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43304 Federal Register / Vol. 85, No. 137 / Thursday, 16, 2020 / Rules and

COUNCIL ON ENVIRONMENTAL B. Council on Environmental Quality E. Revisions to Commenting on QUALITY Regulations, Guidance, and Reports Environmental Impact Statements (Part 1. Regulatory History 1503) 40 CFR Parts 1500, 1501, 1502, 1503, 2. CEQ Guidance and Reports 1. Inviting Comments and Requesting 1504, 1505, 1506, 1507, 1508, 1515, 3. Environmental Impact Statement Information and Analyses (§ 1503.1) Timelines and Page Count Reports 2. Duty To Comment (§ 1503.2) 1516, 1517, and 1518 C. Judicial Review of Agency NEPA 3. Specificity of Comments and [CEQ–2019–0003] Compliance Information (§ 1503.3) D. Statutory Developments 4. Response to Comments (§ 1503.4) RIN 0331–AA03 E. Presidential Directives F. Revisions to Pre-Decisional Referrals to F. Advance Notice of Proposed the Council of Proposed Federal Actions Update to the Regulations G. Notice of Proposed Rulemaking Determined To Be Environmentally Implementing the Procedural II. Summary of Final Rule Unsatisfactory (Part 1504) A. Changes Throughout Parts 1500–1508 Provisions of the National 1. Purpose (§ 1504.1) B. Revisions To Update the Purpose, 2. Criterial for Referral (§ 1504.2) Environmental Policy Act Policy, and Mandate (Part 1500) 3. Procedure for Referrals and Response 1. Purpose and Policy (§ 1500.1) AGENCY: (§ 1504.3) Council on Environmental 2. Remove and Reserve Policy (§ 1500.2) Quality. G. Revisions to NEPA and Agency Decision 3. NEPA Compliance (§ 1500.3) Making (Part 1505) ACTION: Final rule. 4. Reducing Paperwork and Delay 1. Remove and Reserve Agency (§§ 1500.4 and 1500.5) Decisionmaking Procedures (§ 1505.1) SUMMARY: The Council on 5. Agency Authority (§ 1500.6) 2. Record of Decision in Cases Requiring Environmental Quality (CEQ) issues this C. Revisions to NEPA and Agency Planning Environmental Impact Statements final rule to update its regulations for (Part 1501) (§ 1505.2) Federal agencies to implement the 1. NEPA Thresholds (§ 1501.1) 3. Implementing the Decision (§ 1505.3) 2. Apply NEPA Early in the Process National Environmental Policy Act H. Revisions to Other Requirements of (§ 1501.2) NEPA (Part 1506) (NEPA). CEQ has not comprehensively 3. Determine the Appropriate Level of updated its regulations since their 1. Limitations on Actions During NEPA NEPA Review (§ 1501.3) Process (§ 1506.1) promulgation in 1978, more than four 4. Categorical Exclusions (§ 1501.4) 2. Elimination of Duplication With State, decades ago. This final rule 5. Environmental Assessments (§ 1501.5) Tribal, and Local Procedures (§ 1506.2) comprehensively updates, modernizes, 6. Findings of No Significant Impact 3. Adoption (§ 1506.3) (§ 1501.6) and clarifies the regulations to facilitate 4. Combining Documents (§ 1506.4) 7. Lead and Cooperating Agencies 5. Agency Responsibility for more efficient, effective, and timely (§§ 1501.7 and 1501.8) Environmental Documents (§ 1506.5) NEPA reviews by Federal agencies in 8. Scoping (§ 1501.9) 6. Public Involvement (§ 1506.6) connection with proposals for agency 9. Time Limits (§ 1501.10) 7. Further Guidance (§ 1506.7) action. The rule will improve 10. Tiering (§ 1501.11) 8. Proposals for Legislation (§ 1506.8) interagency coordination in the 11. Incorporation by Reference (§ 1501.12) D. Revisions to Environmental Impact 9. Proposals for Regulations (§ 1506.9) environmental review process, promote 10. Filing Requirements (§ 1506.10) earlier public involvement, increase Statements (Part 1502) 1. Purpose of Environmental Impact 11. Timing of Agency Action (§ 1506.11) transparency, and enhance the 12. Emergencies (§ 1506.12) participation of States, Tribes, and Statement (§ 1502.1) 2. Implementation (§ 1502.2) 13. Effective Date (§ 1506.13) localities. The amendments will 3. Statutory Requirements for Statements I. Revisions to Agency Compliance (Part advance the original goals of the CEQ (§ 1502.3) 1507) regulations to reduce paperwork and 4. Major Federal Actions Requiring the 1. Compliance (§ 1507.1) delays, and promote better decisions Preparation of Environmental Impact 2. Agency Capability To Comply (§ 1507.2) consistent with the national Statements (§ 1502.4) 3. Agency NEPA Procedures (§ 1507.3) 5. Timing (§ 1502.5) 4. Agency NEPA Program Information environmental policy set forth in (§ 1507.4) section 101 of NEPA. 6. Interdisciplinary Preparation (§ 1502.6) 7. Page Limits (§ 1502.7) J. Revisions to Definitions (Part 1508) DATES: This is a major rule subject to 8. Writing (§ 1502.8) 1. Clarifying the Meaning of ‘‘Act’’ congressional review. The effective date 9. Draft, Final and Supplemental 2. Definition of ‘‘Affecting’’ is 14, 2020. However, if Statements (§ 1502.9) 3. New Definition of ‘‘Authorization’’ congressional review has changed the 10. Recommended Format (§ 1502.10) 4. Clarifying the Meaning of ‘‘Categorical effective date, CEQ will publish a 11. Cover (§ 1502.11) Exclusion’’ 12. Summary (§ 1502.12) 5. Clarifying the Meaning of ‘‘Cooperating document in the Federal Register to Agency’’ establish the actual effective date or to 13. Purpose and Need (§ 1502.13) 14. Alternatives Including the Proposed 6. Definition of ‘‘Council’’ terminate the rule. Action (§ 1502.14) 7. Definition of ‘‘Cumulative Impact’’ and ADDRESSES: CEQ has established a 15. Affected Environment (§ 1502.15) Clarifying the Meaning of ‘‘Effects’’ docket for this action under docket 16. Environmental Consequences 8. Clarifying the Meaning of number CEQ–2019–0003. All (§ 1502.16) ‘‘Environmental Assessment’’ documents in the docket are listed on 17. Submitted Alternatives, Information, 9. Clarifying the Meaning of ‘‘Environmental Document’’ www.regulations.gov. and Analyses (§ 1502.17) 18. List of Preparers (§ 1502.18) 10. Clarifying the Meaning of FOR FURTHER INFORMATION CONTACT: 19. Appendix (§ 1502.19) ‘‘Environmental Impact Statement’’ Viktoria Z. Seale, Chief of Staff and 20. Publication of the Environmental 11. Clarifying the Meaning of ‘‘Federal General Counsel, 202–395–5750, NEPA- Impact Statement (§ 1502.20) Agency’’ [email protected]. 21. Incomplete or Unavailable Information 12. Clarifying the Meaning of ‘‘Finding of (§ 1502.21) No Significant Impact’’ SUPPLEMENTARY INFORMATION: 22. Cost-Benefit Analysis (§ 1502.22) 13. Clarifying the Meaning of ‘‘Human Table of Contents 23. Methodology and Scientific Accuracy Environment’’ (§ 1502.23) 14. Definition of ‘‘Jurisdiction by Law’’ I. Background 24. Environmental Review and 15. Clarifying the Meaning of ‘‘Lead A. National Environmental Policy Act Consultation Requirements (§ 1502.24) Agency’’

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16. Clarifying the Meaning of ‘‘Legislation’’ Since the promulgation of the 1978 review, CEQ found that, across the 17. Clarifying the Meaning of ‘‘Major regulations, however, the NEPA process Federal Government, the average time Federal Action’’ has become increasingly complicated for completion of an EIS and issuance 18. Definition of ‘‘Matter’’ and can involve excessive paperwork of a ROD was 4.5 years and the median 19. Clarifying the Meaning of ‘‘Mitigation’’ 3 20. Definition of ‘‘NEPA Process’’ and lengthy delays. The regulations was 3.5 years. CEQ determined that 21. Clarifying the Meaning of ‘‘Notice of have been challenging to navigate with one quarter of EISs took less than 2.2 Intent’’ related provisions scattered throughout, years, and one quarter of the EISs took 22. New Definition of ‘‘Page’’ and include definitions and provisions more than 6 years. And these timelines 23. New Definition of ‘‘Participating that have led to confusion and generated do not necessarily include further Agency’’ extensive litigation. The complexity of delays associated with litigation over 24. Clarifying the Meaning of ‘‘Proposal’’ the regulations has given rise to CEQ’s the legal sufficiency of the NEPA 25. New Definition of ‘‘Publish and issuance of more than 30 guidance process or its resulting documentation. Publication’’ 26. New Definition of ‘‘Reasonable documents to assist Federal agencies in Although other factors contribute Alternatives’’ understanding and complying with to project delays, the frequency and 27. New Definition of ‘‘Reasonably NEPA. Agencies also have developed consistency of multi-year review Foreseeable’’ procedures and practices to improve processes for EISs for projects across the 28. Definition of ‘‘Referring Agency’’ their implementation of NEPA. Federal Government leaves no doubt 29. Definition of ‘‘Scope’’ Additionally, Presidents have issued that NEPA implementation and related 30. New Definition of ‘‘Senior Agency directives, and Congress has enacted litigation is a significant factor.4 It is Official’’ legislation to reduce delays and critical to improve NEPA 31. Definition of ‘‘Special Expertise’’ 32. Striking the Definition of expedite the implementation of NEPA implementation, not just for major ‘‘Significantly’’ and the CEQ regulations, including for projects, but because tens of thousands 33. Clarifying the Meaning of ‘‘Tiering’’ transportation, water, and other types of of projects and activities are subject to K. CEQ Guidance Documents infrastructure projects. NEPA every year, many of which are III. Rulemaking Analyses and Notices Despite these efforts, the NEPA important to modernizing our Nation’s A. 12866, Regulatory process continues to slow or prevent the infrastructure.5 Planning and Review and Executive development of important infrastructure As noted above, an extensive body of Order 13563, Improving and and other projects that require Federal case law interpreting NEPA and CEQ’s Regulatory Review implementing regulations drives much B. Executive Order 13771, Reducing permits or approvals, as well as Regulation and Controlling Regulatory and other proposed of agencies’ modern day practice. Costs actions. Agency practice has also Though courts have correctly C. Regulatory Flexibility Act and Executive continued to evolve over the past four recognized that NEPA requires agencies Order 13272, Proper Consideration of decades, but many of the most efficient to follow certain procedures and not to Small Entities in Agency Rulemaking and effective practices have not been reach particular substantive results, the D. Congressional Review Act incorporated into the CEQ regulations. accretion of cases has not necessarily E. National Environmental Policy Act Further, a wide range of judicial clarified implementation of the law. In F. Endangered Species Act decisions, including those issued by the light of the litigation risk such a G. Executive Order 13132, Federalism situation presents, agencies have H. Executive Order 13175, Consultation Supreme Court, evaluating Federal and Coordination With Indian Tribal agencies’ compliance with NEPA have responded by generating voluminous Governments construed and interpreted key studies analyzing impacts and I. Executive Order 12898, Federal Actions provisions of the statute and CEQ’s alternatives well beyond the point To Address Environmental Justice in regulations. CEQ’s guidance, agency where useful information is being Minority Populations and Low-Income practice, more recent presidential produced and utilized by decision Populations directives and statutory developments, makers. In its most recent review, CEQ J. Executive Order 13211, Actions found that final EISs averaged 661 pages Concerning Regulations That and the body of case law related to NEPA implementation have not been in length, and the median document Significantly Affect Energy Supply, 6 Distribution, or Use harmonized or codified in CEQ’s was 447 pages. One quarter were 748 K. Executive Order 12988, Civil Justice regulations. pages or longer. The page count and Reform As discussed further below, NEPA document length data do not include L. Unfunded Mandates Reform Act implementation and related litigation M. Paperwork Reduction Act can be lengthy and significantly delay FR 18026 (Mar. 23, 1981) (‘‘Forty Questions’’), 1 https://www.energy.gov/nepa/downloads/forty- I. Background major infrastructure and other projects. most-asked-questions-concerning-ceqs-national- For example, CEQ has found that NEPA environmental-policy-act. ‘‘The Council has advised President Nixon signed the National reviews for Federal Highway agencies that under the new NEPA regulations even Environmental Policy Act of 1969, 42 Administration projects, on average take large complex energy projects would require only about 12 months for the completion of the entire U.S.C. 4321 et seq., (NEPA or the Act) more than seven years to proceed from into law on 1, 1970. The EIS process. For most major actions, this period is a notice of intent (NOI) to prepare an well within the planning time that is needed in any Council on Environmental Quality environmental impact statement (EIS) to event, apart from NEPA.’’ Id. at Question 35. (CEQ) initially issued interim guidelines issuance of a record of decision (ROD). 3 See infra sec. I.B.3. 4 for implementing NEPA in 1970, revised This is a dramatic departure from CEQ’s See also, Philip K. Howard, Common Good, Two Years, Not Ten: Redesigning Infrastructure those guidelines in 1971 and 1973, and prediction in 1981 that Federal agencies subsequently promulgated its Approvals (Sept. 2015) (‘‘Two Years, Not Ten’’), would be able to complete most EISs, https://www.commongood.org/wp-content/uploads/ regulations implementing NEPA in the most intensive review of a project’s 2017/07/2YearsNot10Years.pdf. 1978. The original goals of those environmental impacts under NEPA, in 5 As discussed in sections II.D and II.C.5, CEQ estimates that Federal agencies complete 176 EISs regulations were to reduce paperwork 12 months or less.2 In its most recent and delays, and promote better and 10,000 environmental assessments each year. In addition, CEQ estimates that agencies apply decisions consistent with the national 1 See infra sec. I.B.3 and I.C. categorical exclusions to 100,000 actions annually. environmental policy established by the 2 Forty Most Asked Questions Concerning CEQ’s See infra sec. II.C.4. Act. National Environmental Policy Act Regulations, 46 6 See infra sec. I.B.3.

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appendices. The average modern EIS is I.A provides a brief summary of the proposed major Federal actions and to more than 4 times as long as the 150 NEPA statute. Section I.B describes the make the public aware of the agency’s pages contemplated by the 1978 history of CEQ’s regulations decision-making process. When regulations. implementing NEPA and provides an effective and well managed, the NEPA By adopting these regulations overview of CEQ’s numerous guidance process results in more informative following so many decades of NEPA documents and reports issued documentation, enhanced coordination, practice, implementation, and litigation, subsequent to the regulations. Section resolution of conflicts, and improved CEQ is acting now to enhance the I.C discusses the role of the courts in environmental outcomes. With this final efficiency of the process based on its interpreting NEPA. Section I.D provides rule, CEQ codifies effective agency decades of experience overseeing a brief overview of Congress’s efforts, practice and provides clarity on the Federal agency practice, and clarifying a and section I.E describes the initiatives requirements of the NEPA process. number of key NEPA terms and of multiple administrations to reduce A. National Environmental Policy Act requirements that have frequently been delays and improve implementation of subject to litigation. The modifications NEPA. Finally, sections I.F and I.G Congress enacted NEPA to establish a and refinements reflected in the final provides the background on this national policy for the environment, rule will contribute to greater certainty rulemaking, including the ANPRM and provide for the establishment of CEQ, and predictability in NEPA the NPRM. and for other purposes. Section 101 of implementation, and thus eliminate at In section II, CEQ provides a summary NEPA sets forth a national policy ‘‘to least in some measure the unnecessary of the final rule, including changes CEQ use all practicable means and measures, and burdensome delays that have made from the proposed rule, which including financial and technical hampered national infrastructure and comprehensively updates and assistance, in a manner calculated to other important projects. substantially revises CEQ’s prior foster and promote the general welfare, In 2018, CEQ issued an advance regulations. This final rule modernizes to create and maintain conditions under notice of proposed rulemaking and clarifies the CEQ regulations to which man and nature can exist in (ANPRM) requesting comment on facilitate more efficient, effective, and productive harmony, and [to] fulfill the potential updates and clarifications to timely NEPA reviews by Federal social, economic, and other the CEQ regulations.7 On , agencies by simplifying regulatory requirements of present and future 2020, CEQ published a notice of requirements, codifying certain generations of Americans.’’ 42 U.S.C. proposed rulemaking 8 (NPRM or guidance and case law relevant to these 4331(a). Section 102 of NEPA proposed rule) in the Federal Register regulations, revising the regulations to establishes procedural requirements, proposing to update its regulations for reflect current technologies and agency applying that national policy to implementing the procedural provisions practices, eliminating obsolete proposals for major Federal actions of NEPA. provisions, and improving the format significantly affecting the quality of the Following the publication of the and readability of the regulations. CEQ’s human environment by requiring NPRM, CEQ received approximately revisions include provisions intended to Federal agencies to prepare a detailed 1,145,571 comments on the proposed promote timely submission of relevant statement on: (1) The environmental rule.9 A majority of the comments information to ensure consideration of impact of the proposed action; (2) any (approximately 1,136,755) were the such information by agencies. CEQ’s adverse environmental effects that result of mass mail campaigns, which revisions will provide greater clarity for cannot be avoided; (3) alternatives to the are comments with multiple signatories Federal agencies, States, Tribes, proposed action; (4) the relationship or groups of comments that are identical localities, and the public, and advance between local short-term uses of man’s or very similar in form and content. the original goals of the CEQ regulations environment and the maintenance and CEQ received approximately 8,587 to reduce paperwork and delays and enhancement of long-term productivity; unique public comments of which 2,359 promote better decisions consistent with and (5) any irreversible and irretrievable were substantive comments raising a the national environmental policy set commitments of resources that would be variety of issues related to the forth in section 101 of NEPA. involved in the proposed action. 42 rulemaking and contents of the CEQ provides a summary of the U.S.C. 4332(2)(C). NEPA also proposed rule, including procedural, comments received on the proposed established CEQ as an agency within the legal, and technical issues. Finally, 229 rule and responses in the document Executive Office of the President to comments were duplicate or non- titled ‘‘Update to the Regulations administer Federal agency germane submissions, or contained only Implementing the Procedural Provisions implementation of NEPA. 42 U.S.C. supporting materials. of the National Environmental Policy 4332(2)(B), (C), (I), 4342, 4344; see also The background section below Act Final Rule Response to Dep’t of Transp. v. Pub. Citizen, 541 10 summarizes NEPA, the CEQ regulations, Comments’’ (‘‘Final Rule Response to U.S. 752, 757 (2004); Warm Springs and developments since CEQ issued Comments’’). This document organizes Dam Task Force v. Gribble, 417 U.S. those regulations. Specifically, section the comments by the parts and sections 1301, 1309–10 (Douglas, J. Circuit of the proposed rule that the comment Justice 1974). 7 83 FR 28591 (, 2018). addresses, and includes a subsection on NEPA does not mandate particular 8 85 FR 1684 (Jan. 10, 2020). other general or crosscutting topics. results or substantive outcomes. Rather, 9 In the NPRM, CEQ listed several methods for Ultimately, the purpose of the NEPA NEPA requires Federal agencies to members of the public to submit written comments, process is to ensure informed decision consider environmental impacts of including submittal to the docket on making by Federal agencies with regard proposed actions as part of agencies’ regulations.gov, by fax, or by mail. In addition, CEQ also included an email address (NEPA-Update@ to the potential environmental effects of decision-making processes. ceq.eop.gov) in the NPRM for further information. Additionally, NEPA does not include a While the NPRM did not list this email address 10 The Update to the Regulations Implementing private right of action and specifies no among the several methods for the public to provide the Procedural Provisions of the National remedies. Challenges to agency action comments, CEQ has considered comments received Environmental Policy Act Final Rule Response to through this email address during the public Comments document is available under alleging noncompliance with NEPA comment period and included them in the docket ‘‘Supporting Documents’’ in the docket on procedures are brought under the on regulations.gov. regulations.gov under docket ID CEQ–2019–0003. Administrative Procedure Act (APA). 5

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U.S.C. 551 et seq. Accordingly, NEPA In 1978, CEQ promulgated its Court has held that NEPA is a cases proceed as APA cases. Limitations ‘‘National Environmental Policy Act, procedural statute that serves the twin on APA cases and remedies thus apply Regulations, Implementation of aims of ensuring that agencies consider to the adjudication of NEPA disputes. Procedural Provisions,’’ 40 CFR parts the significant environmental 1500–1508 (‘‘CEQ regulations’’ or consequences of their proposed actions B. Council on Environmental Quality ‘‘NEPA regulations’’), ‘‘[t]o reduce and inform the public about their Regulations, Guidance, and Reports paperwork, to reduce delays, and at the decision making. Balt. Gas & Elec. Co. 1. Regulatory History same time to produce better decisions v. Nat. Res. Def. Council, Inc., 462 U.S. [that] further the national policy to In 1970, President Nixon issued 87, 97 (1983) (citing Vt. Yankee Nuclear protect and enhance the quality of the Executive Order (E.O.) 11514, titled Power Corp. v. Nat. Res. Def. Council, human environment.’’ 15 The Supreme ‘‘Protection and Enhancement of Inc., 435 U.S. 519, 553 (1978); Court has explained that E.O. 11991 Environmental Quality,’’ which directed Weinberger v. Catholic Action of Haw./ requires all ‘‘heads of [F]ederal agencies CEQ to ‘‘[i]ssue guidelines to Federal Peace Educ. Project, 454 U.S. 139, 143 to comply’’ with the ‘‘single set of agencies for the preparation of detailed (1981)). uniform, mandatory regulations’’ that statements on proposals for legislation Furthermore, in describing the role of CEQ issued to implement NEPA’s and other Federal actions affecting the NEPA in agencies’ decision-making provisions. Andrus v. Sierra Club, 442 processes, the Supreme Court has environment, as required by section U.S. 347, 357 (1979). 102(2)(C) of the Act.’’ 11 CEQ issued stated, ‘‘Congress in enacting NEPA, The Supreme Court has afforded the however, did not require agencies to interim guidelines in of 1970 and CEQ regulations ‘‘substantial 12 elevate environmental concerns over revised them in 1971 and 1973. deference.’’ Robertson v. Methow Valley In 1977, President Carter issued E.O. other appropriate Citizens Council, 490 U.S. 332, 355 considerations.’’ 17 Balt. Gas & Elec. Co., 11991, titled ‘‘Relating to Protection and (1989) (citing Andrus, 442 U.S. at 358); Enhancement of Environmental 462 U.S. at 97 (citing Strycker’s Bay Pub. Citizen, 541 U.S. at 757 (‘‘The Neighborhood Council v. Karlen, 444 Quality.’’ 13 E.O. 11991 amended section [CEQ], established by NEPA with 3(h) of E.O. 11514, directing CEQ to U.S. 223, 227 (1980) (per curiam)). authority to issue regulations Instead, NEPA requires agencies to ‘‘[i]ssue regulations to Federal agencies interpreting it, has promulgated for the implementation of the analyze the environmental regulations to guide [F]ederal agencies consequences before taking a major procedural provisions of [NEPA] . . . to in determining what actions are subject make the environmental impact Federal action. Id. (citing Kleppe v. to that statutory requirement.’’ (citing 40 Sierra Club, 427 U.S. 390, 410 n.21 statement process more useful to CFR 1500.3)). The new regulations are decision[ ]makers and the public; and to (1976)). The Supreme Court has intended to embody CEQ’s recognized that agencies have limited reduce paperwork and the accumulation interpretation of NEPA for Chevron of extraneous background data, in order time and resources and that ‘‘[t]he scope purposes and to operate as legislative of the agency’s inquiries must remain to emphasize the need to focus on real 16 rules. See Chevron U.S.A., Inc. v. Nat. manageable if NEPA’s goal of ‘[insuring] environmental issues and alternatives,’’ Res. Def. Council, Inc., 467 U.S. 837, and to ‘‘require [environmental] impact a fully informed and well-considered 842–43 (1984); see also Nat’l Cable & decision,’ . . . is to be accomplished.’’ statements to be concise, clear, and to Telecomm. Ass’n v. Brand X internet the point, and supported by evidence Metro. Edison Co. v. People Against Servs., 545 U.S. 967, 980–86 (2005) Nuclear Energy, 460 U.S. 766, 776 that agencies have made the necessary (applying Chevron deference to Federal (1983) (quoting Vt. Yankee, 435 U.S. at environmental analyses.’’ E.O. 11991 Communications Commission 558). also amended section 2 of E.O. 11514, regulations); United States v. Mead CEQ has substantively amended its requiring agency compliance with the Corp., 533 U.S. 218, 227–30 (2001) NEPA regulations only once, at 40 CFR regulations issued by CEQ. The (properly promulgated agency 1502.22, to replace the ‘‘worst case’’ Executive order was based on the regulations addressing ambiguities or analysis requirement with a provision President’s constitutional and statutory gaps in a statute qualify for Chevron for the consideration of incomplete or authority, including NEPA, the deference when agencies possess the unavailable information regarding Environmental Quality Improvement authority to issue regulations reasonably foreseeable significant Act, 42 U.S.C. 4371 et seq., and section interpreting the statute). The Supreme 18 309 of the Clean Air Act, 42 U.S.C. adverse effects. CEQ found that the amended 40 CFR 1502.22 would 7609. The President has a constitutional Statement preparation. See The Report of the duty to ensure that the ‘‘Laws be Commission on Federal Paperwork, Environmental ‘‘generate information and discussion faithfully executed,’’ U.S. Const. art. II, Impact Statements 16 (Feb. 25, 1977). on those consequences of greatest 15 43 FR 55978 (Nov. 29, 1978); see also 44 FR sec. 3, which may be delegated to concern to the public and of greatest 873 (Jan. 3, 1979) (technical corrections), and 43 FR relevance to the agency’s decision,’’ 19 appropriate officials. 3 U.S.C. 301. In 25230 (, 1978) (proposed rule). rather than distorting the decision- signing E.O. 11991, the President 16 Even without expressly invoking Chevron here delegated this authority to CEQ.14 and noting that CEQ intends these regulations to making process by overemphasizing operate as legislative rules, Chevron would still highly speculative harms.20 The apply. See Guedes v. ATF, 920 F.3d 1, 23 (D.C. Cir. 11 Supreme Court found this reasoning to 35 FR 4247 (Mar. 7, 1970), sec. 3(h). 2019) (‘‘And for this Rule in particular, another 12 See 35 FR 7390 (, 1970) (interim telltale sign of the agency’s belief that it was 17 guidelines); 36 FR 7724 (Apr. 23, 1971) (final promulgating a rule entitled to Chevron deference Section 101 of NEPA provides that it is the guidelines); 38 FR 10856 (, 1973) (proposed is the Rule’s invocation of Chevron by name. To be Federal Government’s policy ‘‘to use all practicable revisions to guidelines); 38 FR 20550 (Aug. 1, 1973) sure, an agency of course need not expressly invoke means and measures . . . to create and maintain (revised guidelines). the Chevron framework to obtain Chevron conditions under which man and nature can exist 13 42 FR 26967 (, 1977). deference: ‘Chevron is a standard of judicial review, in productive harmony, and [to] fulfill the social, 14 The Presidential directive was consistent with not of agency action.’ SoundExchange[, Inc. v. economic, and other requirements of present and the recommendation of the Commission on Federal Copyright Royalty Bd.,] 904 F.3d [41,] 54 [(D.C. Cir. future generations of Americans.’’ 42 U.S.C. 4331(a) Paperwork that the President require the 2018)]. Still, the Bureau’s invocation of Chevron (emphasis added). development of consistent regulations and here is powerful evidence of its intent to engage in 18 51 FR 15618 (Apr. 25, 1986). definitions and ensure coordination among agencies an exercise of interpretive authority warranting 19 50 FR 32234, 32237 (Aug. 9, 1985). in the implementation of Environmental Impact Chevron treatment.’’) (emphasis in original). 20 51 FR 15618, 15620 (Apr. 25, 1986).

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be a well-considered basis for the improve decision making,25 and provide clarity and direction related to change, and that the new regulation was concerns that agencies may seek to implementation of the regulations and entitled to substantial deference. ‘‘ ‘litigation-proof’ documents, the Act through the issuance of Methow Valley, 490 U.S. at 356. increasing costs and time but not guidance, agencies continue to face The NEPA regulations direct Federal necessarily quality.’’ 26 The report implementation challenges. Further, the agencies to adopt their own further stated that ‘‘[o]ther matters of documentation and timelines for implementing procedures, as necessary, concern to participants in the Study completing environmental reviews can in consultation with CEQ. 40 CFR were the length of NEPA processes, the be very lengthy, and the process can be 1507.3. Under this regulation, over 85 extensive detail of NEPA analyses, and complex and costly. Federal agencies and their subunits the sometimes confusing overlay of In 2018, CEQ and the Office of have developed such procedures.21 other laws and regulations.’’ 27 The Management and Budget (OMB) issued participants in the study identified five a memorandum titled ‘‘One Federal 2. CEQ Guidance and Reports elements of the NEPA process’ Decision Framework for the Over the past four decades, numerous collaborative framework (strategic Environmental Review and questions have been raised regarding planning, public information and input, Authorization Process for Major appropriate implementation of NEPA interagency coordination, Infrastructure Projects under E.O. and the CEQ regulations. Soon after the interdisciplinary place-based decision 13807’’ (‘‘OFD Framework 30 issuance of the CEQ regulations and in making, and science-based flexible Guidance’’). CEQ and OMB issued this response to CEQ’s review of NEPA management) as critical to effective and guidance pursuant to E.O. 13807, titled implementation and input from Federal, efficient NEPA implementation. ‘‘Establishing Discipline and State, and local officials, including In 2002, the Chairman of CEQ Accountability in the Environmental NEPA practitioners, CEQ issued the established a NEPA task force, Review and Permitting Process for 31 ‘‘Forty Most Asked Questions composed of Federal agency officials, to Infrastructure Projects,’’ to improve Concerning CEQ’s National examine NEPA implementation by agency coordination for infrastructure focusing on (1) technology and Environmental Policy Act _ _ Regulations’’ 22 in 1981 (‘‘Forty information management and security; Final Dec2014 searchable.pdf; NEPA and NHPA: A (2) Federal and intergovernmental Handbook for Integrating NEPA and Section 106 Questions’’). This guidance covered a (Mar. 2013), https://ceq.doe.gov/publications/nepa- wide range of topics including collaboration; (3) programmatic analyses handbooks.html; Memorandum on Environmental alternatives, coordination among and tiering; (4) adaptive management Conflict Resolution (Nov. 28, 2005), as expanded by Memorandum on Environmental Collaboration and applicants, lead and cooperating and monitoring; (5) categorical exclusions (CEs); and (6) environmental Conflict Resolution (Sept. 7, 2012), https:// agencies, and integration of NEPA ceq.doe.gov/nepa-practice/environmental- documents with analysis for other assessments (EAs). In 2003, the task collaboration-and-conflict-resolution.html; Final 28 environmental statutes. In addition, force issued a report recommending Guidance on Improving the Process for Preparing Efficient and Timely Environmental Reviews Under CEQ has periodically examined the actions to improve and modernize the NEPA process, leading to additional the National Environmental Policy Act, 77 FR effectiveness of the NEPA process and 14473 (Mar. 12, 2012) (‘‘Timely Environmental issued a number of reports on NEPA guidance documents and handbooks. Reviews Guidance’’), https://ceq.doe.gov/docs/ceq- implementation. In some instances, Over the past 4 decades, CEQ has regulations-and-guidance/Improving_NEPA_ Efficiencies_06Mar2012.pdf; Final Guidance for these reports led to additional guidance. issued over 30 documents on a wide variety of topics to provide guidance Federal Departments and Agencies on the These documents have been intended to Appropriate Use of Mitigation and Monitoring and provide guidance and clarifications with and clarifications to assist Federal Clarifying the Appropriate Use of Mitigated respect to various aspects of the agencies in more efficiently and Findings of No Significant Impact, 76 FR 3843 (Jan. 21, 2011) (‘‘Mitigation Guidance’’), https:// implementation of NEPA and the effectively implementing the NEPA regulations.29 While CEQ has sought to ceq.doe.gov/docs/ceq-regulations-and-guidance/ definitions in the CEQ regulations, and Mitigation_and_Monitoring_Guidance_ to increase the efficiency and 14Jan2011.pdf; Council on Environmental Quality, 25 Id. at iii. Final Guidance for Federal Departments and effectiveness of the environmental 26 Id. 23 Agencies on Establishing, Applying, and Revising review process. 27 Id. In the 50 years since the passage of NEPA, Categorical Exclusions under the National In January 1997, CEQ issued ‘‘The Congress has amended or enacted a number of other Environmental Policy Act, 75 FR 75628 (Dec. 6, National Environmental Policy Act: A environmental laws that may also apply to 2010) (‘‘CE Guidance’’), https://ceq.doe.gov/docs/ proposed Federal agency actions, such as the ceq-regulations-and-guidance/NEPA_CE_ Study of Its Effectiveness After Twenty- Endangered Species Act, the , the Guidance_Nov232010.pdf; Letter from the Hon. 24 five Years.’’ In that report, CEQ Clean Air Act, and other substantive statutes. See James L. Connaughton, Chairman, Council on acknowledged that NEPA has ensured discussion infra sec. I.D. Consistent with 40 CFR Environmental Quality, to the Hon. Norman Y. that agencies adequately analyze the 1502.25, longstanding agency practice has been to Mineta, Secretary, Department of Transportation use the NEPA process as the umbrella procedural (May 12, 2003) (‘‘Connaughton Letter’’), https:// potential environmental consequences statute, integrating compliance with these laws into ceq.doe.gov/docs/ceq-regulations-and-guidance/ of their actions and bring the public into the NEPA review and discussing them in the NEPA CEQ-DOT_PurposeNeed_May-2013.pdf; the decision-making processes of document. However, this practice sometimes leads Considering Cumulative Effects Under the National Federal agencies. However, CEQ also to confusion as to whether an agency does an Environmental Policy Act (Jan. 1997) (‘‘Cumulative analysis to comply with NEPA or another, Effects Guidance’’), https://ceq.doe.gov/ identified matters of concern to potentially substantive, environmental law. publications/cumulative_effects.html; participants in the study, including 28 See The NEPA Task Force Report to the Environmental Justice: Guidance under the concerns with overly lengthy Council on Environmental Quality, Modernizing National Environmental Policy Act (Dec. 10, 1997) documents that may not enhance or NEPA Implementation (Sept. 2003) (‘‘NEPA Task (‘‘EJ Guidance’’), https://ceq.doe.gov/docs/ceq- Force Report’’), https://ceq.doe.gov/docs/ceq- regulations-and-guidance/regs/ej/justice.pdf; Forty publications/report/finalreport.pdf. Questions, supra note 2. CEQ also issued a resource 21 A list of agency NEPA procedures is available 29 for the public, A Citizen’s Guide to the NEPA: _ See, e.g., Emergencies and the National at https://ceq.doe.gov/laws-regulations/agency Environmental Policy Act (Oct. 2016) Having Your Voice Heard (Dec. 2007), https:// _ _ _ _ implementing procedures.html. (‘‘Emergencies Guidance’’), https://ceq.doe.gov/ ceq.doe.gov/get-involved/citizens guide to 22 Forty Questions, supra note 2. docs/nepa-practice/Emergencies_and_NEPA.pdf; nepa.html. 23 See https://www.energy.gov/nepa/ceq- Effective Use of Programmatic NEPA Reviews (Dec. 30 M–18–13 (Mar. 20, 2018), https:// guidance-documents. 18, 2014) (‘‘Programmatic Guidance’’), https:// www.whitehouse.gov/wp-content/uploads/2018/04/ 24 https://ceq.doe.gov/docs/ceq-publications/ ceq.doe.gov/docs/ceq-regulations-and-guidance/ M-18-13.pdf. nepa25fn.pdf. Effective_Use_of_Programmatic_NEPA_Reviews_ 31 82 FR 40463 (Aug. 24, 2017).

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projects requiring an EIS and permits or has since updated this analysis to quarter were 748 pages or longer. On other authorizations from multiple include EISs completed in 2018, and average, the change in document length agencies and to improve the timeliness this section reflects the updated data.36 from draft EIS to final EIS was an of the environmental review process. While CEQ’s Forty Questions states additional 86 pages or a 15 percent See E.O. 13807, infra sec. I.E. Consistent that the time for an EIS, even for a increase. with the OFD Framework Guidance, complex project, should not exceed 1 With respect to final EISs, CEQ found supra note 30, Federal agencies signed year,37 CEQ found that, across the that approximately 7 percent were 150 a memorandum of understanding Federal Government, the average time pages or shorter, and 27 percent were committing to implement the One for completion of an EIS and issuance 300 pages or shorter.39 Similar to the Federal Decision (OFD) policy for major of a ROD was 4.5 years and the median conclusions of its EIS timelines study, infrastructure projects, including by was 3.5 years. One quarter of the EISs CEQ noted that a number of factors may committing to establishing a joint took less than 2.2 years, and one quarter influence the length of EISs, including schedule for such projects, preparation of the EISs took more than 6 years. variation in the scope and complexity of of a single EIS and joint ROD, elevation As reflected in the timelines report, the decisions that the EIS is designed to of delays and dispute resolution, and the period from publication of a NOI to inform, the degree to which NEPA setting a goal of completing prepare an EIS to the notice of documentation is used to document environmental reviews for such projects availability of the draft EIS took, on compliance with other statutes, and within two years.32 Subsequently, CEQ average, 58.4 percent of the total time, considerations relating to potential legal and OMB issued guidance for the while preparing the final EIS, including challenges. Moreover, variation in EIS Secretary of Transportation regarding addressing comments received on the length may reflect differences in the applicability of the OFD policy to draft EIS, took, on average, 32.2 percent management, oversight, and contracting States under the Surface Transportation of the total time. The period from the practices among agencies that could Project Delivery Program,33 and for the final EIS to publication of the ROD took, result in longer documents. Secretary of Housing and Urban on average, 9.4 percent of the total time. While there can be many factors Development (HUD) regarding the This report recognized that EIS affecting the timelines and length of applicability of the OFD policy to timelines vary widely and many factors EISs, CEQ has concluded that revisions entities assuming HUD environmental may influence the timing of the to the CEQ regulations to advance more review responsibilities.34 CEQ also has document, including variations in the timely reviews and reduce unnecessary provided direction to the Federal Energy scope and complexity of the actions, paperwork are warranted. CEQ has Regulatory Commission (FERC) relating variations in the extent of work done determined that improvements to to the requirement for joint RODs under prior to issuance of the NOI, and agency processes, such as earlier 35 the OFD policy. suspension of EIS activities due to solicitation of information from States, 3. Environmental Impact Statement external factors. Tribes, and local governments and the Timelines and Page Count Reports Additionally, in July 2019, CEQ public, and improved coordination in issued a report on the length, by page the development of EISs, can achieve CEQ also has conducted reviews and count, of EISs (excluding appendices) more useful and timely documents to prepared reports on the length of time finalized during the period of 2013– support agency decision making. it takes for agencies to prepare EISs and 2017, and the NPRM included a the length of these documents. These summary of the report. CEQ has since C. Judicial Review of Agency NEPA reviews found that the process for updated this analysis to include EISs Compliance preparing EISs is taking much longer completed in 2018, and this section NEPA is the most litigated than CEQ advised, and that the reflects the updated data. environmental statute in the United documents are far longer than the CEQ While the CEQ regulations include States.40 Over the past 50 years, Federal regulations and guidance recommended. recommended page limits for the text of courts have issued an extensive body of In 2018, CEQ issued a report final EISs of normally less than 150 case law addressing appropriate compiling information relating to the pages, or normally less than 300 pages implementation and interpretation of timelines for preparing EISs during the for proposals of ‘‘unusual scope or NEPA and the CEQ regulations.41 The period of 2010–2017, and the NPRM complexity,’’ 40 CFR 1502.7, CEQ found Supreme Court has directly addressed included a summary of the report. CEQ that many EISs are significantly longer. NEPA in 17 decisions, and the U.S. In particular, CEQ found that across all district and appellate courts issue 32 See Memorandum of Understanding Federal agencies, draft EISs averaged Implementing One Federal Decision under approximately 100 to 140 decisions Executive Order 13807 (2018), https:// 575 pages in total, with a median www.whitehouse.gov/wp-content/uploads/2018/04/ document length of 397 pages.38 One 39 The page counts compiled for 2010–2017 MOU-One-Federal-Decision-m-18-13-Part-2-1.pdf. quarter of the draft EISs were 279 pages include the text of the EIS as well as supporting 33 Guidance on the Applicability of E.O. 13807 to or shorter, and one quarter were 621 content to which the page limit in 40 CFR 1502.7 States with NEPA Assignment Authority Under the does not apply. For 2018, CEQ analyzed the data Surface Transportation Project Delivery Program, pages or longer. For final EISs, the to determine the length of the text of the EISs and M–19–11 (Feb. 26, 2019), https:// average document length was 661 pages, found that 19 percent of the final EISs were 150 www.whitehouse.gov/wp-content/uploads/2017/11/ and the median document length was pages or shorter and 51 percent were 300 pages or 20190226OMB-CEQ327.pdf. 447 pages. One quarter of the final EISs shorter. 34 Guidance on the Applicability of E.O. 13807 to were 286 pages or shorter, and one 40 James E. Salzman and Barton H. Thompson, Jr., Responsible Entities Assuming Department of Environmental Law and Policy 340 (5th ed. 2019) Housing and Urban Development Environmental (‘‘Perhaps surprisingly, there have been thousands Review Responsibilities, M–19–20 (, 2019), 36 See Council on Environmental Quality, of NEPA suits. It might seem strange that NEPA’s https://www.whitehouse.gov/wp-content/uploads/ Environmental Impact Statement Timelines (2010– seemingly innocuous requirement of preparing an 2019/06/M-19-20.pdf. 2018), (, 2020), https://ceq.doe.gov/nepa- EIS has led to more lawsuits than any other 35 See Letter from the Hon. Mary B. Neumayr, practice/eis-timelines.html. environmental statute.’’). Chairman, Council on Environmental Quality, to 37 Forty Questions, supra note 2, at Question 35. 41 The 2019 edition of NEPA Law and Litigation the Hon. Neil Chatterjee, Chairman, Federal Energy 38 See Council on Environmental Quality, Length includes a 115–page Table of Cases decisions Regulatory Comm’n (Aug. 22, 2019), https:// of Environmental Impact Statements (2013–2018), construing NEPA. See Daniel R. Mandelker et al., www.whitehouse.gov/wp-content/uploads/2017/11/ (June 12, 2020) (‘‘CEQ Length of EISs Report’’), NEPA Law and Litigation, Table of Cases (2d ed. 20190822FERCOFDLetter.pdf. https://ceq.doe.gov/nepa-practice/eis-length.html. 2019).

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each year interpreting NEPA. The lands, and coastal zones, and statutory and adoption of environmental Supreme Court has construed NEPA and requirements to conserve fish, wildlife, documents. Further, section 139 the CEQ regulations in light of a ‘‘rule and plant species.43 Additionally, the provides for referral to CEQ for issue of reason,’’ which ensures that agencies consideration of the effects on historic resolution, similar to part 1504 of the determine whether and to what extent properties under the National Historic NEPA regulations, and allows for the to prepare an EIS based on the Preservation Act is typically integrated use of errata sheets, consistent with 40 usefulness of information to the into the NEPA review.44 NEPA has CFR 1503.4(c).45 decision-making process. See Marsh v. served as the umbrella procedural When Congress enacted section 2045 Or. Nat. Res. Council, 490 U.S. 360, statute, integrating these laws into of the Water Resources Development 373–74 (1989). ‘‘Although [NEPA] NEPA reviews and discussing them in Act of 2007, Public Law 110–114, 121 procedures are almost certain to affect NEPA documents. Stat. 1041, 1103, it created a similar the agency’s substantive decision, it is Over the past two decades and environmental review provision for now well settled that NEPA itself does multiple administrations, Congress has water resources development projects not mandate particular results, but also undertaken efforts to facilitate more by the U.S. Army Corps of Engineers simply prescribes the necessary efficient environmental reviews by (Corps). 33 U.S.C. 2348.46 This project process.’’ Methow Valley, 490 U.S. at Federal agencies, and has enacted a acceleration provision also requires a 350 (citing Strycker’s Bay Neighborhood number of statutes aimed at improving coordinated environmental review Council, Inc., 444 U.S. at 227–28; Vt. the implementation of NEPA, including process, provides for dispute resolution, Yankee, 435 U.S. at 558; see also Pub. in the context of infrastructure projects. and codifies aspects of the NEPA Citizen, 541 U.S. at 756–57 (‘‘NEPA In particular, Congress has enacted regulations such as lead and cooperating imposes only procedural requirements legislation to improve coordination agencies, concurrent environmental on [F]ederal agencies with a particular among agencies, integrate NEPA with reviews, and the establishment of CEs. focus on requiring agencies to undertake other environmental reviews, and bring Section 2348(o) also directs the Corps to analyses of the environmental impact of more transparency to the NEPA process. consult with CEQ on the development their proposals and actions.’’ (citing In 2005, Congress enacted 23 U.S.C. of guidance for implementing this Methow Valley, 490 U.S. at 349–50)). 139, ‘‘Efficient environmental reviews provision. The thousands of decisions interpreting for project decisionmaking,’’ a In 2015 Congress enacted Title 41 of NEPA and the current CEQ regulations streamlined environmental review the FAST Act (FAST–41), to provide for being amended here drive much of process for highway, transit, and a more efficient environmental review agencies’ modern-day practice. A multimodal transportation projects (the and permitting process for ‘‘covered challenge for agencies is that courts ‘‘section 139 process’’), in the Safe, projects.’’ See Public Law 114–94, sec. have interpreted key terms and Accountable, Flexible, Efficient 41001–41014, 129 Stat. 1312, 1741 (42 requirements differently, adding to the Transportation Equity Act: A Legacy for U.S.C. 4370m—4370m–12). These are complexity of environmental reviews. Users (SAFETEA–LU), Public Law 109– projects that require Federal For example, in 2018 and 2019, the U.S. 59, sec. 6002(a), 119 Stat. 1144, 1857. environmental review under NEPA, are Courts of Appeals issued 56 substantive Congress amended section 139 with expected to exceed $200 million, and decisions on a range of topics, including additional provisions designed to involve the construction of assessment of impacts, sufficiency of improve the NEPA process in the 2012 infrastructure for certain energy alternatives, whether an agency’s action Moving Ahead for Progress in the 21st production, electricity transmission, qualified as Federal action, and purpose Century Act (MAP–21), Public Law water resource projects, broadband, and need statements.42 As discussed 112–141, sec. 1305–1309, 126 Stat. 405, pipelines, manufacturing, and other below, the final rule codifies and the 2015 Fixing America’s Surface sectors. Id. FAST–41 codified certain longstanding case law in some Transportation (FAST) Act, Public Law roles and responsibilities required by instances, and, in other instances, 114–94, sec. 1304, 129 Stat. 1312, 1378. the NEPA regulations. In particular, clarifies the meaning of the regulations Section 139 provides for an FAST–41 imports the concepts of lead where there is a lack of uniformity in environmental review process that is and cooperating agencies, and the judicial interpretation of NEPA and the based on and codifies many aspects of different levels of NEPA analysis—EISs, CEQ regulations. the NEPA regulations, including EAs, and CEs. Consistent with 40 CFR provisions relating to lead and 1501.5(e) through (f), CEQ is required to D. Statutory Developments cooperating agencies, concurrent resolve any dispute over designation of Since the enactment of NEPA in 1970, environmental reviews in a single NEPA a facilitating or lead agency for a Congress has amended or enacted a document, coordination on the covered project. 42 U.S.C. 4370m– large number of substantive development of the purpose and need 2(a)(6)(B). Section 4370m–4 codified environmental statutes. These have statement and reasonable alternatives, several requirements from the CEQ included significant amendments to the Clean Water Act and Clean Air Act, 43 See, e.g., the Clean Air Act, 42 U.S.C. 7401– 45 To facilitate the NEPA process for establishment of new Federal land 7671q; Clean Water Act, 33 U.S.C. 1251–1388; transportation projects subject to section 139, the management standards and planning Coastal Zone Management Act, 16 U.S.C. 1451– statute specifically calls for development of a 1466; Federal Land Policy and Management Act, 43 coordination plan, including development of a processes for National forests, public U.S.C. 1701–1787; Forest and Rangeland Renewable schedule, and publicly tracking the implementation Resources Planning Act of 1974, 16 U.S.C. 1600– of that schedule through use of the Permitting 42 National Association of Environmental 1614; Magnuson-Stevens Fishery Conservation and Dashboard. See infra sec. I.E. In addition, the Professionals, 2019 Annual NEPA Report of the Management Act, 16 U.S.C. 1801–1884; Endangered section 139 process provides for ‘‘participating’’ National Environmental Policy Act (NEPA) Practice Species Act, 16 U.S.C. 1531–1544; Oil Pollution Act agencies, which are any agencies invited to (2020) at 30–31, https://naep.memberclicks.net/ of 1990, 33 U.S.C. 2701–2762; Surface Mining participate in the environmental review process. assets/annual-report/2019_NEPA_Annual_Report/ Control and Reclamation Act of 1977, 30 U.S.C. Section 139 also requires, to the maximum extent NEPA_Annual_Report_2019.pdf; National 1201, 1202, and 1211; and Comprehensive practicable, issuance of a combined final EIS and Association of Environmental Professionals, 2018 Environmental Response, Compensation, and ROD. Annual NEPA Report of the National Liability Act, 42 U.S.C. 9601–9675. 46 Congress significantly revised this provision in Environmental Policy Act (NEPA) Practice (2019) at 44 Similar to NEPA, section 106 (54 U.S.C. the Water Resources Reform and Development Act 41–51, https://naep.memberclicks.net/assets/ 306108) of the National Historic Preservation Act is of 2014, Public Law 113–121, sec. 1005(a)(1), 128 documents/2019/NEPA_Annual_Report_2018.pdf. a procedural statute. Stat. 1193 1199.

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regulations, including the requirement (applied silvicultural assessment and Recovery Improvement Act of 2013, for concurrent environmental reviews, research treatments); 16 U.S.C. 6591d Public Law 113–2, sec. 1106, 127 Stat. which is consistent with 40 CFR (hazardous fuels reduction projects to 4, 45–46. This unified Federal 1500.2(c), 1501.7(a)(6), and 1502.25(a), carry out forest restoration treatments); environmental and historic preservation and the tools of adoption, incorporation 16 U.S.C. 6591e (vegetation review (UFR) process is a framework for by reference, supplementation, and use management activity in greater sage- coordinating Federal agency of State documents, consistent with 40 grouse or mule deer habitat); 33 U.S.C. environmental and historic preservation CFR 1506.3, 1502.21, 1502.9(c), and 2349 (actions to repair, reconstruct, or reviews for disaster recovery projects 1506.2.47 Finally, 42 U.S.C. 4370m–4 rehabilitate water resources projects in associated with presidentially declared addresses interagency coordination on response to emergencies); 42 U.S.C. disasters under the Stafford Act. The key aspects of the NEPA process, 15942 (certain activities for the purpose goal of the UFR process is to enhance including scoping (40 CFR 1501.7), of exploration or development of oil or the ability of Federal environmental identification of the range of reasonable gas); 43 U.S.C. 1772(c)(5) (development review and authorization processes to alternatives for study in an EIS (40 CFR and approval of vegetation management, inform and expedite disaster recovery 1502.14), and the public comment facility inspection, and operation and decisions for grant applicants and other process (40 CFR part 1503). maintenance plans); MAP–21, Public potential beneficiaries of disaster To ensure a timely NEPA process so Law 112–141, sec. 1315 (actions to assistance by improving coordination that important infrastructure projects repair or reconstruct roads, highways, or and consistency across Federal agencies, can move forward, Congress has also bridges damaged by emergencies), 1316 and assisting agencies in better established shorter statutes of (projects within the operational right-of- leveraging their resources and tools.48 limitations for challenges to certain way), and 1317 (projects with limited Finally, in some instances, Congress types of projects. SAFETEA–LU created Federal assistance); FAA Modernization has exempted actions from NEPA. In a 180-day statute of limitations for and Reform Act of 2012, Public Law 1996, Congress enacted the Illegal highway or public transportation capital 112–95, sec. 213(c), 126 Stat. 11, 46 Immigration Reform and Immigrant projects, which MAP–21 later reduced (navigation performance and area Responsibility Act, which authorized to 150 days. 23 U.S.C. 139(l). The Water navigation procedures); and Omnibus the waiver of NEPA for the construction Resources Reform and Development Act Appropriations Act, 2009, Public Law of the physical barriers and roads of 2014 established a three-year statute 111–8, sec. 423, 123 Stat. 524, 748 (Lake between the United States and Mexico of limitations for judicial review of any Tahoe Basin Management Unit border when necessary to ‘‘ensure permits, licenses, or other approvals for hazardous fuel reduction projects). expeditious construction.’’ Public Law water resources development project Further, in the context of emergency 104–208, sec. 102(c), 110 Stat. 3009.49 In studies. 33 U.S.C. 2348(k). Most recently response, including economic crisis, 2013, Congress exempted certain in FAST–41, Congress established a Congress has enacted legislation to disaster recovery actions or financial two-year statute of limitations for facilitate timely NEPA reviews or to assistance to restore ‘‘a facility covered projects. 42 U.S.C. 4370m–6. exempt certain actions from NEPA substantially to its condition prior to the There are a number of additional review. Congress has directed the use or disaster or emergency.’’ 42 U.S.C. 5159. instances where Congress has enacted development of alternative In 2020, Congress enacted the legislation to facilitate more timely arrangements in accordance with 40 Coronavirus Aid, Relief, and Economic environmental reviews. For example, CFR 1506.11 for reconstruction of Security Act, which created an similar to the provisions described transportation facilities damaged in an exemption from NEPA for the General above, there are other statutes where emergency (FAST Act, Pub. L. 114–94, Services Administration’s acquisition of Congress has called for a coordinated sec. 1432, 129 Stat. 1312, 1429) and for real property and interests in real and concurrent environmental review. projects by the Departments of the property or improvements in real See, e.g., 33 U.S.C. 408(b) (concurrent Interior and Commerce to address property in response to coronavirus in review for river and harbor permits); 49 invasive species (Water Infrastructure U.S.C. 40128 (coordination on Improvements for the Nation Act, Pub. 48 See generally Memorandum of Understanding L. 114–322, sec. 4010(e)(3), 130 Stat. Establishing the Unified Federal Environmental and environmental reviews for air tour Historic Preservation Review Process for Disaster management plans for national parks); 1628, 1877). Section 1609(c) of the American Recovery and Reinvestment Recovery Projects (, 2014), https:// 49 U.S.C. 47171 (expedited and www.fema.gov/media-library-data/1414507626204- Act of 2009 directed agencies to coordinated environmental review f156c4795571b85a4f8e1c1f4c4b7de1/Final_Signed_ complete environmental reviews under ______process for airport capacity UFR MOU 9 24 14 508 ST.PDF. NEPA on an expedited basis using the 49 The Homeland Security Act of 2002 transferred enhancement projects). responsibility for the construction of border barriers Additionally, Congress has most efficient applicable process. Public Law 111–5, sec. 1609, 123 Stat. 115, from the Attorney General to the Department of established or directed agencies to Homeland Security. Public Law 107–296, 116 Stat. 304. establish CEs to facilitate NEPA 2135. In 2005, the REAL ID Act amended the waiver In 2013, Congress also enacted section compliance. See, e.g., 16 U.S.C. 6554(d) authority of section 102(c) expanding the Secretary 429 of the Robert T. Stafford Disaster of DHS’ authority to waive ‘‘all legal requirements’’ Relief and Emergency Assistance Act that the Secretary, in his or her own discretion, 47 For covered projects, section 4370m–4 determines ‘‘necessary to ensure expeditious authorizes lead agencies to adopt or incorporate by (‘‘Stafford Act’’), 42 U.S.C. 5189g, which construction’’ of certain ‘‘barriers and roads.’’ reference existing environmental analyses and directed the President, in consultation Public Law 109–13, Div. B, tit. I, sec. 102, 119 Stat. documentation prepared under State laws and with CEQ and the Advisory Council on 231, 302, 306. It also added a judicial review procedures if the analyses and documentation meet Historic Preservation, to ‘‘establish an provision that limited the district court’s certain requirements. 42 U.S.C. 4370m–4(b)(1)(A)(i). jurisdiction to hear any causes or claims concerning This provision also requires that the lead agency, expedited and unified interagency the Secretary’s waiver authority to solely in consultation with CEQ, determine that the review process to ensure compliance constitutional claims. Id. sec. 102(c)(2)(A). Further, analyses and documentation were prepared using a with environmental and historic the provision directed that any review of the district process that allowed for public participation and requirements under Federal law relating court’s decision be raised by petition for a writ of consideration of alternatives, environmental certiorari with the Supreme Court of the United consequences, and other required analyses that are to disaster recovery projects, in order to States. Id. sec. 102(c)(2)(C). See In re Border substantially equivalent to what a Federal agency expedite the recovery process, Infrastructure Envtl. Litig., 284 F. Supp. 3d 1092 would have prepared pursuant to NEPA. Id. consistent with applicable law.’’ Sandy (S.D. Cal. 2018).

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conjunction with the provision of order directed the Steering Committee Section 5(e)(i) directed CEQ to develop additional funding to prevent, prepare to develop a plan ‘‘to significantly an initial list of actions to enhance and for, and respond to the coronavirus. reduce the aggregate time required to modernize the Federal environmental Public Law 116–136, Div. B. make Federal permitting and review review and authorization process, These statutes reflect that Congress decisions on infrastructure projects including issuing such regulations as has recognized that the environmental while improving outcomes for CEQ deems necessary to: (1) Ensure review process can be more efficient communities and the environment.’’ optimal interagency coordination of and effective, including for Similarly, E.O. 13616, titled environmental review and authorization infrastructure projects, and that in ‘‘Accelerating Broadband Infrastructure decisions; (2) ensure that multi-agency certain circumstances, Congress has Deployment,’’ 53 established an environmental reviews and determined it appropriate to exempt interagency working group to, among authorization decisions are conducted certain actions from NEPA review. other things, avoid duplicative reviews in a manner that is concurrent, Congress also has identified specific and coordinate review processes to synchronized, timely, and efficient; (3) process improvements that can advance broadband deployment. provide for use of prior Federal, State, accelerate environmental reviews, A 2013 Presidential Memorandum Tribal, and local environmental studies, including improved interagency titled ‘‘Modernizing Federal analysis, and decisions; and (4) ensure coordination, concurrent reviews, and Infrastructure Review and Permitting that agencies apply NEPA in a manner increased transparency. Regulations, Policies, and that reduces unnecessary burdens and Procedures’’ 54 directed the Steering E. Presidential Directives delays, including by using CEQ’s Committee established by E.O. 13604 to authority to interpret NEPA to simplify Over the past two decades and work with agencies, OMB, and CEQ to and accelerate the NEPA review multiple administrations, Presidents ‘‘modernize Federal infrastructure process. In response to E.O. 13807, CEQ also have recognized the need to review and permitting regulations, published an initial list of actions and improve the environmental review policies, and procedures to significantly stated its intent to review its existing process to make it more timely and reduce the aggregate time required by NEPA regulations in order to identify efficient, and have directed agencies, the Federal Government to make potential revisions to update and clarify through Executive orders and decisions in the review and permitting these regulations.56 Presidential memoranda, to undertake of infrastructure projects, while various initiatives to address these improving environmental and F. Advance Notice of Proposed issues. In 2002, President Bush issued community outcomes’’ and develop a Rulemaking E.O. 13274 titled ‘‘Environmental plan to achieve this goal. Among other Consistent with E.O. 13807 and CEQ’s Stewardship and Transportation things, the memorandum directed that initial list of actions, and given the Infrastructure Project Reviews,’’ 50 the plan create process efficiencies, length of time since CEQ issued its which stated that the development and including additional use of concurrent regulations, on June 20, 2018, CEQ implementation of transportation and integrated reviews; expand published an ANPRM titled ‘‘Update to infrastructure projects in an efficient coordination with State, Tribal, and the Regulations for Implementing the and environmentally sound manner is local governments; and expand the use Procedural Provisions of the National essential, and directed agencies to of information technology tools. CEQ Environmental Policy Act.’’ 57 The conduct environmental reviews for and OMB led the effort to develop a ANPRM requested public comments on transportation projects in a timely comprehensive plan to modernize the how CEQ could ensure a more efficient, manner. environmental review and permitting timely, and effective NEPA process In 2011, President Obama’s process while improving environmental consistent with the Act’s national memorandum titled ‘‘Speeding and community outcomes, including environmental policy and provided for Infrastructure Development Through budget proposals for funding and new a 30-day comment period.58 More Efficient and Effective Permitting authorities. Following the development The ANPRM requested comment on and Environmental Review’’ 51 directed of the plan, CEQ continued to work with potential revisions to update and clarify certain agencies to identify up to three agencies to improve the permitting the NEPA regulations, and included a high-priority infrastructure projects for process, including through expanded list of questions on specific aspects of expedited environmental review and collection of timeframe metrics on the the regulations. For example, with permitting decisions to be tracked Permitting Dashboard. In late 2015, respect to the NEPA process, the publicly on a ‘‘centralized, online tool.’’ these ongoing efforts were superseded ANPRM asked whether there are This requirement led to the creation of by the enactment of FAST–41, which provisions that CEQ could revise to what is now the Permitting Dashboard, codified the use of the Permitting ensure more efficient environmental www.permits.performance.gov. Dashboard, established the Federal reviews and authorization decisions, In 2012, E.O. 13604, titled ‘‘Improving Permitting Improvement Steering such as facilitating agency use of Performance of Federal Permitting and Council (‘‘Permitting Council’’), and existing environmental studies, analyses Review of Infrastructure Projects,’’ 52 established other requirements for and decisions, as well as improving established an interagency Steering managing the environmental review and interagency coordination. The ANPRM Committee on Federal Infrastructure permitting process for covered also requested comments on the scope Permitting and Review Process infrastructure projects. of NEPA reviews, including whether On 15, 2017, President Trump Improvement (‘‘Steering Committee’’) to CEQ should revise, clarify, or add issued E.O. 13807 titled ‘‘Establishing facilitate improvements in Federal definitions. The ANPRM also asked Discipline and Accountability in the permitting and review processes for whether additional revisions relating to infrastructure projects. The Executive Environmental Review and Permitting 55 Process for Infrastructure Projects.’’ 56 82 FR 43226 (Sept. 14, 2017). 50 67 FR 59449 (Sept. 23, 2002). 57 83 FR 28591 (June 20, 2018). 51 https://www.govinfo.gov/content/pkg/DCPD- 53 77 FR 36903 (June 20, 2012). 58 In response to comments, CEQ extended the 201100601/pdf/DCPD-201100601.pdf. 54 78 FR 30733 (, 2013). comment period 31 additional days to , 52 77 FR 18887 (Mar. 28, 2012). 55 82 FR 40463 (Aug. 24, 2017). 2018. 83 FR 32071 (, 2018).

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environmental documentation issued representing a broad range of diverse the national policy to protect and pursuant to NEPA, including CEs, EAs, views, that CEQ had issued the enhance the quality of the human EISs, and other documents, would be proposed rule for public comment.62 environment.’’ 66 appropriate. Finally, the ANPRM Additionally, CEQ made information to In this final rule, CEQ makes various requested general comments, including aid the public’s review of the proposed revisions to align the regulations with whether there were obsolete provisions rule available on its websites at the text of the NEPA statute, including that CEQ could update to reflect new www.whitehouse.gov/ceq and revisions to reflect the procedural technologies or make the process more www.nepa.gov, including a redline nature of the statute, including under efficient, or that CEQ could revise to version of the proposed changes to the section 102(2). CEQ also revises the reduce unnecessary burdens or delays. regulations posted on regulations to ensure that environmental In response to the ANPRM, CEQ www.regulations.gov, along with a documents prepared pursuant to NEPA received over 12,500 comments, which presentation on the proposed rule and are concise and serve their purpose of are available for public review.59 These other background information.63 CEQ informing decision makers regarding included comments from a wide range also conducted additional public significant potential environmental of stakeholders, including States, Tribes, outreach to solicit comments, including effects of proposed major Federal localities, environmental organizations, meetings with Tribal representatives in actions and the public of the trade associations, NEPA practitioners, Denver, Colorado, Anchorage, Alaska, environmental issues in the pending and interested members of the public. and Washington, DC.64 decision-making process. CEQ makes While some commenters opposed any In response to the NPRM, CEQ changes to ensure that the regulations updates to the regulations, other received comments from a broad range reflect changes in technology, increase commenters urged CEQ to consider of stakeholders on a diversity of issues public participation in the process, and potential revisions. Though the relating to the proposed rule. These facilitate the use of existing studies, approaches to the update of the NEPA included comments from members of analyses, and environmental documents regulations varied, most of the Congress, State, Tribal, and local prepared by States, Tribes, and local substantive comments supported some officials, environmental organizations, governments. degree of updating of the regulations. trade associations, NEPA practitioners, CEQ also makes its regulations Many noted that overly lengthy and interested members of the public. consistent with the OFD policy documents and the time required for the CEQ also received a large number of established by E.O. 13807 for multi- NEPA process remain real and campaign comments, including agency review and related permitting legitimate concerns despite the NEPA comments with multiple signatories or and other authorization decisions. The regulations’ explicit direction with groups of comments that were identical Executive order specifically instructed respect to reducing paperwork and or very similar in form or content. The CEQ to take steps to ensure optimal delays. In general, numerous comments received on the NPRM raised interagency coordination, including commenters requested that CEQ a variety of issues related to the through a concurrent, synchronized, consider revisions to modernize its rulemaking and contents of the timely, and efficient process for regulations, reduce unnecessary proposed rule, including procedural, environmental reviews and burdens and costs, and make the NEPA legal, and technical issues. The Final authorization decisions. In response to process more efficient, effective, and Rule Response to Comments provides a the NPRM, CEQ received many timely. summary of the comments and comments supporting revisions to responses to those comments. codify key aspects of the OFD policy in G. Notice of Proposed Rulemaking the NEPA regulations, including by II. Summary of Final Rule On , 2020, President Trump providing greater specificity on the roles announced the release of CEQ’s NPRM In this section, CEQ summarizes the and responsibilities of lead and titled ‘‘Update to the Regulations NPRM proposed changes and the final cooperating agencies. Commenters also Implementing the Procedural Provisions rule, including any changes or additions suggested that the regulations require of the National Environmental Policy to what CEQ proposed. CEQ makes the agencies to establish and adhere to Act’’ and the rule was published in the additions, clarifications, and updates to timetables for the completion of Federal Register on January 10, 2020.60 its regulations based on its record reviews, another key element of the The NPRM provided a 60-day comment evaluating the implementation of the OFD policy. To promote improved period, and the comment period ended NEPA regulations, suggestions in interagency coordination and more on 10, 2020. response to the ANPRM, and comments timely and efficient reviews and in CEQ hosted two public hearings in provided in response to the NPRM. The response to these comments, CEQ Denver, Colorado on 11, 2020, revisions finalized in this rule advance codifies and generally applies a number and in Washington, DC on , the original objectives of the 1978 of key elements from the OFD policy in 2020.61 CEQ also notified all federally regulations 65 ‘‘[t]o reduce paperwork, to this final rule. These include recognized Tribes and over 400 reduce delays, and at the same time to development by the lead agency of a interested groups, including State, produce better decisions [that] further joint schedule, procedures to elevate Tribal, and local officials, delays or disputes, preparation of a environmental organizations, trade 62 Notices are available under ‘‘Supporting single EIS and joint ROD to the extent associations, NEPA practitioners, and Documents’’ in the docket, www.regulations.gov, practicable, and a two-year goal for docket ID CEQ–2019–0003, https:// completion of environmental reviews. interested members of the public www.regulations.gov/docketBrowser?rpp= 25&so=DESC&sb=commentDueDate&po= Consistent with section 104 of NEPA (42 59 See https://www.regulations.gov, docket no. 0&dct=SR%2BO&D=CEQ-2019-0003. U.S.C. 4334), of these CEQ–2018–0001. 63 Id. policies will not limit or affect the 60 Supra note 8. 64 CEQ also includes meeting summaries under authority or legal responsibilities of 61 Transcripts of the two public hearings with supplemental materials. Id. agencies under other statutory mandates copies of testimony and written comments 65 In this final rule, CEQ uses the term ‘‘1978 submitted at the hearings are available in the docket regulations’’ to refer to the regulations as they exist that may be covered by joint schedules, on www.regulations.gov, docket ID CEQ–2019– prior to this final rule’s amendment thereof, which 0003. includes the 1986 amendment to 40 CFR 1502.22. 66 43 FR 55978 (Nov. 29, 1978).

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and CEQ includes language to that effect NEPA. Alternatively, agencies may submitted by interested parties in in § 1500.6.67 designate in their agency NEPA response to the agency’s requests for CEQ also clarifies the process and procedures one or more procedures or comment in the NOI and on the draft documentation required for complying documents under other statutes or EIS. In addition, §§ 1502.17(a)(2) and with NEPA by amending part 1501 to Executive orders that satisfy one or 1503.1(a)(3) direct agencies to request add sections on threshold more requirements in the NEPA comment on the summary in the draft considerations, determination of the regulations, consistent with EIS. The purpose of these provisions is appropriate level of NEPA review, and § 1507.3(c)(5). Finally, § 1506.9 allows to ensure that the agency, through the application of CEs; and revising agencies to substitute processes and outreach to the public, has identified all sections in part 1501 on EAs and documentation developed as part of the relevant information submitted by State, findings of no significant impact rulemaking process for corresponding Tribal, and local governments and other (FONSIs), and EISs in part 1502. CEQ requirements in these regulations. public commenters. Although not a further revises the regulations to As noted above, NEPA is a procedural substitute for the entire record, the promote more efficient and timely statute that has twin aims. The first is summary will assist agency decision environmental reviews, including to promote informed decision making, makers in their consideration of the revisions to promote interagency while the second is to inform the public record for the proposed action. As the coordination by amending sections of about the agency’s decision making. In Supreme Court observed in parts 1501, 1506, and 1507 relating to this final rule, CEQ amends parts 1500, Metropolitan Edison Co. v. People lead, cooperating, and participating 1501, 1502, 1503, 1505, and 1508 to Against Nuclear Energy, ‘‘[t]he scope of agencies, timing of agency action, ensure that agencies solicit and consider [an] agency’s inquiries must remain scoping, and agency NEPA procedures. relevant information early in the NEPA manageable if NEPA’s goal of ‘[insuring] To promote a more efficient and process and have the maximum a fully informed and well-considered timely NEPA process, CEQ amends opportunity to take that information decision’ . . . is to be accomplished.’’ provisions in parts 1501, 1506, and 1507 into account in their decision making. 460 U.S. at 776 (quoting Vt. Yankee, 435 relating to applying NEPA early in the In situations where an EIS is required, U.S. at 558). process, scoping, tiering, adoption, use this process takes place in two discrete of current technologies, and avoiding steps. First, § 1501.9(d) directs agencies Finally, informed by the summary duplication of State, Tribal, and local to include information on the proposed included in the final EIS pursuant to environmental reviews; revises parts action in the NOI, including its §§ 1500.3(b)(2) and 1502.17 and the 1501 and 1502 to provide for expected impacts and alternatives, and response to comments pursuant to presumptive time and page limits; and a request for comments from interested § 1503.4, together with any other amends part 1508 to clarify the parties on the potential alternatives, material in the record that he or she definitions. For example, CEQ includes information, and analyses relevant to determines to be relevant, the decision two new mechanisms to facilitate the the proposed action. Second, § 1503.1(a) maker is required under § 1505.2(b) to use of CEs when appropriate. Under requires agencies to request comments certify in the ROD that the agency has § 1506.3(d), an agency can adopt on the analysis and conclusions of the considered the alternatives, information, another agency’s determination that a draft EIS. The purpose of these two analyses, and objections submitted by CE applies to a proposed action when provisions is to bring relevant State, Tribal, and local governments and the adopting agency’s proposed action is comments, information, and analyses to public commenters for consideration in substantially the same. This extends the the agency’s attention, as early in the the development of the final EIS. adoption process and standards from process as possible, to enable the agency Section 1505.2(b) further provides that a EISs to CE determinations.68 This allows to make maximum use of this decision certified in this manner is agencies to ‘‘piggyback’’ where more information. entitled to a presumption that the than one agency is taking an action To facilitate this process, § 1503.3 agency has adequately considered the related to the same project or activity. requires comments on the draft EIS to be submitted alternatives, information, and Alternatively, to apply CEs listed in submitted on a timely basis and to be as analyses, including the summary another agency’s procedures (without specific as possible. Similarly, thereof, in reaching its decision. This that agency already having made a § 1503.1(a)(3) requires agencies to invite presumption will advance the purposes determination that a CE applies to a interested parties to comment of the directive in E.O. 11991 to ensure substantially similar action), agencies specifically on the alternatives, that EISs are supported by evidence that can establish a process in their agency information, and analyses submitted for agencies have performed the necessary NEPA procedures to coordinate and consideration in the development of the environmental analyses. See E.O. 11991, apply CEs listed in other agencies’ draft EIS. Finally, § 1503.3(b) provides sec. 1 amending E.O. 11514, sec. 3(h). procedures. that comments, information, and This presumption is also consistent Another efficiency included in this analyses on the draft EIS not timely with the longstanding presumption of final rule is the ability for agencies to received are deemed unexhausted and regularity that government officials have identify other requirements that serve therefore forfeited. The intent of these properly discharged their official duties. the function of agency compliance with amendments is two-fold: (1) To ensure See U.S. Postal Serv. v. Gregory, 534 NEPA. Under §§ 1501.1 and that comments are timely received and U.S. 1, 10 (2001) (‘‘[W]e note that a 1507.3(d)(6), agencies may determine at a level of specificity where they can presumption of regularity attaches to the that another statute’s requirements serve be meaningfully taken into account, actions of government agencies.’’ (citing the function of agency compliance with where appropriate; and (2) to prevent United States v. Chem. Found., Inc., 272 unnecessary delay in the decision- U.S. 1, 14–15 (1926)); INS v. Miranda, 67 In the preamble, CEQ uses the section symbol making process. 459 U.S. 14, 18 (1982) (specific evidence (§ ) to refer to the final regulations as set forth in Consistent with this intent, required to overcome presumption that this final rule and 40 CFR to refer to the 1978 CEQ § 1500.3(b)(2) also directs agencies to public officers have executed their regulations as set forth in 40 CFR parts 1500–1508. responsibilities properly); Citizens to 68 The final rule also extends the adoption include a new section in both the draft process and standards, which only applies to EISs and final EIS that summarizes all Preserve Overton Park, Inc. v. Volpe, under the 1978 regulations, to EAs as well. alternatives, information, and analyses 401 U.S. 402, 415 (1971) (Although a

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statute prohibited Federal funds for consistency, improve clarity, and titled ‘‘Consultation and Coordination roads through parks absent a feasible correct grammatical errors. CEQ With Indian Tribal Governments.’’ 69 and prudent alternative, and although proposed to make certain grammatical CEQ proposed several changes for the Secretary of Transportation corrections in the regulations where it consistent use of certain terms. In approved funds without formal proposed other changes to the particular, CEQ proposed to change findings, the Secretary’s decision- regulations to achieve the goals of this ‘‘entitlements’’ to the defined term making process was nevertheless rulemaking, or where CEQ determined ‘‘authorizations’’ proposed in entitled to a presumption of regularity.); the changes are necessary for the reader § 1508.1(c) throughout the regulations Fed. Commc’ns Comm’n v. Schreiber, to understand fully the meaning of the and added ‘‘authorizations’’ where 381 U.S. 279, 296 (1965) (noting ‘‘the sentence. CEQ proposed to revise appropriate to reflect the mandate in presumption to which administrative sentences from passive voice to active E.O. 13807 for better integration and agencies are entitled—that they will act voice to help identify the responsible coordination of authorization decisions properly and according to law’’); Phila. parties. CEQ also proposed to correct and related environmental reviews. CEQ & T. Ry. v. Stimpson, 39 U.S. (14 Pet.) the usage of the term ‘‘insure’’ with is adopting these revisions in the final 448, 458 (1840) (Where a statute ‘‘ensure’’ consistent with modern usage. rule in §§ 1501.2(a), 1501.7(i), imposed certain conditions before a ‘‘Insure’’ is typically used in the context 1501.9(d)(4) and (f)(4), 1502.13, corrected patent could issue, the of providing or obtaining insurance, 1502.24(b), 1503.3(d), and 1508.1(w). signatures of the President and the whereas ‘‘ensure’’ is used in the context CEQ proposed to use the term Secretary of State on a corrected patent of making something sure, certain, or ‘‘decision maker’’ to refer to an raised a presumption that the conditions safe. While NEPA uses the term individual responsible for making were satisfied, despite absence of ‘‘insure,’’ the context in which it is used decisions on agency actions and ‘‘senior recitals to that effect on face of patent.); makes it clear that Congress meant agency official’’ to refer to the Martin v. Mott, 25 U.S. (12 Wheat.) 19, ‘‘ensure’’ consistent with modern usage. individual who oversees the agency’s 33 (1827) (‘‘Every public officer is Similarly, CEQ proposed to correct the overall compliance with NEPA. CEQ presumed to act in obedience to his use of ‘‘which’’ and ‘‘that’’ throughout adopts these changes in the final rule. duty, until the contrary is shown the rule. There may be multiple individuals . . . .’’); Udall v. Wash., Va. & Md. CEQ proposed to add paragraph within certain departments or agencies Coach Co., 398 F.2d 765, 769 (D.C. Cir. letters to certain introductory that have these responsibilities, 1968) (The Secretary of the Interior’s paragraphs where it would improve including where subunits have determination that limitation of clarity. Finally, CEQ invited comment developed agency procedures or NEPA commercial bus service was required to on whether it should make these types compliance programs. preserve a parkway’s natural beauty was of grammatical and editorial changes CEQ proposed to replace ‘‘circulate’’ entitled to presumption of validity, and throughout the rule or if there are or ‘‘circulation’’ with ‘‘publish’’ or the burden was on the challenger to additional specific instances where CEQ ‘‘publication’’ throughout the rule and overcome it.). should make these types of changes. In make ‘‘publish or publication’’ a defined In light of this precedent and the the final rule, CEQ adopts the proposed term in § 1508.1(y), which provides interactive process established by these revisions to provide consistency and agencies with the flexibility to make regulations, under which the agency clarity and to correct grammatical errors environmental review and information and interested parties exchange and makes these types of changes available to the public by electronic information multiple times, the agency throughout. means not available at the time of compiles and evaluates summaries of CEQ proposed to add ‘‘Tribal’’ to the promulgation of the CEQ regulations in that information, and a public official is phrase ‘‘State and local’’ throughout the 1978. As explained in the NPRM, required to certify the agency’s rule to ensure consultation with Tribal historically, the practice of circulation consideration of the record, it is CEQ’s entities and to reflect existing NEPA included mailing of hard copies or intention that this presumption may be practice to coordinate or consult with providing electronic copies on disks or rebutted only by clear and convincing affected Tribal governments and CDs. While it may be necessary to evidence that the agency has not agencies, as necessary and appropriate provide a hard copy or copy on physical properly discharged its duties under the for a proposed action. CEQ also media in limited circumstances, statute. proposed this change in response to agencies now provide most documents Finally, CEQ revises the regulations to comments on the ANPRM supporting in an electronic format by posting them make them easier to understand and expansion of the recognition of the online and using email or other apply. CEQ reorganizes the regulatory sovereign rights, interests, and expertise electronic forms of communication to text to move topics addressed in of Tribes. CEQ proposed to eliminate notify interested or affected parties. This multiple sections and sometimes the provisions in the regulations that change will help reduce paperwork and multiple parts into consolidated limit Tribal interest to reservations. CEQ delays, and modernize the NEPA sections. CEQ simplifies and clarifies adopts these proposals in the final rule process to be more accessible to the part 1508 to focus on definitions by and makes these additions and revisions public. CEQ finalizes these changes in moving operative requirements to the in §§ 1500.3(b)(2)–(4), 1500.4(p), §§ 1500.4(o), 1501.2(b)(2), 1502.9(b) and relevant regulatory provisions. CEQ 1500.5(j), 1501.2(b)(4)(ii), (d)(3), 1502.20, 1503.4(b) and (c), revises the regulations to consolidate 1501.3(b)(2)(iv), 1501.5(e), 1501.7(b) and 1506.3(b)(1) and (2), and 1506.8(c)(2). provisions and reduce duplication. (d), 1501.8(a), 1501.9(b), 1501.10(f), CEQ proposed to change the term Such consolidation, reordering, and 1502.5(b), 1502.16(a)(5), 1502.17(a) and ‘‘possible’’ to ‘‘practicable’’ in the reorganization promotes greater clarity (b), 1502.20(a), 1503.1(a)(2)(i) and (ii), NPRM in a number of sections of the and ease of use. 1505.2(b), and 1506.1(b), 1506.2, regulations. As noted in the NPRM, 1506.6(b)(3)(i)–(iii), and 1508.1(e), (k), ‘‘practicable’’ is the more commonly A. Changes Throughout Parts 1500– and (w). As noted in the NPRM, these used term in regulations to convey the 1508 changes are consistent with and in ability for something to be done, CEQ proposed several revisions support of government-to-government throughout parts 1500–1508 to provide consultation pursuant to E.O. 13175, 69 65 FR 67249 (Nov. 9, 2000).

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considering the cost, including time final rule. CEQ notes that the provisions 101 of the Act (42 U.S.C. 4331) and to required, technical and economic of the NEPA regulations, which the final reflect that section 102(2) establishes the feasibility, and the purpose and need for rule comprehensively updates, should procedural requirements to carry out the agency action. The term ‘‘practicable,’’ be read in their entirety to understand policy stated in section 101. CEQ revises which is in the statute (42 U.S.C. the requirements under the modernized § 1500.1(a) consistent with the case law 4331(a), (b)) and used many times in the regulations.71 to reflect that the purpose and function 1978 regulations,70 is consistent with B. Revisions To Update the Purpose, of NEPA is satisfied if Federal agencies notions of feasibility, which the case Policy, and Mandate (Part 1500) have considered relevant environmental law has recognized as part of the NEPA information and the public has been process. See, e.g., Vt. Yankee, 435 U.S. In part 1500, CEQ proposed several informed regarding the decision-making at 551 (‘‘alternatives must be bounded revisions to update the policy and process, and to reflect that NEPA does by some notion of feasibility’’); Kleppe, mandate sections of the regulations to not mandate particular results or 427 U.S. at 414 (‘‘[P]ractical reflect statutory, judicial, policy, and substantive outcomes. Marsh, 490 U.S. considerations of feasibility might well other developments since the CEQ at 373–74; Vt. Yankee, 435 U.S. at 558. necessitate restricting the scope’’ of an regulations were issued in 1978. CEQ CEQ replaces the vague reference to agency’s analysis.) CEQ makes these includes the proposed changes with ‘‘action-forcing’’ provisions ensuring changes in the final rule in some revisions in the final rule. that Federal agencies act ‘‘according to §§ 1501.7(h)(1) and (2), 1501.8(b)(1), 1. Purpose and Policy (§ 1500.1) the letter and spirit of the Act’’ (as well 1502.5, 1502.9(b), 1504.2, and 1506.2(b) as consistently with their organic and In the NPRM, CEQ proposed to retitle and (c). program-specific governing statutes) and revise § 1500.1, ‘‘Purpose and Similarly, CEQ proposed to change with a more specific reference to the policy,’’ to align this section with the ‘‘no later than immediately’’ to ‘‘as soon consideration of environmental impacts as practicable’’ in § 1502.5(b), and CEQ statutory text of NEPA and certain case law, and reflect the procedural of their actions in agency decisions. finalizes this change. Finally, CEQ These changes codify the Supreme proposed to refer to the procedures requirements of section 102(2) (42 U.S.C. 4332(2)). These changes also are Court’s interpretation of section 102 in required in § 1507.3 using the term two important respects: Section 102 ‘‘agency NEPA procedures’’ throughout. consistent with the President’s directive to CEQ to ‘‘[i]ssue regulations to Federal ‘‘ensures that the agency, in reaching its CEQ makes this change in the final rule. decision, will have available, and will CEQ proposed to eliminate obsolete agencies for the implementation of the procedural provisions of the Act (42 carefully consider, detailed information references and provisions in several concerning significant environmental sections of the CEQ regulations. In U.S.C. 4332(2)).’’ E.O. 11514, as amended by E.O. 11991, sec. 3(h). Many impacts; it also guarantees that the particular, CEQ proposed to remove relevant information will be made references to the 102 Monitor in 40 CFR commenters supported these revisions to promote more efficient and timely available to the larger audience that may 1506.6(b)(2) and 1506.7(c) because the also play a role in both the decision[- publication no longer exists, and OMB reviews under NEPA, while others opposed the changes and requested that ]making process and the Circular A–95, which was revoked implementation of that decision.’’ pursuant to section 7 of E.O. 12372 (47 CEQ maintain the existing language. CEQ revises this section in the final rule Methow Valley, 490 U.S. at 349; see also FR 30959, July 16, 1982), including the Winter v. Nat. Res. Def. Council, Inc., requirement to use State and area-wide consistent with its proposal. Section 1500.1 provides that NEPA is 555 U.S. 7, 23 (2008); Pub. Citizen, 541 clearinghouses in 40 CFR 1501.4(e)(2), U.S. at 756–58. 1503.1(a)(2)(iii), 1505.2, and a procedural statute intended to ensure 1506.6(b)(3)(i). CEQ removes these Federal agencies consider the Consistent with CEQ’s proposal in the references in the final rule. environmental impacts of their actions NPRM, CEQ revises § 1500.1(b) to CEQ proposed changes to citations in the decision-making process. The describe the NEPA regulations as and authorities in parts 1500 through Supreme Court has made clear that revised in this final rule. In particular, 1508. CEQ is updating the authorities NEPA is a procedural statute that does CEQ revises this paragraph to reflect sections for each part to correct the not mandate particular results; ‘‘[r]ather, that the regulations include direction to format. CEQ also is removing cross- NEPA imposes only procedural Federal agencies to determine what references to the sections of part 1508, requirements on [F]ederal agencies with actions are subject to NEPA’s procedural ‘‘Definitions,’’ and updates or inserts a particular focus on requiring agencies requirements and the level of NEPA new cross-references throughout the to undertake analyses of the review, where applicable. The revisions rule to reflect revised or new sections. environmental impact of their proposals also ensure that Federal agencies and actions.’’ Pub. Citizen, 541 U.S. at CEQ makes these changes throughout identify and consider relevant 756–57 (citing Methow Valley, 490 U.S. the final rule. environmental information early in the Finally, CEQ is reorganizing chapter V at 349–50); see also Vt. Yankee, 435 U.S. process in order to promote informed of title 40 of the Code of Federal at 558 (‘‘NEPA does set forth significant decision making. These revisions reduce Regulations to place the NEPA substantive goals for the Nation, but its unnecessary burdens and delays regulations into a new subchapter A, mandate to the agencies is essentially consistent with E.O. 13807 and the ‘‘National Environmental Policy Act procedural.’’). purposes of the regulations as originally As proposed in the NPRM, CEQ Implementing Regulations,’’ and promulgated in 1978. These revises § 1500.1(a) to summarize section organizing its other regulations into amendments emphasize that the policy their own new subchapter B, of integrating NEPA with other 71 While the final rule retains, in large part, the environmental reviews is to promote ‘‘Administrative Procedures and numbering scheme used in the 1978 regulations, the Operations.’’ References to ‘‘parts 1500 final rule comprehensively updates the prior concurrent and timely reviews and through 1508’’ in the proposed rule are regulations. The new regulations should be decision making consistent with referenced to ‘‘this subchapter’’ in the consulted and reviewed to ensure application is statutes, Executive orders, and CEQ consistent with the modernized provisions. guidance. See, e.g., 42 U.S.C. 5189g; 23 Assumptions should not be made concerning the 70 See 40 CFR 1500.2(f), 1501.4(b), 1501.7, degree of change to, similarity to, or any U.S.C. 139; 42 U.S.C. 4370m et seq.; 1505.2(c), 1506.6(f) and 1506.12(a). interpretation of the prior version of the regulations. E.O. 13604; E.O. 13807; Mitigation

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Guidance, supra note 29, and Timely the public regarding proposed actions agency NEPA procedures not imposing Environmental Reviews Guidance, and environmental documents, additional procedures or requirements supra note 29. including provisions in § 1506.6, beyond those set forth in the ‘‘Public involvement,’’ § 1501.9, regulations. To address confusion 2. Remove and Reserve Policy (§ 1500.2) ‘‘Scoping,’’ and § 1503.1, ‘‘Inviting expressed by some commenters, CEQ CEQ proposed to remove and reserve comments and requesting information does not include this sentence in the 40 CFR 1500.2, ‘‘Policy.’’ The section and analyses.’’ 72 Paragraph (e), which final rule because it includes this included language that is identical or required agencies to use the NEPA requirement in § 1507.3, ‘‘Agency NEPA similar to language in E.O. 11514, as process to identify and assess procedures.’’ amended. That Executive order directed reasonable alternatives to proposed CEQ proposed to add a new paragraph CEQ to develop regulations that would actions that will avoid or minimize (b), ‘‘Exhaustion,’’ to summarize public make the ‘‘[EIS] process more useful to adverse effects, is duplicative of comment requirements and an decision makers and the public; and language in § 1502.1, ‘‘Purpose of exhaustion requirement. Specifically, . . . reduce paperwork and the environmental impact statement,’’ and CEQ proposed in paragraph (b)(1) to accumulation of extraneous background paragraph (c) of § 1505.2, ‘‘Record of require that, in a NOI to prepare an EIS, data, in order to emphasize the need to decision in cases requiring agencies request comments from focus on real environmental issues and environmental impact statements.’’ interested parties on the potential alternatives.’’ See E.O. 11514, as Paragraph (f) of 40 CFR 1500.2 effects of and potential alternatives to amended by E.O. 11991, sec. 3(h). The required agencies to use all practicable proposed actions, and also request that Executive order also directed CEQ to means, consistent with the Act and interested parties identify any relevant require EISs to be ‘‘concise, clear and to other essential considerations of information, studies, or analyses of any the point, and supported by evidence national policy, to restore and enhance kind concerning such effects. CEQ that agencies have made the necessary the quality of the human environment includes this provision in the final rule environmental analyses.’’ Id. CEQ and avoid or minimize any possible to ensure that agencies solicit and proposed to remove this section because adverse effects of their actions upon the consider relevant information early in it is duplicative of other sections of the quality of the human environment. The the development of an EIS. regulations, thereby eliminating rule specifically directs agencies to In paragraph (b)(2) of § 1500.3, CEQ redundancy. CEQ is making this change consider reasonable alternatives to proposed to require that the EIS include in the final rule. avoid or minimize adverse a summary of all the comments received Specifically, 40 CFR 1500.2(a) environmental impacts in § 1502.1, for consideration in developing the EIS. restated the statutory text in section 102 ‘‘Purpose of environmental impact CEQ includes this provision in the final of NEPA (42 U.S.C. 4332) and is statement.’’ The final rule also provides rule with some changes. For consistency duplicative of language in § 1500.6, direction to agencies about the relevant with the language in § 1502.17, the final ‘‘Agency authority,’’ requiring each environmental information to be rule specifies that the draft and final agency to interpret the provisions of considered in the decision-making EISs must include a summary of ‘‘all NEPA as a supplement to its existing process, including potential adverse alternatives, information, and analyses.’’ authority and as a mandate to view effects and alternatives, and expressly Also, in response to comments policies and missions in light of the directs agencies to identify alternatives requesting clarification on the meaning Act’s national environmental objectives. considered (§§ 1502.14 and 1502.16), of ‘‘public commenters,’’ the final rule Paragraph (b) required agencies to and to state in their RODs whether they changes this phrase in paragraphs (b)(2) implement procedures to make the have adopted all practicable means to and (3) of § 1500.3 and in § 1502.17 to NEPA process more useful to decision avoid or minimize environmental harm ‘‘State, Tribal, and local governments makers and the public; reduce from the alternative selected (§ 1505.2). and other public commenters’’ for paperwork and accumulation of consistency with §§ 1501.9 and 1506.6 extraneous background data; emphasize 3. NEPA Compliance (§ 1500.3) and to clarify that public commenters relevant environmental issues and CEQ proposed numerous changes and includes governments as well as other alternatives; and make EISs concise, additions to § 1500.3, ‘‘NEPA commenters such as organizations, clear, and to the point and supported by compliance,’’ including the addition of associations, and individuals. evidence that thy have made the paragraph headings to improve In paragraph (b)(3) of § 1500.3, CEQ necessary analyses. This paragraph is readability. In paragraph (a), proposed to require that public duplicative of language in § 1502.1, ‘‘Mandate,’’ CEQ proposed to update the commenters timely submit comments ‘‘Purpose of environmental impact authorities under which it issues the on draft EISs and any information on statement,’’ and paragraphs (c) through regulations. CEQ adds these references, environmental impacts or alternatives to (i) of § 1500.4, ‘‘Reducing paperwork.’’ including to E.O. 13807, in the final a proposed action to ensure informed Paragraph (c) of 40 CFR 1500.2, rule. In the NPRM, CEQ proposed to add decision making by Federal agencies. requiring agencies to integrate NEPA a sentence to this paragraph regarding CEQ further proposed to provide that requirements with other planning and comments not timely raised and review procedures to run concurrently 72 Section 1506.6 includes detailed provisions information not provided shall be rather than consecutively, is duplicative directing agencies to facilitate public involvement, deemed unexhausted and forfeited. This including by providing the public with notice of language in § 1502.24, regarding actions, holding or sponsoring public reinforces the principle that parties may ‘‘Environmental review and hearings, and providing notice of NEPA-related not raise claims based on issues they consultation requirements,’’ § 1501.2, hearings, public meetings, and other opportunities themselves did not raise during the ‘‘Apply NEPA early in the process,’’ for public involvement, and the availability of public comment period. See, e.g., Pub. environmental documents. Section 1501.9 requires § 1501.9, ‘‘Scoping,’’ and § 1500.4, agencies to issue a public notice regarding proposed Citizen, 541 U.S. at 764–65 (finding ‘‘Reducing paperwork.’’ Paragraph (d) actions for which the agencies will be preparing an claims forfeited because respondents encouraging public involvement is EIS and to include specific information for, and to had not raised particular objections to duplicative of sections that direct solicit information from the public regarding such the EA in their comments); Karst Envtl. proposed actions. Section 1503 provides direction agencies to provide notice and to agencies regarding inviting comments from the Educ. & Prot., Inc. v. Fed. Highway information to and seek comment from public and requesting information and analyses. Admin., 559 Fed. Appx. 421, 426–27

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(6th Cir. 2014) (concluding that includes this section in the final rule agencies may structure their decision comments did not raise issue with with some modifications. The final rule making to allow private parties to seek ‘‘sufficient clarity’’ to alert the Federal requires the decision maker, informed agency stays or provide for efficient Highway Administration to concerns); by the final EIS (including the public mechanisms, such as imposition of Friends of the Norbeck v. U.S. Forest comments, summary thereof, and bonds, for seeking, granting, and Serv., 661 F.3d 969, 974 (8th Cir. 2011) responses thereto) and other relevant imposing conditions on stays. The final (concluding that comments were material in the record, certify that she or rule clarifies that it is CEQ’s intention insufficient to give the Forest Service an he considered the alternatives, that any allegation of noncompliance be opportunity to consider claim and that information, and analyses submitted by resolved as expeditiously as possible. judicial review was therefore improper); States, Tribes, and local governments The final rule also clarifies that agencies Exxon Mobil Corp. v. U.S. EPA, 217 and other public commenters. Relevant may structure their procedures F.3d 1246, 1249 (9th Cir. 2000) material includes both the draft and consistent with their organic statutes, (arguments not raised in comments are final EIS as well as any supporting and as part of implementing the waived); Ass’n of Mfrs. v. Dep’t of the materials incorporated by reference or exhaustion provisions in paragraph (b) Interior, 134 F.3d 1095, 1111 (D.C. Cir. appended to the document. The final of § 1500.3, to include an appropriate 1998) (failure to raise argument in rule does not specify the decision maker bond or other security requirement to rulemaking constitutes failure to ‘‘for the lead agency’’ to account for protect against harms associated with exhaust administrative remedies). multiple decision makers, consistent delays. Finally, CEQ proposed to require that with the OFD policy. Consistent with their statutory the public raise any objections to the CEQ proposed to add a new paragraph authorities, agencies may impose, as submitted alternatives, information, and (c), ‘‘Review of NEPA compliance,’’ to appropriate, bond and security analyses section within 30 days of the § 1500.3 to reflect the development of requirements or other conditions as part notice of availability of the final EIS. case law since the promulgation of the of their administrative processes, The final rule includes paragraph CEQ regulations. Specifically, CEQ including administrative appeals, and a (b)(3) with some modifications. The proposed to revise the sentence prerequisite to staying their decisions, final rule requires State, Tribal, and regarding timing of judicial review to as courts do under rule 18 of the Federal local governments and other public strike references to the filing of an EIS Rules of Appellate Procedure and other commenters to submit comments within or FONSI and replace them with the rules.73 See, e.g., Fed. R. App. P. 18(b); the comment periods provided under issuance of a signed ROD or the taking Fed. R. App. P. 8(a)(2)(E); Fed. R. Civ. § 1503.1 and that comments be as of another final agency action. CEQ P. 65(c); Fed. R. Civ. P. 62(b); Fed. R. specific as possible under § 1503.3. The includes this change in the final rule. Civ. P. 62(d). CEQ notes that there is no rule specifies that comments or Judicial review of NEPA compliance for ‘‘NEPA exception’’ that exempts objections of any kind not submitted agency actions can occur only under the litigants bringing NEPA claims from ‘‘shall be forfeited as unexhausted’’ to APA, which requires finality. 5 U.S.C. otherwise applicable bond or security clarify any ambiguity about forfeiture 704. A private right of action to enforce requirements or other appropriate and exhaustion. CEQ received NEPA, which is lacking, would be conditions, and that some courts have comments opposing the proposal to required to review non-final agency imposed substantial bond requirements require the public to raise objections to action. In addition, non-final agency in NEPA cases. See, e.g., Save Our the submitted alternatives, information, action may not be fit for judicial review Sonoran, Inc. v. Flowers, 408 F.3d 1113, and analyses section within 30 days of as a matter of prudential standing. See 1125–26 (9th Cir. 2005) (concluding that the notice of availability of the final EIS. Abbott Labs v. Gardner, 387 U.S. 136, district court’s imposition of a $50,000 The final rule does not include the 148–49 (1967). Under the APA, judicial bond was appropriate and supported by proposed mandatory 30-day comment review does not occur until an agency the record); Stockslager v. Carroll Elec. period. However, § 1506.11 retains from has taken final agency action. Bennett v. Co-op Corp., 528 F.2d 949 (8th Cir. the 1978 regulations the 30-day waiting Spear, 520 U.S. 154, 177–78 (1997) 1976) (concluding that district court’s period prior to issuance of the ROD, (‘‘[T]he action must mark the imposition of a $10,000 bond was subject to limited exceptions, and under ‘consummation’ of the agency’s appropriate). § 1503.1(b), agencies may solicit decision[-]making process—it must not CEQ proposed to add a new paragraph comments on the final EIS if they so be of a merely tentative or interlocutory (d), ‘‘Remedies,’’ to § 1500.3. CEQ choose. Each commenter should put its nature. And second, the action must be proposed to state explicitly that harm own comments into the record as soon one by which ‘rights or obligations have from the failure to comply with NEPA as practicable to ensure that the agency been determined’ or from which ‘legal can be remedied by compliance with has adequate time to consider the consequences will flow’’’ (citations NEPA’s procedural requirements, and commenter’s input as part of the omitted)). Because NEPA’s procedural that CEQ’s regulations do not create a agency’s decision-making process. requirements apply to proposals for cause of action for violation of NEPA. Finally, to ensure commenters timely agency action, judicial review should The statute does not create any cause of identify issues, CEQ expresses its not occur until the agency has action, and agencies may not create intention that commenters rely on their completed its decision-making process, private rights of action by regulation; own comments and not those submitted and there are ‘‘direct and appreciable ‘‘[l]ike substantive [F]ederal law itself, by other commenters in any subsequent legal consequences.’’ Id. at 178. Final private rights of action to enforce litigation, except where otherwise agency action for judicial review [F]ederal law must be created by provided by law. purposes is not necessarily when the Congress.’’ Alexander v. Sandoval, 532 CEQ also proposed in paragraph (b)(4) agency publishes the final EIS, issues a U.S. 275, 286 (2001) (citing Touche Ross of § 1500.3 to require that the agency FONSI, or makes the determination to decision maker certify in the ROD that categorically exclude an action. 73 See, e.g., 26 CFR 2.6 (Bureau of Indian Affairs’ the agency has considered all of the CEQ also proposed in paragraph (c) to regulatory provision that allows a person that believes he or she may suffer a measurable and alternatives, information, and analyses clarify that any allegation of substantial financial loss as a result of the delay submitted by public commenters based noncompliance be resolved as caused by an appeal to request that the official on the summary in the EIS. CEQ expeditiously as possible, and that require the posting of a reasonable bond).

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& Co. v. Redington, 442 U.S. 560, 578 any irreparable harm from occurring. 4. Reducing Paperwork and Delay (1979)). This is particularly relevant See § 1505.3. For example, regular (§§ 1500.4 and 1500.5) where, as here, the counterparty in any inspections or requirements that In the NPRM, CEQ proposed to action to enforce NEPA would be a applicants obtain third-party insurance, reorder the paragraphs in § 1500.4, Federal officer or agency. See San for example, might constitute such ‘‘Reducing paperwork,’’ and § 1500.5, Carlos Apache Tribe v. United States, measures in certain circumstances. ‘‘Reducing delay,’’ for a more logical 417 F.3d 1091, 1096–97 (9th Cir. 2005) Inspections can reveal defects before ordering, consistent with the three (‘‘[C]reating a direct private action they cause harm. Third-party insurers, levels of NEPA review. CEQ also against the federal government makes because of their exposure to risk, have proposed edits to §§ 1500.4 and 1500.5 little sense in light of the administrative an economic incentive to conduct for consistency with proposed edits to review scheme set out in the APA.’’). thorough inspections, facilitating the cross-referenced sections. CEQ The CEQ regulations create no discovery of defects. Such measures makes these proposed changes in the presumption that violation of NEPA is would be relevant to whether a valid final rule. Additionally, the final rule a basis for injunctive relief or for a claim of irreparable harm has been revises the language in paragraphs (a) finding of irreparable harm. As the established. Supreme Court has held, the irreparable and (b) of §§ 1500.4 and 1500.5 to make CEQ also proposed to state that any the references to CEs and FONSIs harm requirement, as a prerequisite to actions to review, enjoin, vacate, stay, or the issuance of preliminary or consistent with the language in alter an agency decision on the basis of §§ 1501.4(a) and 1501.6(a), respectively. permanent injunctive relief, is neither an alleged NEPA violation be raised as eliminated nor diminished in NEPA CEQ also proposed conforming edits to soon as practicable to avoid or minimize § 1500.4(c) to broaden the paragraph to cases. A showing of a NEPA violation any costs to agencies, applicants, or any alone does not warrant injunctive relief include EAs by changing affected third parties. As reflected in ‘‘environmental impact statements’’ to and does not satisfy the irreparable comments received in response to the harm requirement. See Monsanto Co. v. ‘‘environmental documents’’ and ANPRM, delays have the potential to changing ‘‘setting’’ to ‘‘meeting’’ since Geertson Seed Farms, 561 U.S. 139, 157 result in substantial costs. CEQ also (2010) (‘‘[T]he statements quoted [from page limits would be required for both proposed to replace the language EAs and EISs. CEQ makes these changes prior Ninth Circuit cases] appear to providing that trivial violations should presume that an injunction is the proper in the final rule and corrects the cross- not give rise to an independent cause of reference. CEQ revises paragraph (h) of remedy for a NEPA violation except in action with language that states that unusual circumstances. No such thumb § 1500.4 to add ‘‘e.g.’’ to the citations to minor, non-substantive errors that have on the scales is warranted.’’); Winter, clarify that these are just examples of no effect on agency decision making 555 U.S. at 21–22, 31–33; see also the useful portions of EISs and to shall be considered harmless and shall Amoco Prod. Co. v. Vill. of Gambell, 480 correct the cross-reference to not invalidate an agency action. U.S. 531, 544–45 (1987) (rejecting background material from § 1502.16 to Invalidating actions due to minor errors proposition that irreparable damage is § 1502.1. CEQ revises the citations in does not advance the goals of the statute presumed when an agency fails to paragraph (k) of § 1500.4 to make them and adds delays and costs. CEQ evaluate thoroughly the environmental sequential. Finally, CEQ revises includes paragraph (d) in the final rule impact of a proposed action). Moreover, paragraph (d) of § 1500.5 for clarity. with a change to clarify that it is CEQ’s a showing of irreparable harm in a 5. Agency Authority (§ 1500.6) NEPA case does not entitle a litigant to intention that the regulations create no an injunction or a stay. See Winter, 555 presumption that violation of NEPA is CEQ proposed to add a savings clause U.S. at 20 (‘‘A plaintiff seeking a a basis for injunctive relief or for a to § 1500.6, ‘‘Agency authority,’’ to preliminary injunction must establish finding of irreparable harm. As noted clarify that the CEQ regulations do not that he is likely to succeed on the above, NEPA is a procedural statute and limit an agency’s other authorities or merits, that he is likely to suffer any harm is thus reparable by providing legal responsibilities. This clarification irreparable harm in the absence of the necessary environmental is consistent with section 104 of NEPA preliminary relief, that the balance of documentation in accordance with the (42 U.S.C. 4334), section 2(g) of E.O. equities tips in his favor, and that an Act and these regulations. CEQ also 11514, and the 1978 regulations, but injunction is in the public interest.’’) adds ‘‘vacate, or otherwise’’ to the types acknowledges the possibility of different (emphasis added); Geertson Seed Farms, of actions that may alter a decision to statutory authorities that may set forth 561 U.S. at 157 (‘‘The traditional four- address situations where there may be a different requirements, such as factor test applies when a plaintiff seeks nationwide or other vacatur and ‘‘after timeframes. In the final rule, CEQ makes a permanent injunction to remedy a final agency action’’ to clarify when the the proposed changes and clarifies NEPA violation .... An injunction actions should be raised. further that agencies interpret the should issue only if the traditional four- Finally, CEQ proposed to add a new provisions of the Act as a mandate to factor test is satisfied.’’). paragraph (e), ‘‘Severability,’’ to view the agency’s policies and missions Consistent with the Supreme Court’s § 1500.3 to address the possibility that in the light of the Act’s national analysis in Geertson Seed Farms, this rule, or portions of this rule, may environmental objectives, to the extent agencies (as well as applicants) should be challenged in litigation. CEQ NEPA is consistent with the agency’s give practical consideration to measures finalizes this paragraph as proposed, existing authority. This is consistent that might serve to anticipate, reduce, or correcting the cross reference. As stated with E.O. 11514, which provides that eliminate possible adverse effects from in the NPRM, it is CEQ’s intention that Federal agencies shall ‘‘[i]n carrying out a project. To the extent such measures the individual sections of this rule be their responsibilities under the Act and are incorporated into an agency’s ROD, severable from each other, and that if a this Order, comply with the [CEQ they may provide grounds upon which court stays or invalidates any sections or regulations] except where such a court, presented with an alleged portions of the regulations, this will not compliance would be inconsistent with violation of NEPA, might reasonably affect the validity of the remainder of statutory requirements.’’ E.O. 11514, as conclude that injunctive relief is not the sections, which will continue to be amended by E.O. 11991, sec. 2(g). CEQ warranted because the measures prevent operative. also proposed to clarify that compliance

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with NEPA means the Act ‘‘as CEQ proposed a new § 1501.1 to effects as part of its decision-making interpreted’’ by the CEQ regulations. provide a series of considerations to process. See, e.g., Pub. Citizen, 541 U.S. CEQ makes this change in the final rule assist agencies in a threshold analysis at 768–70 (concluding that, because the in § 1500.6, as well as in §§ 1502.2(d) for determining whether NEPA applies Federal Motor Carrier Safety and 1502.9(b), to clarify that agencies to a proposed activity or whether NEPA Administration lacked discretion to should implement the statute through is satisfied through another mechanism. prevent the entry of Mexican trucks into the framework established in these CEQ proposed to title this section the United States, the agency did not regulations. Finally, CEQ revises the ‘‘NEPA threshold applicability analysis’’ need to consider under NEPA the sentence explaining the meaning of the in the NPRM. CEQ includes this environmental effects of Mexican phrase ‘‘to the fullest extent possible’’ in provision in the final rule at § 1501.1, trucks’ cross-border operations that the section 102, to replace ‘‘unless existing ‘‘NEPA thresholds.’’ This section President authorized); Nat’l Wildlife law applicable to the agency’s recognizes that the application of NEPA Fed’n v. Sec’y of the U.S. Dep’t. of operations expressly prohibits or makes by Congress and the courts has evolved Transp., 2020 U.S. App. LEXIS 17723, compliance impossible’’ with over the last four decades in light of at *15–18 (6th Cir. , 2010) ‘‘consistent with § 1501.1.’’ As numerous other statutory requirements (applying Public Citizen and finding discussed in section II.C.1, § 1501.1 sets implemented by Federal agencies. CEQ NEPA not applicable as EPA lacked forth threshold considerations for reorders these considerations in the discretion to reject Clean Water Act oil assessing whether NEPA applies or is final rule and adds a new consideration spill response plans that satisfied otherwise fulfilled, including to paragraph (a)(1)—whether another enumerated criteria); Citizens Against considerations related to other statutes statute expressly exempts a proposed Rails-To-Trails v. Surface Transp. Bd., with which agencies must comply. activity or decision from NEPA. See, 267 F.3d 1144, 1152–54 (D.C. Cir. 2001) e.g., 15 U.S.C. 793(c)(1) (exempting C. Revisions to NEPA and Agency (concluding that because the Surface Environmental Protection Agency (EPA) Planning (Part 1501) Transportation Board lacked significant actions under the Clean Air Act); 33 discretion regarding issuance of a CEQ proposed significant changes to U.S.C. 1371(c)(1) (exempting certain certificate of interim trail use under the modernize and clarify part 1501. CEQ EPA actions under the Clean Water Act); National Trails System Act, NEPA was proposed to replace the current 40 CFR 42 U.S.C. 5159 (exempting certain not applicable); South Dakota v. 1501.1, ‘‘Purpose,’’ because it is actions taken or assistance provided Andrus, 614 F.2d 1190, 1193–95 (8th unnecessary and duplicative, with a within a Presidentially declared Cir. 1980) (concluding that the granting new section, ‘‘NEPA threshold emergency or disaster area); and 16 of a mineral patent for a mining claim applicability analysis,’’ to address U.S.C. 3636(a) (exempting regulation of was a non-discretionary, ministerial act threshold considerations of NEPA Pacific salmon fishing). and non-discretionary acts should be applicability. CEQ proposed to add The second consideration in exempt from NEPA). Consistent with additional sections to address the level paragraph (a)(2) is whether compliance Public Citizen, 541 U.S. at 768–70, of NEPA review and CEs. CEQ further with NEPA would clearly and NEPA applies to the portion of an proposed to consolidate and clarify fundamentally conflict with the agency decision that is discretionary. In provisions on EAs and FONSIs, and requirements of another statute. See, Public Citizen, the Supreme Court relocate to part 1501 from part 1502 the e.g., Flint Ridge Dev. Co. v. Scenic considered whether the Federal Motor provisions on tiering and incorporation Rivers Ass’n, 426 U.S. 776, 791 (1976) Carrier Safety Administration was by reference. CEQ also proposed to set (concluding that the Secretary of required to consider the effects of a non- presumptive time limits for the Housing and Urban Development could discretionary action in its NEPA completion of NEPA reviews, and not comply with NEPA’s EIS document and concluded that it was not clarify the roles of lead and cooperating requirement because it conflicted with required to do so because it had no agencies to further the OFD policy and requirements of the Interstate Land authority to prevent the cross-border encourage more efficient and timely Sales Full Disclosure Act). The third entry of Mexican motor carriers, which NEPA reviews. CEQ makes many of consideration in paragraph (a)(3) is was the result of presidential action. Id. these changes in the final rule with whether compliance with NEPA would modifications as discussed further in be inconsistent with congressional Finally, the sixth consideration in this section. intent expressed in another statute. See, paragraph (a)(6) is whether the proposed action is an action for which another 1. NEPA Thresholds (§ 1501.1) e.g., Douglas County v. Babbitt, 48 F.3d 1495, 1503 (9th Cir. 1995) (holding that statute’s requirements serve the function Since the enactment of NEPA, courts NEPA was displaced by the Endangered of agency compliance with NEPA. See, have examined the applicability of Species Act’s procedural requirements e.g., Envtl. Def. Fund, Inc. v. U.S. EPA, NEPA to proposed agency activities and for designating critical habitat); and 489 F.2d 1247, 1256–57 (D.C. Cir. 1973) decisions, based on a variety of Merrell v. Thomas, 807 F.2d 776, 778– (concluding that the substantive and considerations. Courts have found that 80 (9th Cir. 1986) (holding that NEPA procedural standards of FIFRA were NEPA is inapplicable when an agency’s did not apply to the EPA’s registration functionally equivalent to NEPA and statutory obligations clearly or of pesticides under the Federal therefore formal compliance was not fundamentally conflict with NEPA Insecticide, Fungicide, and Rodenticide necessary); W. Neb. Res. Council v. U.S. compliance; when Congress has Act (FIFRA)). EPA, 943 F.2d 867, 871–72 (8th Cir. established requirements under another The fourth and fifth considerations in 1991) (finding that the procedures of the statute that displace NEPA compliance paragraphs (a)(4) and (5) are whether the were in some fashion; when an agency is proposed activity or decision meets the functionally equivalent to those carrying out a non-discretionary duty or definition of a major Federal action required by NEPA); Cellular Phone obligation (in whole or in part); or when generally and whether the proposed Taskforce v. Fed. Commc’ns Comm’n, environmental review and public activity or decision does not meet the 205 F.3d 82, 94–95 (2d Cir. 2000) participation procedures under another definition because it is non- (concluding that the procedures statute satisfy the requirements (i.e., are discretionary such that the agency lacks followed by the Federal functionally equivalent) of NEPA. authority to consider environmental Communications Commission were

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functionally compliant with EA and an opportunity for agencies to integrate the same time as other planning FONSI requirements under NEPA). NEPA into their decision-making documents ‘‘whenever practicable.’’ Paragraph (b) of § 1501.1 clarifies that programs and processes. See, e.g., N.M. CEQ recognizes that it is not always agencies can make this determination in ex rel. Richardson v. Bureau of Land practicable to publish such documents their agency NEPA procedures in Mgmt., 565 F.3d 683 (10th Cir. 2009); at the same time because it can delay accordance with § 1507.3(d) or on a Metcalf v. Daley, 214 F.3d 1135 (9th Cir. publication of one or the other. Finally, case-by-case basis. The final rule adds a 2000). As discussed above, only final CEQ proposed to amend paragraph new paragraph (b)(1) to state that agency action is subject to judicial (b)(4)(ii) to change ‘‘agencies’’ to agencies may request assistance from review under the APA. CEQ’s view is ‘‘governments’’ consistent with and in CEQ in making a case-by-case that agencies should have discretion support of government-to-government determination under this section, and a with respect to timing, consistent with consultation pursuant to E.O. 13175 74 new paragraph (b)(2) to require agencies the regulatory provisions in §§ 1501.11 and E.O. 13132, ‘‘Federalism.’’ 75 CEQ to consult with other Federal agencies and 1502.4 for deferring NEPA analysis makes these changes in the final rule. for their concurrence when making a to appropriate points in the decision- 3. Determine the Appropriate Level of determination where more than one making process. As noted in the NPRM, NEPA Review (§ 1501.3) Federal agency administers the statute this change is consistent with CEQ (e.g., the Endangered Species Act guidance that agencies should As discussed in the NPRM, NEPA (ESA)). Agencies may document these ‘‘concentrate on relevant environmental requires a ‘‘detailed statement’’ for consultations, as appropriate. Agencies analysis’’ in their EISs rather than ‘‘major Federal actions significantly will only apply the thresholds in this ‘‘produc[ing] an encyclopedia of all affecting the quality of the human section after consideration on a case-by- applicable information.’’ Timely environment.’’ 42 U.S.C. 4332(2)(C). To case basis, or after agencies have Environmental Reviews Guidance, determine whether an action requires determined whether and how to supra note 29; see also §§ 1500.4(b), such a detailed statement, the 1978 incorporate them into their own agency 1502.2(a). Therefore, CEQ makes these regulations provided three levels of NEPA procedures. changes to clarify that agencies have review for Federal agencies to assess Some agencies already include discretion to structure their NEPA proposals for agency action. information related to the applicability processes in accordance with the rule of Specifically, the CEQ regulations allow of NEPA to their actions in their agency reason. CEQ also proposed to change agencies to review expeditiously those NEPA procedures. For example, EPA’s ‘‘possible’’ to ‘‘reasonable’’ in paragraph actions that normally do not have NEPA procedures include an (b)(4)(iii) and ‘‘shall’’ to ‘‘should’’ in the significant effects by using CEs or, for applicability provision that explains introductory paragraph of § 1502.5 for actions that are not likely to have which EPA actions NEPA does not consistency with the changes to significant effects, by preparing EAs. By apply to, including actions under the § 1501.2. CEQ makes these changes in using CEs and EAs whenever Clean Air Act and certain actions under the final rule. appropriate, agencies then can focus the Clean Water Act. See 40 CFR 6.101. CEQ also proposed to change their limited resources on those actions The final rule codifies the agency ‘‘planning and decisions reflect that are likely to have significant effects practice of including this information in environmental values’’ to ‘‘agencies and require the ‘‘detailed statement,’’ or agency NEPA procedures but also consider environmental impacts in their EIS, required by NEPA. provides agencies’ flexibility to make planning and decisions’’ in paragraph While the 1978 CEQ regulations case-by-case determinations as needed. (a). CEQ makes this change in the final provided for these three levels of NEPA rule because ‘‘consider environmental review, they do not clearly set out the 2. Apply NEPA Early in the Process impacts’’ provides more explicit decisional framework by which agencies (§ 1501.2) direction to agencies and is more should assess their proposed actions CEQ proposed to amend § 1501.2, consistent with the Act and the CEQ and select the appropriate level of ‘‘Apply NEPA early in the process,’’ regulations. review. To provide this direction and designating the introductory paragraph CEQ proposed to redesignate the clarity, the NPRM proposed to add a as paragraph (a) and changing ‘‘shall’’ to remaining paragraphs in § 1501.2 to list new section at § 1501.3, ‘‘Determine the ‘‘should’’ and ‘‘possible’’ to out other general requirements for appropriate level of NEPA review.’’ The ‘‘reasonable.’’ CEQ makes these changes agencies. In paragraph (b)(1), the final proposal described the three levels of in the final rule. Agencies need the rule removes the direct quote of NEPA NEPA review and the basis upon which discretion to structure the timing of consistent with the Federal Register’s an agency makes a determination their NEPA processes to align with their requirements for the Code of Federal regarding the appropriate level of decision-making processes, consistent Regualtions. In paragraph (b)(2), CEQ review for a proposed action. CEQ with their statutory authorities. proposed to clarify that agencies should includes the proposal in the final rule Agencies also need flexibility to consider economic and technical at paragraph (a) of § 1501.3. determine the appropriate time to start analyses along with environmental CEQ proposed to address the the NEPA process, based on the context effects. This change is consistent with consideration of significance in of the particular proposed action and section 102(2)(B) of NEPA, which paragraph (b) since it is central to governed by the rule of reason, so that directs agencies, in consultation with determining the appropriate level of the NEPA analysis meaningfully CEQ, to identify and develop methods review. CEQ proposed to move the informs the agency’s decision. The and procedures to ensure environmental language from 40 CFR 1508.27, appropriate time to begin the NEPA amenities and values are considered ‘‘Significantly,’’ since it did not contain process is dependent on when the along with economic and technical a definition, but rather set forth factors agency has sufficient information, and considerations in decision making. CEQ for considering whether an effect is on how it can most effectively integrate makes this change in the final rule and significant, to paragraph (b). CEQ also the NEPA review into the agency’s revises the second sentence in this proposed to eliminate most of the decision-making process. Further, some paragraph to qualify that agencies must courts have viewed this provision as a review and publish environmental 74 Supra note 69. legally enforceable standard, rather than documents and appropriate analyses at 75 64 FR 43255 (Aug. 10, 1999).

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factors in favor of a simpler, more Additionally, CEQ proposed to NEPA procedures. The NPRM proposed flexible approach for agencies to assess remove the reference in 40 CFR in paragraph (b) to set forth the significance. Specifically, CEQ proposed 1508.27(b)(7) to ‘‘[s]ignificance cannot requirement to consider extraordinary to change ‘‘context’’ to ‘‘potentially be avoided by terming an action circumstances once an agency affected environment’’ and ‘‘intensity’’ temporary or by breaking it down into determines that a CE covers a proposed to ‘‘degree’’ to provide greater clarity as small component parts’’ because this is action, consistent with the current to what agencies should consider in addressed in the criteria for scope in requirement in 40 CFR 1508.4. CEQ assessing potential significant effects. §§ 1501.9(e) and 1502.4(a), which would includes this provision in the final rule, The phrase ‘‘potentially affected provide that agencies evaluate in a changing the language from passive to environment’’ relates more closely to single EIS proposals or parts of active voice. CEQ proposed in physical, ecological, and socio- proposals that are related closely paragraph (b)(1) to provide that, when economic aspects than ‘‘context.’’ The enough to be, in effect, a single course extraordinary circumstances are present, final rule reorganizes several factors of action. Commenters noted that agencies may consider whether formerly categorized under ‘‘intensity’’ §§ 1501.9 and 1502.4 are applicable mitigating circumstances, such as the to clarify further this distinction. The only to EISs. Therefore, in the final rule design of the proposed action to avoid CEQ includes a sentence in paragraph final rule uses the term ‘‘degree’’ effects that create extraordinary (b) stating that agencies should consider circumstances, are sufficient to allow because some effects may not connected actions when determining the proposed action to be categorically necessarily be of an intense or severe the significance of the effects of the excluded. CEQ includes this paragraph nature, but nonetheless should be proposed action. in the final rule, but revises it to address considered when determining confusion over whether CEQ is creating 4. Categorical Exclusions (§ 1501.4) significance. While 40 CFR 1508.27 a ‘‘mitigated CE.’’ In the final rule, used several different words to explain Under the 1978 regulations, agencies paragraph (b)(1) provides that an agency what was meant by ‘‘intensity,’’ it also could categorically exclude actions from can categorically exclude a proposed used ‘‘degree’’ numerous times. detailed review where the agency has action when an environmental resource Therefore, the consistent use of found in its agency NEPA procedures or condition identified as a potential ‘‘degree’’ throughout is clearer. In the that the action normally would not have extraordinary circumstance is present if final rule, CEQ includes these proposed significant effects. Over the past 4 the agency determines that there are changes in paragraph (b) with some decades, Federal agencies have ‘‘circumstances that lessen the impacts’’ additional revisions in response to developed more than 2,000 CEs.76 CEQ or other conditions sufficient to avoid comments. CEQ clarifies in paragraph estimates that each year, Federal significant effects. This paragraph (b)(1) that agencies ‘‘should’’ (rather agencies apply CEs to approximately clarifies that agencies’ extraordinary than ‘‘may’’) consider the affected area 100,000 Federal agency actions that circumstances criteria are not intended specific to the proposed action, typically require little or no to necessarily preclude the application consistent with the construction of documentation.77 While CEs are the of a CE merely because a listed factor paragraph (b)(2), and the affected area’s most commonly used level of NEPA may be present or implicated. Courts resources. The final rule includes one review, CEQ has addressed CE have rejected a ‘‘mere presence’’ test for example, listed species and designated development and implementation in CEs. Sierra Club v. U.S. Forest Serv., 828 critical habitat under the Endangered only one comprehensive guidance F.3d 402 (6th Cir. 2016); Sierra Club v. Species Act, but this could include any document, see CE Guidance, supra note Bosworth, 510 F.3d 1016 (9th Cir. 2007); type of resource such as historic, 29, and the 1978 regulations did not Utah Envtl. Cong. v. Bosworth, 443 F.3d cultural, or park lands. The final rule address CEs in detail. 732 (10th Cir. 2006); Sw. Ctr. for In response to the ANPRM, many also modifies the example of Biological Diversity v. U.S. Forest Serv., commenters requested that CEQ update significance varying with the setting, 100 F.3d 1443, 1450 (9th Cir. 1996); cf. the NEPA regulations to provide more because there was some Rhodes v. Johnson, 153 F.3d 785 (7th detailed direction on the application of misunderstanding of the proposed Cir. 1998). Instead, the agency may CEs. To provide greater clarity, CEQ consider in light of the extraordinary change from ‘‘world’’ to ‘‘Nation.’’ This proposed to add a new section on CEs sentence merely serves as an example. circumstances criteria, whether the in proposed § 1501.4, ‘‘Categorical proposed action would take place in Consistent with the NPRM, paragraph exclusions,’’ to address in more detail such a way that it would not have (b)(2) addresses considerations of the the process by which an agency significant effects, or whether the degree of effects. CEQ moves short- and considers whether a proposed action is agency could modify the proposed long-term effects from ‘‘affected categorically excluded under NEPA. environment’’ in (b)(1) to ‘‘degree’’ in Proposed paragraph (a) stated that action to avoid the extraordinary paragraph (b)(2)(i). CEQ proposed to agencies identify CEs in their NEPA circumstances so that the action remains exclude consideration of controversy procedures. CEQ adds this paragraph to eligible for categorical exclusion. While (40 CFR 1508.27(b)(4)) because the this reflects current practice for some the final rule, reiterating the 78 extent to which effects may be requirement in § 1507.3(e)(2)(ii) that agencies, this revision would assist controversial is subjective and is not agencies establish CEs in their agency agencies as they consider whether to dispositive of effects’ significance. categorically exclude an action that Further, courts have interpreted 76 See Council on Environmental Quality, List of would otherwise be considered in an EA controversy to mean scientific Federal Agency Categorical Exclusions (, and FONSI. 2020), https://ceq.doe.gov/nepa-practice/ Finally, CEQ proposed paragraph controversy, which the final rule categorical-exclusions.html. (b)(2) to address agencies’ obligation to addresses within the definition of 77 See, e.g., Council on Environmental Quality, prepare an EA or EIS, as appropriate, if effects, as the strength of the science The Eleventh and Final Report on the National the agency cannot categorically exclude informs whether an effect is reasonably Environmental Policy Act Status and Progress for foreseeable. The controversial nature of American Recovery and Reinvestment Act of 2009 Activities and Projects (Nov. 2, 2011), https:// 78 See, e.g., Forest Service categorical exclusions, a project is not relevant to assessing its ceq.doe.gov/docs/ceq-reports/nov2011/CEQ_ARRA_ 36 CFR 220.6(b)(2); surface transportation significance. NEPA_Report_Nov_2011.pdf. categorical exclusions, 23 CFR 771.116–771.118.

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a proposed action. CEQ includes this more limited than EIS requirements. An environmental laws such as the provision in the final rule revising the agency must briefly describe the need National Historic Preservation Act, language to active voice and making it for the proposed action by describing Clean Water Act, Endangered Species consistent with the format of paragraph the existing conditions, projected future Act, or Clean Air Act. (b). conditions, and statutory obligations CEQ adds a new paragraph (d) to the CEQ invited comment on the and authorities that may relate to the final rule to move the language from 40 proposed revisions and asked whether it proposed agency action with cross- CFR 1502.5(b) regarding when to begin should address any other aspects of CEs references to supporting documents. preparing an EA that is required for an in its regulations. CEQ also invited The final rule continues to require application to the agency.80 Agencies comment on whether it should establish agencies to describe briefly the may specify in their NEPA procedures government-wide CEs in its regulations proposed action and any alternatives it when an application is complete such to address routine administrative is considering that would meet the need that it can commence the NEPA process. activities, for example, internal orders of the proposed agency action. For While the NPRM did not propose this or directives regarding agency actions to protect or restore the change, the move is consistent with operations, procurement of office environment, without unresolved CEQ’s proposal to consolidate EA supplies and travel, and rulemakings to conflicts concerning alternative uses of requirements in § 1501.5. establish administrative processes such available resources, CEQ expects The final rule continues to provide as those established under the Freedom agencies to examine a narrower range of that agencies may prepare EAs by and of Information Act or Privacy Act. After alternatives to the proposed action. with other agencies, applicants, and the considering the comments, as discussed When the action may have significant public. Modern information technology in the Final Rule Response to impacts, the agency should consider can help facilitate this collaborative EA Comments, CEQ is not including any reasonable alternatives that would avoid preparation, allowing the agency to additional provisions on CEs in the final those impacts or otherwise mitigate make a coordinated but independent rule. those impacts to less than significant evaluation of the environmental issues levels. 5. Environmental Assessments An agency does not need to include and assume responsibility for the scope (§ 1501.5) a detailed discussion of each alternative and content of the EA. CEQ proposed to Under the 1978 regulations, when an in an EA, nor does it need to include move the public involvement agency has not categorically excluded a any detailed discussion of alternatives requirements for EAs from the current proposed action, the agency can prepare that it eliminated from study. While 40 CFR 1501.4(b) to § 1501.5 and change an EA to document its effects analysis. agencies have discretion to include ‘‘environmental’’ to ‘‘relevant’’ agencies If the analysis in the EA demonstrates more information in their EAs than is to include all agencies that may that the action’s effects would not be required to determine whether to contribute information that is relevant significant, the agency documents its prepare an EIS or a FONSI, they should to the development of an EA. CEQ reasoning in a FONSI, which completes carefully consider their reasons and makes these changes in paragraph (e) in the NEPA process; otherwise, the have a clear rationale for doing so. the final rule. CEQ also adds to and agency uses the EA to help prepare an Agencies should focus on analyzing reorders the list to ‘‘the public, State, EIS. CEQ estimates that Federal agencies material effects and alternatives, rather Tribal, and local governments, relevant prepare over 10,000 EAs each year.79 than marginal details that may agencies, and any applicants,’’ to CEQ proposed to consolidate the unnecessarily delay the environmental address some confusion by public requirements for EAs that are scattered review process. commenters that interpreted relevant to throughout the 1978 regulations into a Under the final rule, an agency must modify the public and applicants. In new § 1501.5, ‘‘Environmental describe the environmental impacts of addition, this revision acknowledges assessments.’’ CEQ proposed to revise its proposed action and alternatives, that there will not be an applicant in all paragraph (a) to state when agencies are providing enough information to instances. Consistent with the 1978 required to prepare EAs. CEQ proposed support a decision to prepare either a regulations, the final rule does not minor clarifying edits to paragraph (b), FONSI or an EIS. The EA should focus specifically require publication of a which states that agencies may prepare on whether the proposed action draft EA for public review and an EA to assist in agency planning and (including mitigation) would comment, but continues to require decision making. The NPRM proposed ‘‘significantly’’ affect the quality of the agencies to reasonably involve the to move the operative language human environment and tailor the public prior to completion of the EA, so regarding the requirements for an EA length of the discussion to the relevant that they may provide meaningful input from the definition of EA in 40 CFR effects. The agency may contrast the on those subject areas that the agency 1508.9 to paragraph (c). CEQ makes impacts of the proposed action and must consider in preparing the EA. these proposed changes in the final rule. alternatives with the current and Depending on the circumstances, the Under the final rule, the format for an expected future conditions of the agency could provide adequate EA is flexible and responsive to agency affected environment in the absence of information through public meetings or decision-making needs and the the action, which constitutes by a detailed scoping notice, for circumstances of the particular proposal consideration of a no-action alternative. example. There is no single correct for agency action. Requirements for Under the final rule, agencies should approach for public involvement. documenting the proposed action and continue to list persons, relevant Rather, agencies should consider the alternatives in an EA continue to be agencies, and applicants involved in circumstances and have discretion to preparing the EA to document agency conduct public involvement tailored to 79 See, e.g., Council on Environmental Quality, compliance with the requirement to the interested public, to available means Fourth Report on Cooperating Agencies in involve the public in preparing EAs to of communications to reach the Implementing the Procedural Requirements of the the extent practicable, consistent with interested and affected parties, and to National Environmental Policy Act, Attachment A (Oct. 4, 2016), https://ceq.doe.gov/docs/ceq-reports/ paragraph (e). This may include Attachment-A-Fourth-Cooperating-Agency-Report_ incorporation by reference of records 80 CEQ also retains the statement in § 1502.5(b), Oct2016.pdf. related to compliance with other as proposed, with respect to EISs.

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the particular circumstances of each make the NEPA process more efficient not have significant effects based on the proposed action. and effective. As discussed in section analysis in the EA, consistent with the The NPRM proposed to establish a II.C.9, CEQ makes a presumptive time definition of FONSI. The proposed rule presumptive 75-page limit for EAs, but limit applicable to EAs in § 1501.10. had erroneously included the standard allow a senior agency official to approve Further, for some agencies, it is a for preparing an EA—‘‘is not likely to a longer length and establish a new page common practice to have lead and have significant effects.’’ CEQ proposed limit in writing. CEQ adds this new cooperating agencies coordinate in the to clarify in paragraph (a)(2) that the requirement at paragraph (f) in the final preparation of EAs where more than one circumstances listed in paragraphs rule. As noted in the NPRM, while agency may have an action on a (a)(2)(i) and (ii) are the situations where Question 36a of the Forty Questions, proposal; therefore, CEQ adds EAs to the agency must make a FONSI supra note 2, stated that EAs should be §§ 1501.7 and 1501.8, as discussed in available for public review. CEQ makes approximately 10 to 15 pages, in section II.C.7. Finally, as discussed in these changes in the final rule. practice, such assessments are often section II.C.10, CEQ proposed to add CEQ proposed to move the operative longer to address compliance with other EAs to § 1501.11, ‘‘Tiering,’’ to codify requirement that a FONSI include the applicable laws, and to document the current agency practice of using EAs EA or a summary from the definition of effects of mitigation to support a FONSI. where the effects of a proposed agency FONSI in 40 CFR 1508.13 to a new To achieve the presumptive 75-page action are not likely to be significant. paragraph (b). CEQ also proposed to limit, agencies should write all NEPA These include program decisions that change the requirement that the FONSI environmental documents in plain may facilitate later site-specific EISs as include a summary of the EA to language, follow a clear format, and well as the typical use of EAs as a ‘‘incorporate it by reference.’’ Consistent emphasize important impact analyses second-tier document tiered from an with § 1501.12, in order to incorporate and relevant information necessary for EIS. CEQ makes these changes in the the EA by reference, the agency would those analyses, rather than providing final rule. need to briefly summarize it. Making extensive background material. An EA this change ensures that the EA is should have clear and concise 6. Findings of No Significant Impact (§ 1501.6) available to the public. CEQ makes these conclusions and may incorporate by changes in the final rule. reference data, survey results, When an agency determines in its EA Finally, CEQ proposed a new inventories, and other information that that an EIS is not required, it typically paragraph (c) to address mitigation, support these conclusions, so long as prepares a FONSI. The FONSI reflects which CEQ includes in the final rule. this information is reasonably available that the agency has engaged in the The first sentence addresses mitigation to the public. necessary review of environmental generally in a FONSI, requiring agencies The presumptive EA page limit impacts under NEPA. The FONSI shows to state the authority for any mitigation promotes more readable documents and that the agency examined the relevant adopted and any applicable monitoring provides agencies flexibility to prepare data and explained the agency findings or enforcement provisions. This longer documents, where necessary, to by providing a rational connection sentence applies to all FONSIs. CEQ support the agency’s analysis. This between the facts presented in the EA omits the ‘‘means of’’ mitigation from presumptive page limit is consistent and the conclusions drawn in the the final rule because it is unnecessary with CEQ’s guidance on EAs, which finding. Any finding should clearly and many commenters misunderstood advises agencies to avoid preparing identify the facts found and the its meaning or found it confusing. The lengthy EAs except in unusual cases conclusions drawn by the agency based second sentence codifies the practice of where a proposal is so complex that a on those facts. mitigated FONSIs, consistent with concise document cannot meet the goals In response to the ANPRM, CEQ CEQ’s Mitigation Guidance.81 This of an EA and where it is extremely received comments requesting that CEQ provision requires the agency to identify difficult to determine whether the update its regulations to consolidate the enforceable mitigation requirements proposal could cause significant effects. provisions and provide more detailed and commitments, which are those Page limits will encourage agencies to requirements for FONSIs. CEQ proposed mitigation requirements and to consolidate the operative language of identify the relevant issues, focus on commitments needed to reduce the 40 CFR 1508.13, ‘‘Finding of no significant environmental impacts, and effects below the level of significance.82 significant impact’’ with 40 CFR 1501.4, prepare concise readable documents When preparing an EA, many agencies ‘‘Whether to prepare an environmental that will inform decision makers as well develop, consider, and commit to impact statement,’’ in the proposed as the public. Voluminous, unfocused mitigation measures to avoid, minimize, § 1501.6, ‘‘Findings of no significant environmental documents do not rectify, reduce, or compensate for impact.’’ CEQ proposed to strike advance the goals of informed decision potentially significant adverse paragraph (a) as the requirements in that making or protection of the environmental impacts that would paragraph are addressed in environment. otherwise require preparation of an EIS. CEQ proposed to add a new paragraph § 1507.3(d)(2) (§ 1507.3(e)(2) in the final An agency can commit to mitigation (f) to § 1501.5 to clarify that agencies rule). As noted in section II.C.5, CEQ also may apply, as appropriate, certain proposed to move 40 CFR 1501.4(b) to 81 The Mitigation Guidance, supra note 29, provisions in part 1502 regarding § 1501.5, ‘‘Environmental assessments.’’ amended and supplemented the Forty Questions, incomplete or unavailable information, Similarly, CEQ proposed to strike 40 supra note 2, specifically withdrawing Question 39 methodology and scientific accuracy, CFR 1501.4(d), because § 1501.9, insofar as it suggests that mitigation measures and environmental review and ‘‘Scoping,’’ addresses this requirement. developed during scoping or in an EA ‘‘[do] not obviate the need for an EIS.’’ consultation requirements to EAs. CEQ CEQ makes these changes in the final 82 As discussed in sections I.B.1 and II.B, NEPA includes this new paragraph at rule. is a procedural statute and does not require § 1501.5(g) in the final rule. CEQ proposed to make 40 CFR adoption of a mitigation plan. However, agencies In addition to the new § 1501.5, CEQ 1501.4(e) the new § 1501.6(a), and revise may consider mitigation measures that would avoid, minimize, rectify, reduce, or compensate for incorporates reference to EAs in other the language to clarify that an agency potentially significant adverse environmental sections of the regulations to codify must prepare a FONSI when it impacts and may require mitigation pursuant to existing agency practice where it would determines that a proposed action will substantive statutes.

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measures for a mitigated FONSI when it involving multiple agencies could slow addition in the final rule. In response to can ensure that the mitigation will be down an already efficient and effective comments, the final rule eliminates the performed, when the agency expects process.84 phrase ‘‘consistent with its that resources will be available, and CEQ proposed to clarify in § 1501.7(d) responsibility as lead agency’’ in when the agency has sufficient legal that requests for lead agency paragraph (h)(2) because it is non- authorities to ensure implementation of designations should be sent in writing specific and could cause agencies to the proposed mitigation measures. CEQ to the senior agency officials of the reject germane and informative does not intend this codification of CEQ potential lead agencies. CEQ makes this scientific research. guidance to create a different standard change in the final rule. CEQ did not CEQ proposed new paragraphs (i) and for analysis of mitigation for a propose any changes to paragraphs (e) (j) in § 1501.7, and (b)(6) and (7) in ‘‘mitigated FONSI,’’ but to provide and (f) of § 1501.7, but makes clarifying § 1501.8, to require development of and clarity regarding the use of FONSIs. edits by reorganizing phrases and adherence to a schedule for the changing the language to active voice in environmental review of and any 7. Lead and Cooperating Agencies authorizations required for a proposed (§§ 1501.7 and 1501.8) the final rule. Consistent with the OFD policy to action, and resolution of disputes and The 1978 CEQ regulations created the ensure coordinated and timely reviews, other issues that may cause delays in roles of lead agency and cooperating CEQ proposed to add a new paragraph the schedule. CEQ includes these agencies for NEPA reviews, which are (g) to § 1501.7 to require that Federal provisions in the final rule with minor critical for actions, such as non-Federal agencies evaluate proposals involving edits for clarity. These provisions are projects, requiring the approval or multiple Federal agencies in a single EIS consistent with current practices at authorization of multiple agencies. and issue a joint ROD 85 or single EA agencies that have adopted elevation Agencies need to coordinate and and joint FONSI when practicable. CEQ procedures pursuant to various statutes synchronize their NEPA processes to adds this paragraph to the final rule and directives, including 23 U.S.C. 139, ensure an efficient environmental with edits to the EA sentence to make FAST–41, and E.O. 13807. In response review that does not cause delays. In the language consistent with the EIS to comments, CEQ includes a new recent years, Congress and several sentence. paragraph (b)(8) in § 1501.8 requiring administrations have worked to CEQ proposed to move language from cooperating agencies to jointly issue establish a more synchronized the cooperating agency provision, 40 environmental documents with the lead procedure for multi-agency NEPA CFR 1501.6(a), that addresses the lead agency, to the maximum extent reviews and related authorizations, agency’s responsibilities with respect to practicable. This addition is consistent including through the development of cooperating agencies to proposed with the goal of interagency cooperation expedited procedures such as the paragraph (h) in § 1501.7 so that all of and efficiency. section 139 process and FAST–41. In the lead agency’s responsibilities are in CEQ proposed to move the operative response to the ANPRM, CEQ received a single section. CEQ also proposed to language that State, Tribal, and local comments requesting that CEQ update clarify in paragraph (h)(4) that the lead agencies may serve as cooperating its regulations to clarify the roles of lead agency is responsible for determining agencies from the definition of and cooperating agencies. the purpose and need, and alternatives cooperating agency (40 CFR 1508.5) to CEQ proposed a number of in consultation with any cooperating paragraph (a) of § 1501.8. Upon the modifications to § 1501.7, ‘‘Lead agencies.86 CEQ makes this move and request of the lead agency, non-Federal agencies,’’ and § 1501.8, ‘‘Cooperating agencies should participate in the agencies,’’ (40 CFR 1501.5 and 1501.6, 84 This is consistent with CEQ’s reports on environmental review process to ensure respectively, in the 1978 regulations) to cooperating agencies, which have shown that use of early collaboration on proposed actions improve interagency coordination, make cooperating agencies for EAs has remained low. where such entities have jurisdiction by Council on Environmental Quality, Attachment A, law or special expertise. CEQ also development of NEPA documents more The Fourth Report on Cooperating Agencies in efficient, and facilitate implementation Implementing the Procedural Requirements of the proposed in paragraph (a) to codify of the OFD policy. As stated in the National Environmental Policy Act (NEPA) 1 (Oct. current practice to allow a Federal NPRM, CEQ intends these modifications 2016), https://ceq.doe.gov/docs/ceq-reports/ agency to appeal to CEQ a lead agency’s Attachment-A-Fourth-Cooperating-Agency-Report_ denial of a request to serve as to improve the efficiency and outcomes Oct2016.pdf (percentage of EAs with cooperating of the NEPA process—including cost agencies was 6.8 percent for Fiscal Years 2012 cooperating agency. Resolving disputes reduction, improved relationships, and through 2015); see also Council on Environmental among agencies early in the process better outcomes that avoid litigation— Quality, Attachment A, The Second Report on furthers the OFD policy and the goal of Cooperating Agencies in Implementing the more efficient and timely NEPA by promoting environmental Procedural Requirements of the National collaboration.83 These modifications are Environmental Policy Act (NEPA) 2 (May 2012), reviews. CEQ makes these changes in consistent with Questions 14a and 14c https://ceq.doe.gov/docs/ceq-reports/Cooperating_ the final rule with minor edits for of the Forty Questions, supra note 2. Agency_Report_2005-11_Attachment_ clarity. Finally, CEQ proposed 23May2012.pdf (percentage of EAs with cooperating clarifications and grammatical edits CEQ proposed to apply §§ 1501.7 and agencies was 5.9 percent for Fiscal Years 2005 1501.8 to EAs as well as EISs consistent through 2011). throughout § 1501.8. CEQ makes these with agency practice. CEQ makes these 85 A ‘‘single ROD,’’ as used in E.O. 13807, is the changes in the final rule. changes in the final rule, but clarifies same as a ‘‘joint ROD,’’ which is a ROD addressing 8. Scoping (§ 1501.9) that the provisions apply to ‘‘complex’’ all Federal agency actions covered in the single EIS and necessary for a proposed project. 40 CFR EAs and not routine EAs where In response to the ANPRM, CEQ 1508.25(a)(3). The regulations would provide received comments requesting that CEQ flexibility for circumstances where a joint ROD is 83 See, e.g., Federal Forum on Environmental impracticable. Examples include the statutory update its regulations related to scoping, Collaboration and Conflict Resolution, directive to issue a combined final EIS and ROD for Environmental Collaboration and Conflict transportation actions and the FERC’s adjudicatory preferred alternative and determining whether to Resolution (ECCR): Enhancing Agency Efficiency process. develop the preferred alternative to a higher level and Making Government Accountable to the People 86 See OFD Framework Guidance, supra note 30, of detail.’’); Connaughton Letter, supra note 29 (May 2, 2018), https://ceq.doe.gov/docs/nepa- sec. VIII.A.5 (‘‘The lead agency is responsible for (‘‘[J]oint lead or cooperating agencies should afford practice/ECCR_Benefits_Recommendations_Report_ developing the Purpose and Need, identifying the substantial deference to the [ ] agency’s articulation %205-02-018.pdf. range of alternatives to be analyzed, identifying the of purpose and need.’’)

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including comments requesting that the scoping process. CEQ finalizes this identifying and eliminating from agencies have greater flexibility in how change as proposed. detailed study non-significant issues, to conduct scoping. CEQ proposed to Paragraph (d) proposed to address the allocating assignments among lead and reorganize in more chronological order, NOI requirements. CEQ proposed a list cooperating agencies, indicating other § 1501.9, ‘‘Scoping,’’ (40 CFR 1501.7 in of what agencies must include in an related NEPA documents, identifying the 1978 regulations), consolidate all the NOI to standardize NOI format, achieve other environmental review requirements for the NOI and the greater consistency across agencies, requirements, and indicating the scoping process into the same section, provide the public with more relationship between the environmental and add paragraph headings to improve information and transparency, and review and decision-making schedule. clarity. CEQ makes these changes in the ensure that agencies conduct the CEQ retains this paragraph in the final final rule with minor edits as described scoping process in a manner that rule as proposed with minor further in this section. facilitates implementation of the OFD grammatical edits. Specifically, CEQ proposed to revise policy for multi-agency actions, paragraph (a) to state the general including by proactively soliciting 9. Time Limits (§ 1501.10) requirement to use scoping for EISs. comments on alternatives, impacts, and In response to the ANPRM, CEQ Rather than requiring publication of an relevant information to better inform received many comments on the lengthy NOI as a precondition to the scoping agency decision making. CEQ makes timelines and costs of environmental process, CEQ proposed to modify these changes in the final rule with reviews, and many suggestions for more paragraph (a) so that agencies can begin minor edits for clarity and edits to meaningful time limits for the the scoping process as soon as the paragraph (d)(7) for consistency with completion of the NEPA process. proposed action is developed §§ 1500.3 and 1502.17 and to correct the Accordingly, and to promote timely sufficiently for meaningful agency cross-reference. reviews, CEQ proposed to establish consideration. Some agencies refer to CEQ proposed to move the criteria for presumptive time limits for EAs and this as pre-scoping under the existing determining scope from the definition of EISs consistent with E.O. 13807 and regulations to capture scoping work scope, 40 CFR 1508.25, to paragraph (e) prior CEQ guidance. In Question 35 of done before publication of the NOI. and to strike the paragraph on the Forty Questions, supra note 2, CEQ Rather than tying the start of scoping to ‘‘cumulative actions’’ for consistency stated its expectation that ‘‘even large the agency’s decision to publish an NOI with the proposed revisions to the complex energy projects would require to prepare an EIS, the timing and definition of ‘‘effects’’ discussed below. only about 12 months for the content of the NOI would instead CEQ makes this change in the final rule, completion of the entire EIS process’’ become an important step in the scoping but does not include the reference to and that, for most major actions, ‘‘this process itself, thereby obviating the ‘‘similar actions’’ in proposed paragraph period is well within the planning time artificial distinction between scoping (e)(1)(ii) because commenters expressed that is needed in any event, apart from and pre-scoping. However, agencies confusion regarding whether the NEPA.’’ CEQ also recognized that ‘‘some should not unduly delay publication of determination of the scope of the projects will entail difficult long-term the NOI and should be transparent environmental documentation, as planning and/or the acquisition of about any work done prior to discussed in proposed certain data which of necessity will publication of the NOI. CEQ makes the § 1501.9(e)(1)(i)(C) was directly related require more time for the preparation of changes as proposed in the final rule. to the discussion of the ‘‘effects of the the EIS.’’ Id. Finally, Question 35 stated Paragraph (b) addresses the action’’ as effects are defined in that an EA ‘‘should take no more than responsibility of the lead agency to § 1508.1(g). To eliminate this confusion, 3 months, and in many cases invite cooperating and participating CEQ strikes the language in proposed substantially less as part of the normal agencies as well as other likely affected § 1501.9(e)(1)(i)(C) (40 CFR analysis and approval process for the or interested persons. CEQ proposed to 1508.25(a)(3)) regarding similar actions. action.’’ add ‘‘likely’’ to this paragraph to capture Further, CEQ notes that, in cases where Based on agency experience with the the reality that, at the scoping stage, the question of the consideration of implementation of the regulations, CEQ agencies may not know the identities of similar actions to determine the scope of proposed in § 1501.10, ‘‘Time limits,’’ to all affected parties and that one of the the NEPA documentation was raised, change the introductory text to purposes of scoping is to identify courts noted the discretionary nature of paragraph (a) and add a new paragraph affected parties. CEQ makes this change the language (use of the word ‘‘may’’ (b) to establish a presumptive time limit in the final rule. In the final rule, CEQ and ‘‘should’’ in proposed for EAs of one year and a presumptive strikes ‘‘on environmental grounds’’ § 1501.9(e)(1)(i)(C) (40 CFR time limit for EISs of two years. from the parenthetical noting that likely 1508.25(a)(3)) and have held that However, the NPRM also proposed that affected or interested persons include determinations as to the scope of a a senior agency official could approve in those who might not agree with the NEPA document based on a writing a longer period. CEQ proposed action because the clause is consideration of similar actions was left to define the start and end dates of the unnecessarily limiting. Agencies should to the agency’s discretion. See e.g., period consistent with E.O. 13807. CEQ invite the participation of those who do Klamath-Siskiyou Wildlands Ctr. v. makes these changes in the final rule. not agree with the action irrespective of Bureau of Land Mgmt., 387 F.3d 989, CEQ eliminates the sentence regarding whether it is on environmental grounds. 1000–01 (9th Cir. 2004). CEQ also notes lead agency from paragraph (a) because The NPRM proposed to move the that the reference to ‘‘other reasonable it is no longer needed given the existing (b)(4) to paragraph (c), ‘‘Scoping courses of action’’ in paragraph (e)(2) revisions to this section changing outreach.’’ CEQ proposed to broaden the are within the judgement of the agency. ‘‘agency’’ to ‘‘senior agency official.’’ In types of activities agencies might hold Agencies have discretion to address response to comments, the final rule during scoping, including meetings, similar actions through a single also adds ‘‘FONSI’’ to paragraph (b)(1) publishing information, and other analysis, pursuant to revised to clarify that the time limit for EAs is means of communication to provide § 1502.4(b). measured from the date of decision to agencies additional flexibility in how to Finally, paragraph (f) addresses other prepare to the publication of an EA or reach interested or affected parties in scoping responsibilities, including FONSI, since agencies may not publish

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the EA separately. The final rule also the decision at the site-specific stage. engagement with applicants for non- clarifies that the time period is CEQ makes these changes with Federal projects. measured from the date the agency additional updates in the final rule. 1. Purpose of Environmental Impact decides to prepare an EA, since Specifically, the final rule splits Statement (§ 1502.1) applicants sometimes prepare EAs on proposed paragraph (a) into two behalf of agencies. paragraphs. In the new paragraph (a), CEQ proposed to revise § 1502.1 for Consistent with CEQ and OMB CEQ changes ‘‘are encouraged to’’ to consistency with the statutory language guidance, agencies should begin scoping ‘‘should’’ and moves to the end of this of NEPA and make other non- and development of a schedule for paragraph the sentence stating that substantive revisions for clarity. CEQ timely completion of an EIS prior to tiering may also be appropriate for makes these changes in the final rule. issuing an NOI and commit to different stages of actions. The new The final rule also retitles this section. cooperate, communicate, share paragraph (b) addresses the relationship 2. Implementation (§ 1502.2) information, and resolve conflicts that between the different levels of tiered 87 CEQ proposed to strike the could prevent meeting milestones. documents, and CEQ makes additional introductory text of § 1502.2 as CEQ recognizes that agency capacity, edits to this paragraph for clarity. including those of cooperating and unnecessary and revise the text in CEQ also proposed to move the paragraphs (a) and (c) for clarity and participating agencies, may affect operative language addressing specific timing, and that agencies should consistency with the language in the examples of when tiering is appropriate rule and regulatory text generally. CEQ schedule and prioritize their resources from the definition of tiering in 40 CFR accordingly to ensure effective makes these changes in the final rule 1508.28 to proposed paragraph (b). CEQ environmental analyses and public with minor clarifying edits. The final moves this language to paragraph (c) in involvement. Further, agencies have rule clarifies in paragraph (d) that, in the final rule with the edits as proposed. flexibility in the management of their preparing an EIS, agencies shall state internal processes to set shorter time 11. Incorporation by Reference how the alternatives considered in it limits and to define the precise start and (§ 1501.12) and decisions based on it serve the end times for measuring the completion purposes of the statute as interpreted in CEQ proposed to move 40 CFR time of an EA. Therefore, CEQ proposed the CEQ regulations. The final rule 1502.21, ‘‘Incorporation by reference,’’ to retain the factors for determining time strikes ‘‘ultimate agency’’ in paragraph to a new § 1501.12 and change limits in paragraph (c). CEQ proposed to (e) because there may be multiple revise paragraph (c)(6) for clarity and ‘‘environmental impact statements’’ to individuals within certain departments strike paragraph (c)(7) regarding ‘‘environmental documents’’ because or agencies that have decision-making controversial actions because it overlaps this provision is applicable generally, responsibilities, including where with numerous other factors, and not just to EISs. CEQ makes this change subunits have developed agency because whether or not an action is in the final rule. CEQ makes additional procedures or NEPA compliance controversial is not relevant to the changes in the final rule to revise programs. analysis under NEPA. CEQ also sentences from passive to active voice. 3. Statutory Requirements for proposed to retain with edits for clarity In response to comments, CEQ adds Statements (§ 1502.3) the list of parts of the NEPA process for examples to the types of material that which the senior agency official may set agencies may incorporate, including CEQ proposed to revise § 1502.3 to time limits in paragraph (d). CEQ retains planning studies and analyses. make it a single paragraph, remove paragraphs (c) and (d) in the final rule D. Revisions to Environmental Impact cross-references to the definition, and with the changes as proposed. Statements (Part 1502) make minor clarifying edits. CEQ makes CEQ proposed conforming edits to these changes in the final rule. § 1500.5(g) to change ‘‘establishing’’ to As stated in the NPRM, the most extensive level of NEPA analysis is an 4. Major Federal Actions Requiring the ‘‘meeting’’ time limits and add Preparation of Environmental Impact ‘‘environmental assessment.’’ CEQ EIS, which is the ‘‘detailed statement’’ Statements (§ 1502.4) makes these edits in the final rule. required under section 102(2)(C) of NEPA. When an agency prepares an EIS, CEQ proposed to revise § 1502.4 to 10. Tiering (§ 1501.11) it typically issues a ROD at the clarify in paragraph (a) that a ‘‘properly CEQ proposed to move 40 CFR conclusion of the NEPA review. Based defined’’ proposal is one that is based 1502.20, ‘‘Tiering,’’ to a new § 1501.11 on the Environmental Protection on the statutory authorities for the and revise it to make clear that this Agency (EPA) weekly Notices of proposed action. CEQ proposed to provision is applicable to both EAs and Availability published in the Federal change ‘‘broad’’ and ‘‘program’’ to EISs. CEQ proposed a number of Register between 2010 and 2019, ‘‘programmatic’’ in this section, as well revisions in § 1501.11 to clarify when Federal agencies published as §§ 1500.4(k) and 1506.1(c), since agencies can use existing studies and approximately 176 final EISs per year. ‘‘programmatic’’ is the term commonly environmental analyses in the NEPA CEQ proposed to update the format, used by NEPA practitioners. The NPRM process and when agencies would need page length, and timeline to complete proposed further revisions to paragraph to supplement such studies and EISs to better achieve the purposes of (b), including eliminating reference to analyses. The revisions clarify that NEPA. CEQ also proposed several programmatic EISs that ‘‘are sometimes agencies do not need to conduct site- changes to streamline, allow for required,’’ to focus the provision on the specific analyses prior to an flexibility in, and improve the discretionary use of programmatic EISs irretrievable commitment of resources, preparation of EISs. CEQ includes in support of clearly defined decision- which in most cases will not be until provisions in part 1502 to promote making purposes. For consistency, CEQ informed decision making by agencies proposed to change the mandatory 87 See OFD Framework Guidance, supra note 30 and to inform the public about the language to be discretionary in proposed (‘‘[w]hile the actual schedule for any given project paragraph (c)(3) (paragraph (b)(1)(iii) in may vary based upon the circumstances of the decision-making process. The final rule project and applicable law, agencies should continues to encourage application of the final rule). As CEQ stated in its 2014 endeavor to meet the two-year goal . . . .’’). NEPA early in the process and early guidance, programmatic NEPA reviews

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‘‘should result in clearer and more 7. Page Limits (§ 1502.7) excess of the page limits should ensure transparent decision[ ]making, as well as In response to the ANPRM, CEQ that the final environmental document provide a better defined and more received many comments on the length, meets the informational needs of the expeditious path toward decisions on complexity, and readability of agency’s decision maker. For example, proposed actions.’’ 88 Other statutes or environmental documents, and many the agency decision makers may have regulations may grant discretion or suggestions for more meaningful page varying levels of capacity to consider otherwise identify circumstances for limits. As the President Carter noted in the information presented in the when to prepare a programmatic EIS. 1977 regarding issuance of E.O. 11991, environmental document. In ensuring See, e.g., National Forest Management ‘‘to be more useful to decision[ ]makers that the agency provides the resources Act, 16 U.S.C. 1604(g); 36 CFR 219.16. and the public, [EISs] must be concise, necessary to implement NEPA, in CEQ makes these changes in the final readable, and based upon competent accordance with § 1507.2, senior agency rule, and reorganizes proposed professional analysis. They must reflect officials should ensure that agency staff have the resources and competencies paragraphs (c) and (d) to be paragraphs a concern with quality, not quantity. We necessary to produce timely, concise, (b)(1) and (2) since these paragraphs all do not want [EISs] that are measured by the inch or weighed by the pound.’’ 89 and effective environmental documents. address programmatic reviews. Finally, Decisions as to page length for these CEQ proposed to add a new sentence to The core purpose of page limits from the original regulations remains— documents are therefore closely related proposed paragraph (d) (paragraph (b)(2) to an agency’s decision as to how to in the final rule) to clarify that when documents must be a reasonable length and in a readable format so that it is structure its decision-making process, conducting programmatic reviews, and for that reason must ultimately agencies may tier their analyses to defer practicable for the decision maker to read and understand the document in a remain within the discretion of the detailed analysis of specific program reasonable time period. If documents agency. elements until they are ripe for are unreasonable in their length or 8. Writing (§ 1502.8) decisions that would involve an unwieldly, there is a risk that they will CEQ did not propose any changes to irreversible or irretrievable commitment not inform the decision maker, thereby § 1502.8. In the final rule, CEQ revises of resources. The final rule removes this undermining the purposes of the Act. this provision to correct grammatical latter clause and simplifies it to As the Supreme Court noted in errors, including revising it from passive elements ‘‘ripe for final agency action’’ Metropolitan Edison Co. v. People to active voice. because NEPA review occurs pursuant Against Nuclear Energy, ‘‘[t]he scope of to the APA and ‘‘final agency action,’’ the agency’s inquiries must remain 9. Draft, Final and Supplemental as construed in Bennett v. Spear, is the manageable if NEPA’s goal of ‘[insuring] Statements (§ 1502.9) test for when judicial review can a fully informed and well-considered CEQ proposed to include headings for commence. See 520 U.S. at 177–78. decision,’ . . . is to be accomplished.’’ each of the paragraphs in § 1502.9, 460 U.S. at 776 (quoting Vt. Yankee, 435 5. Timing (§ 1502.5) ‘‘Draft, final, and supplemental U.S. at 558). Therefore, CEQ proposed to statements,’’ to improve readability. For the reasons discussed in section reinforce the page limits for EISs set CEQ proposed edits to paragraph (b) for II.C.2 and consistent with the edits to forth in § 1502.7, while allowing a clarity, replacing ‘‘revised draft’’ with § 1501.2, CEQ proposed to change senior agency official to approve a ‘‘supplemental draft.’’ CEQ makes these ‘‘shall’’ to ‘‘should’’ in the introductory statement exceeding 300 pages when it changes in the final rule and makes text so that agencies can exercise their is useful to the decision-making process. additional clarifying edits in § 1502.9, best judgement about when to begin the CEQ makes these changes in the final including to revise the language from rule. preparation of an EIS. CEQ also passive to active voice. As captured in CEQ’s updated report proposed to revise paragraph (b) to CEQ also received many comments in on the length of final EISs, these response to the ANPRM requesting clarify that agencies should work with documents average over 600 pages. See potential applicants and applicable clarification regarding when CEQ Length of EISs Report, supra note supplemental statements are required. agencies before applicants submit 38. While the length of an EIS will vary applications. CEQ makes these changes CEQ proposed revisions to paragraph based on the complexity and (d)(1) to clarify that agencies need to in the final rule. Also, as noted in significance of the proposed action and section II.C.7, CEQ revises paragraph (b) update environmental documents when environmental effects the EIS considers, there is new information or a change in in the final rule to only address EISs in every EIS must be bounded by the this section and move the discussion of the proposed action only if a major practical limits of the decision maker’s Federal action remains to occur and EAs to § 1501.5. Finally, CEQ adds ‘‘and ability to consider detailed information. other requirements are met. CEQ makes governments’’ to ‘‘State, Tribal, and CEQ proposed this change to ensure that this change in the final rule. As noted local agencies’’ to be comprehensive agencies develop EISs focused on in the NPRM, this revision is consistent and consistent with similar changes significant effects and on the with Supreme Court case law holding made throughout the rule. information useful to decision makers that a supplemental EIS is required only and the public to more successfully ‘‘[i]f there remains ‘major Federal 6. Interdisciplinary Preparation implement NEPA. (§ 1502.6) CEQ intends for senior agency actio[n]’ to occur, and if the new officials to take responsibility for the information is sufficient to show that CEQ proposed minor edits to § 1502.6 the remaining action will ‘affec[t] the consistent with the global changes quantity, quality, and timelines of environmental analyses developed in quality of the human environment’ in a discussed in section II.A. CEQ includes support of the decisions of their significant manner or to a significant these changes in the final rule and agencies. Therefore, the senior agency extent not already considered . . . .’’ revises this provision from passive to official approving an EA or EIS in Marsh, 490 U.S. at 374 (quoting 42 active voice. U.S.C. 4332(2)(C)); see also Norton v. S. 89 The Environment—Message to the Congress, Utah Wilderness All., 542 U.S. 55, 73 88 Programmatic Guidance, supra note 29, at 7. 1977 Pub. Papers 967, 985 (, 1977). (2004). For example, supplementation

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may be triggered after an agency 11. Cover (§ 1502.11) estimate reflects costs associated with executes a grant agreement but before CEQ proposed to retitle and amend NEPA compliance as well as construction is complete because the § 1502.11 to remove the reference to a compliance with other environmental agency has yet to provide all of the ‘‘sheet’’ since agencies prepare EISs review and authorization requirements. funds under that grant agreement. On electronically. CEQ also proposed to Agencies can develop methodologies for the other hand, when an agency issues add a requirement to include the preparing these cost estimates and a final rule establishing a regulatory estimated cost of preparing the EIS to include them in their implementing scheme, there is no remaining action to the cover in new paragraph (g) to procedures. occur, and therefore supplementation is provide transparency to the public on 12. Summary (§ 1502.12) not required. If there is no further the costs of EIS-level NEPA reviews. To CEQ proposed to change agency action after the agency’s track costs, the NPRM proposed that ‘‘controversy’’ to ‘‘disputed’’ in decision, supplementation does not agencies must prepare an estimate of § 1502.12. CEQ makes this and apply because the Federal agency action environmental review costs, including grammatical changes in the final rule. is complete. S. Utah Wilderness All., costs of the agency’s full-time This change will better align the second 542 U.S. at 73 (‘‘although the ‘[a]pproval equivalent (FTE) personnel hours, clause of the sentence, ‘‘areas of of a [land use plan]’ is a ‘major Federal contractor costs, and other direct costs action’ requiring an EIS . . . that action disputed issues raised by agencies and related to the environmental review of the public,’’ with the final clause of the is completed when the plan is 90 the proposed action. CEQ also sentence, ‘‘and the issues to be resolved approved.... There is no ongoing proposed this amendment to address the ‘major Federal action’ that could require (including the choice among concerns raised by the U.S. Government alternatives).’’ supplementation (though BLM is Accountability Office that agencies are required to perform additional NEPA not tracking the costs of NEPA analyses, 13. Purpose and Need (§ 1502.13) analyses if a plan is amended or revised as well as the many comments CEQ CEQ received a number of comments . . . .)’’) (emphasis in original). received from stakeholders regarding in response to the ANPRM In order to determine whether a the costs associated with development recommending that CEQ better define supplemental analysis is required, CEQ of NEPA analyses.91 CEQ noted in the the requirements for purpose and need proposed a new paragraph (d)(4) to NPRM that including such costs on the statements. The focus of a purpose and provide that an agency may document cover sheet would also be consistent need statement is the purpose and need its determination of whether a with current OMB direction to Federal for the proposed action, and agencies supplemental analysis is required agencies to track costs of environmental should develop it based on consistent with its agency NEPA reviews and authorizations for major consideration of the relevant statutory procedures or may, although it is not infrastructure projects pursuant to E.O. authority for the proposed action. The required, do so in an EA. CEQ adds this 13807 and would provide the public purpose and need statement also paragraph to the final rule, codifying the with additional information regarding provides the framework in which the existing practice of several Federal EIS-level NEPA documents. agency will identify ‘‘reasonable agencies, such as the Department of CEQ adds this new paragraph (g) in alternatives’’ to the proposed action. Transportation’s reevaluation provided the final rule with additional changes to CEQ has advised that this discussion of for highway, transit, and railroad clarify that agencies should provide the purpose and need should be concise projects (23 CFR 771.129); the Bureau of estimate on the final EIS, and that it (typically one or two paragraphs long) Land Management’s Determination of should include the costs of preparing and that the lead agency is responsible NEPA Adequacy (Department of the both the draft EIS and the final EIS. The for its definition. See Connaughton Interior Departmental Manual, Part 516, final rule also adds a sentence to clarify Letter, supra note 29 (‘‘Thoughtful Chapter 11, § 11.6); and the Corps’ that agencies should include the costs of resolution of the purpose and need Supplemental Information Report cooperating and participating agencies if statement at the beginning of the (section 13(d) of Engineering Regulation practicable. If not practicable, agencies process will contribute to a rational 200–2–2). must so indicate. For integrated environmental review process and save documents where an agency is 10. Recommended Format (§ 1502.10) considerable delay and frustration later preparing a document pursuant to in the decision[-]making process.’’). ‘‘In CEQ proposed to revise § 1502.10 to multiple environmental statutory situations involving two or more provide agencies with more flexibility requirements, it may indicate that the agencies that have a decision to make in formatting an EIS given that most for the same proposed action and EISs are prepared and distributed 90 See, e.g., U.S. Department of the Interior, responsibility to comply with NEPA or electronically. Specifically, CEQ Reporting Costs Associated with Developing a similar statute, it is prudent to jointly Environmental Impact Statements (, 2018), proposed to eliminate the requirement https://www.doi.gov/sites/doi.gov/files/uploads/ develop a purpose and need statement to have a list of agencies, organizations dep_sec_memo_07232018_-_reporting_costs_ that can be utilized by both agencies. An and persons to whom copies of the EIS associated_w_developing_environmental_impact_ agreed-upon purpose and need are sent since EISs are published online, statements.pdf. statement at this stage can prevent 91 In a 2014 report, the U.S. Government and an index, as this is no longer Accountability Office found that Federal agencies problems later that may delay necessary when most documents are do not routinely track data on the cost of completion of the NEPA process.’’ Id. produced in an electronically searchable completing NEPA analyses, and that the cost can The lead agency is responsible for format. Proposed changes to this section vary considerably, depending on the complexity developing the purpose and need, and and scope of the project. U.S. Gov’t Accountability would also allow agencies to use a Office, GAO–14–370, National Environmental cooperating agencies should give different format so that they may Policy Act: Little Information Exists on NEPA deference to the lead agency and customize EISs to address the particular Analyses (Apr. 15, 2014) (‘‘GAO NEPA Report’’), identify any substantive concerns early proposed action and better integrate https://www.gao.gov/products/GAO-14-370. The in the process to ensure swift resolution. report referenced the 2003 CEQ task force analysis environmental considerations into referenced above which estimated that a typical EIS See OFD Framework Guidance, sec. agency decision-making processes. CEQ costs from $250,000 to $2 million. See NEPA Task VIII.A.5 and XII, supra note 30; makes these changes in the final rule. Force Report, supra note 28, at p. 65. Connaughton Letter, supra note 29.

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Agencies should tailor the purpose and present the environmental impacts in may serve purposes other than NEPA need statement to meet the comparative form. CEQ makes these compliance, such as evaluation of the authorization requirements of both the changes in the final rule. least environmentally damaging lead and cooperating agencies. In paragraph (a), CEQ proposed to practicable alternative for the discharge Consistent with CEQ guidance and in delete ‘‘all’’ before ‘‘reasonable of dredged or fill material under section response to the ANPRM comments, CEQ alternatives’’ and add ‘‘to the proposed 404(b)(1) of the Clean Water Act, 33 proposed to revise § 1502.13, ‘‘Purpose action’’ afterward for clarity because U.S.C. 1344(b)(1). and need,’’ to clarify that the statement NEPA does not require consideration of The number of alternatives that is should focus on the purpose and need all alternatives and does not provide appropriate for an agency to consider for the proposed action. In particular, specific guidance concerning the range will vary. For some actions, such as CEQ proposed to strike ‘‘to which the of alternatives an agency must consider where the Federal agency’s authority to agency is responding in proposing the for each proposal. Section 102(2)(C) consider alternatives is limited by alternatives including’’ to focus on the provides only that an agency should statute, the range of alternatives may be proposed action. CEQ further proposed, prepare a detailed statement addressing, limited to the proposed action and the as discussed below, to address the among other things, ‘‘alternatives to the no action alternative. For actions where relationship between the proposed proposed action.’’ 42 U.S.C. 4332(2)(C). the Federal authority to consider a range action and alternatives in the definition Section 102(2)(E) requires only that of alternatives is broad, the final EIS of reasonable alternatives and other agencies ‘‘study, develop, and describe itself should consider a broader range of sections that refer to alternatives. appropriate alternatives to reasonable alternatives. However, a Additionally, CEQ proposed to add a recommended courses of action.’’ 42 process of narrowing alternatives is in sentence to clarify that when an agency U.S.C. 4332(2)(E). Implementing this accord with NEPA’s ‘‘rule of reason’’ is responsible for reviewing applications limited statutory direction, CEQ has and common sense—agencies need not for authorizations, the agency shall base long advised that ‘‘[w]hen there are reanalyze alternatives previously the purpose and need on the applicant’s potentially a very large number of rejected, particularly when an earlier goals and the agency’s statutory alternatives, only a reasonable number analysis of numerous reasonable authority. See, e.g., Citizens Against of examples, covering the full spectrum alternatives was incorporated into the Burlington, Inc. v. Busey, 938 F.2d 190, of alternatives, must be analyzed and final analysis and the agency has 196 (D.C. Cir. 1991) (agencies must compared in the EIS.’’ Forty Questions, considered and responded to public consider the relevant factors including supra note 2, at Question 1b. CEQ comment favoring other alternatives. the needs and goals of the applicants makes this change in the final rule and Furthermore, agencies should limit and Congress’ views as expressed in the rephrases paragraph (a) from passive to alternatives to those available to the agency’s statutory authorization). This active voice. decision maker at the time of decision. addition is consistent with the As stated in the NPRM, it is CEQ’s For consistency with this change, definition of reasonable alternatives, view that NEPA’s policy goals are CEQ proposed to strike ‘‘the’’ before which must meet the goals of the satisfied when an agency analyzes ‘‘reasonable alternatives’’ in § 1502.1, applicant, where applicable. CEQ reasonable alternatives, and that an EIS and amend § 1502.16, ‘‘Environmental revises § 1502.13 in the final rule need not include every available consequences,’’ to clarify in proposed consistent with the NPRM proposal. alternative where the consideration of a paragraph (a)(1) that the discussion spectrum of alternatives allows for the must include the environmental impacts 14. Alternatives Including the Proposed selection of any alternative within that of the ‘‘proposed action and reasonable Action (§ 1502.14) spectrum. The reasonableness of the alternatives.’’ CEQ makes these changes CEQ also received many comments on analysis of alternatives in a final EIS is in the final rule. the ANPRM requesting clarification resolved not by any particular number In response to CEQ’s ANPRM, some regarding ‘‘alternatives’’ under the of alternatives considered, but by the commenters urged that the regulations regulations. This section of an EIS nature of the underlying agency action should not require agencies to account describes the proposed action and and by the inherent practical limitations for impacts over which the agency has alternatives in comparative form, of the decision-making process. The no control, including those resulting including their environmental impacts, discussion of environmental effects of from alternatives outside its such that the decision maker and the alternatives need not be exhaustive, but jurisdiction. CEQ proposed to strike 40 public can understand the basis for must provide information sufficient to CFR 1502.14(c) requiring consideration choice. However, as explained in permit a reasoned choice of alternatives of reasonable alternatives not within the § 1502.16, this section of the EIS should for the agency to evaluate available jurisdiction of the lead agency for all not duplicate the affected environment reasonable alternatives including EISs because it is not efficient or and environmental consequences significant alternatives that are called to reasonable to require agencies to sections, and agencies have flexibility to its attention by other agencies, develop detailed analyses relating to combine these three sections in a organizations, communities, or a alternatives outside the jurisdiction of manner that clearly sets forth the basis member of the public.92 As discussed in the lead agency. CEQ removes this for decision making. section II.C.8, to aid agencies in paragraph in the final rule. Further, the CEQ proposed changes to § 1502.14, identification of alternatives, § 1501.9, new definition of ‘‘reasonable ‘‘Alternatives including the proposed ‘‘Scoping,’’ requires agencies to request alternatives’’ excludes alternatives action,’’ to simplify and clarify the identification of potential alternatives in outside the agency’s jurisdiction when language and provide further clarity on the NOI. Analysis of alternatives also they would not be technically feasible the scope of the alternatives analysis in due to the agency’s lack of statutory an EIS. Specifically, CEQ proposed to 92 Additionally, by crafting alternatives, agencies authority to implement that alternative. revise the introductory paragraph to can ‘‘bound’’ different options and develop However, an agency may discuss remove the colloquial language, information on intermediate options that occupy reasonable alternatives not within its the logical space in between different formal including ‘‘heart of’’ the EIS and alternatives. See, e.g., H.A. Simon, ‘‘Bounded jurisdiction when necessary for the ‘‘sharply defining,’’ and clarify that the Rationality,’’ in Utility and Probability (J. Eatwell, agency’s decision-making process such alternatives section of the EIS should M. Milgate, & P. Newman P. eds. 1990). as when preparing an EIS to address

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legislative EIS requirements pursuant to impact (40 CFR 1508.7) would result in address the dangling modifier, ‘‘their § 1506.8 and to address specific less consideration of changes in the significance,’’ in paragraph (a)(1); congressional directives. environment. To the extent correct the usage of ‘‘which’’ and ‘‘that’’ A concern raised by many ANPRM environmental trends or planned throughout; and clarify the language in commenters is that agencies have actions in the area(s) are reasonably paragraph (b). limited resources and that it is foreseeable, the agency should include Further, CEQ proposed to move the important that agencies use those them in the discussion of the affected operative language that addresses when resources effectively. The provisions environment. Consistent with current agencies need to consider economic and inviting commenters to identify agency practice, this also may include social effects in EISs from the definition potential alternatives will help to non-Federal planned activities that are of human environment in 40 CFR inform agencies as to how many reasonably foreseeable. 1508.14 to proposed § 1502.16(b). CEQ alternatives are reasonable to consider, In response to the NPRM, commenters also proposed to amend the language for and allow agencies to assess whether expressed concerns that impacts of clarity, explain that the agency makes any particular submitted alternative is climate change on a proposed project the determination of when reasonable to consider. Analyzing a would no longer be taken into account. consideration of economic and social large number of alternatives, Under the final rule, agencies will effects is interrelated with consideration particularly where it is clear that only consider predictable environmental of natural or physical environmental a few alternatives would be trends in the area in the baseline effects at which point the agency should economically and technically feasible analysis of the affected environment. give appropriate consideration to those and could be realistically implemented Trends determined to be a consequence effects, and strike ‘‘all of’’ as by the applicant, can divert limited of climate change would be unnecessary. CEQ makes these changes agency resources. CEQ invited comment characterized in the baseline analysis of in the final rule. on whether the regulations should the affected environment rather than as 17. Submitted Alternatives, Information, establish a presumptive maximum an effect of the action. Discussion of the and Analyses (§ 1502.17) number of alternatives for evaluation of affected environment should be a proposed action, or alternatively for informative but should not be To ensure agencies have considered certain categories of proposed actions. speculative. the alternatives, information, and CEQ sought comment on (1) specific analyses submitted by the public, 16. Environmental Consequences categories of actions, if any, that should including State, Tribal, and local (§ 1502.16) be identified for the presumption or for governments as well as individuals and exceptions to the presumption; and (2) CEQ proposed to reorganize organizations, CEQ proposed to add a what the presumptive number of § 1502.16, ‘‘Environmental new § 1502.17 to require a new alternatives should be (e.g., a maximum consequences.’’ CEQ proposed to ‘‘submitted alternatives, information, of three alternatives including the no designate the introductory paragraph as and analyses’’ section in draft and final action alternative). CEQ did not receive paragraph (a), move up the sentence that EISs. CEQ includes this new provision sufficient information to establish a it should not duplicate the alternatives in the final rule with some minimum, but adds a new paragraph (f) discussion, and create subordinate modifications to separate the to the final rule to state that agencies paragraphs (a)(1) through (10) for requirements for draft and final EISs, as shall limit their consideration to a clarity. In paragraph (a)(1), CEQ discussed in this section. reasonable number of alternatives. The proposed to consolidate into one To ensure agencies receive and revisions to the regulations to promote paragraph the requirements regarding consider relevant information as early in earlier solicitation of information and effects scattered throughout 40 CFR the process as possible, § 1501.9, identification of alternatives, and timely 1502.16, including paragraphs (a), (b), ‘‘Scoping,’’ requires agencies to submission of comments, will assist and (d), to include a discussion of the specifically solicit such information in agencies in establishing how many effects of the proposed action and their notices of intent. Under § 1502.17, alternatives are reasonable to consider reasonable alternatives. Also consistent agencies must include a summary in the and assessing whether any particular with the definition of effects, CEQ EIS identifying all alternatives, submitted alternative is reasonable to proposed to strike references to direct, information, and analyses the agency consider. indirect, and cumulative effects. The received from State, Tribal, and local combined discussion should focus on governments and other public 15. Affected Environment (§ 1502.15) those effects that are reasonably commenters. In developing the CEQ proposed in § 1502.15, ‘‘Affected foreseeable and have a reasonably close summary, agencies may refer to other environment,’’ to explicitly allow for causal relationship to the proposed relevant sections of the EIS or to combining of affected environment and action, consistent with the proposed appendices. A new paragraph (a)(1) environmental consequences sections to revised definition of effects addressed in requires agencies to append to the draft adopt what has become a common § 1508.1(g). CEQ proposed to move 40 EIS or otherwise publish the comments practice in some agencies. This revision CFR 1502.16(c) and (e) through (h) to be received during scoping and, consistent would ensure that the description of the paragraphs (a)(5) through (9). To align with the proposed rule, paragraph (a)(2) affected environment focuses on those with the statute, CEQ also proposed to requires the lead agency to invite aspects of the environment that the add a new paragraph (a)(10) to provide comment on the summary. Finally, proposed action affects. CEQ makes this that discussion of environmental paragraph (b) requires agencies to change in the final rule. Additionally, consequences should include, where prepare a summary in the final EIS the final rule adds a clause to emphasize applicable, economic and technical based on all comments received on the that the affected environment includes considerations consistent with section draft EIS. reasonably foreseeable environmental 102(2)(B) of NEPA. CEQ makes these CEQ proposed to require in a new trends and planned actions in the changes in the final rule with minor § 1502.18, ‘‘Certification of alternatives, affected areas. This change responds to edits to clarify that ‘‘this section’’ in information, and analyses section,’’ that, comments raising concerns that paragraph (a) refers to the informed by the alternatives, eliminating the definition of cumulative ‘‘environmental consequences’’ section; information, and analyses section

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required under § 1502.17, the decision consistent with CEQ’s description of economic, and other requirements of maker for the lead agency certify that ‘‘overall cost’’ considerations in its 1986 present and future generations of the agency has considered such promulgation of amendments to this Americans. Finally, CEQ revises the information and include the provision.93 CEQ reiterates that the term language for clarity, including changing certification in the ROD under proposed ‘‘overall cost’’ as used in this section from passive to active voice. § 1505.2(e). CEQ moves this provision to includes ‘‘financial costs and other costs § 1505.2(b) in the final rule, as such as costs in terms of time (delay) 23. Methodology and Scientific discussed in further detail in section and personnel.’’ 94 CEQ invited Accuracy (§ 1502.23) II.G.2. comment on whether the ‘‘overall costs’’ CEQ proposed revisions to update of obtaining incomplete of unavailable 18. List of Preparers (§ 1502.18) proposed § 1502.24, which CEQ information warrants further definition redesigantes § 1502.23 in the final rule. CEQ proposed to move ‘‘List of to address whether certain costs are or The NPRM proposed to broaden this preparers’’ from § 1502.17 to § 1502.19 are not ‘‘unreasonable.’’ CEQ does not provision to environmental documents to accommodate the two new sections include any definition in the final rule. and CEQ makes this change in the final addressing submitted alternatives, For clarity and in response to rule. CEQ proposed to clarify that information, and analyses. The final comments, the final rule inserts ‘‘but agencies must make use of reliable rule moves this section to § 1502.18 and available’’ in paragraph (b) to clarify makes minor revisions to change the that agencies will continue to be existing data and resources when they language from passive to active voice required to obtain available information are available and appropriate. CEQ also and remove the erroneous cross- essential to a reasoned choice between proposed to revise this section to allow references. alternatives where the overall costs are agencies to draw on any source of information (such as remote sensing and 19. Appendix (§ 1502.19) not unreasonable and the means of obtaining that information are known.95 statistical modeling) that the agency CEQ proposed to move ‘‘Appendix’’ New scientific or technical research is finds reliable and useful to the decision- from § 1502.18 to § 1502.20 and revise unavailable information and is making process. As noted in the NPRM, the language for clarity. The final rule addressed in § 1502.23. Where the these changes will promote the use of moves this provision to § 1502.19 with overall costs are unreasonable or means reliable data, including information additional clarifying revisions. The final of obtaining the information are not gathered using modern technologies. rule also adds a new paragraph (d) to known, agencies will continue to be CEQ makes these changes in the final reflect the potential appendix for required to disclose in the EIS that rule with minor changes. The final rule scoping comments on alternatives, information is incomplete or revises the sentence regarding placing information, and analyses pursuant to unavailable and provide additional the discussion of methodology in an § 1502.17(a)(1) and a new paragraph (e) information to assist in analyzing the appendix from singular to plural for for the potential appendix of draft EIS reasonably foreseeable significant consistency with the rest of the language comments pursuant to §§ 1503.1 and adverse impacts. However, § 1502.23 in this section. In response to 1503.4(b). does not require agencies to undertake comments, CEQ moves the proposed 20. Publication of the Environmental new scientific and technical research to sentence regarding new scientific and Impact Statement (§ 1502.20) inform their analyses. technical research to a new sentence at the end of the section and adds a CEQ proposed to move ‘‘Circulation Finally, CEQ proposed to eliminate 40 CFR 1502.22(c) addressing the sentence clarifying that nothing in this of the environmental impact statement’’ provision is intended to prohibit from § 1502.19 to § 1502.21 and retitle it applicability of the 1986 amendments to this section because this paragraph is agencies from compliance with the ‘‘Publication of the environmental requirements of other statutes pertaining impact statement.’’ CEQ moves this to obsolete. CEQ does not include this to scientific and technical research. § 1502.20 in the final rule. CEQ provision in the final rule. Agencies must continue to conduct proposed to modernize this provision, 22. Cost-Benefit Analysis (§ 1502.22) surveys and collect data where required changing circulate to publish and CEQ did not propose changes to the by other statutes. eliminating the option to circulate the cost-benefit analysis section other than summary of an EIS given that agencies an update to the citation. In the final 24. Environmental Review and electronically produce most EISs. CEQ rule, CEQ moves this provision from Consultation Requirements (§ 1502.24) proposed to require agencies to transmit § 1502.23 to § 1502.22 and adds a the EIS electronically, but provide for CEQ proposed to revise this section to parenthetical after ‘‘section 102(2)(B) of paper copies by request. CEQ makes clarify that agencies must integrate, to NEPA’’ that paraphrases the statutory these changes in the final rule. the fullest extent possible, their NEPA text relating to considering unquantified analysis with all other applicable 21. Incomplete or Unavailable environmental amenities and values Federal environmental review laws and Information (§ 1502.21) along with economic and technical Executive orders in furtherance of the CEQ proposed several revisions to considerations. This is consistent with OFD policy established by E.O. 13807 proposed § 1502.22, ‘‘Incomplete or the policy established in section 101(a), and to make the environmental review unavailable information,’’ which CEQ which also refers to fulfilling the social, process more efficient.96 CEQ redesignates as § 1502.21 in the final 93 redesignates this section in the final rule rule. Specifically, CEQ proposed to 51 FR at 15622 (Apr. 25, 1986). 94 Id. to § 1502.24, updates a statutory further subdivide the paragraphs for 95 See, e.g. Pub. Citizen, 541 U.S. at 767 (‘‘Also, clarity and strike the word ‘‘always’’ inherent in NEPA and its implementing regulations 96 The Permitting Council has compiled a list of from paragraph (a) as unnecessarily is a ‘rule of reason,’ which ensures that agencies environmental laws and Executive orders that may limiting and inconsistent with the rule determine whether and to what extent to prepare apply to a proposed action. See Federal an EIS based on the usefulness of any new potential Environmental Review and Authorization of reason, and replaced the term information to the decision[-]making process.’’); see Inventory, https://www.permits.performance.gov/ ‘‘exorbitant’’ with ‘‘unreasonable’’ in also Marsh, 490 U.S. at 373–74 (agencies should tools/federal-environmental-review-and- paragraphs (b) and (c), which is apply a ‘‘rule of reason’’). authorization-inventory.

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citation, and revises the text as CEQ also proposed to add a new to consider the comment in its decision- proposed. paragraph (a)(3) that requires agencies to making process. See Pub. Citizen, 541 specifically invite comment on the U.S. at 764; Vt. Yankee, 435 U.S. at 553 E. Revisions to Commenting on completeness of the submitted (while ‘‘NEPA places upon an agency Environmental Impact Statements (Part alternatives, information and analyses the obligation to consider every 1503) section (§ 1502.17). CEQ includes this significant aspect of the environmental Section 102(2)(C) of NEPA requires new paragraph in the final rule with impact of a proposed action, it is still that agencies obtain views of Federal revisions to clarify that agencies should incumbent upon [parties] who wish to agencies with jurisdiction by law or invite comments on the submitted participate to structure their expertise with respect to any alternatives, information, and analyses participation so that it is meaningful, so environmental impact, and also directs generally as well as the summary that it alerts the agency to the [parties’] that agencies make copies of the EIS and required under § 1502.17, rather than on position . . . .’’). CEQ also proposed in the comments and views of appropriate the completeness of the summary, as this paragraph that comments should Federal, State, and local agencies proposed. Interested parties who may explain why the issues raised are available to the President, CEQ and the seek to challenge the agency’s decision significant to the consideration of public. 42 U.S.C. 4332(2)(C). Part 1503 have an affirmative duty to comment potential environmental impacts and of the CEQ regulations include during the public review period in order alternatives to the proposed action, as provisions relating to inviting and for the agency to consider their well as economic and employment responding to comments. CEQ proposed positions. See Vt. Yankee, 435 U.S. at impacts, and other impacts affecting the to modernize part 1503 given modern 553. quality of the human environment. In technologies not available at the time of In paragraph (b), CEQ proposed to addition, CEQ proposed in this the 1978 regulations. In particular, the require agencies to provide a 30-day paragraph that comments should proposed regulations encouraged comment period on the final EIS’s reference the section or page of the draft agencies to use the current methods of submitted alternatives, information and EIS, propose specific changes to those electronic communication both to analyses section. As noted in the parts of the statement, where possible, publish important environmental discussion of § 1500.3(b) in section and include or describe the data sources information and to structure public II.B.3, CEQ does not include this and methodologies supporting the participation for greater efficiency and requirement in the final rule. However, proposed changes. See Vt. Yankee, 435 inclusion of interested persons. the final rule adds language that if an U.S. at 553 (‘‘[Comments] must be Additionally, CEQ proposed changes to agency requests comments on a final EIS significant enough to step over a encourage commenters to provide before the final decision, the agency threshold requirement of materiality information early and to require should set a deadline for such before any lack of agency response or comments to be as specific as possible comments. This provides agencies the consideration becomes a concern. The to ensure agencies can consider them in flexibility to request comments on a comment cannot merely state that a their decision-making process. CEQ final EIS. Agencies may use this option particular mistake was made . . . ; it finalizes many of the proposed changes where it would be helpful to inform the must show why the mistake was of with modifications as this section agency’s decision making process. possible significance in the results Finally, CEQ proposed a new discusses in further detail. . . . .’’ (quoting Portland Cement Ass’n paragraph (c) to require agencies to v. Ruckelshaus, 486 F.2d 375, 394 (D.C. 1. Inviting Comments and Requesting provide for commenting using Cir. 1973)). CEQ includes these changes Information and Analyses (§ 1503.1) electronic means while ensuring in the final rule to ensure that agencies accessibility to those who may not have CEQ proposed to retitle and revise are alerted to all interested and affected such access to ensure adequate notice parties’ concerns, but changes § 1503.1, ‘‘Inviting comments and and opportunity to comment. CEQ requesting information and analyses,’’ to ‘‘significant’’ to ‘‘important’’ issues in includes this proposed paragraph in the the second sentence to avoid confusion better reach interested and affected final rule. parties and ensure agencies receive the with significant effects. Nothing in these relevant information they need to 2. Duty To Comment (§ 1503.2) revisions should be construed to limit complete their analyses. CEQ proposed Section 1503.2, ‘‘Duty to comment,’’ public comment to those members of to revise paragraphs (a)(2)(i) and (ii) to addresses the obligations of other the public with scientific or technical include State, Tribal and local agencies agencies to comment on an EIS. CEQ expertise, and agencies should continue and governments to be comprehensive proposed to clarify that this provision to solicit comment from all interested and consistent with the addition of applies to cooperating agencies and and affected members of the public. ‘‘Tribal’’ as discussed in section II.A. agencies authorized to develop and Consistent with the goal of promoting a CEQ proposed to eliminate the obsolete enforce environmental standards. CEQ manageable process and a meaningful reference to OMB Circular A–95 from makes this change in the final rule and focus on pertinent issues, CEQ also paragraph (a)(2)(iii) and move makes additional revisions to change clarifies that commenters should submit paragraphs (a)(3) and (4) to (a)(2)(iv) and the language from passive to active information and raise issues as early in (v), respectively, since these are voice. the process as possible, including additional parties from which agencies during scoping to the extent practicable. should request comments. CEQ also 3. Specificity of Comments and Commenters should timely submit all proposed in paragraph (a)(2)(v) to give Information (§ 1503.3) comments and make their comments as agencies flexibility to tailor their public CEQ proposed to revise paragraph (a) specific as possible to promote informed involvement process to more effectively and retitle § 1503.3, ‘‘Specificity of and timely decision making. reach interested and affected parties by comments and information,’’ to explain CEQ also proposed a new paragraph soliciting comments ‘‘in a manner that the purposes of comments is to (b) to emphasize that comments on the designed to inform’’ parties interested or promote informed decision making and submitted alternatives, information, and affected ‘‘by the proposed action.’’ CEQ further clarify that comments should analyses section should identify any makes these changes in the final rule. provide sufficient detail for the agency additional alternatives, information, or

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analyses not included in the draft EIS, includes these changes with some public. Where appropriate, EPA may and should be as specific as possible. modifications in the final rule. exercise its authority under section The proposal required comments and Specifically, CEQ changes 309(b) of the Clean Air Act and refer the objections to be raised within 30 days of ‘‘individually’’ to ‘‘individual’’ and matter to CEQ, as stated in paragraph publication of the notice of availability ‘‘collectively’’ to ‘‘groups of comments’’ (b). The final rule revises this paragraph of the final EIS and noted that to clarify that agencies may respond to for clarity, changing it from passive to comments and objections not provided individual comments or group and active voice. Paragraph (c) provides that within those 30 days are considered respond once to a group of comments other Federal agencies also may prepare exhausted and forfeited under addressing the same issue. CEQ also such reviews. In the NPRM, CEQ § 1500.3(b). In the final rule, CEQ modifies paragraph (a) introductory text proposed to change ‘‘may make’’ to includes this paragraph with some to make clear that the list in paragraphs ‘‘may produce’’ in this paragraph. The changes. The final rule provides that (a)(1) through (5) is how the agency may final rule changes this phrase to ‘‘may comments should be on the submitted respond to comments. Finally, CEQ prepare’’ since ‘‘prepare’’ is the alternatives, information, and analyses adds a clause to paragraph (a)(5) to commonly used verb in these themselves as well as the summary that reinforce that agencies do not have to regulations. § 1502.17 requires and be as specific as respond to each comment individually. 2. Criterial for Referral (§ 1504.2) possible. It further provides that Under the 1978 regulations, agencies comments and objections on the draft have had flexibility in how they CEQ proposed to change ‘‘possible’’ to EIS must be raised within the comment structure their responses to comments, ‘‘practicable’’ in the introductory period provided by the agency, and CEQ does not consider this paragraph of § 1504.2, ‘‘Criteria for consistent with § 1506.11. The final rule clarification to be a change in position. referral.’’ CEQ makes this change in the does not include the 30-day comment CEQ proposed to clarify in paragraph final rule as discussed in section II.A. period, as discussed in sections II.B.3 (b) that agencies must append Consistent with the NEPA statute, CEQ and II.E.1; however, it provides that if comments and responses to EISs rather proposed to add economic and technical the agency requests comments on the than including them in the body of the considerations to paragraph (g) of final EIS, comments and objections EIS, or otherwise publish them. Under § 1504.2, ‘‘Criteria for referrals.’’ CEQ must be raised within the comment current practice, some agencies include includes this change in the final rule. period. The final rule also provides that these comment responses in the EISs 3. Procedure for Referrals and Response comments and objections not provided themselves, which can contribute to (§ 1504.3) within the relevant comment periods excessive length. See CEQ Length of are considered unexhausted and EISs Report, supra note 38. CEQ makes In § 1504.3, ‘‘Procedure for referrals forfeited under § 1500.3(b). this change in the final rule. As noted and response,’’ CEQ proposed changes CEQ proposed to change in the NPRM, these changes do not to simplify and modernize the referral ‘‘commenting’’ agency to preclude an agency from summarizing process to ensure it is timely and ‘‘participating’’ agency in paragraph (c), or discussing specific comments in the efficient. CEQ proposed to change the and ‘‘entitlements’’ to ‘‘authorizations’’ EIS as well. language in this section from passive to in paragraph (d). CEQ makes these Finally, CEQ proposed to amend active voice and make other clarifying changes in the final rule. Finally, CEQ paragraph (c) for clarity. CEQ makes the edits to the language. CEQ includes proposed to broaden paragraph (e) to proposed changes and additional these changes with some additional require cooperating agencies with clarifying edits in the final rule. clarifying edits in the final rule. jurisdiction by law to specify the Specifically, in paragraphs (a)(1) and mitigation measures they consider F. Revisions to Pre-Decisional Referrals (2), CEQ changes ‘‘advise’’ and ‘‘such necessary for permits, licenses, or to the Council of Proposed Federal advice’’ to ‘‘notify’’ and ‘‘a notification’’ related requirements, including the Actions Determined To Be respectively. CEQ proposed to eliminate applicable statutory authority. CEQ Environmentally Unsatisfactory (Part the exception in paragraph (a)(2) for includes this change in the final rule 1504) statements that do not contain adequate because it will provide greater CEQ proposed edits to part 1504, information to permit an assessment of transparency and clarity to the lead ‘‘Pre-decisional Referrals to the Council the matter’s environmental agency and the public when mitigation of Proposed Federal Actions Determined acceptability. CEQ removes this clause is required under another statute. to be Environmentally Unsatisfactory,’’ in the final rule. The referring agency to improve clarity, including should provide the lead agency and 4. Response to Comments (§ 1503.4) grammatical corrections. CEQ also CEQ with as much information as In practice, the processing of proposed to reference specifically EAs possible, including identification of comments can require substantial time in this part. Although infrequent, when the information is inadequate to and resources. CEQ proposed to amend agencies have made referrals to CEQ on permit an assessment. In paragraph § 1503.4, ‘‘Response to comments,’’ to EAs. CEQ also proposed a minor (a)(4), CEQ changes ‘‘such advice’’ to simplify and clarify in paragraph (a) that revision to the title of part 1504, striking ‘‘the referring agency’s views’’ in the agencies are required to consider ‘‘Predecision’’ and inserting ‘‘Pre- final rule to clarify what the referring substantive comments timely submitted decisional.’’ CEQ makes these changes agency is sending to CEQ. during the public comment period. CEQ in the final rule. In paragraph (b), CEQ proposed to also proposed to clarify that an agency change ‘‘commenting agencies’’ to may respond to comments individually 1. Purpose (§ 1504.1) ‘‘participating agencies,’’ a change CEQ or collectively. Consistent with this Section 1504.1, ‘‘Purpose,’’ addresses proposed throughout the rule, and to revision, CEQ proposed to clarify that, the purpose of part 1504, including CEQ add a timeframe for referrals of EAs. in the final EIS, agencies may respond referrals by the EPA. Section 309 of the CEQ makes these changes in the final by a variety of means, and to strike the Clean Air Act (42 U.S.C. 7609) requires rule. CEQ proposed to strike from detailed language in paragraph (a)(5) EPA to review and comment on certain paragraph (c)(1) the clause requiring the relating to comments that do not proposed actions of other Federal referral request that no action be taken warrant further agency response. CEQ agencies and to make those comments to implement the matter until CEQ takes

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action. CEQ removes this clause in the 2. Record of Decision in Cases Requiring CEQ modifies the proposed text of final rule because it is unnecessarily Environmental Impact Statements § 1502.18 in the final rule and in limiting. Agencies should have the (§ 1505.2) paragraph (b) of § 1505.2 to clarify that flexibility to determine what they are the decision maker’s certification in the requesting of the lead agency when CEQ proposed to redesignate the ROD is informed by the summary of making a referral, which may include a introductory paragraph of § 1505.2, submitted alternatives, information, and request not to take any action on the ‘‘Record of decision in cases requiring analyses in the final EIS and any other matter. environmental impact statements,’’ as material in the record that the decision paragraph (a) and revise it to require CEQ proposed to change ‘‘material maker determines to be relevant. This agencies to ‘‘timely publish’’ a ROD. includes both the draft and final EIS as facts in controversy’’ to ‘‘disputed CEQ also proposed to clarify that the material facts’’ in paragraph (c)(2)(i) for well as any supporting materials CEQ regulations allow for ‘‘joint’’ RODs incorporated by reference or appended clarity and to simplify paragraph by two or more Federal agencies; this (c)(2)(iii) to focus on the reasons for the to the document. The final rule also change is also consistent with the OFD changes ‘‘conclusive presumption’’ to a referral, which may include that the policy and E.O. 13807. Finally, CEQ matter is environmentally ‘‘presumption’’ and clarifies that the proposed to remove references to OMB agency is entitled to a presumption that unsatisfactory. CEQ proposed to revise Circular A–95 as noted previously in paragraph (d)(2) to emphasize that the it has considered the submitted section II.A. alternatives, information, and analyses, lead agency’s response should include CEQ proposed clarifying edits to including the summary thereof in the both evidence and explanations, as proposed paragraphs (a) and (c) final EIS. Establishing a rebuttable appropriate. CEQ proposed to revise (paragraphs (a)(1) and (3) in the final presumption will give appropriate paragraph (e) to simplify the process rule) to change from passive to active weight to the process that culminates in and to provide direction to applicants voice for clarity. The final rule makes the certification, while also allowing regarding the submittal of their views to these changes in paragraphs (a)(1), (2), some flexibility in situations where the CEQ. CEQ proposed to strike the and (3) in the final rule. The final rule essential information may have been reference to public meetings or hearings also removes ‘‘all’’ before ‘‘alternatives’’ inadvertently overlooked. The in paragraph (f)(3) to provide more in paragraph (a)(2) for consistency with presumption and associated exhaustion flexibility to CEQ in how it obtains the same change in § 1502.14(a). requirement also will encourage additional views and information, commenters to provide the agency with which could include a public meeting CEQ proposed to include a all available information prior to the or hearing. However, there may be requirement in proposed paragraph (d) agency’s decision, rather than disclosing other, more effective mechanisms to to require agencies to respond to any information after the decision is made collect such information, including comments on the submitted alternatives, or in subsequent litigation. This is through use of current technologies. information, and analyses section in the important for the decision-making CEQ makes these changes in the final final EIS. As discussed in sections II.B.3 process and efficient management of rule. and II.E.1, CEQ does not include the proposed 30-day comment period in the agency resources. Finally, CEQ proposed to modify final rule; therefore, CEQ is not paragraph (h) to clarify that the referral 3. Implementing the Decision (§ 1505.3) including proposed § 1505.2(d) in the process is not a final agency action that final rule. CEQ proposed minor edits to § 1505.3, is judicially reviewable and to remove ‘‘Implementing the decision’’ to change the requirement that referrals be In the NPRM, proposed paragraph (e) ‘‘commenting’’ agencies to conducted consistent with the APA would require the ROD to include the ‘‘participating’’ in paragraph (c) and where a statute requires that an action decision maker’s certification regarding ‘‘make available to the public’’ to be determined on the record after an consideration of the submitted ‘‘publish’’ in paragraph (d). CEQ makes opportunity for a hearing. Where other alternatives, information, and analyses these changes in the final rule. statutes govern the referral process, section, which proposed § 1502.18 H. Revisions to Other Requirements of those statutes continue to apply, and required. The final rule replaces what NEPA (Part 1506) these regulations do not need to was proposed paragraph (e) with the speculate about what process might be language moved from proposed CEQ proposed a number of edits to required. Therefore, CEQ eliminates this § 1502.18, ‘‘Certification of alternatives, part 1506 to improve the NEPA process language in the final rule and replaces information, and analyses section,’’ in to make it more efficient and flexible, it with the clarification that the referral paragraph (b). In the NPRM, § 1502.18 especially where actions involve third- process does not create a private right of stated that, based on the alternatives, party applicants. CEQ also proposed action because, among other information, and analyses section several edits for clarity. CEQ finalizes considerations, there is no final agency required under § 1502.17, the decision many of these proposed changes in the action. maker for the lead agency must certify final rule with some additional that the agency has considered such clarifying edits. G. Revisions to NEPA and Agency information and include the Decision Making (Part 1505) certification in the ROD under 1. Limitations on Actions During NEPA Process (§ 1506.1) 1. Remove and Reserve Agency § 1505.2(d) (as proposed). This Decisionmaking Procedures (§ 1505.1) provision also proposed a conclusive CEQ proposed to add FONSIs to presumption that the agency has paragraph (a) of § 1506.1, ‘‘Limitations In the NPRM, CEQ proposed to move considered information summarized in on actions during NEPA process,’’ to the text of 40 CFR 1505.1, ‘‘Agency that section because it is reasonable to clarify existing practice and judicial decisionmaking procedures,’’ to presume the agency has considered determinations that the limitation on § 1507.3(b). As discussed further in such information based on the process actions applies when an agency is section II.I.3, CEQ makes this change in to request and summarize public preparing an EA as well as an EIS. CEQ the final rule and reserves § 1505.1 for comments on the submitted alternatives, proposed to consolidate paragraph (d) future use. information, and analyses. with paragraph (b) and revise the

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language to provide additional clarity final rule makes further changes to agency’s determination that its CE on what activities are allowable during paragraph (b) to remove potential applies to an action if the adopting the NEPA process. Specifically, CEQ impediments for agency use of studies, agency’s proposed action is proposed to eliminate reference to one analysis, and decisions developed by substantially the same. CEQ includes specific agency, broadening the State, Tribal, and local government this provision in paragraph (d) of the provision to all agencies and providing agencies. Some commenters stated that final rule with clarifying edits. The final that this section does not preclude CEQ proposed to limit agency use to rule provides agencies the flexibility to certain activities by an applicant to only environmental studies, analysis, adopt another agency’s determination support an application of Federal, State, and decisions and exclude socio- that a CE applies to an action when the Tribal, or local permits or assistance. As economic and other information. The actions are substantially the same to an example of activities an applicant final rule clarifies that agencies should address situations where a proposed may undertake, CEQ proposed to add make broad use of studies, analysis, and action would result in a CE ‘‘acquisition of interests in land,’’ which decisions prepared by State, Tribal, and determination by one agency and an EA includes acquisitions of rights-of-way local agencies, as appropriate based on and FONSI by another agency. For and conservation easements. CEQ other requirements including § 1502.23. example, this would be the case when invited comment on whether it should Finally, CEQ proposed to clarify in two agencies are engaging in similar make any additional changes to paragraph (d) that NEPA does not activities in similar areas like small- § 1506.1, including whether there are require reconciliation of inconsistencies scale prescribed burns, ecological circumstances under which an agency between the proposed action and State, restoration, and small-scale land may authorize irreversible and Tribal, or local plans or laws, although management practices. Another irretrievable commitments of resources. the EIS should discuss the example is when one agency’s action CEQ finalizes this provision as proposed inconsistencies. CEQ makes these may be a funding decision for a with minor grammatical changes, and revisions in the final rule. proposed project, and another agency’s simplifying the references in paragraphs 3. Adoption (§ 1506.3) action is to consider a permit for the (c) introductory text and (c)(2) from same project. programmatic environmental impact CEQ proposed to expand adoption to To allow agencies to use one another’s ‘‘statement’’ to ‘‘review.’’ EAs, consistent with current practice by CEs without the agency that many agencies, and CE determinations 2. Elimination of Duplication With promulgated the CE having to take an and clarify the process for documenting action, CEQ also proposed a new State, Tribal, and Local Procedures the decision to adopt. CEQ includes (§ 1506.2) § 1507.3(e)(5), which would allow these proposed changes in the final rule agencies to establish a process in their CEQ proposed revisions to § 1506.2, with additional revisions to align the NEPA procedures to apply another ‘‘Elimination of duplication with State, language for consistency in each agency’s CE. CEQ notes that there was Tribal, and local procedures’’ to paragraph and better organize § 1506.3 some confusion among commenters promote efficiency and reduce by grouping the provisions relating to regarding the difference between the duplication between Federal and State, EISs into paragraph (b), EAs in adoption of CEs under § 1506.3 and the Tribal, and local requirements. These paragraph (c), and CE determinations in provision in § 1507.3(f)(5) (proposed changes are consistent with the paragraph (d). § 1507.3(e)(5)).97 CEQ has made President’s directive in E.O. 13807 to Paragraph (a) includes the general clarifying edits to address this provide for agency use, to the maximum requirement for adoption, which is that any adoption must meet the standard for confusion. extent permitted by law, of The adoption process in § 1506.3(d) an adequate EIS, EA, or CE environmental studies, analysis, and first requires that an agency has applied determination, as appropriate, under the decisions in support of earlier Federal, a CE listed in its agency NEPA CEQ regulations. CEQ proposed to State, Tribal, or local environmental procedures. Then, the adopting agency reference EAs in this paragraph. The reviews or authorization decisions. E.O. must verify that its proposed action is 13807, sec. 5(e)(i)(C). CEQ proposed to final rule includes CE determinations as substantially the same as the action for revise paragraph (a) to acknowledge the well as EAs and reorders the documents which it is adopting the CE increasing number of State, Tribal, and for consistency with the ordering of determination. CEQ adds a sentence in local governments conducting NEPA paragraphs (b) through (d)—EISs, EAs § 1507.3(f)(5) of the final rule to clarify reviews pursuant to assignment from (including portions of EISs or EAs), and that agencies may establish a separate Federal agencies. See, e.g., 23 U.S.C. CE determinations. process for using another agency’s listed 327, and 25 U.S.C. 4115 and 5389(a). CEQ proposed clarifying edits in CE and applying the CE to its proposed CEQ makes this change in the final rule. paragraph (b) and changed references actions. The final rule also requires the The revision in paragraph (a) clarifies from recirculation to republication adopting agency to document the that Federal agencies are authorized to consistent with this change throughout cooperate with such State, Tribal, and the rule. In the final rule, CEQ adoption. Agencies may publish, where local agencies, and paragraph (b) subdivides paragraph (b) into appropriate, such documentation or requires cooperation to reduce subordinate paragraphs (b)(1) and (2). other information relating to the duplication. Paragraph (b)(1) addresses EISs where adoption. CEQ proposed to add examples to the adopting agency is not a cooperating 4. Combining Documents (§ 1506.4) paragraph (b) to encourage use of prior agency. CEQ moves the cooperating CEQ proposed to amend § 1506.4, reviews and decisions and modify agency exception to republication to ‘‘Combining documents,’’ to encourage paragraph (c) to give agencies flexibility paragraph (b)(2). Consistent with the agencies ‘‘to the fullest extent to determine whether to cooperate in proposed rule, this paragraph also practicable’’ to combine their fulfilling State, Tribal, or local EIS or clarifies that the cooperating agency environmental documents with other similar requirements. CEQ includes adopts such an EIS by issuing its own these proposed changes in the final rule ROD. 97 For a discussion of the differences between and reorders the language to provide In the NPRM, proposed paragraph (f) these two provisions, see section I.3 of the Final additional clarity. Additionally, the would allow an agency to adopt another Rule Response to Comments.

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agency documents to reduce duplication agency’s use in preparing an consistent with the title of the section. and paperwork. For example, the Corps environmental document or to direct an Additionally, the final rule adds a routinely combines EISs with feasibility applicant or authorize a contractor to sentence to these paragraphs to require reports, and agencies may use their prepare an environmental document agencies to consider interested and NEPA documents to satisfy compliance under the agency’s supervision. As affected parties’ access to electronic with section 106 of the National Historic noted in the NPRM, CEQ intends these media, such as in rural locations or Preservation Act under 36 CFR 800.8. changes to improve communication economically distressed areas. CEQ had CEQ includes the proposed revisions in between proponents of a proposal for proposed to state in a new paragraph the final rule with no changes. agency action and the officials tasked (b)(3)(x) that notice may not be limited with evaluating the effects of the action 5. Agency Responsibility for solely to electronic methods for actions and reasonable alternatives, to improve Environmental Documents (§ 1506.5) occurring in an area with limited access the quality of NEPA documents and to high-speed internet. However, CEQ is As discussed in the NPRM, CEQ efficiency of the NEPA process. including this more general statement in proposed to revise § 1506.5, ‘‘Agency Paragraph (b)(1) requires agencies to paragraph (b) as it is a consideration for responsibility for environmental provide guidance to the applicant or notice generally. In paragraph (b)(1), documents,’’ in response to ANPRM contractor and participate in the CEQ proposed to change the comments urging CEQ to allow greater preparation of the NEPA document. requirement to mail notice in flexibility for the project sponsor Paragraph (b)(2) continues to require the paragraphs (b)(1) and (2) to the more (including private entities) to participate agency to independently evaluate the general requirement to ‘‘notify’’ to give in the preparation of NEPA documents information or environmental document agencies the flexibility to use email or under the supervision of the lead and take responsibility for its accuracy, other mechanisms to provide such agency. CEQ proposed updates to give scope, and contents. Paragraph (b)(3) notice. CEQ makes this change in the agencies more flexibility with respect to requires the agency to include the final rule. CEQ also eliminates the the preparation of environmental names and qualifications of the persons requirement in paragraph (b)(2) to documents while continuing to require who prepared the environmental maintain a list of organizations agencies to independently evaluate and document. Adding ‘‘qualifications’’ is reasonably expected to be interested in take responsibility for those documents. consistent with § 1502.18 and is actions with effects of national concern Under the proposal, applicants and important for transparency. For an EIS, because such a requirement is contractors would be able to assume a this information would be included in unnecessarily prescriptive given that greater role in contributing information the list of preparers as required by agencies may collect and organize and material to the preparation of § 1502.18, but agencies have flexibility contact information for organizations environmental documents, subject to on where to include such information in that have requested regular notice in the supervision of the agency. However, an EA. Paragraph (b)(4) requires another format given advances in agencies would remain responsible for contractors or applicants preparing EAs technology. In the proposed rule, CEQ taking reasonable steps to ensure the or EISs to submit a disclosure statement proposed to change paragraph (b)(3)(i) accuracy of information prepared by to the lead agency specifying any to modify State clearinghouses to State applicants and contractors. If a financial or other interest in the and local agencies, and change contractor or applicant prepares the outcome of the action, but it need not paragraph (b)(3)(ii) to affected Tribal document, proposed paragraph (c)(1) include privileged or confidential trade governments. In the final rule, CEQ would require the decision-making secrets or other confidential business modifies paragraph (b)(3)(i) to include agency official to provide guidance, information. In the NPRM, CEQ had notice to State, Tribal, and local participate in the preparation, proposed to remove the requirement for agencies, and paragraph (b)(3)(ii) to independently evaluate the statement, a disclosure statement. In response to include notice to interested or affected and take responsibility for its content. comments, CEQ is retaining this concept State, Tribal, and local governments for In the final rule, CEQ retains these in the final rule, recognizing that most consistency with § 1501.9 and part concepts, but reorganizes § 1506.5 to applicants will have such a financial 1503. CEQ proposed a new paragraph better communicate the requirements. interest. However, as discussed above, (b)(3)(x) to allow for notice through Specifically, paragraph (a) contains a CEQ finds that it is appropriate to allow electronic media. CEQ includes this clear statement that the Federal agency applicants to prepare documents for the is ultimately responsible for the sake of efficiency and because agencies provision in the final rule, moving the environmental document irrespective of retain responsibility to oversee and take language regarding consideration of who prepares it. While this is consistent responsibility for the final access to paragraph (b), as noted with the 1978 regulations, CEQ provides environmental document. previously. this direct statement at the beginning of In addition to the changes described the section to respond to comments that 6. Public Involvement (§ 1506.6) above, CEQ proposed to strike the suggested agencies would be handing CEQ proposed to update § 1506.6, mandatory criteria in paragraph (c) for over their responsibilities to project ‘‘Public involvement,’’ to give agencies consideration of when to hold or sponsors under the proposed rule. greater flexibility to design and sponsor public hearings or meetings. Paragraph (b) introductory text and its customize public involvement to best CEQ is removing this language in the subordinate paragraphs capture the meet the specific circumstances of their final rule because such criteria are requirements when a project sponsor or proposed actions. The NPRM proposed unnecessarily limiting. Agencies contractor prepares an environmental revisions to paragraphs (b) and (c) to consider many factors in determining document, consolidating requirements add ‘‘other opportunities for public the most appropriate mechanism for for EISs and EAs into one because there engagement’’ to recognize that there are promoting public involvement, is no longer a distinction between the other ways to engage with interested including the particular location of the requirements for each document in this and affected parties besides hearings proposed action (if one exists), the types context. Paragraph (b) allows an agency and meetings. CEQ finalizes these of effects it may have, and the needs of to require an applicant to submit changes in the final rule but changes interested and affected parties, and may environmental information for the ‘‘engagement’’ to ‘‘involvement’’ design their outreach in a manner that

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best engages with those parties. The prepare legislative EISs for Congress one or more requirements of this flexibility to consider relevant factors is when they are proposing specific subchapter, the agency may substitute it critical especially in light of unexpected actions. CEQ also invited comment on for the corresponding requirements in circumstances, such as the COVID–19 whether the legislative EIS requirement this subchapter and need not carry out pandemic, which may require agencies should be eliminated or modified duplicative procedures or to adapt their outreach as required by because the President proposes documentation. Agencies must identify State, Tribal, and local authorities and legislation, and therefore it is which corresponding requirements in conditions. inconsistent with the Recommendations this subchapter are satisfied and consult Finally, CEQ proposed to simplify Clause of the U.S. Constitution, which with CEQ to confirm such paragraph (f) to require agencies to make provides the President shall recommend determinations. EISs, comments and underlying for Congress’ consideration ‘‘such CEQ invited comments on analyses documents available to the public [m]easures as he shall judge necessary agencies are already conducting that, in consistent with the Freedom of and expedient . . . .’’ U.S. Const., art. whole or when aggregated, can serve as Information Act (FOIA), removing the II, § 3. The President is not a Federal the functional equivalent of the EIS. provisos regarding interagency agency, 40 CFR 1508.12, and the Aspects of the cost-benefit analysis memoranda and fees. Congress has proposal of legislation by the President prepared pursuant to E.O. 12866, amended FOIA numerous times since is not an agency action. Franklin v. ‘‘Regulatory Planning and Review,’’ the the enactment of NEPA, mostly recently Mass., 505 U.S. 788, 800–01 (1992). Regulatory Flexibility Act, or the by the FOIA Improvement Act of 2016, In the final rule, CEQ retains the Unfunded Mandates Reform Act, may Public Law 114–185, 130 Stat. 538. provision, but removes the reference to overlap with aspects of the CEQ Additionally, the revised paragraph (f) providing ‘‘significant cooperation and regulations. Further, an agency may rely is consistent with the text of section support in the development’’ of on the procedures implementing the 102(2)(C) of NEPA, including with legislation and the test for significant requirements of a variety of statutes and regard to fees. CEQ makes these changes cooperation to more closely align this Executive orders that could meet some as proposed in the final rule. provision with the statute. The final rule or all of the requirements of this clarifies that technical drafting subchapter. CEQ does not expressly 7. Further Guidance (§ 1506.7) assistance is not a legislative proposal include specific analyses in the final CEQ proposed to update and under these regulations. Consistent with rule that satisfy the requirements of the modernize § 1506.7, ‘‘Further these edits, CEQ strikes the reference to CEQ regulations. In all instances, guidance,’’ to remove the specific the Wilderness Act. The mandate has agencies should clearly identify how references to handbooks, memoranda, expired.99 Under the Wilderness Act, a and which specific parts of the analyses and the 102 monitor, and replace it with study was required to make a serve the purpose of NEPA compliance, a statement that CEQ may provide recommendation to the President. If the including which requirements in the further guidance concerning NEPA and President agreed with the CEQ regulations are satisfied. its procedures consistent with E.O. recommendation, the President then 13807 and E.O. 13891, ‘‘Promoting the provided ‘‘advice’’ to Congress about 10. Filing Requirements (§ 1506.10) Rule of Law Through Improved Agency making a wilderness determination. The CEQ proposed to update § 1506.10, Guidance Documents.’’ 98 CEQ makes President is not subject to NEPA in his ‘‘Filing requirements,’’ to remove the these changes in paragraph (a) in the direct recommendations to Congress, obsolete process for filing paper copies final rule. This rule supersedes but agencies subject to the APA are of EISs with EPA and EPA’s delivery of preexisting CEQ guidance and materials subject to NEPA, as appropriate, a copy to CEQ, and instead provide for in many respects. CEQ intends to concerning legislative proposals they electronic filing, consistent with EPA’s publish a separate notice in the Federal develop. This avoids the constitutional procedures. CEQ proposed this change Register listing guidance it is issue. See Ashwander v. Tenn. Valley to provide flexibility to adapt as EPA withdrawing. CEQ will issue new Auth., 297 U.S. 288, 347 (1936) changes its processes. CEQ revises this guidance, as needed, consistent with the (Brandeis, J., concurring); Rescue Army section in the final rule, making the final rule and Presidential directives. In v. Mun. Court of L.A., 331 U.S. 549, 569 proposed changes as well as phrasing the interim, in any instances where an (1947). the language in active voice. interpretation of the 1978 regulations is 9. Proposals for Regulations (§ 1506.9) 11. Timing of Agency Action (§ 1506.11) inconsistent with the new regulations or this preamble’s interpretation of the CEQ proposed to add a new § 1506.9, CEQ proposed to revise paragraph (a) new regulations, the new regulations ‘‘Proposals for regulations,’’ to address of § 1506.11, ‘‘Timing of agency action,’’ and interpretations shall apply, and the analyses required for rulemakings to clarify the timing of EPA’s notices of CEQ includes a new paragraph (b) in the and to promote efficiency and reduce availability of EISs. In paragraph (b), final rule to provide this clarification. duplication in the assessment of CEQ proposed to add a clause to CEQ notes that guidance does not have regulatory proposals. CEQ proposed acknowledge statutory authorities that the force and effect of law and is meant criteria for agencies to identify analyses provide for the issuance of a combined to provide clarity regarding existing law that could serve as the functional final EIS and ROD. See 23 U.S.C. and policy. equivalent of the EIS. In response to 139(n)(2); 49 U.S.C. 304a(b). CEQ makes comments, CEQ revises this section in these changes in the final rule. 8. Proposals for Legislation (§ 1506.8) the final rule. This section clarifies that In proposed paragraph (c), CEQ CEQ proposed to move the legislative one or more procedures and proposed to add introductory text and EIS requirements from the definition of documentation prepared pursuant to create subordinate paragraphs to legislation in 40 CFR 1508.17 to other statutory or Executive order address those situations where agencies paragraph (a) of § 1506.8, ‘‘Proposals for requirements may satisfy one or more may make an exception to the time legislation,’’ and revise the section for requirements of the CEQ regulations. provisions in paragraph (b). clarity. As noted in the NPRM, agencies When a procedure or document satisfies Specifically, paragraph (c)(1) addresses agencies with formal appeals processes. 98 84 FR 55235 (Oct. 15, 2019). 99 16 U.S.C. 1132(b)–(c). Paragraph (c)(2) provides exceptions for

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rulemaking to protect public health or its website.101 CEQ makes this change in agencies to account for the contributions safety. Paragraph (d) addresses timing the final rule. of these other parties in complying with NEPA. This section also requires when an agency files the final EIS 13. Effective Date (§ 1506.13) within 90 days of the draft EIS. Finally, agencies to have their own capacity to paragraph (e) addresses when agencies Finally, CEQ proposed to modify comply with NEPA and the may extend or reduce the time periods. § 1506.13, ‘‘Effective date,’’ to clarify implementing regulations. This includes The proposed rule made edits to clarify that these regulations would apply to all staff with the expertise to independently the language in these paragraphs NEPA processes begun after the evaluate environmental documents, effective date, but agencies have the without changing the substance of the including those prepared by applicants discretion to apply them to ongoing and contractors. CEQ makes these provisions. CEQ includes these changes NEPA processes. CEQ also proposed to clarifying edits in the final rule. in the final rule and makes additional remove the 1979 effective date from the Additionally, CEQ proposed to revise clarifying revisions. introductory paragraph, and strike 40 paragraph (a) to make the senior agency 12. Emergencies (§ 1506.12) CFR 1506.13(a) referencing the 1973 official responsible for overall agency guidance and 40 CFR 1506.13(b) compliance with NEPA, including Section 1506.12, ‘‘Emergencies,’’ regarding actions begun before January coordination, communication, and addresses agency compliance with 1, 1970 because they are obsolete. This resolution of implementation issues. NEPA when an agency has to take an final rule makes these changes. CEQ is finalizing this change. Under the action with significant environmental final rule, the senior agency official is I. Revisions to Agency Compliance (Part effects during emergency circumstances. an official of assistant secretary rank or 1507) Over the last 40 years, CEQ has higher (or equivalent) with developed significant experience with CEQ proposed modifications to part responsibilities consistent with the NEPA in the context of emergencies and 1507, which addresses agency responsibilities of senior agency disaster recoveries. Actions following compliance with NEPA, to consolidate officials in E.O. 13807 to whom agencies Hurricanes Katrina, Harvey, and provisions relating to agency procedures elevate anticipated missed or extended permitting timetable milestones. The Michael, and other natural disasters, from elsewhere in the CEQ regulations, and add a new section to address the senior agency official is responsible for have given CEQ the opportunity to dissemination of information about addressing disputes among lead and respond to a variety of circumstances agency NEPA programs. CEQ makes cooperating agencies and enforcing page where alternative arrangements for these changes in the final rule with and time limits. The senior agency complying with NEPA are necessary. some modifications to the proposed rule official also is responsible for ensuring CEQ has approved alternative as discussed in the following sections. all environmental documents—even arrangements to allow a wide range of exceptionally lengthy ones—are proposed actions in emergency 1. Compliance (§ 1507.1) provided to Federal agency decision circumstances including catastrophic CEQ proposed a change to § 1507.1, makers in a timely, readable, and useful wildfires, threats to species and their ‘‘Compliance,’’ to strike the second format. See §§ 1501.5(f), 1501.7(d), habitat, economic crisis, infectious sentence regarding agency flexibility in 1501.8(b)(6) and (c), 1501.10, 1502.7, disease outbreaks, potential dam adapting its implementing procedures to 1507.2, 1508.1(dd). failures, and insect infestations.100 CEQ the requirements of other applicable CEQ proposed to amend paragraph (c) proposed to amend § 1506.12, laws for consistency with changes to to emphasize agency cooperation, which ‘‘Emergencies,’’ to clarify that paragraphs (a) and (b) of § 1507.3, includes commenting on environmental alternative arrangements are still meant ‘‘Agency NEPA procedures.’’ This documents on which an agency is to comply with section 102(2)(C)’s change is also consistent with the cooperating. CEQ makes this change in requirement for a ‘‘detailed statement.’’ direction of the President to Federal the final rule. CEQ revises paragraph (d) This amendment is consistent with agencies to ‘‘comply with the in response to comments to strike the CEQ’s longstanding position that it has regulations issued by the Council except second sentence, which created no authority to exempt Federal agencies where such compliance would be confusion regarding the reach of section from compliance with NEPA, but that inconsistent with statutory 102(2)(E) of NEPA. Finally, CEQ CEQ can appropriately provide for requirements.’’ E.O. 11514, as amended proposed to add references to E.O. 11991, which amended E.O. 11514, and exceptions to specific requirements of by E.O. 11991, sec. 2(g). CEQ makes this E.O. 13807 in paragraph (f) to codify CEQ’s regulations to address change in the final rule. Under the final agencies’ responsibility to comply with extraordinary circumstances that are not rule, § 1507.1 requires all Federal the orders. CEQ makes both of these addressed by agency implementing agencies to comply with the CEQ changes in the final rule. procedures previously approved by regulations as set forth in parts 1500 CEQ. See Emergencies Guidance, supra through 1508. 3. Agency NEPA Procedures (§ 1507.3) note 29. CEQ maintains a public 2. Agency Capability To Comply Agency NEPA procedures set forth the description of all pending and (§ 1507.2) process by which agencies comply with completed alternative arrangements on CEQ proposed edits to the NEPA and the CEQ regulations in the introductory paragraph of § 1507.2, context of their particular programs and 100 In response to the economic crisis associated ‘‘Agency capability to comply,’’ to processes. In developing their with the coronavirus outbreak, Executive Order procedures, agencies should strive to 13927, titled ‘‘Accelerating the Nation’s Economic clarify its meaning, which is to allow Recovery From the COVID–19 Emergency by agencies to use the resources (including identify and apply efficiencies, such as Expediting Infrastructure Investments and Other personnel and financial resources) of use of applicable CEs, adoption of prior Activities,’’ was issued on , 2020. 85 FR other parties, including agencies and NEPA analyses, and incorporation by 35165. This Executive order directs agencies to reference to prior relevant Federal, identify planned or potential actions to facilitate the applicants, and to specifically require Nation’s economic recovery, including State, Tribal, and local analyses, identification of actions that may be subject to 101 https://ceq.doe.gov/nepa-practice/alternative_ wherever practicable. To facilitate emergency treatment as alternative arrangements. arrangements.html. effective and efficient procedures, CEQ

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proposed to consolidate all of the deadline—the deadline is calculated regulations. CEQ proposed to eliminate requirements for agency NEPA from the effective date, not the the recommendation to agencies to issue procedures in § 1507.3, as discussed in publication date. CEQ notes that this explanatory guidance and the detail below. provision references ‘‘proposed requirement to review their policies and In the final rule, CEQ adds a new procedures,’’ and agencies need not procedures. CEQ makes this change in paragraph (a) to clarify the applicability finalize them by this date. The final rule the final rule because it is redundant to of these regulations in the interim strikes a balance between minimizing the proposed language in paragraph (b) period between the effective date of the the disruption to ongoing environmental requiring agencies to update their final rule and when the agencies reviews while also requiring agencies to procedures to implement the final rule. complete updates to their agency NEPA revise their procedures in a timely The NPRM proposed to move the procedures for consistency with these manner to ensure future reviews are provisions in § 1505.1, ‘‘Agency regulations. Consistent with § 1506.13, consistent with the final rule. Agencies decision making procedures,’’ to ‘‘Effective date,’’ which makes the have the flexibility to address the proposed § 1507.3(b). The final rule regulations applicable to NEPA reviews requirements of the CEQ regulations as moves these provisions to paragraph (c). begun after the effective date of the final they relate to their programs and need As stated in the NPRM, consistent with rule, paragraph (a) of § 1507.3 requires not state them verbatim in their the proposed edits to § 1500.1, CEQ agencies to apply these regulations to procedures. In addition, CEQ proposed proposed to revise this paragraph to new reviews unless there is a clear and to clarify that, except as otherwise clarify that agencies should ensure fundamental conflict with an applicable provided by law or for agency decisions are made in accordance with statute. For NEPA reviews in process efficiency, agency NEPA procedures the Act’s procedural requirements and that agencies began before the final shall not impose additional procedures policy of integrating NEPA with other rule’s effective date, agencies may or requirements beyond those set forth environmental reviews to promote choose whether to apply the revised in the CEQ regulations. CEQ includes efficient and timely decision making. regulations or proceed under the 1978 this language in the final rule, changing CEQ includes these edits in the final regulations and their existing agency the order of the phrases, changing rule, along with an additional edit to NEPA procedures. Agencies should ‘‘provided by law’’ to ‘‘required by law’’ change passive to active voice. CEQ clearly indicate to interested and to enhance clarity, and adding a cross- does not include proposed paragraph affected parties which procedures it is reference to paragraph (c), which (b)(1) (40 CFR 1505.1(a)) in the final rule applying for each proposed action. The references efficiencies. This change is because the phrase ‘‘[i]mplementing final rule does not require agencies to consistent with the direction of the procedures under section 102(2) of withdraw their existing agency NEPA President to Federal agencies in E.O. NEPA to achieve the requirements of procedures upon the effective date, but 11514 to comply with the CEQ section 101 and 102(1)’’ could be read agencies should conduct a consistency regulations issued except where such to suggest that agencies could interpret review of their procedures in order to compliance would be inconsistent with NEPA in a manner that would impose proceed appropriately on new proposed statutory requirements. E.O. 11514, as more burdens than the requirements of actions. amended by E.O. 11991, sec. 2(g). the final rule. Including this provision Paragraph (a) also provides that Finally, the final rule eliminates the in the final rule would be inconsistent agencies’ existing CEs are consistent sentence from 40 CFR 1507.3(a) with the language in paragraph (b) that with the subchapter. CEQ adds this limits agency NEPA procedures to the prohibiting agencies from paraphrasing language to ensure CEs remain available requirements in these regulations unless the CEQ regulations because it is for agencies’ use to ensure a smooth otherwise required by law or for agency unnecessarily limiting on agencies. transition period while they work to efficiency. Finally, CEQ corrects the Agencies have the flexibility to address update their existing agency procedures, reference in paragraph (c)(4) to EIS, the requirements of the CEQ regulations including their CEs, as necessary. This changing it to ‘‘environmental as they relate to their programs and change allows agencies to continue to documents’’ consistent with the rest of need not state them verbatim in their use their existing CEs for ongoing the paragraph. activities as well as proposed actions procedures. CEQ proposed a new paragraph (b)(6) that begin after the effective date of the Consistent with its proposal, the final to direct agencies to set forth in their CEQ final rule, and clarifies that rule requires agencies to develop or NEPA procedures requirements to revisions to existing CEs are not revise, as necessary, proposed combine their NEPA documents with required within 12 months of the procedures to implement these other agency documents, especially publication date of the final rule. regulations. In the NPRM, CEQ where the same or similar analyses are Agencies must still consider whether proposed to subdivide 40 CFR 1507.3(a) required for compliance with other extraordinary circumstances are present into subordinate paragraphs (a)(1) and requirements. As stated in the NPRM, and should rely upon any extraordinary (2) for additional clarity because each of many agencies implement statutes that circumstances listed in their agency these paragraphs have an independent call for consideration of alternatives to NEPA procedures as an integral part of requirement. CEQ finalizes this change the agency proposal, including the no an agency’s process for applying CEs. as paragraphs (b)(1) and (2) in the final action alternative, the effects of the In paragraph (b) (proposed paragraph rule. Paragraph (b)(1) addresses the agencies’ proposal and alternatives, and (a)), CEQ proposed to provide agencies requirement for agencies to consult with public involvement. Agencies can use the later of one year after publication of CEQ when developing or revising their NEPA procedures to align the final rule or nine months after the proposed procedures. Paragraph (b)(2) compliance with NEPA and these other establishment of an agency to develop requires agencies to publish proposed statutory authorities to integrate NEPA’s or revise proposed agency NEPA agency NEPA procedures for public goals for informed decision making with procedures, as necessary, to implement review and comment. After agencies agencies’ specific statutory the CEQ regulations and eliminate any address these comments, CEQ must requirements. This approach is inconsistencies with the revised determine that the agency NEPA consistent with some agency practice. regulations. CEQ includes this sentence procedures conform to and are See, e.g., 36 CFR part 220; Forest in the final rule with a correction to the consistent with NEPA and the CEQ Service Handbook 1909.15 (U.S.

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Department of Agriculture Forest rule uses ‘‘should’’ instead of ‘‘may’’ to reviews conducted under other statutes. Service NEPA procedures). More encourage agencies to make these This allows for altering time periods to agencies could use it to achieve greater identifications in their agency NEPA facilitate issuance of a combined FEIS efficiency and reduce unnecessary procedures. The final rule also replaces and ROD. Additionally, CEQ proposed duplication. Additionally the NPRM ‘‘actions’’ with ‘‘activities or decisions’’ to move the language allowing agencies proposed to allow agencies to designate to avoid confusion with the definition of to adopt procedures to combine their EA analyses or processes that serve as the ‘‘action’’ in § 1508.1(q). CEQ includes process with their scoping process from functional equivalent of NEPA this list in the final rule consistent with 40 CFR 1501.7(b)(3) to paragraph (e)(4). compliance. the changes in § 1501.1 as discussed in CEQ makes this change in the final rule CEQ includes this provision in the section II.C.1, with minor revisions to at paragraph (f)(4). final rule at paragraph (c)(5) with improve readability and a reordering of Finally, CEQ proposed in paragraph revisions to clarify that agencies may the provisions consistent with the (e)(5) to allow agencies to establish a designate and rely on one or more reordering of the provisions in § 1501.1. process in their agency NEPA procedures or documents under other Paragraph (e) (proposed paragraph procedures to apply the CEs of other statutes or Executive orders as satisfying (d)) maintains much of the language agencies. CEQ also invited comment on some or all of the requirements in the from 40 CFR 1507.3(b). CEQ proposed to whether to set forth this process in these CEQ regulations. While courts have held add parenthetical descriptions of the regulations. In the final rule, CEQ that agencies do not need to conduct cross-references in proposed paragraph includes the provision to allow agencies NEPA analyses under a number of (d)(1), and CEQ includes these in the to establish a process in paragraph (f)(5) statutes that are ‘‘functionally final rule at paragraph (e)(1). CEQ with some changes. CEQ includes equivalent,’’ including the Clean Air proposed to revise paragraph (d)(2)(ii), clarifying language to address the Act, the Ocean Dumping Act, the which requires agencies to identify CEs confusion commenters had as to Federal Insecticide, Fungicide, and in their agency NEPA procedures, move differences between this section and Rodenticide Act, the Resource the requirement for extraordinary adoption of a CE determination under Conservation and Recovery Act, and the circumstances from the definition of § 1506.3. An agency’s process must Comprehensive Environmental CEs in 40 CFR 1508.4, and require provide for consultation with the agency Response, Compensation, and Liability agencies to identify in their procedures that listed the CE in its NEPA Act,102 the final rule recognizes that when documentation of a CE procedures to ensure that the planned agencies may substitute processes or determination is required. CEQ also use of the CE is consistent with the documentation prepared pursuant to proposed to add language to proposed originating agency’s intent and other statutes or Executive orders to paragraph (e) to codify existing agency practice.103 The process should ensure satisfy one or more requirements in the practice to publish notices when an documentation of the consultation and CEQ regulations to reduce duplication. agency pauses an EIS or withdraws an identify to the public those CEs the Agencies must identify the respective NOI. CEQ includes this provision with agency may use for its proposed actions. requirements in this subchapter that are the proposed revisions in the final rule Consistent with § 1507.4, agencies could satisfied by other statutes or Executive at paragraph (f)(3). Finally, CEQ post such information on their websites. orders. proposed to move from 40 CFR Then, an agency may apply the CE to its Furthermore, CEQ proposed to add a 1502.9(c)(3) to proposed paragraph proposed actions, including proposed new paragraph to allow agencies to (d)(3) the requirement to include projects or activities or groups of identify activities or decisions that are procedures for introducing a proposed projects or activities. not subject to NEPA, consistent with supplement into its formal 4. Agency NEPA Program Information § 1501.1, in their agency NEPA administrative record and clarify that (§ 1507.4) procedures. CEQ adds this provision to this includes EAs and EISs. CEQ paragraph (d) in the final rule. The final includes this provision in the final rule CEQ proposed to add a new § 1507.4, at paragraph (e)(3). ‘‘Agency NEPA program information,’’ 102 See Portland Cement Ass’n, 486 F.2d at 387 Paragraphs (f)(1) through (3) to provide the means of publishing (finding an exemption from NEPA for Clean Air Act (proposed paragraphs (e)(1) through (3)) information on ongoing NEPA reviews section 111); see also Envtl. Def. Fund, Inc, 489 F.2d and agency records relating to NEPA at 1254–56 (concluding that the standards of FIFRA maintain much of the language from 40 provide the functional equivalent of NEPA); CFR 1507.3(c) through (e). In proposed reviews. CEQ is finalizing this provision Cellular Phone Taskforce, 205 F.3d at 94–95 paragraph (e)(1), CEQ proposed to revise as proposed with no changes. As stated (concluding that the procedures followed by the the language to active voice and in the NPRM, this provision requires Federal Communications Commission were functionally compliant with NEPA’s EA and FONSI encourage, rather than just allow, agencies in their NEPA procedures to requirements); W. Neb. Res. Council, 943 F.2d at agencies to organize environmental provide for a website or other means of 871–72 (concluding that EPA’s procedures and documents in such a way as to make publishing certain information on analysis under the Safe Drinking Water Act were unclassified portions of environmental ongoing NEPA reviews and maintaining functionally equivalent to NEPA); Wyo. v. Hathaway, 525 F.2d 66, 71–72 (10th Cir. 1975) documents available to the public. CEQ and permitting public access to agency (concluding that EPA need not prepare an EIS makes these revisions in the final rule records relating to NEPA reviews. before cancelling or suspending registrations of in paragraph (f)(1). CEQ also modifies Section 1507.4 promotes transparency three chemical toxins used to control coyotes under paragraph (f)(2) to add a reference to the and efficiency in the NEPA process, and FIFRA); State of Ala. ex rel. Siegelman v. U.S. EPA, improves interagency coordination by 911 F.2d 499, 504–05 (11th Cir. 1990) (holding that requirements of lead and cooperating EPA did not need to comply with NEPA when agencies. CEQ adds this example issuing a final operating permit under the Resource consistent with the addition to 103 The use of another agency’s CE under a Conservation and Recovery Act); Envtl. Def. Fund, § 1506.11(b) referencing statutory process in the agency’s NEPA procedures is an Inc. v. Blum, 458 F. Supp. 650, 661–62 (D.D.C. option separate from the adoption, under 1978) (EPA need not prepare an EIS before granting provisions for combining a final EIS and § 1506.3(f), of another agency’s determination that an emergency exemption to a state to use an ROD. This is also consistent with CEQ’s its CE applies to a particular action that is unregistered pesticide); State of Md. v. Train, 415 goal of improving coordination between substantially the same as the adopting agency’s F. Supp. 116, 121–22 (D. Md. 1976) (Ocean lead and cooperating agencies and proposed action. An agency may adopt another Dumping Act functional equivalent of NEPA). For agency’s CE determination for a particular action further discussion, see section J.3 of the Final Rule providing efficient processes to allow regardless of whether its procedures provide a Response to Comments. for integration of the NEPA review with process for application of other agencies’ CEs.

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ensuring that information is more rests directly on interpretive choices ordinary meaning of the terms used by readily available to other agencies and made in the 1978 regulations or on cases Congress in the statute. the public. As discussed in the NPRM, that themselves through some chain of As discussed in the NPRM, CEQ opportunities exist for agencies to prior cases also trace to the 1978 proposed significant revisions to part combine existing geospatial data, regulations. Yet consistent with 1508. CEQ proposed to move the including remotely sensed images, and Chevron, CEQ’s NEPA regulations are operative language, which is regulatory analyses to streamline environmental subject to change. See also Brand X, 545 language that provides instruction or review and better coordinate U.S. 967. guidance, included throughout the development of environmental CEQ’s intention to make use of its regulations in this section to the documents for multi-agency projects, interpretive authority under Chevron is relevant substantive sections of the consistent with the OFD policy. One particularly applicable as to part 1508 regulations. Consistent with this change, option involves creating a single NEPA where CEQ defines or revises key terms CEQ proposed to retitle part 1508 from application that facilitates consolidation in the NEPA statute and the CEQ ‘‘Terminology and Index’’ to of existing datasets and can run several regulations. As a result, this confers on ‘‘Definitions.’’ 106 CEQ also proposed to relevant geographic information system CEQ an even greater degree of latitude clarify the definitions of a number of (GIS) analyses to help standardize the to elucidate the meaning of the statute’s key NEPA terms in order to reduce production of robust analytical results. terms in these regulations—the same ambiguity, both through modification of This application could have a public- basic authority exercised by CEQ back existing definitions and the addition of facing component modeled along the in 1978 in the original form of the NEPA new definitions. CEQ proposed to lines of EPA’s NEPAssist,104 which regulations. See, e.g., Demski v. U.S. eliminate individual section numbers would aid prospective project sponsors Dep’t of Labor, 419 F.3d 488, 491 (6th for each term in favor of a single section with site selection and project design Cir. 2005) (‘‘In the absence of a of defined terms in the revised § 1508.1. and increase public transparency. The congressional definition or an explicit Finally, CEQ proposed to remove application could link to the Permitting delegation of congressional authority to citations to the specific definition Dashboard to help facilitate project the agency, we determine how the sections throughout the rule. CEQ tracking and flexibilities under agency responsible for implementing makes these changes in the final rule. §§ 1506.5 and 1506.6. CEQ invited the statute . . . understands the term, 1. Clarifying the Meaning of ‘‘Act’’ comment on this proposal, including and, under Chevron . . . we determine comment on whether additional whether such an understanding is a CEQ proposed in paragraph (a) to add regulatory changes could help facilitate ‘reasonable interpretation’ of the ‘‘NEPA’’ as a defined term with the streamlined GIS analysis to help statute.’’ (citing Chevron, 467 U.S. at same meaning as ‘‘Act.’’ CEQ makes this agencies comply with NEPA. While 844)); London v. Polishook, 189 F.3d change in the final rule. 196, 200 (2d Cir. 1999) (‘‘[J]udicial some commenters supported the 2. Definition of ‘‘Affecting’’ development of a single NEPA deference does apply to the guidelines application, others identified challenges that [the] Department’s Office of Labor– CEQ did not propose to make any to ensuring databases are useful, as well Management Standards Enforcement change to the defined term ‘‘affecting’’ as privacy and security concerns. CEQ has developed and set out in its LMRDA in paragraph (b). CEQ does not make did not receive sufficient comment to Interpretive Manual § 030.425— any changes to this definition in the lead CEQ to make additional regulatory guidelines to which [the D.C. Circuit in final rule. changes to facilitate streamlined GIS Martoche] deferred in the absence of a 3. New Definition of ‘‘Authorization’’ analysis to help agencies comply with clear definition of ‘political subdivision’ NEPA, and the final rule does not in the Act or in its legislative history.’’); CEQ proposed to define the term contain any changes from the proposal. Hawaii Gov’t Employees Ass’n, Am. ‘‘authorization’’ in paragraph (c) to refer Fed’n of State, Cty. & Mun. Employees, to the types of activities that might be J. Revisions to Definitions (Part 1508) Local 152 v. Martoche, 915 F.2d 718, required for permitting a proposed NEPA does not itself include a set of 721 (D.C. Cir. 1990) (‘‘With some action, in particular infrastructure definitions provided by Congress. CEQ, imprecision in the statutory text [as to projects. This definition is consistent in the 1978 regulations, established a set an undefined term] and a nearly total with the definition included in FAST– of definitions for NEPA and the CEQ lack of elucidation in the legislative 41 and E.O. 13807. CEQ proposed to regulations. In this final rule, CEQ has history, the situation is squarely one in replace the word ‘‘entitlement’’ with clarified or supplemented the which Congress implicitly left a gap for ‘‘authorization’’ throughout the rule. definitions as discussed below and the agency to fill.’’) (internal citation CEQ adds this definition and makes further described in the Final Rule and quotation marks omitted). See also these changes in the final rule. Response to Comments at section K. As Perez v. Commissioner, 144 T.C. 51, 59 4. Clarifying the Meaning of noted above, see Public Citizen, 541 (2015); Saha Thai Steel Pipe (Pub.) Co. ‘‘Categorical Exclusion’’ U.S. at 757; Methow Valley, 490 U.S. at v. United States, 33 C.I.T. 1541, 1547 CEQ proposed to revise the definition 355 (citing Andrus, 442 U.S. at 358); (Ct. of Int’l Trade 2009).105 In of ‘‘categorical exclusion’’ in paragraph Brand X, 545 U.S. at 980–86; and Mead promulgating new or revised definitions (d) by inserting ‘‘normally’’ to clarify Corp., 533 U.S. at 227–30, CEQ has the and other changes to the NEPA that there may be situations where an authority to interpret NEPA. See, e.g., regulations, CEQ has considered the action may have significant effects on Barnhart v. Walton, 535 U.S. 212, 218 account of extraordinary circumstances. (2002) (‘‘[S]ilence, after all, normally 105 ‘‘Although NEPA’s statutory text specifies creates ambiguity. It does not resolve when an agency must comply with NEPA’s procedural mandate; it is the Council on 106 CEQ has maintained an index in the Code of it.’’). Existing NEPA case law inevitably Environmental Quality Regulations (‘CEQ’) Federal Regulations, but this is not a part of the regulations which dictate the how, providing the regulations. CEQ does not intend to continue to 104 https://nepassisttool.epa.gov/nepassist/ framework by which all [F]ederal agencies comply maintain such an index because it is no longer nepamap.aspx. See also the Marine Cadastre, which with NEPA.’’ Dine’ Citizens Against Ruining Our necessary given that the regulations are typically provides consolidated GIS information for offshore Environment v. Klein, 747 F. Supp. 2d 1234, 1248 accessed electronically and the regulations’ actions, https://marinecadastre.gov/. (D. Colo. 2010) (emphasis in original). organization has been significantly improved.

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CEQ also proposed to strike documentation about speculative effects the definition of human environment, ‘‘individually or cumulatively’’ for and leading to frequent litigation. which continues to cross-reference to consistency with the proposed revisions Commenters also raised concerns that the definition of effects in the final rule. to the definition of ‘‘effects’’ as this has expanded the scope of NEPA It also makes clear that, when the discussed in this section. CEQ proposed analysis without serving NEPA’s regulations use the term ‘‘effects,’’ it conforming edits in §§ 1500.4(a) and purpose of informed decision making. means effects on the human 1500.5(a). As noted in section II.I.3, CEQ Commenters stressed that the focus of environment. This responds to proposed to move the requirement to the effects analysis should be on those comments suggesting CEQ add ‘‘on the provide for extraordinary circumstances effects that are reasonably foreseeable, human environment’’ after ‘‘effects’’ in in agency procedures to related to the proposed action under various sections of the rule. § 1507.3(d)(2)(ii) (§ 1507.3(e)(2)(ii) in the consideration, and subject to the The final rule also consolidates the final rule). CEQ makes these changes in agency’s jurisdiction and control. first two sentences of the definition to the final rule. CEQ notes that the Commenters also noted that NEPA clarify that, for purposes of this definition of ‘‘categorical exclusion’’ practitioners often struggle with definition, ‘‘effects that occur’’ at the only applies to those CEs created by an describing cumulative impacts despite a ‘‘same time and place as the proposed agency in its agency NEPA procedures number of publications that address the action or alternatives,’’ or that ‘‘are later and does not apply to ‘‘legislative’’ CEs topic. in time or farther removed in distance’’ created by Congress, which are While NEPA refers to environmental must nevertheless be reasonably governed by the terms of the specific impacts and environmental effects, it foreseeable and have a reasonably close statute and statutory interpretation of does not subdivide the terms into direct, causal relationship to the proposed the agency charged with the indirect, or cumulative. Nor are the action or alternatives. As a separate implementation of the statute. terms ‘‘direct,’’ ‘‘indirect,’’ or sentence that only referenced reasonable ‘‘cumulative’’ included in the text of the foreseeability, there was ambiguity as to 5. Clarifying the Meaning of statute. CEQ created those concepts and whether a reasonably close causal ‘‘Cooperating Agency’’ included them in the 1978 regulations. relationship was required. Additionally, CEQ proposed to amend the To address commenters’ concerns and the final rule adds a clause to clarify definition of ‘‘cooperating agency’’ in reduce confusion and unnecessary that the consideration of time and place paragraph (e) to make clear that a State, litigation, CEQ proposed to simplify the or distance are relative to the proposed Tribal, or local agency may be a definition of effects by striking the action or alternatives. cooperating agency when the lead specific references to direct, indirect, CEQ proposed to strike the definition agency agrees, and to move the and cumulative effects and providing of ‘‘cumulative impact’’ and the terms corresponding operative language clarity on the bounds of effects ‘‘direct’’ and ‘‘indirect’’ in order to focus allowing a State, Tribal, or local agency consistent with the Supreme Court’s agency time and resources on to become a cooperating agency with the holding in Public Citizen, 541 U.S. at considering whether the proposed lead agency’s agreement to paragraph (a) 767–68. Under the proposed definition, action causes an effect rather than on of § 1501.8, ‘‘Cooperating agencies.’’ effects must be reasonably foreseeable categorizing the type of effect. As stated CEQ also proposed to remove the and have a reasonably close causal in the NPRM, CEQ intends the revisions sentence cross-referencing the relationship to the proposed action or to simplify the definition to focus cooperating agency section in part 1501 alternatives; a ‘‘but for’’ causal agencies on consideration of effects that and stating that the selection and relationship is insufficient to make an are reasonably foreseeable and have a responsibilities of a cooperating agency agency responsible for a particular effect reasonably close causal relationship to are described there because it is under NEPA. This close causal the proposed action. In practice, unnecessary and does not define the relationship is analogous to proximate agencies have devoted substantial term. CEQ makes these changes in the cause in tort law. Id. at 767; see also resources to categorizing effects as final rule. Metro. Edison Co., 460 U.S. at 774 direct, indirect, or cumulative, which, (interpreting section 102 of NEPA to as noted above, are not terms referenced 6. Definition of ‘‘Council’’ require ‘‘a reasonably close causal in the NEPA statute. CEQ eliminates CEQ did not propose any changes to relationship between a change in the these references in the final rule. the definition of ‘‘Council’’ in paragraph physical environment and the effect at To further assist agencies in their (f). CEQ also invited comment on issue’’ and stating ‘‘[t]his requirement is assessment of significant effects, CEQ whether to update references to like the familiar doctrine of proximate also proposed to clarify that agencies ‘‘Council’’ in the regulations to ‘‘CEQ’’ cause from tort law.’’). CEQ sought should not consider effects significant if throughout the rule. CEQ did not comment on whether to include in the they are remote in time, geographically receive sufficient comments on this definition of effects the concept that the remote, or the result of a lengthy causal proposal; therefore, CEQ does not make close causal relationship is ‘‘analogous chain. See, e.g., Pub. Citizen, 541 U.S. this change in the final rule. to proximate cause in tort law,’’ and if at 767–68 (‘‘In particular, ‘courts must so, how CEQ could provide additional look to the underlying policies or 7. Definition of ‘‘Cumulative Impact’’ clarity regarding the meaning of this legislative intent in order to draw a and Clarifying the Meaning of ‘‘Effects’’ phrase. manageable line between those causal CEQ proposed to remove the In the final rule, CEQ revises the changes that may make an actor definition of ‘‘cumulative impact’’ and definition of effects consistent with the responsible for an effect and those that revise the definition of ‘‘effects’’ in proposal, with some additional edits. do not.’ ’’ (quoting Metro. Edison Co., paragraph (g). As noted in the NPRM, First, to eliminate the circularity in the 460 U.S. at 774 n.7)); Metro. Edison Co., many commenters to the ANPRM urged definition, CEQ changes the beginning 460 U.S. at 774 (noting effects may not CEQ to refine the definition based on of the definition from ‘‘means effects of’’ fall within section 102 of NEPA because concerns that it creates confusion, and to ‘‘means changes to the human ‘‘the causal chain is too attenuated’’). that the terms ‘‘indirect’’ and environment from’’ the proposed action CEQ revises this sentence in the final ‘‘cumulative’’ have been interpreted or alternatives. This change also rule to add ‘‘generally’’ to reflect the fact expansively resulting in excessive associates the definition of effects with that there may occasionally be a

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circumstance where an effect that is research on identifying and categorizing definition to proposed § 1501.5. CEQ remote in time, geographically remote, actions beyond the agency’s control. makes this change in the final rule. or the product of a lengthy causal chain CEQ intended the proposed 9. Clarifying the Meaning of is reasonably foreseeable and has a elimination of the definition of ‘‘Environmental Document’’ reasonably close causal relationship to cumulative impact to focus agencies on the proposed action. analysis of effects that are reasonably CEQ proposed to remove the cross- Further, CEQ proposed to codify a key foreseeable and have a reasonably close references from the definition of holding of Public Citizen relating to the causal relationship to the proposed ‘‘environmental document’’ in definition of effects to make clear that action. Cumulative effects analysis has paragraph (i). CEQ makes this change in effects do not include effects that the been interpreted so expansively as to the final rule. agency has no authority to prevent or undermine informed decision making, 10. Clarifying the Meaning of that would happen even without the and led agencies to conduct analyses to ‘‘Environmental Impact Statement’’ agency action, because they would not include effects that are not reasonably have a sufficiently close causal foreseeable or do not have a reasonably CEQ proposed to change ‘‘the Act’’ to connection to the proposed action. For close causal relationship to the ‘‘NEPA’’ in the definition of example, this would include effects that proposed action or alternatives. CEQ ‘‘environmental impact statement’’ in would constitute an intervening and also invited comment on whether to paragraph (j). CEQ makes this change in superseding cause under familiar include an affirmative statement that the final rule. principles of tort law. See, e.g., Sierra consideration of indirect effects is not 11. Clarifying the Meaning of ‘‘Federal Club v. FERC, 827 F.3d 36, 47–48 (D.C. required; the final rule does not include Agency’’ Cir. 2016) (NEPA case incorporating additional direction to agencies specific CEQ proposed to amend the these principles) (‘‘[C]ritical to to indirect effects. definition of ‘‘Federal agency’’ in triggering that chain of events is the CEQ received many comments on paragraph (k) to broaden it to include intervening action of the Department of cumulative effects. In the final rule, to States, Tribes, and units of local Energy in granting an export license. provide further clarification, CEQ government to the extent that they have The Department’s independent decision includes a new provision at paragraph assumed NEPA responsibilities from a to allow exports—a decision over which (g)(3) that states that the analysis of Federal agency pursuant to statute. As the Commission has no regulatory effects shall be consistent with the stated in the NPRM, since the issuance authority—breaks the NEPA causal definition of effects, and that of the CEQ regulations, Congress has chain and absolves the Commission of cumulative impact, defined in 40 CFR authorized assumption of NEPA responsibility to include in its NEPA 1508.7 (1978), is repealed. This responsibilities in other contexts analysis considerations that it ‘could not language explains how agencies should besides the Housing and Community act on’ and for which it cannot be ‘the apply the definition of effects with Development Act of 1974, Public Law legally relevant cause.’’’ (quoting Pub. respect to environmental documents 93–383, sec. 104(h), 88 Stat. 633, 640, 42 Citizen, 541 U.S. at 769)). As discussed and other provisions in the final rule. U.S.C. 5304. See, e.g., Surface in the NPRM, this clarification will help Specifically, analyses are bound by the Transportation Project Delivery agencies better understand what effects definition of effects as set forth in Program, 23 U.S.C. 327. This change they need to analyze and discuss, § 1508.1(g)(1) and (2) and should not go acknowledges these programs and helps helping to reduce delays and paperwork beyond the definition of effects set forth clarify roles and responsibilities. CEQ with unnecessary analyses. CEQ in those two paragraphs. The final rule makes this change and minor clarifying includes this language in the final rule provides considerable flexibility to edits in the final rule. as proposed. agencies to structure the analysis of In addition, CEQ proposed a change effects based on the circumstances of 12. Clarifying the Meaning of ‘‘Finding in position to state that analysis of their programs. of No Significant Impact’’ cumulative effects, as defined in the In response to the NPRM, commenters CEQ proposed to revise the definition 1978 regulations, is not required under stated that agencies would no longer of ‘‘finding of no significant impact’’ in NEPA. Categorizing and determining the consider the impacts of a proposed paragraph (l) to insert the word geographic and temporal scope of such action on climate change. The rule does ‘‘categorically’’ into the phrase ‘‘not effects has been difficult and can divert not preclude consideration of the otherwise excluded,’’ change the cross- agencies from focusing their time and impacts of a proposed action on any reference to the new section addressing resources on the most significant effects. particular aspect of the human CEs at § 1501.4, and move the operative Past CEQ guidance has not been environment. The analysis of the language requiring a FONSI to include successful in dispelling ambiguity. impacts on climate change will depend an EA or a summary of it and allowing Excessively lengthy documentation that on the specific circumstances of the incorporation by reference of the EA to does not focus on the most meaningful proposed action. As discussed above, § 1501.6, which addresses the issues for the decision maker’s under the final rule, agencies will requirements of a FONSI. CEQ makes consideration can lead to encyclopedic consider predictable trends in the area these revisions in the final rule. documents that include information that in the baseline analysis of the affected is irrelevant or inconsequential to the environment. 13. Clarifying the Meaning of ‘‘Human decision-making process. Instead, Environment’’ 8. Clarifying the Meaning of agencies should focus their efforts on CEQ proposed to change ‘‘people’’ to ‘‘Environmental Assessment’’ analyzing effects that are most likely to ‘‘present and future generations of be potentially significant and effects CEQ proposed to revise the definition Americans’’ consistent with section that would occur as a result of the of ‘‘environmental assessment’’ in 101(a) of NEPA to the definition of agency’s decision, rather than effects paragraph (h), describing the purpose human environment in paragraph (m). that would be the result of intervening for the document and moving all of the CEQ also proposed to move the and superseding causes. Agencies are operative language setting forth the operative language stating that not expected to conduct exhaustive requirements for an EA from the economic or social effects by themselves

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do not require preparation of an EIS to CEQ revises the definition to remove ‘‘major’’ independent of ‘‘significantly,’’ § 1502.16(b), which is the section of the reference to significance. CEQ also and provided that, for major actions, regulations that addresses when revises the definition to remove the agencies should make a determination agencies should consider economic or circularity in the definition, changing as to whether the proposal would have social effects in an EIS. CEQ makes ‘‘means an action’’ to ‘‘means an activity a significant environmental impact. these changes in the final rule to assist or decision’’ that is subject to Federal Specifically, the Senate Report for the agencies in understanding and control and responsibility. National Environmental Policy Act of 1969 (Senate Report) states, ‘‘Each implementing the statute and i. Independent Meaning of ‘‘Major’’ regulations. agency which proposes any major CEQ proposed to strike the second actions, such as project proposals, 14. Definition of ‘‘Jurisdiction by Law’’ sentence of the definition, which proposals for new legislation, The NPRM did not propose any provides ‘‘Major reinforces but does not regulations, policy statements, or changes to the definition of jurisdiction have a meaning independent of expansion or revision of ongoing by law in paragraph (n). CEQ did not significantly.’’ CEQ makes this change programs, shall make a determination revise this definition in the final rule. in the final rule. This is a change in as to whether the proposal would have position as compared to CEQ’s earlier a significant effect upon the quality of 15. Clarifying the Meaning of ‘‘Lead interpretation of NEPA and, in the human environment.’’ S. Rep. No. Agency’’ finalizing this change, CEQ intends to 91–296, at 20 (1969) (emphasis CEQ proposed to amend the correct this longstanding added).107 Further, the Senate Report definition of lead agency in paragraph misconstruction of the NEPA statute. shows that OMB’s predecessor, the (o) to clarify that this term includes joint The statutory aim of NEPA is to focus Bureau of the Budget, submitted lead agencies, which are an acceptable on ‘‘major Federal actions significantly comments on the legislation to provide practice. CEQ makes this change in the affecting the quality of the human the views of the Executive Office of the final rule. environment,’’ 42 U.S.C. 4332(2)(C), President and recommended that rather than on non-major Federal Congress revise the text of the bill to 16. Clarifying the Meaning of actions that simply have some degree of ‘‘Legislation’’ include two separate modifiers: ‘‘major’’ Federal involvement. Under the 1978 before Federal actions and CEQ proposed to move the operative regulations, however, the word ‘‘major’’ ‘‘significantly’’ before affecting the language regarding the test for was rendered virtually meaningless. quality of the human environment. See significant cooperation and the CEQ makes this change because all id. at 30 (Bureau of the Budget’s markup principle that only the agency with words of a statute must be given returned to the Senate on , 1969). primary responsibility will prepare a meaning consistent with longstanding The enacted legislation included these legislative EIS to § 1506.8. CEQ also principles of statutory interpretation. revisions. While CEQ followed the Eight proposed to strike the example of See, e.g., Bennett, 520 U.S. at 173 (‘‘It is Circuit’s approach in Minnesota Public treaties, because the President is not a the cardinal principle of statutory Interest Research Group v. Butz, 498 Federal agency, and therefore a request construction . . . that it is our duty to F.2d 1314, 1321–22 (8th Cir. 1974), in for ratification of a treaty would not be give effect, if possible, to every clause the 1978 regulations, other courts had subject to NEPA. CEQ makes these and word of a statute . . . rather than interpreted ‘‘major’’ and ‘‘significantly’’ changes in the final rule, striking the to emasculate an entire section.’’) as having independent meaning before references to ‘‘significant cooperation (internal quotations and citations CEQ issued its 1978 regulations. See and support,’’ in paragraph (p) to omitted) (quoting United States v. NAACP v. Med. Ctr., Inc., 584 F.2d 619, narrow the definition to comport with Menasche, 348 U.S. 528, 538 (1955)). 629 (3d Cir. 1978) (analyzing the the NEPA statute, as discussed in Although the 1978 regulations treated Secretary’s ministerial approval of a section II.H.8. the terms ‘‘major’’ and ‘‘significantly’’ as capital expenditure under a framework interchangeable, there is an important that first considered whether there had 17. Clarifying the Meaning of ‘‘Major distinction between the two terms and Federal Action’’ been agency action, and then whether how they apply in the NEPA process. that action was ‘‘major’’); Hanly v. CEQ received many comments on the ‘‘Major’’ refers to the type of action, Mitchell, 460 F.2d 640, 644–45 (2d Cir. ANPRM requesting clarification of the including the role of the Federal agency 1972) (‘‘There is no doubt that the Act definition of major Federal action. For and its control over any environmental contemplates some agency action that example, CEQ received comments impacts. ‘‘Significant’’ relates to the does not require an impact statement proposing that non-Federal projects effects stemming from the action, because the action is minor and has so should not be considered major Federal including consideration of the affected little effect on the environment as to be actions based on a very minor Federal area, resources, and the degree of the insignificant.’’ (internal citations role. Commenters also recommended effects. In the statute, ‘‘major’’ occurs omitted)); Scherr v. Volpe, 466 F.2d that CEQ clarify the definition to twice, and in both instances is a 1027, 1033 (7th Cir. 1972) (finding that exclude decisions where agencies do modifier of ‘‘Federal action’’—in section a highway project qualifies as major not have discretion to consider and 102(2)(C) in the phrase ‘‘other major before turning to the second step of potentially modify their actions based Federal actions significantly affecting whether the project would have a on the environmental review. the quality of the human environment,’’ significant effect); Julius v. City of Cedar CEQ proposed to amend the first and section 102(2)(D) in the phrase, Rapids, 349 F. Supp. 88, 90 (N.D. Iowa sentence of the definition in paragraph ‘‘any major Federal action funded under 1972) (finding that a lane widening (q) to clarify that an action meets the a program of grants to States.’’ NEPA project was not a major Federal action); definition if it is subject to Federal also uses ‘‘significant’’ or ‘‘significantly’’ Goose Hollow Foothills League v. control and responsibility, and it has twice as a modifier of the similar words Romney, 334 F. Supp. 877, 879 (D. Or. effects that may be significant. CEQ ‘‘affecting’’ in section 102(2)(C) and 1971) (discussing whether a proposed proposed to replace ‘‘major’’ effects with ‘‘impacts’’ in section 102(2)(D)(iv). ‘‘significant’’ in this sentence to align The legislative history of NEPA also 107 https://ceq.doe.gov/docs/laws-regulations/ with the NEPA statute. In the final rule, reflects that Congress used the term Senate-Report-on-NEPA.pdf.

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building project was ‘‘major’’); SW States.’ ’’ EEOC v. Arabian Am. Oil Co. section 102(2)(C) gives no clear Neighborhood Assembly v. Eckard, 445 (Aramco), 499 U.S. 244, 248 (1991) indication that it applies F. Supp. 1195, 1199 (D.D.C. 1978) (‘‘The (quoting Foley Bros. v. Filardo, Inc., 336 extraterritorially, the presumption phrase ‘major Federal action’ has been U.S. 281, 285 (1949)). During the past against extraterritoriality has not been construed by the Courts to require an decade, the Supreme Court has rebutted. The plain language of section inquiry into such questions as the considered the application of the 102(2)(C) does not require it to be amount of federal funds expended by presumption to a variety of Federal applied to actions occurring outside the the action, the number of people statutes.109 As the Supreme Court has jurisdiction of the United States.112 The affected, the length of time consumed, stated, the presumption ‘‘rests on the only reference in the Act to and the extent of government planning perception that Congress ordinarily international considerations is in involved.’’ (citing Hanly, 460 F.2d at legislates with respect to domestic, not section 102(2)(F), which refers to 644)); Nat. Res. Def. Council v. Grant, foreign matters.’’ Morrison, 561 U.S. at ‘‘international cooperation’’ and the 341 F. Supp. 356, 366 (E.D.N.C. 1972) 255 (citing Smith v. United States, 507 ‘‘worldwide and long-range character of (‘‘Certainly, an administrative agency U.S. 197, 204 n.5 (1993)). ‘‘Thus, ‘unless environmental problems,’’ and directs [such] as the Soil Conservation Service there is the affirmative intention of the agencies to ‘‘where consistent with the may make a decision that a particular Congress clearly expressed’ to give a foreign policy of the United States, lend project is not major, or that it does not statute extraterritorial effect, ‘we must appropriate support to initiatives, significantly affect the quality of the presume it is primarily concerned with resolutions, and programs designed to human environment, and, that, domestic conditions.’ ’’ Morrison, 561 maximize international cooperation’’ to therefore, the agency is not required to U.S. at 255 (citing Aramco, 499 U.S. at protect the environment. 42 U.S.C. file an impact statement.’’). Moreover, as 248). The Supreme Court has held, 4332(2)(F). International cooperation is discussed further below, over the past including in more recent decisions, that inherently voluntary and not part of the four decades, in a number of cases, the presumption applies regardless of mandatory analysis required under the courts have determined that NEPA does whether there is a risk of conflict statute, and this provision does not not apply to actions with minimal between the U.S. statute and a foreign indicate in any way that the Federal involvement or funding. Under law. Morrison, 561 U.S. at 255 (citing requirements of section 102(2)(C) to the revised definition, these would be Sale v. Haitian Ctrs. Council, Inc., 509 prepare detailed statements applies non-major Federal actions. U.S. 155, 173–74 (1993)); RJR Nabisco, outside of U.S. territorial jurisdiction. In the final rule, CEQ reorganizes the 136 S. Ct. at 2100; see also Smith, 507 The limited legislative history of section remainder of the definition of major U.S. at 204 n.5. 102(2)(C) similarly does not include Federal action into subordinate The Supreme Court has established a discussion of application of the paragraphs. Paragraph (q)(1) provides a two-step framework for analyzing requirements of section 102(2)(C) to list of activities or decisions that are not whether the presumption against extraterritorial actions.113 included within the definition. extraterritoriality applies to a Federal Under the two-step framework, CEQ statute.110 Under this framework, the has also considered the purpose of ii. Extraterritoriality first step is to ask whether the section 102(2)(C), which is to ensure In the NPRM, CEQ requested presumption against extraterritoriality that a Federal agency, as part of its comment on whether to clarify that has been rebutted because ‘‘the statute decision making process, considers the major Federal action does not include gives a clear, affirmative indication that potential environmental impacts of extraterritorial actions because NEPA it applies extraterritorially.’’ RJR proposed actions. The focus of does not apply extraterritorially, Nabisco, 136 S. Ct. at 2101. If the congressional concern is the proposed consistent with Kiobel v. Royal Dutch presumption has not been rebutted, the action and its potential environmental Petroleum Co., 569 U.S. 108, 115–16 second step is to determine whether the effects. The effects of a proposed action (2013), in light of the ordinary case involves a domestic application of may occur both within U.S. territorial presumption against extraterritorial the statute, and courts have done this by jurisdiction as well as outside that application when a statute does not looking to the statute’s ‘‘focus.’’ 111 jurisdiction. To the extent effects of a clearly indicate that extraterritorial Under the two-step framework, CEQ proposed action occur entirely outside application is intended by Congress. In has determined that because the the territorial jurisdiction of the United the final rule, CEQ revises the definition legislative history and statutory text of States, the application of section of ‘‘Major Federal action’’ in a new 102(2)(C) would not be permissible, paragraph (q)(1)(i) to exclude 109 See RJR Nabisco, Inc. v. European Cmty., 136 consistent with the Supreme Court’s S. Ct. 2090 (2016) (Racketeer Influenced and holding that where the conduct relevant extraterritorial activities or decisions, Corrupt Organizations Act); Kiobel, 569 U.S. at 115– which mean activities or decisions with 16 (Alien Tort Statute); Morrison v. Nat’l Austl. to the statute’s focus occurred in the effects located entirely outside the Bank Ltd., 561 U.S. 247, 255 (2010) (Securities and United States, then ‘‘the case involves a jurisdiction of the United States.108 Exchange Act of 1934); WesternGeco LLC v. ION The Supreme Court has stated that Geophysical Corp., 138 S. Ct. 2129 (2018) (Patent 112 Section 102(2)(C) directs Federal agencies to Act). provide a detailed statement for major Federal ‘‘[i]t is a longstanding principle of 110 See RJR Nabisco, 136 S. Ct. at 2101 (citing actions significantly affecting the quality of the American law ‘that legislation of Morrison, 561 U.S. at 267 n.9; Kiobel, 569 U.S. 108); human environment, and requires the responsible Congress, unless a contrary intent see also WesternGeco LLC, 138 S. Ct. 2129. official to consult with and obtain the comments of appears, is meant to apply only within 111 Id. (‘‘If the conduct relevant to the statute’s Federal agencies with jurisdiction or special focus occurred in the United States, then the case expertise, as well as to make copies of the statement the territorial jurisdiction of the United involves a permissible domestic application even if and comments and views of Federal, state and local other conduct occurred abroad; but if the conduct agencies available to the President, CEQ and the 108 The Restatement of Foreign Relations Law relevant to the focus occurred in a foreign country, public. 42 U.S.C. 4332(2)(C). Nothing in the text provides that the areas within the territorial then the case involves an impermissible states that this section was intended to require the jurisdiction of the United States include ‘‘its land, extraterritorial application regardless of any other preparation of detailed statements for actions internal waters, territorial sea, the adjacent airspace, conduct that occurred in U.S. territory.’’). This two- located outside the United States. and other places over which the United States has step framework for analyzing extraterritoriality 113 See also Nat. Res. Def. Council v. Nuclear sovereignty or some measure of legislative control.’’ issues is also reflected in the Restatement of Foreign Regulatory Comm’n, 647 F. 2d 1345, 1367 (D.C. Cir. Restatement (Fourth) of Foreign Relations Law sec. Relations Law. See Restatement (Fourth) of Foreign 1981) (‘‘NEPA’s legislative history illuminates 404 (2018). Relations Law sec. 404 (2018). nothing in regard to extraterritorial application.’’).

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permissible domestic application even if U.S. at 70–73. Judicial review is control the nonfederal activity.’ ’’ other conduct occurred abroad; but if available only when an agency fails to (quoting Sierra Club v. Hodel, 848 F.2d the conduct relevant to the focus take a discrete action it is required to 1068, 1089 (10th Cir. 1988), overruled occurred in a foreign country, then the take. Id. In omitting the reference to a on other grounds by Vill. of Los Ranchos case involves an impermissible failure to act from the definition of de Albuquerque v. Marsh, 956 F.2d 970 extraterritorial application regardless of ‘‘major Federal action,’’ CEQ does not (10th Cir. 1992)); Sugarloaf Citizens any other conduct that occurred in U.S. contradict the definition of ‘‘agency Ass’n v. FERC, 959 F.2d 508, 512 (4th territory.’’ RJR Nabisco, 136 S. Ct. at action’’ under the APA at 5 U.S.C. Cir. 1992); Save Barton Creek Ass’n v. 2101. Therefore, CEQ provides in 551(13), and recognizes that the APA Fed. Highway Admin., 950 F.2d 1129, paragraph (q)(1)(i) of the final rule that may compel agency action that is 1134–35 (5th Cir. 1992); Macht v. NEPA does not apply to ‘‘agency required but has been unreasonably Skinner, 916 F.2d 13, 20 (D.C. Cir. 1990) activities or decisions with effects withheld. If an agency is compelled to (funding for planning and studies not located entirely outside of the take such agency action, it should enough to federalize a project); Vill. of jurisdiction of the United States.’’ prepare a NEPA analysis at that time, as Los Ranchos de Albuquerque v. appropriate. Barnhart, 906 F.2d 1477, 1482 (10th Cir. iii. Non-Discretionary Activities or 1990); Sierra Club v. Penfold, 857 F.2d Decisions v. Enforcement Actions 1307, 1314 (9th Cir. 1998) (finding that In the NPRM, CEQ proposed to clarify In the final rule, CEQ moves the the Bureau of Land Management’s that the definition does not include non- exclusion of judicial or administrative review of Notice mines, which do not discretionary activities or decisions civil or criminal enforcement actions require agency approval before made in accordance with the agency’s from 40 CFR 1508.18(a) to paragraph commencement of mining, is ‘‘only a statutory authority. The Supreme Court (q)(1)(iv) of § 1508.1. CEQ did not marginal [F]ederal action rather than a has held that analysis of a proposed propose changes to this language in the major action’’); Winnebago Tribe of Neb. action’s effects under NEPA is not NPRM. In the final rule, CEQ moves this v. Ray, 621 F. 2d 269, 272 (8th Cir. required where an agency has limited language and revises it consistent with 1980) (‘‘Factual or veto control, statutory authority and ‘‘simply lacks the format of the list in paragraph (q)(1). however, must be distinguished from the power to act on whatever vi. General Revenue Sharing Funds legal control or ‘enablement’’’ (citing information might be contained in the Med. Ctr., Inc., 584 F.2d 619)); Atlanta EIS.’’ Pub. Citizen, 541 U.S. at 768; see CEQ proposed to strike the specific Coal. on the Transp. Crisis v. Atlanta also South Dakota, 614 F.2d at 1193 reference to the State and Local Fiscal Reg’l Comm’n, 599 F.2d 1333, 1347 (5th (holding that the Department of the Assistance Act of 1972 from 40 CFR Cir. 1979); Ctr. for Biological Diversity v. Interior’s issuance of a mineral patent 1508.18(a) and clarify that general HUD, 541 F. Supp. 2d 1091, 1099 (D. that was a ministerial act did not come revenue sharing funds do not meet the Ariz. 2008), aff’d, Ctr. for Biological within NEPA); Milo Cmty. Hosp. v. definition of major Federal action Diversity v. HUD, No. 09–16400, 359 Weinberger, 525 F.2d 144, 148 (1st Cir. because the agency has no discretion. Fed. Appx. 781, 2009 WL 4912592 (9th 1975) (NEPA analysis of impacts not CEQ includes this change in paragraph Cir. Nov. 25, 2009) (unreported); see required when agency was under a (q)(1)(v) in the final rule. also Touret v. NASA, 485 F. Supp. 2d statutory duty to take the proposed vii. Minimal Federal Funding or 38 (D.R.I. 2007). action of terminating a hospital). CEQ Involvement As discussed in the NPRM, in these includes this clarification in paragraph circumstances, there is no practical (q)(1)(ii). CEQ proposed to clarify that non- reason for an agency to conduct a NEPA Federal projects with minimal Federal analysis because the agency could not iv. Final Agency Action and Failure To funding or minimal Federal Act influence the outcome of its action to involvement such that the agency address the effects of the project. For CEQ proposed to strike the statement cannot control the outcome of the example, this might include a very that major Federal action includes a project are not major Federal actions. small percentage of Federal funding failure to act and instead clarify that the The language in paragraph (q)(1)(vi) of provided only to help design an definition excludes activities or the final rule is consistent with the infrastructure project that is otherwise decisions that do not result in final holdings of relevant circuit court cases funded through private or local funds. agency action under the APA. The basis that have addressed this issue. See This change would help to reduce costs for including only final agency actions Rattlesnake Coal. v. U.S. EPA, 509 F.3d and delays by more clearly defining the is the statutory text of the APA, which 1095, 1101 (9th Cir. 2007) (Federal kinds of actions that are appropriately provides a right to judicial review of all funding comprising six percent of the within the scope of NEPA. The final ‘‘final agency action[s] for which there estimated implementation budget not rule includes these criteria in paragraph is no other adequate remedy in a court.’’ enough to federalize implementation of (q)(1)(vi) to make clear that these 5 U.S.C. 704. CEQ includes this entire project); New Jersey Dep’t of projects are ones where the agency does clarification in paragraph (q)(1)(iii) of Envtl. Prot. & Energy v. Long Island not exercise sufficient control and the final rule and includes ‘‘or other Power Auth., 30 F.3d 403, 417 (3d Cir. responsibility over the outcome of the statute that also includes a finality 1994) (‘‘Federal approval of a private project. requirement’’ because CEQ recognizes party’s project, where that approval is CEQ expects that agencies will further that other statutes may also contain not required for the project to go define these non-major actions, for finality requirements beyond those of forward, does not constitute a major which the agency does not exercise the APA. As the NPRM noted, NEPA Federal action.’’); United States v. S. sufficient control and responsibility applies when agencies are considering a Fla. Water Mgmt. Dist., 28 F.3d 1563, over the outcome of the project, in their proposal for decision. In the case of a 1572 (11th Cir. 1994) (‘‘The touchstone agency NEPA procedures pursuant to ‘‘failure to act,’’ there is no proposed of major [F]ederal activity constitutes a § 1507.3(d)(4). For example, agencies action and therefore there are no [F]ederal agency’s authority to influence that exercise trust responsibilities over alternatives that the agency may nonfederal activity. ‘The [F]ederal activities or decisions that occur on or consider. S. Utah Wilderness All., 542 agency must possess actual power to involve land held in trust by the United

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States for the benefit of an Indian Tribe, ownership loan is $516,859.114 The 1.62 percent in 2019.115 The FSA or are held in fee subject to a restriction relatively modest amounts of these loan guaranteed loan loss rates have ranged against alienation, may define those guarantees suggest that these are not between 0.2 and 0.6 percent during the activities or decisions that involve ‘‘major’’ within the meaning of the same time period.116 minimal Federal funding or NEPA statute and for that reason CEQ For purposes of triggering NEPA, involvement. In such circumstances, the makes this result clear in a specific ‘‘[t]he mere possibility of [F]ederal Federal Government does not exercise application of its definition of ‘‘major funding in the future is too tenuous to sufficient control and responsibility Federal action.’’ In determining whether convert a local project into [F]ederal over the effects of actions on Indian Federal funding federalizes a non- action.’’ Pres. v. Conturo, lands, and a ‘‘but for’’ causal Federal action, courts have considered 2011 U.S. Dist. LEXIS 101756, at *13 relationship of requiring Federal whether the proportion of Federal funds (W.D. Pa. 2011). Indeed, in Sancho, the approval for such actions is insufficient in relation to funds from other sources court observed that ‘‘analysis of the to make an agency responsible for any is ‘‘significant.’’ See, e.g., Ka Makani ‘O ‘major Federal action’ requirement in NEPA must focus upon [F]ederal funds particular effects from such actions. Kohala Ohana Inc. v. Dep’t of Water Supply, 295 F.3d 955, 960 (9th Cir. that have already been distributed. In the NPRM, CEQ also invited 2002) (‘‘While significant [F]ederal Federal funds that have only been comment on whether there should be a funding can turn what would otherwise budgeted or allocated toward a project threshold (percentage or dollar figure) be a [S]tate or local project into a major cannot be considered because they are for ‘‘minimal Federal funding,’’ and if Federal action, consideration must be not an ‘irreversible and irretrievable so, what would be an appropriate given to a great disparity in the commitment of resources.’ ’’ Sancho, threshold and the basis for such a expenditures forecast for the [S]tate [and 578 F. Supp. 2d at 1267 (internal threshold. CEQ did not receive county] and [F]ederal portions of the citation omitted). The court further sufficient information to establish such entire program.... In the present case, stated that ‘‘[t]he expectation of a threshold in the final rule. the sum total of all of the [F]ederal receiving future funds will not transform a local or state project into a viii. Loans and Loan Guarantees funding that was ever offered . . . is less than two percent of the estimated federal project.... Regardless of the CEQ also proposed to exclude loans, total project cost.’’ (alteration in percentage, consideration of the loan guarantees, and other forms of original) (internal quotation marks and budgeted future federal funds is not ripe financial assistance where the Federal citation omitted)); Friends of the Earth, for consideration in the ‘major Federal action’ analysis.’’ Id. Other district agency does not exercise sufficient Inc. v. Coleman, 518 F.2d 323, 329 (9th courts have also found that, to federalize control and responsibility over the Cir. 1975) (holding Federal funding a project, the Federal funding must be effects of the action. CEQ includes this amounting to 10 percent of the total project cost not adequate to federalize more than ‘‘the passive deferral of a in the final rule in paragraph (q)(1)(vii), payment’’ and must be provided changing ‘‘action’’ to ‘‘such assistance’’ project under NEPA); Sancho v. Dep’t of Energy, 578 F. Supp. 2d 1258, 1266–68 ‘‘primarily to directly further a policy to remove the ambiguity with the use of goal of the funding agency.’’ Hamrick v. the defined term in the definition. CEQ (D. Haw. 2008) (Federal provision of less than 10 percent of project costs not GSA, 107 F. Supp. 3d 910, 926 (C.D. Ill. proposed to also exclude the farm 2015) (citing Landmark West!, 840 F. ownership and operating loan sufficient to federalize project); Landmark West! v. U.S. Postal Serv., Supp. at 1007). guarantees provided by the Farm FSA’s role is to protect the financial 840 F. Supp. 994, 1009 (S.D.N.Y. 1993), Service Agency (FSA) of the U.S. interests of the United States, and its aff’d, 41 F.3d 1500 (2d Cir. 1994) Department of Agriculture pursuant to 7 relationship is with the lender not the U.S.C. 1925 and 1941 through 1949, and (holding U.S. Postal Service’s role in borrower. 7 CFR 762.103(a). FSA’s the business loan guarantee programs of private development of new skyscraper involvement is primarily to ensure the the Small Business Administration was not sufficient to federalize the financial stability of the loan and ensure (SBA), 15 U.S.C. 636(a), 636(m), and 695 project). proper loan servicing by the lender. through 697f. CEQ includes these as Furthermore, FSA loan guarantee Therefore, the context of these FSA examples of loan guarantees in programs do not provide any Federal regulations does not involve NEPA and paragraph (q)(1)(vii) and makes one funding to the participating borrower. is not compliance-driven but only correction to the citation to SBA’s Rather, FSA’s role is limited to meant to ensure that, in the event of a business loan guarantee programs, providing a guaranty to the private default, the loan proceeds are disbursed changing the final section cited from lender; no Federal funds are expended by the lender, used properly, and that 697f to 697g. unless the borrower defaults on the the project is completed and operating private third-party loan, and the lender so as to produce income necessary for By guaranteeing loans, FSA is not is unable to recover its debt through the loan to be repaid. lending Federal funds; a ‘‘guaranteed foreclosure of its collateral. In the event If a lender violates one of FSA’s loan’’ under FSA regulations is defined of default, the guarantee is paid to the regulations, FSA’s only remedy is not to in 7 CFR 761.2(b) as a ‘‘loan made and lender, not to lender’s borrower. FSA pay the loss claim in the event of a serviced by a lender for which the rarely makes guaranteed loan loss claim liquidation. FSA does not possess Agency has entered into a Lender’s payments because delinquency rates are control or actual decision-making Agreement and for which the Agency very low, ranging from between 0.98 authority over the lender’s issuance of has issued a Loan Guarantee.’’ The FSA and 1.87 percent from 2005 to 2019, and the loan, the funded facility, or loan guarantees are limited statutorily to operations of the borrower. Courts have an amount not to exceed $1.75 million 114 See Executive Summary for Farm Loan (with allowance for inflation). See 7 Programs in Fiscal Year 2019, https:// 115 See Guaranteed Loan Executive Summary, as U.S.C. 1925 and 1943. For fiscal year www.fsa.usda.gov/Assets/USDA-FSA-Public/ of FY 2019, https://www.fsa.usda.gov/Assets/ 2019, the average loan amount for a usdafiles/Farm-Loan-Programs/pdfs/program-data/ USDA-FSA-Public/usdafiles/Farm-Loan-Programs/ _ _ _ _ _ guaranteed operating loan is $289,393; FY2019 Executive Summary.pdf. See generally pdfs/program-data/FLP Guaranteed Loan https://www.fsa.usda.gov/programs-and-services/ Servicing_Executive_Summary.pdf. and the average for a guaranteed farm farm-loan-programs/program-data/index. 116 Id.

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recognized Federal agencies do not have not expend Federal funds unless there debenture-funded loan, in which case sufficient control over loan guarantees is a default by the borrower in paying SBA pays the outstanding balance owed to trigger NEPA. See, e.g., Ctr. for the loan; in such cases, SBA reimburses on the debenture to the investors. SBA Biological Diversity, 541 F. Supp. 2d the lender in accordance with SBA’s expends Federal funds on its loan 1091, aff’d, Ctr. for Biological Diversity, guarantee percentage. The maximum guarantee programs only when expected No. 08–16400, 359 F. Appx. 781 (‘‘The amount for a standard loan under the losses from defaults exceed expected fee agencies guarantee loans issued by 7(a) program is $5 million, while collections. Section 7(a) and 504 loan private lenders to qualified borrowers, various 7(a) loans have lesser maximum program delinquency rates are 0.8 but do not approve or undertake any of amounts of $500,000 or less.118 percent and 0.7 percent as of July 2019 the development projects at issue. The Under the Microloan Program, respectively.122 agencies’ loan guarantees have such a recipient entities can obtain loans, up to CEQ has determined that FSA and remote and indirect relationship to the $50,000, for certain, limited purposes. SBA do not have sufficient control and watershed problems allegedly stemming SBA provides funds to designated responsibility over the underlying from the urban development that they intermediary lenders, which are non- activities to meet the definition of major cannot be held to be a legal cause of any profit, community-based organizations. Federal action. The issuance of loan effects on the protected species for Each of the lenders has its own lending guarantees to a non-Federal lender to purposes of either the ESA or the and credit requirements, and the lenders back a percentage of a loan that the NEPA.’’ Ctr. for Biological Diversity, No. extend the microloan financing. lender decides to make to a private, 08–16400, 359 F. Appx. at 783). ‘‘The Recipients only may use the funds for third-party borrower is insufficient [F]ederal agency must possess actual working capital, inventory or supplies, control or authority over the underlying power to control the nonfederal furniture or fixtures, or machinery or project. See Rattlesnake Coal., 509 F.3d activity.’’ Hodel, 848 F.2d at 1089, equipment. They cannot purchase real at 1102 (‘‘The United States must overruled on other grounds by Vill. of estate or pay existing debt. maintain decision making authority Los Ranchos de Albuquerque v. Marsh, Under the 504 Program, small over the local plan in order for it to 956 F.2d 970. businesses can obtain long-term, fixed- become a major [F]ederal action.’’); Ka SBA’s business loan programs include rate financing to acquire or improve Makani, 295 F.3d at 961 (‘‘Because the general business loan programs (7(a) capital assets. Certified Development final decision-making power remained Program), authorized by section 7(a) of Companies (CDCs), which are private, at all times with [the State agency], we the Small Business Act, 15 U.S.C. mostly non-profit, corporations certified 636(a); the microloan demonstration conclude that the [Federal agency] by SBA to promote local and involvement was not sufficient to loan program (Microloan Program), community economic development, authorized by section 7(m) of the Small constitute ‘major [F]ederal action.’ ’’ implement the program. Typically, a (quoting Barnhart, 906 F.2d at 1482)); S. Business Act, 15 U.S.C. 636(m); and the 504 Program project is funded by three development company program (504 Fla. Water Mgmt. Dist., 28 F.3d at 1572 sources: (1) A loan, secured with a (‘‘The [F]ederal agency must possess Program), which is a jobs-creation senior lien, from a private-sector lender program, authorized by Title V of the actual power to control the nonfederal for 50 percent of the project costs; (2) an activity.’’ (citation omitted)). Small Business Investment Act of 1958, equity contribution from the borrower of 15 U.S.C. 695–697g. Under all of these CEQ also invited comment on at least 10 percent of the project costs; whether any other types of financial programs, SBA does not recruit or work and (3) a loan covering up to 40 percent with the borrower, or service the loan instruments should be considered non- of the total costs, which is funded by unless, following a default in payment, major Federal actions and the basis for proceeds from the sale to investors of an the lender has collected all that it can such exclusion. CEQ did not receive SBA-guaranteed debenture issued by a under the loan. 119 sufficient comments to make any Under the 7(a) Program, SBA CDC. The 504’s Premier Certified additional changes to the definition of guarantees a percentage of the loan Lender Program (‘‘PCLP program’’) major Federal action with respect to amount extended by a commercial provides for only limited SBA review of other financial instruments. lender to encourage such lenders to eligibility, and SBA delegates the ix. Other Changes to Major Federal make loans to eligible small businesses. responsibility to CDCs to issue an SBA Action The lender seeks and receives the guarantee of debenture for eligible loans without prior approval by SBA. 15 guaranty, not the applicant small In the final rule, paragraphs (q)(2) and U.S.C. 697e.120 Under the 504 program, business. In over 80 percent of loans (3) include the examples of activities the maximum loan amount is $5 stemming from the 7(a) Program, the and decisions that are in 40 CFR million, although small manufacturers lender approves the loan without SBA’s 1508.18(a) and (b). CEQ invited or certain energy projects, including prior review and approval through the comment on whether it should change energy efficiency or renewable 7(a) Program’s Preferred Lender Program ‘‘partly’’ to ‘‘predominantly’’ in 117 generation projects, may qualify for a (‘‘PLP program’’). Further, SBA does paragraph (q)(2) for consistency with the $5.5 million debenture.121 SBA does not edits to the introductory text regarding 117 expend Federal funds unless there is a Pursuant to the Small Business Act, under the ‘‘minimal Federal funding.’’ CEQ does PLP program, SBA delegates responsibility to default by the borrower in paying the experienced and qualified lenders to issue an SBA not make this change in the final rule. guarantee on a loan without prior approval by SBA. 118 15 U.S.C. 636(a). CEQ notes that ‘‘continuing’’ activities The PLP program is defined as a ‘‘program 119 In the 504 program, SBA guarantees payments in paragraph (q)(2) refers to situations established by the Administrator . . . under which where a major Federal action remains to a written agreement between the lender and the of debentures, which are bonds sold to investors. Administration delegates to the lender . . . The proceeds from the sale of the debentures are occur, consistent with § 1502.9(d) and complete authority to make and close loans with a used to fund the underlying loans to borrowers. Norton v. Southern Utah Wilderness 120 guarantee from the Administration without Congress has mandated that guaranteed loans Alliance. 542 U.S. at 73. obtaining the prior specific approval of the made by PCLPs shall not include SBA ‘‘review of Administration . . . .’’ 15 U.S.C. 636(a)(2)(C)(iii). decisions by the lender involving creditworthiness, Thus, PLP program lenders have delegated loan closing, or compliance with legal requirements 122 See SBA Fiscal Year 2019 Agency Financial authority to make SBA-guaranteed loans without imposed by law or regulation.’’ 15 U.S.C. 697e(e)(2). Report at 22, available at https://www.sba.gov/ any approval from SBA. 121 15 U.S.C. 696(2)(A). document/report--agency-financial-report.

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CEQ proposed to insert NEPA process more effective by ‘‘public’’ to clarify that the NOI is a ‘‘implementation of’’ before ‘‘treaties’’ in clarifying that mitigation measures must public notice. CEQ makes these changes proposed paragraph (q)(2)(i) to clarify actually be designed to mitigate the in the final rule. that the major Federal action is not the effects of the proposed action. This 22. New Definition of ‘‘Page’’ treaty itself, but rather an agency’s amended definition is consistent with action to implement that treaty. CEQ CEQ’s Mitigation Guidance, supra note CEQ proposed a new definition of makes this change in § 1508.1(q)(3)(i) of 29. ‘‘page’’ in paragraph (v) to provide a the final rule and clarifies that this Under that guidance, if an agency word count (500 words) for a more includes an agency’s action to believes that the proposed action will standard functional definition of ‘‘page’’ implement a treaty pursuant to statute provide net environmental benefits for page count and other NEPA or regulation. CEQ also changes through use of compensatory mitigation, purposes. CEQ adds this definition as ‘‘pursuant to’’ to ‘‘under’’ the APA and the agency should incorporate by proposed to the final rule. As discussed adds a reference to ‘‘other statutes’’ after reference the documents that in the NPRM, this change updates NEPA the APA. While agencies conduct the demonstrate that the proposed for modern electronic publishing and rulemaking process pursuant to the mitigation will be new or in addition to internet formatting, in which the APA, they also may do so under the actions that would occur under the no- number of words per page can vary authority of the specific statutes. action alternative, and the financial, widely depending on format. It also CEQ proposed to strike ‘‘guide’’ from legal, and management commitments for ensures some uniformity in document proposed paragraph (q)(2)(ii) because the mitigation. Use of well-established length while allowing unrestricted use guidance is non-binding. CEQ makes mitigation banks and similar of the graphic display of quantitative this change in the final rule in compensatory mitigation legal information, tables, photos, maps, and § 1508.1(q)(3)(ii). structures should provide the necessary other geographic information that can Finally, CEQ invited comment in the substantiation for the agency’s findings provide a much more effective means of NPRM on whether CEQ should further on the effectiveness (nexus to effects of conveying information about revise the definition of ‘‘major Federal the action, proportionality, and environmental effects. This change action’’ to exclude other per se durability) of the mitigation. Other supports the original CEQ page limits as categories of activities or to further actions may be effectively mitigated a means of ensuring that environmental address what NEPA analysts have called through use of environmental documents are readable and useful to ‘‘the small handle problem.’’ 123 CEQ management systems that provide a decision makers. did not receive sufficient information to structure of procedures and policies to make any additional changes. systematically identify, evaluate, and 23. New Definition of ‘‘Participating Agency’’ 18. Definition of ‘‘Matter’’ manage environmental impacts of an action during its implementation.124 CEQ proposed to add the concept of The NPRM did not propose any CEQ makes the proposed changes in a participating agency to the CEQ changes to the definition of matter in the final rule with minor edits to regulations in paragraph (w). CEQ paragraph (r). CEQ did not revise this improve clarity. Specifically, CEQ proposed to define participating agency definition in the final rule. replaces ‘‘reasonably foreseeable consistent with the definition in FAST– 19. Clarifying the Meaning of impacts to the human environment’’ 41 and 23 U.S.C. 139. CEQ proposed to ‘‘Mitigation’’ with ‘‘effects’’ to more precisely refer to add participating agencies to § 1501.7(i) the defined term ‘‘effects.’’ In response regarding the schedule and replace the CEQ proposed to amend the to comments, CEQ also adds ‘‘or term ‘‘commenting’’ agencies with definition of ‘‘mitigation’’ to define the alternatives’’ after ‘‘proposed action’’ to ‘‘participating’’ agencies throughout. term and clarify that NEPA does not clarify that mitigation measures mean CEQ adds this definition as proposed to require adoption of any particular measures to avoid, minimize, or the final rule. mitigation measure, consistent with compensate for effects caused by a Methow Valley, 490 U.S. at 352–53. In proposed action or its alternatives. CEQ 24. Clarifying the Meaning of Methow Valley, the Supreme Court held also replaces ‘‘the effects of a proposed ‘‘Proposal’’ that NEPA and the CEQ regulations action’’ with ‘‘those effects’’ to reduce CEQ proposed clarifying edits to the require ‘‘that mitigation be discussed in wordiness and provide additional definition of proposal in paragraph (x) sufficient detail to ensure that clarity. and to strike the operative language environmental consequences have been regarding timing of an EIS because it is 20. Definition of ‘‘NEPA Process’’ fairly evaluated,’’ but do not establish ‘‘a already addressed in § 1502.5. CEQ substantive requirement that a complete The NPRM did not propose any makes these changes in the final rule. mitigation plan be actually formulated changes to the definition of NEPA and adopted’’ before the agency can process in paragraph (t). CEQ did not 25. New Definition of ‘‘Publish and make its decision. Id. at 352. revise this definition in the final rule. Publication’’ CEQ also proposed to amend the CEQ proposed to define publish and 21. Clarifying the Meaning of ‘‘Notice of definition of ‘‘mitigation’’ to make clear publication in paragraph (y) to provide Intent’’ that mitigation must have a nexus to the agencies with the flexibility to make effects of the proposed action, is limited CEQ proposed to revise the definition environmental reviews and information to those actions that have an effect on of ‘‘notice of intent’’ in paragraph (u) to available to the public by electronic the environment, and does not include move the operative requirements for means. The 1978 regulations predate actions that do not have an effect on the what agencies must include in the personal computers and a wide range of environment. This change will make the notices to § 1501.9(d) and add the word technologies now used by agencies such as the modern internet and GIS mapping 123 See Daniel R. Mandelker et al., NEPA Law and 124 See Council on Environmental Quality, tools. To ensure that agencies do not Litigation, sec. 8:20 (2d ed. 2019) (‘‘This problem Aligning National Environmental Policy Act is sometimes called the ‘small handle’ problem Processes with Environmental Management exclude the affected public from the because [F]ederal action may be only be a ‘small Systems (Apr. 2007), https://ceq.doe.gov/docs/ceq- NEPA process due to a lack of resources handle’ on a non[-F]ederal project.’’). publications/NEPA_EMS_Guide_final_Apr2007.pdf. (often referred to as the ‘‘digital

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divide’’), the definition retains a 28. Definition of ‘‘Referring Agency’’ subsequent stages. This clarifies that provision for printed environmental CEQ proposed a grammatical edit to agencies have flexibility in structuring documents where necessary for effective the definition of referring agency in programmatic NEPA reviews and public participation. CEQ adds this paragraph (bb). CEQ makes this change associated tiering. CEQ proposed to definition as proposed in the final rule. in the final rule. move the operative language describing how any agency determines when and 26. New Definition of ‘‘Reasonable 29. Definition of ‘‘Scope’’ how to tier from 40 CFR 1508.28 to Alternatives’’ CEQ proposed to move the operative § 1501.11(b). CEQ makes these changes in the final rule. Several ANPRM commenters asked language from paragraph (cc), which CEQ to include a new definition of tells agencies how to determine the K. CEQ Guidance Documents scope of an EIS, to § 1501.9(e). CEQ ‘‘reasonable alternatives’’ in the makes this change in the final rule. In the proposed rule, CEQ stated that regulations with emphasis on how if the proposal was adopted as a final technical and economic feasibility 30. New Definition of ‘‘Senior Agency rule, it would supersede any previous should be evaluated. CEQ proposed a Official’’ CEQ NEPA guidance and handbooks. new definition of ‘‘reasonable CEQ proposed to define the new term With this final rule, CEQ clarifies that alternatives’’ in paragraph (z) to provide ‘‘senior agency official’’ in paragraph it will provide notice in the Federal that reasonable alternatives must be (dd) to provide for agency officials that Register listing withdrawn guidance. technically and economically feasible are responsible for the agency’s NEPA CEQ will issue updated or new and meet the purpose and need of the compliance. As reflected in comments, guidance consistent with Presidential proposed action. See, e.g., Vt. Yankee, implementation of NEPA can require directives. CEQ also intends to update 435 U.S. at 551 (‘‘alternatives must be significant agency resources. Without the Citizen’s Guide to NEPA.125 bounded by some notion of feasibility’’). senior agency official leadership and III. Rulemaking Analyses and Notices CEQ also proposed to define reasonable effective management of NEPA reviews, alternatives as ‘‘a reasonable range of the process can be lengthy, costly, and A. Executive Order 12866, Regulatory alternatives’’ to codify Questions 1a and subject to uncertainty and delays. CEQ Planning and Review and Executive 1b in the Forty Questions, supra note 2. seeks to advance efficiencies to ensure Order 13563, Improving Regulation and Agencies are not required to give that agencies use their limited resources Regulatory Review detailed consideration to alternatives to effectively consider environmental E.O. 12866 126 directs agencies to that are unlikely to be implemented impacts and support timely and assess all costs and benefits of available because they are infeasible, ineffective, informed decision making by the regulatory alternatives, and if regulation or inconsistent with the purpose and Federal Government. CEQ adds this is necessary, to select regulatory need for agency action. definition with some changes in the approaches that maximize net benefits, final rule. Specifically, CEQ does not including potential economic, Finally, CEQ proposed to clarify that include the phrase ‘‘and representing environmental, public health and safety a reasonable alternative must also agency analysis of the effects of agency effects, and other advantages; consider the goals of the applicant when actions on the human environmental in distributive impacts; and equity. E.O. the agency’s action involves a non- agency decision-making processes’’ 13563 127 reaffirms E.O. 12866, and Federal entity. These changes will help because the duties and responsibilities directs agencies to use a process that reduce paperwork and delays by of the ‘‘senior agency official,’’ provides for public participation in helping to clarify the range of including representing the agency, are developing rules; promotes alternatives that agencies must consider. discussed in various provisions of the coordination, simplification, and Where the agency action is in response subchapter. See §§ 1501.5(f), 1501.7(d), harmonization; and reduces burdens to an application for permit or other 1501.8(b)(6) and (c), 1501.10, 1502.7, and maintains flexibility. authorization, the agency should 1507.2. Section 3(f) of E.O. 12866 sets forth consider the applicant’s goals based on the four categories of regulatory action the agency’s statutory authorization to 31. Definition of ‘‘Special Expertise’’ that meet the definition of a significant act, as well as other congressional The NPRM did not propose any regulatory action. The first category directives, in defining the proposed changes to the definition of special includes rules that have an annual effect action’s purpose and need. CEQ adds expertise in paragraph (ee). CEQ did not on the economy of $100 million or this definition as proposed in the final revise this definition in the final rule. adversely affect in a material way the economy, a sector of the economy, rule. 32. Striking the Definition of productivity, competition, jobs, the ‘‘Significantly’’ 27. New Definition of ‘‘Reasonably environment, public health or safety, or Foreseeable’’ Because 40 CFR 1508.27 did not State, Tribal, or local governments or define ‘‘significantly,’’ but rather set out communities. Some commenters stated CEQ received comments on the factors for agencies to consider in ANPRM requesting that the regulations that this rulemaking would have such assessing whether a particular effect is an effect, and therefore CEQ should provide a definition of ‘‘reasonably significant, CEQ proposed to strike this have prepared a regulatory impact foreseeable.’’ CEQ proposed to define definition and discuss significance in statement. Commenters noted, for ‘‘reasonably foreseeable’’ in paragraph § 1501.3(b), as described in section example, proposed changes to the (aa) consistent with the ordinary person II.C.3. CEQ makes this change in the definition of effects, alternatives standard—that is what a person of final rule. analysis, and overall effect on the ordinary prudence in the position of the 33. Clarifying the Meaning of ‘‘Tiering’’ number of Federal actions subject to agency decision maker would consider NEPA as examples of impacts in reaching a decision. Sierra Club v. CEQ proposed to amend the Marsh, 976 F.2d 763, 767 (1st Cir. 1992). definition of ‘‘tiering’’ in paragraph (ff) 125 Supra note 29. CEQ adds this definition as proposed in to make clear that agencies may use EAs 126 58 FR 51735 (Oct. 4, 1993). the final rule. at the programmatic stage as well as the 127 76 FR 3821 (Jan. 21, 2011).

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contributing to an impact of over $100 material as appendices. The final rule expects this will begin to address the million on the public. also makes numerous changes to data gap that currently exists relating to CEQ agrees that this an economically improve the efficiency of the NEPA the administrative costs of NEPA significant action. However, many of the process and establishes presumptive compliance. changes made in this rule codify long- time limits for EAs of one year and for CEQ expects these and other changes standing practices and case law that EISs of two years, which may be in the final rule to catalyze economic have developed since CEQ issued the extended with approval of a senior benefits by expediting some reviews, 1978 regulations. Under OMB Circular agency official. CEQ expects the final including through improved A–4, ‘‘Regulatory Analysis’’ (Sept. 17, rule to reduce the length of EAs and coordination and management and less 2003),128 the ‘‘no action’’ baseline is EISs, and the time for completing and focus on non-significant impacts. ‘‘what the world will be like if the these analyses, and to lower Commenters from industry on both the proposed rule is not adopted.’’ Changes administrative costs government-wide. ANPRM and proposed rule frequently to the regulations based on long- A total of 1,276 EISs were completed discussed that delays under the 1978 standing guidance and Supreme Court from 2010 through 2018, and the regulations resulted in higher costs; case law would be included in the median EIS completion time was 3.5 however, these costs are difficult to baseline for the rule; therefore, their years with only 257 EISs completed in quantify. One estimate in 2015 found codification would generate marginal 2 years or less.131 Based on the that the cost of a 6-year delay in cost savings. Similarly, changes that efficiencies and presumptive time limit infrastructure projects across the clarify or otherwise improve the ability for EISs in the final rule, the length of electricity transmission, power to interpret and implement the time to complete the 1019 EISs that took generation, inland waterways, roads and regulations would have little to no longer than 2 years could be reduced by bridges, rail, and water (both drinking quantifiable impact. The appendix to 58 percent, assuming a 2-year and wastewater) sectors is $3.7 the Regulatory Impact Analysis for the completion time for all of those actions. trillion,134 which was subsequently Final Rule, Update to the Regulations Applying this potential time savings to updated to $3.9 trillion in 2018.135 Implementing the Procedural Provisions the total administrative cost to prepare There may be underlying permits and of the National Environmental Policy those EISs taking in excess of 2 years 129 consultations (e.g., the Endangered Act (‘‘RIA Appendix’’) provides a could result in roughly $744 million in Species Act) and other issues that summary of the anticipated economic savings over the 9-year time period for contribute to a delay and therefore and environmental impacts associated an annualized savings of roughly $83 allocating a portion of the cost to the with the changes in the final rule. In million (2016 adjusted dollars).132 The NEPA process would be challenging. evaluating economic and environmental amount of time required to prepare an NEPA is a procedural statute impacts, CEQ has considered the statute EIS does not necessarily correlate with requiring agencies to disclose and and Supreme Court case law, and the the total cost. However, for those EISs consider potential environmental effects 1978 regulations. As discussed taking over two years to prepare, in their decision-making processes. The throughout Section II and the Final Rule comparing the anticipated time savings Response to Comments, CEQ has made final rule does not alter any substantive with the respective administrative costs environmental law or regulation such as revisions to better align the regulations provides insight into the potential cost with the statute, codify Supreme Court the Clean Air Act, the Clean Water Act, savings that an agency may generate and the Endangered Species Act. Under case law and current agency practice, under the final rule. Additionally, CEQ improve the timeliness and efficiency of the final rule, agencies will continue to notes that there may be cost savings consider all significant impacts to the the NEPA process, and make other related to the preparation of EAs and changes to improve the clarity and environment. Although some may view application of CEs. While the cost of the changes in the final rule as reducing readability of the regulations. these actions is significantly lower, The revisions to CEQ’s regulations are the number or scope of analyses, CEQ agencies conduct such reviews in much anticipated to significantly lower has determined that, using a baseline of larger numbers than EISs. the statutory requirements of NEPA and administrative costs as a result of Agencies have not routinely tracked changes to reduce unnecessary Supreme Court case law, there are no costs of completing NEPA analyses.133 paperwork. Government-wide, the adverse environmental impacts (see RIA With implementation of this final rule, average number of pages for a final EIS Appendix). in particular § 1502.11(g), agencies will is approximately 661 pages. The final OMB has determined that this final be required to provide the estimated rule includes numerous changes to rule is an economically significant total cost of preparing an EIS. CEQ reduce the duplication of paperwork regulatory action because it may have an and establishes presumptive page limits annual effect on the economy of $100 131 See Council on Environmental Quality, EIS for EAs of 75 pages, and for EISs of 150 Timeline Data Excel Workbook, (June 12, 2020), million or more associated with lower pages (or 300 pages for proposals of https://ceq.doe.gov/docs/nepa-practice/CEQ_EIS_ administrative costs and reduced unusual scope or complexity).130 Timeline_Data_2020-6-12.xlsx. paperwork and delays in the However, agencies may request longer 132 This calculation uses the mid-point ($1.125 environmental review process. This rule million) of the $250,000 to $2 million cost range sets forth the government-wide process page limits with approval from a senior found in the NEPA Task Force report and assumes agency official and include additional a 58 percent reduction in costs for those EISs taking for implementing NEPA in a consistent longer than 2 years. NEPA Task Force Report, and coordinated manner. The rule will 128 68 FR 58366 (Oct. 10, 2003). supra, note 28. This number is similar to the cost also require agencies to update their 129 The Regulatory Impact Analysis for the Final data from the Department of Energy, which found existing NEPA procedures for Rule, Update to the Regulations Implementing the a median EIS cost of $1.4 million. GAO NEPA Procedural Provisions of the National Report, supra, note 91. Environmental Policy Act is available under 133 As noted above, a 2014 U.S. Government 134 Two Years, Not Ten, supra note 4. ‘‘Supporting Documents’’ in the docket on Accountability Office report found that Federal 135 Press Release, Common Good, Common Good regulations.gov under docket ID CEQ–2019–0003. agencies do not routinely track data on the cost of Updates the Cost of US Infrastructure Delays Costs 130 The 1978 regulations recommended the same completing NEPA analyses, and that the cost can Have Risen $200 Billion Over Five Years to Nearly page limits for EISs but did not include provisions vary considerably, depending on the complexity $3.9 Trillion (May 2018), https:// requiring agencies to meet those page limits. 40 CFR and scope of the project. GAO NEPA Report, supra www.commongood.org/wp-content/uploads/2018/ 1502.7. note 91. 05/Two-Years-Update.pdf.

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consistency with the changes set forth businesses. To the extent that the rule the final rule that there were in this final rule. may affect small entities, this ‘‘substantial legal questions as to rulemaking will make the NEPA process whether entities within the Executive B. Executive Order 13771, Reducing more efficient and consistent and clarify Office of the President are required to Regulation and Controlling Regulatory the procedural requirements, which prepare environmental assessments,’’ it Costs CEQ expects to directly benefit Federal also prepared a special environmental Under E.O. 13771,136 agencies must agencies and indirectly benefit all other assessment. 51 FR at 15619. The special identify for elimination two prior entities engaged in the process, environmental assessment issued in regulations for every one regulation including applicants seeking a Federal 1986 made a finding of no significant issued, and promulgate regulations permit and those engaged in NEPA environmental impact, and there was no consistent with a regulatory budget. compliance activities. In addition, CEQ finding made for the assessment of the This rule is a deregulatory action under expects that small businesses and 1978 regulations. E.O. 13771 and OMB’s guidance farmers seeking SBA or FSA guaranteed Some commenters expressed the view implementing E.O. 13771, titled loans will indirectly benefit from the that CEQ failed to comply with NEPA ‘‘Reducing Regulation and Controlling clarifying revisions in the final rule to when publishing the proposed rule that Regulatory Costs’’ (, 2017).137 the definition of major Federal action. precedes this final rule, and CEQ should CEQ anticipates that the changes made Accordingly, CEQ hereby certifies that have prepared an EA or EIS. The in this rule will reduce unnecessary the rule will not have a significant commenters stated that section paperwork and expedite some reviews economic impact on a substantial 102(2)(C) of NEPA requires through improved coordination and number of small entities. environmental review of major Federal management. actions. By not conducting an D. Congressional Review Act C. Regulatory Flexibility Act and environmental review under NEPA, Before a rule can take effect, the Executive Order 13272, Proper commenters stated that CEQ violated its Congressional Review Act (CRA) Consideration of Small Entities in own regulations and past practices in requires agencies to submit to the House Agency Rulemaking prior regulations. Other commenters of Representatives, Senate, and stated that NEPA review was required if The Regulatory Flexibility Act, as Comptroller General a report containing the proposed rule ‘‘created the amended, (RFA), 5 U.S.C. 601 et seq., a copy of the rule and a statement possibility’’ of significant impacts on and E.O. 13272 138 require agencies to identifying whether it is a ‘‘major rule.’’ the environment. They asserted that the assess the impacts of proposed and final 5 U.S.C. 801. OMB determines if a final proposed rule was a ‘‘sweeping re- rules on small entities. Under the RFA, rule constitutes a major rule. The CRA write’’ of the 1978 regulations that small entities include small businesses, defines a major rule as any rule that the would alter Federal agencies’ small organizations, and small Administrator of OMB’s Office of consideration of environmental effects governmental jurisdictions. An agency Information and Regulatory Affairs finds of proposed projects. Aspects of the must prepare a regulatory flexibility has resulted in or is likely to result in— proposed rule that were referenced in analysis at the proposed and final rule (A) an annual effect on the economy of this regard include expanded use of stages unless it determines and certifies $100,000,000 or more; (B) a major CEs, narrow definitions of significance that the rule, if promulgated, would not increase in costs or prices for and effects, weakened alternatives have a significant economic impact on consumers, individual industries, analysis, and reduced public a substantial number of small entities. 5 Federal, State, or local government participation and agency accountability. U.S.C. 605(b). An agency need not agencies, or geographic regions, or (C) Commenters asserted that the perform an analysis of small entity significant adverse effects on consequence of these changes is impacts when a rule does not directly competition, employment, investment, truncated analysis, a less informed regulate small entities. See Mid-Tex productivity, innovation, or on the public, and less mitigation. Electric Coop., Inc. v. FERC, 773 F.2d ability of United States-based CEQ disagrees with commenters. CEQ 327 (D.C. Cir. 1985). This rule does not enterprises to compete with foreign- prepared a special assessment on its directly regulate small entities. Rather, based enterprises in domestic and prior rules for illustrative purposes. it applies to Federal agencies and sets export markets. 5 U.S.C. 804(2). Those long-prior voluntary decisions do forth the process for their compliance OMB has determined that this final not forever establish that CEQ has an with NEPA. As noted above, NEPA is a rule is a major rule for purposes of the obligation to apply the CEQ’s procedural statute requiring agencies to Congressional Review Act. CEQ will regulations to changes to those disclose and consider potential submit a report, including the final rule, regulations. As noted above, CEQ has environmental effects in their decision- to both houses of Congress and the the authority to promulgate and revise making processes, and does not alter Government Accountability Office for its regulations consistent with Chevron any substantive environmental law or review. and other applicable case law. regulation. Under the final rule, This rule would not authorize any agencies will continue to consider all E. National Environmental Policy Act activity or commit resources to a project significant impacts to the environment. Under the CEQ regulations, major that may affect the environment. Similar A few commenters asserted that the Federal actions may include regulations. to the 1978 regulations, these rule would impact small entities, When CEQ issued regulations in 1978, regulations do not concern any including small businesses that provide it prepared a ‘‘special environmental particular environmental media, nor are services relating to the preparation of assessment’’ for illustrative purposes the regulations tied to a specific NEPA documents, outdoor recreation pursuant to E.O. 11991. 43 FR at 25232. environmental setting. Rather, these businesses, and other related small The NPRM for the 1978 regulations regulations apply generally to Federal stated ‘‘the impacts of procedural actions affecting the environment. No 136 82 FR 9339 (Feb. 3, 2017). regulations of this kind are not action under the regulations or specific 137 Available at https://www.whitehouse.gov/ sites/whitehouse.gov/files/omb/memoranda/2017/ susceptible to detailed analysis beyond issue or problem is singled out for M-17-21-OMB.pdf. that set out in the assessment.’’ Id. special consideration. See Council on 138 67 FR 53461 (Aug. 16, 2002). Similarly, in 1986, while CEQ stated in Environmental Quality, Special

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Environmental Assessment of The circumstances in this rule are Commenters stated that consultation Regulations Proposed Under E.O. 11991 distinctly different from the case law with the Fish and Wildlife Service and to Implement the Procedural Provisions referenced by commenters. Citizens for the National Marine Fisheries Service is of the National Environmental Policy Better Forestry pertains to the required because the rule may affect or Act, p. 6 (1978). Further, as stated by misapplication of an existing CE, where may adversely affect species listed CEQ when it proposed the regulations the court found that the agency under the ESA. In support of this point, in 1978, procedural rules of this kind improperly expanded the scope of an commenters referenced proposed are not susceptible to detailed analysis. existing CE when applying it to a changes to the definition of ‘‘effects’’ 43 FR at 25232. National Forest Management Act and ‘‘significantly,’’ development of Even if CEQ were required to prepare rulemaking. 481 F. Supp. at 1086. In alternatives, and obligations for agencies an EA, it likely would result in a FONSI. Sierra Club v. Bosworth, the court to obtain information. Commenters CEQ has reviewed the changes made in agreed with previous cases finding that noted that a programmatic consultation this final rule and determined that they the promulgation of agency NEPA may be appropriate where an agency would not result in environmental procedures, including the establishment promulgates regulations that may affect impacts. See RIA Appendix. For reasons of new CEs, did not itself require endangered species. Other commenters explained in the respective areas of this preparation of an EA or EIS, but that believe that the rule is contrary to preamble and further summarized in the agencies need only comply with CEQ section 7(a)(1) of ESA, which imposes a RIA Appendix, CEQ disagrees that the regulations setting forth procedural specific obligation upon all federal clarifications and changes to the requirements, including consultation agencies to carry out programs to processes that Federal agencies follow with CEQ, and Federal Register conserve endangered and threatened when relying on CEs, analyzing publication for public comment (40 CFR species. Commenters stated that the alternatives, and engaging the public 1507.3). 510 F.3d at 1022. The court, proposed changes eliminate or will themselves result in any however, found that the record relied on otherwise weaken requirements environmental impacts, let alone by the U.S. Forest Service to develop pertaining to the assessment of impacts potentially significant impacts. This and justify a CE was deficient. Id. at and, in doing so, CEQ fails to satisfy thorough review, in combination with 1026–30. Neither of the circumstances responsibilities under section 7(a)(1). the aforementioned circumstances of the in those cases is comparable to the CEQ disagrees that the special environmental assessments circumstances of this rule. Further, in aforementioned regulatory changes prepared for the 1978 and 1986 another relevant case, Heartwood v. U.S. ‘‘may affect’’ listed species or critical regulations, and the procedural nature Forest Service, the court found that habitat. Initially, it is important to note of these regulations, reinforces CEQ’s neither NEPA nor the CEQ regulations that commenters are conflating ESA and view that an EA is neither required nor required the agency to conduct an EA or NEPA. As courts have stated numerous necessary. an EIS prior to the promulgation of its times, these are two different statutes Moreover, preparing an EA for the procedures creating a CE. 230 F.3d 947, with different standards and definitions final rule would not meaningfully 954–55 (7th Cir. 2000). and, in fact, different underlying inform CEQ or the public. The policies. As discussed in section II.B.1, clarifications and changes in the final This rule serves as the primary the Supreme Court has stated that NEPA rule are entirely procedural and will regulation from which agencies develop is a procedural statute. In contrast, the help to inform the processes used by procedures to implement the statute. To ESA is principally focused on imposing Federal agencies to evaluate the prepare an EIS, as some commenters substantive duties on Federal agencies environmental effects of their proposed had requested, would necessitate that and the public. Regardless of how actions in the future. CEQ apply the 1978 regulations to a rule definitions or other procedures under For reasons explained in the that revises those same regulations. NEPA are changed under this regulation respective areas of this preamble and There is no indication that the statute or any other regulatory process, it will further summarized in the RIA contemplated such circumstances, and not change the requirements for Federal Appendix, CEQ disagrees that changes CEQ is not aware of other examples in agencies under the ESA or its relating to CEs, analysis of alternatives, law where the revisions to procedural implementing regulations. public participation, and agency rules were subject to the requirements of This rulemaking is procedural in responsibilities will have environmental the rule that those same rules replaced. nature, and therefore does not make any impacts, let alone potentially significant Further, the 1978 regulations do not final determination regarding the level ones. require agencies to prepare a NEPA of NEPA analysis required for particular In addition, commenters referenced analysis before establishing or updating actions. CEQ’s approach is consistent several court opinions in support of agency procedures for implementing with the approach taken by other their view that an agency’s NEPA. Since this rule would not Federal agencies that similarly make interpretation of a statute can be subject authorize any activity or commit determinations of no effect on listed to NEPA review when that resources to a project that may affect the species and critical habitat when interpretation can lead to subsequent, environment, preparation of an establishing or updating agency NEPA significant effects on the environment, environmental review is not required. procedures. CEQ also notes that neither including Citizens for Better Forestry v. F. Endangered Species Act the 1978 regulations nor the 1986 U.S. Dep’t of Agric., 481 F. Supp. 2d amendments indicate that CEQ 1059 (N.D. Cal. 2007) and Sierra Club v. Under the ESA, the promulgation of consulted under ESA section 7(a)(2). Bosworth, 510 F. 3d 1016 (9th Cir. regulations can be a discretionary Setting aside the procedural nature of 2007). Commenters stated that CEQ was agency action subject to section 7 of the this rule, CEQ reviewed it to determine required to request comment on the ESA. CEQ has determined that updating if it ‘‘may affect’’ listed species or their appropriate scope of the environmental its regulations implementing the designated critical habitat. CEQ has review of the proposed rule and then procedural provisions of NEPA has ‘‘no closely reviewed the impacts of all the prepare, and notice for public comment, effect’’ on listed species and critical changes made to the 1978 regulations, an EIS before or in tandem with its habitat. Therefore, ESA section 7 as summarized in the RIA Appendix publication. consultation is not required. and described in greater detail in the

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respective responses to comments. None changes, none of the changes to the Several commenters stated that it is of the changes to the 1978 regulations 1978 regulations are anticipated to have inaccurate for CEQ to conclude that the are anticipated to have environmental environmental impacts, including rule ‘‘is not a regulatory policy that has impacts, including potential effects to potential effects to listed species and Tribal implications,’’ under E.O. 13175. listed species and critical habitat. For critical habitat. In general, the changes Commenters noted that NEPA uniquely example, under § 1501.3 of the final improve the timeliness and efficiency of and substantially impacts Tribes, and rule, agencies should continue to the NEPA process while retaining Tribal lands are ordinarily held in consider listed species and designated requirements to analyze all Federal trust. Commenters also stated habitat when making a determination of environmental impacts covered within that through NEPA and its significance with respect to the level of the ambit of the statute. CEQ notes that implementing regulations, Tribes often NEPA review. the rulemaking is procedural in nature, engage with the Federal agency on Contrary to several comments, the and therefore does not make any final projects located within the Tribes’ final rule does not ignore cumulative determination regarding the level of ancestral lands, including on projects effects on listed species. Rather, the NEPA analysis required for particular that may affect cultural resources, final rule includes a definition of effects actions. sacred sites, and other resources. that comports with Supreme Court case Commenters noted Tribal nations law to encompass all effects that are G. Executive Order 13132, Federalism routinely participate in the NEPA reasonably foreseeable and have a E.O. 13132 requires agencies to process as participating, cooperating, or reasonably close causal relationship to develop an accountable process to sometimes lead agencies. Further, the the proposed action or alternatives. In ensure meaningful and timely input by proposed regulations specifically general, the changes improve the State and local officials in the contain provisions that explicitly timeliness and efficiency of the NEPA development of regulatory policies that reference Tribal nations. process while retaining requirements to have federalism implications.139 Commenters stated that consultation analyze all activities and environmental Policies that have federalism is required by the Presidential impacts covered within the scope of the implications include regulations that Memorandum for the Heads of statute. To the extent the rule modifies have substantial direct effects on the Executive Departments and Agencies on the 1978 regulations, the changes do not Tribal Consultation dated 5, States, on the relationship between the 141 diminish the quality and depth of national government and the States, or 2009, which supplements E.O. 13175 environmental review relative to the on the distribution of power and and requested formal consultation and baseline, which is defined as how NEPA additional meetings in their region with responsibilities among the various is conducted under applicable Supreme CEQ on the proposed rule. Commenters levels of government. This rule does not Court case law. stated that the Tribal meetings CEQ held have federalism implications because it Neither the ESA regulations nor the were insufficient in number or capacity applies to Federal agencies, not States. ESA Section 7 Consultation Handbook for meaningful consultation. Other However, CEQ notes that States may (1998) require the action agency to commenters stated that consultation elect to assume NEPA responsibilities request concurrence from the Fish and should start at the outset of the process, under Federal statutes. CEQ received Wildlife Service and National Marine and some reference comments provided comments in response to the NPRM Fisheries Service for determinations that on the need for consultation during the from a number of States, including those an action will have no effect on listed ANPRM process. Some commenters species or their critical habitat. The final that have assumed NEPA stated that CEQ should withdraw the rule does not change the obligations of responsibilities, and considered these proposed rule, and others asked that Federal agencies under the ESA; as comments in development of the final CEQ postpone or extend the comment noted above, importantly, all of the rule. period for the rulemaking in order to requirements under section 7 and H. Executive Order 13175, Consultation engage in consultation with Tribal associated implementing regulations and Coordination With Indian Tribal governments in order to make the and policies continue to apply Governments regulatory framework more responsive regardless of whether NEPA analysis is to Tribal needs. triggered or the form of the NEPA E.O. 13175 requires agencies to have The final rule does not meet the documentation. For the aforementioned a process to ensure meaningful and criteria in E.O. 13175 that require reasons, CEQ has determined that the timely input by Tribal officials in the government-to-government final rule will have no effect on ESA development of policies that have Tribal consultation. This rule does not impose listed species and designated critical implications.140 Such policies include substantial direct compliance costs on habitat. regulations that have substantial direct Tribal governments (section 5(b)) and To the extent commenters imply that, effects on one or more Indian Tribes, on does not preempt Tribal law (section under the authority of ESA section the relationship between the Federal 5(c)). However, CEQ solicited and 7(a)(1), CEQ can regulate Federal action Government and Indian Tribes, or on received numerous Tribal governmental agencies with regard to the ESA, this is the distribution of power and and organizational public comments not accurate. For example, CEQ does not responsibilities between the Federal during the rulemaking process. The have the authority, under the guise of Government and Indian Tribes. While comments received through the ANPRM NEPA, to dictate to Federal action the rule is not a regulatory policy that informed the development of CEQ’s agencies that they may only choose an has Tribal implications, the rule does, in proposed rule. For the proposed rule, alternative that has the most part, respond to Tribal government CEQ provided for a 60-day public conservation value for listed species or comments concerning Tribal sovereign comment period, which is consistent designated critical habitat. rights, interests, and the expertise of with the length of the comment period All Federal agencies continue to be Tribes in the NEPA process and the CEQ provided by CEQ for the original 1978 subject to the ESA and its requirements. regulations implementing NEPA. proposed regulations, as well as the Further, as described in detail in the APA and E.O. 12866. CEQ notified all RIA Appendix and in Final Rule 139 Supra note 75. Response to Comments on specific 140 Supra note 69. 141 74 FR 57881 (Nov. 9, 2009).

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Tribal leaders of federally recognized income populations.142 CEQ has address the specific circumstances of Tribes by email or mail of the proposed analyzed this final rule and determined their proposed actions. The final rule rule and invited comments. CEQ that it would not cause expands the already wide range of tools conducted additional Tribal outreach to disproportionately high and adverse agencies may use when providing notice solicit comments from Tribal leaders human health or environmental effects to potentially affected communities and and members through three listening on minority populations and low- inviting public involvement. CEQ has sessions held in Denver, Colorado, income populations. This rule would set made further changes to § 1506.6 in the Anchorage, Alaska, and Washington, forth implementing regulations for final rule to clarify that agencies should DC. CEQ made information to aid the NEPA; it is in the agency consider the public’s access to Tribes and the public’s review available implementation of NEPA when electronic media when selecting on its websites at www.whitehouse.gov/ conducting reviews of proposed agency appropriate methods for providing ceq and www.nepa.gov, including a actions where agencies can consider, as public notice and involvement. The redline version of the proposed changes, needed, environmental justice issues. final rule also better informs the public a presentation on the proposed rule, and Several commenters disagreed with by extending the scoping period so that other background information. CEQ’s determination that the proposed it may occur prior to publication of the One commenter argued that CEQ rule would not cause disproportionately NOI, where appropriate, and increasing made a ‘‘substantive’’ decision to forego high and adverse human health or the specificity of the NOI. Tribal consultation that it must support environmental effects on minority Commenters also raised concerns that with substantial evidence in the populations and low-income CEQ did not follow the E.O. 12898 administrative record under the APA. populations. Commenters stated NEPA’s directive to ensure that environmental While compliance with E.O. 13175 is mandate to consider environmental justice communities can meaningfully not subject to judicial review, the final effects, E.O. 12898, agency guidance, participate in public processes and rule explains how CEQ received and case law establish that agencies Federal agency decision making, meaningful and timely input from cannot ignore the impacts of their including making public information Tribal leaders and members. actions on low-income and minority and hearings ‘‘readily accessible.’’ In its ANPRM, CEQ included a communities, and that CEQ is Commenters stated that CEQ failed to specific question regarding the relinquishing its responsibility to follow this directive in designing its representation of Tribal governments in oversee compliance with E.O. 12898 rulemaking process, and in fact, the NEPA process. See ANPRM and NEPA. Further, commenters excluded environmental justice Question 18 (‘‘Are there ways in which contended that CEQ’s failure to analyze communities from the process. Further, the role of [T]ribal governments in the how the proposed rule and its commenters stated that, over 20 years NEPA process should be clarified in implementation would affect E.O. ago, CEQ acknowledged that traditional 12898’s mandates would render the notice and comment procedures may be CEQ’s NEPA regulations, and if so, regulations arbitrary and capricious, and insufficient to engage environmental how?’’). More generally, CEQ’s ANPRM exceed the agency’s statutory authority. justice communities. These barriers may sought the views of Tribal governments Commenters stated that CEQ provided range from agency failure to provide and others on regulatory revisions that no explanation or analysis of how the translation of documents to the CEQ could propose to improve Tribal development and implementation of scheduling of meetings at times and in participation in Federal NEPA this rule would affect implementation of places that are not convenient to processes. See ANPRM Question 2 E.O. 12898 and, consequently, working families. Commenters stated (‘‘Should CEQ’s NEPA regulations be environmental justice communities. that CEQ failed to mention revised to make the NEPA process more Commenters noted the fundamental environmental justice communities in efficient by better facilitating agency use proposed changes to nearly every step of its opening statement during the of environmental studies, analysis, and the NEPA review process will Washington, DC hearing. decisions conducted in earlier Federal, disproportionately impact Commenters also stated that CEQ State, Tribal or local environmental environmental justice communities and failed to take note of the thousands of reviews or authorization decisions, and will reduce or limit opportunities for comments submitted in response to the if so, how?’’). As discussed in section such communities to understand the ANPRM raising concerns about the II.A, CEQ is amending its regulations in effects of proposed projects and to health and environment of the final rule to further support participate in the NEPA review process. environmental justice communities that coordination with Tribal governments NEPA is a procedural statute that does could come from limiting opportunities and agencies and analysis of a proposed not presuppose any particular to gain access to information about action’s potential effects on Tribal substantive outcomes. In addition, CEQ projects and to comment. Commenters lands, resources, or areas of historic has reviewed the changes in this final stated that if CEQ’s rulemaking process significance as an important part of rule and has determined that they was more inclusive and expansive it Federal agency decision making. would not result in environmental would enable some valuable I. Executive Order 12898, Federal impacts. See RIA Appendix. CEQ clarifications in the regulations of how Actions To Address Environmental disagrees that the final rule will have environmental justice impacts should be Justice in Minority Populations and disproportionately high and adverse taken more definitively into account in Low-Income Populations human health or environmental effects NEPA reviews. Commenters also stated on minority populations and low- that the proposed rule changes show no E.O. 12898 requires agencies to make income population. Rather, the final particular interest in better clarifying achieving environmental justice part of rule modernizes and clarifies the this important aspect of environmental their missions by identifying and procedures that NEPA contemplates. review, and show no evidence of addressing, as appropriate, Among other things, this will give interest in bettering environmental disproportionately high and adverse agencies greater flexibility to design and justice impact assessment. human health or environmental effects customize public involvement to best In response to the ANPRM, CEQ of its programs, policies, and activities received over 12,500 comments, on minority populations and low- 142 59 FR 7629 (Feb. 16, 1994). including from those representing

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environmental justice organizations. K. Executive Order 12988, Civil Justice 40 CFR Part 1517 The diverse range of public comments Reform Sunshine Act. informed CEQ’s development of the 144 Under section 3(a) E.O. 12988, 40 CFR Part 1518 proposed rule to improve interagency agencies must review their proposed coordination in the environmental regulations to eliminate drafting errors Accounting, Administrative practice review process, promote earlier public and ambiguities, draft them to minimize and procedure, Environmental impact involvement, increase transparency, and litigation, and provide a clear legal statements. enhance the participation of States, standard for affected conduct. Section Mary B. Neumayr, Tribes, and localities. 3(b) provides a list of specific issues for Chairman. In issuing the NPRM, CEQ took a review to conduct the reviews required For the reasons stated in the number of further actions to hear from by section 3(a). CEQ has conducted this preamble, and under the authority of 42 the public and to encourage all review and determined that this final U.S.C. 4321–4347; 42 U.S.C. 4371–4375; interested stakeholders to submit rule complies with the requirements of 42 U.S.C. 7609; E.O. 11514, 35 FR 4247, comments. These actions included E.O. 12988. 3 CFR, 1966–1970, Comp., p. 902, as notifying and inviting comment from all L. Unfunded Mandates Reform Act amended by E.O. 11991, 42 FR 26967, federally recognized Tribes and over Section 201 of the Unfunded 3 CFR, 1977 Comp., p. 123; and E.O. 400 interested groups, including States, 13807, 82 FR 40463, 3 CFR, 2017, localities, environmental organizations, Mandates Reform Act of 1995 (2 U.S.C. 1531) requires Federal agencies to assess Comp., p. 369, the Council on trade associations, NEPA practitioners, Environmental Quality amends chapter and other interested members of the the effects of their regulatory actions on State, Tribal, and local governments, V in title 40 of the Code of Federal public, representing a broad range of Regulations as follows: diverse views. Additionally, CEQ made and the private sector to the extent that information to aid the public’s review such regulations incorporate PARTS 1500 THROUGH 1508 available on its websites at requirements specifically set forth in [DESIGNATED AS SUBCHAPTER A] www.whitehouse.gov/ceq and law. Before promulgating a rule that www.nepa.gov, including a redline may result in the expenditure by a State, ■ 1. Designate parts 1500 through 1508 version of the proposed changes to the Tribal, or local government, in the as subchapter A and add a heading for regulations, along with a presentation aggregate, or by the private sector of newly designated subchapter A to read on the proposed rule and other $100 million, adjusted annually for as follows: background information. inflation, in any one year, an agency must prepare a written statement that Subchapter A—National Environmental Policy Act Implementing Regulations CEQ engaged in extensive public assesses the effects on State, Tribal, and outreach with the benefit of modern local governments and the private ■ 2. Revise part 1500 to read as follows: technologies and rulemaking sector. 2 U.S.C. 1532. This final rule PART 1500—PURPOSE AND POLICY procedures. CEQ held two public applies to Federal agencies and would hearings each with morning, afternoon, not result in expenditures of $100 and evening sessions, in Denver, Sec. million or more for State, Tribal, and 1500.1 Purpose and policy. Colorado on , 2020, and in local governments, in the aggregate, or 1500.2 [Reserved]. Washington, DC on February 25, 2020. the private sector in any 1 year. This 1500.3 NEPA compliance. Both hearings had diverse action also does not impose any 1500.4 Reducing paperwork. representation from stakeholders, enforceable duty, contain any unfunded 1500.5 Reducing delay. 1500.6 Agency authority. including many speaking on behalf of mandate, or otherwise have any effect environmental justice communities or on small governments subject to the Authority: 42 U.S.C. 4321–4347; 42 U.S.C. about their concerns. CEQ also attended requirements of 2 U.S.C. 1531–38. 4371–4375; 42 U.S.C. 7609; E.O. 11514, 35 the National Environmental Justice FR 4247, 3 CFR, 1966–1970, Comp., p. 902, Advisory Committee (NEJAC) meeting M. Paperwork Reduction Act as amended by E.O. 11991, 42 FR 26967, 3 in Jacksonville, to brief NEJAC CFR, 1977 Comp., p. 123; and E.O. 13807, 82 This final rule does not impose any FR 40463, 3 CFR, 2017, Comp., p. 369. members and the public on the new information collection burden that proposed rule and to answer questions. would require additional review or § 1500.1 Purpose and policy. CEQ also conducted additional public approval by OMB under the Paperwork (a) The National Environmental outreach to solicit comments and Reduction Act (PRA), 44 U.S.C. 3501 et Policy Act (NEPA) is a procedural receive input, including Tribal seq. statute intended to ensure Federal engagement in Denver, Colorado, List of Subjects agencies consider the environmental Anchorage, Alaska and Washington, DC. impacts of their actions in the decision- J. Executive Order 13211, Actions 40 CFR Parts 1500, 1501, 1502, 1503, making process. Section 101 of NEPA Concerning Regulations That 1504, 1505, 1506, 1507, and 1508 establishes the national environmental Significantly Affect Energy Supply, Administrative practice and policy of the Federal Government to use Distribution, or Use procedure, Environmental impact all practicable means and measures to statements, Environmental protection, foster and promote the general welfare, Agencies must prepare a Statement of Natural resources. create and maintain conditions under Energy Effects for significant energy which man and nature can exist in actions under E.O. 13211.143 This final 40 CFR Part 1515 productive harmony, and fulfill the rule is not a ‘‘significant energy action’’ Freedom of information. social, economic, and other because it is not likely to have a requirements of present and future significant adverse effect on the supply, 40 CFR Part 1516 generations of Americans. Section distribution, or use of energy. Privacy. 102(2) of NEPA establishes the procedural requirements to carry out the 143 66 FR 28355 (May 22, 2001). 144 61 FR 4729 (Feb. 7, 1996). policy stated in section 101 of NEPA. In

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particular, it requires Federal agencies (, 2017). The regulations in subchapter should be resolved as to provide a detailed statement on this subchapter apply to the whole of expeditiously as possible. Consistent proposals for major Federal actions section 102(2) of NEPA. The provisions with their organic statutes, and as part significantly affecting the quality of the of the Act and the regulations in this of implementing the exhaustion human environment. The purpose and subchapter must be read together as a provisions in paragraph (b) of this function of NEPA is satisfied if Federal whole to comply with the law. section, agencies may structure their agencies have considered relevant (b) Exhaustion. (1) To ensure procedures to include an appropriate environmental information, and the informed decision making and reduce bond or other security requirement. public has been informed regarding the delays, agencies shall include a request (d) Remedies. Harm from the failure decision-making process. NEPA does for comments on potential alternatives to comply with NEPA can be remedied not mandate particular results or and impacts, and identification of any by compliance with NEPA’s procedural substantive outcomes. NEPA’s purpose relevant information, studies, or requirements as interpreted in the is not to generate paperwork or analyses of any kind concerning impacts regulations in this subchapter. It is the litigation, but to provide for informed affecting the quality of the human Council’s intention that the regulations decision making and foster excellent environment in the notice of intent to in this subchapter create no prepare an environmental impact action. presumption that violation of NEPA is statement (§ 1501.9(d)(7) of this (b) The regulations in this subchapter a basis for injunctive relief or for a implement section 102(2) of NEPA. chapter). (2) The draft and final environmental finding of irreparable harm. The They provide direction to Federal regulations in this subchapter do not agencies to determine what actions are impact statements shall include a summary of all alternatives, create a cause of action or right of action subject to NEPA’s procedural for violation of NEPA, which contains requirements and the level of NEPA information, and analyses submitted by State, Tribal, and local governments and no such cause of action or right of review where applicable. The action. It is the Council’s intention that regulations in this subchapter are other public commenters for consideration by the lead and any actions to review, enjoin, stay, intended to ensure that relevant vacate, or otherwise alter an agency environmental information is identified cooperating agencies in developing the draft and final environmental impact decision on the basis of an alleged and considered early in the process in NEPA violation be raised as soon as order to ensure informed decision statements (§ 1502.17 of this chapter). (3) For consideration by the lead and practicable after final agency action to making by Federal agencies. The avoid or minimize any costs to agencies, regulations in this subchapter are also cooperating agencies, State, Tribal, and local governments and other public applicants, or any affected third parties. intended to ensure that Federal agencies It is also the Council’s intention that conduct environmental reviews in a commenters must submit comments within the comment periods provided, minor, non-substantive errors that have coordinated, consistent, predictable and and comments shall be as specific as no effect on agency decision making timely manner, and to reduce possible (§§ 1503.1 and 1503.3 of this shall be considered harmless and shall unnecessary burdens and delays. chapter). Comments or objections of any not invalidate an agency action. Finally, the regulations in this kind not submitted, including those subchapter promote concurrent (e) Severability. The sections of this based on submitted alternatives, environmental reviews to ensure timely subchapter are separate and severable information, and analyses, shall be and efficient decision making. from one another. If any section or forfeited as unexhausted. portion therein is stayed or determined § 1500.2 [Reserved] (4) Informed by the submitted to be invalid, or the applicability of any alternatives, information, and analyses, section to any person or entity is held § 1500.3 NEPA compliance. including the summary in the final invalid, it is the Council’s intention that (a) Mandate. This subchapter is environmental impact statement the validity of the remainder of those applicable to and binding on all Federal (§ 1502.17 of this chapter) and the parts shall not be affected, with the agencies for implementing the agency’s response to comments in the remaining sections to continue in effect. procedural provisions of the National final environmental impact statement Environmental Policy Act of 1969, as (§ 1503.4 of this chapter), together with § 1500.4 Reducing paperwork. amended (Pub. L. 91–190, 42 U.S.C. any other material in the record that he Agencies shall reduce excessive 4321 et seq.) (NEPA or the Act), except or she determines relevant, the decision paperwork by: where compliance would be maker shall certify in the record of (a) Using categorical exclusions to inconsistent with other statutory decision that the agency considered all define categories of actions that requirements. The regulations in this of the alternatives, information, and normally do not have a significant effect subchapter are issued pursuant to analyses, and objections submitted by on the human environment and NEPA; the Environmental Quality States, Tribal, and local governments therefore do not require preparation of Improvement Act of 1970, as amended and other public commenters for an environmental impact statement (Pub. L. 91–224, 42 U.S.C. 4371 et seq.); consideration by the lead and (§ 1501.4 of this chapter). section 309 of the Clean Air Act, as cooperating agencies in developing the amended (42 U.S.C. 7609); Executive environmental impact statement (b) Using a finding of no significant Order 11514, Protection and (§ 1505.2(b) of this chapter). impact when an action not otherwise Enhancement of Environmental Quality (c) Review of NEPA compliance. It is excluded will not have a significant (, 1970), as amended by the Council’s intention that judicial effect on the human environment and Executive Order 11991, Relating to the review of agency compliance with the therefore does not require preparation of Protection and Enhancement of regulations in this subchapter not occur an environmental impact statement Environmental Quality (, 1977); before an agency has issued the record (§ 1501.6 of this chapter). and Executive Order 13807, Establishing of decision or taken other final agency (c) Reducing the length of Discipline and Accountability in the action. It is the Council’s intention that environmental documents by means Environmental Review and Permitting any allegation of noncompliance with such as meeting appropriate page limits Process for Infrastructure Projects NEPA and the regulations in this (§§ 1501.5(f) and 1502.7 of this chapter).

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(d) Preparing analytic and concise normally do not have a significant effect with the purposes and provisions of the environmental impact statements on the human environment (§ 1501.4 of Act as interpreted by the regulations in (§ 1502.2 of this chapter). this chapter) and therefore do not this subchapter. The phrase ‘‘to the (e) Discussing only briefly issues require preparation of an environmental fullest extent possible’’ in section 102 of other than significant ones (§ 1502.2(b) impact statement. NEPA means that each agency of the of this chapter). (b) Using a finding of no significant Federal Government shall comply with (f) Writing environmental impact impact when an action not otherwise that section, consistent with § 1501.1 of statements in plain language (§ 1502.8 of excluded will not have a significant this chapter. Nothing contained in the this chapter). effect on the human environment regulations in this subchapter is (g) Following a clear format for (§ 1501.6 of this chapter) and therefore intended or should be construed to limit environmental impact statements does not require preparation of an an agency’s other authorities or legal (§ 1502.10 of this chapter). environmental impact statement. responsibilities. (h) Emphasizing the portions of the (c) Integrating the NEPA process into ■ 3. Revise part 1501 to read as follows: environmental impact statement that are early planning (§ 1501.2 of this chapter). useful to decision makers and the public (d) Engaging in interagency PART 1501—NEPA AND AGENCY (e.g., §§ 1502.14 and 1502.15 of this cooperation before or as the PLANNING chapter) and reducing emphasis on environmental assessment or background material (§ 1502.1 of this environmental impact statement is Sec. chapter). prepared, rather than awaiting 1501.1 NEPA thresholds. (i) Using the scoping process, not only 1501.2 Apply NEPA early in the process. submission of comments on a 1501.3 Determine the appropriate level of to identify significant environmental completed document (§§ 1501.7 and NEPA review. issues deserving of study, but also to 1501.8 of this chapter). 1501.4 Categorical exclusions. deemphasize insignificant issues, (e) Ensuring the swift and fair 1501.5 Environmental assessments. narrowing the scope of the resolution of lead agency disputes 1501.6 Findings of no significant impact. environmental impact statement process (§ 1501.7 of this chapter). 1501.7 Lead agencies. accordingly (§ 1501.9 of this chapter). (f) Using the scoping process for an 1501.8 Cooperating agencies. (j) Summarizing the environmental early identification of what are and 1501.9 Scoping. impact statement (§ 1502.12 of this what are not the real issues (§ 1501.9 of 1501.10 Time limits. chapter). this chapter). 1501.11 Tiering. 1501.12 Incorporation by reference. (k) Using programmatic, policy, or (g) Meeting appropriate time limits for plan environmental impact statements the environmental assessment and Authority: 42 U.S.C. 4321–4347; 42 U.S.C. and tiering from statements of broad environmental impact statement 4371–4375; 42 U.S.C. 7609; E.O. 11514, 35 scope to those of narrower scope, to processes (§ 1501.10 of this chapter). FR 4247, 35 FR 4247, 3 CFR, 1966–1970, (h) Preparing environmental impact Comp., p. 902, as amended by E.O. 11991, 42 eliminate repetitive discussions of the FR 26967, 3 CFR, 1977 Comp., p. 123; and same issues (§§ 1501.11 and 1502.4 of statements early in the process (§ 1502.5 E.O. 13807, 82 FR 40463, 3 CFR, 2017, this chapter). of this chapter). Comp., p. 369. (l) Incorporating by reference (i) Integrating NEPA requirements (§ 1501.12 of this chapter). with other environmental review and § 1501.1 NEPA thresholds. (m) Integrating NEPA requirements consultation requirements (§ 1502.24 of (a) In assessing whether NEPA applies with other environmental review and this chapter). or is otherwise fulfilled, Federal consultation requirements (§ 1502.24 of (j) Eliminating duplication with State, agencies should determine: this chapter). Tribal, and local procedures by (1) Whether the proposed activity or (n) Requiring comments to be as providing for joint preparation of decision is expressly exempt from specific as possible (§ 1503.3 of this environmental documents where NEPA under another statute; chapter). practicable (§ 1506.2 of this chapter) and (2) Whether compliance with NEPA (o) Attaching and publishing only with other Federal procedures by would clearly and fundamentally changes to the draft environmental providing that agencies may jointly conflict with the requirements of impact statement, rather than rewriting prepare or adopt appropriate another statute; and publishing the entire statement environmental documents prepared by (3) Whether compliance with NEPA when changes are minor (§ 1503.4(c) of another agency (§ 1506.3 of this would be inconsistent with this chapter). chapter). Congressional intent expressed in (p) Eliminating duplication with (k) Combining environmental another statute; State, Tribal, and local procedures, by documents with other documents (4) Whether the proposed activity or providing for joint preparation of (§ 1506.4 of this chapter). decision is a major Federal action; environmental documents where (l) Using accelerated procedures for (5) Whether the proposed activity or practicable (§ 1506.2 of this chapter), proposals for legislation (§ 1506.8 of this decision, in whole or in part, is a non- and with other Federal procedures, by chapter). discretionary action for which the providing that an agency may adopt agency lacks authority to consider § 1500.6 Agency authority. appropriate environmental documents environmental effects as part of its prepared by another agency (§ 1506.3 of Each agency shall interpret the decision-making process; and this chapter). provisions of the Act as a supplement to (6) Whether the proposed action is an (q) Combining environmental its existing authority and as a mandate action for which another statute’s documents with other documents to view policies and missions in the requirements serve the function of (§ 1506.4 of this chapter). light of the Act’s national environmental agency compliance with the Act. objectives, to the extent consistent with (b) Federal agencies may make § 1500.5 Reducing delay. its existing authority. Agencies shall determinations under this section in Agencies shall reduce delay by: review their policies, procedures, and their agency NEPA procedures (a) Using categorical exclusions to regulations accordingly and revise them (§ 1507.3(d) of this chapter) or on an define categories of actions that as necessary to ensure full compliance individual basis, as appropriate.

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(1) Federal agencies may seek the should determine whether the proposed there are circumstances that lessen the Council’s assistance in making an action: impacts or other conditions sufficient to individual determination under this (1) Normally does not have significant avoid significant effects. section. effects and is categorically excluded (2) If the agency cannot categorically (2) An agency shall consult with other (§ 1501.4); exclude the proposed action, the agency Federal agencies concerning their (2) Is not likely to have significant shall prepare an environmental concurrence in statutory determinations effects or the significance of the effects assessment or environmental impact made under this section where more is unknown and is therefore appropriate statement, as appropriate. than one Federal agency administers the for an environmental assessment § 1501.5 Environmental assessments. statute. (§ 1501.5); or (3) Is likely to have significant effects (a) An agency shall prepare an § 1501.2 Apply NEPA early in the process. and is therefore appropriate for an environmental assessment for a (a) Agencies should integrate the environmental impact statement (part proposed action that is not likely to NEPA process with other planning and 1502 of this chapter). have significant effects or when the authorization processes at the earliest (b) In considering whether the effects significance of the effects is unknown reasonable time to ensure that agencies of the proposed action are significant, unless the agency finds that a consider environmental impacts in their agencies shall analyze the potentially categorical exclusion (§ 1501.4) is planning and decisions, to avoid delays affected environment and degree of the applicable or has decided to prepare an later in the process, and to head off effects of the action. Agencies should environmental impact statement. potential conflicts. consider connected actions consistent (b) An agency may prepare an (b) Each agency shall: with § 1501.9(e)(1). environmental assessment on any action (1) Comply with the mandate of (1) In considering the potentially in order to assist agency planning and section 102(2)(A) of NEPA to utilize a affected environment, agencies should decision making. (c) An environmental assessment systematic, interdisciplinary approach consider, as appropriate to the specific which will ensure the integrated use of shall: action, the affected area (national, (1) Briefly provide sufficient evidence the natural and social sciences and the regional, or local) and its resources, and analysis for determining whether to environmental design arts in planning such as listed species and designated prepare an environmental impact and in decision making which may have critical habitat under the Endangered statement or a finding of no significant an impact on man’s environment, as Species Act. Significance varies with impact; and specified by § 1507.2(a) of this chapter. the setting of the proposed action. For (2) Briefly discuss the purpose and (2) Identify environmental effects and instance, in the case of a site-specific need for the proposed action, values in adequate detail so the decision action, significance would usually alternatives as required by section maker can appropriately consider such depend only upon the effects in the 102(2)(E) of NEPA, and the effects and values alongside economic local area. environmental impacts of the proposed and technical analyses. Whenever (2) In considering the degree of the action and alternatives, and include a practicable, agencies shall review and effects, agencies should consider the listing of agencies and persons publish environmental documents and following, as appropriate to the specific consulted. appropriate analyses at the same time as action: (d) For applications to the agency other planning documents. (i) Both short- and long-term effects. requiring an environmental assessment, (3) Study, develop, and describe (ii) Both beneficial and adverse the agency shall commence the appropriate alternatives to effects. environmental assessment as soon as recommended courses of action in any (iii) Effects on public health and practicable after receiving the proposal that involves unresolved safety. application. conflicts concerning alternative uses of (iv) Effects that would violate Federal, (e) Agencies shall involve the public, available resources as provided by State, Tribal, or local law protecting the State, Tribal, and local governments, section 102(2)(E) of NEPA. environment. relevant agencies, and any applicants, to (4) Provide for actions subject to § 1501.4 Categorical exclusions. the extent practicable in preparing NEPA that are planned by private (a) For efficiency, agencies shall environmental assessments. applicants or other non-Federal entities (f) The text of an environmental identify in their agency NEPA before Federal involvement so that: assessment shall be no more than 75 procedures (§ 1507.3(e)(2)(ii) of this (i) Policies or designated staff are pages, not including appendices, unless chapter) categories of actions that available to advise potential applicants a senior agency official approves in normally do not have a significant effect of studies or other information writing an assessment to exceed 75 on the human environment, and foreseeably required for later Federal pages and establishes a new page limit. therefore do not require preparation of action. (g) Agencies may apply the following an environmental assessment or (ii) The Federal agency consults early provisions to environmental environmental impact statement. with appropriate State, Tribal, and local assessments: governments and with interested private (b) If an agency determines that a (1) Section 1502.21 of this chapter— persons and organizations when their categorical exclusion identified in its Incomplete or unavailable information; involvement is reasonably foreseeable. agency NEPA procedures covers a (2) Section 1502.23 of this chapter— (iii) The Federal agency commences proposed action, the agency shall Methodology and scientific accuracy; its NEPA process at the earliest evaluate the action for extraordinary and reasonable time (§§ 1501.5(d) and circumstances in which a normally (3) Section 1502.24 of this chapter— 1502.5(b) of this chapter). excluded action may have a significant Environmental review and consultation effect. requirements. § 1501.3 Determine the appropriate level of (1) If an extraordinary circumstance is NEPA review. present, the agency nevertheless may § 1501.6 Findings of no significant impact. (a) In assessing the appropriate level categorically exclude the proposed (a) An agency shall prepare a finding of NEPA review, Federal agencies action if the agency determines that of no significant impact if the agency

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determines, based on the environmental and which will be cooperating agencies. issue a joint finding of no significant assessment, not to prepare an The agencies shall resolve the lead impact. environmental impact statement agency question so as not to cause (h) With respect to cooperating because the proposed action will not delay. If there is disagreement among agencies, the lead agency shall: have significant effects. the agencies, the following factors (1) Request the participation of each (1) The agency shall make the finding (which are listed in order of descending cooperating agency in the NEPA process of no significant impact available to the importance) shall determine lead agency at the earliest practicable time. affected public as specified in designation: (2) Use the environmental analysis § 1506.6(b) of this chapter. (1) Magnitude of agency’s and proposals of cooperating agencies (2) In the following circumstances, the involvement. with jurisdiction by law or special agency shall make the finding of no (2) Project approval or disapproval expertise, to the maximum extent significant impact available for public authority. practicable. (3) Meet with a cooperating agency at review for 30 days before the agency (3) Expertise concerning the action’s the latter’s request. makes its final determination whether to environmental effects. prepare an environmental impact (4) Determine the purpose and need, (4) Duration of agency’s involvement. and alternatives in consultation with statement and before the action may (5) Sequence of agency’s involvement. begin: any cooperating agency. (d) Any Federal agency, or any State, (i) The lead agency shall develop a (i) The proposed action is or is closely Tribal, or local agency or private person similar to one that normally requires the schedule, setting milestones for all substantially affected by the absence of environmental reviews and preparation of an environmental impact lead agency designation, may make a statement under the procedures adopted authorizations required for written request to the senior agency implementation of the action, in by the agency pursuant to § 1507.3 of officials of the potential lead agencies consultation with any applicant and all this chapter; or that a lead agency be designated. (ii) The nature of the proposed action joint lead, cooperating, and (e) If Federal agencies are unable to participating agencies, as soon as is one without precedent. agree on which agency will be the lead (b) The finding of no significant practicable. agency or if the procedure described in (j) If the lead agency anticipates that impact shall include the environmental paragraph (c) of this section has not a milestone will be missed, it shall assessment or incorporate it by resulted in a lead agency designation notify appropriate officials at the reference and shall note any other within 45 days, any of the agencies or responsible agencies. As soon as environmental documents related to it persons concerned may file a request practicable, the responsible agencies (§ 1501.9(f)(3)). If the assessment is with the Council asking it to determine shall elevate the issue to the appropriate included, the finding need not repeat which Federal agency shall be the lead officials of the responsible agencies for any of the discussion in the assessment agency. A copy of the request shall be timely resolution. but may incorporate it by reference. transmitted to each potential lead (c) The finding of no significant agency. The request shall consist of: § 1501.8 Cooperating agencies. impact shall state the authority for any (1) A precise description of the nature (a) The purpose of this section is to mitigation that the agency has adopted and extent of the proposed action; and emphasize agency cooperation early in and any applicable monitoring or (2) A detailed statement of why each the NEPA process. Upon request of the enforcement provisions. If the agency potential lead agency should or should lead agency, any Federal agency with finds no significant impacts based on not be the lead agency under the criteria jurisdiction by law shall be a mitigation, the mitigated finding of no specified in paragraph (c) of this cooperating agency. In addition, upon significant impact shall state any section. request of the lead agency, any other enforceable mitigation requirements or (f) Any potential lead agency may file Federal agency with special expertise commitments that will be undertaken to a response within 20 days after a request with respect to any environmental issue avoid significant impacts. is filed with the Council. As soon as may be a cooperating agency. A State, Tribal, or local agency of similar § 1501.7 Lead agencies. possible, but not later than 20 days after qualifications may become a (a) A lead agency shall supervise the receiving the request and all responses to it, the Council shall determine which cooperating agency by agreement with preparation of an environmental impact the lead agency. An agency may request statement or a complex environmental Federal agency will be the lead agency and which other Federal agencies will that the lead agency designate it a assessment if more than one Federal cooperating agency, and a Federal be cooperating agencies. agency either: agency may appeal a denial of its (g) To the extent practicable, if a (1) Proposes or is involved in the request to the Council, in accordance proposal will require action by more same action; or with § 1501.7(e). (2) Is involved in a group of actions than one Federal agency and the lead (b) Each cooperating agency shall: directly related to each other because of agency determines that it requires (1) Participate in the NEPA process at their functional interdependence or preparation of an environmental impact the earliest practicable time. geographical proximity. statement, the lead and cooperating (2) Participate in the scoping process (b) Federal, State, Tribal, or local agencies shall evaluate the proposal in (described in § 1501.9). agencies, including at least one Federal a single environmental impact statement (3) On request of the lead agency, agency, may act as joint lead agencies to and issue a joint record of decision. To assume responsibility for developing prepare an environmental impact the extent practicable, if a proposal will information and preparing statement or environmental assessment require action by more than one Federal environmental analyses, including (§ 1506.2 of this chapter). agency and the lead agency determines portions of the environmental impact (c) If an action falls within the that it requires preparation of an statement or environmental assessment provisions of paragraph (a) of this environmental assessment, the lead and concerning which the cooperating section, the potential lead agencies shall cooperating agencies should evaluate agency has special expertise. determine, by letter or memorandum, the proposal in a single environmental (4) On request of the lead agency, which agency will be the lead agency assessment and, where appropriate, make available staff support to enhance

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the lead agency’s interdisciplinary (c) Scoping outreach. As part of the (iii) Are interdependent parts of a capability. scoping process the lead agency may larger action and depend on the larger (5) Normally use its own funds. To hold a scoping meeting or meetings, action for their justification. the extent available funds permit, the publish scoping information, or use (2) Alternatives, which include the no lead agency shall fund those major other means to communicate with those action alternative; other reasonable activities or analyses it requests from persons or agencies who may be courses of action; and mitigation cooperating agencies. Potential lead interested or affected, which the agency measures (not in the proposed action). agencies shall include such funding may integrate with any other early (3) Impacts. requirements in their budget requests. planning meeting. Such a scoping (f) Additional scoping responsibilities. (6) Consult with the lead agency in meeting will often be appropriate when As part of the scoping process, the lead developing the schedule (§ 1501.7(i)), the impacts of a particular action are agency shall: meet the schedule, and elevate, as soon confined to specific sites. (1) Identify and eliminate from as practicable, to the senior agency (d) Notice of intent. As soon as detailed study the issues that are not official of the lead agency any issues practicable after determining that a significant or have been covered by relating to purpose and need, proposal is sufficiently developed to prior environmental review(s) (§ 1506.3 alternatives, or other issues that may allow for meaningful public comment of this chapter), narrowing the affect any agencies’ ability to meet the and requires an environmental impact discussion of these issues in the schedule. statement, the lead agency shall publish statement to a brief presentation of why (7) Meet the lead agency’s schedule a notice of intent to prepare an they will not have a significant effect on for providing comments and limit its environmental impact statement in the the human environment or providing a comments to those matters for which it Federal Register, except as provided in reference to their coverage elsewhere. has jurisdiction by law or special § 1507.3(f)(3) of this chapter. An agency (2) Allocate assignments for expertise with respect to any also may publish notice in accordance preparation of the environmental impact environmental issue consistent with with § 1506.6 of this chapter. The notice statement among the lead and § 1503.2 of this chapter. shall include, as appropriate: cooperating agencies, with the lead (8) To the maximum extent (1) The purpose and need for the agency retaining responsibility for the practicable, jointly issue environmental proposed action; statement. documents with the lead agency. (2) A preliminary description of the (3) Indicate any public environmental (c) In response to a lead agency’s proposed action and alternatives the assessments and other environmental request for assistance in preparing the environmental impact statement will impact statements that are being or will environmental documents (described in consider; be prepared and are related to but are paragraph (b)(3), (4), or (5) of this (3) A brief summary of expected not part of the scope of the impact section), a cooperating agency may reply impacts; statement under consideration. that other program commitments (4) Identify other environmental (4) Anticipated permits and other preclude any involvement or the degree review, authorization, and consultation authorizations; of involvement requested in the action requirements so the lead and (5) A schedule for the decision- that is the subject of the environmental cooperating agencies may prepare other making process; impact statement or environmental required analyses and studies (6) A description of the public assessment. The cooperating agency concurrently and integrated with the scoping process, including any scoping shall submit a copy of this reply to the environmental impact statement, as meeting(s); Council and the senior agency official of provided in § 1502.24 of this chapter. the lead agency. (7) A request for identification of (5) Indicate the relationship between potential alternatives, information, and the timing of the preparation of § 1501.9 Scoping. analyses relevant to the proposed action environmental analyses and the (a) Generally. Agencies shall use an (see § 1502.17 of this chapter); and agencies’ tentative planning and early and open process to determine the (8) Contact information for a person decision-making schedule. scope of issues for analysis in an within the agency who can answer (g) Revisions. An agency shall revise environmental impact statement, questions about the proposed action and the determinations made under including identifying the significant the environmental impact statement. paragraphs (b), (c), (e), and (f) of this issues and eliminating from further (e) Determination of scope. As part of section if substantial changes are made study non-significant issues. Scoping the scoping process, the lead agency later in the proposed action, or if may begin as soon as practicable after shall determine the scope and the significant new circumstances or the proposal for action is sufficiently significant issues to be analyzed in information arise which bear on the developed for agency consideration. depth in the environmental impact proposal or its impacts. Scoping may include appropriate pre- statement. To determine the scope of application procedures or work environmental impact statements, § 1501.10 Time limits. conducted prior to publication of the agencies shall consider: (a) To ensure that agencies conduct notice of intent. (1) Actions (other than unconnected NEPA reviews as efficiently and (b) Invite cooperating and single actions) that may be connected expeditiously as practicable, Federal participating agencies. As part of the actions, which means that they are agencies should set time limits scoping process, the lead agency shall closely related and therefore should be appropriate to individual actions or invite the participation of likely affected discussed in the same impact statement. types of actions (consistent with the Federal, State, Tribal, and local agencies Actions are connected if they: time intervals required by § 1506.11 of and governments, the proponent of the (i) Automatically trigger other actions this chapter). action, and other likely affected or that may require environmental impact (b) To ensure timely decision making, interested persons (including those who statements; agencies shall complete: might not be in accord with the action), (ii) Cannot or will not proceed unless (1) Environmental assessments within unless there is a limited exception other actions are taken previously or 1 year unless a senior agency official of under § 1507.3(f)(1) of this chapter. simultaneously; or the lead agency approves a longer

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period in writing and establishes a new from consideration issues already PART 1502—ENVIRONMENTAL time limit. One year is measured from decided or not yet ripe at each level of IMPACT STATEMENT the date of agency decision to prepare environmental review. Tiering may also an environmental assessment to the be appropriate for different stages of Sec. 1502.1 Purpose of environmental impact publication of an environmental actions. assessment or a finding of no significant statement. (b) When an agency has prepared an 1502.2 Implementation. impact. environmental impact statement or 1502.3 Statutory requirements for (2) Environmental impact statements environmental assessment for a program statements. within 2 years unless a senior agency or policy and then prepares a 1502.4 Major Federal actions requiring the official of the lead agency approves a preparation of environmental impact subsequent statement or assessment on longer period in writing and establishes statements. a new time limit. Two years is measured an action included within the entire 1502.5 Timing. from the date of the issuance of the program or policy (such as a project- or 1502.6 Interdisciplinary preparation. notice of intent to the date a record of site-specific action), the tiered 1502.7 Page limits. decision is signed. document needs only to summarize and 1502.8 Writing. (c) The senior agency official may incorporate by reference the issues 1502.9 Draft, final, and supplemental discussed in the broader document. The statements. consider the following factors in 1502.10 Recommended format. determining time limits: tiered document shall concentrate on the issues specific to the subsequent 1502.11 Cover. (1) Potential for environmental harm. 1502.12 Summary. (2) Size of the proposed action. action. The tiered document shall state 1502.13 Purpose and need. (3) State of the art of analytic where the earlier document is available. 1502.14 Alternatives including the techniques. (c) Tiering is appropriate when the proposed action. (4) Degree of public need for the sequence from an environmental impact 1502.15 Affected environment. proposed action, including the statement or environmental assessment 1502.16 Environmental consequences. 1502.17 Summary of submitted alternatives, consequences of delay. is: (5) Number of persons and agencies information, and analyses. affected. (1) From a programmatic, plan, or 1502.18 List of preparers. policy environmental impact statement 1502.19 Appendix. (6) Availability of relevant 1502.20 Publication of the environmental information. or environmental assessment to a program, plan, or policy statement or impact statement. (7) Other time limits imposed on the 1502.21 Incomplete or unavailable agency by law, regulations, or Executive assessment of lesser or narrower scope information. order. or to a site-specific statement or 1502.22 Cost-benefit analysis. (d) The senior agency official may set assessment. 1502.23 Methodology and scientific overall time limits or limits for each (2) From an environmental impact accuracy. constituent part of the NEPA process, statement or environmental assessment 1502.24 Environmental review and consultation requirements. which may include: on a specific action at an early stage (1) Decision on whether to prepare an (such as need and site selection) to a Authority: 42 U.S.C. 4321–4347; 42 U.S.C. environmental impact statement (if not supplement (which is preferred) or a 4371–4375; 42 U.S.C. 7609; E.O. 11514, 35 already decided). FR 4247, 3 CFR, 1966–1970, Comp., p. 902, subsequent statement or assessment at a as amended by E.O. 11991, 42 FR 26967, 3 (2) Determination of the scope of the later stage (such as environmental environmental impact statement. CFR, 1977 Comp., p. 123; and E.O. 13807, 82 mitigation). Tiering in such cases is FR 40463, 3 CFR, 2017, Comp., p. 369. (3) Preparation of the draft appropriate when it helps the lead environmental impact statement. agency to focus on the issues that are § 1502.1 Purpose of environmental impact (4) Review of any comments on the ripe for decision and exclude from statement. draft environmental impact statement consideration issues already decided or from the public and agencies. The primary purpose of an (5) Preparation of the final not yet ripe. environmental impact statement prepared pursuant to section 102(2)(C) environmental impact statement. § 1501.12 Incorporation by reference. (6) Review of any comments on the of NEPA is to ensure agencies consider final environmental impact statement. Agencies shall incorporate material, the environmental impacts of their (7) Decision on the action based in such as planning studies, analyses, or actions in decision making. It shall part on the environmental impact other relevant information, into provide full and fair discussion of statement. environmental documents by reference significant environmental impacts and (e) The agency may designate a person when the effect will be to cut down on shall inform decision makers and the (such as the project manager or a person bulk without impeding agency and public of reasonable alternatives that in the agency’s office with NEPA public review of the action. Agencies would avoid or minimize adverse responsibilities) to expedite the NEPA shall cite the incorporated material in impacts or enhance the quality of the process. the document and briefly describe its human environment. Agencies shall (f) State, Tribal, or local agencies or content. Agencies may not incorporate focus on significant environmental members of the public may request a material by reference unless it is issues and alternatives and shall reduce Federal agency to set time limits. reasonably available for inspection by paperwork and the accumulation of extraneous background data. Statements § 1501.11 Tiering. potentially interested persons within the time allowed for comment. Agencies shall be concise, clear, and to the point, (a) Agencies should tier their shall not incorporate by reference and shall be supported by evidence that environmental impact statements and material based on proprietary data that the agency has made the necessary environmental assessments when it environmental analyses. An is not available for review and would eliminate repetitive discussions environmental impact statement is a comment. of the same issues, focus on the actual document that informs Federal agency issues ripe for decision, and exclude ■ 4. Revise part 1502 to read as follows: decision making and the public.

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§ 1502.2 Implementation. Federal actions, such as the adoption of no-go) stage and may supplement it at (a) Environmental impact statements new agency programs. When agencies a later stage, if necessary. shall not be encyclopedic. prepare such statements, they should be (b) For applications to the agency (b) Environmental impact statements relevant to the program decision and requiring an environmental impact shall discuss impacts in proportion to timed to coincide with meaningful statement, the agency shall commence their significance. There shall be only points in agency planning and decision the statement as soon as practicable brief discussion of other than significant making. after receiving the application. Federal issues. As in a finding of no significant (1) When preparing statements on agencies should work with potential impact, there should be only enough programmatic actions (including applicants and applicable State, Tribal, discussion to show why more study is proposals by more than one agency), and local agencies and governments not warranted. agencies may find it useful to evaluate prior to receipt of the application. (c) Environmental impact statements the proposal(s) in one of the following (c) For adjudication, the final shall be analytic, concise, and no longer ways: environmental impact statement shall than necessary to comply with NEPA (i) Geographically, including actions normally precede the final staff and with the regulations in this occurring in the same general location, recommendation and that portion of the subchapter. Length should be such as body of water, region, or public hearing related to the impact proportional to potential environmental metropolitan area. study. In appropriate circumstances, the effects and project size. (ii) Generically, including actions that statement may follow preliminary (d) Environmental impact statements have relevant similarities, such as hearings designed to gather information shall state how alternatives considered common timing, impacts, alternatives, for use in the statements. in it and decisions based on it will or methods of implementation, media, or (d) For informal rulemaking, the draft will not achieve the requirements of subject matter. environmental impact statement shall sections 101 and 102(1) of NEPA as (iii) By stage of technological normally accompany the proposed rule. interpreted in the regulations in this development including Federal or subchapter and other environmental federally assisted research, development § 1502.6 Interdisciplinary preparation. laws and policies. or demonstration programs for new Agencies shall prepare environmental (e) The range of alternatives discussed technologies that, if applied, could impact statements using an in environmental impact statements significantly affect the quality of the interdisciplinary approach that will shall encompass those to be considered human environment. Statements on ensure the integrated use of the natural by the decision maker. such programs should be available and social sciences and the (f) Agencies shall not commit before the program has reached a stage environmental design arts (section resources prejudicing selection of of investment or commitment to 102(2)(A) of NEPA). The disciplines of alternatives before making a final implementation likely to determine the preparers shall be appropriate to the decision (see also § 1506.1 of this subsequent development or restrict later scope and issues identified in the chapter). alternatives. scoping process (§ 1501.9 of this (g) Environmental impact statements (2) Agencies shall as appropriate chapter). shall serve as the means of assessing the employ scoping (§ 1501.9 of this § 1502.7 Page limits. environmental impact of proposed chapter), tiering (§ 1501.11 of this agency actions, rather than justifying chapter), and other methods listed in The text of final environmental decisions already made. §§ 1500.4 and 1500.5 of this chapter to impact statements (paragraphs (a)(4) relate programmatic and narrow actions through (6) of § 1502.10) shall be 150 § 1502.3 Statutory requirements for and to avoid duplication and delay. pages or fewer and, for proposals of statements. Agencies may tier their environmental unusual scope or complexity, shall be As required by section 102(2)(C) of analyses to defer detailed analysis of 300 pages or fewer unless a senior NEPA, environmental impact statements environmental impacts of specific agency official of the lead agency are to be included in every Federal program elements until such program approves in writing a statement to agency recommendation or report on elements are ripe for final agency action. exceed 300 pages and establishes a new proposals for legislation and other major page limit. § 1502.5 Timing. Federal actions significantly affecting the quality of the human environment. An agency should commence § 1502.8 Writing. preparation of an environmental impact Agencies shall write environmental § 1502.4 Major Federal actions requiring statement as close as practicable to the impact statements in plain language and the preparation of environmental impact time the agency is developing or may use appropriate graphics so that statements. receives a proposal so that preparation decision makers and the public can (a) Agencies shall define the proposal can be completed in time for the final readily understand such statements. that is the subject of an environmental statement to be included in any Agencies should employ writers of clear impact statement based on the statutory recommendation or report on the prose or editors to write, review, or edit authorities for the proposed action. proposal. The statement shall be statements, which shall be based upon Agencies shall use the criteria for scope prepared early enough so that it can the analysis and supporting data from (§ 1501.9(e) of this chapter) to determine serve as an important practical the natural and social sciences and the which proposal(s) shall be the subject of contribution to the decision-making environmental design arts. a particular statement. Agencies shall process and will not be used to evaluate in a single environmental rationalize or justify decisions already § 1502.9 Draft, final, and supplemental impact statement proposals or parts of made (§§ 1501.2 of this chapter and statements. proposals that are related to each other 1502.2). For instance: (a) Generally. Except for proposals for closely enough to be, in effect, a single (a) For projects directly undertaken by legislation as provided in § 1506.8 of course of action. Federal agencies, the agency shall this chapter, agencies shall prepare (b) Environmental impact statements prepare the environmental impact environmental impact statements in two may be prepared for programmatic statement at the feasibility analysis (go/ stages and, where necessary,

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supplement them, as provided in this chapter), or, if necessary, in a If practicable and noted where not paragraph (d)(1) of this section. finding of no significant impact practicable, agencies also should (b) Draft environmental impact supported by an environmental include costs incurred by cooperating statements. Agencies shall prepare draft assessment. and participating agencies, applicants, environmental impact statements in and contractors. accordance with the scope decided § 1502.10 Recommended format. upon in the scoping process (§ 1501.9 of (a) Agencies shall use a format for § 1502.12 Summary. this chapter). The lead agency shall environmental impact statements that Each environmental impact statement work with the cooperating agencies and will encourage good analysis and clear shall contain a summary that adequately shall obtain comments as required in presentation of the alternatives and accurately summarizes the part 1503 of this chapter. To the fullest including the proposed action. Agencies statement. The summary shall stress the extent practicable, the draft statement should use the following standard major conclusions, areas of disputed must meet the requirements established format for environmental impact issues raised by agencies and the public, for final statements in section 102(2)(C) statements unless the agency determines and the issues to be resolved (including of NEPA as interpreted in the that there is a more effective format for the choice among alternatives). The regulations in this subchapter. If a draft communication: summary normally will not exceed 15 statement is so inadequate as to (1) Cover. pages. (2) Summary. preclude meaningful analysis, the § 1502.13 Purpose and need. agency shall prepare and publish a (3) Table of contents. The statement shall briefly specify the supplemental draft of the appropriate (4) Purpose of and need for action. underlying purpose and need for the portion. At appropriate points in the (5) Alternatives including the proposed action. When an agency’s draft statement, the agency shall discuss proposed action (sections 102(2)(C)(iii) statutory duty is to review an all major points of view on the and 102(2)(E) of NEPA). application for authorization, the agency environmental impacts of the (6) Affected environment and shall base the purpose and need on the alternatives including the proposed environmental consequences (especially goals of the applicant and the agency’s action. sections 102(2)(C)(i), (ii), (iv), and (v) of (c) Final environmental impact NEPA). authority. statements. Final environmental impact (7) Submitted alternatives, § 1502.14 Alternatives including the statements shall address comments as information, and analyses. proposed action. required in part 1503 of this chapter. At (8) List of preparers. The alternatives section should appropriate points in the final (9) Appendices (if any). present the environmental impacts of statement, the agency shall discuss any (b) If an agency uses a different the proposed action and the alternatives responsible opposing view that was not format, it shall include paragraphs (a)(1) in comparative form based on the adequately discussed in the draft through (8) of this section, as further information and analysis presented in statement and shall indicate the described in §§ 1502.11 through the sections on the affected environment agency’s response to the issues raised. 1502.19, in any appropriate format. (§ 1502.15) and the environmental (d) Supplemental environmental § 1502.11 Cover. consequences (§ 1502.16). In this impact statements. Agencies: section, agencies shall: (1) Shall prepare supplements to The cover shall not exceed one page and include: (a) Evaluate reasonable alternatives to either draft or final environmental the proposed action, and, for impact statements if a major Federal (a) A list of the responsible agencies, including the lead agency and any alternatives that the agency eliminated action remains to occur, and: from detailed study, briefly discuss the (i) The agency makes substantial cooperating agencies. (b) The title of the proposed action reasons for their elimination. changes to the proposed action that are (b) Discuss each alternative that is the subject of the statement (and, relevant to environmental concerns; or considered in detail, including the if appropriate, the titles of related (ii) There are significant new proposed action, so that reviewers may cooperating agency actions), together circumstances or information relevant to evaluate their comparative merits. environmental concerns and bearing on with the State(s) and county(ies) (or (c) Include the no action alternative. the proposed action or its impacts. other jurisdiction(s), if applicable) (d) Identify the agency’s preferred (2) May also prepare supplements where the action is located. alternative or alternatives, if one or when the agency determines that the (c) The name, address, and telephone more exists, in the draft statement and purposes of the Act will be furthered by number of the person at the agency who identify such alternative in the final doing so. can supply further information. statement unless another law prohibits (3) Shall prepare, publish, and file a (d) A designation of the statement as the expression of such a preference. supplement to a statement (exclusive of a draft, final, or draft or final (e) Include appropriate mitigation scoping (§ 1501.9 of this chapter)) as a supplement. measures not already included in the draft and final statement, as is (e) A one-paragraph abstract of the proposed action or alternatives. appropriate to the stage of the statement statement. (f) Limit their consideration to a involved, unless the Council approves (f) The date by which the agency must reasonable number of alternatives. alternative procedures (§ 1506.12 of this receive comments (computed in chapter). cooperation with EPA under § 1506.11 § 1502.15 Affected environment. (4) May find that changes to the of this chapter). The environmental impact statement proposed action or new circumstances (g) For the final environmental impact shall succinctly describe the or information relevant to statement, the estimated total cost to environment of the area(s) to be affected environmental concerns are not prepare both the draft and final or created by the alternatives under significant and therefore do not require environmental impact statement, consideration, including the reasonably a supplement. The agency should including the costs of agency full-time foreseeable environmental trends and document the finding consistent with its equivalent (FTE) personnel hours, planned actions in the area(s). The agency NEPA procedures (§ 1507.3 of contractor costs, and other direct costs. environmental impact statement may

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combine the description with evaluation (10) Where applicable, economic and environmental impact statement, and it of the environmental consequences technical considerations, including the shall consist of: (§ 1502.16), and it shall be no longer economic benefits of the proposed (a) Material prepared in connection than is necessary to understand the action. with an environmental impact statement effects of the alternatives. Data and (b) Economic or social effects by (as distinct from material that is not so analyses in a statement shall be themselves do not require preparation of prepared and is incorporated by commensurate with the importance of an environmental impact statement. reference (§ 1501.12 of this chapter)). the impact, with less important material However, when the agency determines (b) Material substantiating any summarized, consolidated, or simply that economic or social and natural or analysis fundamental to the impact referenced. Agencies shall avoid useless physical environmental effects are statement. bulk in statements and shall concentrate interrelated, the environmental impact (c) Material relevant to the decision to effort and attention on important issues. statement shall discuss and give be made. Verbose descriptions of the affected appropriate consideration to these (d) For draft environmental impact environment are themselves no measure effects on the human environment. statements, all comments (or summaries of the adequacy of an environmental § 1502.17 Summary of submitted thereof where the response has been impact statement. alternatives, information, and analyses. exceptionally voluminous) received during the scoping process that (a) The draft environmental impact § 1502.16 Environmental consequences. identified alternatives, information, and statement shall include a summary that (a) The environmental consequences analyses for the agency’s consideration. identifies all alternatives, information, section forms the scientific and analytic (e) For final environmental impact and analyses submitted by State, Tribal, basis for the comparisons under statements, the comment summaries § 1502.14. It shall consolidate the and local governments and other public commenters during the scoping process and responses consistent with § 1503.4 discussions of those elements required of this chapter. by sections 102(2)(C)(i), (ii), (iv), and (v) for consideration by the lead and of NEPA that are within the scope of the cooperating agencies in developing the § 1502.20 Publication of the environmental statement and as much of section environmental impact statement. impact statement. (1) The agency shall append to the 102(2)(C)(iii) of NEPA as is necessary to Agencies shall publish the entire draft draft environmental impact statement or support the comparisons. This section and final environmental impact otherwise publish all comments (or should not duplicate discussions in statements and unchanged statements as summaries thereof where the response § 1502.14. The discussion shall include: provided in § 1503.4(c) of this chapter. has been exceptionally voluminous) (1) The environmental impacts of the The agency shall transmit the entire received during the scoping process that proposed action and reasonable statement electronically (or in paper identified alternatives, information, and alternatives to the proposed action and copy, if so requested due to economic or analyses for the agency’s consideration. other hardship) to: the significance of those impacts. The (2) Consistent with § 1503.1(a)(3) of (a) Any Federal agency that has comparison of the proposed action and this chapter, the lead agency shall invite jurisdiction by law or special expertise reasonable alternatives shall be based on comment on the summary identifying with respect to any environmental this discussion of the impacts. all submitted alternatives, information, impact involved and any appropriate (2) Any adverse environmental effects and analyses in the draft environmental Federal, State, Tribal, or local agency that cannot be avoided should the impact statement. proposal be implemented. (b) The final environmental impact authorized to develop and enforce (3) The relationship between short- statement shall include a summary that environmental standards. term uses of man’s environment and the identifies all alternatives, information, (b) The applicant, if any. maintenance and enhancement of long- and analyses submitted by State, Tribal, (c) Any person, organization, or term productivity. and local governments and other public agency requesting the entire (4) Any irreversible or irretrievable commenters for consideration by the environmental impact statement. commitments of resources that would be lead and cooperating agencies in (d) In the case of a final involved in the proposal should it be developing the final environmental environmental impact statement, any implemented. impact statement. person, organization, or agency that (5) Possible conflicts between the submitted substantive comments on the proposed action and the objectives of § 1502.18 List of preparers. draft. Federal, regional, State, Tribal, and local The environmental impact statement land use plans, policies and controls for § 1502.21 Incomplete or unavailable shall list the names, together with their information. the area concerned. (§ 1506.2(d) of this qualifications (expertise, experience, chapter) professional disciplines), of the persons (a) When an agency is evaluating (6) Energy requirements and who were primarily responsible for reasonably foreseeable significant conservation potential of various preparing the environmental impact adverse effects on the human alternatives and mitigation measures. statement or significant background environment in an environmental (7) Natural or depletable resource papers, including basic components of impact statement, and there is requirements and conservation potential the statement. Where possible, the incomplete or unavailable information, of various alternatives and mitigation environmental impact statement shall the agency shall make clear that such measures. identify the persons who are responsible information is lacking. (8) Urban quality, historic and for a particular analysis, including (b) If the incomplete but available cultural resources, and the design of the analyses in background papers. information relevant to reasonably built environment, including the reuse Normally the list will not exceed two foreseeable significant adverse impacts and conservation potential of various pages. is essential to a reasoned choice among alternatives and mitigation measures. alternatives, and the overall costs of (9) Means to mitigate adverse § 1502.19 Appendix. obtaining it are not unreasonable, the environmental impacts (if not fully If an agency prepares an appendix, agency shall include the information in covered under § 1502.14(e)). the agency shall publish it with the the environmental impact statement.

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(c) If the information relevant to § 1502.23 Methodology and scientific § 1503.1 Inviting comments and reasonably foreseeable significant accuracy. requesting information and analyses. adverse impacts cannot be obtained Agencies shall ensure the professional (a) After preparing a draft because the overall costs of obtaining it integrity, including scientific integrity, environmental impact statement and are unreasonable or the means to obtain of the discussions and analyses in before preparing a final environmental it are not known, the agency shall environmental documents. Agencies impact statement the agency shall: include within the environmental shall make use of reliable existing data (1) Obtain the comments of any impact statement: and resources. Agencies may make use Federal agency that has jurisdiction by (1) A statement that such information of any reliable data sources, such as law or special expertise with respect to is incomplete or unavailable; remotely gathered information or any environmental impact involved or (2) A statement of the relevance of the statistical models. They shall identify is authorized to develop and enforce incomplete or unavailable information any methodologies used and shall make environmental standards. to evaluating reasonably foreseeable explicit reference to the scientific and (2) Request the comments of: significant adverse impacts on the other sources relied upon for (i) Appropriate State, Tribal, and local human environment; conclusions in the statement. Agencies agencies that are authorized to develop (3) A summary of existing credible may place discussion of methodology in and enforce environmental standards; scientific evidence that is relevant to an appendix. Agencies are not required (ii) State, Tribal, or local governments evaluating the reasonably foreseeable to undertake new scientific and that may be affected by the proposed significant adverse impacts on the technical research to inform their action; human environment; and analyses. Nothing in this section is (iii) Any agency that has requested it (4) The agency’s evaluation of such intended to prohibit agencies from receive statements on actions of the impacts based upon theoretical compliance with the requirements of kind proposed; (iv) The applicant, if any; and approaches or research methods other statutes pertaining to scientific (v) The public, affirmatively soliciting generally accepted in the scientific and technical research. comments in a manner designed to community. § 1502.24 Environmental review and inform those persons or organizations (d) For the purposes of this section, consultation requirements. who may be interested in or affected by ‘‘reasonably foreseeable’’ includes (a) To the fullest extent possible, the proposed action. impacts that have catastrophic agencies shall prepare draft (3) Invite comment specifically on the consequences, even if their probability environmental impact statements submitted alternatives, information, and of occurrence is low, provided that the concurrent and integrated with analyses and the summary thereof analysis of the impacts is supported by environmental impact analyses and (§ 1502.17 of this chapter). credible scientific evidence, is not based related surveys and studies required by (b) An agency may request comments on pure conjecture, and is within the all other Federal environmental review on a final environmental impact rule of reason. laws and Executive orders applicable to statement before the final decision and § 1502.22 Cost-benefit analysis. the proposed action, including the Fish set a deadline for providing such and Wildlife Coordination Act (16 comments. Other agencies or persons If the agency is considering a cost- U.S.C. 661 et seq.), the National Historic benefit analysis for the proposed action may make comments consistent with Preservation Act of 1966 (54 U.S.C. the time periods under § 1506.11 of this relevant to the choice among 300101 et seq.), and the Endangered alternatives with different chapter. Species Act of 1973 (16 U.S.C. 1531 et (c) An agency shall provide for environmental effects, the agency shall seq.). electronic submission of public incorporate the cost-benefit analysis by (b) The draft environmental impact comments, with reasonable measures to reference or append it to the statement statement shall list all Federal permits, ensure the comment process is as an aid in evaluating the licenses, and other authorizations that accessible to affected persons. environmental consequences. In such must be obtained in implementing the cases, to assess the adequacy of proposal. If it is uncertain whether a § 1503.2 Duty to comment. compliance with section 102(2)(B) of Federal permit, license, or other Cooperating agencies and agencies NEPA (ensuring appropriate authorization is necessary, the draft that are authorized to develop and consideration of unquantified environmental impact statement shall so enforce environmental standards shall environmental amenities and values in indicate. comment on statements within their decision making, along with economical ■ 5. Revise part 1503 to read as follows: jurisdiction, expertise, or authority and technical considerations), the within the time period specified for statement shall discuss the relationship PART 1503—COMMENTING ON comment in § 1506.11 of this chapter. A between that analysis and any analyses ENVIRONMENTAL IMPACT Federal agency may reply that it has no of unquantified environmental impacts, STATEMENTS comment. If a cooperating agency is values, and amenities. For purposes of satisfied that the environmental impact complying with the Act, agencies need Sec. 1503.1 Inviting comments and requesting statement adequately reflects its views, not display the weighing of the merits it should reply that it has no comment. and drawbacks of the various information and analyses. 1503.2 Duty to comment. alternatives in a monetary cost-benefit § 1503.3 Specificity of comments and 1503.3 Specificity of comments and information. analysis and should not do so when information. there are important qualitative 1503.4 Response to comments. (a) To promote informed decision considerations. However, an making, comments on an environmental Authority: 42 U.S.C. 4321–4347; 42 U.S.C. environmental impact statement should 4371–4375; 42 U.S.C. 7609; E.O. 11514, 35 impact statement or on a proposed at least indicate those considerations, FR 4247, 3 CFR, 1966–1970, Comp., p. 902, action shall be as specific as possible, including factors not related to as amended by E.O. 11991, 42 FR 26967, 3 may address either the adequacy of the environmental quality, that are likely to CFR, 1977 Comp., p. 123; E.O. 13807, 82 FR statement or the merits of the be relevant and important to a decision. 40463, 3 CFR, 2017, Comp., p. 369. alternatives discussed or both, and shall

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provide as much detail as necessary to consider substantive comments timely (b) Section 309 of the Clean Air Act meaningfully participate and fully submitted during the public comment (42 U.S.C. 7609) directs the inform the agency of the commenter’s period. The agency may respond to Administrator of the Environmental position. Comments should explain why individual comments or groups of Protection Agency to review and the issues raised are important to the comments. In the final environmental comment publicly on the environmental consideration of potential impact statement, the agency may impacts of Federal activities, including environmental impacts and alternatives respond by: actions for which agencies prepare to the proposed action, as well as (1) Modifying alternatives including environmental impact statements. If, economic and employment impacts, and the proposed action. after this review, the Administrator other impacts affecting the quality of the (2) Developing and evaluating determines that the matter is human environment. Comments should alternatives not previously given serious ‘‘unsatisfactory from the standpoint of reference the corresponding section or consideration by the agency. public health or welfare or page number of the draft environmental (3) Supplementing, improving, or environmental quality,’’ section 309 impact statement, propose specific modifying its analyses. directs that the matter be referred to the changes to those parts of the statement, (4) Making factual corrections. Council (hereafter ‘‘environmental where possible, and include or describe (5) Explaining why the comments do referrals’’). the data sources and methodologies not warrant further agency response, (c) Under section 102(2)(C) of NEPA supporting the proposed changes. recognizing that agencies are not (42 U.S.C. 4332(2)(C)), other Federal (b) Comments on the submitted required to respond to each comment. agencies may prepare similar reviews of alternatives, information, and analyses (b) An agency shall append or environmental impact statements, and summary thereof (§ 1502.17 of this otherwise publish all substantive including judgments on the chapter) should be as specific as comments received on the draft acceptability of anticipated possible. Comments and objections of statement (or summaries thereof where environmental impacts. These reviews any kind shall be raised within the the response has been exceptionally must be made available to the President, comment period on the draft voluminous). the Council, and the public. environmental impact statement (c) If changes in response to provided by the agency, consistent with comments are minor and are confined to § 1504.2 Criteria for referral. § 1506.11 of this chapter. If the agency the responses described in paragraphs Environmental referrals should be requests comments on the final (a)(4) and (5) of this section, an agency made to the Council only after environmental impact statement before may write any changes on errata sheets concerted, timely (as early as practicable the final decision, consistent with and attach the responses to the in the process), but unsuccessful § 1503.1(b), comments and objections of statement instead of rewriting the draft attempts to resolve differences with the any kind shall be raised within the statement. In such cases, only the lead agency. In determining what comment period provided by the comments, the responses, and the environmental objections to the matter agency. Comments and objections of any changes and not the final statement are appropriate to refer to the Council, kind not provided within the comment need be published (§ 1502.20 of this an agency should weigh potential period(s) shall be considered chapter). The agency shall file the entire adverse environmental impacts, unexhausted and forfeited, consistent document with a new cover sheet with considering: with § 1500.3(b) of this chapter. the Environmental Protection Agency as (a) Possible violation of national (c) When a participating agency the final statement (§ 1506.10 of this environmental standards or policies; criticizes a lead agency’s predictive chapter). (b) Severity; methodology, the participating agency ■ 6. Revise part 1504 to read as follows: (c) Geographical scope; should describe the alternative (d) Duration; methodology that it prefers and why. PART 1504—PRE–DECISIONAL (e) Importance as precedents; (d) A cooperating agency shall specify REFERRALS TO THE COUNCIL OF (f) Availability of environmentally in its comments whether it needs PROPOSED FEDERAL ACTIONS preferable alternatives; and additional information to fulfill other DETERMINED TO BE (g) Economic and technical applicable environmental reviews or ENVIRONMENTALLY considerations, including the economic consultation requirements and what UNSATISFACTORY costs of delaying or impeding the information it needs. In particular, it Sec. decision making of the agencies shall specify any additional information 1504.1 Purpose. involved in the action. it needs to comment adequately on the 1504.2 Criteria for referral. draft statement’s analysis of significant § 1504.3 Procedure for referrals and 1504.3 Procedure for referrals and response. response. site-specific effects associated with the Authority: 42 U.S.C. 4321–4347; 42 U.S.C. granting or approving by that (a) A Federal agency making the 4371–4375; 42 U.S.C. 7609; E.O. 11514, 35 referral to the Council shall: cooperating agency of necessary Federal FR 4247, 3 CFR, 1966–1970, Comp., p. 902, permits, licenses, or authorizations. as amended by E.O. 11991, 42 FR 26967, 3 (1) Notify the lead agency at the (e) When a cooperating agency with CFR, 1977 Comp., p. 123; E.O. 13807, 82 FR earliest possible time that it intends to jurisdiction by law specifies mitigation 40463, 3 CFR, 2017, Comp., p. 369. refer a matter to the Council unless a measures it considers necessary to allow satisfactory agreement is reached; § 1504.1 Purpose. the agency to grant or approve (2) Include such a notification applicable permit, license, or related (a) This part establishes procedures whenever practicable in the referring requirements or concurrences, the for referring to the Council Federal agency’s comments on the cooperating agency shall cite to its interagency disagreements concerning environmental assessment or draft applicable statutory authority. proposed major Federal actions that environmental impact statement; might cause unsatisfactory (3) Identify any essential information § 1503.4 Response to comments. environmental effects. It provides means that is lacking and request that the lead (a) An agency preparing a final for early resolution of such agency make it available at the earliest environmental impact statement shall disagreements. possible time; and

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(4) Send copies of the referring upon being informed that there will be timely publish a concise public record agency’s views to the Council. no response (unless the lead agency of decision or joint record of decision. (b) The referring agency shall deliver agrees to a longer time), the Council The record, which each agency may its referral to the Council no later than may take one or more of the following integrate into any other record it 25 days after the lead agency has made actions: prepares, shall: the final environmental impact (1) Conclude that the process of (1) State the decision. statement available to the referral and response has successfully (2) Identify alternatives considered by Environmental Protection Agency, resolved the problem. the agency in reaching its decision, participating agencies, and the public, (2) Initiate discussions with the specifying the alternative or alternatives and in the case of an environmental agencies with the objective of mediation considered environmentally preferable. assessment, no later than 25 days after with referring and lead agencies. An agency may discuss preferences the lead agency makes it available. (3) Obtain additional views and among alternatives based on relevant Except when the lead agency grants an information. factors including economic and extension of this period, the Council (4) Determine that the issue is not one technical considerations and agency will not accept a referral after that date. of national importance and request the statutory missions. An agency shall (c) The referral shall consist of: referring and lead agencies to pursue identify and discuss all such factors, (1) A copy of the letter signed by the their decision process. including any essential considerations head of the referring agency and (5) Determine that the referring and of national policy, that the agency delivered to the lead agency informing lead agencies should further negotiate balanced in making its decision and the lead agency of the referral and the the issue, and the issue is not state how those considerations entered reasons for it; and appropriate for Council consideration into its decision. (2) A statement supported by factual until one or more heads of agencies (3) State whether the agency has evidence leading to the conclusion that report to the Council that the agencies’ adopted all practicable means to avoid the matter is unsatisfactory from the disagreements are irreconcilable. or minimize environmental harm from standpoint of public health or welfare or (6) Publish its findings and the alternative selected, and if not, why environmental quality. The statement recommendations (including, where the agency did not. The agency shall shall: appropriate, a finding that the submitted adopt and summarize, where applicable, (i) Identify any disputed material facts evidence does not support the position a monitoring and enforcement program and incorporate (by reference if of an agency). for any enforceable mitigation appropriate) agreed upon facts; (7) When appropriate, submit the requirements or commitments. (ii) Identify any existing referral and the response together with (b) Informed by the summary of the environmental requirements or policies the Council’s recommendation to the submitted alternatives, information, and that would be violated by the matter; President for action. analyses in the final environmental (iii) Present the reasons for the (g) The Council shall take no longer impact statement (§ 1502.17(b) of this referral; than 60 days to complete the actions chapter), together with any other (iv) Contain a finding by the agency specified in paragraph (f)(2), (3), or (5) material in the record that he or she whether the issue raised is of national of this section. determines to be relevant, the decision importance because of the threat to (h) The referral process is not maker shall certify in the record of national environmental resources or intended to create any private rights of decision that the agency has considered policies or for some other reason; action or to be judicially reviewable all of the alternatives, information, (v) Review the steps taken by the because any voluntary resolutions by analyses, and objections submitted by referring agency to bring its concerns to the agency parties do not represent final State, Tribal, and local governments and the attention of the lead agency at the agency action and instead are only public commenters for consideration by earliest possible time; and provisional and dependent on later the lead and cooperating agencies in (vi) Give the referring agency’s consistent action by the action agencies. developing the environmental impact recommendations as to what mitigation statement. Agency environmental ■ 7. Revise part 1505 to read as follows: alternative, further study, or other impact statements certified in course of action (including PART 1505—NEPA AND AGENCY accordance with this section are entitled abandonment of the matter) are DECISION MAKING to a presumption that the agency has necessary to remedy the situation. considered the submitted alternatives, (d) No later than 25 days after the Sec. information, and analyses, including the referral to the Council, the lead agency 1505.1 [Reserved] summary thereof, in the final may deliver a response to the Council 1505.2 Record of decision in cases requiring environmental impact statement and the referring agency. If the lead environmental impact statements. (§ 1502.17(b)). agency requests more time and gives 1505.3 Implementing the decision. assurance that the matter will not go Authority: 42 U.S.C. 4321–4347; 42 U.S.C. § 1505.3 Implementing the decision. forward in the interim, the Council may 4371–4375; 42 U.S.C. 7609; E.O. 11514, 35 Agencies may provide for monitoring grant an extension. The response shall: FR 4247, 3 CFR, 1966–1970, Comp., p. 902, to assure that their decisions are carried (1) Address fully the issues raised in as amended by E.O. 11991, 42 FR 26967, 3 out and should do so in important cases. the referral; CFR, 1977 Comp., p. 123; and E.O. 13807, 82 Mitigation (§ 1505.2(a)(3)) and other (2) Be supported by evidence and FR 40463, 3 CFR, 2017, Comp., p. 369. conditions established in the explanations, as appropriate; and § 1505.1 [Reserved] environmental impact statement or (3) Give the lead agency’s response to during its review and committed as part the referring agency’s recommendations. § 1505.2 Record of decision in cases of the decision shall be implemented by (e) Applicants may provide views in requiring environmental impact statements. the lead agency or other appropriate writing to the Council no later than the (a) At the time of its decision consenting agency. The lead agency response. (§ 1506.11 of this chapter) or, if shall: (f) No later than 25 days after receipt appropriate, its recommendation to (a) Include appropriate conditions in of both the referral and any response or Congress, each agency shall prepare and grants, permits, or other approvals.

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(b) Condition funding of actions on acquisition of interests in land (e.g., fee these requirements, as well as those of mitigation. simple, rights-of-way, and conservation Federal laws, so that one document will (c) Upon request, inform cooperating easements), purchase of long lead-time comply with all applicable laws. or participating agencies on progress in equipment, and purchase options made (d) To better integrate environmental carrying out mitigation measures that by applicants. impact statements into State, Tribal, or they have proposed and were adopted (c) While work on a required local planning processes, environmental by the agency making the decision. programmatic environmental review is impact statements shall discuss any (d) Upon request, publish the results in progress and the action is not covered inconsistency of a proposed action with of relevant monitoring. by an existing programmatic review, any approved State, Tribal, or local plan ■ 8. Revise part 1506 to read as follows: agencies shall not undertake in the or law (whether or not federally interim any major Federal action sanctioned). Where an inconsistency PART 1506—OTHER REQUIREMENTS covered by the program that may exists, the statement should describe the OF NEPA significantly affect the quality of the extent to which the agency would human environment unless such action: reconcile its proposed action with the Sec. (1) Is justified independently of the plan or law. While the statement should 1506.1 Limitations on actions during NEPA process. program; discuss any inconsistencies, NEPA does 1506.2 Elimination of duplication with (2) Is itself accompanied by an not require reconciliation. adequate environmental review; and State, Tribal, and local procedures. § 1506.3 Adoption. 1506.3 Adoption. (3) Will not prejudice the ultimate 1506.4 Combining documents. decision on the program. Interim action (a) Generally. An agency may adopt a 1506.5 Agency responsibility for prejudices the ultimate decision on the Federal draft or final environmental environmental documents. program when it tends to determine impact statement, environmental 1506.6 Public involvement. subsequent development or limit assessment, or portion thereof, or 1506.7 Further guidance. alternatives. categorical exclusion determination 1506.8 Proposals for legislation. provided that the statement, assessment, 1506.9 Proposals for regulations. § 1506.2 Elimination of duplication with portion thereof, or determination meets 1506.10 Filing requirements. State, Tribal, and local procedures. the standards for an adequate statement, 1506.11 Timing of agency action. (a) Federal agencies are authorized to 1506.12 Emergencies. assessment, or determination under the 1506.13 Effective date. cooperate with State, Tribal, and local regulations in this subchapter. agencies that are responsible for (b) Environmental impact statements. Authority: 42 U.S.C. 4321–4347; 42 U.S.C. preparing environmental documents, (1) If the actions covered by the original 4371–4375; 42 U.S.C. 7609; E.O. 11514, 35 including those prepared pursuant to environmental impact statement and the FR 4247, 3 CFR, 1966–1970, Comp., p. 902, as amended by E.O. 11991, 42 FR 26967, 3 section 102(2)(D) of NEPA. proposed action are substantially the CFR, 1977 Comp., p. 123; and E.O. 13807, 82 (b) To the fullest extent practicable same, the adopting agency shall FR 40463, 3 CFR, 2017, Comp., p. 369. unless specifically prohibited by law, republish it as a final statement agencies shall cooperate with State, consistent with § 1506.10. If the actions § 1506.1 Limitations on actions during Tribal, and local agencies to reduce are not substantially the same, the NEPA process. duplication between NEPA and State, adopting agency shall treat the (a) Except as provided in paragraphs Tribal, and local requirements, statement as a draft and republish it, (b) and (c) of this section, until an including through use of studies, consistent with § 1506.10. agency issues a finding of no significant analysis, and decisions developed by (2) Notwithstanding paragraph (b)(1) impact, as provided in § 1501.6 of this State, Tribal, or local agencies. Except of this section, a cooperating agency chapter, or record of decision, as for cases covered by paragraph (a) of may adopt in its record of decision provided in § 1505.2 of this chapter, no this section, such cooperation shall without republishing the environmental action concerning the proposal may be include, to the fullest extent practicable: impact statement of a lead agency when, taken that would: (1) Joint planning processes. after an independent review of the (1) Have an adverse environmental (2) Joint environmental research and statement, the cooperating agency impact; or studies. concludes that its comments and (2) Limit the choice of reasonable (3) Joint public hearings (except suggestions have been satisfied. alternatives. where otherwise provided by statute). (c) Environmental assessments. If the (b) If any agency is considering an (4) Joint environmental assessments. actions covered by the original application from a non-Federal entity (c) To the fullest extent practicable environmental assessment and the and is aware that the applicant is about unless specifically prohibited by law, proposed action are substantially the to take an action within the agency’s agencies shall cooperate with State, same, the adopting agency may adopt jurisdiction that would meet either of Tribal, and local agencies to reduce the environmental assessment in its the criteria in paragraph (a) of this duplication between NEPA and finding of no significant impact and section, then the agency shall promptly comparable State, Tribal, and local provide notice consistent with § 1501.6 notify the applicant that the agency will requirements. Such cooperation shall of this chapter. take appropriate action to ensure that include, to the fullest extent practicable, (d) Categorical exclusions. An agency the objectives and procedures of NEPA joint environmental impact statements. may adopt another agency’s are achieved. This section does not In such cases, one or more Federal determination that a categorical preclude development by applicants of agencies and one or more State, Tribal, exclusion applies to a proposed action plans or designs or performance of other or local agencies shall be joint lead if the action covered by the original activities necessary to support an agencies. Where State or Tribal laws or categorical exclusion determination and application for Federal, State, Tribal, or local ordinances have environmental the adopting agency’s proposed action local permits or assistance. An agency impact statement or similar are substantially the same. The agency considering a proposed action for requirements in addition to but not in shall document the adoption. Federal funding may authorize such conflict with those in NEPA, Federal (e) Identification of certain activities, including, but not limited to, agencies may cooperate in fulfilling circumstances. The adopting agency

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shall specify if one of the following or other interest in the outcome of the (c) Hold or sponsor public hearings, circumstances is present: action. Such statement need not include public meetings, or other opportunities (1) The agency is adopting an privileged or confidential trade secrets for public involvement whenever assessment or statement that is not final or other confidential business appropriate or in accordance with within the agency that prepared it. information. statutory requirements applicable to the (2) The action assessed in the (5) Nothing in this section is intended agency. Agencies may conduct public assessment or statement is the subject of to prohibit any agency from requesting hearings and public meetings by means a referral under part 1504 of this any person, including the applicant, to of electronic communication except chapter. submit information to it or to prohibit where another format is required by (3) The assessment or statement’s any person from submitting information law. When selecting appropriate adequacy is the subject of a judicial to any agency for use in preparing methods for public involvement, action that is not final. environmental documents. agencies shall consider the ability of affected entities to access electronic § 1506.4 Combining documents. § 1506.6 Public involvement. media. Agencies should combine, to the Agencies shall: (d) Solicit appropriate information fullest extent practicable, any (a) Make diligent efforts to involve the from the public. environmental document with any other public in preparing and implementing (e) Explain in its procedures where agency document to reduce duplication their NEPA procedures (§ 1507.3 of this interested persons can get information and paperwork. chapter). or status reports on environmental (b) Provide public notice of NEPA- impact statements and other elements of § 1506.5 Agency responsibility for related hearings, public meetings, and environmental documents. the NEPA process. other opportunities for public (f) Make environmental impact (a) Responsibility. The agency is involvement, and the availability of statements, the comments received, and responsible for the accuracy, scope environmental documents so as to any underlying documents available to (§ 1501.9(e) of this chapter), and content inform those persons and agencies who the public pursuant to the provisions of of environmental documents prepared may be interested or affected by their the Freedom of Information Act, as by the agency or by an applicant or proposed actions. When selecting amended (5 U.S.C. 552). contractor under the supervision of the appropriate methods for providing agency. public notice, agencies shall consider § 1506.7 Further guidance. (b) Information. An agency may the ability of affected persons and (a) The Council may provide further require an applicant to submit agencies to access electronic media. guidance concerning NEPA and its environmental information for possible (1) In all cases, the agency shall notify procedures consistent with Executive use by the agency in preparing an those who have requested notice on an Order 13807, Establishing Discipline environmental document. An agency individual action. and Accountability in the also may direct an applicant or (2) In the case of an action with effects Environmental Review and Permitting authorize a contractor to prepare an of national concern, notice shall include Process for Infrastructure Projects environmental document under the publication in the Federal Register. An (, 2017), Executive Order supervision of the agency. agency may notify organizations that 13891, Promoting the Rule of Law (1) The agency should assist the have requested regular notice. Through Improved Agency Guidance applicant by outlining the types of (3) In the case of an action with effects Documents ( 9, 2019), and any information required or, for the primarily of local concern, the notice other applicable Executive orders. preparation of environmental may include: (b) To the extent that Council documents, shall provide guidance to (i) Notice to State, Tribal, and local guidance issued prior to , the applicant or contractor and agencies that may be interested or 2020 is in conflict with this subchapter, participate in their preparation. affected by the proposed action. the provisions of this subchapter apply. (2) The agency shall independently (ii) Notice to interested or affected evaluate the information submitted or State, Tribal, and local governments. § 1506.8 Proposals for legislation. the environmental document and shall (iii) Following the affected State or (a) When developing legislation, be responsible for its accuracy, scope, Tribe’s public notice procedures for agencies shall integrate the NEPA and contents. comparable actions. process for proposals for legislation (3) The agency shall include in the (iv) Publication in local newspapers significantly affecting the quality of the environmental document the names and (in papers of general circulation rather human environment with the legislative qualifications of the persons preparing than legal papers). process of the Congress. Technical environmental documents, and (v) Notice through other local media. drafting assistance does not by itself conducting the independent evaluation (vi) Notice to potentially interested constitute a legislative proposal. Only of any information submitted or community organizations including the agency that has primary environmental documents prepared by small business associations. responsibility for the subject matter an applicant or contractor, such as in (vii) Publication in newsletters that involved will prepare a legislative the list of preparers for environmental may be expected to reach potentially environmental impact statement. impact statements (§ 1502.18 of this interested persons. (b) A legislative environmental impact chapter). It is the intent of this (viii) Direct mailing to owners and statement is the detailed statement paragraph (b)(3) that acceptable work occupants of nearby or affected required by law to be included in an not be redone, but that it be verified by property. agency’s recommendation or report on a the agency. (ix) Posting of notice on and off site legislative proposal to Congress. A (4) Contractors or applicants in the area where the action is to be legislative environmental impact preparing environmental assessments or located. statement shall be considered part of the environmental impact statements shall (x) Notice through electronic media formal transmittal of a legislative submit a disclosure statement to the (e.g., a project or agency website, email, proposal to Congress; however, it may lead agency that specifies any financial or social media). be transmitted to Congress up to 30 days

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later in order to allow time for with the Council to confirm such or other statute for the purpose of completion of an accurate statement that determinations. protecting the public health or safety can serve as the basis for public and may waive the time period in paragraph Congressional debate. The statement § 1506.10 Filing requirements. (b)(2) of this section, publish a decision must be available in time for (a) Agencies shall file environmental on the final rule simultaneously with Congressional hearings and impact statements together with publication of the notice of the deliberations. comments and responses with the availability of the final environmental (c) Preparation of a legislative Environmental Protection Agency impact statement, and provide environmental impact statement shall (EPA), Office of Federal Activities, notification consistent with § 1506.10, conform to the requirements of the consistent with EPA’s procedures. as described in paragraph (a) of this regulations in this subchapter, except as (b) Agencies shall file statements with section. follows: the EPA no earlier than they are also (d) If an agency files the final (1) There need not be a scoping transmitted to participating agencies environmental impact statement within process. and made available to the public. EPA 90 days of the filing of the draft (2) Agencies shall prepare the may issue guidelines to agencies to environmental impact statement with legislative statement in the same implement its responsibilities under the Environmental Protection Agency, manner as a draft environmental impact this section and § 1506.11. the decision-making period and the 90- statement and need not prepare a final § 1506.11 Timing of agency action. day period may run concurrently. statement unless any of the following However, subject to paragraph (e) of this conditions exist. In such cases, the (a) The Environmental Protection section, agencies shall allow at least 45 agency shall prepare and publish the Agency shall publish a notice in the days for comments on draft statements. statements consistent with §§ 1503.1 of Federal Register each week of the (e) The lead agency may extend the this chapter and 1506.11: environmental impact statements filed minimum periods in paragraph (b) of (i) A Congressional committee with since its prior notice. The minimum this section and provide notification jurisdiction over the proposal has a rule time periods set forth in this section are consistent with § 1506.10. Upon a requiring both draft and final calculated from the date of publication showing by the lead agency of environmental impact statements. of this notice. compelling reasons of national policy, (ii) The proposal results from a study (b) Unless otherwise provided by law, the Environmental Protection Agency process required by statute (such as including statutory provisions for may reduce the minimum periods and, those required by the Wild and Scenic combining a final environmental impact upon a showing by any other Federal Rivers Act (16 U.S.C. 1271 et seq.)). statement and record of decision, agency of compelling reasons of (iii) Legislative approval is sought for Federal agencies may not make or issue national policy, also may extend the Federal or federally assisted a record of decision under § 1505.2 of minimum periods, but only after construction or other projects that the this chapter for the proposed action consultation with the lead agency. The agency recommends be located at until the later of the following dates: lead agency may modify the minimum specific geographic locations. For (1) 90 days after publication of the periods when necessary to comply with proposals requiring an environmental notice described in paragraph (a) of this other specific statutory requirements. impact statement for the acquisition of section for a draft environmental impact (§ 1507.3(f)(2) of this chapter) Failure to space by the General Services statement. file timely comments shall not be a (2) 30 days after publication of the Administration, a draft statement shall sufficient reason for extending a period. notice described in paragraph (a) of this accompany the Prospectus or the 11(b) If the lead agency does not concur with section for a final environmental impact Report of Building Project Surveys to the extension of time, EPA may not statement. the Congress, and a final statement shall extend it for more than 30 days. When (c) An agency may make an exception be completed before site acquisition. the Environmental Protection Agency to the rule on timing set forth in (iv) The agency decides to prepare reduces or extends any period of time it paragraph (b) of this section for a draft and final statements. shall notify the Council. (d) Comments on the legislative proposed action in the following statement shall be given to the lead circumstances: § 1506.12 Emergencies. agency, which shall forward them along (1) Some agencies have a formally Where emergency circumstances with its own responses to the established appeal process after make it necessary to take an action with Congressional committees with publication of the final environmental significant environmental impact jurisdiction. impact statement that allows other without observing the provisions of the agencies or the public to take appeals on regulations in this subchapter, the § 1506.9 Proposals for regulations. a decision and make their views known. Federal agency taking the action should Where the proposed action is the In such cases where a real opportunity consult with the Council about promulgation of a rule or regulation, exists to alter the decision, the agency alternative arrangements for compliance procedures and documentation may make and record the decision at the with section 102(2)(C) of NEPA. pursuant to other statutory or Executive same time it publishes the Agencies and the Council will limit order requirements may satisfy one or environmental impact statement. This such arrangements to actions necessary more requirements of this subchapter. means that the period for appeal of the to control the immediate impacts of the When a procedure or document satisfies decision and the 30-day period set forth emergency. Other actions remain subject one or more requirements of this in paragraph (b)(2) of this section may to NEPA review. subchapter, the agency may substitute it run concurrently. In such cases, the for the corresponding requirements in environmental impact statement shall § 1506.13 Effective date. this subchapter and need not carry out explain the timing and the public’s right The regulations in this subchapter duplicative procedures or of appeal and provide notification apply to any NEPA process begun after documentation. Agencies shall identify consistent with § 1506.10; or September 14, 2020. An agency may which corresponding requirements in (2) An agency engaged in rulemaking apply the regulations in this subchapter this subchapter are satisfied and consult under the Administrative Procedure Act to ongoing activities and environmental

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documents begun before September 14, (e) Comply with the requirements of of the proposed final procedures. Once 2020. section 102(2)(H) of NEPA that the in effect, the agency shall publish its ■ 9. Revise part 1507 to read as follows: agency initiate and utilize ecological NEPA procedures and ensure that they information in the planning and are readily available to the public. PART 1507—AGENCY COMPLIANCE development of resource-oriented (c) Agencies shall adopt, as necessary, projects. agency NEPA procedures to improve Sec. (f) Fulfill the requirements of sections agency efficiency and ensure that 1507.1 Compliance. 102(2)(F), 102(2)(G), and 102(2)(I), of 1507.2 Agency capability to comply. agencies make decisions in accordance 1507.3 Agency NEPA procedures. NEPA, Executive Order 11514, with the Act’s procedural requirements. 1507.4 Agency NEPA program information. Protection and Enhancement of Such procedures shall include: Environmental Quality, section 2, as Authority: 42 U.S.C. 4321–4347; 42 U.S.C. (1) Designating the major decision amended by Executive Order 11991, points for the agency’s principal 4371–4375; 42 U.S.C. 7609; E.O. 11514, 35 Relating to Protection and Enhancement FR 4247, 3 CFR, 1966–1970, Comp., p. 902, programs likely to have a significant as amended by E.O. 11991, 42 FR 26967, 3 of Environmental Quality, and effect on the human environment and CFR, 1977 Comp., p. 123; and E.O. 13807, 82 Executive Order 13807, Establishing assuring that the NEPA process begins FR 40463, 3 CFR, 2017, Comp., p. 369. Discipline and Accountability in the at the earliest reasonable time, Environmental Review and Permitting consistent with § 1501.2 of this chapter, § 1507.1 Compliance. for Infrastructure Projects. and aligns with the corresponding All agencies of the Federal § 1507.3 Agency NEPA procedures. decision points. Government shall comply with the (2) Requiring that relevant regulations in this subchapter. (a) Where existing agency NEPA procedures are inconsistent with the environmental documents, comments, § 1507.2 Agency capability to comply. regulations in this subchapter, the and responses be part of the record in Each agency shall be capable (in terms regulations in this subchapter shall formal rulemaking or adjudicatory of personnel and other resources) of apply, consistent with § 1506.13 of this proceedings. complying with the requirements of chapter, unless there is a clear and (3) Requiring that relevant NEPA and the regulations in this fundamental conflict with the environmental documents, comments, subchapter. Such compliance may requirements of another statute. The and responses accompany the proposal include use of the resources of other Council has determined that the through existing agency review agencies, applicants, and other categorical exclusions contained in processes so that decision makers use participants in the NEPA process, but agency NEPA procedures as of the statement in making decisions. the agency using the resources shall September 14, 2020 are consistent with (4) Requiring that the alternatives itself have sufficient capability to this subchapter. considered by the decision maker are evaluate what others do for it and (b) No more than 12 months after encompassed by the range of account for the contributions of others. September 14, 2020, or 9 months after alternatives discussed in the relevant Agencies shall: the establishment of an agency, environmental documents and that the (a) Fulfill the requirements of section whichever comes later, each agency decision maker consider the alternatives 102(2)(A) of NEPA to utilize a shall develop or revise, as necessary, described in the environmental systematic, interdisciplinary approach proposed procedures to implement the documents. If another decision that will ensure the integrated use of the regulations in this subchapter, including document accompanies the relevant natural and social sciences and the to eliminate any inconsistencies with environmental documents to the environmental design arts in planning the regulations in this subchapter. When decision maker, agencies are encouraged and in decision making that may have the agency is a department, it may be to make available to the public before an impact on the human environment. efficient for major subunits (with the the decision is made any part of that Agencies shall designate a senior agency consent of the department) to adopt document that relates to the comparison official to be responsible for overall their own procedures. Except for agency of alternatives. review of agency NEPA compliance, efficiency (see paragraph (c) of this (5) Requiring the combination of including resolving implementation section) or as otherwise required by law, environmental documents with other issues. agency NEPA procedures shall not agency documents. Agencies may (b) Identify methods and procedures impose additional procedures or designate and rely on one or more required by section 102(2)(B) of NEPA requirements beyond those set forth in procedures or documents under other to ensure that presently unquantified the regulations in this subchapter. statutes or Executive orders as satisfying environmental amenities and values (1) Each agency shall consult with the some or all of the requirements in this may be given appropriate consideration. Council while developing or revising its subchapter, and substitute such (c) Prepare adequate environmental proposed procedures and before procedures and documentation to impact statements pursuant to section publishing them in the Federal Register reduce duplication. When an agency 102(2)(C) of NEPA and cooperate on the for comment. Agencies with similar substitutes one or more procedures or development of statements in the areas programs should consult with each documents for the requirements in this where the agency has jurisdiction by other and the Council to coordinate subchapter, the agency shall identify the law or special expertise or is authorized their procedures, especially for respective requirements that are to develop and enforce environmental programs requesting similar information satisfied. standards. from applicants. (d) Agency procedures should (d) Study, develop, and describe (2) Agencies shall provide an identify those activities or decisions that alternatives to recommended courses of opportunity for public review and are not subject to NEPA, including: action in any proposal that involves review by the Council for conformity (1) Activities or decisions expressly unresolved conflicts concerning with the Act and the regulations in this exempt from NEPA under another alternative uses of available resources, subchapter before adopting their final statute; consistent with section 102(2)(E) of procedures. The Council shall complete (2) Activities or decisions where NEPA. its review within 30 days of the receipt compliance with NEPA would clearly

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and fundamentally conflict with the environmental assessments and (3) Agency policy documents, orders, requirements of another statute; environmental impact statements that terminology, and explanatory materials (3) Activities or decisions where address classified proposals in regarding agency decision-making compliance with NEPA would be accordance with agencies’ own processes; inconsistent with Congressional intent regulations applicable to classified (4) Agency planning program expressed in another statute; information. Agencies should organize information, plans, and planning tools; (4) Activities or decisions that are these documents so that classified and non-major Federal actions; portions are included as annexes, so (5) A database searchable by (5) Activities or decisions that are that the agencies can make the geographic information, document non-discretionary actions, in whole or unclassified portions available to the status, document type, and project type. in part, for which the agency lacks public. (b) Agencies shall provide for efficient authority to consider environmental (2) Provide for periods of time other and effective interagency coordination effects as part of its decision-making than those presented in § 1506.11 of this of their environmental program process; and chapter when necessary to comply with websites, including use of shared (6) Actions where the agency has other specific statutory requirements, databases or application programming determined that another statute’s including requirements of lead or interface, in their implementation of requirements serve the function of cooperating agencies. NEPA and related authorities. agency compliance with the Act. (3) Provide that, where there is a ■ (e) Agency procedures shall comply 10. Revise part 1508 to read as lengthy period between the agency’s follows: with the regulations in this subchapter decision to prepare an environmental except where compliance would be impact statement and the time of actual PART 1508—DEFINITIONS inconsistent with statutory requirements preparation, the agency may publish the and shall include: notice of intent required by § 1501.9(d) Sec. (1) Those procedures required by of this chapter at a reasonable time in 1508.1 Definitions. §§ 1501.2(b)(4) (assistance to applicants) advance of preparation of the draft 1508.2 [Reserved] and 1506.6(e) of this chapter (status statement. Agency procedures shall Authority: 42 U.S.C. 4321–4347; 42 U.S.C. information). provide for publication of supplemental 4371–4375; 42 U.S.C. 7609; E.O. 11514, 35 (2) Specific criteria for and notices to inform the public of a pause FR 4247, 3 CFR, 1966–1970, Comp., p. 902, identification of those typical classes of in its preparation of an environmental as amended by E.O. 11991, 42 FR 26967, 3 action: impact statement and for any agency CFR, 1977 Comp., p. 123; and E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369. (i) Which normally do require decision to withdraw its notice of intent environmental impact statements. to prepare an environmental impact § 1508.1 Definitions. (ii) Which normally do not require statement. The following definitions apply to the either an environmental impact (4) Adopt procedures to combine its statement or an environmental regulations in this subchapter. Federal environmental assessment process with agencies shall use these terms uniformly assessment and do not have a significant its scoping process. effect on the human environment throughout the Federal Government. (5) Establish a process that allows the (a) Act or NEPA means the National (categorical exclusions (§ 1501.4 of this agency to use a categorical exclusion chapter)). Any procedures under this Environmental Policy Act, as amended listed in another agency’s NEPA (42 U.S.C. 4321, et seq.). section shall provide for extraordinary procedures after consulting with that circumstances in which a normally (b) Affecting means will or may have agency to ensure the use of the an effect on. excluded action may have a significant categorical exclusion is appropriate. The (c) Authorization means any license, environmental effect. Agency NEPA process should ensure documentation of permit, approval, finding, procedures shall identify when the consultation and identify to the determination, or other administrative documentation of a categorical public those categorical exclusions the decision issued by an agency that is exclusion determination is required. agency may use for its proposed actions. required or authorized under Federal (iii) Which normally require Then, the agency may apply the law in order to implement a proposed environmental assessments but not categorical exclusion to its proposed action. necessarily environmental impact actions. statements. (d) Categorical exclusion means a (3) Procedures for introducing a § 1507.4 Agency NEPA program category of actions that the agency has supplement to an environmental information. determined, in its agency NEPA assessment or environmental impact (a) To allow agencies and the public procedures (§ 1507.3 of this chapter), statement into its formal administrative to efficiently and effectively access normally do not have a significant effect record, if such a record exists. information about NEPA reviews, on the human environment. (f) Agency procedures may: agencies shall provide for agency (e) Cooperating agency means any (1) Include specific criteria for websites or other means to make Federal agency (and a State, Tribal, or providing limited exceptions to the available environmental documents, local agency with agreement of the lead provisions of the regulations in this relevant notices, and other relevant agency) other than a lead agency that subchapter for classified proposals. information for use by agencies, has jurisdiction by law or special These are proposed actions that are applicants, and interested persons. Such expertise with respect to any specifically authorized under criteria means of publication may include: environmental impact involved in a established by an Executive order or (1) Agency planning and proposal (or a reasonable alternative) for statute to be kept secret in the interest environmental documents that guide legislation or other major Federal action of national defense or foreign policy and agency management and provide for that may significantly affect the quality are in fact properly classified pursuant public involvement in agency planning of the human environment. to such Executive order or statute. processes; (f) Council means the Council on Agencies may safeguard and restrict (2) A directory of pending and final Environmental Quality established by from public dissemination environmental documents; title II of the Act.

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(g) Effects or impacts means changes briefly presenting the reasons why an guarantees by the Farm Service Agency to the human environment from the action, not otherwise categorically pursuant to 7 U.S.C. 1925 and 1941 proposed action or alternatives that are excluded (§ 1501.4 of this chapter), will through 1949 and business loan reasonably foreseeable and have a not have a significant effect on the guarantees by the Small Business reasonably close causal relationship to human environment and for which an Administration pursuant to 15 U.S.C. the proposed action or alternatives, environmental impact statement 636(a), 636(m), and 695 through 697g). including those effects that occur at the therefore will not be prepared. (2) Major Federal actions may include same time and place as the proposed (m) Human environment means new and continuing activities, including action or alternatives and may include comprehensively the natural and projects and programs entirely or partly effects that are later in time or farther physical environment and the financed, assisted, conducted, regulated, removed in distance from the proposed relationship of present and future or approved by Federal agencies; new or action or alternatives. generations of Americans with that revised agency rules, regulations, plans, (1) Effects include ecological (such as environment. (See also the definition of policies, or procedures; and legislative the effects on natural resources and on ‘‘effects’’ in paragraph (g) of this proposals (§ 1506.8 of this chapter). the components, structures, and section.) (3) Major Federal actions tend to fall functioning of affected ecosystems), (n) Jurisdiction by law means agency within one of the following categories: aesthetic, historic, cultural, economic authority to approve, veto, or finance all (i) Adoption of official policy, such as (such as the effects on employment), or part of the proposal. rules, regulations, and interpretations social, or health effects. Effects may also (o) Lead agency means the agency or adopted under the Administrative include those resulting from actions that agencies, in the case of joint lead Procedure Act, 5 U.S.C. 551 et seq. or may have both beneficial and agencies, preparing or having taken other statutes; implementation of detrimental effects, even if on balance primary responsibility for preparing the treaties and international conventions or the agency believes that the effect will environmental impact statement. agreements, including those be beneficial. (p) Legislation means a bill or implemented pursuant to statute or (2) A ‘‘but for’’ causal relationship is legislative proposal to Congress regulation; formal documents insufficient to make an agency developed by a Federal agency, but does establishing an agency’s policies which responsible for a particular effect under not include requests for appropriations will result in or substantially alter NEPA. Effects should generally not be or legislation recommended by the agency programs. considered if they are remote in time, President. (ii) Adoption of formal plans, such as geographically remote, or the product of (q) Major Federal action or action official documents prepared or a lengthy causal chain. Effects do not means an activity or decision subject to approved by Federal agencies, which include those effects that the agency has Federal control and responsibility prescribe alternative uses of Federal no ability to prevent due to its limited subject to the following: resources, upon which future agency statutory authority or would occur (1) Major Federal action does not actions will be based. regardless of the proposed action. include the following activities or (iii) Adoption of programs, such as a (3) An agency’s analysis of effects decisions: group of concerted actions to implement shall be consistent with this paragraph (i) Extraterritorial activities or a specific policy or plan; systematic and (g). Cumulative impact, defined in 40 decisions, which means agency connected agency decisions allocating CFR 1508.7 (1978), is repealed. activities or decisions with effects agency resources to implement a (h) Environmental assessment means located entirely outside of the specific statutory program or executive a concise public document prepared by jurisdiction of the United States; directive. a Federal agency to aid an agency’s (ii) Activities or decisions that are (iv) Approval of specific projects, compliance with the Act and support its non-discretionary and made in such as construction or management determination of whether to prepare an accordance with the agency’s statutory activities located in a defined environmental impact statement or a authority; geographic area. Projects include actions finding of no significant impact, as (iii) Activities or decisions that do not approved by permit or other regulatory provided in § 1501.6 of this chapter. result in final agency action under the decision as well as Federal and federally (i) Environmental document means an Administrative Procedure Act or other assisted activities. environmental assessment, statute that also includes a finality (r) Matter includes for purposes of environmental impact statement, requirement; part 1504 of this chapter: finding of no significant impact, or (iv) Judicial or administrative civil or (1) With respect to the Environmental notice of intent. criminal enforcement actions; Protection Agency, any proposed (j) Environmental impact statement (v) Funding assistance solely in the legislation, project, action or regulation means a detailed written statement as form of general revenue sharing funds as those terms are used in section 309(a) required by section 102(2)(C) of NEPA. with no Federal agency control over the of the Clean Air Act (42 U.S.C. 7609). (k) Federal agency means all agencies subsequent use of such funds; (2) With respect to all other agencies, of the Federal Government. It does not (vi) Non-Federal projects with any proposed major Federal action to mean the Congress, the Judiciary, or the minimal Federal funding or minimal which section 102(2)(C) of NEPA President, including the performance of Federal involvement where the agency applies. staff functions for the President in his does not exercise sufficient control and (s) Mitigation means measures that Executive Office. For the purposes of responsibility over the outcome of the avoid, minimize, or compensate for the regulations in this subchapter, project; and effects caused by a proposed action or Federal agency also includes States, (vii) Loans, loan guarantees, or other alternatives as described in an units of general local government, and forms of financial assistance where the environmental document or record of Tribal governments assuming NEPA Federal agency does not exercise decision and that have a nexus to those responsibilities from a Federal agency sufficient control and responsibility effects. While NEPA requires pursuant to statute. over the effects of such assistance (for consideration of mitigation, it does not (l) Finding of no significant impact example, action does not include farm mandate the form or adoption of any means a document by a Federal agency ownership and operating loan mitigation. Mitigation includes:

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(1) Avoiding the impact altogether by meaningfully evaluate its effects. A (dd) Senior agency official means an not taking a certain action or parts of an proposal may exist in fact as well as by official of assistant secretary rank or action. agency declaration that one exists. higher (or equivalent) that is designated (2) Minimizing impacts by limiting (y) Publish and publication mean for overall agency NEPA compliance, the degree or magnitude of the action methods found by the agency to including resolving implementation and its implementation. efficiently and effectively make issues. (3) Rectifying the impact by repairing, environmental documents and (ee) Special expertise means statutory rehabilitating, or restoring the affected information available for review by responsibility, agency mission, or environment. interested persons, including electronic related program experience. (4) Reducing or eliminating the publication, and adopted by agency (ff) Tiering refers to the coverage of impact over time by preservation and NEPA procedures pursuant to § 1507.3 general matters in broader maintenance operations during the life environmental impact statements or of the action. of this chapter. (z) Reasonable alternatives means a environmental assessments (such as (5) Compensating for the impact by national program or policy statements) replacing or providing substitute reasonable range of alternatives that are with subsequent narrower statements or resources or environments. technically and economically feasible, environmental analyses (such as (t) NEPA process means all measures meet the purpose and need for the necessary for compliance with the proposed action, and, where applicable, regional or basin-wide program requirements of section 2 and title I of meet the goals of the applicant. statements or ultimately site-specific NEPA. statements) incorporating by reference (aa) Reasonably foreseeable means the general discussions and (u) Notice of intent means a public sufficiently likely to occur such that a notice that an agency will prepare and concentrating solely on the issues person of ordinary prudence would take specific to the statement subsequently consider an environmental impact it into account in reaching a decision. statement. prepared. (bb) Referring agency means the (v) Page means 500 words and does § 1508.2 [Reserved] not include explanatory maps, Federal agency that has referred any matter to the Council after a diagrams, graphs, tables, and other PARTS 1515 THROUGH 1518 determination that the matter is means of graphically displaying [DESIGNATED AS SUBCHAPTER B] quantitative or geospatial information. unsatisfactory from the standpoint of (w) Participating agency means a public health or welfare or ■ 11. Designate parts 1515 through 1518 Federal, State, Tribal, or local agency environmental quality. as subchapter B and add a heading for participating in an environmental (cc) Scope consists of the range of newly designated subchapter B to read review or authorization of an action. actions, alternatives, and impacts to be as follows: (x) Proposal means a proposed action considered in an environmental impact Subchapter B—Administrative Procedures at a stage when an agency has a goal, is statement. The scope of an individual and Operations actively preparing to make a decision on statement may depend on its one or more alternative means of relationships to other statements [FR Doc. 2020–15179 Filed 7–15–20; 4:15 pm] accomplishing that goal, and can (§ 1501.11 of this chapter). BILLING CODE 3225–F0–P

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