers and the public. Agencies must
consider a reasonable range of alternatives that facilitates the
comparison of effects and helps inform the decision maker and the
public. Further, the regulations have long provided that agencies
should discuss alternatives that they dismiss from detailed analysis
and explain their rationale.
22. Reasonably Foreseeable (Sec. 1508.1(ii))
CEQ did not propose to revise the definition of ``reasonably
foreseeable'' but received comments on the existing definition. A few
commenters described the definition as vague, subject to manipulation,
and inconsistent with case law and Congressional intent. Some
commenters suggested edits to the definition, such as adding that an
effect is ``reasonably foreseeable'' when an agency can conclude with a
high degree of confidence that the effect is more likely than not to
occur. Some commenters asked for more clarity on how certain industries
might meet the reasonably foreseeable standard, or suggested that what
constitutes reasonably foreseeable, or a person of ordinary prudence,
is subjective. Relatedly, another commenter stated that agency decision
makers have access to knowledge, skills, resources, and statutory
duties not applicable to a person of ordinary prudence. The commenter
recommended CEQ replace ``person of ordinary prudence'' with ``prudent
agency decision maker.''
CEQ declines to make change to the definition of ``reasonably
foreseeable'' and finalizes it in Sec. 1508.1(ii) as proposed.
Regarding additional qualifiers or concerns that the definition is
subjective, CEQ declines additional changes because the application of
reasonably foreseeable is influenced by the context of the proposed
action. Inherent in the application of reasonably foreseeable is the
concept that Federal agencies are not required to ``foresee the
unforeseeable'' or engage in speculative analysis. Agencies must
forecast to the extent they can do so either quantitatively or
qualitatively within a reasonable range. Further, the term ``reasonably
foreseeable'' is consistent with the ordinary person standard--that is,
what a person of ordinary prudence would consider in reaching a
decision. CEQ is unaware of any practical challenges or confusion that
has arisen from connecting this definition to the ordinary person, or
circumstances where an agency has excluded analysis of an effect that
the agency views as reasonably foreseeable because an ordinary person
would not. Changing the regulatory text could create uncertainty as
agencies and courts consider what, if any, implications the change
would have, and CEQ considers creating that uncertainty unnecessary.
23. Scope (Sec. 1508.1(kk))
CEQ proposed to expand the definition of ``scope'' to include EAs
and revise the definition to include both the range and breadth of the
actions, alternatives, and effects to be considered in an EIS or EA,
consistent with CEQ's proposal to relocate the discussion of scope in
Sec. 1501.3(b). CEQ also proposed to strike the last sentence
regarding tiering because it was not definitional language and was
unnecessary because this concept is more addressed in Sec. 1501.11.
One commenter expressed support for the proposed definition of
``scope,'' asserting it strengthens EAs and EISs. CEQ revises the
definition of ``scope'' in Sec. 1501.8(kk) as proposed. As discussed
further in section II.C.2, agencies have long examined the scope of
their actions to determine what alternatives and effects they must
analyze. This is a fact-specific analysis that agencies undertake
informed by their statutory authority and control and responsibility
over the activity. Other comments regarding scope are further discussed
in section II.C.2 and the Phase 2 Response to Comments.
24. Significant Effects (Sec. 1508.1(mm))
CEQ proposed to add a definition for ``significant effects'' to
define those effects that are central to determining the appropriate
level of review in the NEPA process. CEQ proposed the definition to
align with the restoration of the context and intensity factors for
determining significance in Sec. 1501.3(d). CEQ proposed to define
``significant effects'' as adverse effects identified by an agency as
significant, based on the criteria set forth in Sec. 1501.3(d), to
clarify that beneficial effects are not significant effects as the
phrase is used in NEPA and, therefore, do not require an agency to
prepare an EIS. CEQ proposed this as an alternative approach to that
taken by the proposal in Sec. 1501.3(d)(2)(i) where an action ``does
not'' require an EIS when it would result only in significant
[[Page 35551]]
beneficial effects and invited comment on which approach is preferred.
One commenter supported a standalone definition of ``significant
effects'' but expressed concern that only including adverse effects
could create confusion over how agencies assess which effects are truly
beneficial and from whose perspective. Other commenters asserted that
the limitation of significant effects to adverse effects, in
conjunction with proposed Sec. 1501.3(d)(2)(i) to only require an EIS
for significant adverse effects, is unlawful and contrary to NEPA's
policy. These commenters asserted that NEPA requires an environmental
review if an action's effects are significant, regardless of whether
those effects are exclusively beneficial, and requested that the final
rule remove ``adverse'' from the definition. A few commenters supported
the proposed definition for varying reasons, including because it is
straightforward and because it will help encourage streamlined
processes by reducing the need for EISs.
Regarding CEQ's request for comment on the preferred approach--
proposed Sec. 1501.3(d)(2)(i) or proposed Sec. 1508.1(kk)--one
commenter recommended the final rule include both provisions because
the definition serves to strengthen the concept that NEPA analyses
should focus on actions with adverse effects. Another commenter
preferred proposed Sec. 1501.3(d)(2)(i), asserting it provides
stronger guidance for agencies.
CEQ adds the definition of ``significant effects'' as proposed in
Sec. 1508.1(mm), and CEQ revises Sec. 1501.3(d) for greater clarity
on this approach as discussed in section II.C.2. This approach means
that an agency does not need to prepare an EIS if a proposed action's
effects are exclusively beneficial. However, irrespective of the level
of NEPA review, agencies still need to analyze both adverse and
beneficial effects in NEPA documents if they are reasonably
foreseeable.
25. Tiering (Sec. 1508.1(oo))
CEQ proposed to revise the definition of ``tiering'' to cross
reference the process as set forth in Sec. 1501.11. CEQ proposed this
revision to avoid any potential inconsistencies between the definition
and the provisions of Sec. 1501.11. CEQ did not receive any comments
on the proposed definition of ``tiering'' and revises it as proposed in
Sec. 1508.1(oo). Other comments regarding the application of tiering
are discussed in section II.C.10 and the Phase 2 Response to Comments.
III. Rulemaking Analyses and Notices
A. Executive Order 12866, Regulatory Planning and Review
E.O. 12866, as supplemented and affirmed by E.O. 13563 and amended
by E.O. 14094, provides that the Office of Information and Regulatory
Affairs (OIRA) will review all significant rules.\130\ This final rule
is a significant regulatory action under section 3(f)(1) of E.O. 12866,
as amended by E.O. 14094, that CEQ submitted to OIRA for review. The
changes in the final rule will improve the CEQ regulations to benefit
agencies and the public. Furthermore, an effective NEPA process can
save time and reduce overall project costs by providing a clear process
for evaluating alternatives and effects, coordinating agencies and
relevant stakeholders including the public, and identifying and
avoiding problems--including potential significant effects--that may
occur in later stages of project development.\131\ Additionally, if
agencies choose to consider additional alternatives and conduct clearer
or more robust analyses, such analyses will improve societal outcomes
by facilitating improved agency decision making on the whole, even if
the NEPA statute and regulations do not dictate the outcome of any
specific decision. Because individual cases will vary, the magnitude of
potential costs and benefits resulting from these changes are difficult
to anticipate, but CEQ has prepared a qualitative analysis in the
accompanying regulatory impact analysis (RIA).
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\130\ See E.O. 12866, Regulatory Planning and Review, 58 FR
51735, 51737 (Oct. 4, 1993); E.O. 14094, Modernizing Regulatory
Review, 88 FR 21879, 21879-80 (Apr. 11, 2023); E.O. 13563, Improving
Regulation and Regulatory Review, 76 FR 3821, 3822 (Jan. 21, 2011).
\131\ See generally Cong. Rsch. Serv. R42479, The Role of the
Environmental Review Process in Federally Funded Highway Projects:
Background and Issues for Congress (2012), https://crsreports.congress.gov/product/pdf/R/R42479.
---------------------------------------------------------------------------
CEQ received two comments on the draft RIA. One commenter stated
that CEQ should include more detailed explanation of the flaws
associated with the 2020 Rule's RIA and how the revised rule rectifies
those flaws to produce net benefits, including by discussing evidence
that suggests the NEPA process contributes to greater environmental
benefits that the 2020 RIA did not consider; aligning the explanation
of the alternative of retaining the 2020 Rule, as amended by the Phase
I rulemaking, with guidance regarding baselines as a scenario with zero
incremental benefits or costs; and removing any distinction between
direct and indirect benefits or costs to avoid inadvertently
downplaying the proposed rule's benefits and costs. The second
commenter stated that CEQ should account for economic impacts of NEPA-
related delays in project implementation in the RIA, and provided
information on how labor, procurement, and material costs increase as a
project is delayed.
In response to the first comment, CEQ has revised the RIA. In
response to the second comment, CEQ acknowledges that project delays
often result in labor, procurement, and material costs increases. The
revisions to the NEPA regulations in this final rule will improve the
efficiency and effectiveness of the NEPA process, and thereby save time
and reduce overall project costs by providing a clear process for
evaluating alternatives and effects; coordinating agencies and relevant
stakeholders, including the public, more efficiently; identifying and
avoiding problems that may occur in later stages of project
development; and reducing litigation. CEQ provides its detailed
analysis in the accompanying Regulatory Impact Analysis, which CEQ
incorporates by reference into this 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, Proper Consideration of Small Entities in Agency
Rulemaking,\132\ require agencies to assess the impacts of proposed and
final rules on small entities. Under the RFA, small entities include
small businesses, small organizations, and small governmental
jurisdictions. An agency must prepare an Initial Regulatory Flexibility
Analysis unless it determines and certifies that the rule will not have
a significant economic impact on a substantial number of small
entities. See 5 U.S.C. 605(b). This final rule does not directly
regulate small entities. Rather, the rule applies to Federal agencies
and sets forth the process for their compliance with NEPA. Accordingly,
CEQ hereby certifies that the rule will not have a significant economic
impact on a substantial number of small entities.
---------------------------------------------------------------------------
\132\ 67 FR 53461 (Aug. 16, 2002).
---------------------------------------------------------------------------
One commenter asserted that CEQ should develop an economic
sustainability plan for the proposed rule. Another commenter asserted
that CEQ's statement in the proposed rule that the rulemaking would not
impact small businesses was insufficient and that CEQ must prepare a
regulatory
[[Page 35552]]
flexibility plan that describes the impact of the proposed rule on
small entities to comply with the Small Business Regulatory Enforcement
Fairness Act. The commenter asserted that the proposed rulemaking will
impact small businesses, particularly in the mining industry. For the
reasons set forth in this preamble, CEQ declines to prepare the
requested plan because the final rule applies to Federal agencies and
does not directly regulate small businesses or other 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.\133\ 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.'' \134\ Similarly, in
1986, while CEQ stated in the final rule that there were ``substantial
legal questions as to whether entities within the Executive Office of
the President are required to prepare environmental assessments,'' it
also prepared a special EA.\135\ The special EA issued in 1986
supported a FONSI, and there was no finding made for the assessment of
the 1978 final rule. CEQ also prepared a special EA and reached a FONSI
for the Phase 1 rulemaking.
---------------------------------------------------------------------------
\133\ See CEQ, National Environmental Policy Act--Regulations:
Proposed Implementation of Procedural Provisions, 43 FR 25230, 25232
(June 9, 1978); see E.O. 11991, supra note 29.
\134\ See CEQ, National Environmental Policy Act--Regulations:
Proposed Implementation of Procedural Provisions, supra note 133, at
25232.
\135\ See National Environmental Policy Act Regulations;
Incomplete or Unavailable Information, supra note 32, at 15619.
---------------------------------------------------------------------------
The final rule makes it explicit that a NEPA analysis is not
required for establishing or updating NEPA procedures, see Sec.
1507.3(b)(3), and CEQ continues to consider NEPA not to require a NEPA
analysis for CEQ's NEPA regulations. See Heartwood v. U.S. Forest
Serv., 230 F.3d 947, 954-55 (7th Cir. 2000) (finding that neither NEPA
or the CEQ regulations required the Forest Service to conduct an EA or
an EIS prior to the promulgation of its procedures creating a CE).
Nevertheless, based on past practice, CEQ developed a draft special EA,
has posted it in the docket, and invited comments in the proposed rule.
CEQ received two comments on its compliance with NEPA. The
commenters generally asserted that the Special EA conducted for this
rulemaking was inadequate and not justified by precedent. One commenter
argued that this rulemaking requires an EIS because the proposed
changes can reasonably be expected to have a significant effect on the
environment. The commenter asserted that provisions allowing the
adoption and use of another agency's CEs, allowing agencies to modify
their NEPA procedures without going through the rulemaking process; and
exempting large-scale power plants from having to prepare an EIS
supported their position. The commenter also argued that comments on
the rulemaking were not visible to the public, and therefore did not
fulfill public comment requirements.
CEQ declines to prepare an EIS for the reasons discussed earlier in
this section. CEQ notes that the first proposed change noted by the
commenter, related to adopting CEs, implements section 109 of NEPA,
which allows such adoption and use by statute. See 42 U.S.C. 4336c.
With respect to the second proposed change noted by the commenter, the
CEQ regulations have never required agencies to conduct rulemaking for
the development or revision of their implementing procedures, but have
always required agencies to provide public notice and comment. Further,
this final rule does not specifically address NEPA reviews for large-
scale power plants. Rather the regulations set the standards for when
agencies must prepare EISs and leaves the decision of whether an EIS is
required to a case-by-case determination by the agencies, as has always
been the case. Finally, CEQ notes that, in the interest of
transparency, comments received on the proposed rule were posted to the
public docket.\136\
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\136\ See National Environmental Policy Act Implementing
Regulations Revisions Phase 2, Docket No. CEQ-2023-0003, https://www.regulations.gov/docket/CEQ-2023-0003.
---------------------------------------------------------------------------
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.\137\ Policies that have federalism implications include
regulations that have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.\138\ CEQ received one comment asserting that this
rulemaking would impact States, and requested that CEQ revisit its
conclusion that the rulemaking does not pose federalism implications.
CEQ disagrees with the commenter. This rule does not have federalism
implications because it applies to Federal agencies, not States. CEQ
notes that States may elect to assume NEPA responsibilities under
Federal statutes,\139\ but States are further governed by the
regulations and agreements under those programs.
---------------------------------------------------------------------------
\137\ E.O. 13132, Federalism, 64 FR 43255 (Aug. 10, 1999).
\138\ Id. at 43256.
\139\ See, e.g., 23 U.S.C. 327.
---------------------------------------------------------------------------
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.\140\ Such policies include regulations
that have substantial direct effects on one or more Tribal Nations, on
the relationship between the Federal Government and Tribal Nations, or
on the distribution of power and responsibilities between the Federal
Government and Tribal Nations.\141\ CEQ has assessed the impact of this
final rule on Indian Tribal governments and has determined that the
rule does significantly or uniquely affect Tribal Nations. CEQ engaged
in government-to-government consultation with Tribal Nations on the
Phase 2 rulemaking. As required by E.O. 13175, CEQ held a Tribal
consultation on the NEPA regulations generally on September 30, 2021,
on this rulemaking on November 12, 2021, prior to the publication of
the NPRM, and on September 6, 2023, and September 12, 2023, following
publication of the NPRM.\142\ In addition to the feedback provided
during these consultation sessions, CEQ received a number of written
comments from Tribal Nations during the public comment period, and
considered these written comments in the development of the final rule.
---------------------------------------------------------------------------
\140\ E.O. 13175, supra note 57, at sec. 5(a).
\141\ Id. sec. 1(a).
\142\ Id. sec. 5.
---------------------------------------------------------------------------
Several Tribal Nations agreed with CEQ's preliminary determination
that the proposed rule significantly or uniquely affects Tribal
Nations. One Tribal Nation requested that CEQ acknowledge its written
comments as part of the Tribal consultation process, and not only as
public comments. Several Tribes also requested additional consultation
with CEQ in the future.
CEQ acknowledges that the written comments it received from Tribal
Nations constitute part of the Tribal consultation process in addition
to the
[[Page 35553]]
public comment process and considered those comments accordingly. CEQ
appreciates the considerable time and effort that Tribal Nations
invested in their oral and written comments, which helped illuminate
many aspects of how NEPA affects Tribal Nations, their lands and legal
rights, and their citizens. These comments helped CEQ to develop a
better final rule. CEQ plans to continue to engage in government-to-
government consultation with federally recognized Tribes and in
consultation with Alaska Native Corporations on the implementation of
its NEPA regulations.
F. Executive Order 12898, Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096, Revitalizing Our Nation's Commitment to
Environmental Justice for All
E.O. 12898 and E.O. 14096 charge agencies to make achieving
environmental justice part of their missions, as appropriate and
consistent with applicable law, by identifying, analyzing, and
addressing disproportionate and adverse human health and environmental
effects (including risks) and hazards of Federal activities, including
those related to climate change and cumulative impacts of environmental
and other burdens, on communities with environmental justice
concerns.\143\
---------------------------------------------------------------------------
\143\ E.O. 12898, supra note 8; E.O. 14096, supra note 22.
---------------------------------------------------------------------------
CEQ has analyzed this final rule and determined that it will not
cause disproportionate and adverse human health or environmental
effects on communities with environmental justice concerns. This rule
sets 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 received one comment requesting that CEQ conduct research into
the effect of immigration on environmental quality, including on
communities with environmental justice concerns, and include study of
immigration impacts during NEPA analysis. CEQ declines to conduct this
research because this rule does not specifically address issues related
to immigration or make any changes to the U.S. immigration laws or
their implementing regulations. Any environmental effects resulting
from specific agency actions related to immigration would be addressed
by agencies with relevant authorities and requirements to do so and are
not within the scope of the analysis of this rulemaking.
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.\144\ CEQ has determined that this
rulemaking is not a ``significant energy action'' because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy.
---------------------------------------------------------------------------
\144\ E.O. 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use, 66 FR
28355 (May 22, 2001).
---------------------------------------------------------------------------
CEQ received one comment related to its compliance with E.O. 13211.
The commenter disagreed with CEQ's determination that the proposed rule
is not a ``significant energy action'' as described in E.O. 13211, and
further stated that the proposed rulemaking is incongruous with E.O.
14008, which directs agencies to deploy their full capabilities in
combating climate change. The commenter asserted that the proposed rule
will have an effect on the energy supply that exceeds $100 million and
would hamper efforts to achieve a clean energy transition.
For the reasons set forth in this preamble, CEQ disagrees that the
rule will hamper efforts to achieve a clean energy transition or have a
significant effect on the energy supply. To the contrary, the proposed
rule will facilitate the responsible development of energy resources,
including carbon pollution-free energy, by promoting efficient and
effective environmental reviews.
H. Executive Order 12988, Civil Justice Reform
Under section 3(a) of E.O. 12988, agencies must review their
proposed regulations to eliminate drafting errors and ambiguities,
draft them to minimize litigation, and provide a clear legal standard
for affected conduct.\145\ Section 3(b) provides a list of specific
issues for review to conduct the reviews required by section 3(a).\146\
CEQ did not receive any comments specific to E.O. 12988. CEQ has
conducted the review under E.O. 12988 and determined that this final
rule complies with its requirements.
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\145\ E.O. 12988, Civil Justice Reform, 61 FR 4729, 4731 (Feb.
7, 1996).
\146\ Id.
---------------------------------------------------------------------------
I. Unfunded Mandates Reform Act
Section 201 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1531, requires Federal agencies to assess the effects of their
regulatory actions on Tribal, State, and local governments, and the
private sector to the extent that such regulations incorporate
requirements specifically set forth in law. Before promulgating a rule
that may result in the expenditure by a Tribal, State, or local
government, in the aggregate, or by the private sector of $100 million,
adjusted annually for inflation, in any 1 year, an agency must prepare
a written statement that assesses the effects on Tribal, State, and
local governments and the private sector. 2 U.S.C. 1532. CEQ did not
receive any comments related to the Unfunded Mandates Reform Act.
This final rule applies to Federal agencies and will not result in
expenditures of $100 million or more for Tribal, State, and local
governments, in the aggregate, or the private sector in any 1 year.
This action also will not impose any enforceable duty, contain any
unfunded mandate, or otherwise have any effect on small governments
subject to the requirements of 2 U.S.C. 1531 et seq.
J. Paperwork Reduction Act
This final rule will 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.
CEQ received one comment related to the PRA. The commenter
disagreed with CEQ's preliminary determination that the proposed rule
would not impose additional burden under the PRA, stating that the
review of proposed changes to NEPA and future changes to agency NEPA
procedures and guidelines will impose significant burdens on State
agencies. The commenter also expressed concern that the proposed
changes to include technical analyses in appendices does not change or
limit the amount of material that must be reviewed.
CEQ disagrees with the commenter's assertions. General
solicitations of public comments of the sort associated with the
development of agency NEPA procedures and guidelines or the publication
of a draft environmental document are not subject to the PRA. See 5 CFR
1320.3(h)(4), (8) (exempting from the PRA ``[f]acts or opinions
submitted in response to general solicitations of comments from the
public, published in the Federal Register or other publications,
regardless of the form or format thereof, provided that no person is
required to supply specific information pertaining to the commenter,
other than that
[[Page 35554]]
necessary for self-identification, as a condition of the agency's full
consideration of the comment,'' and ``[f]acts or opinions obtained or
solicited at or in connection with public hearings or meetings'').
Furthermore, while the rule clarifies which material agencies should
include in the body of an environmental document and which they should
include in an appendix, it does not increase the overall amount of
materials available to States or members of the public to review, or
require States or members of the public to review those materials.
List of Subjects in 40 CFR Parts 1500, 1501, 1502, 1503, 1504,
1505, 1506, 1507, and 1508
Administrative practice and procedure; Environmental impact
statements; Environmental protection; Natural resources.
Brenda Mallory,
Chair.
0
For the reasons discussed in the preamble, the Council on Environmental
Quality amends 40 CFR chapter V by revising and republishing subchapter
A to read as follows:
Chapter V--Council on Environmental Quality
Subchapter A--National Environmental Policy Act Implementing
Regulations
Part 1500--Purpose And Policy
Part 1501--NEPA And Agency Planning
Part 1502--Environmental Impact Statement
Part 1503--Commenting On Environmental Impact Statements
Part 1504--Dispute Resolution And Pre-Decisional Referrals
Part 1505--NEPA and Agency Decision Making
Part 1506--Other Requirements Of NEPA
Part 1507--Agency Compliance
Part 1508--Definitions
PART 1500--PURPOSE AND POLICY
Sec.
1500.1 Purpose.
1500.2 Policy.
1500.3 NEPA compliance.
1500.4 Concise and informative environmental documents.
1500.5 Efficient process.
1500.6 Agency authority.
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902,
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.
Sec. 1500.1 Purpose.
(a) The National Environmental Policy Act (NEPA) is the basic
national charter for protection of the environment. It establishes
policy, sets goals, and provides direction for carrying out the policy.
(1) Section 101(a) of NEPA establishes the national environmental
policy of the Federal Government to use all practicable means and
measures to foster and promote the general welfare, create and maintain
conditions under which humans and nature can exist in productive
harmony, and fulfill the social, economic, and other requirements of
present and future generations of Americans. Section 101(b) of NEPA
establishes the continuing responsibility of the Federal Government to
use all practicable means, consistent with other essential
considerations of national policy, to:
(i) Help each generation serve as a trustee of the environment for
succeeding generations;
(ii) Assure for all people safe, healthful, productive, and
aesthetically and culturally pleasing surroundings;
(iii) Attain the widest range of beneficial uses of the environment
without degradation, risk to health or safety, or other undesirable and
unintended consequences;
(iv) Preserve important historic, cultural, and natural aspects of
our national heritage, and maintain, wherever possible, an environment
which supports diversity and variety of individual choice;
(v) Achieve a balance between population and resource use which
will permit high standards of living and a wide sharing of life's
amenities; and
(vi) Enhance the quality of renewable resources and approach the
maximum attainable recycling of depletable resources.
(2) Section 102(2) of NEPA establishes procedural requirements to
carry out the policy and responsibilities established in section 101 of
NEPA and contains ``action-forcing'' procedural provisions to ensure
Federal agencies implement the letter and spirit of the Act. The
purpose of the regulations in this subchapter is to set forth what
Federal agencies must and should do to comply with the procedures and
achieve the goals of the Act. The President, the Federal agencies, and
the courts share responsibility for enforcing the Act so as to achieve
the policy goals of section 101.
(b) The regulations in this subchapter implement the requirements
of NEPA and ensure that agencies identify, consider, and disclose to
the public relevant environmental information early in the process
before decisions are made and before actions are taken. The information
shall be of high quality. Accurate scientific analysis, expert agency
comments, and public scrutiny are essential to implementing NEPA. Most
importantly, environmental documents must concentrate on the issues
that are truly relevant to the action in question, rather than amassing
needless detail. The regulations in this subchapter also are intended
to ensure that Federal agencies conduct environmental reviews in a
coordinated, consistent, predictable, and timely manner, and to reduce
unnecessary burdens and delays. Finally, the regulations in this
subchapter promote concurrent environmental reviews to ensure timely
and efficient decision making.
(c) Ultimately, of course, it is not better documents but better
decisions that count. NEPA's purpose is not to generate paperwork--even
excellent paperwork--but to foster excellent action. The NEPA process
is intended to help public officials make decisions that are based on
an understanding of environmental consequences and take actions that
protect, restore, and enhance the environment. The regulations in this
subchapter provide the direction to achieve this purpose.
Sec. 1500.2 Policy.
Federal agencies shall to the fullest extent possible:
(a) Interpret and administer the policies, regulations, and public
laws of the United States in accordance with the policies set forth in
the Act and in these regulations.
(b) Implement procedures to make the NEPA process more useful to
decision makers and the public; to reduce paperwork and the
accumulation of extraneous background data; and to emphasize important
environmental issues and alternatives. Environmental documents shall be
concise, clear, and supported by evidence that agencies have conducted
the necessary environmental analyses.
(c) Integrate the requirements of NEPA with other planning and
environmental review procedures required by law or by agency practice
so that such procedures run concurrently rather than consecutively
where doing so promotes efficiency.
(d) Encourage and facilitate public engagement in decisions that
affect the quality of the human environment, including meaningful
engagement with communities such as those with environmental justice
concerns.
(e) Use the NEPA process to identify and assess the reasonable
alternatives to proposed actions that will avoid or minimize adverse
effects of these actions upon the quality of the human environment,
such as alternatives that will reduce climate change-related effects or
address adverse health and environmental effects that
[[Page 35555]]
disproportionately affect communities with environmental justice
concerns.
(f) Use all practicable means, consistent with the requirements of
the Act and other essential considerations of national policy, to
restore and enhance the quality of the human environment and avoid or
minimize any possible adverse effects of their actions upon the quality
of the human environment.
Sec. 1500.3 NEPA compliance.
(a) Mandate. This subchapter is applicable to and binding on all
Federal agencies for implementing the procedural provisions of the
National Environmental Policy Act of 1969, as amended (Pub. L. 91-190,
42 U.S.C. 4321 et seq.) (NEPA or the Act). The regulations in this
subchapter are issued pursuant to NEPA; the Environmental Quality
Improvement Act of 1970, as amended (Pub. L. 91-224, 42 U.S.C. 4371 et
seq.); and Executive Order 11514, Protection and Enhancement of
Environmental Quality (March 5, 1970), as amended by Executive Order
11991, Relating to the Protection and Enhancement of Environmental
Quality (May 24, 1977). The regulations in this subchapter apply to the
whole of section 102(2) of NEPA. The provisions of the Act and the
regulations in this subchapter must be read together as a whole to
comply with the Act.
(b) Review of NEPA compliance. It is the Council's intention that
judicial review of agency compliance with the regulations in this
subchapter not occur before an agency has issued the record of decision
or taken other final agency action, except with respect to claims
brought by project sponsors related to deadlines under section
107(g)(3) of NEPA. It is also the Council's intention that minor, non-
substantive errors that have no effect on agency decision making shall
be considered harmless and shall not invalidate an agency action. It is
the Council's intention that any allegation of noncompliance with NEPA
and the regulations in this subchapter should be resolved as
expeditiously as appropriate.
(c) Severability. The sections of this subchapter are separate and
severable from one another. If any section or portion therein is stayed
or determined to be invalid, or the applicability of any section to any
person or entity is held invalid, it is the Council's intention that
the validity of the remainder of those parts shall not be affected,
with the remaining sections to continue in effect.
Sec. 1500.4 Concise and informative environmental documents.
Agencies shall prepare analytical, concise, and informative
environmental documents by:
(a) Meeting appropriate page limits (Sec. Sec. 1501.5(g) and
1502.7 of this subchapter).
(b) Discussing only briefly issues other than important ones (e.g.,
Sec. 1502.2(b) of this subchapter).
(c) Writing environmental documents in plain language (e.g., Sec.
1502.8 of this subchapter).
(d) Following a clear format for environmental impact statements
(Sec. 1502.10 of this subchapter).
(e) Emphasizing the portions of the environmental document that are
most useful to decision makers and the public (e.g., Sec. Sec.
1502.14, 1502.15, and 1502.16 of this subchapter) and reducing emphasis
on background material (e.g., Sec. 1502.1 of this subchapter).
(f) Using the scoping process to identify important environmental
issues deserving of study and to deemphasize unimportant issues,
narrowing the scope of the environmental impact statement process (or,
where an agency elects to do so, the environmental assessment process)
accordingly (Sec. Sec. 1501.9 and 1502.4 of this subchapter).
(g) Summarizing the environmental impact statement (Sec. 1502.12
of this subchapter).
(h) Using programmatic environmental documents and tiering from
documents of broad scope to those of narrower scope, to eliminate
repetitive discussions of the same issues (Sec. 1501.11 of this
subchapter).
(i) Incorporating by reference (Sec. 1501.12 of this subchapter).
(j) Integrating NEPA requirements with other environmental review
and consultation requirements (Sec. 1502.24 of this subchapter).
(k) Requiring that comments be as specific as possible (Sec.
1503.3 of this subchapter).
(l) When changes are minor, attaching and publishing only changes
to the draft environmental impact statement rather than rewriting and
publishing the entire statement (Sec. 1503.4(c) of this subchapter).
(m) Eliminating duplication with State, Tribal, and local
procedures, by providing for joint preparation of environmental
documents where practicable (Sec. 1506.2 of this subchapter), and with
other Federal procedures, by providing that an agency may adopt
appropriate environmental documents prepared by another Federal agency
(Sec. 1506.3 of this subchapter).
(n) Combining environmental documents with other documents (Sec.
1506.4 of this subchapter).
Sec. 1500.5 Efficient process.
Agencies shall improve efficiency of their NEPA processes by:
(a) Establishing categorical exclusions to define categories of
actions that normally do not have a significant effect on the human
environment (Sec. Sec. 1501.4 and 1507.3(c)(8) of this subchapter) and
therefore do not require preparation of an environmental assessment or
environmental impact statement.
(b) Using a finding of no significant impact when an action not
otherwise excluded will not have a significant effect on the human
environment (Sec. 1501.6 of this subchapter) and therefore does not
require preparation of an environmental impact statement.
(c) Integrating the NEPA process into early planning (Sec. 1501.2
of this subchapter).
(d) Engaging in interagency cooperation, including with affected
Federal, State, Tribal, and local agencies, before or during the
preparation of an environmental assessment or environmental impact
statement, rather than waiting to request or submit comments on a
completed document (Sec. Sec. 1501.7 and 1501.8 of this subchapter).
(e) Ensuring the swift and fair resolution of lead agency disputes
(Sec. 1501.7 of this subchapter).
(f) Using the scoping process for early identification of the
important issues that require detailed analysis (Sec. 1502.4 of this
subchapter).
(g) Meeting appropriate deadlines for the environmental assessment
and environmental impact statement processes (Sec. 1501.10 of this
subchapter).
(h) Preparing environmental documents early in the process
(Sec. Sec. 1502.5 and 1501.5(d) of this subchapter).
(i) Integrating NEPA requirements with other environmental review
and consultation requirements (Sec. 1502.24 of this subchapter).
(j) Eliminating duplication with State, Tribal, and local
procedures by providing for joint preparation of environmental
documents where practicable (Sec. 1506.2 of this subchapter) and with
other Federal procedures by providing that agencies may jointly prepare
or adopt appropriate environmental documents prepared by another agency
(Sec. 1506.3 of this subchapter).
(k) Combining environmental documents with other documents (Sec.
1506.4 of this subchapter).
[[Page 35556]]
(l) Using accelerated procedures for proposals for legislation
(Sec. 1506.8 of this subchapter).
Sec. 1500.6 Agency authority.
Each agency shall interpret the provisions of the Act as a
supplement to its existing authority and as a mandate to view policies
and missions in the light of the Act's national environmental
objectives, to the extent consistent with its existing authority.
Agencies shall review their policies, procedures, and regulations
accordingly and revise them as necessary to ensure full compliance with
the purposes and provisions of the Act and the regulations in this
subchapter. The phrase ``to the fullest extent possible'' in section
102 of NEPA means that each agency of the Federal Government shall
comply with the Act unless an agency activity, decision, or action is
exempted from NEPA by law or compliance with NEPA is impossible.
PART 1501--NEPA AND AGENCY PLANNING
Sec.
1501.1 Purpose.
1501.2 Apply NEPA early in the process.
1501.3 Determine the appropriate level of NEPA review.
1501.4 Categorical exclusions.
1501.5 Environmental assessments.
1501.6 Findings of no significant impact.
1501.7 Lead agency.
1501.8 Cooperating agencies.
1501.9 Public and governmental engagement.
1501.10 Deadlines and schedule for the NEPA process.
1501.11 Programmatic environmental documents and tiering.
1501.12 Incorporation by reference into environmental documents.
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902,
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.
Sec. 1501.1 Purpose.
The purposes of this part include:
(a) Integrating the NEPA process into agency planning at an early
stage to facilitate appropriate consideration of NEPA's policies,
promote an efficient process, and reduce delay;
(b) Providing for early engagement in the environmental review
process with other agencies, State, Tribal, and local governments, and
affected or interested persons, entities, and communities before a
decision is made;
(c) Providing for the swift and fair resolution of interagency
disputes;
(d) Identifying at an early stage the important environmental
issues deserving of study, and deemphasizing unimportant issues,
narrowing the scope of the environmental review and enhancing
efficiency accordingly; and
(e) Promoting accountability by establishing appropriate deadlines
and requiring schedules.
Sec. 1501.2 Apply NEPA early in the process.
(a) Agencies should integrate the NEPA process with other planning
and authorization processes at the earliest reasonable time to ensure
that agencies consider environmental effects in their planning and
decisions, to avoid delays later in the process, and to head off
potential conflicts.
(b) Each agency shall:
(1) Comply with the mandate of section 102(2)(A) of NEPA to utilize
a systematic, interdisciplinary approach, which will ensure the
integrated use of the natural and social sciences and the environmental
design arts in planning and in decision making that may have an impact
on the human environment, as specified by Sec. 1507.2(a) of this
subchapter.
(2) Identify environmental effects and values in adequate detail so
the decision maker can appropriately consider such effects and values
alongside economic and technical analyses. Whenever practicable,
agencies shall review and publish environmental documents and
appropriate analyses at the same time as other planning documents.
(3) Study, develop, and describe appropriate alternatives to
recommended courses of action in any proposal that involves unresolved
conflicts concerning alternative uses of available resources, as
provided by section 102(2)(H) of NEPA.
(4) Provide for actions subject to NEPA that are planned by
applicants before Federal involvement so that:
(i) Policies or designated staff are available to advise potential
applicants of studies or other information foreseeably required for
later Federal action.
(ii) The Federal agency consults early with appropriate State,
Tribal, and local governments and with interested persons and
organizations when their involvement is reasonably foreseeable.
(iii) The Federal agency commences its NEPA process at the earliest
reasonable time (Sec. Sec. 1501.5(d) and 1502.5(b) of this
subchapter).
Sec. 1501.3 Determine the appropriate level of NEPA review.
(a) Applicability. As a threshold determination, an agency shall
assess whether NEPA applies to the proposed activity or decision. In
assessing whether NEPA applies, Federal agencies should determine:
(1) Whether the proposed activity or decision is exempted from NEPA
by law;
(2) Whether compliance with NEPA would clearly and fundamentally
conflict with the requirements of another provision of Federal law;
(3) Whether the proposed activity or decision is not a major
Federal action (Sec. 1508.1(w) of this subchapter);
(4) Whether the proposed activity or decision is not a final agency
action within the meaning of such term in chapter 5 of title 5, United
States Code; or
(5) Whether the proposed activity or decision is a non-
discretionary action with respect to which such agency does not have
authority to take environmental factors into consideration in
determining whether to take the proposed action.
(b) Scope of action and analysis. If the agency determines that
NEPA applies, the agency shall consider the scope of the proposed
action and its effects to inform the agency's determination of the
appropriate level of NEPA review and whether aspects of the action are
non-discretionary. The agency shall use, as appropriate, the public
engagement and scoping mechanisms in Sec. Sec. 1501.9 and 1502.4 of
this subchapter to inform consideration of the scope of the proposed
action and determination of the level of NEPA review. The agency shall
evaluate, in a single review, proposals or parts of proposals that are
related closely enough to be, in effect, a single course of action. The
agency shall not avoid a determination of significance under paragraph
(c) of this section by terming an action temporary that is not
temporary in fact or segmenting an action into smaller component parts.
The agency also shall consider whether there are connected actions,
which are closely related Federal activities or decisions that should
be considered in the same NEPA review that:
(1) Automatically trigger other actions that may require NEPA
review;
(2) Cannot or will not proceed unless other actions are taken
previously or simultaneously; or
(3) Are interdependent parts of a larger action and depend on the
larger action for their justification.
(c) Levels of NEPA review. In assessing the appropriate level of
NEPA review, agencies may make use of any reliable data source and are
not required to undertake new scientific or technical research unless
it is essential to a reasoned choice among alternatives, and the
overall costs and timeframe of obtaining it are not unreasonable.
[[Page 35557]]
Agencies should determine whether the proposed action:
(1) Is appropriately categorically excluded (Sec. 1501.4);
(2) Is not likely to have significant effects or the significance
of the effects is unknown and is therefore appropriate for an
environmental assessment (Sec. 1501.5); or
(3) Is likely to have significant effects and is therefore
appropriate for an environmental impact statement (part 1502 of this
subchapter).
(d) Significance determination--context and intensity. In
considering whether an adverse effect of the proposed action is
significant, agencies shall examine both the context of the action and
the intensity of the effect. In assessing context and intensity,
agencies should consider the duration of the effect. Agencies may also
consider the extent to which an effect is adverse at some points in
time and beneficial in others (for example, in assessing the
significance of a habitat restoration action's effect on a species, an
agency may consider both any short-term harm to the species during
implementation of the action and any benefit to the same species once
the action is complete). However, agencies shall not offset an action's
adverse effects with other beneficial effects to determine significance
(for example, an agency may not offset an action's adverse effect on
one species with its beneficial effect on another species).
(1) Agencies shall analyze the significance of an action in several
contexts. Agencies should consider the characteristics of the
geographic area, such as proximity to unique or sensitive resources or
communities with environmental justice concerns. Depending on the scope
of the action, agencies should consider the potential global, national,
regional, and local contexts as well as the duration, including short-
and long-term effects.
(2) Agencies shall analyze the intensity of effects considering the
following factors, as applicable to the proposed action and in
relationship to one another:
(i) The degree to which the action may adversely affect public
health and safety.
(ii) The degree to which the action may adversely affect unique
characteristics of the geographic area such as historic or cultural
resources, parks, Tribal sacred sites, prime farmlands, wetlands, wild
and scenic rivers, or ecologically critical areas.
(iii) Whether the action may violate relevant Federal, State,
Tribal, or local laws or other requirements or be inconsistent with
Federal, State, Tribal, or local policies designed for the protection
of the environment.
(iv) The degree to which the potential effects on the human
environment are highly uncertain.
(v) The degree to which the action may adversely affect resources
listed or eligible for listing in the National Register of Historic
Places.
(vi) The degree to which the action may adversely affect an
endangered or threatened species or its habitat, including habitat that
has been determined to be critical under the Endangered Species Act of
1973.
(vii) The degree to which the action may adversely affect
communities with environmental justice concerns.
(viii) The degree to which the action may adversely affect rights
of Tribal Nations that have been reserved through treaties, statutes,
or Executive Orders.
Sec. 1501.4 Categorical exclusions.
(a) For efficiency and consistent with Sec. 1507.3(c)(8)(ii) of
this subchapter or paragraph (c), agencies shall establish categorical
exclusions for categories of actions that normally do not have a
significant effect on the human environment, individually or in the
aggregate, and therefore do not require preparation of an environmental
assessment or environmental impact statement unless extraordinary
circumstances exist that make application of the categorical exclusion
inappropriate, consistent with paragraph (b) of this section. Agencies
may establish categorical exclusions individually or jointly with other
agencies.
(b) If an agency determines that a categorical exclusion identified
in its agency NEPA procedures covers a proposed action, the agency
shall evaluate the action for extraordinary circumstances in which a
normally excluded action may have a significant effect.
(1) If an extraordinary circumstance exists, the agency
nevertheless may apply the categorical exclusion if the agency conducts
an analysis and determines that the proposed action does not in fact
have the potential to result in significant effects notwithstanding the
extraordinary circumstance, or the agency modifies the action to avoid
the potential to result in significant effects. In these cases, the
agency shall document such determination and should publish it on the
agency's website or otherwise make it publicly available.
(2) If the agency cannot categorically exclude the proposed action,
the agency shall prepare an environmental assessment or environmental
impact statement, as appropriate.
(c) In addition to the process for establishing categorical
exclusions under Sec. 1507.3(c)(8) of this subchapter, agencies may
establish categorical exclusions through a land use plan, a decision
document supported by a programmatic environmental impact statement or
programmatic environmental assessment, or other equivalent planning or
programmatic decision for which an environmental document has been
prepared, so long as the agency:
(1) Provides the Council an opportunity to review and comment prior
to public comment;
(2) Provides notification and an opportunity for public comment;
(3) Substantiates its determination that the category of actions
normally does not have significant effects, individually or in the
aggregate;
(4) Identifies extraordinary circumstances;
(5) Establishes a process for determining that a categorical
exclusion applies to a specific action or actions in the absence of
extraordinary circumstances, or, where extraordinary circumstances are
present, for determining the agency may apply the categorical exclusion
consistent with (b)(1) of this section; and
(6) Publishes a list of all categorical exclusions established
through these mechanisms on its website.
(d) Categorical exclusions established consistent with paragraph
(c) of this section or Sec. 1507.3(c)(8) of this subchapter may:
(1) Cover specific geographic areas or areas that share common
characteristics, e.g., habitat type;
(2) Have a limited duration;
(3) Include mitigation measures that, in the absence of
extraordinary circumstances, will ensure that any environmental effects
are not significant, so long as a process is established for monitoring
and enforcing any required mitigation measures, including through the
suspension or revocation of the relevant agency action; or
(4) Provide criteria that would cause the categorical exclusion to
expire because the agency's determination that the category of action
does not have significant effects, individually or in the aggregate, is
no longer applicable, including, as appropriate, because:
(i) The number of individual actions covered by the categorical
exclusion exceeds a specific threshold;
(ii) Individual actions covered by the categorical exclusion are
too close to one another in proximity or time; or
[[Page 35558]]
(iii) Environmental conditions or information upon which the
agency's determination was based have changed.
(e) An agency may adopt and apply a categorical exclusion listed in
another agency's NEPA procedures to a proposed action or a category of
proposed actions consistent with this paragraph. The agency shall:
(1) Identify the categorical exclusion listed in another agency's
NEPA procedures that covers its proposed action or a category of
proposed actions;
(2) Consult with the agency that established the categorical
exclusion to ensure that the proposed action or category of proposed
actions to which the agency intends to apply the categorical exclusion
is appropriate;
(3) Provide public notification of the categorical exclusion that
the agency is adopting, including a brief description of the proposed
action or category of proposed actions to which the agency intends to
apply the adopted categorical exclusion, the process the agency will
use to evaluate for extraordinary circumstances consistent with
paragraph (b) of this section, and a brief description of the agencies'
consultation;
(4) In applying the adopted categorical exclusion to a proposed
action, evaluate the proposed action for extraordinary circumstances,
consistent with paragraph (b) of this section; and
(5) Publish the documentation of the application of the adopted
categorical exclusion.
Sec. 1501.5 Environmental assessments.
(a) An agency shall prepare an environmental assessment for a
proposed action that is not likely to have significant effects or when
the significance of the effects is unknown unless the agency finds that
a categorical exclusion (Sec. 1501.4) is applicable or has decided to
prepare an environmental impact statement.
(b) An agency may prepare an environmental assessment on any action
to assist agency planning and decision making.
(c) An environmental assessment shall:
(1) Briefly provide sufficient evidence and analysis for
determining whether to prepare an environmental impact statement or a
finding of no significant impact;
(2) Briefly discuss the:
(i) Purpose and need for the proposed agency action;
(ii) Alternatives as required by section 102(2)(H) of NEPA; and
(iii) Environmental effects of the proposed action and
alternatives;
(3) List the Federal agencies; State, Tribal, and local governments
and agencies; or persons consulted; and
(4) Provide a unique identification number for tracking purposes,
which the agency shall reference on all associated environmental review
documents prepared for the proposed action and in any database or
tracking system for such documents.
(d) For applications to the agency requiring an environmental
assessment, the agency shall commence the environmental assessment as
soon as practicable after receiving the application.
(e) If an agency publishes a draft environmental assessment, the
agency shall invite public comment and consider those comments in
preparing the final environmental assessment.
(f) Agencies shall involve the public, State, Tribal, and local
governments, relevant agencies, and any applicants, to the extent
practicable in preparing environmental assessments (see Sec. 1501.9).
(g) The text of an environmental assessment shall not exceed 75
pages, not including any citations or appendices.
(h) Agencies:
(1) Should supplement environmental assessments if a major Federal
action is incomplete or ongoing, and:
(i) The agency makes substantial changes to the proposed action
that are relevant to environmental concerns; or
(ii) There are substantial new circumstances or information about
the significance of the adverse effects that bear on the analysis to
determine whether to prepare a finding of no significant impact or an
environmental impact statement.
(2) May also prepare supplements when the agency determines that
the purposes of the Act will be furthered by doing so.
(i) Agencies may reevaluate an environmental assessment to
determine that the agency does not need to prepare a supplemental
environmental assessment and a new finding of no significant impact or
an environmental impact statement.
(j) Agencies generally should apply Sec. 1502.21 of this
subchapter to environmental assessments.
(k) As appropriate to improve efficiency and effectiveness of
environmental assessments, agencies may apply the other provisions of
part 1502 and 1503 of this subchapter, including Sec. Sec. 1502.4,
1502.22, 1502.24, and 1503.4, to environmental assessments.
Sec. 1501.6 Findings of no significant impact.
(a) After completing an environmental assessment, an agency shall
prepare:
(1) A finding of no significant impact if the agency determines,
based on the environmental assessment, that NEPA does not require
preparation of an environmental impact statement because the proposed
action will not have significant effects;
(2) A mitigated finding of no significant impact if the agency
determines, based on the environmental assessment, that NEPA does not
require preparation of an environmental impact statement because the
proposed action will not have significant effects due to mitigation; or
(3) An environmental impact statement if the agency determines,
based on the environmental assessment, that the action will have
significant effects.
(b)(1) The agency shall make the finding of no significant impact
available to the affected public as specified in Sec. 1501.9(c)(5).
(2) In the following circumstances, the agency shall make the
finding of no significant impact available for public review for 30
days before the agency determines whether to prepare an environmental
impact statement and before the action may begin:
(i) The proposed action is or is closely similar to one that
normally requires the preparation of an environmental impact statement
under the procedures adopted by the agency pursuant to Sec. 1507.3 of
this subchapter; or
(ii) The nature of the proposed action is one without precedent.
(c) The finding of no significant impact shall include the
environmental assessment or incorporate it by reference and shall note
any other environmental documents related to it (Sec. 1502.4(d)(3) of
this subchapter). If the environmental assessment is included, the
finding need not repeat any of the discussion in the assessment but may
incorporate it by reference.
(d) The finding of no significant impact shall state the authority
for any mitigation that the agency has adopted and any applicable
monitoring or enforcement provisions. If the agency finds no
significant effects based on mitigation, the mitigated finding of no
significant impact shall state the enforceable mitigation requirements
or commitments that will be undertaken and the authority to enforce
them, such as terms and conditions or other measures in a relevant
permit, incidental take statement, or other agreement, and the agency
shall prepare a monitoring and compliance plan for that mitigation
consistent with
[[Page 35559]]
Sec. 1505.3(c) of this subchapter. In addition, the agency shall
prepare a monitoring and compliance plan for other mitigation as
required by Sec. 1505.3(c) of this subchapter.
Sec. 1501.7 Lead agency.
(a) A lead agency shall supervise the preparation of an
environmental impact statement or environmental assessment if more than
one Federal agency either:
(1) Proposes or is involved in the same action; or
(2) Is involved in a group of actions directly related to each
other because of their functional interdependence or geographical
proximity.
(b) A Federal, State, Tribal, or local agency may serve as a joint
lead agency to prepare an environmental impact statement or
environmental assessment (Sec. 1506.2 of this subchapter). A joint
lead agency shall jointly fulfill the role of a lead agency.
(c) If an action falls within the provisions of paragraph (a) of
this section, the participating Federal agencies shall determine, by
letter or memorandum, which agency will be the lead agency, considering
the factors in paragraphs (c)(1) through (c)(5) of this section, and
the lead agency shall determine which agencies will be joint lead or
cooperating agencies. The agencies shall resolve the lead agency
question so as not to cause delay. If there is disagreement among the
agencies, the following factors (which are listed in order of
descending importance) shall determine lead agency designation:
(1) Magnitude of agency's involvement;
(2) Project approval or disapproval authority;
(3) Expertise concerning the action's environmental effects;
(4) Duration of agency's involvement; and
(5) Sequence of agency's involvement.
(d) Any Federal, State, Tribal, or local agency or person
substantially affected by the absence of a lead agency designation, may
make a written request to the senior agency officials of the potential
lead agencies that a lead agency be designated. An agency that receives
a request under this paragraph shall transmit such request to each
participating Federal agency and to the Council.
(e) If Federal agencies are unable to agree on which agency will be
the lead agency or if the procedure described in paragraph (c) of this
section has not resulted in a lead agency designation within 45 days of
the written request to the senior agency officials, any of the agencies
or persons concerned may file a request with the Council asking it to
determine which Federal agency shall be the lead agency. The Council
shall transmit a copy of the request to each potential lead agency. The
request shall consist of:
(1) A precise description of the nature and extent of the proposed
action; and
(2) A detailed statement of why each potential lead agency should
or should not be the lead agency under the criteria specified in
paragraph (c) of this section.
(f) Any potential lead agency may file a response no later than 20
days after a request is filed with the Council. As soon as possible,
but not later than 40 days after receiving the request, the Council
shall designate which Federal agency will be the lead agency and which
other Federal agencies will be cooperating agencies.
(g) To the extent practicable, if a proposal will require action by
more than one Federal agency and the lead agency determines that the
proposal requires preparation of an environmental impact statement, the
lead and cooperating agencies shall evaluate it in a single
environmental impact statement; the lead and cooperating agencies shall
issue, except where inappropriate or inefficient, a joint record of
decision. To the extent practicable, if a proposal will require action
by more than one Federal agency and the lead agency determines that it
requires preparation of an environmental assessment, the lead and
cooperating agencies shall evaluate the proposal in a single
environmental assessment and issue a joint finding of no significant
impact or jointly determine to prepare an environmental impact
statement.
(h) With respect to cooperating agencies, the lead agency shall:
(1) Request the participation of each cooperating agency in the
NEPA process at the earliest practicable time;
(2) Consider any analysis or proposal created by a cooperating
agency and, to the maximum extent practicable, use the environmental
analysis, proposal, and information provided by cooperating agencies;
(3) Meet with a cooperating agency at the latter's request; and
(4) Determine the purpose and need, and alternatives in
consultation with any cooperating agency.
Sec. 1501.8 Cooperating agencies.
(a) The purpose of this section is to emphasize agency cooperation
early in the NEPA process. Upon request of the lead agency, any Federal
agency with jurisdiction by law shall be a cooperating agency. In
addition, upon request of the lead agency, any other Federal agency
with special expertise with respect to any environmental issue may be a
cooperating agency. A State, Tribal, or local agency of similar
qualifications may become a cooperating agency by agreement with the
lead agency. Relevant special expertise may include Indigenous
Knowledge. An agency may request that the lead agency designate it a
cooperating agency, and a Federal agency may appeal a denial of its
request to the Council.
(b) Each cooperating agency shall:
(1) Participate in the NEPA process at the earliest practicable
time.
(2) Participate in the scoping process (described in Sec. 1502.4).
(3) On request of the lead agency, assume responsibility for
developing information and preparing environmental analyses, including
portions of the environmental impact statement or environmental
assessment concerning which the cooperating agency has special
expertise.
(4) On request of the lead agency, make available staff support to
enhance the lead agency's interdisciplinary capability.
(5) Normally use its own funds. To the extent available funds
permit, the lead agency shall fund those major activities or analyses
it requests from cooperating agencies. Potential lead agencies shall
include such funding requirements in their budget requests.
(6) Consult with the lead agency in developing and updating the
schedule (Sec. 1501.10), meet the schedule, and elevate, as soon as
practicable, to the senior agency official of the lead agency any
issues relating to purpose and need, alternatives, or other issues that
may affect any agencies' ability to meet the schedule.
(7) Meet the lead agency's schedule for providing comments.
(8) To the maximum extent practicable, jointly issue environmental
documents with the lead agency.
(c) In response to a lead agency's request for assistance in
preparing the environmental documents (described in paragraph (b)(3),
(4), or (5) of this section), a cooperating agency may reply that other
program commitments preclude any involvement or the degree of
involvement requested in the action that is the subject of the
environmental impact statement or environmental assessment. The
cooperating agency shall submit a copy of this reply to the Council and
the senior agency official of the lead agency.
[[Page 35560]]
Sec. 1501.9 Public and governmental engagement.
(a) Purpose and responsibility. The purpose of public engagement is
to inform the public of an agency's proposed action, allow for
meaningful engagement during the NEPA process, and ensure decision
makers are informed by the views of the public. The purpose of
governmental engagement is to identify the potentially affected
Federal, State, Tribal, and local governments, invite them to serve as
cooperating agencies, as appropriate, and ensure that participating
agencies have opportunities to engage in the environmental review
process, as appropriate. This section sets forth agencies'
responsibilities and best practices to conduct public and governmental
engagement. Agencies shall determine the appropriate methods of public
and governmental engagement for their proposed actions.
(b) Determination of scope. Agencies shall use public and
governmental engagement, as appropriate, to inform the level of review
for and scope of analysis of a proposed action, consistent with Sec.
1501.3 of this subchapter. For environmental impact statements, in
addition to the requirements of this section, agencies also shall
comply with the requirements for scoping set forth in Sec. 1502.4 of
this subchapter. For environmental assessments, in addition to the
requirements of this section, agencies should consider applying the
requirements for scoping set forth in Sec. 1502.4 of this subchapter,
as appropriate.
(c) Outreach and notification. Agencies shall:
(1) Invite the participation of any likely affected Federal, State,
Tribal, and local agencies and governments, as early as practicable,
including, as appropriate, as cooperating agencies under Sec. 1501.8
of this subchapter;
(2) Conduct, as appropriate, early engagement with likely affected
or interested members of the public (including those who might not be
in accord with the action), unless there is a limited exception under
Sec. 1507.3(d)(3) of this subchapter; and
(3) Consider what methods of outreach and notification are
necessary and appropriate based on the likely affected entities and
persons; the scope, scale, and complexity of the proposed action and
alternatives; the degree of public interest; and other relevant
factors. When selecting appropriate methods for providing public
notification, agencies shall consider the ability of affected persons
and agencies to access electronic media and the primary languages of
affected persons.
(4) Publish notification of proposed actions they are analyzing
through an environmental impact statement, including through a notice
of intent consistent with Sec. 1502.4 of this subchapter.
(5) Provide public notification of NEPA-related hearings, public
meetings, and other opportunities for public engagement, and the
availability of environmental documents to inform those persons and
agencies who may be interested or affected by their proposed actions.
(i) The agency shall notify those entities and persons who have
requested notification on a particular action and those who have
requested regular notification from the agency on its actions.
(ii) In the case of an action with effects of national concern,
notification shall also include publication of a notice in the Federal
Register.
(iii) In the case of an action with effects primarily of local
concern, the notification may include distribution to or through:
(A) State, Tribal, and local governments and agencies that may be
interested or affected by the proposed action.
(B) Following the affected State or Tribe's public notification
procedures for comparable actions.
(C) Publication in local newspapers having general circulation.
(D) Other local media.
(E) Potentially interested community organizations, including small
business associations.
(F) Publication in newsletters that may be expected to reach
potentially interested persons.
(G) Direct mailing to owners and occupants of nearby or affected
property.
(H) Posting of notification on- and off-site in the area where the
action is to be located.
(I) Electronic media (e.g., a project or agency website, dashboard,
email list, or social media). Agencies should establish email
notification lists or similar methods for the public to easily request
electronic notifications for a proposed action.
(6) Make environmental impact statements, the comments received,
and any underlying documents available to the public pursuant to the
provisions of the Freedom of Information Act, as amended (5 U.S.C.
552), and without charge to the extent practicable.
(d) Public meetings and hearings. Agencies shall hold or sponsor
public hearings, public meetings, or other opportunities for public
engagement whenever appropriate or in accordance with statutory or
regulatory requirements or applicable agency NEPA procedures. Agencies
may conduct public hearings and public meetings by means of electronic
communication except where another format is required by law. When
determining the format for a public hearing or public meeting, such as
whether an in-person or virtual meeting, or formal hearing or listening
session is most appropriate, agencies shall consider the needs of
affected communities. When accepting comments for electronic or virtual
public hearings or meetings, agencies shall allow the public to submit
comments electronically, by regular mail, or by other appropriate
methods. Agencies should make a draft environmental document available
to the public at least 15 days in advance when it is the subject of a
public hearing or meeting unless the purpose of such hearing or meeting
is to provide information for the development of the document.
(e) Agency procedures. Agencies shall make diligent efforts to
engage the public in preparing and implementing their NEPA procedures
(Sec. 1507.3 of this subchapter).
Sec. 1501.10 Deadlines and schedule for the NEPA process.
(a) To ensure that agencies conduct sound NEPA reviews as
efficiently and expeditiously as practicable, Federal agencies shall
set deadlines and schedules appropriate to individual actions or types
of actions consistent with this section and the time intervals required
by Sec. 1506.10 of this subchapter. Where applicable, the lead agency
shall establish the schedule for a proposed action and make any
necessary updates to the schedule in consultation with and seek the
concurrence of any joint lead, cooperating, and participating agencies,
and in consultation with any applicants.
(b) To ensure timely decision making, agencies shall complete:
(1) Environmental assessments within 1 year, unless the lead agency
extends the deadline in writing and, as applicable, in consultation
with any applicant, and establishes a new deadline that provides only
so much additional time as is necessary to complete the environmental
assessment.
(2) Environmental impact statements within 2 years, unless the lead
agency extends the deadline in writing and, as applicable, in
consultation with any applicant and establishes a new deadline that
provides only so much additional time as is necessary to complete the
environmental impact statement.
[[Page 35561]]
(3) The deadlines in paragraphs (b)(1) and (2) of this section are
measured from the sooner of, as applicable:
(i) the date on which the agency determines that NEPA requires an
environmental impact statement or environmental assessment for the
proposed action;
(ii) the date on which the agency notifies an applicant that the
application to establish a right-of-way for the proposed action is
complete; or
(iii) the date on which the agency issues a notice of intent for
the proposed action.
(4) The deadlines in paragraphs (b)(1) and (2) of this section are
measured to, as applicable:
(i) For environmental assessments, the date on which the agency:
(A) Publishes an environmental assessment;
(B) Where applicable, makes the environmental assessment available
pursuant to an agency's pre-decisional administrative review process;
or
(C) Issues a notice of intent to prepare an environmental impact
statement; and
(ii) For environmental impact statements, the date on which the
Environmental Protection Agency publishes a notice of availability of
the final environmental impact statement or, where applicable, the date
on which the agency makes the final environmental impact statement
available pursuant to an agency's pre-decisional administrative review
process, consistent with Sec. 1506.10(c)(1) of this subchapter.
(5) Each lead agency shall annually submit the report to Congress
on any missed deadlines for environmental assessments and environmental
impact statements required by section 107(h) of NEPA.
(c) To facilitate predictability, the lead agency shall develop a
schedule for completion of environmental impact statements and
environmental assessments as well as any authorizations required to
carry out the action. The lead agency shall set milestones for all
environmental reviews, permits, and authorizations required for
implementation of the action, in consultation with any applicant and in
consultation with and seek the concurrence of all joint lead,
cooperating, and participating agencies, as soon as practicable.
Schedules may vary depending on the type of action and in consideration
of other factors in paragraph (d) of this section. The lead agency
should develop a schedule that is based on its expertise reviewing
similar types of actions under NEPA. All agencies with milestones,
including those for a review, permit, or authorization, in the schedule
shall take appropriate measures to meet the schedule. If a
participating agency anticipates that a milestone will be missed, the
agency shall notify, as applicable, the agency responsible for the
milestone and the lead agency, and request that they take appropriate
measures to comply with the schedule. As soon as practicable, the lead
and any other agency affected by a potentially missed milestone shall
elevate any unresolved disputes contributing to the potentially missed
milestone to the appropriate officials of the agencies responsible for
the potentially missed milestone, to ensure timely resolution within
the deadlines for the individual action.
(d) The lead agency may consider the following factors in
determining the schedule and deadlines:
(1) Potential for environmental harm.
(2) Size of the proposed action.
(3) State of the art of analytic techniques.
(4) Degree of public need for the proposed action, including the
consequences of delay.
(5) Number of persons and agencies affected.
(6) Availability of relevant information.
(7) Degree to which a substantial dispute exists as to the size,
location, nature, or consequences of the proposed action and its
effects.
(8) Time limits imposed on the agency by law, regulation, Executive
order, or court ordered deadlines.
(9) Time necessary to conduct government-to-government Tribal
consultation.
(e) The schedule for environmental impact statements shall include
the following milestones:
(1) The publication of the notice of intent;
(2) The issuance of the draft environmental impact statement;
(3) The public comment period on the draft environmental impact
statement, consistent with Sec. 1506.10 of this subchapter;
(4) The issuance of the final environmental impact statement; and
(5) The issuance of the record of decision.
(f) The schedule for environmental assessments shall include the
following milestones:
(1) Decision to prepare an environmental assessment;
(2) Issuance of the draft environmental assessment, where
applicable;
(3) The public comment period on the draft environmental
assessment, consistent with Sec. 1501.5 of this subchapter, where
applicable; and
(4) Issuance of the final environmental assessment and decision on
whether to issue a finding of no significant impact or issue a notice
of intent to prepare an environmental impact statement.
(g) An agency may designate a person (such as the project manager
or a person in the agency's office with NEPA responsibilities) to
expedite the NEPA process.
(h) For environmental impact statements, agencies shall make
schedules for completing the NEPA process publicly available, such as
on their website or another publicly accessible platform. If agencies
make subsequent changes to the schedule, agencies shall publish
revisions to the schedule and explain the basis for substantial
changes.
Sec. 1501.11 Programmatic environmental documents and tiering.
(a) Programmatic environmental documents. Agencies may prepare
programmatic environmental documents, which may be either environmental
impact statements or environmental assessments, to evaluate the
environmental effects of policies, programs, plans, or groups of
related activities. When agencies prepare such documents, they should
be relevant to the agency decisions and timed to coincide with
meaningful points in agency planning and decision making. Agencies may
use programmatic environmental documents to conduct a broad or holistic
evaluation of effects or policy alternatives; evaluate widely
applicable measures; or avoid duplicative analysis for individual
actions by first considering relevant issues at a broad or programmatic
level.
(1) When preparing programmatic environmental documents (including
proposals by more than one agency), agencies may find it useful to
evaluate the proposal(s) in one of the following ways:
(i) Geographically, including actions occurring in the same general
location, such as body of water, region, or metropolitan area.
(ii) Thematically or by sector, including actions that have
relevant similarities, such as common timing, effects, alternatives,
methods of implementation, technology, media, or subject matter.
(iii) By stage of technological development, including Federal or
federally assisted research, development, or demonstration programs for
new technologies that, if applied, could significantly affect the
quality of the human environment. Documents on such programs should be
[[Page 35562]]
completed before the program has reached a stage of investment or
commitment to implementation likely to determine subsequent development
or limit the choice of reasonable alternatives.
(2) Agency actions that may be appropriate for programmatic
environmental documents include:
(i) Programs, policies, or plans, including land use or resource
management plans;
(ii) Regulations;
(iii) National or regional actions;
(iv) Actions that have multiple stages or phases, and are part of
an overall plan or program; or
(v) A group of projects or related types of projects.
(3) Agencies should, as appropriate, employ scoping (Sec. 1502.4
of this subchapter), tiering (paragraph (b) of this section), and other
methods listed in Sec. Sec. 1500.4 and 1500.5 of this subchapter, to
describe the relationship between the programmatic environmental
document and related individual actions and to avoid duplication and
delay. The programmatic environmental document shall identify any
decisions or categories of decisions that the agency anticipates making
in reliance on it.
(b) Tiering. Where an existing environmental impact statement,
environmental assessment, or programmatic environmental document is
relevant to a later proposed action, agencies may employ tiering.
Tiering allows subsequent tiered environmental analysis to avoid
duplication and focus on issues, effects, or alternatives not fully
addressed in a programmatic environmental document, environmental
impact statement, or environmental assessment prepared at an earlier
phase or stage. Agencies generally should tier their environmental
impact statements and environmental assessments when it would eliminate
repetitive discussions of the same issues, focus on the actual issues
ripe for decision, and exclude from consideration issues already
decided.
(1) When an agency has prepared an environmental impact statement,
environmental assessment or programmatic environmental document for a
program or policy and then prepares a subsequent statement or
assessment on an action included within the program or policy (such as
a project- or site-specific action), the tiered document shall discuss
the relationship between the tiered document and the previous review,
and summarize and incorporate by reference the issues discussed in the
broader document. The tiered document shall concentrate on the issues
specific to the subsequent action, analyzing site-, phase-, or stage-
specific conditions and reasonably foreseeable effects. The agency
shall provide for public engagement opportunities consistent with the
type of environmental document prepared and appropriate for the
location, phase, or stage. The tiered document shall state where the
earlier document is publicly available.
(2) Tiering is appropriate when the sequence from an environmental
impact statement or environmental assessment is:
(i) From a programmatic, plan, or policy environmental impact
statement or environmental assessment to a program, plan, or policy
statement or assessment of lesser or narrower scope or to a site-
specific statement or assessment.
(ii) From an environmental impact statement or environmental
assessment on a specific action at an early stage (such as need and
site selection) to a subsequent statement or assessment at a later
stage (such as environmental mitigation). Tiering in such cases is
appropriate when it helps the agency to focus on the issues that are
ripe for decision and exclude from consideration issues already decided
or not yet ripe.
(c) Reevaluation. When an agency prepares a programmatic
environmental document for which judicial review was available, the
agency may rely on the analysis included in the programmatic
environmental document in a subsequent environmental document for
related actions as follows:
(1) Within 5 years and without additional review of the analysis in
the programmatic environmental document, unless there are substantial
new circumstances or information about the significance of adverse
effects that bear on the analysis; or
(2) After 5 years, so long as the agency reevaluates the analysis
in the programmatic environmental document and any underlying
assumption to ensure reliance on the analysis remains valid. The agency
shall briefly document its reevaluation and explain why the analysis
remains valid considering any new and substantial information or
circumstances.
Sec. 1501.12 Incorporation by reference into environmental documents.
Agencies shall incorporate material, such as planning studies,
analyses, or other relevant information, into environmental documents
by reference when the effect will be to cut down on bulk without
impeding agency and public review of the action. Agencies shall cite
the incorporated material in the document, briefly describe its
content, and briefly explain the relevance of the incorporated material
to the environmental document. Agencies shall not incorporate material
by reference unless it is reasonably available for review, such as on a
publicly accessible website, by potentially interested persons
throughout the time allowed for comment or public review. Agencies
should provide digital references, such as hyperlinks, to the
incorporated material or otherwise indicate how the public can access
the material for review. Agencies shall not incorporate by reference
material based on proprietary data that is not available for review and
comment.
PART 1502--ENVIRONMENTAL IMPACT STATEMENT
Sec.
1502.1 Purpose of environmental impact statement.
1502.2 Implementation.
1502.3 Statutory requirements for environmental impact statements.
1502.4 Scoping.
1502.5 Timing.
1502.6 Interdisciplinary preparation.
1502.7 Page limits.
1502.8 Writing.
1502.9 Draft, final, and supplemental statements.
1502.10 Recommended format.
1502.11 Cover.
1502.12 Summary.
1502.13 Purpose and need.
1502.14 Alternatives including the proposed action.
1502.15 Affected environment.
1502.16 Environmental consequences.
1502.17 Summary of scoping information.
1502.18 List of preparers.
1502.19 Appendix.
1502.20 Publication of the environmental impact statement.
1502.21 Incomplete or unavailable information.
1502.22 Cost-benefit analysis.
1502.23 [Reserved]
1502.24 Environmental review and consultation requirements.
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902,
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.
Sec. 1502.1 Purpose of environmental impact statement.
(a) The primary purpose of an environmental impact statement
prepared pursuant to section 102(2)(C) of NEPA is to serve as an
action-forcing device by ensuring agencies consider the environmental
effects of their action in decision making, so that the policies and
goals defined in the Act are infused
[[Page 35563]]
into the ongoing programs and actions of the Federal Government.
(b) Environmental impact statements shall provide full and fair
discussion of significant effects and shall inform decision makers and
the public of reasonable alternatives that would avoid or minimize
adverse effects or enhance the quality of the human environment.
Agencies shall focus on important environmental issues and reasonable
alternatives and shall reduce paperwork and the accumulation of
extraneous background data.
(c) Environmental impact statements shall be concise, clear, and to
the point, and shall be supported by evidence that the agency has made
the necessary environmental analyses. An environmental impact statement
is more than a disclosure document. Federal agencies shall use
environmental impact statements in conjunction with other relevant
material to plan actions, involve the public, and make decisions.
Sec. 1502.2 Implementation.
To achieve the purposes set forth in Sec. 1502.1, agencies shall
prepare environmental impact statements in the following manner:
(a) Environmental impact statements shall not be encyclopedic.
(b) Environmental impact statements shall discuss effects in
proportion to their significance. There shall be only brief discussion
of other than important issues. As in an environmental assessment and
finding of no significant impact, there should be only enough
discussion to show why more study is not warranted.
(c) Environmental impact statements shall be analytical, concise,
and no longer than necessary to comply with NEPA and with the
regulations in this subchapter. Length should be proportional to
potential environmental effects and the scope and complexity of the
action.
(d) Environmental impact statements shall state how alternatives
considered in them and decisions based on them will or will not achieve
the requirements of sections 101 and 102(1) of NEPA, the regulations in
this subchapter, and other environmental laws and policies.
(e) The range of alternatives discussed in environmental impact
statements shall encompass those to be considered by the decision
maker.
(f) Agencies shall not commit resources prejudicing the selection
of alternatives before making a decision (see also Sec. 1506.1 of this
subchapter).
(g) Environmental impact statements shall serve as the means of
assessing the environmental impact of proposed agency actions, rather
than justifying decisions already made.
Sec. 1502.3 Statutory requirements for environmental impact
statements.
As required by section 102(2)(C) of NEPA, environmental impact
statements are to be included in every Federal agency recommendation or
report on proposals for legislation and other major Federal actions
significantly affecting the quality of the human environment.
Sec. 1502.4 Scoping.
(a) Purpose. Agencies shall use scoping, an early and open process
consistent with Sec. 1501.9 of this subchapter, to determine the scope
of issues for analysis in an environmental impact statement, including
identifying the important issues and eliminating from further study
unimportant issues. Scoping should begin as soon as practicable after
the proposal for action is sufficiently developed for agency
consideration. Scoping may include appropriate pre-application
procedures or work conducted prior to publication of the notice of
intent (see Sec. Sec. 1501.3 and 1501.9 of this subchapter).
(b) Scoping outreach. When preparing an environmental impact
statement, agencies shall facilitate notification to persons and
agencies who may be interested or affected by an agency's proposed
action, consistent with Sec. 1501.9 of this subchapter. As part of the
scoping process, the lead agency may hold a scoping meeting or
meetings, publish scoping information, or use other means to
communicate with those persons or agencies who may be interested or
affected, which the agency may integrate with any other early planning
meeting.
(c) Inviting participation. As part of the scoping process, and
consistent with Sec. 1501.9 of this subchapter, the lead agency shall
invite the participation of likely affected Federal, State, Tribal, and
local agencies and governments as cooperating or participating
agencies, as appropriate; any applicant; and other likely affected or
interested persons (including those who might not be in accord with the
action), unless there is a limited exception under Sec. 1507.3(d)(3)
of this subchapter.
(d) Additional scoping responsibilities. As part of the scoping
process, the lead agency shall:
(1) Identify and eliminate from detailed study the issues that are
not important or have been covered by prior environmental review(s)
(Sec. Sec. 1501.12 and 1506.3 of this subchapter), narrowing the
discussion of these issues in the environmental impact statement to a
brief presentation of why they will not be important or providing a
reference to their coverage elsewhere.
(2) Allocate assignments for preparation of the environmental
impact statement among the lead and cooperating agencies, with the lead
agency retaining responsibility for the statement.
(3) Indicate any publicly available environmental assessments and
other environmental impact statements that are being or will be
prepared and are related to but are not part of the scope of the
environmental impact statement under consideration.
(4) Identify other environmental review, authorization, and
consultation requirements so the lead and cooperating agencies may
prepare other required analyses and studies concurrently and integrated
with the environmental impact statement, as provided in Sec. 1502.24.
(5) Indicate the relationship between the timing of the preparation
of environmental analyses and the agencies' tentative planning and
decision-making schedule.
(e) Notice of intent. As soon as practicable after determining that
a proposal is sufficiently developed to allow for meaningful public
comment and requires an environmental impact statement, the lead agency
shall publish a notice of intent to prepare an environmental impact
statement in the Federal Register. In addition to the Federal Register
notice, an agency also may publish notification in accordance with
Sec. 1501.9 of this subchapter. The notice shall include, as
appropriate:
(1) The purpose and need for the proposed agency action;
(2) A preliminary description of the proposed action and
alternatives the environmental impact statement will consider;
(3) A brief summary of expected effects;
(4) Anticipated permits and other authorizations;
(5) A schedule for the decision-making process;
(6) A description of the public scoping process, including any
scoping meeting(s);
(7) A request for comment on alternatives and effects, as well as
on relevant information, studies, or analyses with respect to the
proposed action;
(8) Contact information for a person within the agency who can
answer questions about the proposed action and the environmental impact
statement;
(9) Identification of any cooperating and participating agencies,
and any information that such agencies require in the notice to
facilitate their decisions
[[Page 35564]]
or authorizations that will rely upon the resulting environmental
impact statement; and
(10) A unique identification number for tracking purposes, which
the agency shall reference on all environmental documents prepared for
the proposed action and in any database or tracking system for such
documents.
(f) Notices of withdrawal or cancellation. If an agency withdraws,
cancels, or otherwise ceases the consideration of a proposed action
before completing a final environmental impact statement, the agency
shall publish a notice in the Federal Register.
(g) Revisions. An agency shall revise the determinations made under
paragraphs (b), (c), and (d) of this section if substantial changes are
made later in the proposed action, or if important new circumstances or
information arise that bear on the proposal or its effects.
Sec. 1502.5 Timing.
An agency should commence preparation of an environmental impact
statement as close as practicable to the time the agency is developing
or receives a proposal so that preparation can be completed in time for
the final statement to be included in any recommendation or report on
the proposal. The statement shall be prepared early enough so that it
can serve as an important practical contribution to the decision-making
process and will not be used to rationalize or justify decisions
already made (Sec. Sec. 1501.2 of this subchapter and 1502.2). For
instance:
(a) For projects directly undertaken by Federal agencies, the
agency shall prepare the environmental impact statement at the
feasibility analysis or equivalent stage evaluating whether to proceed
with the project and may supplement it at a later stage, if necessary.
(b) For applications to the agency requiring an environmental
impact statement, the agency shall commence the statement as soon as
practicable after receiving the complete application. Federal agencies
should work together and with potential applicants and applicable
State, Tribal, and local agencies and governments prior to receipt of
the application.
(c) For adjudication, the final environmental impact statement
shall normally precede the final staff recommendation and that portion
of the public hearing related to the impact study. In appropriate
circumstances, the statement may follow preliminary hearings designed
to gather information for use in the statement.
(d) For informal rulemaking, the draft environmental impact
statement shall normally accompany the proposed rule.
Sec. 1502.6 Interdisciplinary preparation.
Agencies shall prepare environmental impact statements using an
interdisciplinary approach that will ensure the integrated use of the
natural and social sciences and the environmental design arts (section
102(2)(A) of NEPA). The disciplines of the preparers shall be
appropriate to the scope and issues identified in the scoping process
(Sec. 1502.4 of this subchapter).
Sec. 1502.7 Page limits.
The text of final environmental impact statements, not including
citations or appendices, shall not exceed 150 pages except for
proposals of extraordinary complexity, which shall not exceed 300
pages.
Sec. 1502.8 Writing.
Agencies shall write environmental impact statements in plain
language and should use, as relevant, appropriate visual aids or charts
so that decision makers and the public can readily understand such
statements. Agencies should employ writers of clear prose or editors to
write, review, or edit statements, which shall be based upon the
analysis and supporting data from the natural and social sciences and
the environmental design arts.
Sec. 1502.9 Draft, final, and supplemental statements.
(a) Generally. Except for proposals for legislation as provided in
Sec. 1506.8 of this subchapter, agencies shall prepare environmental
impact statements in two stages and, where necessary, supplement them
as provided in paragraph (d)(1) of this section.
(b) Draft environmental impact statements. Agencies shall prepare
draft environmental impact statements in accordance with the scope
decided upon in the scoping process (Sec. 1502.4 of this subchapter).
The lead agency shall work with the cooperating agencies and shall
obtain comments as required in part 1503 of this subchapter. To the
fullest extent practicable, the draft statement must meet the
requirements established for final statements in section 102(2)(C) of
NEPA and in the regulations in this subchapter. If the agency
determines that a draft statement is so inadequate as to preclude
meaningful analysis, the agency shall prepare and publish a
supplemental draft of the appropriate portion. At appropriate points in
the draft statement, the agency shall discuss all major points of view
on the environmental effects of the alternatives, including the
proposed action.
(c) Final environmental impact statements. Final environmental
impact statements shall consider and respond to comments as required in
part 1503 of this subchapter. At appropriate points in the final
statement, the agency shall discuss any responsible opposing view that
was not adequately discussed in the draft statement and shall indicate
the agency's response to the issues raised.
(d) Supplemental environmental impact statements. Agencies:
(1) Shall prepare supplements to either draft or final
environmental impact statements if a major Federal action is incomplete
or ongoing, and:
(i) The agency makes substantial changes to the proposed action
that are relevant to environmental concerns; or
(ii) There are substantial new circumstances or information about
the significance of adverse effects that bear on the analysis.
(2) May also prepare supplements when the agency determines that
the purposes of the Act will be furthered by doing so.
(3) Shall prepare, publish, and file a supplement to an
environmental impact statement (exclusive of scoping (Sec. 1502.4 of
this subchapter)) as a draft and final environmental impact statement,
as is appropriate to the stage of the environmental impact statement
involved, unless the Council approves alternative arrangements (Sec.
1506.11 of this subchapter).
(e) Reevaluation. An agency may reevaluate an environmental impact
statement to determine that the agency does need to prepare a
supplement under paragraph (d) of this section. The agency should
document its finding consistent with its agency NEPA procedures (Sec.
1507.3 of this subchapter), or, if necessary, prepare a supplemental
environmental assessment and finding of no significant impact.
Sec. 1502.10 Recommended format.
(a) Agencies shall use a format for environmental impact statements
that will encourage good analysis and clear presentation of the
alternatives, including the proposed action. Agencies should use the
following standard format for environmental impact statements unless
the agency determines that there is a more effective format for
communication:
(1) Cover (Sec. 1502.11);
(2) Summary (Sec. 1502.12);
(3) Table of contents;
(4) Purpose of and need for action (Sec. 1502.13);
[[Page 35565]]
(5) Alternatives including the proposed action (sections
102(2)(C)(iii) and 102(2)(H) of NEPA) (Sec. 1502.14);
(6) Affected environment and environmental consequences (especially
sections 102(2)(C)(i), (ii), (iv), and (v) of NEPA) (Sec. Sec. 1502.15
and 1502.16); and
(7) Appendices (Sec. 1502.19), including the summary of scoping
information (Sec. 1502.17) and the list of preparers (Sec. 1502.18).
(b) If an agency uses a different format, it shall include
paragraph (a) of this section, as further described in Sec. Sec.
1502.11 through 1502.19, in any appropriate format.
Sec. 1502.11 Cover.
The environmental impact statement cover shall not exceed one page
and shall include:
(a) A list of the lead, joint lead, and, to the extent feasible,
any cooperating agencies;
(b) The title of the proposed action that is the subject of the
statement (and, if appropriate, the titles of related cooperating
agency actions), together with the State(s) and county(ies) (or other
jurisdiction(s), if applicable) where the action is located;
(c) The name, address, and telephone number of the person at the
agency who can supply further information;
(d) A designation of the statement as a draft, final, or draft or
final supplement;
(e) A one-paragraph abstract of the statement;
(f) The date by which the agency must receive comments (computed in
cooperation with the Environmental Protection Agency under Sec.
1506.10 of this subchapter); and
(g) The identification number included in the notice of intent
(Sec. 1502.4(e)(10)).
Sec. 1502.12 Summary.
Each environmental impact statement shall contain a summary that
adequately and accurately summarizes the statement. The summary shall
include the major conclusions and summarize any disputed issues raised
by agencies and the public, any issues to be resolved, and key
differences among alternatives, and identify the environmentally
preferable alternative or alternatives. Agencies shall write the
summary in plain language and should use, as relevant, appropriate
visual aids and charts. The summary normally should not exceed 15
pages.
Sec. 1502.13 Purpose and need.
The environmental impact statement shall include a statement that
briefly summarizes the underlying purpose and need for the proposed
agency action.
Sec. 1502.14 Alternatives including the proposed action.
The alternatives section is the heart of the environmental impact
statement. The alternatives section should identify the reasonably
foreseeable environmental effects of the proposed action and the
alternatives in comparative form based on the information and analysis
presented in the sections on the affected environment (Sec. 1502.15)
and the environmental consequences (Sec. 1502.16). In doing so, the
analysis should sharply define the issues for the decision maker and
the public and provide a clear basis for choice among options. In this
section, agencies shall:
(a) Rigorously explore and objectively evaluate reasonable
alternatives to the proposed action, and, for alternatives that the
agency eliminated from detailed study, briefly discuss the reasons for
their elimination. The agency need not consider every conceivable
alternative to a proposed action; rather, it shall consider a
reasonable range of alternatives that will foster informed decision
making. Agencies also may include reasonable alternatives not within
the jurisdiction of the lead agency.
(b) Discuss each alternative considered in detail, including the
proposed action, so that reviewers may evaluate their comparative
merits.
(c) Include the no action alternative.
(d) Identify the agency's preferred alternative or alternatives, if
one or more exists, in the draft statement and identify such
alternative in the final statement unless another law prohibits the
expression of such a preference.
(e) Include appropriate mitigation measures not already included in
the proposed action or alternatives.
(f) Identify the environmentally preferable alternative or
alternatives amongst the alternatives considered in the environmental
impact statement. The environmentally preferable alternative will best
promote the national environmental policy expressed in section 101 of
NEPA by maximizing environmental benefits, such as addressing climate
change-related effects or disproportionate and adverse effects on
communities with environmental justice concerns; protecting,
preserving, or enhancing historic, cultural, Tribal, and natural
resources, including rights of Tribal Nations that have been reserved
through treaties, statutes, or Executive Orders; or causing the least
damage to the biological and physical environment. The environmentally
preferable alternative may be the proposed action, the no action
alternative, or a reasonable alternative.
Sec. 1502.15 Affected environment.
(a) The environmental impact statement shall succinctly describe
the environment of the area(s) to be affected by the alternatives under
consideration, including the reasonably foreseeable environmental
trends and planned actions in the area(s).
(b) Agencies shall use high-quality information, including reliable
data and resources, models, and Indigenous Knowledge, to describe
reasonably foreseeable environmental trends, including anticipated
climate-related changes to the environment, and when such information
is incomplete or unavailable, provide relevant information consistent
with Sec. 1502.21. This description of the affected environment,
including existing environmental conditions, reasonably foreseeable
trends, and planned actions in the area, should inform the agency's
analysis of environmental consequences and mitigation measures (Sec.
1502.16).
(c) The environmental impact statement may combine the description
of the affected environment with evaluation of the environmental
consequences (Sec. 1502.16). The description should be no longer than
necessary to understand the relevant affected environment and the
effects of the alternatives. Data and analyses in a statement shall be
commensurate with the importance of the effect, with less important
material summarized, consolidated, or simply referenced. Agencies shall
avoid useless bulk in statements and shall concentrate effort and
attention on important issues. Verbose descriptions of the affected
environment are themselves no measure of the adequacy of an
environmental impact statement.
Sec. 1502.16 Environmental consequences.
(a) The environmental consequences section forms the scientific and
analytic basis for the comparisons under Sec. 1502.14. It shall
consolidate the discussions of those elements required by sections
102(2)(C)(i), (ii), (iv), and (v) of NEPA that are within the scope of
the environmental impact statement and as much of section
102(2)(C)(iii) of NEPA as is necessary to support the comparisons. The
comparison of the proposed action and reasonable alternatives shall be
based on the discussion of their reasonably foreseeable effects and the
significance of those effects (Sec. 1501.3 of this subchapter),
focusing on the significant or important effects. The no action
alternative should serve as the baseline
[[Page 35566]]
against which the proposed action and other alternatives are compared.
This section should not duplicate discussions required by Sec. 1502.14
and shall include an analysis of:
(1) Any adverse environmental effects that cannot be avoided should
the proposal be implemented.
(2) The effects of the no action alternative, including any adverse
environmental effects;
(3) The relationship between short-term uses of the human
environment and the maintenance and enhancement of long-term
productivity;
(4) Any irreversible or irretrievable commitments of Federal
resources that would be involved in the proposal should it be
implemented;
(5) Where applicable, possible conflicts between the proposed
action and the objectives of Federal, regional, State, Tribal, and
local plans, policies, and controls for the area concerned, including
those addressing climate change (Sec. 1506.2(d) of this subchapter);
(6) Where applicable, climate change-related effects, including,
where feasible, quantification of greenhouse gas emissions, from the
proposed action and alternatives and the effects of climate change on
the proposed action and alternatives;
(7) Where applicable, energy requirements and conservation
potential of various alternatives and mitigation measures;
(8) Where applicable, natural or depletable resource requirements
and conservation potential of various alternatives and mitigation
measures;
(9) Where applicable, relevant risk reduction, resiliency, or
adaptation measures incorporated into the proposed action or
alternatives, informed by relevant science and data on the affected
environment and expected future conditions;
(10) Where applicable, urban quality, historic and cultural
resources, and the design of the built environment, including the reuse
and conservation potential of various alternatives and mitigation
measures;
(11) Means to mitigate adverse environmental effects (if not fully
covered under Sec. 1502.14(e));
(12) Where applicable, economic and technical considerations,
including the economic benefits of the proposed action; and
(13) Where applicable, disproportionate and adverse human health
and environmental effects on communities with environmental justice
concerns.
(b) Economic or social effects by themselves do not require
preparation of an environmental impact statement. However, when the
agency determines that economic or social and natural or physical
environmental effects are interrelated, the environmental impact
statement shall discuss these effects on the human environment.
Sec. 1502.17 Summary of scoping information.
(a) The draft environmental impact statement or appendix shall
include a summary of information, including alternatives and analyses,
submitted by commenters during the scoping process for consideration by
the lead and cooperating agencies in their development of the
environmental impact statement.
(b) The agency shall append to the draft environmental impact
statement or publish all comments (or summaries thereof where the
response has been exceptionally voluminous) received during the scoping
process.
Sec. 1502.18 List of preparers.
The environmental impact statement shall list the names, together
with their qualifications (expertise, experience, professional
disciplines), of the persons who were primarily responsible for
preparing the environmental impact statement or important background
papers, including basic components of the statement. Where possible,
the environmental impact statement shall identify the persons who are
responsible for a particular analysis, including analyses in background
papers. Normally the list will not exceed two pages.
Sec. 1502.19 Appendix.
If an agency prepares an appendix, the agency shall publish it with
the environmental impact statement, and it shall consist of, as
appropriate:
(a) Material prepared in connection with an environmental impact
statement (as distinct from material that is not so prepared and is
incorporated by reference (Sec. 1501.12 of this subchapter)).
(b) Material substantiating any analysis fundamental to the impact
statement.
(c) Material relevant to the decision to be made.
(d) For draft environmental impact statements, all comments (or
summaries thereof where the response has been exceptionally voluminous)
received during the scoping process that identified information for the
agency's consideration.
(e) For final environmental impact statements, the comment
summaries and responses consistent with Sec. 1503.4 of this chapter.
Sec. 1502.20 Publication of the environmental impact statement.
Agencies shall publish the entire draft and final environmental
impact statements and unchanged statements as provided in Sec.
1503.4(c) of this subchapter. The agency shall transmit the entire
statement electronically (or in paper copy, if requested due to
economic or other hardship) to:
(a) Any Federal agency that has jurisdiction by law or special
expertise with respect to any environmental impact involved and any
appropriate Federal, State, Tribal, or local agency authorized to
develop and enforce environmental standards.
(b) The applicant, if any.
(c) Any person, organization, or agency requesting the entire
environmental impact statement.
(d) In the case of a final environmental impact statement, any
person, organization, or agency that submitted substantive comments on
the draft.
Sec. 1502.21 Incomplete or unavailable information.
(a) When an agency is evaluating reasonably foreseeable significant
effects on the human environment in an environmental impact statement,
and there is incomplete or unavailable information, the agency shall
make clear that such information is lacking.
(b) If the incomplete information relevant to reasonably
foreseeable significant effects is essential to a reasoned choice among
alternatives, and the overall costs of obtaining it are not
unreasonable, the agency shall include the information in the
environmental impact statement.
(c) If the information relevant to reasonably foreseeable
significant effects cannot be obtained because the overall costs of
obtaining it are unreasonable or the means to obtain it are not known,
the agency shall include within the environmental impact statement:
(1) A statement that such information is incomplete or unavailable;
(2) A statement of the relevance of the incomplete or unavailable
information to evaluating reasonably foreseeable significant effects on
the human environment;
(3) A summary of existing credible scientific evidence that is
relevant to evaluating the reasonably foreseeable significant effects
on the human environment; and
(4) The agency's evaluation of such effects based upon theoretical
approaches or research methods generally accepted in the scientific
community.
(d) For the purposes of this section, ``reasonably foreseeable''
includes
[[Page 35567]]
effects that have catastrophic consequences, even if their probability
of occurrence is low, provided that the analysis of the effects is
supported by credible scientific evidence, is not based on pure
conjecture, and is within the rule of reason.
Sec. 1502.22 Cost-benefit analysis.
If an agency is considering a cost-benefit analysis for the
proposed action relevant to the choice among alternatives with
different environmental effects, the agency shall incorporate the cost-
benefit analysis by reference or append it to the statement as an aid
in evaluating the environmental consequences. In such cases, to assess
the adequacy of compliance with section 102(2)(B) of NEPA (ensuring
appropriate consideration of unquantified environmental amenities and
values in decision making, along with economical and technical
considerations), the statement shall discuss the relationship between
that analysis and any analyses of unquantified environmental impacts,
values, and amenities. For purposes of complying with the Act, agencies
need not display the weighing of the merits and drawbacks of the
various alternatives in a monetary cost-benefit analysis and should not
do so when there are important qualitative considerations. However, an
environmental impact statement should at least indicate those
considerations, including factors not related to environmental quality,
that are likely to be relevant and important to a decision.
Sec. 1502.23 [Reserved]
Sec. 1502.24 Environmental review and consultation requirements.
(a) To the fullest extent possible, agencies shall prepare draft
environmental impact statements concurrent and integrated with
environmental impact analyses and related surveys and studies required
by all other Federal environmental review laws and Executive orders
applicable to the proposed action, including the Fish and Wildlife
Coordination Act (16 U.S.C. 661 et seq.), the National Historic
Preservation Act of 1966 (54 U.S.C. 300101 et seq.), and the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.).
(b) The draft environmental impact statement shall list all Federal
permits, licenses, and other authorizations that must be obtained in
implementing the proposal. If it is uncertain whether a Federal permit,
license, or other authorization is necessary, the draft environmental
impact statement shall so indicate.
PART 1503--COMMENTING ON ENVIRONMENTAL IMPACT STATEMENTS
Sec.
1503.1 Inviting comments and requesting information and analyses.
1503.2 Duty to comment.
1503.3 Specificity of comments and information.
1503.4 Response to comments.
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902,
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.
Sec. 1503.1 Inviting comments and requesting information and
analyses.
(a) After preparing a draft environmental impact statement and
before preparing a final environmental impact statement the agency
shall:
(1) Obtain the comments of any Federal agency that has jurisdiction
by law or special expertise with respect to any environmental impact
involved or is authorized to develop and enforce environmental
standards; and
(2) Request the comments of:
(i) Appropriate State, Tribal, and local agencies that are
authorized to develop and enforce environmental standards;
(ii) State, Tribal, or local governments that may be affected by
the proposed action;
(iii) Any agency that has requested it receive statements on
actions of the kind proposed;
(iv) The applicant, if any; and
(v) The public, affirmatively soliciting comments in a manner
designed to inform those persons or organizations who may be interested
in or affected by the proposed action.
(b) An agency may request comments on a final environmental impact
statement before the final decision and set a deadline for providing
such comments. Other agencies or persons may make comments consistent
with the time periods under Sec. 1506.10 of this subchapter.
(c) An agency shall provide for electronic submission of public
comments, with reasonable measures to ensure the comment process is
accessible to affected persons.
Sec. 1503.2 Duty to comment.
Cooperating agencies and agencies that are authorized to develop
and enforce environmental standards shall comment on environmental
impact statements within their jurisdiction, expertise, or authority
within the time period specified for comment in Sec. 1506.10 of this
subchapter. A Federal agency may reply that it has no comment. If a
cooperating agency is satisfied that the environmental impact statement
adequately reflects its views, it should reply that it has no comment.
Sec. 1503.3 Specificity of comments and information.
(a) To promote informed decision making, comments on an
environmental impact statement or on a proposed action shall be as
specific as possible, and may address either the adequacy of the
statement or the merits of the alternatives discussed or both. Comments
should explain why the issues raised are important to the consideration
of potential environmental effects and alternatives to the proposed
action. Where possible, comments should reference the corresponding
section or page number of the draft environmental impact statement,
propose specific changes to those parts of the statement, and describe
any data, sources, or methodologies that support the proposed changes.
(b) When a participating agency criticizes a lead agency's
predictive methodology, the participating agency should describe the
alternative methodology that it prefers and why.
(c) A cooperating agency shall specify in its comments whether it
needs additional information to fulfill other applicable environmental
review or consultation requirements and what information it needs. In
particular, it shall specify any additional information it needs to
comment adequately on the draft statement's analysis of significant
effects associated with the granting or approving by that cooperating
agency of necessary Federal permits, licenses, or authorizations.
(d) A cooperating agency with jurisdiction by law shall specify
mitigation measures it considers necessary to allow the agency to grant
or approve applicable authorizations or concurrences and cite to its
applicable statutory authority.
Sec. 1503.4 Response to comments.
(a) An agency preparing a final environmental impact statement
shall consider substantive comments timely submitted during the public
comment period. The agency shall respond to individual comments or
groups of comments. In the final environmental impact statement, the
agency may respond by:
(1) Modifying alternatives including the proposed action;
(2) Developing and evaluating alternatives not previously given
serious consideration by the agency;
(3) Supplementing, improving, or modifying its analyses;
[[Page 35568]]
(4) Making factual corrections; or
(5) Explaining why the comments do not warrant further agency
response, recognizing that agencies are not required to respond to each
comment.
(b) An agency shall append or otherwise publish all substantive
comments received on the draft statement (or summaries thereof where
the response has been exceptionally voluminous).
(c) If changes in response to comments are minor and are confined
to the responses described in paragraphs (a)(4) and (5) of this
section, an agency may write any changes on errata sheets and attach
the responses to the statement instead of rewriting the draft
statement. In such cases, the agency shall publish the final statement
(Sec. 1502.20 of this subchapter), which includes the errata sheet, a
copy of the draft statement, the comments, and the responses to those
comments. The agency shall file the final statement with the
Environmental Protection Agency (Sec. 1506.10 of this subchapter).
PART 1504--DISPUTE RESOLUTION AND PRE-DECISIONAL REFERRALS
Sec.
1504.1 Purpose.
1504.2 Early dispute resolution.
1504.3 Criteria and procedure for referrals and response.
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.
Sec. 1504.1 Purpose.
(a) This part establishes procedures for referring to the Council
Federal interagency disagreements concerning proposed major Federal
actions that might cause unsatisfactory environmental effects. It
provides means for early resolution of such disagreements, and
encourages Federal agencies to engage with each other as early as
practicable to resolve interagency disagreements concerning proposed
major Federal actions before referring disputes to the Council. This
part also establishes procedures for Federal agencies to submit a
request to the Council to provide informal dispute resolution on NEPA
issues.
(b) Section 309 of the Clean Air Act (42 U.S.C. 7609) directs the
Administrator of the Environmental Protection Agency to review and
comment publicly on the environmental impacts of Federal activities,
including actions for which agencies prepare environmental impact
statements. If, after this review, the Administrator determines that
the matter is ``unsatisfactory from the standpoint of public health or
welfare or environmental quality,'' section 309 directs that the matter
be referred to the Council.
(c) Under section 102(2)(C) of NEPA (42 U.S.C. 4332(2)(C)), other
Federal agencies may prepare reviews of environmental impact
statements, including judgments on the acceptability of anticipated
environmental impacts. These agencies must make these reviews available
to the President, the Council, and the public.
Sec. 1504.2 Early dispute resolution.
(a) Federal agencies should engage in interagency coordination and
collaboration in their planning and decision-making processes and
should identify and resolve disputes concerning proposed major Federal
actions early in the NEPA process. To the extent practicable, agencies
should elevate issues to appropriate agency officials or the Council in
a timely manner that will accommodate schedules consistent with Sec.
1501.10 of this subchapter.
(b) A Federal agency may request that the Council engage in
informal dispute resolution to provide recommendations on how to
resolve an interagency dispute concerning an environmental review. In
making the request, the agency shall provide the Council with a summary
of the proposed action, information on the disputed issues, and agency
points of contact.
(c) In response to a request for informal dispute resolution, the
Council may request additional information, provide non-binding
recommendations, convene meetings of those agency decision makers
necessary to resolve disputes, or determine that informal dispute
resolution is unhelpful or inappropriate.
Sec. 1504.3 Criteria and procedure for referrals and response.
(a) Federal agencies should make environmental referrals to the
Council only after concerted, timely (as early as practicable in the
process), but unsuccessful attempts to resolve differences with the
lead agency. In determining what environmental objections to the matter
are appropriate to refer to the Council, an agency should weigh
potential adverse environmental effects, considering:
(1) Possible violation of national environmental standards or
policies;
(2) Severity;
(3) Geographical scope;
(4) Duration;
(5) Importance as precedents;
(6) Availability of environmentally preferable alternatives;
(7) Economic and technical considerations, including the economic
costs of delaying or impeding the decision making of the agencies
involved in the action; and
(8) Other appropriate considerations.
(b) A Federal agency making the referral to the Council shall:
(1) Notify the lead agency at the earliest possible time that it
intends to refer a matter to the Council unless a satisfactory
agreement is reached;
(2) Include such a notification whenever practicable in the
referring agency's comments on the environmental assessment or draft
environmental impact statement;
(3) Identify any essential information that is lacking and request
that the lead agency make it available at the earliest possible time;
and
(4) Send copies of the referring agency's views to the Council.
(c) The referring agency shall deliver its referral to the Council
no later than 25 days after the lead agency has made the final
environmental impact statement available to the Environmental
Protection Agency, participating agencies, and the public, and in the
case of an environmental assessment, no later than 25 days after the
lead agency makes it available. Except when the lead agency grants an
extension of this period, the Council will not accept a referral after
that date.
(d) The referral shall consist of:
(1) A copy of the letter signed by the head of the referring agency
and delivered to the lead agency informing the lead agency of the
referral and the reasons for it; and
(2) A statement supported by factual evidence leading to the
conclusion that the matter is unsatisfactory from the standpoint of
public health or welfare or environmental quality. The statement shall:
(i) Identify any disputed material facts and incorporate (by
reference if appropriate) agreed upon facts;
(ii) Identify any existing environmental requirements or policies
that would be violated by the matter;
(iii) Present the reasons for the referral;
(iv) Contain a finding by the agency whether the issue raised is of
national importance because of the threat to national environmental
resources or policies or for some other reason;
(v) Review the steps taken by the referring agency to bring its
concerns to the attention of the lead agency at the earliest possible
time; and
(vi) Give the referring agency's recommendations as to what
mitigation
[[Page 35569]]
alternative, further study, or other course of action (including
abandonment of the matter) are necessary to remedy the situation.
(e) No later than 25 days after the referral to the Council, the
lead agency may deliver a response to the Council and the referring
agency. If the lead agency requests more time and gives assurance that
the matter will not go forward in the interim, the Council may grant an
extension. The response shall:
(1) Address fully the issues raised in the referral;
(2) Be supported by evidence and explanations, as appropriate; and
(3) Give the lead agency's response to the referring agency's
recommendations.
(f) Applicants or other interested persons may provide views in
writing to the Council no later than the response.
(g) No later than 25 days after receipt of both the referral and
any response or upon being informed that there will be no response
(unless the lead agency agrees to a longer time), the Council may take
one or more of the following actions:
(1) Conclude that the process of referral and response has
successfully resolved the problem.
(2) Initiate discussions with the agencies with the objective of
mediation with referring and lead agencies.
(3) Obtain additional views and information, including through
public meetings or hearings.
(4) Determine that the issue is not one of national importance and
request the referring and lead agencies to pursue their decision
process.
(5) Determine that the referring and lead agencies should further
negotiate the issue, and the issue is not appropriate for Council
consideration until one or more heads of agencies report to the Council
that the agencies' disagreements are irreconcilable.
(6) Publish its findings and recommendations (including, where
appropriate, a finding that the submitted evidence does not support the
position of an agency).
(7) When appropriate, submit the referral and the response together
with the Council's recommendation to the President for action.
(h) The Council shall take no longer than 60 days to complete the
actions specified in paragraph (g)(2), (3), or (5) of this section.
(i) The referral process is not intended to create any private
rights of action or to be judicially reviewable because any voluntary
resolutions by the agency parties do not represent final agency action
and instead are only provisional and dependent on later consistent
action by the action agencies.
PART 1505--NEPA AND AGENCY DECISION MAKING
Sec.
1505.1 [Reserved]
1505.2 Record of decision in cases requiring environmental impact
statements.
1505.3 Implementing the decision.
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902,
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.
Sec. 1505.1 [Reserved]
Sec. 1505.2 Record of decision in cases requiring environmental
impact statements.
At the time of its decision (Sec. 1506.10 of this subchapter) or,
if appropriate, its recommendation to Congress, each agency shall
prepare and timely publish a concise public record of decision or joint
record of decision. The record, which each agency may integrate into
any other record it prepares, shall:
(a) State the decision.
(b) Identify alternatives considered by the agency in reaching its
decision. The agency also shall specify the environmentally preferable
alternative or alternatives (Sec. 1502.14(f) of this subchapter). The
agency may discuss preferences among alternatives based on relevant
factors, including environmental, economic, and technical
considerations and agency statutory missions. The agency shall identify
and discuss all such factors, including any essential considerations of
national policy, that the agency balanced in making its decision and
state how those considerations entered into its decision.
(c) State whether the agency has adopted all practicable means to
mitigate environmental harm from the alternative selected, and if not,
why the agency did not. Mitigation shall be enforceable when the record
of decision incorporates mitigation and the analysis of the reasonably
foreseeable effects of the proposed action is based on implementation
of that mitigation. The agency shall identify the authority for
enforceable mitigation, such as through permit conditions, agreements,
or other measures, and prepare a monitoring and compliance plan
consistent with Sec. 1505.3(c).
Sec. 1505.3 Implementing the decision.
(a) In addition to the requirements of paragraph (c) of this
section, agencies may provide for monitoring to assure that their
decisions are carried out and should do so in important cases.
Mitigation (Sec. 1505.2(c)) and other conditions established in the
environmental impact statement or during its review and committed as
part of the decision shall be implemented by the lead agency or other
appropriate consenting agency. The agency shall:
(1) Include appropriate conditions in grants, permits, or other
approvals; and
(2) Condition funding of actions on mitigation.
(b) The lead or cooperating agency should, where relevant and
appropriate, incorporate into its decision mitigation measures that
address or ameliorate significant human health and environmental
effects of proposed Federal actions that disproportionately and
adversely affect communities with environmental justice concerns.
(c) The lead or cooperating agency shall prepare and publish a
monitoring and compliance plan for mitigation when:
(1) The analysis of the reasonably foreseeable effects of a
proposed action in an environmental assessment or environmental impact
statement is based on implementation of mitigation; and
(2) The agency incorporates the mitigation into a record of
decision, finding of no significant impact, or separate decision
document.
(d) The agency should tailor the contents of a monitoring and
compliance plan required by paragraph (c) of this section to the
complexity of the mitigation committed to and include:
(1) A basic description of the mitigation measure or measures;
(2) The parties responsible for monitoring and implementing the
mitigation;
(3) If appropriate, how monitoring information will be made
publicly available;
(4) The anticipated timeframe for implementing and completing
mitigation;
(5) The standards for determining compliance with the mitigation
and the consequences of non-compliance; and
(6) How the mitigation will be funded.
(e) If an action is incomplete or ongoing, an agency does not need
to supplement its environmental impact statement (Sec. 1502.9(d) of
this subchapter) or environmental assessment (Sec. 1501.5 of this
subchapter) or revise its record of decision or finding of no
significant impact or separate decision document based solely on new
information developed through a monitoring and compliance plan required
by paragraph (c) of this section. The ongoing implementation of a
monitoring and compliance plan shall not be considered an incomplete or
ongoing Federal action.
[[Page 35570]]
PART 1506--OTHER REQUIREMENTS OF NEPA
Sec.
1506.1 Limitations on actions during NEPA process.
1506.2 Elimination of duplication with State, Tribal, and local
procedures.
1506.3 Adoption.
1506.4 Combining documents.
1506.5 Agency responsibility for environmental documents.
1506.6 Methodology and scientific accuracy.
1506.7 Further guidance.
1506.8 Proposals for legislation.
1506.9 Filing requirements.
1506.10 Timing of agency action.
1506.11 Emergencies.
1506.12 Effective date.
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902,
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.
Sec. 1506.1 Limitations on actions during NEPA process.
(a) Except as provided in paragraphs (b) and (c) of this section,
until an agency issues a finding of no significant impact, as provided
in Sec. 1501.6 of this subchapter, or record of decision, as provided
in Sec. 1505.2 of this subchapter, no action concerning the proposal
may be taken that would:
(1) Have an adverse environmental effect; or
(2) Limit the choice of reasonable alternatives.
(b) If an agency is considering an application from an applicant
and is aware that the applicant is about to take an action within the
agency's jurisdiction that would meet either of the criteria in
paragraph (a) of this section, then the agency shall promptly notify
the applicant that the agency will take appropriate action to ensure
that the objectives and procedures of NEPA are achieved. This section
does not preclude development by applicants of plans or designs or
performance of other activities necessary to support an application for
Federal, State, Tribal, or local permits or assistance. An agency
considering a proposed action for Federal funding may authorize such
activities, including, but not limited to, acquisition of interests in
land (e.g., fee simple, rights-of-way, and conservation easements),
purchase of long lead-time equipment, and purchase options made by
applicants, if the agency determines that such activities would not
limit the choice of reasonable alternatives and notifies the applicant
that the agency retains discretion to select any reasonable alternative
or the no action alternative regardless of any activity taken by the
applicant prior to the conclusion of the NEPA process.
(c) While work on a required environmental review for a program is
in progress and an action is not covered by an existing environmental
document, agencies shall not undertake in the interim any major Federal
action covered by the program that may significantly affect the quality
of the human environment unless such action:
(1) Is justified independently of the program;
(2) Is itself accompanied by an adequate environmental review; and
(3) Will not prejudice the ultimate decision on the program.
Interim action prejudices the ultimate decision on the program when it
tends to determine subsequent development or limit alternatives.
Sec. 1506.2 Elimination of duplication with State, Tribal, and local
procedures.
(a) Federal agencies are authorized to cooperate with State,
Tribal, and local agencies that are responsible for preparing
environmental documents, including those prepared pursuant to section
102(2)(G) of NEPA.
(b) To the fullest extent practicable unless specifically
prohibited by law, agencies shall cooperate with State, Tribal, and
local agencies to reduce duplication between NEPA and State, Tribal,
and local requirements, including through use of studies, analyses, and
decisions developed by State, Tribal, or local agencies. Except for
cases covered by paragraph (a) of this section, such cooperation shall
include, to the fullest extent practicable:
(1) Joint planning processes.
(2) Joint environmental research and studies.
(3) Joint public hearings (except where otherwise provided by
statute).
(4) Joint environmental assessments.
(c) To the fullest extent practicable unless specifically
prohibited by law, agencies shall cooperate with State, Tribal, and
local agencies to reduce duplication between NEPA and comparable State,
Tribal, and local requirements. Such cooperation shall include, to the
fullest extent practicable, joint environmental impact statements. In
such cases, one or more Federal agencies and one or more State, Tribal,
or local agencies shall be joint lead agencies. Where State or Tribal
laws or local ordinances have environmental impact statement or similar
requirements in addition to but not in conflict with those in NEPA,
Federal agencies may cooperate in fulfilling these requirements, as
well as those of Federal laws, so that one document will comply with
all applicable laws.
(d) To better integrate environmental impact statements into State,
Tribal, or local planning processes, environmental impact statements
shall discuss any inconsistency of a proposed action with any approved
State, Tribal, or local plan or law (whether or not federally
sanctioned). Where an inconsistency exists, the statement should
describe the extent to which the agency would reconcile its proposed
action with the plan or law. While the statement should discuss any
inconsistencies, NEPA does not require reconciliation.
Sec. 1506.3 Adoption.
(a) Generally. An agency may adopt a draft or final environmental
impact statement, environmental assessment, or portion thereof, or
categorical exclusion determination, consistent with this section.
(b) Environmental impact statements. An agency may adopt another
agency's draft or final environmental impact statement, or portion
thereof, provided that the adopting agency conducts an independent
review of the statement and concludes that it meets the standards for
an adequate statement, pursuant to the regulations in this subchapter
and the adopting agency's NEPA procedures.
(1) If the actions covered by the original environmental impact
statement and the proposed action are substantially the same, the
adopting agency shall republish and file it as a final statement
consistent with Sec. 1506.9. If the actions are not substantially the
same or the adopting agency determines that the statement may require
supplementation consistent with Sec. 1502.9 of this subchapter, the
adopting agency shall treat the statement as a draft, supplement or
reevaluate it as necessary, and republish and file it, consistent with
Sec. 1506.9.
(2) Notwithstanding paragraph (b)(1) of this section, if a
cooperating agency does not issue a record of decision jointly or
concurrently consistent with Sec. 1505.2 of this subchapter, a
cooperating agency may issue a record of decision adopting the
environmental impact statement of a lead agency without republication.
(c) Environmental assessments. An agency may adopt another agency's
environmental assessment, or portion thereof, if the actions covered by
the original environmental assessment and the proposed action are
substantially the same, and the assessment meets the standards for an
adequate environmental assessment under the regulations in this
subchapter and the adopting agency's NEPA procedures. If the actions
are not substantially the
[[Page 35571]]
same or the adopting agency determines that the environmental
assessment may require supplementation consistent with Sec. 1501.5(h)
of this subchapter, the adopting agency may adopt and supplement or
reevaluate the environmental assessment as necessary, issue its finding
of no significant impact, and provide notice consistent with Sec.
1501.6 of this subchapter.
(d) Categorical exclusion determinations. An agency may adopt
another agency's determination that a categorical exclusion applies to
a particular proposed action if the action covered by that
determination and the adopting agency's proposed action are
substantially the same. In such circumstances, the adopting agency
shall:
(1) Document its adoption, including the determination that its
proposed action is substantially the same as the action covered by the
original categorical exclusion determination and that there are no
extraordinary circumstances present that require the preparation of an
environmental assessment or environmental impact statement; and
(2) Publish its adoption determination on an agency website or
otherwise make it publicly available.
(e) Identification of certain circumstances. The adopting agency
shall specify if one of the following circumstances is present:
(1) The agency is adopting an environmental assessment or
environmental impact statement that is not final within the agency that
prepared it.
(2) The action assessed in the environmental assessment or
environmental impact statement is the subject of a referral under part
1504 of this subchapter.
(3) The environmental assessment or environmental impact
statement's adequacy is the subject of a judicial action that is not
final.
Sec. 1506.4 Combining documents.
Agencies should combine, to the fullest extent practicable, any
environmental document with any other agency document to reduce
duplication and paperwork.
Sec. 1506.5 Agency responsibility for environmental documents.
(a) Agency responsibility. The agency is responsible for the
accuracy, scope (Sec. 1501.3(b) of this subchapter), and content of
environmental documents and shall ensure they are prepared with
professional and scientific integrity, using reliable data and
resources, regardless of whether they are prepared by the agency or a
contractor under the supervision and direction of the agency or by the
applicant under procedures the agency adopts pursuant to section 107(f)
of NEPA and Sec. 1507.3(c)(12) of this subchapter. The agency shall
exercise its independent judgment and briefly document its
determination that an environmental document meets the standards under
NEPA, the regulations in this subchapter, and the agency's NEPA
procedures.
(b) Applicant-provided information. An agency may require an
applicant to submit environmental information for possible use by the
agency in preparing an environmental document.
(1) The agency should assist the applicant by outlining the types
of information required for the preparation of environmental documents.
(2) The agency shall independently evaluate the information
submitted by the applicant and, to the extent it is integrated into the
environmental document, shall be responsible for its accuracy, scope,
and contents.
(3) An agency may allow an applicant to prepare environmental
assessments and environmental impact statements pursuant to its agency
procedures, consistent with section 107(f) of NEPA and Sec.
1507.3(c)(12) of this subchapter.
(c) Agency-directed contractor. An agency may authorize a
contractor to prepare an environmental document under the supervision
and direction of the agency.
(1) The agency shall provide guidance to the contractor and
participate in and supervise the environmental document's preparation.
(2) The agency shall independently evaluate the environmental
document prepared by the agency-directed contractor, shall be
responsible for its accuracy, scope, and contents, and document the
agency's evaluation in the environmental document.
(3) The agency shall include in the environmental document the
names and qualifications of the persons preparing environmental
documents, and conducting the independent evaluation of any information
submitted or environmental documents prepared by a contractor, such as
in the list of preparers for environmental impact statements (Sec.
1502.18 of this subchapter). It is the intent of this paragraph (c)(3)
that acceptable work not be redone, but that it be verified by the
agency.
(4) The lead agency or, where appropriate, a cooperating agency
shall prepare a disclosure statement for the contractor's execution
specifying that the contractor has no financial or other interest in
the outcome of the action. Such statement need not include privileged
or confidential trade secrets or other confidential business
information.
(d) Information generally. Nothing in this section is intended to
prohibit an agency from requesting any person, including the applicant,
to submit information to it or to prohibit any person from submitting
information to an agency for use in preparing environmental documents.
Sec. 1506.6 Methodology and scientific accuracy.
(a) Agencies shall ensure the professional integrity, including
scientific integrity, of the discussions and analyses in environmental
documents.
(b) In preparing environmental documents, agencies shall use high-
quality information, including reliable data and resources, models, and
Indigenous Knowledge. Agencies may rely on existing information as well
as information obtained to inform the analysis. Agencies may use any
reliable data sources, such as remotely gathered information or
statistical models. Agencies shall explain any relevant assumptions or
limitations of the information or the particular model or methodology
selected for use.
(c) Agencies shall identify any methodologies used and shall make
explicit reference to the scientific and other sources relied upon for
conclusions in the environmental document. Agencies may place
discussion of methodology in an appendix.
(d) Where appropriate, agencies shall use projections when
evaluating the reasonably foreseeable effects, including climate
change-related effects. Such projections may employ mathematical or
other models that project a range of possible future outcomes, so long
as agencies disclose the relevant assumptions or limitations.
Sec. 1506.7 Further guidance.
(a) The Council may provide further guidance concerning NEPA and
its procedures.
(b) To the extent that Council guidance issued prior to July 1,
2024 is in conflict with this subchapter, the provisions of this
subchapter apply.
Sec. 1506.8 Proposals for legislation.
(a) When developing legislation, agencies shall integrate the NEPA
process for proposals for legislation significantly affecting the
quality of the human environment with the legislative process of the
Congress. Technical drafting assistance does not by itself
[[Page 35572]]
constitute a legislative proposal. Only the agency that has primary
responsibility for the subject matter involved will prepare a
legislative environmental impact statement.
(b) A legislative environmental impact statement is the detailed
statement required by law to be included in an agency's recommendation
or report on a legislative proposal to Congress. A legislative
environmental impact statement shall be considered part of the formal
transmittal of a legislative proposal to Congress; however, it may be
transmitted to Congress up to 30 days later to allow time for
completion of an accurate statement that can serve as the basis for
public and Congressional debate. The statement must be available in
time for Congressional hearings and deliberations.
(c) Preparation of a legislative environmental impact statement
shall conform to the requirements of the regulations in this
subchapter, except as follows:
(1) There need not be a scoping process.
(2) Agencies shall prepare the legislative statement in the same
manner as a draft environmental impact statement and need not prepare a
final statement unless any of the following conditions exist. In such
cases, the agency shall prepare and publish the statements consistent
with Sec. Sec. 1503.1 of this subchapter and 1506.10:
(i) A Congressional committee with jurisdiction over the proposal
has a rule requiring both draft and final environmental impact
statements.
(ii) The proposal results from a study process required by statute
(such as those required by the Wild and Scenic Rivers Act (16 U.S.C.
1271 et seq.)).
(iii) Legislative approval is sought for Federal or federally
assisted construction or other projects that the agency recommends be
located at specific geographic locations. For proposals requiring an
environmental impact statement for the acquisition of space by the
General Services Administration, a draft statement shall accompany the
Prospectus or the 11(b) Report of Building Project Surveys to the
Congress, and a final statement shall be completed before site
acquisition.
(iv) The agency decides to prepare draft and final statements.
(d) Comments on the legislative statement shall be given to the
lead agency, which shall forward them along with its own responses to
the Congressional committees with jurisdiction.
Sec. 1506.9 Filing requirements.
(a) Agencies shall file environmental impact statements together
with comments and responses with the Environmental Protection Agency,
Office of Federal Activities, consistent with the Environmental
Protection Agency's procedures.
(b) Agencies shall file statements with the Environmental
Protection Agency no earlier than they are also transmitted to
participating agencies and made available to the public. The
Environmental Protection Agency may issue guidelines to agencies to
implement its responsibilities under this section and Sec. 1506.10.
(c) Agencies shall file an adoption of an environmental impact
statement with the Environmental Protection Agency (see Sec.
1506.3(b)(1)).
Sec. 1506.10 Timing of agency action.
(a) The Environmental Protection Agency shall publish a notice in
the Federal Register each week of the environmental impact statements
filed since its prior notice. The minimum time periods set forth in
this section are calculated from the date of publication of this
notice.
(b) Unless otherwise provided by law, including statutory
provisions for combining a final environmental impact statement and
record of decision, Federal agencies shall not make or issue a record
of decision under Sec. 1505.2 of this subchapter for the proposed
action until the later of the following dates:
(1) 90 days after publication of the notice described in paragraph
(a) of this section for a draft environmental impact statement.
(2) 30 days after publication of the notice described in paragraph
(a) of this section for a final environmental impact statement.
(c) An agency may make an exception to the rule on timing set forth
in paragraph (b) of this section for a proposed action in the following
circumstances:
(1) Some agencies have formally established administrative review
processes (e.g., appeals, objections, protests), which may be initiated
prior to or after filing and publication of the final environmental
impact statement with the Environmental Protection Agency, that allow
other agencies or the public to raise issues about a decision and make
their views known. In such cases where a real opportunity exists to
alter the decision, the agency may make and record the decision at the
same time it publishes the environmental impact statement. This means
that the period for administrative review of the decision and the 30-
day period set forth in paragraph (b)(2) of this section may run
concurrently. In such cases, the environmental impact statement shall
explain the timing and the public's right of administrative review and
provide notification consistent with Sec. 1506.9; or
(2) An agency engaged in rulemaking under the Administrative
Procedure Act or other statute for the purpose of protecting the public
health or safety may waive the time period in paragraph (b)(2) of this
section, publish a decision on the final rule simultaneously with
publication of the notice of the availability of the final
environmental impact statement, and provide notification consistent
with Sec. 1506.9, as described in paragraph (a) of this section.
(d) If an agency files the final environmental impact statement
within 90 days of the filing of the draft environmental impact
statement with the Environmental Protection Agency, the minimum 30-day
and 90-day periods may run concurrently. However, subject to paragraph
(e) of this section, agencies shall allow at least 45 days for comments
on draft statements.
(e) The lead agency may extend the minimum periods in paragraph (b)
of this section and provide notification consistent with Sec. 1506.9.
Upon a showing by the lead agency of compelling reasons of national
policy, the Environmental Protection Agency may reduce the minimum
periods and, upon a showing by any other Federal agency of compelling
reasons of national policy, also may extend the minimum periods, but
only after consultation with the lead agency. The lead agency may
modify the minimum periods when necessary to comply with other specific
statutory requirements (Sec. 1507.3(d)(4) of this subchapter). Failure
to file timely comments shall not be a sufficient reason for extending
a period. If the lead agency does not concur with the extension of
time, the Environmental Protection Agency may not extend it for more
than 30 days. When the Environmental Protection Agency reduces or
extends any period it shall notify the Council.
Sec. 1506.11 Emergencies.
Where emergency circumstances make it necessary to take an action
with significant effects without observing the provisions of the
regulations in this subchapter, the Federal agency taking the action
shall consult with the Council about alternative arrangements for
compliance with section 102(2)(C) of NEPA. Agencies and the Council
shall limit such arrangements to actions necessary to control the
immediate impacts of the emergency; other actions
[[Page 35573]]
remain subject to NEPA review consistent with this subchapter.
Alternative arrangements do not waive the requirement to comply with
the statute, but establish an alternative means for NEPA compliance.
Sec. 1506.12 Effective date.
The regulations in this subchapter apply to any NEPA process begun
after July 1, 2024. An agency may apply the regulations in this
subchapter to ongoing activities and environmental documents begun
before July 1, 2024.
PART 1507--AGENCY COMPLIANCE
Sec.
1507.1 Compliance.
1507.2 Agency capability to comply.
1507.3 Agency NEPA procedures.
1507.4 Agency NEPA program information.
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902,
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.
Sec. 1507.1 Compliance.
All agencies of the Federal Government shall comply with the
regulations in this subchapter. It is the intent of these regulations
to allow each agency flexibility in adapting its implementing
procedures authorized by Sec. 1507.3 to the requirements of other
applicable laws.
Sec. 1507.2 Agency capability to comply.
Each agency shall be capable (in terms of personnel and other
resources) of complying with the requirements of NEPA and the
regulations in this subchapter. Such compliance may include use of the
resources of other agencies, applicants, and other participants in the
NEPA process, but the agency using the resources shall itself have
sufficient capability to evaluate what others do for it and account for
the contributions of others. Agencies shall:
(a) Designate a senior agency official to be responsible for
overall review of agency NEPA compliance, including resolving
implementation issues, and a Chief Public Engagement Officer to be
responsible for facilitating community engagement in environmental
reviews across the agency and, where appropriate, the provision of
technical assistance to communities. When the agency is a department,
it may be efficient for major subunits (with the consent of the
department) to identify senior agency officials or Chief Public
Engagement Officers within those subunits, whom the department-level
official or Officer oversees.
(b) Fulfill the requirements of section 102(2)(A) of NEPA to
utilize a systematic, interdisciplinary approach that will ensure the
integrated use of the natural and social sciences and the environmental
design arts in planning and in decision making that may have an impact
on the human environment.
(c) Identify methods and procedures required by section 102(2)(B)
of NEPA to ensure that presently unquantified environmental amenities
and values may be given appropriate consideration.
(d) Prepare adequate environmental impact statements pursuant to
section 102(2)(C) of NEPA and cooperate on the development of
environmental impact statements in the areas where the agency has
jurisdiction by law or special expertise or is authorized to develop
and enforce environmental standards.
(e) Ensure environmental documents are prepared with professional
integrity, including scientific integrity, consistent with section
102(2)(D) of NEPA.
(f) Make use of reliable data and resources in carrying out their
responsibilities under NEPA, consistent with section 102(2)(E) of NEPA.
(g) Study, develop, and describe technically and economically
feasible alternatives, consistent with section 102(2)(F) of NEPA.
(h) Study, develop, and describe alternatives to recommended
courses of action in any proposal that involves unresolved conflicts
concerning alternative uses of available resources, consistent with
section 102(2)(H) of NEPA.
(i) Comply with the requirement of section 102(2)(K) of NEPA that
the agency initiate and utilize ecological information in the planning
and development of resource-oriented projects.
(j) Fulfill the requirements of sections 102(2)(I), 102(2)(J), and
102(2)(L), of NEPA, and Executive Order 11514, Protection and
Enhancement of Environmental Quality, section 2, as amended by
Executive Order 11991, Relating to Protection and Enhancement of
Environmental Quality.
Sec. 1507.3 Agency NEPA procedures.
(a) The Council has determined that the revisions to this
subchapter as of July 1, 2024 do not affect the validity of categorical
exclusions contained in agency NEPA procedures as of this date.
(b) No more than 12 months after July 1, 2024, or 9 months after
the establishment of an agency, whichever comes later, each agency
shall develop or revise, as necessary, proposed procedures to implement
the regulations in this subchapter, facilitate efficient decision
making, and ensure that the agency makes decisions in accordance with
the policies and requirements of the Act. When the agency is a
department, it may be efficient for major subunits (with the consent of
the department) to adopt their own procedures.
(1) Each agency shall consult with the Council while developing or
revising its proposed procedures and before publishing them in the
Federal Register for comment. Agencies with similar programs should
consult with each other and the Council to coordinate their procedures,
especially for programs requesting similar information from applicants.
(2) Agencies shall provide an opportunity for public review and
review by the Council for conformity with the Act and the regulations
in this subchapter before issuing their final procedures. The Council
shall complete its review within 30 days of the receipt of the proposed
final procedures. Once in effect, agencies shall publish their NEPA
procedures and ensure that they are readily available to the public.
Agencies shall continue to review their policies and procedures, in
consultation with the Council, and revise them as necessary to ensure
full compliance with the purposes and provisions of the Act.
(3) The issuance or update of agency procedures is not subject to
NEPA review under this subchapter.
(c) Agency procedures shall:
(1) Designate the major decision points for the agency's programs
and actions subject to NEPA, ensuring that the NEPA process begins at
the earliest reasonable time, consistent with Sec. 1501.2 of this
subchapter, and aligns with the corresponding decision points;
(2) Require that relevant environmental documents, comments, and
responses be part of the record in rulemaking and adjudicatory
proceedings;
(3) Integrate the environmental review into the decision-making
process by requiring that relevant environmental documents, comments,
and responses accompany the proposal through existing agency review
processes so that decision makers use them in making decisions;
(4) Require that the alternatives considered by the decision maker
are encompassed by the range of alternatives discussed in the relevant
environmental documents and that the decision maker consider the
alternatives described in the environmental documents. If another
decision document accompanies the relevant environmental documents to
the decision maker, agencies are encouraged
[[Page 35574]]
to make available to the public before the decision is made any part of
that document that relates to the comparison of alternatives;
(5) Require the combination of environmental documents with other
agency documents to facilitate sound and efficient decision making and
avoid duplication, where consistent with applicable statutory
requirements;
(6) Include the procedures required by Sec. 1501.2(b)(4) of this
subchapter (assistance to applicants);
(7) Include specific criteria for and identification of those
typical classes of action that normally:
(i) Require environmental impact statements; and
(ii) Require environmental assessments but not necessarily
environmental impact statements;
(8) Establish categorical exclusions and identify extraordinary
circumstances. When establishing new or revising existing categorical
exclusions, agencies shall:
(i) Identify when documentation of a determination that a
categorical exclusion applies to a proposed action is required;
(ii) Substantiate the proposed new or revised categorical exclusion
with sufficient information to conclude that the category of actions
does not have a significant effect, individually or in the aggregate,
on the human environment and provide this substantiation in a written
record that is made publicly available as part of the notice and
comment process (Sec. 1507.3(b)(1) and (2)); and
(iii) Describe how the agency will consider extraordinary
circumstances consistent with Sec. 1501.4(b) of this subchapter;
(9) Include a process for reviewing the agency's categorical
exclusions at least every 10 years, which the agency may conduct on a
rolling basis, starting with its oldest categorical exclusions;
(10) Include processes for reevaluating and supplementing
environmental assessments and environmental impact statements, as
appropriate;
(11) Explain where interested persons can get information or status
reports on environmental impact statements, environmental assessments,
and other elements of the NEPA process; and
(12) Where an agency has applicants that seek its action, include
procedures to allow an applicant (including an applicant-directed
contractor) to prepare environmental assessments and environmental
impact statements under the agency's supervision. Such procedures shall
not apply to applicants when they serve as joint lead agencies. Such
procedures shall be consistent with Sec. 1506.5(a) and (c) of this
subchapter, and at a minimum shall include the following:
(i) Requirements that the agency review and approve the purpose and
need (Sec. Sec. 1501.5(c)(2)(i) or 1502.13 of this subchapter) and
reasonable alternatives (Sec. Sec. 1501.5(c)(2)(ii) or 1502.14 of this
subchapter);
(ii) A process for the agency to independently evaluate the
applicant-prepared environmental assessment or environmental impact
statement; take responsibility for its accuracy, scope, and contents;
and document the agency's evaluation in the document; and
(iii) A prohibition on the preparation of a finding of no
significant impact or record of decision by applicants.
(d) Agency procedures also may:
(1) Identify activities or decisions that are not subject to NEPA;
(2) Include processes for consideration of emergency actions that
would not result in significant effects;
(3) Include specific criteria for providing limited exceptions to
the provisions of the regulations in this subchapter for classified
proposals. These are proposed actions that are specifically authorized
under criteria established by an Executive order or statute to be kept
secret in the interest of national defense or foreign policy and are in
fact properly classified pursuant to such Executive order or statute.
Agencies may safeguard and restrict from public dissemination
environmental assessments and environmental impact statements that
address classified proposals in accordance with agencies' own
regulations applicable to classified information. Agencies should
organize these documents so that classified portions are included as
annexes, so that the agencies can make the unclassified portions
available to the public; and
(4) Provide for periods of time other than those presented in Sec.
1506.10 of this subchapter when necessary to comply with other specific
statutory requirements, including requirements of lead or cooperating
agencies.
Sec. 1507.4 Agency NEPA program information.
(a) To allow agencies and the public to efficiently and effectively
access information about NEPA reviews, agencies shall provide for
agency websites or other information technology tools to make available
documents, relevant notices, and other relevant information for use by
agencies, applicants, and interested persons. The website or other such
means of publication shall include the agency's NEPA procedures,
including those of subunits, and a list of environmental assessments
and environmental impact statements that are in development and
complete. As appropriate, agencies also should include:
(1) Agency planning and other documents that guide agency
management and provide for public involvement in agency planning
processes;
(2) Environmental documents;
(3) Agency policy documents, orders, terminology, and explanatory
materials regarding agency decision-making processes;
(4) Agency planning program information, plans, and planning tools;
and
(5) A database searchable by geographic information, document
status, document type, and project type.
(b) Agencies shall provide for efficient and effective interagency
coordination of their environmental program websites and other
information technology tools, such as use of shared databases or
application programming interfaces, in their implementation of NEPA and
related authorities.
PART 1508--DEFINITIONS
Sec.
1508.1 Definitions.
1508.2 [Reserved]
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902,
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.
Sec. 1508.1 Definitions.
The following definitions apply to the regulations in this
subchapter. Federal agencies shall use these terms uniformly throughout
the Federal Government.
(a) Act or NEPA means the National Environmental Policy Act, as
amended (42 U.S.C. 4321, et seq.).
(b) Affecting means will or may have an effect on.
(c) Applicant means a non-Federal entity, including a project
sponsor, that seeks an action by a Federal agency such as granting a
permit, license, or financial assistance.
(d) Authorization means any license, permit, approval, finding,
determination, or other administrative decision issued by an agency
that is required or authorized under Federal law in order to implement
a proposed action.
(e) Categorical exclusion means a category of actions that an
agency has determined, in its agency NEPA
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procedures (Sec. 1507.3 of this subchapter) or pursuant to Sec.
1501.4(c) of this subchapter, normally does not have a significant
effect on the human environment.
(f) Communities with environmental justice concerns means those
communities that may not experience environmental justice as defined in
paragraph (m) of this section. To assist in identifying communities
with environmental justice concerns, agencies may use available
screening tools, such as the Climate and Economic Justice Screening
Tool and the EJScreen Tool, as appropriate to their activities and
programs. Agencies also may develop procedures for the identification
of such communities in their agency NEPA procedures.
(g) Cooperating agency means any Federal, State, Tribal, or local
agency with jurisdiction by law or special expertise with respect to
any environmental impact involved in a proposal that has been
designated by the lead agency.
(h) Council means the Council on Environmental Quality established
by title II of the Act.
(i) Effects or impacts means changes to the human environment from
the proposed action or alternatives that are reasonably foreseeable and
include the following:
(1) Direct effects, which are caused by the action and occur at the
same time and place.
(2) Indirect effects, which are caused by the action and are later
in time or farther removed in distance, but are still reasonably
foreseeable. Indirect effects may include growth-inducing effects and
other effects related to induced changes in the pattern of land use,
population density or growth rate, and related effects on air and water
and other natural systems, including ecosystems.
(3) Cumulative effects, which are effects on the environment that
result from the incremental effects of the action when added to the
effects of other past, present, and reasonably foreseeable actions
regardless of what agency (Federal or non-Federal) or person undertakes
such other actions. Cumulative effects can result from actions with
individually minor but collectively significant effects taking place
over a period of time.
(4) Effects include ecological (such as the effects on natural
resources and on the components, structures, and functioning of
affected ecosystems), aesthetic, historic, cultural, economic, social,
or health, such as disproportionate and adverse effects on communities
with environmental justice concerns, whether direct, indirect, or
cumulative. Effects also include effects on Tribal resources and
climate change-related effects, including the contribution of a
proposed action and its alternatives to climate change, and the
reasonably foreseeable effects of climate change on the proposed action
and its alternatives. Effects may also include those resulting from
actions which may have both beneficial and adverse effects, even if on
balance the agency believes that the effects will be beneficial.
(j) Environmental assessment means a concise public document, for
which a Federal agency is responsible, for an action that is not likely
to have a significant effect or for which the significance of the
effects is unknown (Sec. 1501.5 of this subchapter), that is used to
support an agency's determination of whether to prepare an
environmental impact statement (part 1502 of this subchapter) or a
finding of no significant impact (Sec. 1501.6 of this subchapter).
(k) Environmental document means an environmental assessment,
environmental impact statement, documented categorical exclusion
determination, finding of no significant impact, record of decision, or
notice of intent.
(l) Environmental impact statement means a detailed written
statement that is required by section 102(2)(C) of NEPA.
(m) Environmental justice means the just treatment and meaningful
involvement of all people, regardless of income, race, color, national
origin, Tribal affiliation, or disability, in agency decision making
and other Federal activities that affect human health and the
environment so that people:
(1) Are fully protected from disproportionate and adverse human
health and environmental effects (including risks) and hazards,
including those related to climate change, the cumulative impacts of
environmental and other burdens, and the legacy of racism or other
structural or systemic barriers; and
(2) Have equitable access to a healthy, sustainable, and resilient
environment in which to live, play, work, learn, grow, worship, and
engage in cultural and subsistence practices.
(n) Environmentally preferable alternative means the alternative or
alternatives that will best promote the national environmental policy
as expressed in section 101 of NEPA.
(o) Extraordinary circumstances means factors or circumstances that
indicate a normally categorically excluded action may have a
significant effect. Examples of extraordinary circumstances include
potential substantial effects on sensitive environmental resources;
potential substantial disproportionate and adverse effects on
communities with environmental justice concerns; potential substantial
effects associated with climate change; and potential substantial
effects on historic properties or cultural resources.
(p) Federal agency means all agencies of the Federal Government. It
does not mean the Congress, the Judiciary, or the President, including
the performance of staff functions for the President in his Executive
Office. For the purposes of the regulations in this subchapter, Federal
agency also includes States, units of general local government, and
Tribal governments assuming NEPA responsibilities from a Federal agency
pursuant to statute.
(q) Finding of no significant impact means a document by a Federal
agency briefly presenting the agency's determination that and reasons
why an action, not otherwise categorically excluded (Sec. 1501.4 of
this subchapter), will not have a significant effect on the human
environment and for which an environmental impact statement therefore
will not be prepared.
(r) Human environment or environment means comprehensively the
natural and physical environment and the relationship of present and
future generations with that environment. (See also the definition of
``effects'' in paragraph (i) of this section.)
(s) Joint lead agency means a Federal, State, Tribal, or local
agency designated pursuant to Sec. 1501.7(c) that shares the
responsibilities of the lead agency for preparing the environmental
impact statement or environmental assessment.
(t) Jurisdiction by law means agency authority to approve, veto, or
finance all or part of the proposal.
(u) Lead agency means the Federal agency that proposes the agency
action or is designated pursuant to Sec. 1501.7(c) for preparing or
having primary responsibility for preparing the environmental impact
statement or environmental assessment.
(v) Legislation means a bill or legislative proposal to Congress
developed by a Federal agency, but does not include requests for
appropriations or legislation recommended by the President.
(w) Major Federal action or action means an action that the agency
carrying out such action determines is subject to substantial Federal
control and responsibility.
[[Page 35576]]
(1) Examples of major Federal actions generally include:
(i) Granting authorizations, including permits, licenses, rights-
of-way, or other authorizations.
(ii) Adoption of official policy, such as rules, regulations, and
interpretations adopted under the Administrative Procedure Act, 5
U.S.C. 551 et seq., or other statutes; implementation of treaties and
international conventions or agreements, including those implemented
pursuant to statute or regulation; formal documents establishing an
agency's policies that will result in or substantially alter agency
programs.
(iii) Adoption of formal plans, such as official documents prepared
or approved by Federal agencies, which prescribe alternative uses of
Federal resources, upon which future agency actions will be based.
(iv) Adoption of programs, such as a group of concerted actions to
implement a specific policy or plan; systematic and related agency
decisions allocating agency resources to implement a specific statutory
program or executive directive.
(v) Approval of or carrying out specific agency projects, such as
construction or management activities.
(vi) Providing more than a minimal amount of financial assistance,
including through grants, cooperative agreements, loans, loan
guarantees, or other forms of financial assistance, where the agency
has the authority to deny in whole or in part the assistance due to
environmental effects, has authority to impose conditions on the
receipt of the financial assistance to address environmental effects,
or otherwise has sufficient control and responsibility over the
subsequent use of the financial assistance or the effects of the
activity for which the agency is providing the financial assistance.
(2) Major Federal actions do not include the following:
(i) Non-Federal actions:
(A) With no or minimal Federal funding; or
(B) With no or minimal Federal involvement where the Federal agency
cannot control the outcome of the project;
(ii) Funding assistance solely in the form of general revenue
sharing funds that do not provide Federal agency compliance or
enforcement responsibility over the subsequent use of such funds;
(iii) Loans, loan guarantees, or other forms of financial
assistance where a Federal agency does not exercise sufficient control
and responsibility over the subsequent use of such financial assistance
or the effects of the action;
(iv) Business loan guarantees provided by the Small Business
Administration pursuant to section 7(a) or (b) and of the Small
Business Act (15 U.S.C. 636(a) and (b)), or title V of the Small
Business Investment Act of 1958 (15 U.S.C. 695 through 697g);
(v) Judicial or administrative civil or criminal enforcement
actions;
(vi) Extraterritorial activities or decisions, which means agency
activities or decisions with effects located entirely outside of the
jurisdiction of the United States;
(vii) Activities or decisions that are non-discretionary and made
in accordance with the agency's statutory authority; and
(viii) Activities or decisions for projects approved by a Tribal
Nation that occur on or involve land held in trust or restricted status
by the United States for the benefit of that Tribal Nation or by the
Tribal Nation when such activities or decisions involve no or minimal
Federal funding or other Federal involvement.
(x) Matter means for purposes of part 1504 of this subchapter:
(1) With respect to the Environmental Protection Agency, any
proposed legislation, project, action, or regulation as those terms are
used in section 309(a) of the Clean Air Act (42 U.S.C. 7609).
(2) With respect to all other agencies, any proposed major Federal
action to which section 102(2)(C) of NEPA applies.
(y) Mitigation means measures that avoid, minimize, or compensate
for adverse effects caused by a proposed action or alternatives as
described in an environmental document or record of decision and that
have a connection to those adverse effects. Mitigation includes, in
general order of priority:
(1) Avoiding the adverse effect altogether by not taking a certain
action or parts of an action.
(2) Minimizing the adverse effect by limiting the degree or
magnitude of the action and its implementation.
(3) Rectifying the adverse effect by repairing, rehabilitating, or
restoring the affected environment.
(4) Reducing or eliminating the adverse effect over time by
preservation and maintenance operations during the life of the action.
(5) Compensating for the adverse effect by replacing or providing
substitute resources or environments.
(z) NEPA process means all measures necessary for compliance with
the requirements of section 2 and title I of NEPA.
(aa) Notice of intent means a public notice that an agency will
prepare and consider an environmental impact statement or, as
applicable, an environmental assessment.
(bb) Page means 500 words and does not include citations,
explanatory maps, diagrams, graphs, tables, and other means of
graphically displaying quantitative or geospatial information.
(cc) Participating agency means a Federal, State, Tribal, or local
agency participating in an environmental review or authorization of an
action.
(dd) Participating Federal agency means a Federal agency
participating in an environmental review or authorization of an action.
(ee) Programmatic environmental document means an environmental
impact statement or environmental assessment analyzing all or some of
the environmental effects of a policy, program, plan, or group of
related actions.
(ff) Proposal means a proposed action at a stage when an agency has
a goal, is actively preparing to make a decision on one or more
alternative means of accomplishing that goal, and can meaningfully
evaluate its effects. A proposal may exist in fact as well as by agency
declaration that one exists.
(gg) Publish and publication mean methods found by the agency to
efficiently and effectively make environmental documents and
information available for review by interested persons, including
electronic publication, and adopted by agency NEPA procedures pursuant
to Sec. 1507.3 of this subchapter.
(hh) Reasonable alternatives means a reasonable range of
alternatives that are technically and economically feasible, and meet
the purpose and need for the proposed action.
(ii) Reasonably foreseeable means sufficiently likely to occur such
that a person of ordinary prudence would take it into account in
reaching a decision.
(jj) Referring agency means the Federal agency that has referred
any matter to the Council after a determination that the matter is
unsatisfactory from the standpoint of public health or welfare or
environmental quality.
(kk) Scope consists of the range and breadth of actions,
alternatives, and effects to be considered in an environmental impact
statement or environmental assessment.
(ll) Senior agency official means an official of assistant
secretary rank or higher (or equivalent) that is designated for overall
agency NEPA compliance, including resolving implementation issues.
(mm) Significant effects means adverse effects that an agency has
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identified as significant based on the criteria in Sec. 1501.3(d) of
this subchapter.
(nn) Special expertise means statutory responsibility, agency
mission, or related program experience.
(oo) Tiering refers to the process described in Sec. 1501.11 of
this subchapter by which an environmental document may rely on an
existing and broader or more general environmental document.
Sec. 1508.2 [Reserved]
[FR Doc. 2024-08792 Filed 4-30-24; 8:45 am]
BILLING CODE 3325-FC-P
