Emergencies and the National Environmental Policy Act Guidance, 106448-106450 [2024-30675]

Agencies

• COUNCIL ON ENVIRONMENTAL QUALITY

[Federal Register Volume 89, Number 249 (Monday, December 30, 2024)]
[Notices]
[Pages 106448-106450]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-30675]


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COUNCIL ON ENVIRONMENTAL QUALITY


Emergencies and the National Environmental Policy Act Guidance

AGENCY: Council on Environmental Quality.

ACTION: Notice.

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SUMMARY: On December 18, 2024, the Council on Environmental Quality 
(CEQ) issued guidance in a memorandum to the heads of Federal 
departments and agencies (agencies) to assist agencies with compliance 
with the National Environmental Policy Act (NEPA) during emergencies. 
The CEQ regulations implementing NEPA provide for alternative 
arrangements during emergencies when an agency's action is likely to 
have significant effects and would require preparation of an 
environmental impact statement. This guidance also addresses compliance 
with NEPA when the action is unlikely to have significant effects and 
might require preparation of an environmental assessment or application 
of a categorical exclusion.

DATES: This guidance was issued on December 18, 2024.

FOR FURTHER INFORMATION CONTACT: Jomar Maldonado, Director for NEPA, 
202-395-5750, [email protected].

SUPPLEMENTARY INFORMATION:

Memorandum for Heads of Federal Departments and Agencies

FROM: Brenda Mallory, Chair
SUBJECT: Emergencies and the National Environmental Policy Act Guidance

    This guidance \1\ updates and replaces previous guidance from the 
Council on Environmental Quality (CEQ) on the environmental review of 
proposed emergency response actions under the National Environmental 
Policy Act, 42 U.S.C. 4321-4347 (NEPA).\2\ Federal departments and 
agencies (agencies) should distribute this guidance as part of their 
general guidance on emergency actions to agency offices that are or may 
become involved in developing and taking actions in response to 
emergencies.
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    \1\ The contents of this guidance do not have the force and 
effect of law and are not meant to bind the public in any way. This 
guidance does not establish new requirements. This memorandum is 
intended only to provide clarity to the public regarding existing 
requirements under the law or agency policies.
    \2\ This guidance replaces guidance issued by CEQ on September 
14, 2020 (85 FR 60137 (Sept. 29, 2020)), September 29, 2016, May 12, 
2010, and September 8, 2005. CEQ rescinds the prior guidance.
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    As agencies respond to situations involving immediate threats to 
human health or safety, or immediate threats to valuable natural 
resources, they must consider whether there is sufficient time to 
follow the procedures for environmental review established in CEQ's 
National Environmental Policy Act Implementing Regulations, 40 CFR 
parts 1500 through1508 (CEQ NEPA regulations),\3\ and their agency NEPA 
procedures.
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    \3\ See https://www.ecfr.gov/current/title-40/chapter-V/subchapter-A.
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    CEQ established the regulation addressing alternative arrangements 
in emergency circumstances in 1978 \4\ and amended it in 2020 and 2024 
\5\ to clarify that it provides for alternative arrangements for 
agencies to comply with section 102(2)(C) of NEPA (42 U.S.C. 4332(C)). 
See 40 CFR1506.11. Alternative arrangements do not waive the 
requirement to comply with NEPA. Rather, they establish an alternative 
means for NEPA compliance. CEQ has approved, and agencies have applied 
successfully, numerous alternative arrangements to allow a wide range 
of proposed actions in emergency circumstances including natural 
disasters, catastrophic wildfires, threats to species and their 
habitat, economic crises, infectious disease outbreaks, potential dam 
failures, and insect infestations.\6\
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    \4\ 43 FR 55977 (Nov. 29, 1978).
    \5\ 85 FR 43304 (July 16, 2020); 89 FR 35442 (May 1, 2024).
    \6\ A synopsis of previous alternative arrangements is available 
at www.NEPA.gov.
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    This guidance includes two attachments with step-by-step guides to 
help agencies when planning for and responding to emergencies. 
Attachment 1 provides agencies with a process for determining the 
appropriate path forward for the NEPA environmental review of all 
actions proposed in response to an emergency situation and what steps 
to take depending on the appropriate level of NEPA review. Attachment 2 
provides guidance for preparing a concise and focused EA for emergency 
actions.

Environmental Impact Statements

    The CEQ regulations, at 40 CFR 1506.11, provide for alternative 
arrangements for NEPA compliance in emergency situations when the 
agency proposal has the potential for significant environmental effects 
and would require an environmental impact statement (EIS) if the 
situation were not an emergency:
    Where emergency circumstances make it necessary to take an action 
with significant effects without observing the provisions of the 
regulations in [40 CFR parts 1500 through 1508], 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 remain 
subject to NEPA review consistent with [40 CFR parts 1500 through 
1508]. Alternative arrangements do not waive the requirement to comply 
with the statute, but establish an alternative means for NEPA 
compliance.
    Agencies develop these alternative arrangements, based on 
emergency-specific facts and circumstances, during consultation with 
CEQ. The alternative arrangements developed by an agency address the 
actions necessary to control the immediate impacts of an emergency. The 
long-term response to the emergency, including recovery actions, 
remains subject to the regular NEPA process set forth in the statute 
and the CEQ NEPA regulations.
    Here again, alternative arrangements do not waive the requirement 
to comply with the statute, but establish an alternative means for NEPA 
compliance from the process set forth in the CEQ NEPA regulations. 
Alternative arrangements for NEPA compliance do not satisfy or alter 
other legal requirements, including other environmental legal 
requirements (except as provided by other applicable statutes or 
regulations); however, engaging other resource and regulatory agencies 
about other environmental requirements during development and 
implementation of alternative arrangements for NEPA compliance can 
potentially facilitate meeting other environmental compliance 
requirements. Final agency action taken pursuant to alternative 
arrangements for compliance with NEPA under 40 CFR 1506.11 may be 
subject to judicial review if a statute, such as the Administrative 
Procedure Act, provides for such review.

[[Page 106449]]

    Attachment 1 describes the factors for an agency to address when 
requesting and designing alternative arrangements. Once the agency and 
CEQ develop the alternative arrangements, CEQ will provide 
documentation detailing the alternative arrangements and the 
considerations on which they are based.

Environmental Assessments

    When agencies are considering proposed actions that are not likely 
to have significant effects or the significance of the effects are 
unknown, the agency can prepare a concise, focused environmental 
assessment (EA). Attachment 2 of this memorandum provides guidance for 
preparing an EA. Some agency NEPA procedures provide processes for 
preparing EAs for emergency actions,\7\ which the CEQ NEPA Regulations 
encourage agencies to include in their procedures. For emergency 
actions that require preparation of an EA, agencies should not delay 
taking action necessary to address immediate threats to human health or 
safety, or immediate threats to valuable natural resources. Agencies 
should follow any agency-specific direction regarding preparation of an 
EA for emergency actions, which may include preparing an EA before, 
during, or after the emergency. Agencies must continue their efforts to 
notify, inform, and engage with the affected public and relevant 
Federal, State, Tribal, and local governments and agency 
representatives of the Federal agency activities and proposed actions. 
Agencies must comply with the CEQ NEPA regulatory requirements 
implementing the statute for content, interagency coordination, and 
public engagement to the extent practicable.\8\
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    \7\ See Agency NEPA procedures, for example: Department of 
Homeland Security Instruction Manual 023-01-001-01, Revision 01 at 
VI-1, https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf; U.S. Forest Service, 36 CFR 
220.4(b), https://www.ecfr.gov/current/title-36/chapter-II/part-220/section-220.4; and Department of the Interior, 43 CFR 46.150, 
https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=2a2ce144c79da6f3e773bfa9cdf17bcf&mc=true&n=sp43.1.46.b&r=SUBPART&ty=HTML#se43.1.46_1150.
    \8\ 40 CFR 1501.5, 1501.6, and 1501.9 (these regulations address 
required content and public and governmental engagement for 
preparing EAs and findings of no significant impact).
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Attachment 1

Process for Emergency Actions Under the National Environmental Policy 
Act (NEPA)

    This attachment provides a step-by-step process for managing the 
NEPA review of all actions proposed in response to an emergency 
situation, consistent with the Emergencies and the National 
Environmental Policy Act Guidance. In the case of an emergency:
    1. Do not delay immediate actions necessary to secure lives and 
safety of citizens or to protect valuable resources. Consult with 
CEQ as soon as feasible. Please coordinate any communications with 
your Federal agency NEPA contacts.
    2. Determine if NEPA applies and the appropriate level of NEPA 
analysis:
    [ssquf] Determine if a Federal agency is taking the proposed 
action (e.g., city or State action does not trigger NEPA; Federal 
decisions to fund city or State action may trigger NEPA, depending 
on the nature of the funding arrangements) or is exempt from NEPA 
(e.g., certain Federal Emergency Management Agency response actions 
under the Stafford Act are statutorily excluded from NEPA; 
additional information is available at https://www.fema.gov/emergency-managers/practitioners/environmental-historic/laws/nepa/statutory-exclusions).
    [ssquf] If the Federal agency's proposed emergency action is not 
statutorily exempt from NEPA, and the agency has a categorical 
exclusion (CE) that covers the type of activity, then apply the CE 
unless there are extraordinary circumstances that indicate using the 
CE in this particular case is not appropriate. Agency NEPA personnel 
can assist in identifying agency-specific actions that are 
categorically excluded. Additionally, the agency should review CEs 
established in other agencies' NEPA procedures to determine whether 
there is a CE that would cover the agency's proposed emergency 
action. If so, the agency may adopt and apply the CE consistent with 
40 CFR 1501.4(e) and Section 109 of NEPA (42 U.S.C. 4336c).
    [ssquf] If the proposed Federal agency emergency action is not 
statutorily exempt from NEPA, a CE is not available, and the agency 
does not expect the potential environmental effects of the proposed 
response activity to be significant, then an environmental 
assessment (EA) is appropriate. Where applicable, follow the 
agency's emergency procedures as set forth in the agency's NEPA 
implementing procedures, or prepare a focused, concise EA as 
described in Attachment 2. Alternative arrangements, as outlined at 
40 CFR 1506.11, do not apply because the environmental effects are 
not expected to be significant. Agency NEPA personnel can assist in 
identifying agency-specific actions that typically require an EA.
    [ssquf] If the proposed Federal emergency action is not 
statutorily exempt from NEPA, and the agency expects it would have 
significant environmental effects, the agency should determine 
whether an existing NEPA analysis covers the action (e.g., 
implementing pre-existing spill response plans). If so, the agency 
may rely upon its existing analysis or adopt the analysis of another 
agency consistent with 40 CFR 1506.3.
    [ssquf] If the proposed Federal emergency action is not 
statutorily exempt from NEPA, the agency expects it to have 
significant environmental effects, and an existing NEPA analysis 
does not cover the action, then the agency should consult with CEQ 
to determine whether alternative arrangements can take the place of 
an EIS. Contact CEQ to develop alternative arrangements under 40 CFR 
1506.11. CEQ encourages agencies to submit inquiries via email at 
[email protected]. Agencies may also contact CEQ at (202) 395-5750.
    3. Factors to address when requesting and designing alternative 
arrangements include the:
    [ssquf] Nature and scope of the emergency;
    [ssquf] Actions necessary to control the immediate impacts of 
the emergency;
    [ssquf] Potential adverse effects of the proposed action;
    [ssquf] Components of the NEPA process that the agency can 
follow and provide value to decision making (e.g., coordination with 
Tribal Nations, affected agencies, and the public);
    [ssquf] Duration of the emergency; and
    [ssquf] Potential mitigation measures.

Attachment 2

Preparing Focused, Concise, and Timely Environmental Assessments

    An agency can prepare a concise and focused EA in a short time 
in those situations where:
    [ssquf] There is no statutory exemption from NEPA requirements;
    [ssquf] There is no CE that covers the action, or there are 
extraordinary circumstances requiring the preparation of an EA or 
EIS;
    [ssquf] An existing NEPA analysis (EA or EIS) does not cover the 
proposed action; and
    [ssquf] The environmental effects of the proposed actions are 
not likely to be significant.
    The following outline with notations addresses the core elements 
of an EA as required by 40 CFR 1501.5:
    [ssquf] The purpose and need for the proposed action;
    [ssquf] Alternatives, as required by NEPA section 102(2)(H);
    [ssquf] The description of environmental effects of the proposed 
action and the alternatives;
    [ssquf] The list of agencies and persons consulted;
    [ssquf] The unique identification number of the EA.

Purpose and Need for the Proposed Action

    The agency should briefly describe information that 
substantiates the purpose and need for the action and incorporate by 
reference information that is reasonably available to the public. 
For example, ``This agency is preparing to erect a temporary 
emergency response facility to replace facilities disrupted or 
destroyed by the [hurricane/flooding/contamination/etc.] to 
facilitate rescue or relief efforts in an effort to [minimize 
further adverse health conditions/restore communications/restore 
power].''
    The agency should briefly describe the existing conditions and 
the projected future conditions of the area impacted by the action. 
For example, ``The area(s) in which the temporary facility will be 
located or relocated is identified in the attached map. This area 
consists of [add brief description of the environmental state of the 
area that will be affected by the location and operation of the 
facility, focusing on those areas that are potentially sensitive. 
The goal is to show that environmental effects have been considered

[[Page 106450]]

and the facts found indicate no significant impact (for example, 
refueling sites are not on top of aquifers, nesting areas, graves, 
sacred sites, etc.). These are examples to show the utility of and 
need to identify actual place-based environmental issues rather than 
compiling lists of environmental resources not at issue].''

Proposed Action and Alternatives

    The agency should list and briefly describe its proposed action 
and reasonable alternatives that meet the purpose and need. The 
agency must use its discretion to ensure the number and reasonable 
range of alternatives is reasoned and not arbitrary or capricious. 
The purpose and need for the proposed action and its environmental 
effects should focus the alternatives. For example, the need to use 
existing infrastructure necessary to support the facility is a 
reasoned basis for focusing on a discrete number of alternatives.
    When there is no unresolved conflict concerning alternative uses 
of available resources with respect to the proposed action based on 
input from interested parties, the agency can consider the proposed 
action and proceed without consideration of additional alternatives. 
Otherwise, the agency must identify reasonable alternatives that 
meet the action's purpose and need, consistent with section 
102(2)(H) of NEPA.

Environmental Effects of the Proposed Action and Alternatives

    The agency must describe the environmental effects of its 
proposed action and each alternative. 40 CFR 1501.5(c)(2)(iii). The 
description should provide enough information to support a 
determination to either prepare an EIS or a finding of no 
significant impact.
    The agency should focus on whether the action would 
significantly affect the quality of the human environment. The 
agency should follow the CEQ NEPA regulations in considering whether 
the effects of a proposed action are significant. See 40 CFR 
1501.3(d). Agency NEPA contacts and contacts at resource agencies 
can assist in this effort.
    Tailor the length of the discussion to the complexity of each 
issue. Focus on those human and natural environment issues where 
effects are a concern. Telephone or email discussions with State, 
Tribal, and local governments and agencies and other Federal 
agencies that operate in the area will help focus those issues.
    The agency must discuss the effects of each alternative and may 
discuss those effects together in a comparative description or 
discuss each alternative separately. The agency should use the 
approach that will be most effective in the time available. The 
agency may contrast the effects of the proposed action and 
alternatives with the current condition and expected future 
condition in the absence of the action. This constitutes 
consideration of a no action alternative as well as demonstrating 
the need for the action.
    The agency should incorporate by reference data, inventories, 
other information, and analyses relied on in the EA. See 40 CFR 
1501.12. CEQ encourages the use of digital references, such as 
hyperlinks. This information must be reasonably available for review 
by potentially interested persons. For example, include relevant 
existing programmatic agreements and generally accepted best 
management practices.
    The agency should be clear and concise about its conclusions and 
their bases.

List of Agencies and Persons Consulted

    The agency must involve the public, State, Tribal, and local 
governments, relevant agencies, and any applicants, to the extent 
practicable in preparing EAs, and list the agencies and persons 
consulted. 40 CFR 1501.5(c)(3) and 1501.5(f). For example, include 
the people, offices, and agencies that the agency coordinated with 
to ensure that the location of the action did not cause 
unintentionally an adverse effect. Also include information about 
individuals consulted to comply with substantive environmental 
requirements and regulations, for example: the Clean Water Act, the 
National Historic Preservation Act, and the Endangered Species Act 
(ESA). Note that the ESA emergency provisions at 50 CFR 402.05 may 
be applicable to the proposed action.

    Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375.

Brenda Mallory,
Chair.

[FR Doc. 2024-30675 Filed 12-27-24; 8:45 am]
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