# Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2020-15179 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** July 16, 2020 - **Citation:** 85 FR 43304 ## Text COUNCIL ON ENVIRONMENTAL QUALITY 40 CFR Parts 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, 1508, 1515, 1516, 1517, and 1518 [CEQ-2019-0003] RIN 0331-AA03 Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act AGENCY: Council on Environmental Quality. ACTION: Final rule. SUMMARY: The Council on Environmental Quality (CEQ) issues this final rule to update its regulations for Federal agencies to implement the National Environmental Policy Act (NEPA). CEQ has not comprehensively updated its regulations since their promulgation in 1978, more than four decades ago. This final rule comprehensively updates, modernizes, and clarifies the regulations to facilitate more efficient, effective, and timely NEPA reviews by Federal agencies in connection with proposals for agency action. The rule will improve interagency coordination in the environmental review process, promote earlier public involvement, increase transparency, and enhance the participation of States, Tribes, and localities. The amendments will advance the original goals of the CEQ regulations to reduce paperwork and delays, and promote better decisions consistent with the national environmental policy set forth in section 101 of NEPA. DATES: This is a major rule subject to congressional review. The effective date is September 14, 2020. However, if congressional review has changed the effective date, CEQ will publish a document in the Federal Register to establish the actual effective date or to terminate the rule. ADDRESSES: CEQ has established a docket for this action under docket number CEQ-2019-0003. All documents in the docket are listed on www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Viktoria Z. Seale, Chief of Staff and General Counsel, 202-395-5750, NEPA-Update@ceq.eop.gov. SUPPLEMENTARY INFORMATION: Table of Contents I. Background A. National Environmental Policy Act B. Council on Environmental Quality Regulations, Guidance, and Reports 1. Regulatory History 2. CEQ Guidance and Reports 3. Environmental Impact Statement Timelines and Page Count Reports C. Judicial Review of Agency NEPA Compliance D. Statutory Developments E. Presidential Directives F. Advance Notice of Proposed Rulemaking G. Notice of Proposed Rulemaking II. Summary of Final Rule A. Changes Throughout Parts 1500-1508 B. Revisions To Update the Purpose, Policy, and Mandate (Part 1500) 1. Purpose and Policy (§ 1500.1) 2. Remove and Reserve Policy (§ 1500.2) 3. NEPA Compliance (§ 1500.3) 4. Reducing Paperwork and Delay (§§ 1500.4 and 1500.5) 5. Agency Authority (§ 1500.6) C. Revisions to NEPA and Agency Planning (Part 1501) 1. NEPA Thresholds (§ 1501.1) 2. Apply NEPA Early in the Process (§ 1501.2) 3. Determine the Appropriate Level of NEPA Review (§ 1501.3) 4. Categorical Exclusions (§ 1501.4) 5. Environmental Assessments (§ 1501.5) 6. Findings of No Significant Impact (§ 1501.6) 7. Lead and Cooperating Agencies (§§ 1501.7 and 1501.8) 8. Scoping (§ 1501.9) 9. Time Limits (§ 1501.10) 10. Tiering (§ 1501.11) 11. Incorporation by Reference (§ 1501.12) D. Revisions to Environmental Impact Statements (Part 1502) 1. Purpose of Environmental Impact Statement (§ 1502.1) 2. Implementation (§ 1502.2) 3. Statutory Requirements for Statements (§ 1502.3) 4. Major Federal Actions Requiring the Preparation of Environmental Impact Statements (§ 1502.4) 5. Timing (§ 1502.5) 6. Interdisciplinary Preparation (§ 1502.6) 7. Page Limits (§ 1502.7) 8. Writing (§ 1502.8) 9. Draft, Final and Supplemental Statements (§ 1502.9) 10. Recommended Format (§ 1502.10) 11. Cover (§ 1502.11) 12. Summary (§ 1502.12) 13. Purpose and Need (§ 1502.13) 14. Alternatives Including the Proposed Action (§ 1502.14) 15. Affected Environment (§ 1502.15) 16. Environmental Consequences (§ 1502.16) 17. Submitted Alternatives, Information, and Analyses (§ 1502.17) 18. List of Preparers (§ 1502.18) 19. Appendix (§ 1502.19) 20. Publication of the Environmental Impact Statement (§ 1502.20) 21. Incomplete or Unavailable Information (§ 1502.21) 22. Cost-Benefit Analysis (§ 1502.22) 23. Methodology and Scientific Accuracy (§ 1502.23) 24. Environmental Review and Consultation Requirements (§ 1502.24) E. Revisions to Commenting on Environmental Impact Statements (Part 1503) 1. Inviting Comments and Requesting Information and Analyses (§ 1503.1) 2. Duty To Comment (§ 1503.2) 3. Specificity of Comments and Information (§ 1503.3) 4. Response to Comments (§ 1503.4) F. Revisions to Pre-Decisional Referrals to the Council of Proposed Federal Actions Determined To Be Environmentally Unsatisfactory (Part 1504) 1. Purpose (§ 1504.1) 2. Criterial for Referral (§ 1504.2) 3. Procedure for Referrals and Response (§ 1504.3) G. Revisions to NEPA and Agency Decision Making (Part 1505) 1. Remove and Reserve Agency Decisionmaking Procedures (§ 1505.1) 2. Record of Decision in Cases Requiring Environmental Impact Statements (§ 1505.2) 3. Implementing the Decision (§ 1505.3) H. Revisions to Other Requirements of NEPA (Part 1506) 1. Limitations on Actions During NEPA Process (§ 1506.1) 2. Elimination of Duplication With State, Tribal, and Local Procedures (§ 1506.2) 3. Adoption (§ 1506.3) 4. Combining Documents (§ 1506.4) 5. Agency Responsibility for Environmental Documents (§ 1506.5) 6. Public Involvement (§ 1506.6) 7. Further Guidance (§ 1506.7) 8. Proposals for Legislation (§ 1506.8) 9. Proposals for Regulations (§ 1506.9) 10. Filing Requirements (§ 1506.10) 11. Timing of Agency Action (§ 1506.11) 12. Emergencies (§ 1506.12) 13. Effective Date (§ 1506.13) I. Revisions to Agency Compliance (Part 1507) 1. Compliance (§ 1507.1) 2. Agency Capability To Comply (§ 1507.2) 3. Agency NEPA Procedures (§ 1507.3) 4. Agency NEPA Program Information (§ 1507.4) J. Revisions to Definitions (Part 1508) 1. Clarifying the Meaning of “Act” 2. Definition of “Affecting” 3. New Definition of “Authorization” 4. Clarifying the Meaning of “Categorical Exclusion” 5. Clarifying the Meaning of “Cooperating Agency” 6. Definition of “Council” 7. Definition of “Cumulative Impact” and Clarifying the Meaning of “Effects” 8. Clarifying the Meaning of “Environmental Assessment” 9. Clarifying the Meaning of “Environmental Document” 10. Clarifying the Meaning of “Environmental Impact Statement” 11. Clarifying the Meaning of “Federal Agency” 12. Clarifying the Meaning of “Finding of No Significant Impact” 13. Clarifying the Meaning of “Human Environment” 14. Definition of “Jurisdiction by Law” 15. Clarifying the Meaning of “Lead Agency” 16. Clarifying the Meaning of “Legislation” 17. Clarifying the Meaning of “Major Federal Action” 18. Definition of “Matter” 19. Clarifying the Meaning of “Mitigation” 20. Definition of “NEPA Process” 21. Clarifying the Meaning of “Notice of Intent” 22. New Definition of “Page” 23. New Definition of “Participating Agency” 24. Clarifying the Meaning of “Proposal” 25. New Definition of “Publish and Publication” 26. New Definition of “Reasonable Alternatives” 27. New Definition of “Reasonably Foreseeable” 28. Definition of “Referring Agency” 29. Definition of “Scope” 30. New Definition of “Senior Agency Official” 31. Definition of “Special Expertise” 32. Striking the Definition of “Significantly” 33. Clarifying the Meaning of “Tiering” K. CEQ Guidance Documents III. Rulemaking Analyses and Notices A. Executive Order 12866, Regulatory Planning and Review and Executive Order 13563, Improving Regulation and Regulatory Review B. Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs C. Regulatory Flexibility Act and Executive Order 13272, Proper Consideration of Small Entities in Agency Rulemaking D. Congressional Review Act E. National Environmental Policy Act F. Endangered Species Act G. Executive Order 13132, Federalism H. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments I. Executive Order 12898, Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations J. Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use K. Executive Order 12988, Civil Justice Reform L. Unfunded Mandates Reform Act M. Paperwork Reduction Act I. Background President Nixon signed the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., (NEPA or the Act) into law on January 1, 1970. The Council on Environmental Quality (CEQ) initially issued interim guidelines for implementing NEPA in 1970, revised those guidelines in 1971 and 1973, and subsequently promulgated its regulations implementing NEPA in 1978. The original goals of those regulations were to reduce paperwork and delays, and promote better decisions consistent with the national environmental policy established by the Act. Since the promulgation of the 1978 regulations, however, the NEPA process has become increasingly complicated and can involve excessive paperwork and lengthy delays. The regulations have been challenging to navigate with related provisions scattered throughout, and include definitions and provisions that have led to confusion and generated extensive litigation. The complexity of the regulations has given rise to CEQ's issuance of more than 30 guidance documents to assist Federal agencies in understanding and complying with NEPA. Agencies also have developed procedures and practices to improve their implementation of NEPA. Additionally, Presidents have issued directives, and Congress has enacted legislation to reduce delays and expedite the implementation of NEPA and the CEQ regulations, including for transportation, water, and other types of infrastructure projects. Despite these efforts, the NEPA process continues to slow or prevent the development of important infrastructure and other projects that require Federal permits or approvals, as well as rulemakings and other proposed actions. Agency practice has also continued to evolve over the past four decades, but many of the most efficient and effective practices have not been incorporated into the CEQ regulations. Further, a wide range of judicial decisions, including those issued by the Supreme Court, evaluating Federal agencies' compliance with NEPA have construed and interpreted key provisions of the statute and CEQ's regulations. CEQ's guidance, agency practice, more recent presidential directives and statutory developments, and the body of case law related to NEPA implementation have not been harmonized or codified in CEQ's regulations. As discussed further below, NEPA implementation and related litigation can be lengthy and significantly delay major infrastructure and other projects. 1 For example, CEQ has found that NEPA reviews for Federal Highway Administration projects, on average take more than seven years to proceed from a notice of intent (NOI) to prepare an environmental impact statement (EIS) to issuance of a record of decision (ROD). This is a dramatic departure from CEQ's prediction in 1981 that Federal agencies would be able to complete most EISs, the most intensive review of a project's environmental impacts under NEPA, in 12 months or less. 2 In its most recent review, CEQ found that, across the Federal Government, the average time for completion of an EIS and issuance of a ROD was 4.5 years and the median was 3.5 years. 3 CEQ determined that one quarter of EISs took less than 2.2 years, and one quarter of the EISs took more than 6 years. And these timelines do not necessarily include further delays associated with litigation over the legal sufficiency of the NEPA process or its resulting documentation. 1 See infra sec. I.B.3 and I.C. 2 Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 FR 18026 (Mar. 23, 1981) (“Forty Questions”), https://www.energy.gov/nepa/downloads/forty-most-asked-questions-concerning-ceqs-national-environmental-policy-act. “The Council has advised agencies that under the new NEPA regulations even large complex energy projects would require only about 12 months for the completion of the entire EIS process. For most major actions, this period is well within the planning time that is needed in any event, apart from NEPA.” Id. at Question 35. 3 See infra sec. I.B.3. Although other factors may contribute to project delays, the frequency and consistency of multi-year review processes for EISs for projects across the Federal Government leaves no doubt that NEPA implementation and related litigation is a significant factor. 4 It is critical to improve NEPA implementation, not just for major projects, but because tens of thousands of projects and activities are subject to NEPA every year, many of which are important to modernizing our Nation's infrastructure. 5 4 See also, Philip K. Howard, Common Good, Two Years, Not Ten: Redesigning Infrastructure Approvals (Sept. 2015) (“Two Years, Not Ten”), https://www.commongood.org/wp-content/uploads/2017/07/2YearsNot10Years.pdf. 5 As discussed in sections II.D and II.C.5, CEQ estimates that Federal agencies complete 176 EISs and 10,000 environmental assessments each year. In addition, CEQ estimates that agencies apply categorical exclusions to 100,000 actions annually. See infra sec. II.C.4. As noted above, an extensive body of case law interpreting NEPA and CEQ's implementing regulations drives much of agencies' modern day practice. Though courts have correctly recognized that NEPA requires agencies to follow certain procedures and not to reach particular substantive results, the accretion of cases has not necessarily clarified implementation of the law. In light of the litigation risk such a situation presents, agencies have responded by generating voluminous studies analyzing impacts and alternatives well beyond the point where useful information is being produced and utilized by decision makers. In its most recent review, CEQ found that final EISs averaged 661 pages in length, and the median document was 447 pages. 6 One quarter were 748 pages or longer. The page count and document length data do not include appendices. The average modern EIS is more than 4 times as long as the 150 pages contemplated by the 1978 regulations. 6 See infra sec. I.B.3. By adopting these regulations following so many decades of NEPA practice, implementation, and litigation, CEQ is acting now to enhance the efficiency of the process based on its decades of experience overseeing Federal agency practice, and clarifying a number of key NEPA terms and requirements that have frequently been subject to litigation. The modifications and refinements reflected in the final rule will contribute to greater certainty and predictability in NEPA implementation, and thus eliminate at least in some measure the unnecessary and burdensome delays that have hampered national infrastructure and other important projects. In June 2018, CEQ issued an advance notice of proposed rulemaking (ANPRM) requesting comment on potential updates and clarifications to the CEQ regulations. 7 On January 10, 2020, CEQ published a notice of proposed rulemaking 8 (NPRM or proposed rule) in the Federal Register proposing to update its regulations for implementing the procedural provisions of NEPA. 7 83 FR 28591 (June 20, 2018). 8 85 FR 1684 (Jan. 10, 2020). Following the publication of the NPRM, CEQ received approximately 1,145,571 comments on the proposed rule. 9 A majority of the comments (approximately 1,136,755) were the result of mass mail campaigns, which are comments with multiple signatories or groups of comments that are identical or very similar in form and content. CEQ received approximately 8,587 unique public comments of which 2,359 were substantive comments raising a variety of issues related to the rulemaking and contents of the proposed rule, including procedural, legal, and technical issues. Finally, 229 comments were duplicate or non-germane submissions, or contained only supporting materials. 9 In the NPRM, CEQ listed several methods for members of the public to submit written comments, including submittal to the docket on regulations.gov, by fax, or by mail. In addition, CEQ also included an email address ( NEPA-Update@ceq.eop.gov ) in the NPRM for further information. While the NPRM did not list this email address among the several methods for the public to provide comments, CEQ has considered comments received through this email address during the public comment period and included them in the docket on regulations.gov. The background section below summarizes NEPA, the CEQ regulations, and developments since CEQ issued those regulations. Specifically, section I.A provides a brief summary of the NEPA statute. Section I.B describes the history of CEQ's regulations implementing NEPA and provides an overview of CEQ's numerous guidance documents and reports issued subsequent to the regulations. Section I.C discusses the role of the courts in interpreting NEPA. Section I.D provides a brief overview of Congress's efforts, and section I.E describes the initiatives of multiple administrations to reduce delays and improve implementation of NEPA. Finally, sections I.F and I.G provides the background on this rulemaking, including the ANPRM and the NPRM. In section II, CEQ provides a summary of the final rule, including changes CEQ made from the proposed rule, which comprehensively updates and substantially revises CEQ's prior regulations. This final rule modernizes and clarifies the CEQ regulations to facilitate more efficient, effective, and timely NEPA reviews by Federal agencies by simplifying regulatory requirements, codifying certain guidance and case law relevant to these regulations, revising the regulations to reflect current technologies and agency practices, eliminating obsolete provisions, and improving the format and readability of the regulations. CEQ's revisions include provisions intended to promote timely submission of relevant information to ensure consideration of such information by agencies. CEQ's revisions will provide greater clarity for Federal agencies, States, Tribes, localities, and the public, and advance the original goals of the CEQ regulations to reduce paperwork and delays and promote better decisions consistent with the national environmental policy set forth in section 101 of NEPA. CEQ provides a summary of the comments received on the proposed rule and responses in the document titled “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act Final Rule Response to Comments” 10 (“Final Rule Response to Comments”). This document organizes the comments by the parts and sections of the proposed rule that the comment addresses, and includes a subsection on other general or crosscutting topics. 10 The Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act Final Rule Response to Comments document is available under “Supporting Documents” in the docket on regulations.gov under docket ID CEQ-2019-0003. Ultimately, the purpose of the NEPA process is to ensure informed decision making by Federal agencies with regard to the potential environmental effects of proposed major Federal actions and to make the public aware of the agency's decision-making process. When effective and well managed, the NEPA process results in more informative documentation, enhanced coordination, resolution of conflicts, and improved environmental outcomes. With this final rule, CEQ codifies effective agency practice and provides clarity on the requirements of the NEPA process. A. National Environmental Policy Act Congress enacted NEPA to establish a national policy for the environment, provide for the establishment of CEQ, and for other purposes. Section 101 of NEPA sets forth a national policy “to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and [to] fulfill the social, economic, and other requirements of present and future generations of Americans.” 42 U.S.C. 4331(a). Section 102 of NEPA establishes procedural requirements, applying that national policy to proposals for major Federal actions significantly affecting the quality of the human environment by requiring Federal agencies to prepare a detailed statement on: (1) The environmental impact of the proposed action; (2) any adverse environmental effects that cannot be avoided; (3) alternatives to the proposed action; (4) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity; and (5) any irreversible and irretrievable commitments of resources that would be involved in the proposed action. 42 U.S.C. 4332(2)(C). NEPA also established CEQ as an agency within the Executive Office of the President to administer Federal agency implementation of NEPA. 42 U.S.C. 4332(2)(B), (C), (I), 4342, 4344; see also Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 757 (2004); Warm Springs Dam Task Force v. Gribble, 417 U.S. 1301, 1309-10 (Douglas, J. Circuit Justice 1974). NEPA does not mandate particular results or substantive outcomes. Rather, NEPA requires Federal agencies to consider environmental impacts of proposed actions as part of agencies' decision-making processes. Additionally, NEPA does not include a private right of action and specifies no remedies. Challenges to agency action alleging noncompliance with NEPA procedures are brought under the Administrative Procedure Act (APA). 5 U.S.C. 551 et seq. Accordingly, NEPA cases proceed as APA cases. Limitations on APA cases and remedies thus apply to the adjudication of NEPA disputes. B. Council on Environmental Quality Regulations, Guidance, and Reports 1. Regulatory History In 1970, President Nixon issued Executive Order (E.O.) 11514, titled “Protection and Enhancement of Environmental Quality,” which directed CEQ to “[i]ssue guidelines to Federal agencies for the preparation of detailed statements on proposals for legislation and other Federal actions affecting the environment, as required by section 102(2)(C) of the Act.” 11 CEQ issued interim guidelines in April of 1970 and revised them in 1971 and 1973. 12 11 35 FR 4247 (Mar. 7, 1970), sec. 3(h). 12 See 35 FR 7390 (May 12, 1970) (interim guidelines); 36 FR 7724 (Apr. 23, 1971) (final guidelines); 38 FR 10856 (May 2, 1973) (proposed revisions to guidelines); 38 FR 20550 (Aug. 1, 1973) (revised guidelines). In 1977, President Carter issued E.O. 11991, titled “Relating to Protection and Enhancement of Environmental Quality.” 13 E.O. 11991 amended section 3(h) of E.O. 11514, directing CEQ to “[i]ssue regulations to Federal agencies for the implementation of the procedural provisions of [NEPA] . . . to make the environmental impact statement process more useful to decision[ ]makers and the public; and to reduce paperwork and the accumulation of extraneous background data, in order to emphasize the need to focus on real environmental issues and alternatives,” and to “require [environmental] impact statements to be concise, clear, and to the point, and supported by evidence that agencies have made the necessary environmental analyses.” E.O. 11991 also amended section 2 of E.O. 11514, requiring agency compliance with the regulations issued by CEQ. The Executive order was based on the President's constitutional and statutory authority, including NEPA, the Environmental Quality Improvement Act, 42 U.S.C. 4371 et seq., and section 309 of the Clean Air Act, 42 U.S.C. 7609. The President has a constitutional duty to ensure that the “Laws be faithfully executed,” U.S. Const. art. II, sec. 3, which may be delegated to appropriate officials. 3 U.S.C. 301. In signing E.O. 11991, the President delegated this authority to CEQ. 14 13 42 FR 26967 (May 25, 1977). 14 The Presidential directive was consistent with the recommendation of the Commission on Federal Paperwork that the President require the development of consistent regulations and definitions and ensure coordination among agencies in the implementation of Environmental Impact Statement preparation. See The Report of the Commission on Federal Paperwork, Environmental Impact Statements 16 (Feb. 25, 1977). In 1978, CEQ promulgated its “National Environmental Policy Act, Regulations, Implementation of Procedural Provisions,” 40 CFR parts 1500-1508 (“CEQ regulations” or “NEPA regulations”), “[t]o reduce paperwork, to reduce delays, and at the same time to produce better decisions [that] further the national policy to protect and enhance the quality of the human environment.” 15 The Supreme Court has explained that E.O. 11991 requires all “heads of [F]ederal agencies to comply” with the “single set of uniform, mandatory regulations” that CEQ issued to implement NEPA's provisions. Andrus v. Sierra Club, 442 U.S. 347, 357 (1979). 15 43 FR 55978 (Nov. 29, 1978); see also 44 FR 873 (Jan. 3, 1979) (technical corrections), and 43 FR 25230 (June 9, 1978) (proposed rule). The Supreme Court has afforded the CEQ regulations “substantial deference.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 355 (1989) (citing Andrus, 442 U.S. at 358); Pub. Citizen, 541 U.S. at 757 (“The [CEQ], established by NEPA with authority to issue regulations interpreting it, has promulgated regulations to guide [F]ederal agencies in determining what actions are subject to that statutory requirement.” (citing 40 CFR 1500.3)). The new regulations are intended to embody CEQ's interpretation of NEPA for Chevron purposes and to operate as legislative rules. 16 See Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); see also Nat'l Cable & Telecomm. Ass'n v. Brand X internet Servs., 545 U.S. 967, 980-86 (2005) (applying Chevron deference to Federal Communications Commission regulations); United States v. Mead Corp., 533 U.S. 218, 227-30 (2001) (properly promulgated agency regulations addressing ambiguities or gaps in a statute qualify for Chevron deference when agencies possess the authority to issue regulations interpreting the statute). The Supreme Court has held that NEPA is a procedural statute that serves the twin aims of ensuring that agencies consider the significant environmental consequences of their proposed actions and inform the public about their decision making. Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983) (citing Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 553 (1978); Weinberger v. Catholic Action of Haw./Peace Educ. Project, 454 U.S. 139, 143 (1981)). 16 Even without expressly invoking Chevron here and noting that CEQ intends these regulations to operate as legislative rules, Chevron would still apply. See Guedes v. ATF, 920 F.3d 1, 23 (D.C. Cir. 2019) (“And for this Rule in particular, another telltale sign of the agency's belief that it was promulgating a rule entitled to Chevron deference is the Rule's invocation of Chevron by name. To be sure, an agency of course need not expressly invoke the Chevron framework to obtain Chevron deference: ` Chevron is a standard of judicial review, not of agency action.' SoundExchange [, Inc. v. Copyright Royalty Bd., ] 904 F.3d [41,] 54 [(D.C. Cir. 2018)]. Still, the Bureau's invocation of Chevron here is powerful evidence of its intent to engage in an exercise of interpretive authority warranting Chevron treatment.”) (emphasis in original). Furthermore, in describing the role of NEPA in agencies' decision-making processes, the Supreme Court has stated, “Congress in enacting NEPA, however, did not require agencies to elevate environmental concerns over other appropriate considerations.” 17 Balt. Gas & Elec. Co., 462 U.S. at 97 (citing Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227 (1980) (per curiam)). Instead, NEPA requires agencies to analyze the environmental consequences before taking a major Federal action. Id. (citing Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)). The Supreme Court has recognized that agencies have limited time and resources and that “[t]he scope of the agency's inquiries must remain manageable if NEPA's goal of `[insuring] a fully informed and well-considered decision,' . . . is to be accomplished.” Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 776 (1983) (quoting Vt. Yankee, 435 U.S. at 558). 17 Section 101 of NEPA provides that it is the Federal Government's policy “to use all practicable means and measures . . . to create and maintain conditions under which man and nature can exist in productive harmony, and [to] fulfill the social, economic, and other requirements of present and future generations of Americans.” 42 U.S.C. 4331(a) (emphasis added). CEQ has substantively amended its NEPA regulations only once, at 40 CFR 1502.22, to replace the “worst case” analysis requirement with a provision for the consideration of incomplete or unavailable information regarding reasonably foreseeable significant adverse effects. 18 CEQ found that the amended 40 CFR 1502.22 would “generate information and discussion on those consequences of greatest concern to the public and of greatest relevance to the agency's decision,” 19 rather than distorting the decision-making process by overemphasizing highly speculative harms. 20 The Supreme Court found this reasoning to be a well-considered basis for the change, and that the new regulation was entitled to substantial deference. Methow Valley, 490 U.S. at 356. 18 51 FR 15618 (Apr. 25, 1986). 19 50 FR 32234, 32237 (Aug. 9, 1985). 20 51 FR 15618, 15620 (Apr. 25, 1986). The NEPA regulations direct Federal agencies to adopt their own implementing procedures, as necessary, in consultation with CEQ. 40 CFR 1507.3. Under this regulation, over 85 Federal agencies and their subunits have developed such procedures. 21 21 A list of agency NEPA procedures is available at https://ceq.doe.gov/laws-regulations/agency_implementing_procedures.html. 2. CEQ Guidance and Reports Over the past four decades, numerous questions have been raised regarding appropriate implementation of NEPA and the CEQ regulations. Soon after the issuance of the CEQ regulations and in response to CEQ's review of NEPA implementation and input from Federal, State, and local officials, including NEPA practitioners, CEQ issued the “Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations” 22 in 1981 (“Forty Questions”). This guidance covered a wide range of topics including alternatives, coordination among applicants, lead and cooperating agencies, and integration of NEPA documents with analysis for other environmental statutes. In addition, CEQ has periodically examined the effectiveness of the NEPA process and issued a number of reports on NEPA implementation. In some instances, these reports led to additional guidance. These documents have been intended to provide guidance and clarifications with respect to various aspects of the implementation of NEPA and the definitions in the CEQ regulations, and to increase the efficiency and effectiveness of the environmental review process. 23 22 Forty Questions, supra note 2. 23 See https://www.energy.gov/nepa/ceq-guidance-documents. In January 1997, CEQ issued “The National Environmental Policy Act: A Study of Its Effectiveness After Twenty-five Years.” 24 In that report, CEQ acknowledged that NEPA has ensured that agencies adequately analyze the potential environmental consequences of their actions and bring the public into the decision-making processes of Federal agencies. However, CEQ also identified matters of concern to participants in the study, including concerns with overly lengthy documents that may not enhance or improve decision making, 25 and concerns that agencies may seek to “ `litigation-proof' documents, increasing costs and time but not necessarily quality.” 26 The report further stated that “[o]ther matters of concern to participants in the Study were the length of NEPA processes, the extensive detail of NEPA analyses, and the sometimes confusing overlay of other laws and regulations.” 27 The participants in the study identified five elements of the NEPA process' collaborative framework (strategic planning, public information and input, interagency coordination, interdisciplinary place-based decision making, and science-based flexible management) as critical to effective and efficient NEPA implementation. 24 https://ceq.doe.gov/docs/ceq-publications/nepa25fn.pdf. 25 Id. at iii. 26 Id. 27 Id. In the 50 years since the passage of NEPA, Congress has amended or enacted a number of other environmental laws that may also apply to proposed Federal agency actions, such as the Endangered Species Act, the Clean Water Act, the Clean Air Act, and other substantive statutes. See discussion infra sec. I.D. Consistent with 40 CFR 1502.25, longstanding agency practice has been to use the NEPA process as the umbrella procedural statute, integrating compliance with these laws into the NEPA review and discussing them in the NEPA document. However, this practice sometimes leads to confusion as to whether an agency does an analysis to comply with NEPA or another, potentially substantive, environmental law. In 2002, the Chairman of CEQ established a NEPA task force, composed of Federal agency officials, to examine NEPA implementation by focusing on (1) technology and information management and security; (2) Federal and intergovernmental collaboration; (3) programmatic analyses and tiering; (4) adaptive management and monitoring; (5) categorical exclusions (CEs); and (6) environmental assessments (EAs). In 2003, the task force issued a report 28 recommending actions to improve and modernize the NEPA process, leading to additional guidance documents and handbooks. 28 See The NEPA Task Force Report to the Council on Environmental Quality, Modernizing NEPA Implementation (Sept. 2003) (“NEPA Task Force Report”), https://ceq.doe.gov/docs/ceq-publications/report/finalreport.pdf. Over the past 4 decades, CEQ has issued over 30 documents on a wide variety of topics to provide guidance and clarifications to assist Federal agencies in more efficiently and effectively implementing the NEPA regulations. 29 While CEQ has sought to provide clarity and direction related to implementation of the regulations and the Act through the issuance of guidance, agencies continue to face implementation challenges. Further, the documentation and timelines for completing environmental reviews can be very lengthy, and the process can be complex and costly. 29 See, e.g., Emergencies and the National Environmental Policy Act (Oct. 2016) (“Emergencies Guidance”), https://ceq.doe.gov/docs/nepa-practice/Emergencies_and_NEPA.pdf; Effective Use of Programmatic NEPA Reviews (Dec. 18, 2014) (“Programmatic Guidance”), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Effective_Use_of_Programmatic_NEPA_Reviews_Final_Dec2014_searchable.pdf; NEPA and NHPA: A Handbook for Integrating NEPA and Section 106 (Mar. 2013), https://ceq.doe.gov/publications/nepa-handbooks.html; Memorandum on Environmental Conflict Resolution (Nov. 28, 2005), as expanded by Memorandum on Environmental Collaboration and Conflict Resolution (Sept. 7, 2012), https://ceq.doe.gov/nepa-practice/environmental-collaboration-and-conflict-resolution.html; Final Guidance on Improving the Process for Preparing Efficient and Timely Environmental Reviews Under the National Environmental Policy Act, 77 FR 14473 (Mar. 12, 2012) (“Timely Environmental Reviews Guidance”), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Improving_NEPA_Efficiencies_06Mar2012.pdf; Final Guidance for Federal Departments and Agencies on the Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact, 76 FR 3843 (Jan. 21, 2011) (“Mitigation Guidance”), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf; Council on Environmental Quality, Final Guidance for Federal Departments and Agencies on Establishing, Applying, and Revising Categorical Exclusions under the National Environmental Policy Act, 75 FR 75628 (Dec. 6, 2010) (“CE Guidance”), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf; Letter from the Hon. James L. Connaughton, Chairman, Council on Environmental Quality, to the Hon. Norman Y. Mineta, Secretary, Department of Transportation (May 12, 2003) (“Connaughton Letter”), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/CEQ-DOT_PurposeNeed_May-2013.pdf; Considering Cumulative Effects Under the National Environmental Policy Act (Jan. 1997) (“Cumulative Effects Guidance”), https://ceq.doe.gov/publications/cumulative_effects.html; Environmental Justice: Guidance under the National Environmental Policy Act (Dec. 10, 1997) (“EJ Guidance”), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ej/justice.pdf; Forty Questions, supra note 2. CEQ also issued a resource for the public, A Citizen's Guide to the NEPA: Having Your Voice Heard (Dec. 2007), https://ceq.doe.gov/get-involved/citizens_guide_to_nepa.html. In 2018, CEQ and the Office of Management and Budget (OMB) issued a memorandum titled “One Federal Decision Framework for the Environmental Review and Authorization Process for Major Infrastructure Projects under E.O. 13807” (“OFD Framework Guidance”). 30 CEQ and OMB issued this guidance pursuant to E.O. 13807, titled “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects,” 31 to improve agency coordination for infrastructure projects requiring an EIS and permits or other authorizations from multiple agencies and to improve the timeliness of the environmental review process. See E.O. 13807, infra sec. I.E. Consistent with the OFD Framework Guidance, supra note 30, Federal agencies signed a memorandum of understanding committing to implement the One Federal Decision (OFD) policy for major infrastructure projects, including by committing to establishing a joint schedule for such projects, preparation of a single EIS and joint ROD, elevation of delays and dispute resolution, and setting a goal of completing environmental reviews for such projects within two years. 32 Subsequently, CEQ and OMB issued guidance for the Secretary of Transportation regarding the applicability of the OFD policy to States under the Surface Transportation Project Delivery Program, 33 and for the Secretary of Housing and Urban Development (HUD) regarding the applicability of the OFD policy to entities assuming HUD environmental review responsibilities. 34 CEQ also has provided direction to the Federal Energy Regulatory Commission (FERC) relating to the requirement for joint RODs under the OFD policy. 35 30 M-18-13 (Mar. 20, 2018), https://www.whitehouse.gov/wp-content/uploads/2018/04/M-18-13.pdf. 31 82 FR 40463 (Aug. 24, 2017). 32 See Memorandum of Understanding Implementing One Federal Decision under Executive Order 13807 (2018), https://www.whitehouse.gov/wp-content/uploads/2018/04/MOU-One-Federal-Decision-m-18-13-Part-2-1.pdf. 33 Guidance on the Applicability of E.O. 13807 to States with NEPA Assignment Authority Under the Surface Transportation Project Delivery Program, M-19-11 (Feb. 26, 2019), https://www.whitehouse.gov/wp-content/uploads/2017/11/20190226OMB-CEQ327.pdf. 34 Guidance on the Applicability of E.O. 13807 to Responsible Entities Assuming Department of Housing and Urban Development Environmental Review Responsibilities, M-19-20 (June 28, 2019), https://www.whitehouse.gov/wp-content/uploads/2019/06/M-19-20.pdf. 35 See Letter from the Hon. Mary B. Neumayr, Chairman, Council on Environmental Quality, to the Hon. Neil Chatterjee, Chairman, Federal Energy Regulatory Comm'n (Aug. 22, 2019), https://www.whitehouse.gov/wp-content/uploads/2017/11/20190822FERCOFDLetter.pdf. 3. Environmental Impact Statement Timelines and Page Count Reports CEQ also has conducted reviews and prepared reports on the length of time it takes for agencies to prepare EISs and the length of these documents. These reviews found that the process for preparing EISs is taking much longer than CEQ advised, and that the documents are far longer than the CEQ regulations and guidance recommended. In December 2018, CEQ issued a report compiling information relating to the timelines for preparing EISs during the period of 2010-2017, and the NPRM included a summary of the report. CEQ has since updated this analysis to include EISs completed in 2018, and this section reflects the updated data. 36 36 See Council on Environmental Quality, Environmental Impact Statement Timelines (2010-2018), (June 12, 2020), https://ceq.doe.gov/nepa-practice/eis-timelines.html. While CEQ's Forty Questions states that the time for an EIS, even for a complex project, should not exceed 1 year, 37 CEQ found that, across the Federal Government, the average time for completion of an EIS and issuance of a ROD was 4.5 years and the median was 3.5 years. One quarter of the EISs took less than 2.2 years, and one quarter of the EISs took more than 6 years. 37 Forty Questions, supra note 2, at Question 35. As reflected in the timelines report, the period from publication of a NOI to prepare an EIS to the notice of availability of the draft EIS took, on average, 58.4 percent of the total time, while preparing the final EIS, including addressing comments received on the draft EIS, took, on average, 32.2 percent of the total time. The period from the final EIS to publication of the ROD took, on average, 9.4 percent of the total time. This report recognized that EIS timelines vary widely and many factors may influence the timing of the document, including variations in the scope and complexity of the actions, variations in the extent of work done prior to issuance of the NOI, and suspension of EIS activities due to external factors. Additionally, in July 2019, CEQ issued a report on the length, by page count, of EISs (excluding appendices) finalized during the period of 2013-2017, and the NPRM included a summary of the report. CEQ has since updated this analysis to include EISs completed in 2018, and this section reflects the updated data. While the CEQ regulations include recommended page limits for the text of final EISs of normally less than 150 pages, or normally less than 300 pages for proposals of “unusual scope or complexity,” 40 CFR 1502.7, CEQ found that many EISs are significantly longer. In particular, CEQ found that across all Federal agencies, draft EISs averaged 575 pages in total, with a median document length of 397 pages. 38 One quarter of the draft EISs were 279 pages or shorter, and one quarter were 621 pages or longer. For final EISs, the average document length was 661 pages, and the median document length was 447 pages. One quarter of the final EISs were 286 pages or shorter, and one quarter were 748 pages or longer. On average, the change in document length from draft EIS to final EIS was an additional 86 pages or a 15 percent increase. 38 See Council on Environmental Quality, Length of Environmental Impact Statements (2013-2018), (June 12, 2020) (“CEQ Length of EISs Report”), https://ceq.doe.gov/nepa-practice/eis-length.html. With respect to final EISs, CEQ found that approximately 7 percent were 150 pages or shorter, and 27 percent were 300 pages or shorter. 39 Similar to the conclusions of its EIS timelines study, CEQ noted that a number of factors may influence the length of EISs, including variation in the scope and complexity of the decisions that the EIS is designed to inform, the degree to which NEPA documentation is used to document compliance with other statutes, and considerations relating to potential legal challenges. Moreover, variation in EIS length may reflect differences in management, oversight, and contracting practices among agencies that could result in longer documents. 39 The page counts compiled for 2010-2017 include the text of the EIS as well as supporting content to which the page limit in 40 CFR 1502.7 does not apply. For 2018, CEQ analyzed the data to determine the length of the text of the EISs and found that 19 percent of the final EISs were 150 pages or shorter and 51 percent were 300 pages or shorter. While there can be many factors affecting the timelines and length of EISs, CEQ has concluded that revisions to the CEQ regulations to advance more timely reviews and reduce unnecessary paperwork are warranted. CEQ has determined that improvements to agency processes, such as earlier solicitation of information from States, Tribes, and local governments and the public, and improved coordination in the development of EISs, can achieve more useful and timely documents to support agency decision making. C. Judicial Review of Agency NEPA Compliance NEPA is the most litigated environmental statute in the United States. 40 Over the past 50 years, Federal courts have issued an extensive body of case law addressing appropriate implementation and interpretation of NEPA and the CEQ regulations. 41 The Supreme Court has directly addressed NEPA in 17 decisions, and the U.S. district and appellate courts issue approximately 100 to 140 decisions each year interpreting NEPA. The Supreme Court has construed NEPA and the CEQ regulations in light of a “rule of reason,” which ensures that agencies determine whether and to what extent to prepare an EIS based on the usefulness of information to the decision-making process. See Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 373-74 (1989). “Although [NEPA] procedures are almost certain to affect the agency's substantive decision, it is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process.” Methow Valley, 490 U.S. at 350 (citing Strycker's Bay Neighborhood Council, Inc., 444 U.S. at 227-28; Vt. Yankee, 435 U.S. at 558; see also Pub. Citizen, 541 U.S. at 756-57 (“NEPA imposes only procedural requirements on [F]ederal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions.” (citing Methow Valley, 490 U.S. at 349-50)). The thousands of decisions interpreting NEPA and the current CEQ regulations being amended here drive much of agencies' modern-day practice. A challenge for agencies is that courts have interpreted key terms and requirements differently, adding to the complexity of environmental reviews. For example, in 2018 and 2019, the U.S. Courts of Appeals issued 56 substantive decisions on a range of topics, including assessment of impacts, sufficiency of alternatives, whether an agency's action qualified as Federal action, and purpose and need statements. 42 As discussed below, the final rule codifies longstanding case law in some instances, and, in other instances, clarifies the meaning of the regulations where there is a lack of uniformity in judicial interpretation of NEPA and the CEQ regulations. 40 James E. Salzman and Barton H. Thompson, Jr., Environmental Law and Policy 340 (5th ed. 2019) (“Perhaps surprisingly, there have been thousands of NEPA suits. It might seem strange that NEPA's seemingly innocuous requirement of preparing an EIS has led to more lawsuits than any other environmental statute.”). 41 The 2019 edition of NEPA Law and Litigation includes a 115-page Table of Cases decisions construing NEPA. See Daniel R. Mandelker et al., NEPA Law and Litigation, Table of Cases (2d ed. 2019). 42 National Association of Environmental Professionals, 2019 Annual NEPA Report of the National Environmental Policy Act (NEPA) Practice (2020) at 30-31, https://naep.memberclicks.net/assets/annual-report/2019_NEPA_Annual_Report/NEPA_Annual_Report_2019.pdf; National Association of Environmental Professionals, 2018 Annual NEPA Report of the National Environmental Policy Act (NEPA) Practice (2019) at 41-51, https://naep.memberclicks.net/assets/documents/2019/NEPA_Annual_Report_2018.pdf. D. Statutory Developments Since the enactment of NEPA in 1970, Congress has amended or enacted a large number of substantive environmental statutes. These have included significant amendments to the Clean Water Act and Clean Air Act, establishment of new Federal land management standards and planning processes for National forests, public lands, and coastal zones, and statutory requirements to conserve fish, wildlife, and plant species. 43 Additionally, the consideration of the effects on historic properties under the National Historic Preservation Act is typically integrated into the NEPA review. 44 NEPA has served as the umbrella procedural statute, integrating these laws into NEPA reviews and discussing them in NEPA documents. 43 See, e.g., the Clean Air Act, 42 U.S.C. 7401-7671q; Clean Water Act, 33 U.S.C. 1251-1388; Coastal Zone Management Act, 16 U.S.C. 1451-1466; Federal Land Policy and Management Act, 43 U.S.C. 1701-1787; Forest and Rangeland Renewable Resources Planning Act of 1974, 16 U.S.C. 1600-1614; Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801-1884; Endangered Species Act, 16 U.S.C. 1531-1544; Oil Pollution Act of 1990, 33 U.S.C. 2701-2762; Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1201, 1202, and 1211; and Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675. 44 Similar to NEPA, section 106 (54 U.S.C. 306108) of the National Historic Preservation Act is a procedural statute. Over the past two decades and multiple administrations, Congress has also undertaken efforts to facilitate more efficient environmental reviews by Federal agencies, and has enacted a number of statutes aimed at improving the implementation of NEPA, including in the context of infrastructure projects. In particular, Congress has enacted legislation to improve coordination among agencies, integrate NEPA with other environmental reviews, and bring more transparency to the NEPA process. In 2005, Congress enacted 23 U.S.C. 139, “Efficient environmental reviews for project decisionmaking,” a streamlined environmental review process for highway, transit, and multimodal transportation projects (the “section 139 process”), in the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public Law 109-59, sec. 6002(a), 119 Stat. 1144, 1857. Congress amended section 139 with additional provisions designed to improve the NEPA process in the 2012 Moving Ahead for Progress in the 21st Century Act (MAP-21), Public Law 112-141, sec. 1305-1309, 126 Stat. 405, and the 2015 Fixing America's Surface Transportation (FAST) Act, Public Law 114-94, sec. 1304, 129 Stat. 1312, 1378. Section 139 provides for an environmental review process that is based on and codifies many aspects of the NEPA regulations, including provisions relating to lead and cooperating agencies, concurrent environmental reviews in a single NEPA document, coordination on the development of the purpose and need statement and reasonable alternatives, and adoption of environmental documents. Further, section 139 provides for referral to CEQ for issue resolution, similar to part 1504 of the NEPA regulations, and allows for the use of errata sheets, consistent with 40 CFR 1503.4(c). 45 45 To facilitate the NEPA process for transportation projects subject to section 139, the statute specifically calls for development of a coordination plan, including development of a schedule, and publicly tracking the implementation of that schedule through use of the Permitting Dashboard. See infra sec. I.E. In addition, the section 139 process provides for “participating” agencies, which are any agencies invited to participate in the environmental review process. Section 139 also requires, to the maximum extent practicable, issuance of a combined final EIS and ROD. When Congress enacted section 2045 of the Water Resources Development Act of 2007, Public Law 110-114, 121 Stat. 1041, 1103, it created a similar environmental review provision for water resources development projects by the U.S. Army Corps of Engineers (Corps). 33 U.S.C. 2348. 46 This project acceleration provision also requires a coordinated environmental review process, provides for dispute resolution, and codifies aspects of the NEPA regulations such as lead and cooperating agencies, concurrent environmental reviews, and the establishment of CEs. Section 2348(o) also directs the Corps to consult with CEQ on the development of guidance for implementing this provision. 46 Congress significantly revised this provision in the Water Resources Reform and Development Act of 2014, Public Law 113-121, sec. 1005(a)(1), 128 Stat. 1193 1199. In 2015 Congress enacted Title 41 of the FAST Act (FAST-41), to provide for a more efficient environmental review and permitting process for “covered projects.” See Public Law 114-94, sec. 41001-41014, 129 Stat. 1312, 1741 (42 U.S.C. 4370m—4370m-12). These are projects that require Federal environmental review under NEPA, are expected to exceed $200 million, and involve the construction of infrastructure for certain energy production, electricity transmission, water resource projects, broadband, pipelines, manufacturing, and other sectors. Id. FAST-41 codified certain roles and responsibilities required by the NEPA regulations. In particular, FAST-41 imports the concepts of lead and cooperating agencies, and the different levels of NEPA analysis—EISs, EAs, and CEs. Consistent with 40 CFR 1501.5(e) through (f), CEQ is required to resolve any dispute over designation of a facilitating or lead agency for a covered project. 42 U.S.C. 4370m-2(a)(6)(B). Section 4370m-4 codified several requirements from the CEQ regulations, including the requirement for concurrent environmental reviews, which is consistent with 40 CFR 1500.2(c), 1501.7(a)(6), and 1502.25(a), and the tools of adoption, incorporation by reference, supplementation, and use of State documents, consistent with 40 CFR 1506.3, 1502.21, 1502.9(c), and 1506.2. 47 Finally, 42 U.S.C. 4370m-4 addresses interagency coordination on key aspects of the NEPA process, including scoping (40 CFR 1501.7), identification of the range of reasonable alternatives for study in an EIS (40 CFR 1502.14), and the public comment process (40 CFR part 1503). 47 For covered projects, section 4370m-4 authorizes lead agencies to adopt or incorporate by reference existing environmental analyses and documentation prepared under State laws and procedures if the analyses and documentation meet certain requirements. 42 U.S.C. 4370m-4(b)(1)(A)(i). This provision also requires that the lead agency, in consultation with CEQ, determine that the analyses and documentation were prepared using a process that allowed for public participation and consideration of alternatives, environmental consequences, and other required analyses that are substantially equivalent to what a Federal agency would have prepared pursuant to NEPA. Id. To ensure a timely NEPA process so that important infrastructure projects can move forward, Congress has also established shorter statutes of limitations for challenges to certain types of projects. SAFETEA-LU created a 180-day statute of limitations for highway or public transportation capital projects, which MAP-21 later reduced to 150 days. 23 U.S.C. 139(l). The Water Resources Reform and Development Act of 2014 established a three-year statute of limitations for judicial review of any permits, licenses, or other approvals for water resources development project studies. 33 U.S.C. 2348(k). Most recently in FAST-41, Congress established a two-year statute of limitations for covered projects. 42 U.S.C. 4370m-6. There are a number of additional instances where Congress has enacted legislation to facilitate more timely environmental reviews. For example, similar to the provisions described above, there are other statutes where Congress has called for a coordinated and concurrent environmental review. See, e.g., 33 U.S.C. 408(b) (concurrent review for river and harbor permits); 49 U.S.C. 40128 (coordination on environmental reviews for air tour management plans for national parks); 49 U.S.C. 47171 (expedited and coordinated environmental review process for airport capacity enhancement projects). Additionally, Congress has established or directed agencies to establish CEs to facilitate NEPA compliance. See, e.g., 16 U.S.C. 6554(d) (applied silvicultural assessment and research treatments); 16 U.S.C. 6591d (hazardous fuels reduction projects to carry out forest restoration treatments); 16 U.S.C. 6591e (vegetation management activity in greater sage-grouse or mule deer habitat); 33 U.S.C. 2349 (actions to repair, reconstruct, or rehabilitate water resources projects in response to emergencies); 42 U.S.C. 15942 (certain activities for the purpose of exploration or development of oil or gas); 43 U.S.C. 1772(c)(5) (development and approval of vegetation management, facility inspection, and operation and maintenance plans); MAP-21, Public Law 112-141, sec. 1315 (actions to repair or reconstruct roads, highways, or bridges damaged by emergencies), 1316 (projects within the operational right-of-way), and 1317 (projects with limited Federal assistance); FAA Modernization and Reform Act of 2012, Public Law 112-95, sec. 213(c), 126 Stat. 11, 46 (navigation performance and area navigation procedures); and Omnibus Appropriations Act, 2009, Public Law 111-8, sec. 423, 123 Stat. 524, 748 (Lake Tahoe Basin Management Unit hazardous fuel reduction projects). Further, in the context of emergency response, including economic crisis, Congress has enacted legislation to facilitate timely NEPA reviews or to exempt certain actions from NEPA review. Congress has directed the use or development of alternative arrangements in accordance with 40 CFR 1506.11 for reconstruction of transportation facilities damaged in an emergency (FAST Act, Pub. L. 114-94, sec. 1432, 129 Stat. 1312, 1429) and for projects by the Departments of the Interior and Commerce to address invasive species (Water Infrastructure Improvements for the Nation Act, Pub. L. 114-322, sec. 4010(e)(3), 130 Stat. 1628, 1877). Section 1609(c) of the American Recovery and Reinvestment Act of 2009 directed agencies to complete environmental reviews under NEPA on an expedited basis using the most efficient applicable process. Public Law 111-5, sec. 1609, 123 Stat. 115, 304. In 2013, Congress also enacted section 429 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (“Stafford Act”), 42 U.S.C. 5189g, which directed the President, in consultation with CEQ and the Advisory Council on Historic Preservation, to “establish an expedited and unified interagency review process to ensure compliance with environmental and historic requirements under Federal law relating to disaster recovery projects, in order to expedite the recovery process, consistent with applicable law.” Sandy Recovery Improvement Act of 2013, Public Law 113-2, sec. 1106, 127 Stat. 4, 45-46. This unified Federal environmental and historic preservation review (UFR) process is a framework for coordinating Federal agency environmental and historic preservation reviews for disaster recovery projects associated with presidentially declared disasters under the Stafford Act. The goal of the UFR process is to enhance the ability of Federal environmental review and authorization processes to inform and expedite disaster recovery decisions for grant applicants and other potential beneficiaries of disaster assistance by improving coordination and consistency across Federal agencies, and assisting agencies in better leveraging their resources and tools. 48 48 See generally Memorandum of Understanding Establishing the Unified Federal Environmental and Historic Preservation Review Process for Disaster Recovery Projects (July 29, 2014), https://www.fema.gov/media-library-data/1414507626204-f156c4795571b85a4f8e1c1f4c4b7de1/Final_Signed_UFR_MOU_9_24_14_508_ST.PDF. Finally, in some instances, Congress has exempted actions from NEPA. In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act, which authorized the waiver of NEPA for the construction of the physical barriers and roads between the United States and Mexico border when necessary to “ensure expeditious construction.” Public Law 104-208, sec. 102(c), 110 Stat. 3009. 49 In 2013, Congress exempted certain disaster recovery actions or financial assistance to restore “a facility substantially to its condition prior to the disaster or emergency.” 42 U.S.C. 5159. In 2020, Congress enacted the Coronavirus Aid, Relief, and Economic Security Act, which created an exemption from NEPA for the General Services Administration's acquisition of real property and interests in real property or improvements in real property in response to coronavirus in conjunction with the provision of additional funding to prevent, prepare for, and respond to the coronavirus. Public Law 116-136, Div. B. 49 The Homeland Security Act of 2002 transferred responsibility for the construction of border barriers from the Attorney General to the Department of Homeland Security. Public Law 107-296, 116 Stat. 2135. In 2005, the REAL ID Act amended the waiver authority of section 102(c) expanding the Secretary of DHS' authority to waive “all legal requirements” that the Secretary, in his or her own discretion, determines “necessary to ensure expeditious construction” of certain “barriers and roads.” Public Law 109-13, Div. B, tit. I, sec. 102, 119 Stat. 231, 302, 306. It also added a judicial review provision that limited the district court's jurisdiction to hear any causes or claims concerning the Secretary's waiver authority to solely constitutional claims. Id. sec. 102(c)(2)(A). Further, the provision directed that any review of the district court's decision be raised by petition for a writ of certiorari with the Supreme Court of the United States. Id. sec. 102(c)(2)(C). See In re Border Infrastructure Envtl. Litig., 284 F. Supp. 3d 1092 (S.D. Cal. 2018). These statutes reflect that Congress has recognized that the environmental review process can be more efficient and effective, including for infrastructure projects, and that in certain circumstances, Congress has determined it appropriate to exempt certain actions from NEPA review. Congress also has identified specific process improvements that can accelerate environmental reviews, including improved interagency coordination, concurrent reviews, and increased transparency. E. Presidential Directives Over the past two decades and multiple administrations, Presidents also have recognized the need to improve the environmental review process to make it more timely and efficient, and have directed agencies, through Executive orders and Presidential memoranda, to undertake various initiatives to address these issues. In 2002, President Bush issued E.O. 13274 titled “Environmental Stewardship and Transportation Infrastructure Project Reviews,” 50 which stated that the development and implementation of transportation infrastructure projects in an efficient and environmentally sound manner is essential, and directed agencies to conduct environmental reviews for transportation projects in a timely manner. 50 67 FR 59449 (Sept. 23, 2002). In 2011, President Obama's memorandum titled “Speeding Infrastructure Development Through More Efficient and Effective Permitting and Environmental Review” 51 directed certain agencies to identify up to three high-priority infrastructure projects for expedited environmental review and permitting decisions to be tracked publicly on a “centralized, online tool.” This requirement led to the creation of what is now the Permitting Dashboard, www.permits.performance.gov. 51 https://www.govinfo.gov/content/pkg/DCPD-201100601/pdf/DCPD-201100601.pdf. In 2012, E.O. 13604, titled “Improving Performance of Federal Permitting and Review of Infrastructure Projects,” 52 established an interagency Steering Committee on Federal Infrastructure Permitting and Review Process Improvement (“Steering Committee”) to facilitate improvements in Federal permitting and review processes for infrastructure projects. The Executive order directed the Steering Committee to develop a plan “to significantly reduce the aggregate time required to make Federal permitting and review decisions on infrastructure projects while improving outcomes for communities and the environment.” Similarly, E.O. 13616, titled “Accelerating Broadband Infrastructure Deployment,” 53 established an interagency working group to, among other things, avoid duplicative reviews and coordinate review processes to advance broadband deployment. 52 77 FR 18887 (Mar. 28, 2012). 53 77 FR 36903 (June 20, 2012). A 2013 Presidential Memorandum titled “Modernizing Federal Infrastructure Review and Permitting Regulations, Policies, and Procedures” 54 directed the Steering Committee established by E.O. 13604 to work with agencies, OMB, and CEQ to “modernize Federal infrastructure review and permitting regulations, policies, and procedures to significantly reduce the aggregate time required by the Federal Government to make decisions in the review and permitting of infrastructure projects, while improving environmental and community outcomes” and develop a plan to achieve this goal. Among other things, the memorandum directed that the plan create process efficiencies, including additional use of concurrent and integrated reviews; expand coordination with State, Tribal, and local governments; and expand the use of information technology tools. CEQ and OMB led the effort to develop a comprehensive plan to modernize the environmental review and permitting process while improving environmental and community outcomes, including budget proposals for funding and new authorities. Following the development of the plan, CEQ continued to work with agencies to improve the permitting process, including through expanded collection of timeframe metrics on the Permitting Dashboard. In late 2015, these ongoing efforts were superseded by the enactment of FAST-41, which codified the use of the Permitting Dashboard, established the Federal Permitting Improvement Steering Council (“Permitting Council”), and established other requirements for managing the environmental review and permitting process for covered infrastructure projects. 54 78 FR 30733 (May 22, 2013). On August 15, 2017, President Trump issued E.O. 13807 titled “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.” 55 Section 5(e)(i) directed CEQ to develop an initial list of actions to enhance and modernize the Federal environmental review and authorization process, including issuing such regulations as CEQ deems necessary to: (1) Ensure optimal interagency coordination of environmental review and authorization decisions; (2) ensure that multi-agency environmental reviews and authorization decisions are conducted in a manner that is concurrent, synchronized, timely, and efficient; (3) provide for use of prior Federal, State, Tribal, and local environmental studies, analysis, and decisions; and (4) ensure that agencies apply NEPA in a manner that reduces unnecessary burdens and delays, including by using CEQ's authority to interpret NEPA to simplify and accelerate the NEPA review process. In response to E.O. 13807, CEQ published an initial list of actions and stated its intent to review its existing NEPA regulations in order to identify potential revisions to update and clarify these regulations. 56 55 82 FR 40463 (Aug. 24, 2017). 56 82 FR 43226 (Sept. 14, 2017). F. Advance Notice of Proposed Rulemaking Consistent with E.O. 13807 and CEQ's initial list of actions, and given the length of time since CEQ issued its regulations, on June 20, 2018, CEQ published an ANPRM titled “Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act.” 57 The ANPRM requested public comments on how CEQ could ensure a more efficient, timely, and effective NEPA process consistent with the Act's national environmental policy and provided for a 30-day comment period. 58 57 83 FR 28591 (June 20, 2018). 58 In response to comments, CEQ extended the comment period 31 additional days to August 20, 2018. 83 FR 32071 (July 11, 2018). The ANPRM requested comment on potential revisions to update and clarify the NEPA regulations, and included a list of questions on specific aspects of the regulations. For example, with respect to the NEPA process, the ANPRM asked whether there are provisions that CEQ could revise to ensure more efficient environmental reviews and authorization decisions, such as facilitating agency use of existing environmental studies, analyses and decisions, as well as improving interagency coordination. The ANPRM also requested comments on the scope of NEPA reviews, including whether CEQ should revise, clarify, or add definitions. The ANPRM also asked whether additional revisions relating to environmental documentation issued pursuant to NEPA, including CEs, EAs, EISs, and other documents, would be appropriate. Finally, the ANPRM requested general comments, including whether there were obsolete provisions that CEQ could update to reflect new technologies or make the process more efficient, or that CEQ could revise to reduce unnecessary burdens or delays. In response to the ANPRM, CEQ received over 12,500 comments, which are available for public review. 59 These included comments from a wide range of stakeholders, including States, Tribes, localities, environmental organizations, trade associations, NEPA practitioners, and interested members of the public. While some commenters opposed any updates to the regulations, other commenters urged CEQ to consider potential revisions. Though the approaches to the update of the NEPA regulations varied, most of the substantive comments supported some degree of updating of the regulations. Many noted that overly lengthy documents and the time required for the NEPA process remain real and legitimate concerns despite the NEPA regulations' explicit direction with respect to reducing paperwork and delays. In general, numerous commenters requested that CEQ consider revisions to modernize its regulations, reduce unnecessary burdens and costs, and make the NEPA process more efficient, effective, and timely. 59 See https://www.regulations.gov, docket no. CEQ-2018-0001. G. Notice of Proposed Rulemaking On January 9, 2020, President Trump announced the release of CEQ's NPRM titled “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act” and the rule was published in the Federal Register on January 10, 2020. 60 The NPRM provided a 60-day comment period, and the comment period ended on March 10, 2020. 60 Supra note 8. CEQ hosted two public hearings in Denver, Colorado on February 11, 2020, and in Washington, DC on February 25, 2020. 61 CEQ also notified all federally recognized Tribes and over 400 interested groups, including State, Tribal, and local officials, environmental organizations, trade associations, NEPA practitioners, and interested members of the public representing a broad range of diverse views, that CEQ had issued the proposed rule for public comment. 62 Additionally, CEQ made information to aid the public's review of the proposed rule available on its websites at www.whitehouse.gov/ceq and www.nepa.gov, including a redline version of the proposed changes to the regulations posted on www.regulations.gov, along with a presentation on the proposed rule and other background information. 63 CEQ also conducted additional public outreach to solicit comments, including meetings with Tribal representatives in Denver, Colorado, Anchorage, Alaska, and Washington, DC. 64 61 Transcripts of the two public hearings with copies of testimony and written comments submitted at the hearings are available in the docket on www.regulations.gov, docket ID CEQ-2019-0003. 62 Notices are available under “Supporting Documents” in the docket, www.regulations.gov, docket ID CEQ-2019-0003, https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&dct=SR%2BO&D=CEQ-2019-0003. 63 Id. 64 CEQ also includes meeting summaries under supplemental materials. Id. In response to the NPRM, CEQ received comments from a broad range of stakeholders on a diversity of issues relating to the proposed rule. These included comments from members of Congress, State, Tribal, and local officials, environmental organizations, trade associations, NEPA practitioners, and interested members of the public. CEQ also received a large number of campaign comments, including comments with multiple signatories or groups of comments that were identical or very similar in form or content. The comments received on the NPRM raised a variety of issues related to the rulemaking and contents of the proposed rule, including procedural, legal, and technical issues. The Final Rule Response to Comments provides a summary of the comments and responses to those comments. II. Summary of Final Rule In this section, CEQ summarizes the NPRM proposed changes and the final rule, including any changes or additions to what CEQ proposed. CEQ makes the additions, clarifications, and updates to its regulations based on its record evaluating the implementation of the NEPA regulations, suggestions in response to the ANPRM, and comments provided in response to the NPRM. The revisions finalized in this rule advance the original objectives of the 1978 regulations 65 “[t]o reduce paperwork, to reduce delays, and at the same time to produce better decisions [that] further the national policy to protect and enhance the quality of the human environment.” 66 65 In this final rule, CEQ uses the term “1978 regulations” to refer to the regulations as they exist prior to this final rule's amendment thereof, which includes the 1986 amendment to 40 CFR 1502.22. 66 43 FR 55978 (Nov. 29, 1978). In this final rule, CEQ makes various revisions to align the regulations with the text of the NEPA statute, including revisions to reflect the procedural nature of the statute, including under section 102(2). CEQ also revises the regulations to ensure that environmental documents prepared pursuant to NEPA are concise and serve their purpose of informing decision makers regarding significant potential environmental effects of proposed major Federal actions and the public of the environmental issues in the pending decision-making process. CEQ makes changes to ensure that the regulations reflect changes in technology, increase public participation in the process, and facilitate the use of existing studies, analyses, and environmental documents prepared by States, Tribes, and local governments. CEQ also makes its regulations consistent with the OFD policy established by E.O. 13807 for multi-agency review and related permitting and other authorization decisions. The Executive order specifically instructed CEQ to take steps to ensure optimal interagency coordination, including through a concurrent, synchronized, timely, and efficient process for environmental reviews and authorization decisions. In response to the NPRM, CEQ received many comments supporting revisions to codify key aspects of the OFD policy in the NEPA regulations, including by providing greater specificity on the roles and responsibilities of lead and cooperating agencies. Commenters also suggested that the regulations require agencies to establish and adhere to timetables for the completion of reviews, another key element of the OFD policy. To promote improved interagency coordination and more timely and efficient reviews and in response to these comments, CEQ codifies and generally applies a number of key elements from the OFD policy in this final rule. These include development by the lead agency of a joint schedule, procedures to elevate delays or disputes, preparation of a single EIS and joint ROD to the extent practicable, and a two-year goal for completion of environmental reviews. Consistent with section 104 of NEPA (42 U.S.C. 4334), codification of these policies will not limit or affect the authority or legal responsibilities of agencies under other statutory mandates that may be covered by joint schedules, and CEQ includes language to that effect in § 1500.6. 67 67 In the preamble, CEQ uses the section symbol (§ ) to refer to the final regulations as set forth in this final rule and 40 CFR to refer to the 1978 CEQ regulations as set forth in 40 CFR parts 1500-1508. CEQ also clarifies the process and documentation required for complying with NEPA by amending part 1501 to add sections on threshold considerations, determination of the appropriate level of NEPA review, and the application of CEs; and revising sections in part 1501 on EAs and findings of no significant impact (FONSIs), and EISs in part 1502. CEQ further revises the regulations to promote more efficient and timely environmental reviews, including revisions to promote interagency coordination by amending sections of parts 1501, 1506, and 1507 relating to lead, cooperating, and participating agencies, timing of agency action, scoping, and agency NEPA procedures. To promote a more efficient and timely NEPA process, CEQ amends provisions in parts 1501, 1506, and 1507 relating to applying NEPA early in the process, scoping, tiering, adoption, use of current technologies, and avoiding duplication of State, Tribal, and local environmental reviews; revises parts 1501 and 1502 to provide for presumptive time and page limits; and amends part 1508 to clarify the definitions. For example, CEQ includes two new mechanisms to facilitate the use of CEs when appropriate. Under § 1506.3(d), an agency can adopt another agency's determination that a CE applies to a proposed action when the adopting agency's proposed action is substantially the same. This extends the adoption process and standards from EISs to CE determinations. 68 This allows agencies to “piggyback” where more than one agency is taking an action related to the same project or activity. Alternatively, to apply CEs listed in another agency's procedures (without that agency already having made a determination that a CE applies to a substantially similar action), agencies can establish a process in their agency NEPA procedures to coordinate and apply CEs listed in other agencies' procedures. 68 The final rule also extends the adoption process and standards, which only applies to EISs under the 1978 regulations, to EAs as well. Another efficiency included in this final rule is the ability for agencies to identify other requirements that serve the function of agency compliance with NEPA. Under §§ 1501.1 and 1507.3(d)(6), agencies may determine that another statute's requirements serve the function of agency compliance with NEPA. Alternatively, agencies may designate in their agency NEPA procedures one or more procedures or documents under other statutes or Executive orders that satisfy one or more requirements in the NEPA regulations, consistent with § 1507.3(c)(5). Finally, § 1506.9 allows agencies to substitute processes and documentation developed as part of the rulemaking process for corresponding requirements in these regulations. As noted above, NEPA is a procedural statute that has twin aims. The first is to promote informed decision making, while the second is to inform the public about the agency's decision making. In this final rule, CEQ amends parts 1500, 1501, 1502, 1503, 1505, and 1508 to ensure that agencies solicit and consider relevant information early in the NEPA process and have the maximum opportunity to take that information into account in their decision making. In situations where an EIS is required, this process takes place in two discrete steps. First, § 1501.9(d) directs agencies to include information on the proposed action in the NOI, including its expected impacts and alternatives, and a request for comments from interested parties on the potential alternatives, information, and analyses relevant to the proposed action. Second, § 1503.1(a) requires agencies to request comments on the analysis and conclusions of the draft EIS. The purpose of these two provisions is to bring relevant comments, information, and analyses to the agency's attention, as early in the process as possible, to enable the agency to make maximum use of this information. To facilitate this process, § 1503.3 requires comments on the draft EIS to be submitted on a timely basis and to be as specific as possible. Similarly, § 1503.1(a)(3) requires agencies to invite interested parties to comment specifically on the alternatives, information, and analyses submitted for consideration in the development of the draft EIS. Finally, § 1503.3(b) provides that comments, information, and analyses on the draft EIS not timely received are deemed unexhausted and therefore forfeited. The intent of these amendments is two-fold: (1) To ensure that comments are timely received and at a level of specificity where they can be meaningfully taken into account, where appropriate; and (2) to prevent unnecessary delay in the decision-making process. Consistent with this intent, § 1500.3(b)(2) also directs agencies to include a new section in both the draft and final EIS that summarizes all alternatives, information, and analyses submitted by interested parties in response to the agency's requests for comment in the NOI and on the draft EIS. In addition, §§ 1502.17(a)(2) and 1503.1(a)(3) direct agencies to request comment on the summary in the draft EIS. The purpose of these provisions is to ensure that the agency, through outreach to the public, has identified all relevant information submitted by State, Tribal, and local governments and other public commenters. Although not a substitute for the entire record, the summary will assist agency decision makers in their consideration of the record for the proposed action. As the Supreme Court observed in Metropolitan Edison Co. v. People Against Nuclear Energy, “[t]he scope of [an] agency's inquiries must remain manageable if NEPA's goal of `[insuring] a fully informed and well-considered decision' . . . is to be accomplished.” 460 U.S. at 776 (quoting Vt. Yankee, 435 U.S. at 558). Finally, informed by the summary included in the final EIS pursuant to §§ 1500.3(b)(2) and 1502.17 and the response to comments pursuant to § 1503.4, together with any other material in the record that he or she determines to be relevant, the decision maker is required under § 1505.2(b) to certify in the ROD that the agency has considered the alternatives, information, analyses, and objections submitted by State, Tribal, and local governments and public commenters for consideration in the development of the final EIS. Section 1505.2(b) further provides that a decision certified in this manner is entitled to a presumption that the agency has adequately considered the submitted alternatives, information, and analyses, including the summary thereof, in reaching its decision. This presumption will advance the purposes of the directive in E.O. 11991 to ensure that EISs are supported by evidence that agencies have performed the necessary environmental analyses. See E.O. 11991, sec. 1 amending E.O. 11514, sec. 3(h). This presumption is also consistent with the longstanding presumption of regularity that government officials have properly discharged their official duties. See U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001) (“[W]e note that a presumption of regularity attaches to the actions of government agencies.” (citing United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)); INS v. Miranda, 459 U.S. 14, 18 (1982) (specific evidence required to overcome presumption that public officers have executed their responsibilities properly); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971) (Although a statute prohibited Federal funds for roads through parks absent a feasible and prudent alternative, and although the Secretary of Transportation approved funds without formal findings, the Secretary's decision-making process was nevertheless entitled to a presumption of regularity.); Fed. Commc'ns Comm'n v. Schreiber, 381 U.S. 279, 296 (1965) (noting “the presumption to which administrative agencies are entitled—that they will act properly and according to law”); Phila. & T. Ry. v. Stimpson, 39 U.S. (14 Pet.) 448, 458 (1840) (Where a statute imposed certain conditions before a corrected patent could issue, the signatures of the President and the Secretary of State on a corrected patent raised a presumption that the conditions were satisfied, despite absence of recitals to that effect on face of patent.); Martin v. Mott, 25 U.S. (12 Wheat.) 19, 33 (1827) (“Every public officer is presumed to act in obedience to his duty, until the contrary is shown . . . .”); Udall v. Wash., Va. & Md. Coach Co., 398 F.2d 765, 769 (D.C. Cir. 1968) (The Secretary of the Interior's determination that limitation of commercial bus service was required to preserve a parkway's natural beauty was entitled to presumption of validity, and the burden was on the challenger to overcome it.). In light of this precedent and the interactive process established by these regulations, under which the agency and interested parties exchange information multiple times, the agency compiles and evaluates summaries of that information, and a public official is required to certify the agency's consideration of the record, it is CEQ's intention that this presumption may be rebutted only by clear and convincing evidence that the agency has not properly discharged its duties under the statute. Finally, CEQ revises the regulations to make them easier to understand and apply. CEQ reorganizes the regulatory text to move topics addressed in multiple sections and sometimes multiple parts into consolidated sections. CEQ simplifies and clarifies part 1508 to focus on definitions by moving operative requirements to the relevant regulatory provisions. CEQ revises the regulations to consolidate provisions and reduce duplication. Such consolidation, reordering, and reorganization promotes greater clarity and ease of use. A. Changes Throughout Parts 1500-1508 CEQ proposed several revisions throughout parts 1500-1508 to provide consistency, improve clarity, and correct grammatical errors. CEQ proposed to make certain grammatical corrections in the regulations where it proposed other changes to the regulations to achieve the goals of this rulemaking, or where CEQ determined the changes are necessary for the reader to understand fully the meaning of the sentence. CEQ proposed to revise sentences from passive voice to active voice to help identify the responsible parties. CEQ also proposed to correct the usage of the term “insure” with “ensure” consistent with modern usage. “Insure” is typically used in the context of providing or obtaining insurance, whereas “ensure” is used in the context of making something sure, certain, or safe. While NEPA uses the term “insure,” the context in which it is used makes it clear that Congress meant “ensure” consistent with modern usage. Similarly, CEQ proposed to correct the use of “which” and “that” throughout the rule. CEQ proposed to add paragraph letters to certain introductory paragraphs where it would improve clarity. Finally, CEQ invited comment on whether it should make these types of grammatical and editorial changes throughout the rule or if there are additional specific instances where CEQ should make these types of changes. In the final rule, CEQ adopts the proposed revisions to provide consistency and clarity and to correct grammatical errors and makes these types of changes throughout. CEQ proposed to add “Tribal” to the phrase “State and local” throughout the rule to ensure consultation with Tribal entities and to reflect existing NEPA practice to coordinate or consult with affected Tribal governments and agencies, as necessary and appropriate for a proposed action. CEQ also proposed this change in response to comments on the ANPRM supporting expansion of the recognition of the sovereign rights, interests, and expertise of Tribes. CEQ proposed to eliminate the provisions in the regulations that limit Tribal interest to reservations. CEQ adopts these proposals in the final rule and makes these additions and revisions in §§ 1500.3(b)(2)-(4), 1500.4(p), 1500.5(j), 1501.2(b)(4)(ii), 1501.3(b)(2)(iv), 1501.5(e), 1501.7(b) and (d), 1501.8(a), 1501.9(b), 1501.10(f), 1502.5(b), 1502.16(a)(5), 1502.17(a) and (b), 1502.20(a), 1503.1(a)(2)(i) and (ii), 1505.2(b), and 1506.1(b), 1506.2, 1506.6(b)(3)(i)-(iii), and 1508.1(e), (k), and (w). As noted in the NPRM, these changes are consistent with and in support of government-to-government consultation pursuant to E.O. 13175, titled “Consultation and Coordination With Indian Tribal Governments.” 69 69 65 FR 67249 (Nov. 9, 2000). CEQ proposed several changes for consistent use of certain terms. In particular, CEQ proposed to change “entitlements” to the defined term “authorizations” proposed in § 1508.1(c) throughout the regulations and added “authorizations” where appropriate to reflect the mandate in E.O. 13807 for better integration and coordination of authorization decisions and related environmental reviews. CEQ is adopting these revisions in the final rule in §§ 1501.2(a), 1501.7(i), 1501.9(d)(4) and (f)(4), 1502.13, 1502.24(b), 1503.3(d), and 1508.1(w). CEQ proposed to use the term “decision maker” to refer to an individual responsible for making decisions on agency actions and “senior agency official” to refer to the individual who oversees the agency's overall compliance with NEPA. CEQ adopts these changes in the final rule. There may be multiple individuals within certain departments or agencies that have these responsibilities, including where subunits have developed agency procedures or NEPA compliance programs. CEQ proposed to replace “circulate” or “circulation” with “publish” or “publication” throughout the rule and make “publish or publication” a defined term in § 1508.1(y), which provides agencies with the flexibility to make environmental review and information available to the public by electronic means not available at the time of promulgation of the CEQ regulations in 1978. As explained in the NPRM, historically, the practice of circulation included mailing of hard copies or providing electronic copies on disks or CDs. While it may be necessary to provide a hard copy or copy on physical media in limited circumstances, agencies now provide most documents in an electronic format by posting them online and using email or other electronic forms of communication to notify interested or affected parties. This change will help reduce paperwork and delays, and modernize the NEPA process to be more accessible to the public. CEQ finalizes these changes in §§ 1500.4(o), 1501.2(b)(2), 1502.9(b) and (d)(3), 1502.20, 1503.4(b) and (c), 1506.3(b)(1) and (2), and 1506.8(c)(2). CEQ proposed to change the term “possible” to “practicable” in the NPRM in a number of sections of the regulations. As noted in the NPRM, “practicable” is the more commonly used term in regulations to convey the ability for something to be done, considering the cost, including time required, technical and economic feasibility, and the purpose and need for agency action. The term “practicable,” which is in the statute (42 U.S.C. 4331(a), (b)) and used many times in the 1978 regulations, 70 is consistent with notions of feasibility, which the case law has recognized as part of the NEPA process. See, e.g., Vt. Yankee, 435 U.S. at 551 (“alternatives must be bounded by some notion of feasibility”); Kleppe, 427 U.S. at 414 (“[P]ractical considerations of feasibility might well necessitate restricting the scope” of an agency's analysis.) CEQ makes these changes in the final rule in §§ 1501.7(h)(1) and (2), 1501.8(b)(1), 1502.5, 1502.9(b), 1504.2, and 1506.2(b) and (c). 70 See 40 CFR 1500.2(f), 1501.4(b), 1501.7, 1505.2(c), 1506.6(f) and 1506.12(a). Similarly, CEQ proposed to change “no later than immediately” to “as soon as practicable” in § 1502.5(b), and CEQ finalizes this change. Finally, CEQ proposed to refer to the procedures required in § 1507.3 using the term “agency NEPA procedures” throughout. CEQ makes this change in the final rule. CEQ proposed to eliminate obsolete references and provisions in several sections of the CEQ regulations. In particular, CEQ proposed to remove references to the 102 Monitor in 40 CFR 1506.6(b)(2) and 1506.7(c) because the publication no longer exists, and OMB Circular A-95, which was revoked pursuant to section 7 of E.O. 12372 (47 FR 30959, July 16, 1982), including the requirement to use State and area-wide clearinghouses in 40 CFR 1501.4(e)(2), 1503.1(a)(2)(iii), 1505.2, and 1506.6(b)(3)(i). CEQ removes these references in the final rule. CEQ proposed changes to citations and authorities in parts 1500 through 1508. CEQ is updating the authorities sections for each part to correct the format. CEQ also is removing cross-references to the sections of part 1508, “Definitions,” and updates or inserts new cross-references throughout the rule to reflect revised or new sections. CEQ makes these changes throughout the final rule. Finally, CEQ is reorganizing chapter V of title 40 of the Code of Federal Regulations to place the NEPA regulations into a new subchapter A, “National Environmental Policy Act Implementing Regulations,” and organizing its other regulations into their own new subchapter B, “Administrative Procedures and Operations.” References to “parts 1500 through 1508” in the proposed rule are referenced to “this subchapter” in the final rule. CEQ notes that the provisions of the NEPA regulations, which the final rule comprehensively updates, should be read in their entirety to understand the requirements under the modernized regulations. 71 71 While the final rule retains, in large part, the numbering scheme used in the 1978 regulations, the final rule comprehensively updates the prior regulations. The new regulations should be consulted and reviewed to ensure application is consistent with the modernized provisions. Assumptions should not be made concerning the degree of change to, similarity to, or any interpretation of the prior version of the regulations. B. Revisions To Update the Purpose, Policy, and Mandate (Part 1500) In part 1500, CEQ proposed several revisions to update the policy and mandate sections of the regulations to reflect statutory, judicial, policy, and other developments since the CEQ regulations were issued in 1978. CEQ includes the proposed changes with some revisions in the final rule. 1. Purpose and Policy (§ 1500.1) In the NPRM, CEQ proposed to retitle and revise § 1500.1, “Purpose and policy,” to align this section with the statutory text of NEPA and certain case law, and reflect the procedural requirements of section 102(2) (42 U.S.C. 4332(2)). These changes also are consistent with the President's directive to CEQ to “[i]ssue regulations to Federal agencies for the implementation of the procedural provisions of the Act (42 U.S.C. 4332(2)).” E.O. 11514, as amended by E.O. 11991, sec. 3(h). Many commenters supported these revisions to promote more efficient and timely reviews under NEPA, while others opposed the changes and requested that CEQ maintain the existing language. CEQ revises this section in the final rule consistent with its proposal. Section 1500.1 provides that NEPA is a procedural statute intended to ensure Federal agencies consider the environmental impacts of their actions in the decision-making process. The Supreme Court has made clear that NEPA is a procedural statute that does not mandate particular results; “[r]ather, NEPA imposes only procedural requirements on [F]ederal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions.” Pub. Citizen, 541 U.S. at 756-57 (citing Methow Valley, 490 U.S. at 349-50); see also Vt. Yankee, 435 U.S. at 558 (“NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural.”). As proposed in the NPRM, CEQ revises § 1500.1(a) to summarize section 101 of the Act (42 U.S.C. 4331) and to reflect that section 102(2) establishes the procedural requirements to carry out the policy stated in section 101. CEQ revises § 1500.1(a) consistent with the case law to reflect that the purpose and function of NEPA is satisfied if Federal agencies have considered relevant environmental information and the public has been informed regarding the decision-making process, and to reflect that NEPA does not mandate particular results or substantive outcomes. Marsh, 490 U.S. at 373-74; Vt. Yankee, 435 U.S. at 558. CEQ replaces the vague reference to “action-forcing” provisions ensuring that Federal agencies act “according to the letter and spirit of the Act” (as well as consistently with their organic and program-specific governing statutes) with a more specific reference to the consideration of environmental impacts of their actions in agency decisions. These changes codify the Supreme Court's interpretation of section 102 in two important respects: Section 102 “ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decision[-]making process and the implementation of that decision.” Methow Valley, 490 U.S. at 349; see also Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 23 (2008); Pub. Citizen, 541 U.S. at 756-58. Consistent with CEQ's proposal in the NPRM, CEQ revises § 1500.1(b) to describe the NEPA regulations as revised in this final rule. In particular, CEQ revises this paragraph to reflect that the regulations include direction to Federal agencies to determine what actions are subject to NEPA's procedural requirements and the level of NEPA review, where applicable. The revisions also ensure that Federal agencies identify and consider relevant environmental information early in the process in order to promote informed decision making. These revisions reduce unnecessary burdens and delays consistent with E.O. 13807 and the purposes of the regulations as originally promulgated in 1978. These amendments emphasize that the policy of integrating NEPA with other environmental reviews is to promote concurrent and timely reviews and decision making consistent with statutes, Executive orders, and CEQ guidance. See, e.g., 42 U.S.C. 5189g; 23 U.S.C. 139; 42 U.S.C. 4370m et seq.; E.O. 13604; E.O. 13807; Mitigation Guidance, supra note 29, and Timely Environmental Reviews Guidance, supra note 29. 2. Remove and Reserve Policy (§ 1500.2) CEQ proposed to remove and reserve 40 CFR 1500.2, “Policy.” The section included language that is identical or similar to language in E.O. 11514, as amended. That Executive order directed CEQ to develop regulations that would make the “[EIS] process more useful to decision makers and the public; and . . . reduce paperwork and the accumulation of extraneous background data, in order to emphasize the need to focus on real environmental issues and alternatives.” See E.O. 11514, as amended by E.O. 11991, sec. 3(h). The Executive order also directed CEQ to require EISs to be “concise, clear and to the point, and supported by evidence that agencies have made the necessary environmental analyses.” Id. CEQ proposed to remove this section because it is duplicative of other sections of the regulations, thereby eliminating redundancy. CEQ is making this change in the final rule. Specifically, 40 CFR 1500.2(a) restated the statutory text in section 102 of NEPA (42 U.S.C. 4332) and is duplicative of language in § 1500.6, “Agency authority,” requiring each agency to interpret the provisions of NEPA as a supplement to its existing authority and as a mandate to view policies and missions in light of the Act's national environmental objectives. Paragraph (b) required agencies to implement procedures to make the NEPA process more useful to decision makers and the public; reduce paperwork and accumulation of extraneous background data; emphasize relevant environmental issues and alternatives; and make EISs concise, clear, and to the point and supported by evidence that thy have made the necessary analyses. This paragraph is duplicative of language in § 1502.1, “Purpose of environmental impact statement,” and paragraphs (c) through (i) of § 1500.4, “Reducing paperwork.” Paragraph (c) of 40 CFR 1500.2, requiring agencies to integrate NEPA requirements with other planning and review procedures to run concurrently rather than consecutively, is duplicative of language in § 1502.24, “Environmental review and consultation requirements,” § 1501.2, “Apply NEPA early in the process,” § 1501.9, “Scoping,” and § 1500.4, “Reducing paperwork.” Paragraph (d) encouraging public involvement is duplicative of sections that direct agencies to provide notice and information to and seek comment from the public regarding proposed actions and environmental documents, including provisions in § 1506.6, “Public involvement,” § 1501.9, “Scoping,” and § 1503.1, “Inviting comments and requesting information and analyses.” 72 Paragraph (e), which required agencies to use the NEPA process to identify and assess reasonable alternatives to proposed actions that will avoid or minimize adverse effects, is duplicative of language in § 1502.1, “Purpose of environmental impact statement,” and paragraph (c) of § 1505.2, “Record of decision in cases requiring environmental impact statements.” 72 Section 1506.6 includes detailed provisions directing agencies to facilitate public involvement, including by providing the public with notice regarding actions, holding or sponsoring public hearings, and providing notice of NEPA-related hearings, public meetings, and other opportunities for public involvement, and the availability of environmental documents. Section 1501.9 requires agencies to issue a public notice regarding proposed actions for which the agencies will be preparing an EIS and to include specific information for, and to solicit information from the public regarding such proposed actions. Section 1503 provides direction to agencies regarding inviting comments from the public and requesting information and analyses. Paragraph (f) of 40 CFR 1500.2 required agencies to use all practicable means, consistent with the Act and other essential considerations of national policy, to restore and enhance the quality of the human environment and avoid or minimize any possible adverse effects of their actions upon the quality of the human environment. The rule specifically directs agencies to consider reasonable alternatives to avoid or minimize adverse environmental impacts in § 1502.1, “Purpose of environmental impact statement.” The final rule also provides direction to agencies about the relevant environmental information to be considered in the decision-making process, including potential adverse effects and alternatives, and expressly directs agencies to identify alternatives considered (§§ 1502.14 and 1502.16), and to state in their RODs whether they have adopted all practicable means to avoid or minimize environmental harm from the alternative selected (§ 1505.2). 3. NEPA Compliance (§ 1500.3) CEQ proposed numerous changes and additions to § 1500.3, “NEPA compliance,” including the addition of paragraph headings to improve readability. In paragraph (a), “Mandate,” CEQ proposed to update the authorities under which it issues the regulations. CEQ adds these references, including to E.O. 13807, in the final rule. In the NPRM, CEQ proposed to add a sentence to this paragraph regarding agency NEPA procedures not imposing additional procedures or requirements beyond those set forth in the regulations. To address confusion expressed by some commenters, CEQ does not include this sentence in the final rule because it includes this requirement in § 1507.3, “Agency NEPA procedures.” CEQ proposed to add a new paragraph (b), “Exhaustion,” to summarize public comment requirements and an exhaustion requirement. Specifically, CEQ proposed in paragraph (b)(1) to require that, in a NOI to prepare an EIS, agencies request comments from interested parties on the potential effects of and potential alternatives to proposed actions, and also request that interested parties identify any relevant information, studies, or analyses of any kind concerning such effects. CEQ includes this provision in the final rule to ensure that agencies solicit and consider relevant information early in the development of an EIS. In paragraph (b)(2) of § 1500.3, CEQ proposed to require that the EIS include a summary of all the comments received for consideration in developing the EIS. CEQ includes this provision in the final rule with some changes. For consistency with the language in § 1502.17, the final rule specifies that the draft and final EISs must include a summary of “all alternatives, information, and analyses.” Also, in response to comments requesting clarification on the meaning of “public commenters,” the final rule changes this phrase in paragraphs (b)(2) and (3) of § 1500.3 and in § 1502.17 to “State, Tribal, and local governments and other public commenters” for consistency with §§ 1501.9 and 1506.6 and to clarify that public commenters includes governments as well as other commenters such as organizations, associations, and individuals. In paragraph (b)(3) of § 1500.3, CEQ proposed to require that public commenters timely submit comments on draft EISs and any information on environmental impacts or alternatives to a proposed action to ensure informed decision making by Federal agencies. CEQ further proposed to provide that comments not timely raised and information not provided shall be deemed unexhausted and forfeited. This reinforces the principle that parties may not raise claims based on issues they themselves did not raise during the public comment period. See, e.g., Pub. Citizen, 541 U.S. at 764-65 (finding claims forfeited because respondents had not raised particular objections to the EA in their comments); Karst Envtl. Educ. & Prot., Inc. v. Fed. Highway Admin., 559 Fed. Appx. 421, 426-27 (6th Cir. 2014) (concluding that comments did not raise issue with “sufficient clarity” to alert the Federal Highway Administration to concerns); Friends of the Norbeck v. U.S. Forest Serv., 661 F.3d 969, 974 (8th Cir. 2011) (concluding that comments were insufficient to give the Forest Service an opportunity to consider claim and that judicial review was therefore improper); Exxon Mobil Corp. v. U.S. EPA, 217 F.3d 1246, 1249 (9th Cir. 2000) (arguments not raised in comments are waived); Ass'n of Mfrs. v. Dep't of the Interior, 134 F.3d 1095, 1111 (D.C. Cir. 1998) (failure to raise argument in rulemaking constitutes failure to exhaust administrative remedies). Finally, CEQ proposed to require that the public raise any objections to the submitted alternatives, information, and analyses section within 30 days of the notice of availability of the final EIS. The final rule includes paragraph (b)(3) with some modifications. The final rule requires State, Tribal, and local governments and other public commenters to submit comments within the comment periods provided under § 1503.1 and that comments be as specific as possible under § 1503.3. The rule specifies that comments or objections of any kind not submitted “shall be forfeited as unexhausted” to clarify any ambiguity about forfeiture and exhaustion. CEQ received comments opposing the proposal to require the public to raise objections to the submitted alternatives, information, and analyses section within 30 days of the notice of availability of the final EIS. The final rule does not include the proposed mandatory 30-day comment period. However, § 1506.11 retains from the 1978 regulations the 30-day waiting period prior to issuance of the ROD, subject to limited exceptions, and under § 1503.1(b), agencies may solicit comments on the final EIS if they so choose. Each commenter should put its own comments into the record as soon as practicable to ensure that the agency has adequate time to consider the commenter's input as part of the agency's decision-making process. Finally, to ensure commenters timely identify issues, CEQ expresses its intention that commenters rely on their own comments and not those submitted by other commenters in any subsequent litigation, except where otherwise provided by law. CEQ also proposed in paragraph (b)(4) of § 1500.3 to require that the agency decision maker certify in the ROD that the agency has considered all of the alternatives, information, and analyses submitted by public commenters based on the summary in the EIS. CEQ includes this section in the final rule with some modifications. The final rule requires the decision maker, informed by the final EIS (including the public comments, summary thereof, and responses thereto) and other relevant material in the record, certify that she or he considered the alternatives, information, and analyses submitted by States, Tribes, and local governments and other public commenters. Relevant material includes both the draft and final EIS as well as any supporting materials incorporated by reference or appended to the document. The final rule does not specify the decision maker “for the lead agency” to account for multiple decision makers, consistent with the OFD policy. CEQ proposed to add a new paragraph (c), “Review of NEPA compliance,” to § 1500.3 to reflect the development of case law since the promulgation of the CEQ regulations. Specifically, CEQ proposed to revise the sentence regarding timing of judicial review to strike references to the filing of an EIS or FONSI and replace them with the issuance of a signed ROD or the taking of another final agency action. CEQ includes this change in the final rule. Judicial review of NEPA compliance for agency actions can occur only under the APA, which requires finality. 5 U.S.C. 704. A private right of action to enforce NEPA, which is lacking, would be required to review non-final agency action. In addition, non-final agency action may not be fit for judicial review as a matter of prudential standing. See Abbott Labs v. Gardner, 387 U.S. 136, 148-49 (1967). Under the APA, judicial review does not occur until an agency has taken final agency action. Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (“[T]he action must mark the `consummation' of the agency's decision[-]making process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which `rights or obligations have been determined' or from which `legal consequences will flow'” (citations omitted)). Because NEPA's procedural requirements apply to proposals for agency action, judicial review should not occur until the agency has completed its decision-making process, and there are “direct and appreciable legal consequences.” Id. at 178. Final agency action for judicial review purposes is not necessarily when the agency publishes the final EIS, issues a FONSI, or makes the determination to categorically exclude an action. CEQ also proposed in paragraph (c) to clarify that any allegation of noncompliance be resolved as expeditiously as possible, and that agencies may structure their decision making to allow private parties to seek agency stays or provide for efficient mechanisms, such as imposition of bonds, for seeking, granting, and imposing conditions on stays. The final rule clarifies that it is CEQ's intention that any allegation of noncompliance be resolved as expeditiously as possible. The final rule also clarifies that agencies may structure their procedures consistent with their organic statutes, and as part of implementing the exhaustion provisions in paragraph (b) of § 1500.3, to include an appropriate bond or other security requirement to protect against harms associated with delays. Consistent with their statutory authorities, agencies may impose, as appropriate, bond and security requirements or other conditions as part of their administrative processes, including administrative appeals, and a prerequisite to staying their decisions, as courts do under rule 18 of the Federal Rules of Appellate Procedure and other rules. 73 See, e.g., Fed. R. App. P. 18(b); Fed. R. App. P. 8(a)(2)(E); Fed. R. Civ. P. 65(c); Fed. R. Civ. P. 62(b); Fed. R. Civ. P. 62(d). CEQ notes that there is no “NEPA exception” that exempts litigants bringing NEPA claims from otherwise applicable bond or security requirements or other appropriate conditions, and that some courts have imposed substantial bond requirements in NEPA cases. See, e.g., Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1125-26 (9th Cir. 2005) (concluding that district court's imposition of a $50,000 bond was appropriate and supported by the record); Stockslager v. Carroll Elec. Co-op Corp., 528 F.2d 949 (8th Cir. 1976) (concluding that district court's imposition of a $10,000 bond was appropriate). 73 See, e.g., 26 CFR 2.6 (Bureau of Indian Affairs' regulatory provision that allows a person that believes he or she may suffer a measurable and substantial financial loss as a result of the delay caused by an appeal to request that the official require the posting of a reasonable bond). CEQ proposed to add a new paragraph (d), “Remedies,” to § 1500.3. CEQ proposed to state explicitly that harm from the failure to comply with NEPA can be remedied by compliance with NEPA's procedural requirements, and that CEQ's regulations do not create a cause of action for violation of NEPA. The statute does not create any cause of action, and agencies may not create private rights of action by regulation; “[l]ike substantive [F]ederal law itself, private rights of action to enforce [F]ederal law must be created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (citing Touche Ross & Co. v. Redington, 442 U.S. 560, 578 (1979)). This is particularly relevant where, as here, the counterparty in any action to enforce NEPA would be a Federal officer or agency. See San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1096-97 (9th Cir. 2005) (“[C]reating a direct private action against the federal government makes little sense in light of the administrative review scheme set out in the APA.”). The CEQ regulations create no presumption that violation of NEPA is a basis for injunctive relief or for a finding of irreparable harm. As the Supreme Court has held, the irreparable harm requirement, as a prerequisite to the issuance of preliminary or permanent injunctive relief, is neither eliminated nor diminished in NEPA cases. A showing of a NEPA violation alone does not warrant injunctive relief and does not satisfy the irreparable harm requirement. See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 157 (2010) (“[T]he statements quoted [from prior Ninth Circuit cases] appear to presume that an injunction is the proper remedy for a NEPA violation except in unusual circumstances. No such thumb on the scales is warranted.”); Winter, 555 U.S. at 21-22, 31-33; see also Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 544-45 (1987) (rejecting proposition that irreparable damage is presumed when an agency fails to evaluate thoroughly the environmental impact of a proposed action). Moreover, a showing of irreparable harm in a NEPA case does not entitle a litigant to an injunction or a stay. See Winter, 555 U.S. at 20 (“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”) (emphasis added); Geertson Seed Farms, 561 U.S. at 157 (“The traditional four-factor test applies when a plaintiff seeks a permanent injunction to remedy a NEPA violation . . . . An injunction should issue only if the traditional four-factor test is satisfied.”). Consistent with the Supreme Court's analysis in Geertson Seed Farms, agencies (as well as applicants) should give practical consideration to measures that might serve to anticipate, reduce, or eliminate possible adverse effects from a project. To the extent such measures are incorporated into an agency's ROD, they may provide grounds upon which a court, presented with an alleged violation of NEPA, might reasonably conclude that injunctive relief is not warranted because the measures prevent any irreparable harm from occurring. See § 1505.3. For example, regular inspections or requirements that applicants obtain third-party insurance, for example, might constitute such measures in certain circumstances. Inspections can reveal defects before they cause harm. Third-party insurers, because of their exposure to risk, have an economic incentive to conduct thorough inspections, facilitating discovery of defects. Such measures would be relevant to whether a valid claim of irreparable harm has been established. CEQ also proposed to state that any actions to review, enjoin, vacate, stay, or alter an agency decision on the basis of an alleged NEPA violation be raised as soon as practicable to avoid or minimize any costs to agencies, applicants, or any affected third parties. As reflected in comments received in response to the ANPRM, delays have the potential to result in substantial costs. CEQ also proposed to replace the language providing that trivial violations should not give rise to an independent cause of action with language that states that minor, non-substantive errors that have no effect on agency decision making shall be considered harmless and shall not invalidate an agency action. Invalidating actions due to minor errors does not advance the goals of the statute and adds delays and costs. CEQ includes paragraph (d) in the final rule with a change to clarify that it is CEQ's intention that the regulations create no presumption that violation of NEPA is a basis for injunctive relief or for a finding of irreparable harm. As noted above, NEPA is a procedural statute and any harm is thus reparable by providing the necessary environmental documentation in accordance with the Act and these regulations. CEQ also adds “vacate, or otherwise” to the types of actions that may alter a decision to address situations where there may be a nationwide or other vacatur and “after final agency action” to clarify when the actions should be raised. Finally, CEQ proposed to add a new paragraph (e), “Severability,” to § 1500.3 to address the possibility that this rule, or portions of this rule, may be challenged in litigation. CEQ finalizes this paragraph as proposed, correcting the [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2020-15179. Public record. Not legal advice.